Exhibit 
10.1

    EXECUTION VERSION

    
       

    

    SEVENTH

    AMENDED
AND RESTATED

    CREDIT
AGREEMENT

     

    dated as
of August 31, 2009

     

    by and
among

     

    NOVAMED,
INC.

     

    as the
Borrower,

     

    CERTAIN
COMMERCIAL LENDING INSTITUTIONS,

     

    as the
Lenders,

     

    and

     

    NATIONAL
CITY BANK,

     

    as the
Agent for the Lenders,

    Sole
Bookrunner and Sole Lead Arranger

     

    with

     

    BANK OF
AMERICA, N.A.,

     

    as
Syndication Agent

     

    and

     

    TD
BANKNORTH and SIEMENS FINANCIAL SERVICES, INC.,

     

    as
Co-Documentation Agents


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    SEVENTH
AMENDED AND RESTATED CREDIT AGREEMENT

     

    THIS
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT, dated as of August 31, 2009, by
and among NOVAMED, INC., a Delaware corporation (the “Borrower”), the various
financial institutions from time to time party hereto (collectively, the “Lenders”), NATIONAL CITY
BANK, as Sole Bookrunner, Sole Lead Arranger and as Agent (the “Agent”) for the Lenders, BANK
OF AMERICA, N.A., as Syndication Agent and TD BANKNORTH and SIEMENS FINANCIAL
SERVICES, INC., as Co-Documentation Agents;

     

    WITNESSETH:

     

    WHEREAS,
the Borrower, the Lenders and the Agent entered into that certain Credit
Agreement dated as of June 28, 2000 (the “Original Credit Agreement”)
which Original Credit Agreement was amended and restated as of August 29, 2001
pursuant to an Amended and Restated Credit Agreement, was again amended and
restated as of October 23, 2001 pursuant to that certain Second Amended and
Restated Credit Agreement, was again amended and restated as of June 26, 2003
pursuant to that certain Third Amended and Restated Credit Agreement, was again
amended and restated as of October 15, 2004 pursuant to that certain Fourth
Amended and Restated Credit Agreement, was again amended and restated as of June
29, 2006 pursuant to that certain Fifth Amended and Restated Credit Agreement
and was again amended and restated as of February 7, 2007 pursuant to that
certain Sixth Amended and Restated Credit Agreement (the "Sixth Amended and Restated Credit
Agreement"); and

     

    WHEREAS,
the Borrower has requested that the Lenders and the Agent amend and restate the
Sixth Amended and Restated Credit Agreement; and

     

    WHEREAS,
the Lenders are willing, on the terms and subject to the conditions hereinafter
set forth (including Article V), to amend
and restate the Sixth Amended and Restated Credit Agreement; and

     

    WHEREAS,
the proceeds of the Loans hereunder will be used (i) to refinance existing
indebtedness, (ii) for working capital purposes and (iii) for general corporate
purposes, including to finance Permitted Acquisitions and Capital
Expenditures.

     

    NOW,
THEREFORE, the parties hereto agree as follows:

     

    ARTICLE
I

     

    DEFINITIONS
AND ACCOUNTING TERMS

     

    SECTION
1.1  Defined
Terms.  The following terms (whether or not underscored) when
used in this Agreement, including its preamble and recitals, shall, except where
the context otherwise requires, have the following meanings (such meanings to be
equally applicable to the singular and plural forms thereof).


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    "Affected Lender" is defined
in Section
4.12.

     

    “Affiliate” of any Person
means any other Person which, directly or indirectly, controls, is controlled by
or is under common control with such Person (excluding any trustee under, or any
committee with responsibility for administering, any Plan).  A Person
shall be deemed to be “controlled by” any other Person if such other Person
possesses, directly or indirectly, power

     

    (a)           to
vote 10% or more of the securities (on a fully diluted basis) having ordinary
voting power for the election of directors or managing general partners;
or

     

    (b)           to
direct or cause the direction of the management and policies of such Person
whether by contract or otherwise.

     

    “Agent” means National City
Bank and its successors and assigns.

     

    “Agreed EBITDA FORM” is
defined in Schedule
1.

     

    “Agreement” means, on any
date, this Seventh Amended and Restated Credit Agreement as originally in effect
on the Closing Date and as thereafter from time to time amended, supplemented,
amended and restated, or otherwise modified and in effect on such
date.

     

    “ASC Facility” means an
ambulatory surgery center, surgical facility or other form of outpatient
surgical treatment center (including, without limitation, vision correction or
laser vision correction center), or any business primarily in the business of
owning, operating and/or managing one or more thereof.

     

    "ASC Startup" means any Capital
Expenditure or other amount expended the Borrower or any other Credit Party in
an ASC Facility which Capital Expenditure would not by definition constitute an
Investment or Permitted Acquisition hereunder.

     

    “ASC Subsidiary” means a
Subsidiary of the Borrower that is primarily engaged in the business of being an
ASC Facility.

     

    “ASC Subsidiary Capital Event”
means the purchase by the Borrower or a Wholly-Owned Subsidiary of the Borrower
of all or a portion of the equity interests in a Non-Wholly-Owned ASC Subsidiary
or Controlled Minority ASC Entity or the redemption by a Non-Wholly-Owned ASC
Subsidiary or Minority ASC Entity of all or a portion of the equity interests in
such Non-Wholly-Owned ASC Subsidiary or Minority ASC Entity, as
applicable.

     

    “Asset Disposition” means any
sale, transfer or other disposition of any property of the Borrower or any
Subsidiary in a single transaction or in a series of related transactions (other
than the sale of inventory and of equipment that is obsolete, worn-out or no
longer useable by the Borrower or any of its Subsidiaries, in each case in the
ordinary course of business and Permitted Equity Ownership Sales).

     

    “Assignee Lender” is defined
in Section
10.11.1.


    
      
         


      

      
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    “Authorized Officer” means,
relative to any Credit Party, those of its officers whose signatures and
incumbency shall have been certified to the Agent and the Lenders pursuant to
Section
5.1.1.

     

    "Available Revolving
Commitment": means at any time, an amount equal to the excess, if any, of
(a) the Revolving Commitment Amount then in effect over (b) the sum of
all Revolving Extensions of Credit then outstanding.

     

    “Base Rate” means, for any
day, a fluctuating per annum rate of interest equal to the highest of (i) the
interest rate per annum announced from time to time by the Agent at its
principal office as its then prime rate, which rate may not be the lowest rate
then being charged commercial borrowers by the Agent, (ii) the Federal Funds
Effective Rate plus 1⁄2 of 1% and (iii) the 1 month LIBOR Rate plus 200 basis
points (2%).

     

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

     

    “Borrower” is defined in the
preamble.

     

    “Borrowing” means the
Revolving Loans of the same type and, in the case of LIBO Rate Loans, having the
same Interest Period made by all Lenders on the same Business Day and pursuant
to the same Borrowing Request in accordance with Section
2.2.

     

    “Borrowing Request” means a
loan request and certificate duly executed by an Authorized Officer of the
Borrower, substantially in the form of Exhibit B
hereto.

     

    
      “Business Day”
means

    

     

    (a)           any
day which is neither a Saturday or Sunday nor a legal holiday on which banks are
authorized or required to be closed in Chicago, Illinois; and

     

    (b)           relative
to the making, continuing, prepaying or repaying of any LIBO Rate Loans, any day
on which dealings in Dollars are carried on in the London  interbank
market.

     

    “Call Option” means the call
options, purchase rights or similar rights with respect to the common stock of
the Borrower purchased by the Borrower on the issuance date of the Convertible
Notes in connection with such issuance (including any rights of any counterparty
to put any shares of common stock of the Borrower to the Borrower thereunder or
any similar rights thereunder).

     

    “Capital Expenditures” means,
for any period, the aggregate amount of all expenditures of the Borrower and its
Subsidiaries for fixed or capital assets made during such period which, in
accordance with GAAP, would be classified as capital
expenditures.


    
      
         


      

      
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    “Capitalized Lease
Liabilities” means all monetary obligations of any Credit Party under any
leasing or similar arrangement which, in accordance with GAAP, would be
classified as capitalized leases, and, for purposes of this Agreement and each
other Loan Document, the amount of such obligations shall be the capitalized
amount thereof, determined in accordance with GAAP, and the stated maturity
thereof shall be the date of the last payment of rent or any other amount due
under such lease prior to the first date upon which such lease may be terminated
by the lessee without payment of a penalty.

     

    “Cash Equivalent Investment”
means, at any time:

     

    (a)  any
evidence of Indebtedness, maturing not more than eighteen months after such
time, issued or guaranteed by the United States Government;

     

    (b)  commercial
paper, maturing not more than nine months from the date of issue, which is
issued by:

     

    (i)  a
corporation (other than an Affiliate of any Credit Party) organized under the
laws of any state of the United States or of the District of Columbia and rated
A-l by Standard & Poor’s Corporation or P-l by Moody’s Investors Service,
Inc., or

     

    (ii)  any
Lender (or its holding company);

     

    (c)  any
certificate of deposit or bankers acceptance, maturing not more than one year
after such time, which is issued by either:

     

    (i)  a
commercial banking institution that is a member of the Federal Reserve System
and has a combined capital and surplus and undivided profits of not less than
$500,000,000, or

     

    (ii)  any
Lender; or

     

    (d)  any
repurchase agreement entered into with any Lender (or other commercial banking
institution of the stature referred to in clause (c)(i))
which:

     

    (i)  is
secured by a fully perfected security interest in any obligation of the type
described in any of clauses (a) through
(c);
and

     

    (ii)  has
a market value at the time such repurchase agreement is entered into of not less
than 100% of the repurchase obligation of such Lender (or other commercial
banking institution) thereunder.

    


    “CERCLA” means the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended.

     

    “CERCLIS” means the
Comprehensive Environmental Response Compensation Liability Information System
List.


    
      
         


      

      
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    “Change of Control” means (a)
any Person or any two or more Persons acting in concert  acquiring
beneficial ownership (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under the Exchange Act), directly or indirectly, of capital
stock (or other securities convertible into such capital stock) of the Borrower
representing 35% or more of the combined voting power of all capital stock of
the Borrower entitled to vote in the election of directors, (b) during any
period of 12 consecutive calendar months, the ceasing of those individuals (the
“Continuing Directors”)
who (i) were directors of the Borrower, on the first day of each such period or
(ii) subsequently became directors of the Borrower, and whose initial election
or initial nomination for election subsequent to that date was approved either
by (A) a majority of the Continuing Directors then on the board of directors of
the Borrower or (B) the shareholders who, in accordance with the provisions of
the Articles of Incorporation of the Borrower, are entitled to elect such
director, to constitute a majority of the board of directors of the Borrower or
(c) the occurrence of any "Fundamental Change" (or comparable term) under, as
defined in, the Convertible Note Documents.

     

    “Closing Date” means August
31, 2009.

     

    “CMS” shall mean the Centers
for Medicare and Medicaid Services and any successor thereto.

     

    “Code” means the Internal
Revenue Code of 1986, and regulations promulgated thereunder.

     

    “Collateral” means all
property and interests in property and proceeds thereof now owned or hereafter
acquired by any Credit Party in or upon which a Lien now or hereafter exists in
favor of the Agent on behalf of the Lenders, whether under this Agreement,
Collateral Document or under any other documents executed by any such Credit
Party and delivered to the Agent.

     

    “Collateral Documents” means,
collectively, (a) the Guarantee and Collateral Agreement, the Intellectual
Property Assignments and all other security agreements, pledge agreements,
assignments, guarantees and other similar agreements between a Credit Party and
the Agent for the benefit of the Lenders now or hereafter delivered to the
Lenders or the Agent pursuant to or in connection with the transactions
contemplated hereby, and all financing statements (or comparable documents now
or hereafter filed in accordance with the Uniform Commercial Code or comparable
law) against a Credit Party as debtor in favor of the Agent, for the benefit of
the Lenders, as secured party and (b) any amendments, restatements, supplements,
modifications, renewals, replacements, consolidations, substitutions and
extensions of any of the foregoing.

     

    “Consideration” means with
respect to any Permitted Acquisition, the aggregate of (i) the cash paid by the
Borrower or any of its Subsidiaries, directly or indirectly, to the seller in
connection therewith, (ii) the Indebtedness incurred or assumed by the Borrower
or any of its Subsidiaries (including, without limitation, Indebtedness of a
person becoming a Credit Party in connection with a Permitted Acquisition, which
Indebtedness continues to exist following the consummation of such Permitted
Acquisition), whether in favor of the seller or otherwise and whether fixed or
contingent, in connection therewith, (iii) any guaranty given or incurred by the
Borrower or any of its Subsidiaries in connection therewith, (iv) the fair
market value of any equity issued by the Borrower, in connection therewith, and
(v) any other consideration given or obligation incurred by the Borrower or any
of its Subsidiaries in connection therewith.


    
      
         


      

      
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    "Consolidated Interest
Expenses" means, for any period, the total interest expense (including
that attributable to capital leases) of the Borrower and its Subsidiaries on a
consolidated basis with respect to all outstanding Indebtedness of the Borrower
and its Subsidiaries, including, without limitation, all commissions, discounts
and other fees and charges owed with respect to letters of credit and unused
line fees but excluding any of the foregoing to the extent it constitutes a
non-cash item.

     

    “Contingent Liability” means
any agreement, undertaking or arrangement which would be reflected in a footnote
to a balance sheet as a contingent liability in accordance with
GAAP.

     

    “Continuation/Conversion
Notice” means a notice of continuation or conversion and certificate duly
executed by an Authorized Officer of the Borrower, substantially in the form of
Exhibit C
hereto.

     

    “Controlled Group” means all
members of a controlled group of corporations and all members of a controlled
group of trades or businesses (whether or not incorporated) under common control
which, together with the Borrower, are treated as a single employer under
Section 414(b) or 414(c) of the Code or Section 4001 of ERISA.

     

    "Controlled Minority ASC
Entity" means, as of any date of determination, any Minority ASC Entity
in which the Borrower or any Credit Party as of such date has operational
control over the day to day business decisions of such Minority ASC Entity
including, without limitation, veto power over the disposition of the assets of
such Minority ASC Entity and operational control over the disbursement of funds
held by such Minority ASC Entity.

     

    “Convertible Note Documents”
means the Convertible Notes, the Indenture dated as of June 17, 2007 between
Borrower, as issuer and LaSalle Bank National Association, as trustee (including
the First Supplemental Indenture dated as of June 27, 2007 between Borrower, as
issuer and LaSalle Bank National Association, as trustee), the Call Options, the
Warrants and all other definitive documents, instruments and agreements relating
thereto, as amended, modified, supplemented, refinanced and replaced in
accordance with the provisions hereof.

     

    “Convertible Notes” means the
Borrower's $75,000,000 in original principal amount of unsecured convertible
senior subordinated notes due 2012, as amended, modified, supplemented,
refinanced or replaced in accordance with the provisions hereof.

     

    “Credit Party” means the
Borrower and any Subsidiary of the Borrower party to a Loan
Document.

     

    “Credit Party Intercompany
Loans” is defined in Section
7.2.2.

     

    “Credit Party Intercompany
Notes” is defined in Section
7.2.2.

     

    “Default” means any condition,
occurrence or event which, after notice or lapse of time or both, would
constitute an Event of Default.

     

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


    
      
         


      

      
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    “Domestic Office” means,
relative to any Lender, the office of such Lender designated as such below its
signature hereto or designated in the Lender Assignment Agreement or such other
office of a Lender (or any successor or assign of such Lender) within the United
States as may be designated from time to time by notice from such Lender, as the
case may be, to each other Person party hereto.  A Lender may have
separate Domestic Offices for purposes of making, maintaining or continuing, as
the case may be, Base Rate Loans.

     

    “EBITDA” means, for any
applicable computation period, the sum of (i) the Borrower’s Net Income on a
consolidated basis from continuing operations, plus (ii) income and franchise
taxes paid or accrued during such period, (iii) interest expense paid or accrued
during such period, (iv) amortization and depreciation deducted in determining
Net Income for such period, (v) non-cash, non-recurring losses, and (vi)
non-cash expenses for capital stock-based compensation related to capital
stock-based compensation plans that do not represent a cash item in any future
period.  For the purpose of determining compliance with Section 7.2.4(b) and
(c), “EBITDA” shall be as adjusted pursuant to the formula described in
Schedule
1.

     

    “Environmental Laws” means all
applicable federal, state or local statutes, laws, ordinances, codes, rules,
regulations and guidelines (including consent decrees and administrative orders)
relating to public health and safety and protection of the
environment.

     

    “ERISA” means the Employee
Retirement Income Security Act of 1974, as amended, and any successor statute of
similar import, together with the regulations thereunder, in each case as in
effect from time to time.  References to sections of ERISA also refer
to any successor sections.

     

    “Event of Default” is defined
in Section
8.1.

     

    “Federal Funds Effective Rate”
means, for any day, an interest 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 for
such day (or, if such day is not a Business Day, for the immediately preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day which is a Business Day, the average of the quotations
at approximately 11:00 a.m. (EST) on such day on such transactions received by
Agent from three Federal funds brokers of recognized standing selected by the
Agent in its sole discretion.

     

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

     

    “Fiscal Year” means any period
of twelve consecutive calendar months ending on  December 31;
references to a Fiscal Year with a number corresponding to any calendar year
(e.g. the “2006
Fiscal Year”) refer to the Fiscal Year ending on the December 31 occurring
during such calendar year.

     

    "Fixed Charges" means, with
respect to the Borrower and its Subsidiaries on a consolidated basis, as of any
date of determination, (a) Consolidated Interest Expenses (including any
interest expense with respect to the Convertible Note Documents) for the period
of four fiscal quarters ending on the date of determination plus (b) scheduled
principal payments on Indebtedness required to be made in such period plus (c)
rent expenses incurred by the Borrower and its
Subsidiaries.  Notwithstanding the foregoing, for the Fiscal Quarters
ending September 30, 2009, December 31, 2009, March 31, 2010 and June 30, 2010,
scheduled principal payments on the Term Loans for purposes of clause (b) above
shall be deemed to be an annualized amount equal to $1,000,000 per Fiscal
Quarter.


    
      
         


      

      
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    “Fraud and Abuse Laws” means
the federal Anti-kickback Statute, Section 1128B(b) of the Social Security Act,
42 U.S.C. Section 1320a-7b(b) (the “Anti-kickback Statue”), the federal
Self-Referral Prohibition, Section 1877 of the Social Security Act, 42 U.S.C.
Section 1395nn (“Stark II”), the federal False Claims Act, 31 U.S.C. Section
3729 et seq. (“False
Claims Act”), and the federal civil monetary penalties act, Section 1128A of the
Social Security Act, 42 U.S.C. Section 1320a-7a (“CMPA”), each as from time to
time amended; any successor statute(s) thereto; all rules and regulations
promulgated thereunder; other similar federal and state laws and regulations;
and, all other federal or state laws concerning illegal remuneration, referral
of patients, kickbacks, fee splitting, reassignment of claims, and false or
fraudulent billing for medical items or services.

     

    “F.R.S. Board” means the Board
of Governors of the Federal Reserve System or any successor
thereto.

     

    “GAAP”  means
generally accepted accounting principles set forth from time to time in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board (or agencies with similar functions of
comparable stature and authority within the U.S. accounting profession), which
are applicable to the circumstances as of  the date of
determination.

     

    “Guarantee and Collateral
Agreement” means the Guarantee and Collateral Agreement dated as of the
Closing Date by each Credit Party signatory thereto in favor of Agent and
Lenders, as amended, supplemented, restated or otherwise modified from time to
time.

     

    “Guarantor” means each Person
(other than Borrower) party to the Guarantee and Collateral
Agreement.

     

    “Hazardous Material”
means

     

    (a)           any
“hazardous substance”, as defined by CERCLA;

     

    (b)           any
“hazardous waste”, as defined by the Resource Conservation and Recovery Act, as
amended;

     

    (c)           any
petroleum product; or

     

    (d)           any
pollutant or contaminant or hazardous, dangerous or toxic chemical, material or
substance within the meaning of any other applicable federal, state or local
law, regulation, ordinance or requirement (including consent decrees and
administrative orders) relating to or imposing liability or standards of conduct
concerning any medical, hazardous, toxic or dangerous waste, substance or
material, all as amended or hereafter amended.


    
      
         


      

      
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    “Hedging Agreements” means any
Interest Rate Agreement, foreign currency exchange agreement, commodity price
protection agreement or other interest or currency exchange rate or commodity
price hedging agreement, provided that such agreement is not entered into for
speculative purposes, is entered into with the Agent or a Lender.

     

    “herein”, “hereof”, “hereto”, “hereunder” and similar terms
contained in this Agreement or any other Loan Document refer to this Agreement
or such other Loan Document, as the case may be, as a whole and not to any
particular Section, paragraph or provision of this Agreement or such other Loan
Document.

     

    “HIPAA” means the Health
Insurance Portability and Accountability Act of 1996 and its implementing
administrative simplification regulations, specifically, the “Standards for
Electronic Transactions,” 65 Fed. Reg. 50,312 (Aug. 17,
2000); “Standards for Privacy of Individually Identifiable Health Information,”
65 Fed. Reg. 82,462
(Dec. 28, 2000), modified at 67 Fed. Reg. 53,182 (Aug. 14,
2002); and the “Security Standards,” 68 Fed. Reg. 8334 (Feb. 20,
2003), each as from time to time amended.

     

    “Impermissible Qualification”
means, relative to the opinion or certification of any independent public
accountant as to any financial statement of any Credit Party, any qualification
or exception to such opinion or certification:

     

    (a)           which
is of a “going concern” or similar nature;

     

    (b)           which
relates to the limited scope of examination of matters relevant to such
financial statement; or

     

    (c)           which
relates to the treatment or classification of any item in such financial
statement and which, as a condition to its removal, would require an adjustment
to such item the effect of which would be to cause such Credit Party to be in
default of any of its obligations under Section
7.2.4.

     

    “including” means including
without limiting the generality of any description preceding such term, and, for
purposes of this Agreement and each other Loan Document, the parties hereto
agree that the rule of ejusdem generis shall not be
applicable to limit a general statement, which is followed by or referable to an
enumeration of specific matters, to matters similar to the matters specifically
mentioned.

     

    “Indebtedness” of any Person
means, without duplication:

     

    (a)           all
obligations of such Person for borrowed money and all obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments; provided,
for purposes of clarification, all obligations of the Borrower under the
Convertible Note Documents will be considered Indebtedness hereunder;

     

    (b)           all
obligations, contingent or otherwise, relative to the face amount of all letters
of credit (including Letters of Credit), whether or not drawn, and banker’s
acceptances issued for the account of such Person;


    
      
         


      

      
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    (c)           all
obligations of such Person as lessee under leases which have been or should be,
in accordance with GAAP, recorded as Capitalized Lease Liabilities;

     

    (d)           all
other liabilities for borrowed money in accordance with GAAP
included  on the liability side of the balance sheet of such Person as
of the date at which Indebtedness is to be determined;

     

    (e)           net
liabilities of such Person under all Hedging Agreements;

     

    (f)            whether
or not so included as liabilities in accordance with GAAP, all obligations of
such Person to pay the deferred purchase price of property or services, and
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;
and

     

    (g)           all
Contingent Liabilities of such Person in respect of any of the
foregoing.

     

    For all
purposes of this Agreement, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture in which such Person is a
general partner or a joint venturer, except to the extent payments have been
made or are required to be made with respect to such Indebtedness solely by a
general partner or a joint venture partner other than a Subsidiary.

     

    “Indemnified Liabilities” is
defined in Section
10.4.

     

    “Indemnified Parties” is
defined in Section
10.4.

     

    “Intellectual Property
Assignment” means that certain Intellectual Property Assignment in form
and substance satisfactory to the Agent, duly executed and delivered by a Credit
Party in favor of the Agent, for the benefit of itself and the Lenders, as the
same may be amended, supplemented or otherwise modified from time to
time.

     

    “Interest Period” means,
relative to any LIBO Rate Loans, the period beginning on (and including) the
date on which such LIBO Rate Loan is made or continued as, or converted into, a
LIBO Rate Loan pursuant to Section 2.4 or 2.5 and shall end on
(but exclude) either (i) the day one week subsequent to such day, or (ii) the
day which numerically corresponds to such date one, two, three, six or
twelve months
thereafter, if available from all Lenders (or, if such month has no numerically
corresponding day, on the last Business Day of such month),  as the
Borrower may select in its relevant notice pursuant to Section 2.4 or 2.5; provided, however,
that

     

    (a)           the
Borrower shall not be permitted to select Interest Periods to be in effect at
any one time which have expiration dates occurring on more than six (including the Base Rate
tranche) different dates;

     

    (b)           Interest
Periods commencing on the same date for Revolving Loans comprising part of the
same Borrowing shall be of the same duration;


    
      
         


      

      
        10

        
          

        

      

      
         


      

    


    (c)           if
such Interest Period would otherwise end on a day which is not a Business Day,
such Interest Period shall end on the next following Business Day (unless such
next following Business Day is the first Business Day of the immediately
succeeding calendar month, in which case such Interest Period shall end on the
Business Day next preceding such numerically corresponding day);

     

    (d)           no
Interest Period with respect to Loans made prior to the Revolving Commitment
Termination Date may end later than the date set forth in clause (a) of the
definition of “Revolving Commitment Termination Date”;

     

    (e)           no
Interest Period for any Loan outstanding on and after the Revolving Commitment
Termination Date shall extend beyond the Maturity Date; and

     

    (f)            no
Interest Period applicable to a Loan outstanding on and after the Revolving
Commitment Termination Date, or portion thereof, shall extend beyond any date
upon which is due any scheduled principal payment in respect of the Loans unless
the aggregate principal amount of Loans represented by LIBO Rate Loans having
Interest Periods that will expire on or before such date, equals or exceeds the
amount of such principal payment.

     

    “Interest Rate Agreement”
means any interest rate swap agreement, interest rate cap agreement, interest
rate collar agreement or other similar agreement or arrangement designed to
protect the Borrower or any of its Subsidiaries against fluctuations in interest
rates.

     

    “Investment” means, relative
to any Person,

     

    (a)           any
loan or advance made by such Person to any other Person (excluding commission,
travel and similar advances to officers and employees of the Borrower and any
other Credit Party made in the ordinary course of business);

     

    (b)           any
Contingent Liability of such Person; and

     

    (c)           any
ownership or similar interest held by such Person in any other
Person.

     

    The
amount of any Investment shall be the original principal or capital amount
thereof less all returns of principal or equity thereon (and without adjustment
by reason of the financial condition of such other Person) and shall, if made by
the transfer or exchange of property other than cash, be deemed to have been
made in an original principal or capital amount equal to the fair market value
of such property.

     

    “LC Notice” has the meaning
specified in Section
2.8.

     

    “Lender Assignment Agreement”
means a Lender Assignment Agreement substantially in the form of Exhibit D
hereto.

     

    “Lenders” is defined in the
preamble.

     

    “Letter of Credit” shall mean
a Letter of Credit that is issued pursuant to Section
2.8.


    
      
         


      

      
        11

        
          

        

      

      
         


      

    


    “Letter of Credit Cash Collateral
Account” has the meaning specified in Section 8.4.

     

    “Letter of Credit Expiry Date”
shall mean the date which is five Business Days prior to the Revolving
Commitment Termination Date.

     

    “Letter of Credit Issuer”
shall mean National City.

     

    “Letter of Credit Obligations”
shall mean, as at the time of determination thereof, the sum of (a) the
aggregate amount of all unpaid and outstanding reimbursement obligations and (b)
without duplication, the aggregate stated amount at such time of Letters of
Credit then outstanding and undrawn (as such aggregate stated amount shall be
adjusted, from time to time, as a result of drawings, the issuance of Letters of
Credit, or otherwise).

     

    “Letter of Credit Sublimit”
shall mean an aggregate amount of $5,000,000.

     

    “LIBO Rate” is defined in
Section
3.2.1.

     

    “LIBO Rate Loan” means a Loan
bearing interest, at all times during an Interest Period applicable to such
Loan, at a fixed rate of interest determined by reference to the LIBO Rate
(Reserve Adjusted).

     

    “LIBO Rate (Reserve Adjusted)”
is defined in Section
3.2.1.

     

    “LIBOR Office” means, relative
to any Lender, the office of such Lender designated as such below its signature
hereto or designated in the Lender Assignment Agreement or such other office of
a Lender as designated from time to time by notice from such Lender to the
Borrower and the Agent, whether or not outside the United States, which shall be
making or maintaining LIBO Rate Loans of such Lender hereunder.

     

    “LIBOR Reserve Percentage” is
defined in Section
3.2.1.

     

    “Lien” means any security
interest, mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or otherwise), charge against or interest in
property to secure payment of a debt or performance of an obligation or other
priority or preferential arrangement of any kind or nature
whatsoever.

     

    “Loan Document” means this
Agreement, the Notes, each Collateral Document, each Hedging Agreement and each
other document delivered pursuant to Section
7.1.12.

     

    “Loans” means the Revolving
Loans and Term Loans.

     

    “Material Adverse Effect”
means a material adverse effect on the financial condition, operations, assets,
business, properties or prospects of the Borrower, its Subsidiaries and Minority
ASC Entities taken as a whole.

     

    “Maturity Date” means the
earliest of:

     

    (a)           August
30, 2012; or


    
      
         


      

      
        12

        
          

        

      

      
         


      

    


    (b)           the
date on which any Termination Event occurs.

     

    "Medicaid" means the medical
assistance program established by Title XIX of the Social Security
Act.

     

    “Medicaid Certification” means
a certification by a state agency or other entity responsible for certifying
Medicaid providers and suppliers that a health care provider or supplier is in
compliance with all the conditions of participation set forth in the Medicaid
Regulations.

     

    “Medicaid Provider Agreement”
means an agreement entered into between CMS or a state agency or other such
entity administering the Medicaid program and a health care provider or supplier
under which the health care provider or supplier agrees to provide services for
Medicaid patients in accordance with the terms of the agreement and Medicaid
Regulations.

     

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

     

    "Medicare" means the health
insurance program for the aged and disabled established by Title XVIII of the
Social Security Act.

     

    “Medicare Certification” means
certification by CMS or a state agency or entity under contract with CMS that
the health care operation is in compliance with all the conditions of
participation set forth in the Medicare Regulation.

     

    “Medicare Provider Agreement”
means an agreement entered into between CMS or a state agency or other such
entity administering the Medicare program and a health care provider or supplier
under which the health care provider or supplier agrees to provide services for
Medicare patients in accordance with the terms of the agreement and Medicare
Regulations.

     

    “Medicare Regulations” means,
collectively, all federal statutes (whether set forth in Title XVIII of the
Social Security Act or elsewhere) affecting the health insurance program for the
aged and disabled established by Title XVIII of the Social Security Act and any
successor statute(s); together with all applicable provisions of all rules,
regulations, manuals and orders and administrative, reimbursement and other
guidelines of all governmental authorities (including without limitation, the
United States Department of Health and Human Services (“HHS”), CMS, the Office
of the Inspector General for HHS, or any person succeeding to the functions of
any of the foregoing) promulgated pursuant to or in connection with any of the
foregoing having the force of law, as each may be amended, supplemented or
otherwise modified from time to time.


    
      
         


      

      
        13

        
          

        

      

      
         


      

    


    "Minority ASC Entity" means any
ASC Facility which is not a Subsidiary into which the Borrower or a Subsidiary
of the Borrower has made an Investment, including, without limitation, by way of
a Permitted Acquisition.

     

    "Minority ASC Investments" has
the meaning set forth in Section
7.2.5(l).

     

    “National City” means National
City Bank, acting in its individual capacity.

     

    “Net Available Proceeds” means
(a) with respect to any Asset Disposition, the sum of cash or readily marketable
cash equivalents received (including by way of a cash generating sale or
discounting of a note or account receivable) therefrom, whether at the time of
such disposition or subsequent thereto, or (b) with respect to any sale or
issuance of any debt or equity securities of the Borrower or any Subsidiary,
cash or readily marketable cash equivalents received therefrom, whether at the
time of such disposition or subsequent thereto, net, in either case, of all
legal, title and recording tax expenses, commissions and other fees and all
costs and expenses incurred and all federal, state, local and other taxes
required to be accrued as a liability as a consequence of such transactions and,
in the case of an Asset Disposition, net of all payments made by the Borrower or
any of its Subsidiaries, including any prepayment premiums, on any Indebtedness
which is secured by such assets pursuant to a Permitted Lien upon or with
respect to such assets or which must, by the terms of such Lien, in order to
obtain a necessary consent to such Asset Disposition, or by applicable law, be
repaid out of the proceeds from such Asset Disposition.

     

    “Net Income” means, for any
computation period, with respect to the Borrower, on a consolidated basis,
cumulative net income earned during such period as determined in accordance with
GAAP (other than net income from any Minority ASC Entity which is restricted
from declaring or paying dividends, distributions or otherwise advancing funds
to its equityholders whether by contract or otherwise, except to the extent of
any such net income actually received which is not in violation of the
applicable restriction);
provided, however, there shall
not be included for purposes of calculating Net Income of the Borrower, net
income attributable to Minority ASC Entities in excess of 25% of total Net
Income.

     

    “Net Worth” means, for any
computation period, the consolidated shareholders’ equity of the Borrower
determined in accordance with GAAP, which consolidated shareholders’ equity
shall be deemed to include the preferred stock of the Borrower and the value of
Borrower’s treasury stock, at cost.

     

    “Non-Credit Party Intercompany
Loans” is defined in Section
7.2.2.

     

    “Non-Credit Party Intercompany
Notes” is defined in Section
7.2.2.

     

    “Non-Wholly-Owned ASC
Subsidiary” means an ASC Subsidiary in which the Borrower or a Subsidiary
of the Borrower owns less than 100% of the equity interests but at least 50.1%
of the equity interests.


    
      
         


      

      
        14

        
          

        

      

      
         


      

    


    “Note” means a promissory note
of the Borrower payable to any Lender, in the form of Exhibit A hereto (as
such promissory note may be amended, endorsed or otherwise modified from time to
time), evidencing the aggregate Indebtedness of the Borrower to such Lender
resulting from outstanding Loans, and also means all other promissory notes
accepted from time to time in substitution therefor or renewal
thereof.

     

    “Obligations” means all
obligations (monetary or otherwise) of each Credit Party arising under or in
connection with this Agreement, the Notes, the Letters of Credit and each other
Loan Document.

     

    “Organizational Document”
means, relative to any Subsidiary, its certificate of incorporation, its
by-laws, its limited liability company agreement, partnership
agreement  and all shareholder agreements, voting trusts and similar
arrangements applicable to any of its authorized shares of capital stock,
partnership interests, or membership interests, as the case may be.

     

    “Original Credit Agreement”
has the meaning specified in the Recitals hereto.

     

    “Participant” is defined in
Section
10.11.

     

    “PBGC” means the Pension
Benefit Guaranty Corporation and any entity succeeding to any or all of its
functions under ERISA.

     

    “Pension Plan” means a
“pension plan”, as such term is defined in section 3(2) of ERISA, which is
subject to Title IV of ERISA (other than a multiemployer plan as defined in
section 4001(a)(3) of ERISA), and to which the Borrower or any corporation,
trade or business that is, along with the Borrower, a member of a Controlled
Group, may have liability, including any liability by reason of having been a
substantial employer within the meaning of section 4063 of ERISA at any time
during the preceding five years, or by reason of being deemed to be a
contributing sponsor under section 4069 of ERISA.

     

    “Percentage” means, relative
to any Lender, the percentage set forth opposite its name on Schedule 10.1 hereto
or set forth in the Lender Assignment Agreement, as such percentage may be
adjusted from time to time pursuant to Lender Assignment Agreement(s) executed
by such Lender and its Assignee Lender(s) and delivered pursuant to Section
10.11.

     

    “Permitted Acquisition” means
the purchase (by asset purchase, stock purchase, membership interest purchase,
other equity interest purchase, merger or otherwise, subject to the other
requirements of this definition set forth below) by the Borrower or a
Wholly-Owned Subsidiary of the Borrower (or, in the case of the purchase of an
ASC Facility, by the Borrower or a Subsidiary of the Borrower) of the assets,
stock, membership interests or other equity interests of a Target or Practice
(it being acknowledged that medical records and certain other professional
assets that are required by law to be owned by a Provider are not acquired in
these transactions), which purchase meets the following criteria:

     

    (a)     no
Default or Event of Default shall have occurred or be continuing both before and
after giving effect to such acquisition;


    
      
         


      

      
        15

        
          

        

      

      
         


      

    

     

    (b)    the
Borrower's Senior Leverage Ratio on a pro forma basis (after giving effect to
the Permitted Acquisition) is less than 2.25:1.0;

     

    (c)    the aggregate
Consideration (including any Indebtedness pursuant to Section 7.2.2(g), (h), (i)
and (j) relating to such Permitted Acquisitions) in connection with such
Permitted Acquisition shall not exceed (unless otherwise consented to by the
Required Lenders) $25,000,000 individually and $40,000,000 for all Permitted
Acquisitions consummated during the term of this Agreement;

     

    (d)    the
acquisition shall have been of substantially all of the assets and/or working
capital of a Target or, if for stock or other equity interests in a Target,
shall be for not less than 20.0% of the equity interests therein, shall either,
to the extent permitted by applicable law, be merged with and into the Borrower
or a Wholly-Owned Subsidiary of the Borrower, or be a Wholly-Owned Subsidiary of
the Borrower; provided, however ̧ with respect
to an ASC Facility which is not merged with or into a Borrower or a Wholly-Owned
Subsidiary of the Borrower, the stock or other equity interests of the ASC
Facility so acquired shall be pledged to the Agent on behalf of the Lenders
(and, in the case of any equity interest in a limited liability company or
limited partnership, the agreement governing such Person shall not prohibit a
collateral assignment of such equity interest);

     

    (e     the
acquired Target, on a pro forma basis shall have positive EBITDA for the period
of four fiscal quarters ending on the date of any such acquisition;

     

    (f)    the Borrower
shall have delivered to the Agent, (i) not later than 5 Business Days prior to
the closing of the acquisition pro forma financial statements or certificates
demonstrating (in reasonable detail and with appropriate calculations and
computations in all respects satisfactory to Agent) continued compliance with
all covenants in this Agreement following the inclusion of the target in the
Borrower’s consolidated enterprise and (ii) not later than 30 days after the
closing of the acquisition a copy of the related acquisition
agreement;

     

    (g)    the Borrower
shall have delivered to the Agent, not later than 5 Business Days prior to the
closing of the acquisition a fully executed Agreed EBITDA Form; and

     

    (h)    after giving
effect to such acquisition, the sum of the Available Revolving Commitments shall
not be less than $10,000,000.

     

       “Permitted Asset
Disposition” has the meaning specified on Exhibit F
hereto.

     

       “Permitted Equity
Ownership Sale” means the sale, transfer or other disposition of the
outstanding capital stock, membership interest or other equity interests in an
ASC Subsidiary (or Minority ASC Entity) or the issuance of additional equity
interests in an ASC Subsidiary (or Minority ASC Entity), so long
as:

     

    (i)           after
giving effect to such sale, a Credit Party shall own not less than 20.0% of the
equity interests (including securities convertible into equity interests) of
such ASC Facility;

     

    
      
        
        

      

      
        16

        
          

        

      

      
        
        

      

    

     

    (ii)          the
equity interests in such ASC Subsidiary (or Minority ASC Entity) which are held
by the Borrower or a Subsidiary of the Borrower after such sale continue to be
pledged to the Lenders pursuant to the Guarantee and Collateral
Agreement;

     

    (iii)         the
chief financial officer or chief executive officer of the Borrower shall have
delivered a certificate, dated the date of such sale, to the Agent certifying
(a) that no Default or Event of Default exists or would result from such sale
and (b) pro forma financial statements demonstrating compliance with Section 7.2.4 for the
trailing twelve-month period prior to such sale; and

     

    (iv)        
the proceeds (other than any proceeds received by a Person who is not the
Borrower or a Subsidiary of the Borrower) of any such sale are applied in the
manner set forth in Section
2.3.2.

     

    Upon the
consummation of any Permitted Equity Ownership Sale and at the request of the
Borrower (to comply with a requirement in the purchase and sale documents
evidencing such Permitted Equity Ownership Sale), the ASC Subsidiary or Minority
ASC Entity which has become a Non-Wholly Owned ASC Subsidiary or Minority ASC
Entity as a result of such Permitted Equity Ownership Sale shall be released
from the Guarantee and Collateral Agreement and the liens of the Lenders on the
assets of such ASC Subsidiary shall be released (except to the extent of the
pledge to the Lenders of the equity interests of such ASC Subsidiary retained by
the Borrower or a Subsidiary of the Borrower) and the Agent is hereby authorized
to execute and file the necessary release documentation to reflect such
release.

     

       “Permitted Liens”
means those liens listed in Section
7.2.3.

     

       “Permitted Seller
Debt” means Indebtedness owed to the Borrower which is incurred by
purchasers of the Borrower’s assets in connection with a Permitted Asset
Disposition.

     

       “Permitted Seller
Equity” means common stock of the Borrower that is used as consideration
payable to the Borrower or any of its Subsidiaries by any party to a Permitted
Asset Disposition.

    


       “Person” means
any natural person, corporation, partnership, limited liability company, firm,
association, trust, government, governmental agency or any other entity, whether
acting in an individual, fiduciary or other capacity.

     

       “Plan” means any
Pension Plan or Welfare Plan.

     

       “Pledged
Collateral” has the meaning specified in the Guarantee and Collateral
Agreement.

     

       “Practice” means
any medical or ophthalmology practice, optometry practice or optical dispensary
at a single location or various locations.

     

       “Provider” means
any Person who performs professional medical services for a Practice that is
either managed by a Subsidiary or the assets of which are owned by a
Subsidiary.

     

    
      
        
        

      

      
        17

        
          

        

      

      
        
        

      

    

     

        “Quarterly
Payment Date” means the last Business Day of each March, June, September,
and December.

     

       “Release” means a
“release”, as such term is defined in CERCLA.

     

       "Replacement
Lender" is defined in Section
4.12.

     

       “Required Lenders”
means any three or more Lenders holding at least 51.0% of the Revolving
Commitments (or, if the Revolving Commitments have terminated, outstanding
Revolving Loans) and outstanding Term Loans, collectively; provided, if there
are only two Lenders then Required Lenders shall mean both Lenders.

     

       “Resource Conservation
and Recovery Act” means the Resource Conservation and Recovery Act, 42
U.S.C. Section 6901, et seq., as in effect
from time to time.

     

       “Revolver Increase” has the
meaning set forth in Section
2.2.3.

     

       “Revolver Increase Notice” has
the meaning set forth in Section
2.2.3.

      


       “Revolving
Commitment” means, relative to any Lender, such Lender’s obligation to
make Revolving Loans pursuant to Section
2.2.1.

     

       “Revolving Commitment
Amount” means $50,000,000 plus the amount, if any, of any increase
permitted by Section
2.2.3. (after which increase, the Revolving Commitment Amount shall not
exceed $95,000,000).  The Revolving Commitment Amount at any time in
effect may also be reduced from time to time pursuant to Section
2.3.

     

       “Revolving Commitment
Termination Date” means the earliest of

     

    (a)          August
30, 2012;

     

    (b)       
 the date on which the Revolving Commitment Amount is terminated in full or
reduced to zero pursuant to Section 2.3;
and

     

    (c)          the
date on which any Termination Event occurs;

     

    Upon the
occurrence of any event described in clause (b) or (c), the Revolving
Commitments shall terminate automatically and without further
action.

     

       "Revolving Extensions of
Credit"  as to any Revolving Lender at any time, an amount
equal to the sum, without duplication, of (a) the aggregate principal amount of
all Revolving Loans held by such Lender then outstanding and (b) an amount equal
to such Lender's Percentage of the Letter of Credit Obligations then
outstanding.

     

       “Revolving Loan”
is defined in Section
2.2.1.

     

       “Senior Debt”
shall mean Indebtedness of the type described in clauses (a), (b), (c), and (d) of the definition
Indebtedness (other than Subordinated Debt) of the Borrower on a consolidated
basis.

     

    
      
        
        

      

      
        18

        
          

        

      

      
        
        

      

    

     

       "Senior Leverage
Ratio" means, as of any date of determination, the ratio of
(a) Senior Debt (including Letters of Credit) to (b) EBITDA, as
measured on a rolling four quarter basis.

     

       “Solvent” means,
when used with respect to a Person, that (a) the fair saleable value of the
assets of such Person is in excess of the total amount of the present value of
its liabilities (including for purposes of this definition all liabilities
whether or not reflected on a balance sheet prepared in accordance with GAAP and
whether direct or indirect, fixed or contingent, secured or unsecured, disputed
or undisputed), (b) such Person is able to pay its debts or obligations in the
ordinary course as they mature and (c) such Person does not have unreasonably
small capital to carry out its business as conducted and as proposed to be
conducted.  “Solvency” shall have a correlative meaning.

     

       “Subordinated
Debt” means all Indebtedness the repayment of which is subordinated, upon
terms satisfactory to the Required Lenders, in right of payment to the payment
in full in cash of all Obligations.

     

       “Subsidiary” of a
Person means any corporation, association, partnership, limited liability
company, joint venture or other business entity of which more than 50% of the
voting stock, membership interests or other equity interests (in the case of
Persons other than corporations), is owned or controlled directly or indirectly
by the Person, or one or more of the Subsidiaries of the Person, or a
combination thereof.

     

       “Target” means
(i) any business that sells, leases or provides medical equipment to doctors,
hospitals or other health organizations, (ii) ambulatory surgery centers,
surgical facilities or other form of outpatient surgical treatment centers
(including, without limitation, vision correction or laser vision correction
centers), regardless of the specialty or specialties involved therein, or any
business that owns, operates and/or manages one or more thereof, (iii)
any  management service center, optical laboratory, buying group or
group purchasing organization, companies that own, operate and/or manage vision
correction centers (including, without limitation, laser vision correction
centers), marketing products and services organization (including providing
marketing and lead tracking software, websites, call center services and other
marketing services to health care providers and manufacturers), or reasonable
extensions thereof (including any company which leases or sells equipment or
provides services to any of the foregoing), at a single location or various
locations, or (iv) reasonable extensions of any of the
foregoing.  Whenever in this Agreement “Target” is used in describing
an acquisition by the Borrower or a Subsidiary of the Borrower of equity
interests, such reference is to the acquisition of the assets used in the
operation of the Target that can lawfully be acquired by the Borrower or a
Subsidiary of the Borrower or to the acquisition of the equity interests of a
Person that owns, as of the time of purchase, only those assets that can be
lawfully acquired by the Borrower or a Subsidiary of the Borrower.

     

       “Taxes” is
defined in Section
4.6.

     

    
         “Termination
Event” means

    

     

    (a)          the
occurrence of any Default described in clauses (a) through
(e) of Section
8.1.9;

     

    
      
        
        

      

      
        19

        
          

        

      

      
        
        

      

    

     

    (b)          the
occurrence and continuance of any other Event of Default and either

     

    (i)           the
declaration of the Loans to be due and payable pursuant to Section 8.3,
or

     

    (ii)           in
the absence of such declaration, the giving of notice by the Agent, acting at
the direction of the Required Lenders, to the Borrower that the Revolving
Commitments have been terminated;

     

    (c)          the
failure to repay or refinance the Convertible Notes due June 15, 2012 on or
prior to December 15, 2011.

     

       “Term Loan
Commitment” means, relative to any Lender, such Lender’s obligation to
make Term Loans pursuant to Section
2.1.

     

       “Term Loan Commitment
Amount” means $30,000,000.

     

       “Term Loans” has
the meaning set forth in Section
2.1.

     

       “Total Funded
Debt" of any Person means all Indebtedness of such Person except
Indebtedness specified in clause (g) of the
definition of Indebtedness; provided, with respect to Indebtedness of any
Non-Wholly Owned ASC Subsidiary guaranteed by a Person or Persons other than a
Subsidiary, ASC Subsidiary, Minority ASC Entity or Affiliate of a Credit Party,
the amount of outstanding Indebtedness of such Non-Wholly Owned ASC Subsidiary
included in the calculation of this definition shall equal the greater of (x)
the actual amount of such Indebtedness guaranteed by the Borrower or any
Subsidiary of the Borrower and (y) an amount equal to the principal amount of
such Indebtedness multiplied by that percentage of the outstanding equity
interests owned by the Borrower or any Subsidiary of the Borrower.

     

       "Total Leverage
Ratio" has the meaning assigned to it in Section
3.2.1.

     

    
    

       “Type” means,
relative to any Loan, the portion thereof, if any, being maintained as a Base
Rate Loan or a LIBO Rate Loan.

     

       “United States”
or “U.S.” means the
United States of America, its fifty States and the District of
Columbia.

     

      
“Warrants” means any
call options, warrants, purchase rights or similar rights with respect to the
common stock of the Borrower sold by the Borrower on the issuance date of the
Convertible Notes in connection with such issuance.

     

       “Welfare Plan”
means a “welfare plan”, as such term is defined in Section 3(1) of
ERISA.

     

       “Wholly-Owned
Subsidiary” means any Person in which (other than directors’ qualifying
shares required by law) 100% of the equity interests of each class having
ordinary voting power, and 100% of the equity interests of every other class, in
each case, at the time as of which any determination is being made, is owned,
beneficially and of record, by the Borrower or by one or more of the other
Wholly-Owned Subsidiaries, or both.

     

    
      
        
        

      

      
        20

        
          

        

      

      
        
        

      

    

     

    SECTION
1.2  Use of
Defined Terms.  Unless otherwise defined or the context
otherwise requires, terms for which meanings are provided in this Agreement
shall have such meanings when used in the Schedules and in each Note, Borrowing
Request, Continuation/Conversion Notice, Loan Document, notice and other
communication delivered from time to time in connection with this Agreement or
any other Loan Document.

     

    SECTION
1.3  Cross-References.
Unless otherwise specified, references in this Agreement and in each other Loan
Document to any Article or Section are references to such Article or Section of
this Agreement or such other Loan Document, as the case may be, and, unless
otherwise specified, references in any Article, Section or definition to any
clause are references to such clause of such Article, Section or
definition.

     

    SECTION
1.4  Accounting
Principles.  Unless the context otherwise clearly requires, all
accounting terms not expressly defined herein shall be construed, and all
financial computations required under this Agreement shall be made, in
accordance with GAAP, consistently applied.  For purposes of
clarification, it shall be understood that the financial results of Non-Wholly
Owned Subsidiaries and Minority ASC Entities will be reflected in Borrower’s
consolidated financial statements in accordance with GAAP.

     

    ARTICLE
II


     

    COMMITMENTS,
BORROWING PROCEDURES AND NOTES

     

    SECTION
2.1  Term
Loan Commitment. On the terms and subject to the conditions of this
Agreement, each Lender severally agrees to make a loan to Borrower (relative to
such Lender, and of any type, its “Term Loan”) on the
Closing Date equal to such Lender’s Percentage of the Term Loan
Commitment.  Amounts borrowed as a Term Loan which are repaid or
prepaid may not be reborrowed.  Each Lender’s Term Loan Commitment
shall expire concurrently with the making of the Term Loans on the Closing
Date.

     

    SECTION
2.2  Revolving
Commitments.  On the terms and subject to the conditions of
this Agreement (including Article V), each
Lender severally agrees to make loans pursuant to the Revolving Commitments
described in this Section
2.2.

     

    SECTION
2.2.1  Revolving Commitment of Each
Lender.  From time to time on any Business Day occurring prior
to the Revolving Commitment Termination Date, each Lender will make loans
(relative to such Lender, and of any type, its “Revolving Loans”) to the
Borrower, which, when added to the Letter of Credit Obligations at such time,
equal to such Lender’s Percentage of the aggregate amount of the Borrowing
requested by the Borrower to be made on such day.  The commitment of
each Lender described in this Section 2.2.1 is
herein referred to as its “Revolving
Commitment”.  On the terms and subject to the conditions
hereof, the Borrower may from time to time borrow, prepay and reborrow
Loans.

     

    
      
        
        

      

      
        21

        
          

        

      

      
        
        

      

    

     

    SECTION
2.2.2  Lenders Not Permitted or
Required To Make Loans.  No Lender shall be permitted or
required to make any Revolving Loan if, after giving effect thereto, the
aggregate outstanding principal amount of all Revolving Loans plus Letter of
Credit Obligations then outstanding:

     

    
      	
               
      

            	
              (a)

            	
              of
      all Lenders would exceed the Revolving Commitment Amount,
    or

            


    

     

    
      	
               
      

            	
              (b)

            	
              of
      such Lender would exceed such Lender’s Percentage of the Revolving
      Commitment Amount.

            


    

     

    SECTION
2.2.3  Revolver
Increase.  On and after the Closing Date, Borrower may, at its
option at any time in increments of not less than $5,000,000, seek to increase
(the "Revolver
Increase") the Revolving Commitment Amount by up to an aggregate of
$45,000,000 (after giving effect to all such increases the Revolving Commitment
Amount shall not exceed $95,000,000) upon at least 30 days (but not more than 45
days) written notice (“Revolver Increase
Notice”) to the Agent (which notice Agent shall promptly deliver to the
Lenders).  The Revolver Increase Notice shall (a) specify the date
upon which the Revolver Increase is requested to occur, (b) be delivered at a
time when no Default or Event of Default has occurred and is continuing (and the
effectiveness of the Revolver Increase shall be subject to no Default or Event
of Default existing of the time of the Revolver Increase) and (c) certify that
the Revolver Increase will not violate or conflict with the terms of any
Indebtedness or any other contract, agreement, instrument or obligation of any
Credit Party. Borrower shall, after giving a Revolver Increase Notice, offer the
Revolver Increase (i) first on a pro-rata basis to the Lenders, which each
Lender may in its sole and absolute discretion accept or decline (it being
understood that any Lender not affirmatively committing in writing to its
pro-rata portion shall be deemed to have declined), (ii) second, if any Lender
has declined its pro rata share or any part thereof, such remaining amounts on a
non pro-rata basis to the Lenders accepting their pro rata share of the Revolver
Increase and (iii) third, to other commercial banks or financial
institutions.   No increase in the Revolving Commitment Amount
shall become effective until all existing and new Lenders committing to the
Revolver Increase have delivered to the Agent a writing in form reasonably
satisfactory to the Agent pursuant to which such existing Lenders state the
amount of their Revolver Increase and any such new Lenders state the amount of
their Revolver Commitment and agree to assume and accept the obligations and
rights of a Lender hereunder and any such new and increasing Lenders agree to
make a Revolving Loan such that the outstanding Revolving Loans of such new
Lender or increasing Lender constitute a proportional amount of the aggregate
outstanding Revolving Loans and Letter of Credit Obligations based on the
Revolver Commitment of such new Lender.  Any Revolving Loan as a
result of an increase to the Revolver Commitment pursuant to this Section 2.2.3 shall
be subject to the terms and conditions contained in this
Agreement.  Upon the increase of the Revolving Commitment Amount
pursuant to this Section 2.2.3, Schedule 10.1 shall
be deemed amended and replaced with a new Schedule 10.1
reflecting the new Revolver Commitments hereunder.  Notwithstanding
the foregoing, in the event that Borrower elects to permanently reduce or
terminate the Revolving Commitment Amount pursuant to Section 2.3.1, the
Revolver Increase, to the extent not already utilized by the Borrower, shall be
terminated and cease to be available to the Borrower.  Unless
otherwise agreed to by the Borrower, Agent and Lenders providing any Revolver
Increase, no closing fees or other transaction costs (other than those expressly
called for under this Agreement) shall be required by the Lender in connection
with a Revolver Increase.

     

    
      
        
        

      

      
        22

        
          

        

      

      
        
        

      

    

     

    SECTION
2.3  Reduction of Revolving
Commitment Amount.  The Revolving Commitment Amount is subject
to reduction from time to time pursuant to this Section
2.3.

     

    SECTION
2.3.1  Optional
Reductions.  The Borrower may, from time to time on any
Business Day occurring after the time of the initial Borrowing hereunder,
voluntarily reduce the Revolving Commitment Amount; provided, however, that all
such reductions shall require at least three Business Days’ prior notice to the
Agent and be permanent, and any partial reduction of the Revolving Commitment
Amount shall be in a minimum amount of $3,000,000 and in an integral multiple of
$1,000,000.

     

    SECTION
2.3.2  Mandatory Reductions and
Prepayments.  The Revolving Commitment Amount shall, without
any further action, automatically and permanently be reduced to zero on the
Revolving Commitment Termination Date and:

     

      
(a)           The
Borrower shall prepay the Loans in an amount equal to 100% of the insurance
proceeds received by the Borrower or any Subsidiary following a casualty or
condemnation involving such Person’s Property, to the extent not applied (or
intended to be applied) within 90 days after the consummation or receipt
thereof, as applicable, to the purchase of replacement assets or repair of
damaged assets;

     

      
(b)           The
Borrower shall prepay Loans in an amount equal to 100% of the sum of the Net
Available Proceeds realized upon all Asset Dispositions to the extent not
applied (or committed to be applied) within 180 days of such Asset Disposition
to the purchase of other assets that are not classified as current assets under
GAAP and are used or useful in the business of the Company and its
Subsidiaries;

     

      
(c)           The
Borrower shall prepay Loans in an amount equal to 100% of the sum of the Net
Available Proceeds realized upon all debt issuances (other than in connection
with a Permitted Acquisition) by the Borrower and its Subsidiaries;

     

      
(d)            The
Borrower shall prepay Loans in an amount equal to 80% of the sum of the Net
Available Proceeds realized upon all equity issuances (other than in connection
with a Permitted Acquisition or any issuance of equity in connection with a
redemption of the Convertible Notes permitted by clause (f) of Section 7.2.6
hereof) by the Borrower;

     

      
(e)           The
Borrower shall notify the Agent of the amount of any required prepayment at
least three (3) Business Days before it is made.  The Borrower shall
pay any accrued interest on the Loans which are being prepaid pursuant to this
Section 2.3.2
and shall pay any break funding costs associated with such required prepayment;
and

     

      
(f)           Notwithstanding
anything contained herein to the contrary, Borrower shall prepay Loans in an
amount equal to 100% of the sum of the Net Available Proceeds realized upon all
Permitted Asset Dispositions.

     

       Any prepayments
pursuant to Section
2.3.2 shall be applied in the following order: first, to payment of
that portion of the Obligations constituting fees, indemnities and other amounts
(other than principal and interest) payable to Agent or a Lender; second, to payment of
that portion of the Obligations constituting Term Loans; third, to payment of
that portion of the Obligations constituting Revolving Loans; fourth, to payment of
any remaining Obligations.  Prepayments of principal will be applied
to the Obligations in inverse order of maturity.

     

    
      
        
        

      

      
        23

        
          

        

      

      
        
        

      

    

     

       Any prepayments
pursuant to Sections
2.3.1 or 2.3.2 hereof shall be without penalty or premium of any kind
other than break funding and other charges expressly provided by this Agreement
with respect to LIBOR breakage costs; provided, however, at the
reasonable request of the Borrower and to avoid any break funding charges with
respect to LIBOR breakage costs associated with any prepayment, any amounts to
be prepaid pursuant to Section 2.3.2 shall
be deposited by the Borrower in an escrow account under the control of the Agent
to return an interest rate equal to the average deposit rate payable by the
Agent for commercial deposits of like size and duration as determined by the
Agent in its sole discretion, such amounts to be applied in the manner set forth
in this Section
2.3.2 at the expiration of the Interest Period for the Loans as to which
break funding charges would otherwise have applied.

     

    SECTION
2.4  Borrowing
Procedure.  By delivering a Borrowing Request to the Agent on
or before 12:00 noon (EST), on a Business Day, the Borrower may from time to
time irrevocably request, on the date of the requested Borrowing in the case of
Base Rate Loans and on not less than three nor more than five Business Days’
notice in the case of LIBO Rate Loans, that a Borrowing be made in a minimum
amount of (i)  $500,000  if such Loan is a LIBO Rate Loan or
(ii) the lesser of the unused amount of the Revolving Commitments or $100,000,
if such Loan is a Base Rate Loan and an integral multiple of $100,000, to the
extent such additional amount is permitted to be borrowed
hereunder.  On the terms and subject to the conditions of this
Agreement, each Borrowing shall be comprised of the type of Revolving Loans, and
shall be made on the Business Day, specified in such Borrowing
Request.  On or before 2:00 p.m. (EST ) on such Business Day, each
Lender shall deposit with the Agent same day funds in an amount equal to such
Lender’s Percentage of the requested Borrowing.  Such deposit will be
made to an account which the Agent shall specify from time to time by notice to
the Lenders.  To the extent funds are received from the Lenders, the
Agent shall make such funds available to the Borrower by wire transfer to the
accounts the Borrower shall have specified in its Borrowing
Request.  No Lender’s obligation to make any Revolving Loan shall be
affected by any other Lender’s failure to make any Revolving Loan.

     

    SECTION
2.5  Continuation and Conversion
Elections.  By delivering a Continuation/Conversion Notice to
the Agent on or before 10:00 a.m., Chicago  time, on a Business Day,
the Borrower may from time to time irrevocably elect, on not less than three and
not more than five Business Days’ notice that all, or any portion in an
aggregate minimum amount of $500,000 and an integral multiple of $100,000, of
any Loans be, in the case of Base Rate Loans, converted into LIBO Rate Loans or,
in the case of LIBO Rate Loans, be converted into a Base Rate Loan or continued
as a LIBO Rate Loan  (in the absence of delivery of a Continuation/
Conversion Notice with respect to any LIBO Rate Loan at least three Business
Days before the last day of the then current Interest Period with respect
thereto, such LIBO Rate Loan shall, on such last day, automatically convert to a
Base Rate Loan); provided, however, that (i)
each such conversion or continuation shall be pro rated among the applicable
outstanding Loans of all Lenders, and (ii) no portion of the outstanding
principal amount of any Loans may be continued as, or be converted into, LIBO
Rate Loans when any Event of Default has occurred and is
continuing.

     

    
      
        
        

      

      
        24

        
          

        

      

      
        
        

      

    

     

    SECTION
2.6  Funding.  Each
Lender may, if it so elects, fulfill its obligation to make, continue or convert
LIBO Rate Loans hereunder by causing one of its foreign branches or Affiliates
(or an international banking facility created by such Lender) to make or
maintain such LIBO Rate Loan; provided, however, that such
LIBO  Rate Loan shall nonetheless be deemed to have been made and to
be held by such Lender, and the obligation of the Borrower to repay such LIBO
Rate Loan shall nevertheless be to such Lender for the account of such foreign
branch, Affiliate or international banking facility.  In addition, the
Borrower hereby consents and agrees that, for purposes of any determination to
be made for purposes of Sections 4.1, 4.2, 4.3 or 4.4, it shall be
conclusively assumed that each Lender elected to fund all LIBO Rate Loans by
purchasing Dollar deposits in its LIBOR Office’s interbank eurodollar
market.

     

    SECTION
2.7  Notes.  Each
Lender’s Loans under its Revolving Commitment and Term Loan Commitment shall be
evidenced by a Note payable to the order of such Lender in a maximum principal
amount equal to such Lender’s Percentage of the original Revolving Commitment
Amount and Term Loan Commitment Amount, as applicable.  The Borrower
hereby irrevocably authorizes each Lender to make (or cause to be made)
appropriate notations on the grid attached to such Lender’s Note (or on any
continuation of such grid), which notations, if made, shall evidence, inter alia, the date of,
the outstanding principal of, and the interest rate and Interest Period
applicable to the Loans evidenced thereby.  Such notations shall be
conclusive and binding on the Borrower absent manifest error; provided, however, that the
failure of any Lender to make any such notations shall not limit or otherwise
affect any Obligations of the Borrower or any other Credit Party.

     

    SECTION
2.8  Letters
of Credit.

     

    SECTION
2.8.1  Issuance of Letters of
Credit.  From and after the date hereof, the Letter of Credit
Issuer agrees, upon the terms and conditions set forth in this Agreement, and
subject to the satisfaction of such policy standards and conditions relating to
the issuance of standby letters of credit generally as may be established by the
Letter of Credit Issuer from time to time, to issue standby letters of credit,
for the account of the Borrower, from time to time from the Closing Date to the Letter of Credit
Expiry Date; provided that the
Borrower shall not request and the Letter of Credit Issuer shall not issue, any
Letter of Credit which would cause the aggregate Letter of Credit Obligations
(after giving effect to the issuance of such Letter of Credit) to exceed the
amount of the lesser of (i) the Letter of Credit Sublimit and (ii) the unused
aggregate Revolving Commitment.

     

    SECTION
2.8.2  Participating
Interests.  Immediately upon the issuance by the Letter of
Credit Issuer of a Letter of Credit, each Lender shall be deemed to have
irrevocably and unconditionally purchased and received from the Letter of Credit
Issuer, without recourse, representation or warranty, an undivided participation
interest equal to its Percentage of the face amount of such Letter of Credit and
each draw paid by the Letter of Credit Issuer thereunder.  Each
Lender’s obligation to pay its proportionate share of all draws under the
Letters of Credit, absent gross negligence or willful misconduct by the Letter
of Credit Issuer in honoring any such draw, shall be absolute, unconditional and
irrevocable and in each case shall be made without counterclaim or set-off by
such Lender.

     

    
      
        
        

      

      
        25

        
          

        

      

      
        
        

      

    

     

    SECTION
2.8.3  Reimbursement Upon
Drawing.  (a) The Borrower agrees to  reimburse the
Letter of Credit Issuer for the amount of each draft drawn on a Letter of Credit
within one Business Day after the date such draft is so drawn.  The
Borrower agrees to reimburse the Letter of Credit Issuer immediately when due,
under all circumstances, including, without limitation, any of the following
circumstances:  (w) any lack of validity or enforceability of this
Agreement or any instrument executed pursuant hereto; (x) the existence of any
claim, set-off, defense or other right which the Borrower may have at any time
against a beneficiary named in a Letter of Credit, any transferee of any Letter
of Credit (or any Person for whom any such transferee may be acting), any Lender
or any other Person, whether in connection with this Agreement, any Letter of
Credit, the transactions contemplated herein or any unrelated transactions
(including any underlying transaction between the Borrower and the beneficiary
named in any Letter of Credit); (y) the validity, sufficiency or genuineness of
any document which the Letter of Credit Issuer reasonably has determined in good
faith complies on its face with the terms of the applicable Letter of Credit,
even if such document should later prove, without the knowledge of the Letter of
Credit Issuer, to have been forged, fraudulent, invalid or insufficient in any
respect or any statement therein shall have been untrue or inaccurate in any
respect; or (z) the surrender or material impairment of any security for the
performance or observance of any of the terms hereof.

     

    (b)           If
the Borrower does not pay any such reimbursement obligations when due, the
Borrower shall be deemed to have immediately requested that the Lenders make a
Base Rate Loan under this Agreement in a principal amount equal to such
unreimbursed reimbursement obligations.  The Agent shall promptly
notify the Lenders of such deemed request and, without the necessity of
compliance with the requirements of Sections 2.2 and
5.2, each
Lender shall make available to the Agent its Loan.  The proceeds of
such Loans shall be paid over by the Agent to the Letter of Credit Issuer for
the account of the Borrower in satisfaction of such unreimbursed reimbursement
obligations, which shall thereupon be deemed satisfied by the proceeds of, and
replaced by, such Loan.

     

    (c)           If
the Letter of Credit Issuer makes a payment on account of any Letter of Credit
and is not concurrently reimbursed therefor by the Borrower and if for any
reason a Loan may not be made pursuant to Section 2.8.3(b),
then as promptly as practical during normal banking hours on the date of its
receipt of such notice or, if not practicable on such date, not later than 1:00
p.m. (EST) on the Business Day immediately succeeding such date of notification,
each Lender shall deliver to the Agent for the account of the Letter of Credit
Issuer, in immediately available funds, the purchase price for such Lender’s
interest in such unreimbursed  reimbursement obligations, which shall
be an amount equal to such Lender’s pro-rata share of such
payment.  Each Lender shall, upon demand by the Letter of Credit
Issuer, pay the Letter of Credit Issuer interest on such Lender’s pro-rata share
of such draw from the date of payment by the Letter of Credit Issuer on account
of such Letter of Credit until the date of delivery of such funds to the Letter
of Credit Issuer by such Lender at a rate per annum, computed for actual days
elapsed based on a 360-day year, equal to the Federal Funds Effective Rate for
such period; provided, that such
payments shall be made by the Lenders only in the event and to the extent that
the Letter of Credit Issuer is not reimbursed in full by the Borrower for
interest on the amount of any draw on the Letters of Credit.

     

    
      
        
        

      

      
        26

        
          

        

      

      
        
        

      

    

     

    SECTION
2.8.4  Request for Letter of
Credit.  Each Letter of Credit shall be issued upon receipt by
the Letter of Credit Issuer and the Agent from the Borrower of an irrevocable
request thereof (an “LC
Notice”) not later than 12:00 noon (EST) three (3) Business Days prior
the issuance date.  Each LC Notice for a Letter of Credit issued shall
be in form and substance satisfactory to the Letter of Credit
Issuer.

     

    ARTICLE
III

     

    REPAYMENTS,
PREPAYMENTS, INTEREST AND FEES

     

    SECTION
3.1  Repayments and
Prepayments.

     

    SECTION
3.1.1  Prepayment of
Loans.  The Borrower

     

    (a)          may,
from time to time on any Business Day prior to the Maturity Date, make a
voluntary prepayment, in whole or in part, of the outstanding principal amount
of any Loans; provided, however,
that:

     

    (i)  in
the case of any partial prepayment of the Term Loan, such prepayment shall be
applied to the remaining amortization payments on the Term Loan in the inverse
order of maturity;

     

    (ii)  unless
the Borrower complies with Section 4.4, no such
prepayment of any LIBO  Rate Loan may be made on any day other than
the last day of the Interest Period for such Loan; and

     

    (b)          shall,
immediately upon any acceleration of the Maturity Date of any Loans pursuant to
Section 8.2 or
Section 8.3,
repay all Loans, unless, pursuant to Section 8.3, only a
portion of all Loans is so accelerated.

     

    Each
prepayment of any Loans made pursuant to this Section 3.1.1 shall
be without premium or penalty, except as may be required by Section
4.4.  No voluntary prepayment of principal of any Revolving
Loans pursuant to this Section 3.1.1 shall
cause a reduction in the Revolving Commitment Amount.

     

    SECTION
3.1.2  Repayment of Revolving
Loans.  On the Maturity Date, the Borrower shall repay the
principal of the Revolving Loans then outstanding.

     

    SECTION
3.1.3  Repayment of Term
Loans. The Term Loans shall be paid, for the account of each Lender
according to its Percentage thereof, in the installments and on the dates set
forth below:

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            	
                                    Date

                                  	 	
                                    Installment

                                  	 
	
                                    December
      31, 2009

                                  	 	$	1,000,000	 
	
                                    March
      31, 2010

                                  	 	$	1,000,000	 
	
                                    June
      30, 2010

                                  	 	$	1,000,000	 
	
                                    September
      30, 2010

                                  	 	$	1,000,000	 
	
                                    December
      31, 2010

                                  	 	$	1,250,000	 
	
                                    March
      31, 2011

                                  	 	$	1,250,000	 
	
                                    June
      30, 2011

                                  	 	$	1,250,000	 
	
                                    September
      30, 2011

                                  	 	$	1,250,000	 
	
                                    December
      31, 2011

                                  	 	$	1,500,000	 
	
                                    March
      31, 2012

                                  	 	$	1,500,000	 
	
                                    June
      30, 2012

                                  	 	$	1,500,000	 
	
                                    Maturity
      Date

                                  	 	
                                    Outstanding
      principal balance of the Term Loan

                                  	 


                          

                        

                      

                    

                  

                

              

            

          

        

      

    

    


    
      
        
        

      

      
        27

        
          

        

      

      
        
        

      

    

     

    SECTION
3.2  Interest
Provisions.  Interest on the outstanding principal amount of
Loans shall accrue and be payable in accordance with this Section
3.2.

     

       SECTION
3.2.1  Interest
Rates.  Borrower promises to pay interest on the unpaid
principal amount of each Loan for the period commencing on the date of such Loan
until such Loan is paid in full as follows:  (a) at all times while
such Loan is a Base Rate Loan, at a rate per annum equal to the sum of the Base
Rate from time to time in effect plus the Applicable Margin from time to time in
effect for Base Rate Loans; and (b) at all times while such Loan is a LIBO Rate
Loan, at a rate per annum equal to the sum of the LIBO Rate (Reserve Adjusted)
applicable to each Interest Period for such Loan plus the Applicable Margin from
time to time in effect for LIBO Rate Loans; provided that (i) at any time an
Event of Default exists, if requested by Required Lenders, the Applicable Margin
corresponding to each Loan shall be increased by 2% (and, in the case of
Obligations not subject to an Applicable Margin, such Obligations shall bear
interest at the Base Rate plus 2%), (ii) any such increase may thereafter be
rescinded by Required Lenders, notwithstanding Section 10.1, and
(iii) upon the occurrence of an Event of Default under Section 8.1.1or 8.1.9, any such
increase shall occur automatically. In no event shall interest payable by
Borrower to Agent and Lenders hereunder exceed the maximum rate permitted under
applicable law, and if any provision of this Agreement is in contravention of
any such law, such provision shall be deemed modified to limit such interest to
the maximum rate permitted under such law.

     

       The “LIBO Rate (Reserve Adjusted)”
means, relative to any Loan to be made, continued or maintained as, or converted
into, a LIBO Rate Loan for any Interest Period, a rate per annum (rounded
upwards, if necessary, to the nearest 1/16 of 1%) determined pursuant to the
following formula:

     

       LIBO
Rate           =
             LIBO
Rate      

       (Reserve
Adjusted)          1.00 -
LIBOR Reserve Percentage

     

       The LIBO Rate
(Reserve Adjusted) for any Interest Period for LIBO Rate Loans will be
determined by the Agent on the basis of the LIBOR Reserve Percentage in effect
on, and the applicable rates furnished to and received by the Agent from
National City, two Business Days before the first day of such Interest
Period.

     

       “LIBO Rate”
means, relative to any Interest Period for LIBO Rate Loans, the rate of interest
published each Business Day in The Wall Street Journal “Money Rates” listing
under the caption “London Interbank Offered Rates” for the applicable Interest
Period (or, if no such rate is published therein for any reason, then the LIBO
Rate shall be the Eurodollar rate for the applicable Interest Period as
published in another publication determined by the Agent two Business Days prior
to the beginning of such Interest Period.

     

    
      
        
        

      

      
        28

        
          

        

      

      
        
        

      

    

     

       “LIBOR Reserve
Percentage” means, relative to any Interest Period for LIBO Rate Loans,
the reserve percentage (expressed as a decimal) equal to the maximum aggregate
reserve requirements (including all basic, emergency, supplemental, marginal and
other reserves and taking into account any transitional adjustments or other
scheduled changes in reserve requirements) specified under regulations issued
from time to time by the F.R.S. Board and then applicable to assets or
liabilities consisting of and including “Eurocurrency Liabilities”, as currently
defined in Regulation D of the F.R.S. Board.

     

       All LIBO Rate
Loans shall bear interest from and including the first day of the applicable
Interest Period to (but not including) the last day of such Interest Period at
the interest rate determined as applicable to such LIBOR Rate Loan.

     

       “Applicable
Margin” means on any date the applicable percentage set forth below based
upon the Level as shown in the certificate then most recently delivered to the
Lenders pursuant to Section
7.1.1(d):

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                        
                                          
                                            
                                              
                                                	 	 	 	 	 	 	 	 	 	 
	
                                                        Level

                                                      	 	
                                                        Base Rate Margin

                                                      	 	 	
                                                        LIBO Rate Margin

                                                      	 	 	
                                                        Revolver Commitment Fee

                                                      	 
	
                                                        V

                                                      	 	
                                                        3.00%

                                                      	 	 	
                                                        5.00%

                                                      	 	 	
                                                        .
      500%

                                                      	 
	
                                                        IV

                                                      	 	
                                                        2.50%

                                                      	 	 	
                                                        4.50%

                                                      	 	 	
                                                        .500%

                                                      	 
	
                                                        III

                                                      	 	
                                                        2.00%

                                                      	 	 	
                                                        4.00%

                                                      	 	 	
                                                        .375%

                                                      	 
	
                                                        II

                                                      	 	
                                                        1.25%

                                                      	 	 	
                                                        3.25%

                                                      	 	 	
                                                        .375%

                                                      	 
	
                                                        I

                                                      	 	
                                                        0.75%

                                                      	 	 	
                                                        2.75%

                                                      	 	 	
                                                        .250%

                                                      	 
	 	 	 	 	 	 	 	 	 	 	 	
                                                         

                                                      	 


                                              

                                            

                                          

                                        

                                      

                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

    ; provided, however that if the
Borrower shall have failed to deliver to the Lenders by the date required
hereunder any certificate pursuant to Section 7.1.1(d),
then from the date such certificate was required to be delivered until the date
of such delivery the Applicable Margin shall be deemed to be Level
V.  Each change in the Applicable Margin shall take effect with
respect to all outstanding Loans on the first Business Day of the month
immediately succeeding the day on which such certificate is received by the
Agent.  Notwithstanding the foregoing, no reduction in the Applicable
Margin shall be effected if a Default or an Event of  Default shall
have occurred and be continuing on the date when such change would otherwise
occur, it being understood that on the first Business Day of the month
immediately succeeding the day on which such Default or Event of Default is
either waived or cured (assuming no other Default or Event of Default shall be
then pending), the Applicable Margin shall be reduced (on a prospective basis)
in accordance with the then most recently delivered certificate.

     

    
      
        
        

      

      
        29

        
          

        

      

      
        
        

      

    

     

    If, as a
result of any restatement of or other adjustment to the financial statements of
the Borrower or for any other reason (other than as a result of a change in
accounting rules), Agent determines that (i) the Total Leverage Ratio as
calculated in any certificate delivered by Borrower after the Closing Date
pursuant to Section
7.1.1(d), as of any applicable date was inaccurate in any material
respect and (ii) a proper calculation of the Total Leverage Ratio would have
resulted in a different Applicable Margin for any period, then (A) if the
proper calculation of the Total Leverage Ratio would have resulted in a higher
Applicable Margin for such period, Borrower shall automatically and
retroactively be obligated to pay to Agent for the benefit of the applicable
Lenders, promptly on written demand by Agent, 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; and (B) if the
proper calculation of the Total Leverage Ratio would have resulted in a lower
Applicable Margin for such period, neither the Agent nor the Lenders shall have
any obligation to repay any interest or fees to Borrower or any other Credit
Party; provided
that if, as a result of any restatement or other event a proper calculation of
the Total Leverage Ratio would have resulted in a higher Applicable Margin for
one or more periods and a lower Applicable Margin for one or more other periods
(due to the shifting of income or expenses from one period to another period or
any similar reason), then the amount payable by Borrower pursuant to clause (A) above
shall be based upon the excess, if any, of the amount of interest and fees that
should have been paid for all applicable periods over the amount of interest and
fees paid for all such periods.

     

        “Level”
means, and includes, Level I, Level II, Level III, Level IV or Level V,
whichever is in effect at the relevant time.

     

       “Level I” shall
exist at any time the Total Leverage Ratio is less than 3.00:1.0.

     

       “Level II” shall
exist at any time the Total Leverage Ratio is greater than or equal to 3.00:1.0
but less than 3.50:1.0.

     

       “Level III” shall
exist at any time the Total Leverage Ratio is greater than or equal to 3.50:1.0
but less than 4.00:1.0.

     

       “Level IV” shall
exist at any time the Total Leverage Ratio is greater than or equal to 4.00:1.0
but less than 4.50:1.0.

     

       “Level V” shall
exist at any time the Total Leverage Ratio is greater than or equal to
4.50:1.0.

     

       “Total Leverage
Ratio” means, with respect to any period, the ratio of (i) Total Funded
Debt to  (ii) EBITDA, as of the end of the relevant
period.

    


    SECTION
3.2.2  Payment
Dates.  Interest accrued on each Loan shall be payable, without
duplication:

     

    (a)           on
the Revolving Commitment Termination Date;

    


    (b)           on
the Maturity Date;

    


    (c)           on
the date of any payment or prepayment, in whole or in part, of principal
outstanding on such Loan;

    


    (d)           with
respect to Base Rate Loans, on each Quarterly Payment Date occurring after the
Closing Date;

     

    
      
        
        

      

      
        30

        
          

        

      

      
        
        

      

    

    


    (e)           with
respect to LIBO Rate Loans, the last day of each applicable Interest Period and,
in the case of an Interest Period in excess of three months, on the dates which
are successively three months after the commencement of such Interest
Period;

     

    (f)           with
respect to any Base Rate Loans converted into LIBO Rate Loans on a day when
interest would not otherwise have been payable pursuant to clause (c), on the
date of such conversion; and

     

    (g)           on
that portion of any Loans the Maturity Date of which is accelerated pursuant to
Section 8.2 or
Section 8.3,
immediately upon such acceleration.

     

    Interest
accrued on Loans or other monetary Obligations arising under this Agreement or
any other Loan Document after the date such amount is due and payable (whether
on the  Maturity Date, upon acceleration or otherwise) shall be
payable upon demand.

     

    SECTION
3.3  Fees.  The
Borrower agrees to pay the fees set forth in this Section
3.3.  All such fees shall be non-refundable.

     

    SECTION
3.3.1  Revolving Commitment
Fee.  The Borrower agrees to pay to the Agent for the account
of each Lender, for the period (including any portion thereof when its Revolving
Commitment is suspended by reason of the Borrower’s inability to satisfy any
condition of Article
V) commencing on the Closing Date and continuing through the Revolving
Commitment Termination Date, a commitment fee at the rate equal to the
Applicable Margin for Commitment Fees per annum (computed on the basis of a
360-day year for the actual days elapsed) on such Lender’s Percentage of the sum
of the average daily unused portion of the Revolving Commitment
Amount.  Such commitment fees shall be payable by the Borrower in
arrears on each Quarterly Payment Date, commencing with the first such day
following the Closing Date and on the Revolving Commitment Termination
Date.

     

    SECTION
3.3.2  Letter of Credit
Fees.  (a) The Borrower agrees to pay the Agent, for the
account of each Lender pro-rata on the basis of its Revolving Commitment, a fee
in respect of each Letter of Credit computed at the Applicable Margin for LIBO
Rate Loans on the average daily stated amount of such Letter of Credit (computed
on the basis of a 360-day year for the actual days elapsed), such fee to be due
and payable quarterly in arrears on each Quarterly Payment Date and on the
Revolving Commitment Termination Date.

     

    (b) The
Borrower shall pay to the Letter of Credit Issuer a letter of credit fronting
fee for each Letter of Credit issued by the Letter of Credit Issuer equal to 1/8
of 1% of the face amount (or increased face amount) of such Letter of
Credit.  Such Letter of Credit fronting fee shall be due and payable
on each date of issuance (or date of increase) of a Letter of
Credit.

     

    (c)  The
Borrower agrees to pay directly to the Letter of Credit Issuer upon each
issuance of, drawing under, and/or amendment of, a Letter of Credit issued by it
in such amount as shall at the time of such issuance, drawing or amendment be
the administrative charge which the Letter of Credit Issuer is customarily
charging for issuances of, drawing under or amendments of, letters of credit
issued by it.

    


    
      
        
        

      

      
        31

        
          

        

      

      
        
        

      

    

    


    SECTION
3.3.3  Agency
Fees.  The Borrower shall pay to the Agent the fees agreed to
by Agent and the Borrower in a fee letter dated May 7, 2009, or as otherwise
agreed to in writing by the Borrower and the Agent, when and as
due.

     

    ARTICLE
IV

     

    LIBO RATE
AND OTHER PROVISIONS

     

    SECTION
4.1  LIBO
Rate Lending Unlawful.  If any Lender shall determine (which
determination shall, upon notice thereof to the Borrower and the Lenders, be
conclusive and binding on the Borrower) that the introduction of or any change
in or in the interpretation of any law makes it unlawful, or any central bank or
other governmental authority asserts that it is unlawful, for such Lender to
make, continue or maintain any Loan as, or to convert any Loan into, a LIBO Rate
Loan of a certain type, subject to the provisions of Section 4.11 hereof,
the obligations of all Lenders to make, continue, maintain or convert any such
Loans shall, upon such determination, forthwith be suspended until such Lender
shall notify the Agent that the circumstances causing such suspension no longer
exist, and all LIBO Rate Loans of such type shall automatically convert into
Base Rate Loans at the end of the then current Interest Periods with respect
thereto or sooner, if required by such law or assertion.

     

    SECTION
4.2  Deposits
Unavailable.  If the Agent shall have determined
that

     

    (a)           Dollar
certificates of deposit or Dollar deposits, as the case may be, in the relevant
amount and for the relevant Interest Period are not available to a Lender in
its  relevant market; or

     

    (b)           by
reason of circumstances affecting a Lender’s relevant market, adequate means do
not exist for ascertaining the interest rate applicable hereunder to LIBO Rate
Loans of such type,

     

    then,
upon notice from the Agent to the Borrower and the Lenders, subject to the
provisions of Section
4.11 hereof, the obligations of all Lenders under Section 2.4 and Section 2.5 to make
or continue any Loans as, or to convert any Loans into, LIBO Rate Loans of such
type shall forthwith be suspended until the Agent shall notify the Borrower and
the Lenders that the circumstances causing such suspension no longer
exist.

     

    SECTION
4.3  Increased LIBO Rate Loan
Costs, etc.  The Borrower agrees to reimburse each Lender for
any increase in the cost to such Lender of, or any reduction in the amount of
any sum receivable by such Lender in respect of, making, continuing or
maintaining (or of its obligation to make, continue or maintain) any Loans as,
or of converting (or of its obligation to convert) any Loans into, LIBO Rate
Loans, subject to the provisions of Section 4.11
hereof.  Such Lender shall promptly notify the Agent and the Borrower
in writing of the occurrence of any such event, such notice to state, in
reasonable detail, the reasons therefor and the additional amount required fully
to compensate such Lender for such increased cost or reduced
amount.  Such additional amounts shall be payable by the Borrower
directly to such Lender within five days of its receipt of such notice, and such
notice shall, in the absence of manifest error, be conclusive and binding on the
Borrower; provided, however, in no event
shall Borrower be obligated to pay increased costs for a period greater than 180
days prior to the date of receipt of such notice.

     

    
      
        
        

      

      
        32

        
          

        

      

      
        
        

      

    

     

    SECTION
4.4  Funding
Losses.  In the event any Lender shall incur any loss or
expense (including any loss or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to make,
continue or maintain any portion of the principal amount of any Loan as, or to
convert any portion of the principal amount of any Loan into, a LIBO Rate Loan)
as a result of;

     

    (a)           any
conversion or repayment or prepayment of the principal amount of any LIBO Rate
Loans on a date other than the scheduled last day of the Interest Period
applicable thereto, whether pursuant to Section 3.1 or
otherwise;

     

    (b)           any
Loans not being made as LIBO Rate Loans in accordance with the Borrowing Request
therefor; or

     

    (c)           any
Loans not being continued as, or converted into, LIBO Rate Loans in accordance
with the Continuation/ Conversion Notice therefor;

     

    then,
subject to the provisions of Section 4.11 hereof,
upon the written notice of such Lender (which notice shall be delivered within
thirty days of the incurrence thereof by such Lender) to the Borrower (with a
copy to the Agent), the Borrower shall, within five days of its receipt thereof,
pay directly to such Lender such amount as will (in the reasonable determination
of such Lender) reimburse such Lender for such loss or expense.  Such
written notice (which shall include calculations in reasonable detail) shall, in
the absence of manifest error, be conclusive and binding on the
Borrower.

     

    SECTION
4.5  Increased Capital
Costs.  If any change in, or the introduction, adoption,
effectiveness, interpretation, reinterpretation or phase-in of, any law or
regulation, directive, guideline, decision or request (whether or not having the
force of law) of any court, central bank, regulator or other governmental
authority affects or would affect the amount of capital required or expected to
be maintained by any Lender or any Person controlling such Lender, and such
Lender determines (in its sole and absolute discretion) that the rate of return
on its or such controlling Person’s capital as a consequence of its Revolving
Commitment or the Loans made by such Lender is reduced to a level below that
which such Lender or such controlling Person could have achieved but for the
occurrence of any such circumstance, then, in any such case upon notice from
time to time by such Lender to the Borrower, subject to the provisions of Section 4.11 hereof,
the Borrower shall immediately pay directly to such Lender additional amounts
sufficient to compensate such Lender or such controlling Person for such
reduction in rate of return.  A statement of such Lender as to any
such additional amount or amounts (including calculations thereof in reasonable
detail) shall, in the absence of manifest error, be conclusive and binding on
the Borrower.  In determining such amount, such Lender may use any
method of averaging and attribution that it (in its sole and absolute
discretion) shall deem applicable; provided, however, in no event
shall Borrower be obligated to pay increased costs for a period greater than 180
days prior to the date of receipt of the notice required by this Section
4.5.

     

    
      
        
        

      

      
        33

        
          

        

      

      
        
        

      

    

     

    SECTION
4.6  Taxes.  All
payments by the Borrower of principal of, and interest on, the Loans and all
other amounts payable hereunder shall be made free and clear of and without
deduction for any present or future income, excise, stamp or franchise taxes and
other taxes, fees, duties, withholdings or other charges of any nature
whatsoever imposed by any taxing authority, but excluding franchise taxes and
taxes imposed on or measured by any Lender’s net income or receipts (such
non-excluded items being called “Taxes”).  In the
event that any withholding or deduction from any payment to be made by the
Borrower hereunder is required in respect of any Taxes pursuant to any
applicable law, rule or regulation, then the Borrower will:

     

    (a)           pay
directly to the relevant authority the full amount required to be so withheld or
deducted;

     

    (b)           promptly
forward to the Agent an official receipt or other documentation satisfactory to
the Agent evidencing such payment to such authority; and

     

    (c)           pay
to the Agent for the account of the Lenders such additional amount or amounts as
is necessary to ensure that the net amount actually received by each Lender will
equal the full amount such Lender would have received had no such withholding or
deduction been required.

     

    Moreover,
if any Taxes are directly asserted against the Agent or any Lender with respect
to any payment received by the Agent or such Lender hereunder, the Agent or such
Lender may pay such Taxes and the Borrower will promptly pay such additional
amounts (including any penalties, interest or expenses, other than those
penalties, interest or expenses which are due to any delay by Agent or any
Lender) as is necessary in order that the net amount received by such person
after the payment of such Taxes (including any Taxes on such additional amount)
shall equal the amount such person would have received had not such Taxes been
asserted.

     

    If the
Borrower fails to pay any Taxes when due to the appropriate taxing authority or
fails to remit to the Agent, for the account of the respective Lenders, the
required receipts or other required documentary evidence, the Borrower shall
indemnify the Lenders for any incremental Taxes, interest or penalties that may
become payable by any Lender as a result of any such failure.  For
purposes of this Section 4.6, a
distribution hereunder by the Agent or any Lender to or for the account of any
Lender shall be deemed a payment by the Borrower.

     

    Upon the
request of the Borrower or the Agent, each Lender that is organized under the
laws of a jurisdiction other than the United States shall, prior to the due date
of any payments under the Notes, execute and deliver to the Borrower and the
Agent, on or about the first scheduled payment date in each Fiscal Year, one or
more (as the Borrower or the Agent may reasonably request) United States
Internal Revenue Service Forms 4224 or Forms 1001 or such other forms or
documents (or successor forms or documents), appropriately completed, as may be
applicable to establish the extent, if any, to which a payment to such Lender is
exempt from withholding or deduction of Taxes.

     

    
      
        
        

      

      
        34

        
          

        

      

      
        
        

      

    

     

    SECTION
4.7  Payments, Computations,
etc.  Unless otherwise expressly provided, all payments by the
Borrower pursuant to this Agreement, the Notes or any other Loan Document shall
be made by the Borrower to the Agent for the pro rata account of the
Lenders entitled to receive such payment.  All such payments required
to be made to the Agent shall be made, without setoff, deduction or
counterclaim, not later than 11:00 a.m., Chicago  time, on the date
due, in same day or immediately available funds, to such account as the Agent
shall specify from time to time by notice to the Borrower.  Funds
received after that time shall be deemed to have been received by the Agent on
the next succeeding Business Day.  The Agent shall promptly remit in
same day funds to each Lender its share, if any, of such payments received by
the Agent for the account of such Lender.  All interest and fees shall
be computed on the basis of the actual number of days (including the first day
but excluding the last day) occurring during the period for which such interest
or fee is payable over a year comprised of 360 days (or, in the case of interest
on a Base Rate Loan, 365 days or, if appropriate, 366 days).  Whenever
any payment to be made shall otherwise be due on a day which is not a Business
Day, such payment shall (except as otherwise required by clause (c) of the
definition of the term “Interest Period” with
respect to LIBO Rate Loans) be made on the next succeeding Business Day and such
extension of time shall be included in computing interest and fees, if any, in
connection with such payment.

     

    SECTION
4.8  Sharing
of Payments.  If any Lender shall obtain any payment or other
recovery (whether voluntary, involuntary, by application of setoff or otherwise)
on account of any Loan (other than pursuant to the terms of Sections 4.3, 4.4 and 4.5) in excess of its
pro rata share of
payments then or therewith obtained by all Lenders, such Lender shall purchase
from the other Lenders such participations in Loans made by them as shall be
necessary to cause such purchasing Lender to share the excess payment or other
recovery ratably with each of them; provided, however, that if all
or any portion of the excess payment or other recovery is thereafter recovered
from such purchasing Lender, the purchase shall be rescinded and each Lender
which has sold a participation to the purchasing Lender shall repay to the
purchasing Lender the purchase price to the ratable extent of such recovery
together with an amount equal to such selling Lender’s ratable share (according
to the proportion of:

     

    (a)           the
amount of such selling Lender’s required repayment to the purchasing
Lender

     

    to

     

    (b)           the
total amount so recovered from the purchasing Lender);

     

    of any
interest or other amount paid or payable by the purchasing Lender in respect of
the total amount so recovered.  The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section may, to
the fullest extent permitted by law, exercise all its rights of payment
(including pursuant to Section 4.9) with
respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation.  If
under any applicable bankruptcy, insolvency or other similar law, any Lender
receives a secured claim in lieu of a setoff to which this Section applies, such
Lender shall, to the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Lenders entitled
under this Section to share in the benefits of any recovery on such secured
claim.

     

    
      
        
        

      

      
        35

        
          

        

      

      
        
        

      

    

     

    SECTION
4.9  Setoff.  Each
Lender shall, upon the occurrence of any Default described in clauses (a) through
(d) of Section
8.1.9  or, with the consent of the Required Lenders, upon the
occurrence of any other Event of Default, have the right to appropriate and
apply to the payment of the Obligations owing to it (whether or not then due),
and (as security for such Obligations) the Borrower hereby grants to each Lender
a continuing security interest in, any and all balances, credits, deposits,
accounts or moneys of the Borrower then or thereafter maintained with such
Lender; provided, however, that any
such appropriation and application shall be subject to the provisions of Section
4.8.  Each Lender agrees promptly to notify the Borrower and
the Agent after any such setoff and application made by such Lender; provided, however, that the
failure to give such notice shall not affect the validity of such setoff and
application.  The rights of each Lender under this Section are in
addition to other rights and remedies (including other rights of setoff under
applicable law or otherwise) which such Lender may have.

     

    SECTION
4.10  Use of
Proceeds.  The Borrower shall apply the proceeds of each
Borrowing in accordance with the fourth recital; without
limiting the foregoing, no proceeds of any Loan will be used to acquire any
equity security of a class which is registered pursuant to Section 12 of the
Securities Exchange Act of 1934 or any “margin stock”, as defined in F.R.S.
Board Regulation U.

     

    SECTION
4.11  Changes to Other Branches;
Equal Treatment of Borrower.  If a Lender claims any additional
amounts payable or that its is unable to make LIBO Rate Loans available, as
described more fully in Sections 4.1 through
4.5 hereof,
such Lender shall (i) use its reasonable efforts (consistent with legal and
regulatory restrictions) to avoid the need for paying such additional amounts or
such unavailability, including changing the jurisdiction of its applicable
lending office or moving the applicable Loan(s) to an Affiliate or Subsidiary;
provided, that
the taking of any such action would not, in the reasonable judgment of such
Lender, be disadvantageous to such Lender and (ii) treat the Borrower, with
respect to all such issues, in a manner consistent with the treatment of other
similarly situated borrowers with respect to such issues.

     

    SECTION
4.12  Replacement of
Lenders.  Within fifteen (15) days after receipt by Borrower of
written notice and demand from any Lender for payment pursuant to Section 4.5 or 4.6
(any such Lender demanding such payment being referred to herein as an “Affected Lender”), Borrower
may, at its option, notify Agent and such Affected Lender of its intention to
obtain, at Borrower's expense, a replacement Lender (“Replacement Lender”) for such
Affected Lender, which Replacement Lender shall be reasonably satisfactory to
Agent.  In the event Borrower obtains a Replacement Lender that will
refinance all outstanding Obligations owed to such Affected Lender and assume
its Commitments hereunder within ninety (90) days following notice of Borrower's
intention to do so, the Affected Lender shall sell and assign all of its rights
and delegate all of its obligations under this Agreement to such Replacement
Lender in accordance with the provisions of Section 10.11.1,
provided that
Borrower has reimbursed such Affected Lender for any administrative fee payable
pursuant to Section
10.11.1 and, in any case where such replacement occurs as the result of a
demand for payment pursuant to Section 4.5 or 4.6,
paid all amounts required to be paid to such Affected Lender pursuant to subsection 4.5 or 4.6
through the date of such sale and assignment.

     

    
      
        
        

      

      
        36

        
          

        

      

      
        
        

      

    

     

    ARTICLE
V

     

    CONDITIONS
TO BORROWING

     

    SECTION
5.1  Initial
Borrowing.  The obligations of the Lenders to fund the initial
Borrowing and the Term Loan and the Letter of Credit Issuer to issue, and the
Lenders to participate in, any letter of Credit, shall be subject to the prior
or concurrent satisfaction of each of the conditions precedent set forth in this
Section 5.1.
The parties hereto acknowledge and agree that the date of this Agreement and the
other Loan Documents shall be August 31, 2009, provided, the
conditions set forth in Sections 5.1.9 and
5.1.16 shall occur on September 1, 2009.

     

    SECTION
5.1.1  Authorization
Documents.  For each Credit Party, such Person’s (i) charter
(or similar formation document), certified by the appropriate governmental
authority, (ii) good standing certificates in its state of incorporation (or
formation) and in each other state requested by Agent, (iii) bylaws (or similar
governing document), (iv) resolutions of its board of directors (or similar
governing body) approving and authorizing such Person’s execution, delivery and
performance of this Agreement, the Notes and each other Loan Documents to which
it is party and the transactions contemplated thereby, and (v) the incumbency
and signatures of those of its officers authorized to act with respect to this
Agreement, the Notes and each other Loan Document, all certified by its
secretary or an assistant secretary (or similar officer) as being in full force
and effect without modification.  Each Lender may conclusively rely
upon such certification until it shall have received a further certificate of
the secretary or assistant secretary (or similar officer) of such Credit Party
canceling or amending such prior certificate.

     

    SECTION
5.1.2  Executed Signature Pages to
Agreement.  Execution of this Agreement and delivery of
executed signature pages to this Agreement by the Borrower, each Lender and the
Agent.

     

    SECTION
5.1.3  Delivery of
Notes.  The Agent shall have received, for the account of each
Lender, its Notes duly executed and delivered by the Borrower.

     

    SECTION
5.1.4  Applicable
Margin.  The Agent shall receive a certificate, executed by an
Authorized Officer of the Borrower, delineating the Applicable Margin after
giving pro forma effect to the Loans to be incurred on the Closing
Date.

     

    SECTION
5.1.5  Guarantee and Collateral
Agreement.  The Agent shall have received the Guarantee and
Collateral Agreement, dated the date hereof, duly executed by each Credit Party
thereto, together with:

     

    (a)           acknowledgment
copies of properly filed Uniform Commercial Code financing statements naming the
relevant Credit Party as the debtor and the Agent as the secured party, or other
similar instruments or documents, filed under the Uniform Commercial Code of all
jurisdictions as may be necessary or, in the opinion of the Agent, desirable to
perfect the security interest of the Agent pursuant to the Guarantee and
Collateral Agreement;

     

    
      
        
        

      

      
        37

        
          

        

      

      
        
        

      

    

    


    (b)           executed
copies of proper Uniform Commercial Code Form UCC-3 termination statements, if
any, necessary to release all Liens and other rights of any Person:

    


    (i)  in
any collateral described in the Guarantee and Collateral Agreement previously
granted by any Person, and

    


    (ii)  securing
any of the Indebtedness identified in Part A of Schedule 6.17,
together with such other Uniform Commercial Code Form UCC-3 termination
statements as the Agent may reasonably request from such Credit
Party;

    


    (c)           copies
of Uniform Commercial Code Requests for Information or Copies (Form UCC-11), or
a similar search report certified by a party acceptable to the Agent, dated a
date reasonably near to the date of the initial Borrowing, listing all effective
financing statements which name each Credit Party (under its present name and
any previous names) as the debtor and which are filed in the jurisdictions in
which filings were made pursuant to clause (a) above,
together with copies of such financing statements (none of which (other than
those described in clause (a), if such
Form UCC-11 or search report, as the case may be, is current enough to list such
financing statements described in clause (a)) shall
cover any collateral described in the Guarantee and Collateral Agreement);
and

    


    (d)           to
the extent certificated, stock certificates, accompanied by undated stock powers
duly executed in blank, and promissory notes, duly endorsed in blank, required
to be delivered to the Agent pursuant to the Guarantee and Collateral
Agreement.

    


    SECTION
5.1.6  Intellectual Property
Assignment.  The Agent shall have received executed
counterparts of an Intellectual Property Assignment, dated the date hereof, duly
executed by each Credit Party.

     

    SECTION
5.1.7  Opinions of
Counsel.  The Agent shall have received opinions, dated the
date of the initial Borrowing and addressed to the Agent and all Lenders, from
DLA Piper LLP (US), counsel to the Borrower and its Subsidiaries, substantially
in the form of Exhibit
E hereto.

     

    SECTION
5.1.8  Agreements.  The
Agent shall have received true and correct copies, certified as such by an
Authorized Officer of the Borrower, of each agreement governing Indebtedness
listed on Schedule
6.17.

     

    SECTION
5.1.9  Closing Fees, Expenses,
etc.  The Agent shall have received for its own account, or for
the account of each Lender, as the case may be, all fees, costs and expenses due
and payable on the Closing Date pursuant to Section 3.3 and, to
the extent invoiced on such date, Section 10.3
(including, without limitation, the reasonable fees and expenses of Winston
& Strawn).

     

    
      
        
        

      

      
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    SECTION
5.1.10  Certificate. A
certificate signed by the chief financial officer or chief executive officer of
the Borrower, dated as of the Closing Date and after giving effect to this
Agreement:

     

    (i)           stating
that the representations and warranties contained in Article VI are true
and correct on and as of such date as though made on and as of such date;
and

     

    
      (ii)         
stating
that no Default or Event of Default exists.

    

     

    SECTION
5.1.11  Disclosure Schedules.
Copies of the Schedules to this Agreement.

     

    SECTION
5.1.12  Insurance.  Certificates
or other evidence of insurance in effect as required by Section 7.1.4, with
endorsements naming Agent and Lenders as lenders’ loss payee and/or additional
insured, as applicable.

     

    SECTION
5.1.13  Financials. The Agent
shall have received (i) unaudited financial statements for the Borrower through
June 30, 2009, (ii) financial projections through the Maturity Date in form
and substance satisfactory to the Agent and (iii) a pro forma consolidated
balance sheet of the Borrower as of June 30, 2009 but giving pro forma effect to
the Term Loan and Borrowings.

     

    SECTION
5.1.14  No Material
Adverse Change. There
shall have been no material adverse change in the business, assets, liabilities,
operations, condition (financial or otherwise) or prospects of the Borrower,
together with its Subsidiaries, taken as a whole.

     

    SECTION
5.1.15  Consents.  Evidence
that all necessary consents, permits, licenses and approvals (governmental or
otherwise) required for the execution, delivery and performance by each Credit
Party of this Agreement, the Notes and each other Loan Document have been duly
obtained and are in full force and effect.

     

    SECTION
5.1.16  Repayment of Exiting
Lenders.  Each Person which was a lender under the Sixth
Amended and Restated Credit Agreement and which is not a Lender hereunder shall
have been paid any amounts due and owing to such Person under the Sixth Amended
and Restated Credit Agreement as of the date hereof.

     

    SECTION
5.1.17  No
Material Litigation. As of the Closing Date, no Credit Party shall be
party to any litigation which would be material to the Credit Parties take as a
whole.

     

    SECTION
5.1.18  Other Documents. Such
other customary approvals, opinions, documents or materials as the Agent may
reasonably request.

     

    SECTION
5.2  All
Borrowings and Letters of Credit.  The obligation of each
Lender to fund the Term Loan and any Loan on the occasion of any Borrowing
(including the initial Borrowing) and the obligation of the Letter of Credit
Issuer to issue any Letter of Credit shall be subject to the satisfaction of
each of the conditions precedent set forth in this Section
5.2.

     

    
      
        
        

      

      
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    SECTION
5.2.1  Compliance with Warranties,
No Default, etc.  Both before and after giving effect to any
Borrowing (but, if any Default of the nature referred to in Section 8.1.5 shall
have occurred with respect to any other Indebtedness, without giving effect to
the application, directly or indirectly, of the proceeds thereof) the following
statements shall be true and correct:

     

    (a)           the
representations and warranties set forth in Article VI shall be
true and correct with the same effect as if then made (unless stated to relate
solely to an early date, in which case such representations and warranties shall
be true and correct as of such earlier date); and

    


    (b)           no
Default or Event of Default shall have then occurred and be
continuing.

    


    SECTION
5.2.2  Borrowing Request; LC
Notice.  The Agent shall have received a Borrowing Request for
such Borrowing or LC Notice for the issuance of a Letter of
Credit.  Each of the delivery of a Borrowing Request or LC Notice, as
the case may be, and the acceptance by the Borrower of the proceeds of such
Borrowing or the issuance of such Letter of Credit, as the case may be, shall
constitute a representation and warranty by the Borrower that on the date of
such Borrowing or the issuance of such Letter of Credit, as the case may
be  (both immediately before and after giving effect to such Borrowing
and the application of the proceeds thereof or the issuance of such Letter of
Credit, as the case may be,) the statements made in Section 5.2.1 are
true and correct.

     

    SECTION
5.2.3  Satisfactory Legal
Form.  All documents executed or submitted pursuant hereto by
or on behalf of each Credit Party shall be reasonably satisfactory in form and
substance to the Agent and its counsel; the Agent and its counsel shall have
received all information, approvals, opinions, documents or instruments as the
Agent or its counsel may reasonably request.

     

    ARTICLE
VI

     

    REPRESENTATIONS
AND WARRANTIES

     

    In order
to induce the Lenders and the Agent to enter into this Agreement and to make
Loans hereunder, the Borrower represents and warrants unto the Agent and each
Lender as set forth in this Article
VI.

     

    SECTION
6.1  Organization,
etc.  The Borrower and each of its Subsidiaries is validly
organized and existing and in good standing under the laws of the State of its
organization, is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction where the nature of its business
requires such qualification, and has full power and authority and holds all
requisite governmental licenses, permits and other approvals to enter into and
perform its Obligations under this Agreement, the Notes and each other Loan
Document to which it is a party and to own and hold under lease its property and
to conduct its business substantially as currently conducted by it.

     

    
      
        
        

      

      
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    SECTION
6.2  Due
Authorization, Non-Contravention, etc.  The execution, delivery
and performance by the Borrower and each of its Subsidiaries of this Agreement,
the Notes and each other Loan Document executed or to be executed by it, are
within each such Credit Party’s  powers, have been duly authorized by
all necessary corporate action, and do not:

     

    (a)           contravene
such Credit Party’s Organizational Documents;

     

    (b)           contravene
any contractual restriction, law or governmental regulation or court decree or
order binding on or affecting such Credit Party, which contravention reasonably
would be expected to have a Material Adverse Effect; or

     

    (c)           result
in, or require the creation or imposition of, any Lien on any of such Credit
Party’s properties other than a Permitted Lien.

     

    SECTION
6.3  Government Approval,
Regulation, etc.  No authorization or approval or other action
by, and no notice to or filing with, any governmental authority or regulatory
body or other Person is required for the due execution, delivery or performance
by any Credit Party, including, without limitation, the Borrower, of this
Agreement, the Notes or any other Loan Document to which it is a party, other
than as described in Schedule 6.3 which
have been obtained or delivered on or prior to the Closing
Date.  Neither the Borrower nor any of its Subsidiaries, is an
“investment company” within the meaning of the Investment Company Act of 1940,
as amended.

     

    SECTION
6.4  Validity,
etc.  This Agreement constitutes, and the Notes and each other
Loan Document executed by each Credit Party thereto will, on the due execution
and delivery thereof, constitute, the legal, valid and binding obligations of
such Credit Party enforceable in accordance with their respective terms, except
that the validity or enforceability of any such Loan Document may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforceability of creditors’ rights generally or by equitable
principles, whether enforcement thereof is sought in a court of law or
equity.

     

    SECTION
6.5  Financial
Information.  The audited financial statements of the Borrower
and its Subsidiaries on a consolidated basis as of December 31, 2008, and the
unaudited financial statements of the Borrower and its Subsidiaries on a
consolidated basis as of June 30, 2009, copies of which have been furnished to
the Agent and each Lender, have been prepared in accordance with GAAP
consistently applied (subject to ordinary, good faith year end audit
adjustments), and present fairly the consolidated financial position of the
Persons  covered thereby as at the dates thereof and the results of
their operations for the periods then ended.

     

    SECTION
6.6  No
Material Adverse Change. Since December 31, 2008, there has been no
material adverse change in the financial condition, operations, assets,
business, properties or prospects of the Borrower and its Subsidiaries taken as
a whole.

     

    SECTION
6.7  Litigation, Labor
Controversies, etc.  There is no pending or, to the knowledge
of  the Borrower, threatened litigation, action, proceeding, or labor
controversy affecting any Credit Party, or any of their respective properties,
businesses, assets or revenues, or any Person who provided health care services
under contract with any Credit Party, which reasonably would be expected to have
a Material Adverse Effect or which purports to affect the legality, validity or
enforceability of this Agreement, the Notes or any other Loan
Document.

     

    
      
        
        

      

      
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    SECTION
6.8  Subsidiaries.

     

    The
Borrower has no Subsidiaries, except those Subsidiaries:

     

    (i)           which
are identified in Schedule 6.8;
or

    


    (ii)          which
are permitted to have been formed or acquired by the Borrower in accordance with
Section 7.1.12,
7.2.5 or 7.2.8.

    


    SECTION
6.9  Ownership of
Properties.  The Borrower and each of its Subsidiaries owns
good and marketable title (or valid leasehold title, with respect to leasehold
estates) to all of its properties and assets, real and personal, tangible and
intangible, of any nature whatsoever (including patents, trademarks, trade
names, service marks and copyrights), free and clear of all Liens, charges or
claims (including infringement claims with respect to patents, trademarks,
copyrights and the like) except as permitted pursuant to Section
7.2.3.

     

    SECTION
6.10  Taxes.  Except
as described on Schedule 6.10, the
Borrower and each of its Subsidiaries has filed all tax returns and reports
required by law to have been filed by it and has paid all taxes and governmental
charges thereby shown to be owing, except any such taxes or charges which are
being diligently contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP shall have been set aside on its
books.

     

    SECTION
6.11  Pension and Welfare
Plans.  During the twelve-consecutive-month period prior to the
Closing Date and prior to the date of any Borrowing hereunder, no steps have
been taken to terminate any Pension Plan, and no contribution failure has
occurred with respect to any Pension Plan sufficient to give rise to a Lien
under Section 302(f) of ERISA.  No condition exists or event or
transaction has occurred with respect to any Pension Plan which reasonably would
be expected to result in the incurrence by the Borrower or any member of the
Controlled Group of any material liability, fine or penalty.  Neither
the Borrower nor any member of the Controlled Group has any contingent liability
with respect to any post-retirement benefit under a Welfare Plan, other than
liability for continuation coverage described in Part 6 of Title I of
ERISA.

     

    SECTION
6.12  Environmental
Warranties.

     

    (a) All
facilities and property (including underlying groundwater) owned or leased by
the Borrower or any of its  Subsidiaries have been, and continue to
be, owned or leased by the Borrower and its Subsidiaries in material compliance
with all applicable Environmental Laws.

     

    (b)           There
have been no past (which have not been remedied or resolved), and there are no
pending or, to the best knowledge of the Borrower, threatened:

     

    (i)  claims,
complaints, notices or requests for information received by the Borrower or any
of its Subsidiaries with respect to any alleged material violation of any
Environmental Law, or

     

    
      
        
        

      

      
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    (ii)  complaints,
notices or inquiries to the Borrower or any of its  Subsidiaries
regarding potential material liability under any Environmental Law.

     

    (c)           There
have been no Releases of Hazardous Materials at, on or under any property now or
previously owned or leased by the Borrower or any of its  Subsidiaries
that, singly or in the aggregate, have, or would reasonably be expected to have,
a Material Adverse Effect.

     

    (d)           The
Borrower  and its Subsidiaries have been issued and are in material
compliance with all material permits, certificates, approvals, licenses and
other material authorizations relating to environmental matters and necessary or
desirable for their businesses.

     

    (e)           No
property now or previously owned or leased by the Borrower or any of
its  Subsidiaries is listed or proposed for listing (with respect to
owned property only) on the National Priorities List pursuant to CERCLA, on the
CERCLIS or on any similar state list of sites requiring investigation or
clean-up.

     

    (f)           There
are no underground storage tanks, active or abandoned, including petroleum
storage tanks, on or under any property now or previously owned or leased by the
Borrower or any of its Subsidiaries.

     

    (g)           Neither
the Borrower nor any of its Subsidiaries has directly transported or directly
arranged for the transportation of any Hazardous Material to any location which
is listed or proposed for listing on the National Priorities List pursuant to
CERCLA, on the CERCLIS or on any similar state list or which is the subject of
federal, state or local enforcement actions or other investigations which
reasonably would be expected to lead to material claims against the Borrower or
such Subsidiary thereof for any remedial work, damage to natural resources or
personal injury, including claims under CERCLA.

     

    (h)           To
the best of the Borrower’s knowledge after due inquiry, there are no
polychlorinated biphenyls or friable asbestos present at any property now or
previously owned or leased by the Borrower or any of its
Subsidiaries.

     

    (i)           No
conditions exist at, on or under any property now or previously owned or leased
by the Borrower or any of its Subsidiaries which, with the passage of time, or
the giving of notice or both, reasonably would be expected to give rise to any
material liability under any Environmental Law.

     

    SECTION
6.13  Regulations T, U and
X.  Neither the Borrower nor any of its Subsidiaries is engaged
in the business of extending credit for the purpose of purchasing or carrying
margin stock, and no proceeds of any Loans or any Letter of Credit will be used
for a purpose which violates, or would be inconsistent with, F.R.S. Board
Regulation U or X.  Terms for which meanings are provided in F.R.S.
Board Regulation T, U or X or any regulations substituted therefor, as from time
to time in effect, are used in this Section with such meanings.

     

    
      
        
        

      

      
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    SECTION
6.14  Accuracy of
Information.  All factual information heretofore or
contemporaneously furnished by or on behalf of  any Credit Party in
writing to the Agent or any Lender for purposes of or in connection with this
Agreement or any transaction contemplated hereby is, and all other such factual
information hereafter furnished by or on behalf of any Credit Party to the Agent
or any Lender will be, true and accurate in every material respect on the date
as of which such information is dated or certified and as of the date of
execution and delivery of this Agreement by the Agent and such Lender, and such
information is not, or shall not be, as the case may be, incomplete by omitting
to state any material fact necessary to make such information not
misleading.

     

    SECTION
6.15  Solvency.  As
of the Closing Date, after giving effect to the consummation of the transaction
contemplated by the Loan Documents and the payment of all fees, costs and
expenses payable by the Borrower with respect to the transactions contemplated
by the Loan Documents, the Borrower and its Subsidiaries are Solvent on a
consolidated basis.

     

    SECTION
6.16  Collateral
Documents.

     

    (a)  Subject
to the provisions of clause (b) below with respect to the requirement of the
Agent to maintain possession as the Pledged Collateral, the provisions of each
of the Collateral Documents are effective to create in favor of the Agent for
the benefit of the Lenders and the Agent, a legal, valid and enforceable first
priority security interest in all right, title and interest of each Credit Party
in the Collateral described therein; and financing statements have been filed in
the offices in all of the jurisdictions listed in the schedule to the Guarantee
and Collateral Agreement, and each Intellectual Property Assignment has been
filed in the U.S. Patent and Trademark Office and the U.S. Copyright
Office.

     

    (b)           The
provisions of the Guarantee and Collateral Agreement are effective to create, in
favor of the Agent for the benefit of the Lenders and the Agent, a legal, valid
and enforceable first priority security interest in all of the Collateral
described therein; and the Pledged Collateral was delivered to the Agent or its
nominee in accordance with the terms thereof.  The Lien on the Pledged
Collateral granted pursuant to the Guarantee and Collateral Agreement
constitutes a perfected, first priority security interest in all right, title
and interest of each applicable Credit Party in the Pledged Collateral described
therein, prior and superior to all other Liens and interests, provided the Agent
maintains possession of the Pledged Collateral for the term of the Guarantee and
Collateral Agreement.

     

    (c)           All
representations and warranties of each Credit Party contained in the Collateral
Documents are true and correct as of the date on which made, except to the
extent such representations pertain to a prior date, in which case such
representations and warranties are true and correct as of such prior
date.

     

    SECTION
6.17  Indebtedness.  Attached
hereto as Schedule
6.17 is a complete and correct list of all Indebtedness of the Borrower
and its Subsidiaries outstanding on the Closing Date, showing the aggregate
principal amount which was outstanding as of July 31, 2009.  The
Borrower has delivered or caused to be delivered to the Agent a true and
complete copy of each instrument evidencing any Indebtedness listed on Schedule 6.17 and of
each document pursuant to which any of such Indebtedness was
issued.

     

    
      
        
        

      

      
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    SECTION
6.18  Other
Agreements/Program Eligibility.  Neither the Borrower nor any
of its Subsidiaries (and to the knowledge of the Borrower's officers, no
Minority ASC Entity) is in default in the performance, observance or fulfillment
of any obligation, covenant or condition contained in or applicable with respect
to any Medicaid Provider Agreement, Medicare Provider Agreement, other agreement
or instrument to which the Borrower or a Subsidiary is a party with a third
party payor, or participation in Medicare, Medicaid or any other third-party
payor program in which the Borrower or a Subsidiary participates, which default,
if not remedied within any applicable grace period, reasonably would be expected
to (A) in the case of any Medicaid Provider Agreement or third party payor
agreement other than a national third party payor agreement (i) result in
the revocation, termination, cancellation, suspension or non-renewal of Medicaid
Certification, any similar certification of a material third party not involved
in a national third party payor agreement, if any, a Medicaid Provider Agreement
or agreement with a third party payor which is not party to a national third
party payor program with the Borrower or any Subsidiary of the Borrower, or
eligibility to participate, directly or indirectly, in Medicaid or material
third party payor programs which are not national third party payor programs of
the Borrower and its Subsidiaries, and (ii) have a Material Adverse Effect,
or (B) in the case of any Medicare Provider Agreement or material national third
party payor agreement, (i) result in the revocation, termination,
cancellation, suspension or non-renewal of Medicare Certification, any similar
certification of a material national third party payor contract or agreement, a
Medicare Provider Agreement or material national agreement with a third party
payor, or eligibility to participate, directly or indirectly, in Medicare or
material national third party payor programs and (ii) have a Material
Adverse Effect.

     

    SECTION
6.19  Reimbursement from Third
Party Payors.  The accounts receivable of the Borrower and each
of its Subsidiaries (and to the knowledge of the Borrower's officers, each
Minority ASC Entity) have been and will continue to be adjusted reasonably to
reflect reimbursement experiences with and policies of third party payors such
as Medicare, Medicaid, Blue Cross/Blue Shield, private insurance companies,
health maintenance organizations, preferred provider organizations, alternative
delivery systems, managed care systems, government contracting agencies and
other third party payors.  In particular, accounts receivable relating
to such third party payors do not and shall not exceed amounts any obligee is
entitled to receive under any capitation arrangement, fee schedule, discount
formula, cost-based reimbursement or other adjustment or limitation to its usual
charges.

     

    SECTION
6.20  Legal
Compliance.  The Borrower and each of its Subsidiaries (and to
the knowledge of the Borrower's officers, each Minority ASC Entity) have duly
complied and are in compliance with all Fraud and Abuse Laws; all applicable
state laws and regulations regarding certificate of need and state licensure;
HIPAA and state laws and regulations regarding privacy; and all other
requirements, restrictions and prohibitions of law, including, without
limitation, any statute, law, treaty, rule, regulation, manual, guideline, rule
of professional conduct, or order, decree, writ, injunction or other
determination of an arbitrator, court or other governmental authority, in each
case applicable to or binding upon such Person or any of its property or to
which such person or its property is subject and having the force of law, other
than those noncompliance with which would not reasonably be expected to have a
Material Adverse Effect.

     

    
      
        
        

      

      
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    SECTION
6.21  Licensing and
Accreditation.  Each of the Borrower and each of its
Subsidiaries (and to the knowledge of the Borrower's officers, each Minority ASC
Entity) has, to the extent applicable (A), (i) obtained (or been duly assigned)
all required certificates of need (other than as described on Schedule 6.21) or
determinations of need, as required by the relevant state governmental
authority, for the acquisition, construction, expansion of, investment in or
operation of its businesses or facilities as currently operated;
(ii) obtained and maintains in good standing all required licenses; (iii)
to the extent customary in the industry and geographic market in which it is
engaged, obtained and maintains accreditation from all generally recognized
accrediting agencies; (iv) obtained and maintains Medicaid Certification,
Medicare Certification and any similar third party payor certification, if any;
and (v) entered into and maintains in good standing, if applicable, its Medicaid
Provider Agreement and its agreements with third party payors, the failure of
any of which has, or could reasonably be expected to have, a Material Adverse
Effect; and (B), (i) obtained and maintains Medicare Certification where the
failure to obtain or maintain could reasonably be expected to have a Material
Adverse Effect and (ii) entered into and maintains in good standing its Medicare
Provider Agreement where the failure to enter into and maintain has, or could
reasonably be expected to have a Material Adverse Effect.

     

    SECTION
6.22  Insurance.  Except
as set forth on Schedule 6.22,
Borrower and each other Credit Party and their respective properties are insured
with financially sound and reputable insurance companies which are not
Affiliates of 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 Borrower or such other
Credit  Party operates.

     

    SECTION
6.23  Intellectual
Property.  Borrower and each other Credit Party owns and
possesses or has a license or other right to use all patents, patent rights,
trademarks, trademark rights, trade names, trade name rights, service marks,
service mark rights and copyrights as are necessary for the conduct of the
business of Borrower and the other Credit Parties, without any infringement upon
rights of others which could reasonably be expected to have a Material Adverse
Effect.

     

    SECTION
6.24  Subordination
Provisions.  The (A) subordination provisions contained in all
notes, debentures and other instruments entered into or issued in respect of
Subordinated Debt are enforceable against the issuer of the respective security
and the holders thereof in accordance with their respective terms, and the Loans
and all other Obligations are within the definitions of “Senior Indebtedness”,
or other comparable definition, included in such provisions and (B)
subordination provisions contained in the Convertible Note Documents are
enforceable against the holders thereof and the Loans and all other Obligations
are “Senior Debt” (or other comparable definition) as defined in the Convertible
Note Documents and there is no Indebtedness other than the Loans and Obligations
which is “Designated Senior Indebtedness” (or other comparable definition) of
the Borrower outstanding.

     

    SECTION
6.25  RICO.  None
of the Borrower nor any of its Subsidiaries is engaged in or has engaged in any
course of conduct that reasonably would be expected to subject any of their
respective properties to any Lien, seizure or other forfeiture under any
criminal law, racketeer influenced and corrupt organizations law, civil or
criminal, or other similar laws.

     

    
      
        
        

      

      
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    SECTION
6.26  No
Default.  (A) No Event of Default or Default exists or would
result from the incurrence by any Credit Party of any Indebtedness hereunder or
under any other Loan Document and (B) no Default (as defined in the Convertible
Note Documents) currently exists.

     

    SECTION
6.27  Full
Disclosure.  No information contained in this Agreement, any of
the other Loan Documents, financial statements or other reports from time to
time delivered hereunder or any written statement furnished by or on behalf of
any Credit Party to Agent or any Lender pursuant to the terms of this Agreement
contains or will contain any untrue statement of a material fact or omits or
will omit to state a material fact necessary to make the statements contained
herein or therein not misleading in light of the circumstances under which they
were made.  The Liens granted to Agent, on behalf of itself and
Lenders, pursuant to the Collateral Documents are currently fully perfected
first priority Liens in and to the Collateral described therein, subject, as to
priority, only to Permitted Liens.

     

    SECTION
6.28  Capitalization.  All
issued and outstanding equity securities of the Credit Parties (other than
Borrower) are duly authorized and validly issued, fully paid, non-assessable,
and free and clear of all Liens other than those in favor of Agent, and such
securities were issued in compliance with all applicable state and federal laws
concerning the issuance of securities.  Schedule 6.28 sets forth the
authorized equity securities of each Credit Party as of the Closing
Date.  As of the Closing Date, except as set forth on Schedule 6.28, there
are no pre-emptive or other outstanding rights, options, warrants, conversion
rights or other similar agreements or understandings for the purchase or
acquisition of any equity interests of Borrower or any other Credit
Party.

     

    ARTICLE
VII

     

    COVENANTS

     

    SECTION
7.1  Affirmative
Covenants.  The Borrower agrees with the Agent and each Lender
that, until all Revolving Commitments have terminated and all Obligations have
been paid and performed in full, each Credit Party will perform the obligations
set forth in this Section 7.1
applicable to such Credit Party.

     

    SECTION
7.1.1  Financial Information,
Reports, Notices, etc.  The Borrower will furnish, or will
cause to be furnished, to each Lender and the Agent copies of the following
financial statements, reports, notices and information:

     

    (a)           as
soon as available and in any event within 45 days (i) after the end of each of
the first three Fiscal Quarters of each Fiscal Year of the Borrower, to the
extent prepared to comply with SEC requirements, a copy of the SEC Form 10-Qs
filed by the Borrower with the SEC for each such quarterly period, or if no such
Form 10-Q was so filed by the Borrower with respect to any such quarterly
period, consolidated balance sheets of the Borrower and its Subsidiaries as of
the end of such Fiscal Quarter and consolidated statements of earnings and cash
flow of the Borrower and its Subsidiaries for such Fiscal Quarter and for the
period commencing at the end of the previous Fiscal Year and ending with the end
of such Fiscal Quarter, certified by the Authorized Officer of the Borrower and
(ii) after the end of each Fiscal Year of the Borrower, a summary profit and
loss statement of each ASC Subsidiary which shows actual results compared to
budget and prior year;


    
      
         


      

      
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    (b)           as
soon as available and in any event within 90 days after the end of each Fiscal
Year of the Borrower, to the extent prepared to comply with SEC requirements, a
copy of the SEC Form 10-K filed by the Borrower with the SEC for such Fiscal
Year, or, if no such Form 10-K was so filed by the Borrower for such Fiscal
Year, a copy of the annual audit report for such Fiscal Year for the Borrower
and its Subsidiaries including therein consolidated balance sheets of the
Borrower and its Subsidiaries as of the end of such Fiscal Year and consolidated
statements of earnings and cash flow of  the Borrower  and
its Subsidiaries for such Fiscal Year, certified (without any Impermissible
Qualification) by Borrower’s independent public accountants;

     

    (c)           within
five business days of becoming available, a copy of any management letter (or
other correspondence from Borrower's independent public accountants reasonably
satisfactory to Agent) delivered to Borrower by Borrower’s independent public
accountants in connection with the audit of Borrower’s financial statements for
such previous Fiscal Year;

     

    (d)           as
soon as available and in any event within 45 days after the end of each of the
first three Fiscal Quarters during a Fiscal Year, and within 90 days after the
end of each Fiscal Year, a certificate, executed by the chief financial officer
and/or principal accounting officer of the Borrower, showing (in reasonable
detail and with appropriate calculations and computations in all respects
satisfactory to the Agent) compliance with the financial covenants set forth in
Section
7.2.4.;

     

    (e)           as
soon as practicable, and in any event not later than 30 days following the
commencement of each Fiscal Year, consolidated financial projections for
Borrower and its Subsidiaries for such Fiscal Year prepared in a manner
consistent with the projections delivered by Borrower to Lenders prior to the
Closing Date or otherwise in a manner reasonably satisfactory to Agent.

     

    (f)           as
soon as possible and in any event within three Business Days after the
occurrence of each Default, a statement of the chief financial officer and/or
principal accounting officer of the Borrower setting forth details of such
Default and the action which the Borrower has taken and proposes to take with
respect thereto;

     

    (g)           as
soon as possible and in any event within three Business Days after (x) the
occurrence of any adverse development with respect to any litigation, action,
proceeding, or labor controversy described in Section 6.7 or (y)
the commencement of any labor controversy, litigation, action, proceeding of the
type described in Section 6.7, any of
which reasonably would be expected to have a Material Adverse Effect, notice
thereof and copies of all documentation relating thereto;

     

    (h)           promptly,
but not later than five days after the date of filing with the SEC, copies of
all financial statements and reports that Borrower sends to its shareholders,
and copies of all financial statements and regular, periodical or special
reports (including Forms 10-K and 10-Q) that Borrower or any of its Subsidiaries
may make to, or file with, the SEC (including, without limitation, pursuant to
Section
7.2.9(b)) or any national securities exchange;

     

    
      
         


      

      
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    (i)           immediately
upon becoming aware of the institution of any steps by the Borrower or any other
Person to terminate any Pension Plan, or the failure to make a required
contribution to any Pension Plan if such failure is sufficient to give rise to a
Lien under Section 302(f) of ERISA, or the taking of any action with respect to
a Pension Plan which reasonably would be expected to result in the requirement
that the Borrower furnish a bond or other security to the PBGC or such Pension
Plan, or the occurrence of any event with respect to any Pension Plan which
reasonably would be expected to result in the incurrence by the Borrower of any
material liability, fine or penalty, or any material increase in the contingent
liability of the Borrower with respect to any post-retirement Welfare Plan
benefit, notice thereof and copies of all documentation relating
thereto;

     

    (j)           immediately
upon becoming aware of any dispute, litigation or other proceedings being
instituted against any Credit Party to suspend, revoke or terminate any Medicaid
Provider Agreement, Medicaid Certification, Medicare Provider
Agreement,  Medicare Certification, eligibility to participate in
Medicare or Medicaid, or agreement with or certification by, if any, or
eligibility to participate in a program of a third party payor, or any subpoena
or investigation by a governmental authority, including without limitation CMS,
the Office of Inspector General of the Department of Health and Human Services,
and the Department of Justice, which suspension, revocation, termination or the
results of such subpoena or investigation reasonably would be expected to have a
Material Adverse Effect, promptly deliver to the Agent written notice thereof
stating the nature and status of such litigation, dispute, proceeding, levy,
execution, subpoena or investigation or other process; or any proceeding
instituted against any Credit Party, or any of their respective officers,
directors, members or managers to exclude any of them from participation in any
Federal or State healthcare program; and

     

    (k)           such
other information respecting the condition or operations, financial or
otherwise, of the Borrower or any of its Subsidiaries as any Lender through the
Agent may from time to time reasonably request.  To the extent that
any information to be disclosed hereunder is “protected health information” as
defined under HIPAA, the Borrower and its Subsidiaries shall disclose such
information pursuant to the Business Associate Agreement between it and the
Lenders to which it is a party and under its “health care operations” (as
defined in HIPAA) and no Credit Party that is a “covered entity" under HIPAA
shall by contract prohibit disclosure of its protected Health Information to
Lenders that is not otherwise prohibited by HIPAA.

     

    SECTION
7.1.2  Compliance with Laws,
etc.  The Borrower will, and will cause each of its
Subsidiaries to, comply in all material respects with all Fraud and Abuse Laws;
all applicable laws, rules, regulations and orders (including, without
limitation, Medicare Regulations, Medicaid Regulations and the rules and
regulations established by any third party payor), and all applicable corporate
laws including without limitation:


    
      
         


      

      
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    (i)         
  the maintenance and preservation of its corporate existence and
qualification as a foreign corporation, except to the extent no longer necessary
within the reasonable business judgment of the Borrower or such Subsidiary, as
applicable, or if otherwise terminated pursuant to a transaction consummated in
accordance with the provisions of Section 7.2.8;
and

     

    (ii)         
 the payment, before the same become delinquent, of all taxes, assessments
and governmental charges imposed upon it or upon its property except to the
extent being diligently contested in good faith by appropriate proceedings and
for which adequate reserves in accordance with GAAP shall have been set aside on
its books.

     

    (iii)          compliance
in all material respects with all federal and state laws and regulations
applicable to health care including, all Fraud and Abuse Laws, all laws relating
to licensure, certificate of need, state privacy laws and HIPAA.

     

    (b)    the Borrower
will further use its commercially reasonable efforts, subject to applicable laws
to assure the compliance in all material respects by all Minority ASC Entities
with all applicable laws, including, but not limited to all federal and state
laws and regulations applicable to health care including, all Fraud and Abuse
Laws, all laws relating to licensure, certificate of need and
HIPAA.

     

    SECTION
7.1.3  Maintenance of
Properties.  The Borrower will, and will cause each of its
Subsidiaries to, maintain, preserve, protect and keep its properties in good
repair, working order and condition, and make necessary and proper repairs,
renewals and replacements so that its business carried on in connection
therewith may be properly conducted at all times unless the Borrower determines
in good faith that the continued maintenance of any of its properties is no
longer economically desirable.

     

    SECTION
7.1.4  Insurance.

     

    (a)    Schedule 7.1.4 sets
forth as of the date of this Agreement a true and complete listing of all
insurance maintained by the Borrower and each of its Subsidiaries and each
Minority ASC Entity.   The Borrower will, and will cause each of
its Subsidiaries to, maintain or cause to be maintained with responsible
insurance companies insurance with respect to its properties and business
(including professional liability insurance, comprehensive liability insurance
and business interruption insurance) against at least such casualties and
contingencies and of at least such types and in at least such amounts as are
commercially reasonable which insurance shall name the Agent as loss payee and
an additional insured, and will, upon request of the Agent, furnish to each
Lender at reasonable intervals (provided that, so long as no Event of Default
shall have occurred and be continuing, no such certification shall be required
to be delivered more than once in any Fiscal Year) a certificate of an
Authorized Officer of the Borrower setting forth the nature and extent of all
insurance maintained by the Borrower and its Subsidiaries in accordance with
this Section.

     

    (b)    The Borrower will
use commercially reasonable efforts to cause each Practice to maintain medical
malpractice insurance at commercially reasonable levels.


    
      
         


      

      
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    SECTION
7.1.5  Books
and Records.  The Borrower will, and will cause each of its
Subsidiaries to, keep books and records which accurately reflect all of its
business affairs and transactions and permit the Agent and each Lender or any of
their respective representatives, at reasonable times and intervals, upon, so
long as no Event of Default shall exist and be continuing, reasonable prior
notice delivered during regular business hours, to visit all of its offices, to
discuss its financial matters with its officers and independent public
accountant (and the Borrower hereby authorizes such independent public
accountant to discuss the Borrower’s financial matters with each Lender or its
representatives, provided, so long as no Event of Default shall exist or be
continuing, a representative of the Borrower is present) and to examine (and, at
the expense of the Borrower, photocopy extracts from) any of its books or other
corporate records.  The Borrower shall pay any fees of such
independent public accountant incurred in connection with the Agent’s or any
Lender’s exercise of its rights pursuant to this Section provided, however, that
so long as no Event of Default shall exist and be continuing, the Borrower shall
not be liable for the fees and expenses of such independent public accountant
related to more than one visit during any Fiscal Year.  All visits
conducted pursuant to this Section 7.1.5 shall
be conducted in such a manner so as not to disrupt the business operations of
the applicable office.  All information obtained during any such visit
shall be subject to the provisions of Section
10.11.3.

     

    SECTION
7.1.6  Environmental
Covenant.  The Borrower will, and will cause each of its
Subsidiaries to:

     

    (a)      use
and operate all of its facilities and properties in material compliance with all
Environmental Laws, keep all necessary material permits, approvals,
certificates, licenses and other authorizations relating to environmental
matters in effect and remain in material compliance therewith, and handle all
Hazardous Materials in material compliance with all applicable Environmental
Laws;

     

    (b)      immediately
notify the Agent and provide copies upon receipt of all written material claims,
complaints, notices or inquiries relating to, the condition of its facilities
and properties or compliance with Environmental Laws, and shall promptly cure
and have dismissed with prejudice to the reasonable satisfaction of the Agent
any actions and proceedings relating to compliance with Environmental Laws;
and

     

    (c)       provide
such information and certifications which the Agent may reasonably request from
time to time to evidence compliance with this Section
7.1.6.

    


    SECTION
7.1.7  Changes to Certain
Agreements.  Without the prior written consent of the Required
Lenders, no Credit Party shall make any amendment, supplement or modification to
any agreements evidencing Subordinated Debt; provided, however, that any such
amendment which conforms with applicable law in all material respects and is not
materially adverse to the interests of the Lenders as Lenders under the Loan
Documents shall be permitted without any consent.  Copies of such
amended agreements shall be delivered promptly to the Agent by the
Borrower.


    
      
         


      

      
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    SECTION
7.1.8  Governmental
Licenses.  The Borrower will, and will cause each of its
Subsidiaries to, obtain and maintain all material licenses, certificates of
need, other applicable permits, agreements, certifications and approvals of all
applicable governmental authorities as are required for the conduct of its
business as currently conducted and herein contemplated, Medicaid Certifications
and Medicaid Provider Agreements and Medicare Certifications and Medicare
Provider Agreements and certifications of third party payors the failure of
which has, or could reasonably be expected to have, a Material Adverse
Effect.

     

    SECTION
7.1.9  Covenants Extending to Other
Persons.  The Borrower will, and will cause each of its
Subsidiaries to, use its commercially reasonable efforts, in accordance with
applicable law (which shall include, without limitation, the exercise of
contractual rights and remedies available to the Borrower and its Subsidiaries)
to cause each Non-Wholly Owned ASC Subsidiary, Minority ASC Entity, Practice or
Provider, as appropriate to do with respect to itself, its business and its
assets, each of the things required of a Credit Party in Sections 7.1.2
through 7.1.8
inclusive, subject, however, in the case of Section 7.1.5 to any
laws, rules or regulations concerning the confidentiality of medical
records.

     

    SECTION
7.1.10  Solvency.  The
Borrower and its Subsidiaries on a consolidated basis shall at all times be
Solvent.

     

    SECTION
7.1.11  Further
Assurances.

     

    (a)    The Borrower
shall ensure that all written information, exhibits and reports furnished to the
Agent or the Lenders do not and will not contain any untrue statement of a
material fact and do not and will not omit to state any material fact or any
fact necessary to make the statements contained therein not misleading in light
of the circumstances in which made, and will promptly disclose to the Agent and
the Lenders and correct any defect or error that may be discovered therein or in
any Loan Document or in the execution, acknowledgment or recordation
thereof.

    


    (b)           Promptly
upon request of the Agent or the Required Lenders, the Borrower shall (and shall
cause any of its Subsidiaries to) execute, acknowledge, deliver, record,
re-record, file, re-file, register and re-register, any and all such further
acts, deeds, conveyances, security agreements, mortgages, assignments, estoppel
certificates, financing statements and continuations thereof, termination
statements, notices of assignment, transfers, certificates, assurances and other
instruments the Agent or such Lenders, as the case may be, may reasonably
require from time to time in order (i) to carry out more effectively the
purposes of this Agreement or any other Loan Document, (ii) to subject any of
the properties, rights or interests covered by any of the Collateral Documents
to the Liens intended to be created by any of the Collateral Documents, (iii) to
perfect and maintain the validity, effectiveness and priority of any of the
Collateral Documents and the Liens intended to be created thereby, and (iv) to
better assure, convey, grant, assign, transfer, preserve, protect and confirm to
the Agent and the Lenders the rights granted or now or hereafter intended to be
granted to the Agent and the Lenders under any Loan Document or under any other
document executed in connection therewith.



    
      
         


      

      
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    SECTION
7.1.12  New
Subsidiaries.  Within 30 Business Days after the date of the
acquisition or creation of any Subsidiary by the Borrower or a Subsidiary of the
Borrower or in the case of a Minority ASC Entity or Non-Wholly Owned ASC
Subsidiary which becomes a Wholly-Owned Subsidiary, such Person will cause to be
delivered to the Agent for the benefit of the Lenders each of the
following:

     

    (i)  in
the case of a Subsidiary other than a Non-Wholly-Owned ASC Subsidiary, a joinder
to the Guarantee and Collateral Agreement;

     

    (ii)  in
the case of a Subsidiary other than a Non-Wholly-Owned ASC Subsidiary, if such
Subsidiary is a corporation, a limited liability company or a partnership that
has issued certificates evidencing ownership of interests therein, the capital
stock or, if applicable, certificates of ownership of such limited liability
company or partnership, as the case may be, of such Person pertaining thereto,
together with duly executed stock powers or powers of assignment in blank
affixed thereto;

     

    (iii)  in
the case of a Subsidiary other than a Non-Wholly-Owned ASC Subsidiary, if such
Subsidiary is a limited liability company or a partnership not described in
clause (ii) immediately above, an acknowledgment of security interest of such
limited liability company or partnership, as the case may be, with respect to
the registration of the Lien on membership or partnership interests in such
Subsidiary, as the case may be, of such Person which acknowledgment shall be in
form and substance satisfactory to the Agent;

     

    (iv)  a
supplement to the appropriate schedules attached to the Collateral Documents to
reflect the acquisition by the Borrower or, a Subsidiary (other than a
Non-Wholly-Owned ASC Subsidiary) of the Borrower, of such Subsidiary, certified
as true, correct and complete by the Authorized Officer of the relevant Credit
Party (provided that the failure to deliver such supplement shall not impair the
rights conferred under the Collateral Documents in after acquired Collateral and
Pledged Collateral);

     

    (v)  to
the extent requested by Agent in its reasonable discretion, an opinion or
opinions of counsel to the Borrower and such Subsidiary (other than a
Non-Wholly-Owned ASC Subsidiary), dated as of the date of delivery of any of the
documents provided in the foregoing clause (i) and addressed to the Agent and
the Lenders, in form and substance reasonably acceptable to the Agent (which
opinion may include assumptions and qualifications of similar effect to those
contained in the opinions of counsel delivered pursuant to Section 5.1.7), to
the effect that:

     

    (A)  such
Subsidiary is duly organized, validly existing and in good standing in the
jurisdiction of its organization, has the requisite power and authority to own
its properties and conduct its business as then owned and then proposed to be
conducted and is duly qualified to transact business and is in good standing in
each jurisdiction listed on the schedule attached to such opinion;

     

    (B)  the
execution, delivery and performance of the Guarantee and Collateral Agreement,
described in clause (i) of this Section 7.1.12, have
been duly authorized by all requisite action (including any required
shareholder, member or partner approval), such agreement has been duly executed
and delivered and constitutes the valid and binding obligation of such
Subsidiary, enforceable against such Subsidiary in accordance with its terms,
except to the extent such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
creditors’ rights and remedies generally, or to general principles of equity,
whether enforcement thereof is considered in a court of law or equity;
and


    
      
         


      

      
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    (C)  all
financing statements, instruments and documents are in a form which is
sufficient to create a security interest in favor of the Agent in the Pledged
Collateral and the Collateral, as the case may be;

     

    (vi)  in
the case of any Non-Wholly Owned ASC Subsidiary or Minority ASC Entity that has
issued certificates evidencing ownership of interests therein, the capital stock
or, if applicable, certificates of ownership of such limited liability company
or partnership, as the case may be, of such Person owned by the Borrower or any
Subsidiary of the Borrower pertaining thereto, together with duly executed stock
powers or powers of assignment in blank affixed thereto;

     

    (vii)
current copies of the charter documents, including, limited liability agreements
and certificates of formation, partnership agreements and certificates of
limited partnership, if applicable, and bylaws of such Subsidiary, minutes of
duly called and conducted meetings (or duly effected consent actions) of the
Board of Directors, members, partners, or appropriate committees thereof (and,
if required by such charter documents, bylaws or by applicable laws, of the
shareholders, members or partners) of such Subsidiary authorizing the actions
and the execution and delivery of documents described in this Section 7.1.12 and
evidence satisfactory to the Agent (confirmation of the receipt of which will be
provided by the Agent to the Lenders) that such Subsidiary is Solvent as of such
date and after giving effect to the execution of any of the documents required
by clause (i) above.

     

    SECTION
7.1.13  Deposit
Accounts.  As soon as possible and, in any event, not later
than thirty (30) days following the Closing Date, the Credit Parties shall have
entered into tri-party blocked account agreements with respect to the accounts
listed on Schedule
6 of the Guarantee and Collateral Agreement, in form and substance
reasonably acceptable to Agent.

     

    SECTION
7.2  Negative
Covenants.  The Borrower agrees with the Agent and each Lender
that, until all Revolving Commitments have terminated and all Obligations have
been paid and performed in full, each Credit Party will perform the obligations
set forth in this Section
7.2.

     

    SECTION
7.2.1  Business
Activities.  The Borrower will not, and will not permit any of
its Subsidiaries, including, without limitation, any New Subsidiary, to, engage
in any business activity, except in (a) the fields of enterprise that fall
within the definition of “Target” herein; and (b) reasonable extensions of the
businesses being engaged in by the Borrower and its Subsidiaries on the Closing
Date.


    
      
         


      

      
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    SECTION
7.2.2  Indebtedness.  The
Borrower will not, and will not permit any of its Subsidiaries to, create,
incur, assume or suffer to exist or otherwise become or be liable in respect of
any Indebtedness, other than, without duplication, the following:

     

    (a)           Indebtedness
in respect of the Loans and other Obligations;

     

    (b)           Indebtedness,
including Subordinated Debt, existing as of the Closing Date which is identified
in Part B of Schedule
6.17, and refinancings thereof or amendments or modifications that do not
have the effect of increasing the principal amount thereof or changing the
amortization thereof (other than to extend the same) and that are otherwise on
terms and conditions no less favorable to any Credit Party, Agent or any Lender
in any material respect, as determined by Agent, than the terms of the
Indebtedness being refinanced, amended or modified;

     

    (c)           Indebtedness
in respect of Liens to the extent permitted in Section
7.2.3(b);

     

    (d)           unsecured
Indebtedness incurred in the ordinary course of business (including open
accounts extended by suppliers on normal trade terms in connection with
purchases of goods and services, but excluding Indebtedness incurred through the
borrowing of money or Contingent Liabilities);

     

    (e)           Indebtedness,
in respect of Capitalized Lease Liabilities, at any one time not to exceed in
the aggregate $5,000,000 less the amount of any Indebtedness which is
outstanding and permitted solely under subsection
7.2.3(b);

     

    (f)           Indebtedness
consisting of intercompany loans, guarantees and advances made by the Borrower
to any Credit Party or by such Credit Party to the Borrower or another Credit
Party (“Credit Party
Intercompany Loans”), provided that (i) if
requested by the Agent, the payor Credit Party shall have executed and delivered
to the payee Credit Party a demand note (the “Credit Party Intercompany
Note”) to evidence any such Credit Party Intercompany Loan, which Credit
Party Intercompany Note shall be in form and substance satisfactory to Agent
pledged to the Agent pursuant to the relevant Collateral Documents as additional
collateral security for the Obligations, (ii) the payee Credit Party shall
record all Credit Party Intercompany Loans on its books and records in a manner
satisfactory to Agent, and (iii) at the time any such Credit Party Intercompany
Loan is made by a payee Credit Party and after giving effect thereto, each of
the payee Credit Party and the payor Credit Party shall be Solvent;

     

    (g)           Subordinated
Debt of the Borrower issued to the seller of a Target in connection with a
Permitted Acquisition, such Indebtedness to be on terms and conditions
reasonably satisfactory to the Agent (the Agent hereby acknowledges and agrees
that the subordination provisions contained in the Subordinated Debt existing as
of the date hereof are satisfactory);

     

    (h)           Subordinated
Debt of the Borrower, such Subordinated Debt to mature no earlier than one year
after the Maturity Date and shall otherwise be on terms and
conditions  reasonably satisfactory to the Agent (the Agent hereby
acknowledges and agrees that the subordination provisions contained in the
Subordinated Debt existing as of the date hereof are
satisfactory);


    
      
         


      

      
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    (i)           Indebtedness
of the Borrower constituting unpaid minority interests to a Provider in
connection with a Permitted Acquisition, such Indebtedness to be on terms and
conditions reasonably satisfactory to the Agent;

     

    (j)           Indebtedness
of a Target which exists at the time such Target is the subject of a Permitted
Acquisition, which Indebtedness is assumed by the Credit Party which is a party
to such Permitted Acquisition and is otherwise permitted pursuant to this Section
7.2.2;

     

    (k)           Indebtedness
in an amount not to exceed $8,000,000 in the aggregate at any one time
outstanding and $2,000,000 to any individual Minority ASC Entity or Non-Wholly
Owned Subsidiary at any one time outstanding, in each case when aggregated with
amounts outstanding pursuant to clause (m) below,
consisting of intercompany loans and advances made by the Borrower or any
Subsidiary to any Minority ASC Entity or Non-Wholly Owned Subsidiary or by a
Minority ASC Entity or Non-Wholly Owned Subsidiary to the Borrower or any other
Subsidiary (“Non-Credit Party
Intercompany Loans”), provided that (i) the
payor shall have executed and delivered to the payee a note (the “Non-Credit Party Intercompany
Note”) to evidence any such Non-Credit Party Intercompany Loan, which
Non-Credit Party Intercompany Note shall be in form and substance satisfactory
to Agent pledged to the Agent pursuant to the relevant Collateral Documents as
additional collateral security for the Obligations, (ii) the payee shall record
all Non-Credit Party Intercompany Loans on its books and records in a manner
satisfactory to Agent, and (iii) at the time any such Non-Credit Party
Intercompany Loan is made by a payee and after giving effect thereto, each of
the payee and the payor shall be Solvent;

     

    (l)           Indebtedness
consisting of Non-Credit Party Intercompany Loans in excess of the amounts
permitted by clauses
(k) or (m) of this Section 7.2.2, but in
any event not to exceed $10,000,000 in the aggregate when aggregated with
amounts outstanding and permitted by clauses (k) or (m) of
this Section
7.2.2; provided, that any
such Non-Credit Party Intercompany Note permitted pursuant to this clause (l) shall be
secured by a perfected first priority lien on the assets of such Minority ASC
Entity or Non-Wholly Owned Subsidiary, as applicable, the scope of which Lien
shall be satisfactory to the Agent and which lien shall be assigned to the
Agent;

     

    (m)    Indebtedness
consisting of guarantees by the Borrower or any Credit Party of the obligations
of any Non-Wholly Owned Subsidiary or Minority ASC Entity, in any event not to
exceed $10,000,000 in the aggregate at any one time outstanding and
$3,000,000 to any
individual Non-Wholly Owned Subsidiary or Minority ASC Entity, in each case when
aggregated with Indebtedness outstanding under clause (k)
above;

     

     (n)    Indebtedness
of Borrower or any ASC Subsidiary owing to the seller of the equity interests of
a Non-Wholly-Owned ASC Subsidiary or Minority ASC Subsidiary of the Borrower as
part of the purchase price with respect to an ASC Subsidiary Capital Event
otherwise permitted hereunder; and


    
      
         


      

      
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    (o)
unsecured Indebtedness of Borrower evidenced by the Convertible Notes as in
effect on the date of their issuance or as permitted to be amended pursuant to
the terms hereof; provided, that: the aggregate
principal amount of all such Indebtedness evidenced by the Convertible Notes
shall not exceed $75,000,000 less the aggregate amount of all repayments or
redemptions, whether optional or mandatory, in respect thereof, plus interest
thereon calculated in the manner provided for in the Convertible Note Documents
as in effect on the date of the issuance thereof; provided, further that no
Subsidiary of the Borrower or other Person in which the Borrower has any direct
or indirect equity interest shall have any Contingent Liability with respect to
or shall otherwise guarantee or pledge its assets to secure any Indebtedness
under the Convertible Notes;

     

    provided, however, that no
Indebtedness otherwise permitted by clauses (c) through
(n) shall be
permitted if, after giving effect to the incurrence thereof, any Default shall
have occurred and be continuing.

     

    SECTION
7.2.3  Liens.  The
Borrower will not, and will not permit any of its Subsidiaries to, create,
incur, assume or suffer to exist any Lien upon any of its property, revenues or
assets, whether now owned or hereafter acquired, except:

     

    (a)           Liens
securing payment of the Obligations, granted pursuant to any Loan
Document;

     

    (b)           purchase
money security interests, in addition to, and not in limitation of, the
Capitalized Lease Liabilities described in clause (j) hereof, on any property
acquired or held by any Subsidiary in the ordinary course of business, securing
Indebtedness incurred or assumed for the purpose of financing all or any part of
the cost of acquiring such property; provided that (i) any such
Lien attaches to such property concurrently with or within 20 days after the
acquisition thereof, (ii) such Lien attaches solely to the property so acquired
in such transaction, and (iii) the principal amount of the Indebtedness which is
outstanding and which is secured by any and all such purchase money security
interests shall not at any time exceed $5,000,000 less the amount of
Indebtedness outstanding and permitted solely under subsection
7.2.2(e);

     

    (c)           Liens
for taxes, assessments or other governmental charges or levies not at the time
delinquent or thereafter payable without penalty or being diligently contested
in good faith by appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its books;

     

    (d)           Liens
of carriers, warehousemen, mechanics, materialmen and landlords incurred in the
ordinary course of business for sums not overdue or being diligently contested
in good faith by appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its books;


    
      
         


      

      
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    (e)           Liens
(other than any Lien imposed by ERISA) incurred in the ordinary course of
business in connection with workmen’s compensation, unemployment insurance or
other forms of governmental insurance or benefits, or to secure performance of
tenders, statutory obligations, leases and contracts (other than for borrowed
money) entered into in the ordinary course of business or to secure obligations
on surety or appeal bonds;

     

    (f)           judgment
Liens in existence less than 30 days after the entry thereof or with respect to
which execution has been stayed or the payment of which is bonded or covered in
full (subject to a customary deductible) by insurance maintained with
responsible insurance companies;

     

    (g)           Liens
in existence on the Closing Date and listed on Schedule 7.2.3, but
without giving effect to any extensions or renewals thereof; and

     

    (h)           easements,
rights-of-way, restrictions and other similar encumbrances incurred in the
ordinary course of business which, in the aggregate, do not materially detract
from the value of the property subject thereto or interfere with the ordinary
conduct of the business of the property of the Person which is subject
thereto;

     

    (i)       
    Liens in connection with Capitalized Lease Liabilities
in the amount and to the extent permitted by subsection
7.2.2(e);

     

    (j)          
 Liens on property leased by the Borrower or any Subsidiary or other
interest or title of the lessor under operating leases securing obligations of
the Borrower or such Subsidiary to the lessor under such leases;
and

     

    (k)           Liens
on property of a Target which exist at the time such Target becomes the subject
of a Permitted Acquisition to the extent such Liens are otherwise permitted
pursuant to this Section
7.2.3.

     

    SECTION
7.2.4  Financial
Condition.  The Borrower will not permit:

     

    (a)           its
Net Worth as of the last day of each Fiscal Quarter to be less than 75% of the
amount of its Net Worth existing on June 30, 2009, plus 50% of Net
Income (without giving effect to any losses) for each Fiscal Quarter occurring
after June 30, 2009, plus 50% of the net
proceeds from any equity issuance by the Borrower or any of its Subsidiaries
occurring since June 30, 2009, plus 50% of any
incremental additive equity associated with any Permitted
Acquisition;

     

    (b)           (x)
the Total Leverage Ratio as of the end of each Fiscal Quarter for the twelve
month period preceding such date to be greater than (i) for each Fiscal Quarter
from and including September 30, 2009 through and including December 30, 2009,
5.00:1.00; (ii) for each Fiscal Quarter from and including December 31, 2009
through and including December 30, 2010, 4.75:1.00; (iii) for each Fiscal
Quarter from and including December 31, 2010 through and including December 30,
2011, 4.25:1.00; and (iv) for the Fiscal Quarter ended December 31, 2011 and for
each Fiscal Quarter thereafter, 4.00:1.00 and (y) the Senior Leverage Ratio as
of the end of each Fiscal Quarter for the twelve month period preceding such
date to be greater than (i) for each Fiscal Quarter from and including September
30, 2009 through and including December 30, 2010, 2.50:1.00 and (ii) for the
Fiscal Quarter ended December 31, 2010 and for each Fiscal Quarter thereafter,
2.25:1.00.


    
      
         


      

      
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    (c)           as
of the last day of any Fiscal Quarter the ratio of (a) EBITDA plus rent expenses
incurred by the Borrower and its Subsidiaries, minus Capital
Expenditures incurred by the Borrower and its Subsidiaries, minus cash taxes paid
by the Borrower and its Subsidiaries, in each case for the period of four fiscal
quarters then ending, to (b) Fixed Charges for such four fiscal quarter period
to be less than 1.40:1.00.

    


    SECTION
7.2.5  Investments. The
Borrower will not, and will not permit any of its Subsidiaries to, make, incur,
assume or suffer to exist any Investment in any other Person,
except:

     

    (a)           Investments
existing on the Closing Date and identified in Schedule
7.2.5(a);

     

    (b)           Cash
Equivalent Investments and cash, provided, however, that the
balance maintained in any deposit account other than a deposit account listed on
Schedule
7.2.5(b) hereto not subject to a Lien of the Agent shall (i) not exceed
$100,000 for a period of seven consecutive days with respect to deposit accounts
of Borrower and any other Credit Party and (ii) in the case of deposit accounts
of any Non-Wholly Owned Subsidiary or Minority ASC Entity, be, in an amount
equal to the Borrower or any Subsidiary's rights therein, transferred to a
deposit account subject to a Lien of the Agent as frequently as practicable but
on a no less frequent basis than monthly;

     

    (c)           without
duplication, Investments permitted as Indebtedness pursuant to Section
7.2.2;

     

    (d)           without
duplication, Investments permitted as Capital Expenditures in the Borrower and
its Subsidiaries which are Credit Parties;

     

    (e)           in
the ordinary course of business, (1) Investments by the Borrower in any of its
Wholly-Owned Subsidiaries, or in any new Wholly-Owned Subsidiary created or
acquired after the Closing Date in connection with a Permitted Acquisition, (2)
Investments by the Borrower or any Wholly-Owned Subsidiary in any
Non-Wholly-Owned ASC Subsidiary in the form of Indebtedness permitted by Section 7.2.2(k) and
(l) and (3) other cash investments in Non-Wholly-Owned ASC Subsidiaries
in the aggregate at any time outstanding not to exceed $5,000,000 when
aggregated with Investments outstanding and permitted by Section
7.2.5(l);

     

    (f)           Permitted
Acquisitions by the Borrower or a Wholly-Owned Subsidiary of the Borrower (or,
in the case of the purchase of an ASC Facility, by the Borrower or a Subsidiary
of the Borrower);

     

    (g)           the
acquisition by the Borrower or a Wholly-Owned Subsidiary of the Borrower of 100%
of the minority interests held by a Provider in a non-Wholly-Owned Subsidiary,
provided that
any such acquisition is made solely in connection with the merger of such
non-Wholly-Owned Subsidiary into the Borrower or a Wholly-Owned Subsidiary of
the Borrower as permitted by Section
7.2.8;


    
      
         


      

      
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    (h)           Investments
constituting Hedging Agreements of the Borrower;

     

    (i)           Investments
by a Target which exist at the time such Target is the subject of a Permitted
Acquisition to the extent such Investments are otherwise permitted pursuant to
this Section
7.2.5;

     

    (j)           Investments
(other than Permitted Acquisitions) by the Borrower or a Subsidiary of the
Borrower pursuant to ASC Subsidiary Capital Events provided that (1) no Default
or Event of Default shall have occurred or be continuing both before and after
giving effect to such ASC Subsidiary Capital Event, (2) the Borrower must be
able to comply on a pro forma basis after giving effect to such ASC Subsidiary
Capital Event with all of the covenants of this Agreement; and (3) in the event
that the Borrower’s Senior Leverage Ratio on a pro forma basis (after giving
effect to the ASC Subsidiary Capital Event) is greater than 2.25:1.0 the
aggregate consideration in connection with such ASC Subsidiary Capital Event
shall not exceed $25,000,000 individually and $40,000,000 for all ASC Subsidiary
Capital Events consummated following the Closing  Date when aggregated
with the Consideration paid for Permitted Acquisitions permitted by Section 7.2.5(f)
during such period, without duplication;

     

    (k)           Permitted
Seller Debt in connection with Part A of Exhibit F;

     

    (l)           Investments
(not including Investments constituting Permitted Acquisitions) by the Borrower
or a Subsidiary of the Borrower in Minority ASC Entities in an amount not to
exceed (a) $1,000,000 in any individual Minority ASC Entity and (b) $5,000,000
in the aggregate; provided, that the Borrower is in compliance on a pro forma
basis after giving effect to such Investment with all of the covenants contained
in this Agreement provided that in the case of all such Investments pursuant to
this clause
(l)  ("Minority ASC Investments"),
(i) the Minority ASC Entity shall have executed and delivered to the Person
making the Investment a demand note (the “Minority ASC Intercompany
Note”) to evidence any such Minority ASC Investment, which Minority ASC
Intercompany Note shall be in form and substance satisfactory to Agent and
pledged to the Agent, (ii) the payee shall record all Minority ASC Investments
on its books and records in a manner satisfactory to Agent, (iii) at the time
any such Minority ASC Investment is made and after giving effect thereto, each
of the Person making the Investment and the payor shall be Solvent; (iv) such
Minority ASC Investments shall be secured by a perfected first priority lien on
the assets of such Minority ASC Entity, the scope of which lien shall be
satisfactory to the Agent and which lien shall be assigned to the
Agent;

     

    (m)    Investments
by the Borrower and its Subsidiaries in ASC Startups in an amount not to exceed
$6,000,000 at any one time outstanding; provided, once the
Borrower has sold an equity interest in an ASC Startup as permitted under Section 7.2.9(c), the
Investment in the ASC Startup shall no longer be considered as "outstanding" for
purposes of this clause
(m);


    
      
         


      

      
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    provided, however,
that

     

    (n)           any
Investment which when made complies with the requirements of the definition of
the term “Cash Equivalent
Investment” may continue to be held notwithstanding that such Investment
if made thereafter would not comply with such requirements; and

     

    (o)           no
Investment otherwise permitted by clauses (e), (f), (g), (h), (i), (j), (l) or (m) shall be
permitted to be made if, immediately before or after giving effect thereto, any
Default shall exist and be continuing.

    


    SECTION
7.2.6  Restricted Payments,
etc.  On and at all times after the Closing Date:

     

    (a)           The
Borrower will not, and will not permit any of its Subsidiaries to, declare, pay
or make any dividend or distribution (in cash, property or obligations) on any
shares of any class of capital stock (now or hereafter outstanding) of the
Borrower or such Subsidiary or on any warrants, options or other rights with
respect to any shares of any class of capital stock (now or hereafter
outstanding) of the Borrower or such Subsidiary (other than in the case of (I)
the Borrower (x) dividends or distributions payable in its common stock or
warrants to purchase its common stock or splitups or reclassifications of its
stock into additional or other shares of its common stock, (y) distributions
payable other than in cash in connection with a stockholders’ rights offering
plan and (z) distributions to any Subsidiary which is a limited liability
company of the Borrower solely to permit the members thereof to make payment of
its federal and state income tax liability attributable to such limited
liability company’s taxable income, whether or not  a Default or an
Event of Default then exist or (II) any Subsidiary which is a limited liability
company or limited partnership, distributions to members of any such Subsidiary
solely to permit such members to make payment of their federal and state income
tax liability attributably to such member’s taxable income of such Subsidiary
whether or not a Default or an Event of Default then exists) or apply, or permit
any of its Subsidiaries to apply, any of its funds, property or assets to the
purchase, redemption, sinking fund or other retirement of, or agree or permit
any of its Subsidiaries to purchase or redeem, any shares of any class of
capital stock (now or hereafter outstanding) of the Borrower, or warrants,
options or other rights with respect to any shares of any class of capital stock
(now or hereafter outstanding) of the Borrower, except that, (A), in addition to
distributions permitted pursuant to clause (a)(II)
above,  any Subsidiary of the
Borrower  may  declare and pay cash dividends and
distributions to its equity holders and (B) so long as no Default or Event
of Default then exists or would result therefrom and so long as the Borrower
would be able to comply on a pro forma basis, assuming such redemption or
purchase occurred, with all of the covenants contained in this Agreement, the
Borrower may redeem or purchase shares of its stock (i) held by former employees
of the Borrower or any of its Subsidiaries following their death, disability or
the termination of their employment in an aggregate amount in any Fiscal Year
not to exceed $3,000,000 or (ii) as otherwise permitted pursuant to the
stock-based compensation plans of Borrower or any of its
Subsidiaries;

     

    (b)           Borrower
will not, and will not permit any of its Subsidiaries to:


    
      
         


      

      
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    (i)  make
any payment or prepayment of principal of, or make any payment of interest on,
any Subordinated Debt or on any put option granted to a holder of Subordinated
Debt on any day other than the stated, scheduled date for such payment or
prepayment set forth in the documents and instruments memorializing such
Subordinated Debt or such put option, or which would violate the subordination
provisions of such Subordinated Debt or such put option, or while any Default or
Event of Default exists and is continuing both before and after giving effect to
such payment; or

     

    (ii)  redeem,
purchase or defease any Subordinated Debt other than Subordinated Debt held by a
Target, so long as no Default or Event of Default exists or is continuing both
before and after giving effect to such redemption, purchase or
defeasance;  and

     

    (c)           Borrower
will not, and will not permit any Subsidiary to, make any sinking fund payment
or deposit for any of the foregoing purposes.

    


    (d)           Notwithstanding
anything else herein to the contrary, Borrower may redeem or receive Permitted
Seller Equity in connection with a Permitted Asset Disposition.

    


    (e)           The
Borrower will not and will not permit any Subsidiary to directly or indirectly
make any payment, prepayment, redemption, conversion to cash, defeasance or
acquisition for value of (including by way of depositing money or securities
with the trustee with respect thereto before due for the purpose of paying when
due), or refund, refinance or exchange of, any Convertible Notes or Convertible
Note Documents other than (A) fees and expenses paid by Borrower on the date of
issuance of the Convertible Notes; (B) subject to the subordination provisions
of the Convertible Notes, regularly scheduled payments of interest and fees on
the Convertible Notes at rates and in amounts not to exceed the rates and
amounts required by the Convertible Note Documents on the date hereof, (C)
subject to the subordination provisions of the Convertible Notes, payments of
contingent interest or additional amounts (not including principal) payable upon
any default or event of default or similar event under the Convertible Note
Documents and payments of principal in respect of the Convertible Notes upon any
conversion or required repurchase of the Convertible Notes as required by the
terms of the Convertible Note Documents so long as, in the case of any payment
prior to February 6, 2012, (x) no Default or Event of Default then exists or
would result therefrom and (y) the Borrower shall have delivered to the Agent a
certificate demonstrating that after giving effect to such conversion or payment
(and the incurrence of any Indebtedness in connection therewith) (i) Borrower
would have been in compliance with the financial covenants in Section 7.2.4 for
the most recent Fiscal Quarter for which Borrower has delivered financial
statements to the Agent on a pro forma basis deeming such payments to have been
made on the last day of such Fiscal Quarter, (ii) the Senior Leverage Ratio for
the most recent Fiscal Quarter for which Borrower has delivered financial
statements to the Agent on a pro forma basis deeming such payments to have been
made on the last day of such Fiscal Quarter shall not be greater than 2.25:1.00
and (iii) the Available Revolving Commitment shall be greater than $5,000,000
and (D) subject to the subordination provisions of the Convertible Notes
payments of principal in respect of the Convertible Notes upon their scheduled
maturity (which scheduled maturity shall not be prior to June 1,
2012).


    
      
         


      

      
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    (f)           Subject
to the subordination provisions of the Convertible Notes, the Borrower may make
repurchases (at par value or below par value) of the Convertible Note Documents
using cash or common stock of Borrower, provided that, (x) no Default or Event
of Default then exists or would result therefrom and (y) the Borrower shall have
delivered to the Agent a certificate demonstrating that after giving effect to
such repurchase (and the incurrence of any Indebtedness in connection therewith)
(i) Borrower would have been in compliance with the financial covenants in
Section 7.2.4 for the most recent Fiscal Quarter for which Borrower has
delivered financial statements to the Agent on a pro forma basis deeming such
payments to have been made on the last day of such Fiscal Quarter, (ii) the
Senior Leverage Ratio for the most recent Fiscal Quarter for which Borrower has
delivered financial statements to the Agent on a pro forma basis deeming such
payments to have been made on the last day of such Fiscal Quarter shall not be
greater than 2.25:1.00 and (iii) the Available Revolving Commitment shall be
greater than $5,000,000.

     

    Notwithstanding
anything else in this Section 7.2.6 of the Credit Agreement, Borrower may issue
its common stock (and pay cash in lieu of issuing fractional shares) as required
by the Convertible Note Documents including the Call Option and
Warrants.

     

    SECTION
7.2.7  Intentionally Omitted.

     

    SECTION
7.2.8  Consolidation, Merger,
etc.  The Borrower will not, and will not permit any of its
Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with,
any other corporation, or purchase or otherwise acquire all or substantially all
of the assets of any Person (or of any division thereof) except:

     

    (a)           any
such Subsidiary may liquidate or dissolve voluntarily into, and may merge with
and into, the Borrower or any Wholly-Owned Subsidiary of the Borrower or any
Guarantor, and the assets or stock of any Subsidiary may be purchased or
otherwise acquired by the Borrower or any Wholly-Owned Subsidiary of the
Borrower or any Guarantor provided, however, that the
Subsidiaries listed on Schedule 7.2.8 hereto
may dissolve to the extent that the assets and liabilities of such Subsidiaries
are de-minimus;

     

    (b)           so
long as no Default or Event of Default exists and is continuing or would occur
after giving effect thereto, the Borrower or any Wholly-Owned Subsidiary of the
Borrower (or in the case of the purchase of an ASC Facility, the Borrower or any
Subsidiary of the Borrower) may consummate a Permitted Acquisition;
and

     

    (c)           any
Subsidiary may liquidate or dissolve into or merge with or into any other
Person, provided that, after giving effect thereto (i) no Default or Event of
Default shall exist or be continuing; (ii) the Net Worth of the surviving Person
shall be at least equal to the Net Worth of the applicable Subsidiary
immediately prior to the consummation of any such liquidation, dissolution or
merger and (iii) the surviving Person shall assume all Obligations of the
applicable Subsidiary under the Loan Documents.


    
      
         


      

      
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      SECTION
7.2.9  Asset
and Capital Stock Dispositions, etc.

       

      (a) The
Borrower will not, and will not permit any of its Subsidiaries to, sell,
transfer, lease, contribute or otherwise convey, or grant options, warrants or
other rights with respect to, all or any substantial part of its assets
(including accounts receivable and capital stock of Subsidiaries) to any Person,
unless:

       

      (i)  such
sale, transfer, lease, contribution or conveyance is in the ordinary course of
its business or is permitted by Section
7.2.9(b);

       

      (ii)  the
net book value of such assets, together with the net book value of all other
assets sold, transferred, leased, contributed or conveyed otherwise than in the
ordinary course of business by the Borrower or any of its Subsidiaries pursuant
to this clause since the Closing Date, does not exceed $3,000,000 (exclusive of the value
of any transaction described in the preceding clause (i)); or

       

      (iii)  the
Borrower or any Subsidiary of the Borrower may consummate a Permitted Asset
Disposition.

       

      (b)           the
Borrower will not, and will not permit any of its Subsidiaries to, issue, sell,
assign, pledge or otherwise encumber or dispose of any shares of capital stock
or other equity securities in the Borrower or any such Subsidiary (other than
pursuant to this Agreement or any other Loan Document), including warrants,
rights or options to acquire shares or other equity securities of the Borrower
or any of its Subsidiaries; provided that,
notwithstanding the foregoing, and so long as no Default or Event of Default
will result therefrom:

       

      (i)   (x)
the Borrower may issue capital stock (or warrants, rights or options to purchase
capital stock) of the Borrower in connection with a Permitted Acquisition and
(y) a Subsidiary of the Borrower may undertake a Permitted Equity Ownership
Sale;

       

      (ii)  the
Borrower may issue common stock of the Borrower to a Provider upon the
conversion of Subordinated Debt held by such Provider into common stock of the
Borrower pursuant to the terms and conditions contained in the documentation
governing such Subordinated Debt;

       

      (iii)  the
Borrower may issue common stock of the Borrower in connection with a registered
offering, provided, however, that the Borrower shall have delivered a certified
copy of each agreement, document or other instrument (including, without
limitation, any registration statement and underwriting agreement) entered into
by the Borrower in connection with such registered offering;


      
        
           


        

        
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      (iv)   the
Borrower may issue capital stock, and related options, of the Borrower to any
permitted participant under Borrower’s stock incentive plans or to any permitted
participant under any future stock incentive plans established by the Borrower
and reasonably acceptable to the Agent;

       

      (v)  the
Borrower may issue capital stock (or warrants, rights or options to purchase
capital stock) of the Borrower so long as in connection with a private placement
of its capital stock the consideration received by the Borrower in connection
with such sale is (x) for fair market value (as determined by the Board of
Directors of the Borrower) and (y) paid in immediately available
funds;

       

      (vi)      the
Borrower or any Subsidiary may consummate a Permitted Asset
Disposition.

       

      Notwithstanding
anything else in this Section 7.2.9(b) of the Credit Agreement, Borrower may
issue its common stock (and pay cash in lieu of issuing fractional shares) as
required by the Convertible Note Documents including the Call Option and
Warrants.

       

      (c) The
Borrower or any Subsidiary may consummate Permitted Equity Ownership Sales
consisting of interests in ASC Startups.

       

      To the
extent the provisions of this Section 7.2.9 are
waived with respect to the sale of any Collateral, or any Collateral is sold as
permitted by this Section 7.2.9, such
Collateral shall be sold free and clear of the Liens created by the Collateral
Documents and, if requested by the Borrower, the Guarantor owner of such
Collateral shall be released from the Guarantee and Collateral Agreement, and
the portion of the Collateral owned by such Guarantor shall be released from the
Guarantee and Collateral Agreement and the Agent shall be authorized to take any
actions deemed appropriate in order to effect the foregoing.

       

      SECTION
7.2.10  Modification of Certain
Agreements. Except as otherwise permitted pursuant to a Permitted Asset
Disposition or Section
7.1.7 hereof, the Borrower will not, and will not permit any of its
Subsidiaries to, consent to any amendment, supplement or other modification of
any of the terms or provisions contained in, or applicable to, its
Organizational Documents, any document, once entered into, relating to a
Permitted Acquisition, other than any amendment, supplement or other
modification that conforms with applicable laws in all material respects and is
not material or does not have an adverse effect on the Lenders as Lenders under
the Loan Documents, or any document or instrument evidencing or applicable to
any Subordinated Debt or any put option granted to the holders of Subordinated
Debt, other than any amendment, supplement or other modification which extends
the date or reduces the amount of any required repayment or
redemption.  Notwithstanding anything else in this Section 7.2.10 to the
contrary, the Borrower and its Subsidiaries may terminate or make any necessary
modification to the Organizational Documents which is the subject of a Permitted
Asset Disposition. Except as expressly permitted pursuant to Section 7.2.6(f) with
respect to offers to repurchase (at par value or below par value) the
Convertible Note Documents, Borrower shall not, directly or indirectly, amend,
modify, alter or change in any material respect any terms of any of the
Convertible Note Documents or any related agreements, documents and instruments
without the consent of the Required Lenders, except that Borrower may, after
prior written notice to Agent, amend, modify, alter or change the terms thereof
to extend the maturity thereof or to reduce the interest rate or any fees in
connection therewith.


      
        
           


        

        
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      SECTION
7.2.11  Transactions with
Affiliates.  The Borrower will not, and will not permit any of
its Subsidiaries to, enter into, or cause, suffer or permit to exist any
arrangement or contract with any of its other Affiliates (other than a
Subsidiary Guarantor) unless such arrangement or contract is (i) is entered into
in connection with a Permitted Asset Disposition or (ii) fair and equitable to
the Borrower or such Subsidiary and is an arrangement or contract of the kind
which would be entered into by a prudent Person in the position of the Borrower
or such Subsidiary with a Person which is not one of its
Affiliates.

       

      SECTION
7.2.12  Negative Pledges,
Restrictive Agreements, etc.  The Borrower will not, and will
not permit any of its Subsidiaries to, enter into any agreement (excluding this
Agreement, any other Loan Document and any agreement governing any Indebtedness
permitted by clause
(c) of Section
7.2.2 as to the assets financed with the proceeds of such Indebtedness)
prohibiting:

       

      (a)           the
creation or assumption of any Lien upon the properties, revenues or assets of
Borrower or any of its Wholly-Owned Subsidiaries, whether now owned or hereafter
acquired, or the ability of any Credit Party to amend or otherwise modify this
Agreement or any other Loan Document; or

       

      (b)           the
ability of any Subsidiary to make any payments, directly or indirectly, to the
Borrower by way of dividends, distributions, advances, repayments of loans or
advances, reimbursements of management and other intercompany charges, expenses
and accruals or other returns on investments, or any other agreement or
arrangement which restricts the ability of any such Subsidiary to make any
payment, directly or indirectly, to the Borrower.

      


      ARTICLE
VIII


       

      EVENTS OF
DEFAULT

       

      SECTION
8.1  Listing
of Events of Default.  Each of the following events or
occurrences described in this Section 8.1 shall
constitute an “Event of
Default”.

       

      SECTION
8.1.1  Non-Payment of
Obligations.  The Borrower shall (a) default in the payment
when due of the principal of any Loan or (b) default, and such default shall
continue uncured for three days, in the payment when due of any interest on any
Loan or any reimbursement obligation, or any commitment fee or other fee or of
any other Obligation.

       

      SECTION
8.1.2  Breach of
Warranty.  Any representation or warranty of any Credit Party
made or deemed to be made hereunder or in any other Loan Document executed by
it, any Letter of Credit or any other writing or certificate furnished by or on
behalf of any Credit Party to the Agent or any Lender for the purposes of or in
connection with this Agreement or any such other Loan Document or Letter of
Credit (including any certificates delivered pursuant to Article V) is or
shall be incorrect when made in any material respect.


      
        
           


        

        
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      SECTION
8.1.3  Non-Performance of Certain
Covenants and Obligations. Any Credit Party shall default in the due
performance and observance of any of its obligations under Sections 7.1.1, 7.1.7, 7.1.8, 7.1.11, 7.1.12 or Section
7.2.

       

      SECTION
8.1.4  Non-Performance of Other
Covenants and Obligations.  Any Credit Party shall default in
the due performance and observance of any other agreement contained herein or in
any other Loan Document executed by it, and such default shall continue
unremedied for a period of 30 days after notice thereof shall have been given to
the Borrower by the Agent or any Lender.

       

      SECTION
8.1.5  Default on Other
Indebtedness.  (a) A default shall occur in the payment when
due (subject to any applicable grace period), whether by acceleration or
otherwise, of any Indebtedness (other than Indebtedness described in Section 8.1.1) of the
Borrower or any Subsidiary having a principal amount, individually or in the
aggregate, in excess of $750,000, or a default shall occur in the performance or
observance of any obligation or condition with respect to such Indebtedness if
the effect of such default is to accelerate the maturity of any such
Indebtedness or such default shall continue unremedied for any applicable period
of time sufficient to permit the holder or holders of such Indebtedness, or any
trustee or agent for such holders, to cause such Indebtedness to become due and
payable prior to its expressed maturity, or (b) a Default (as defined in the
Convertible Note Documents) shall occur under the Convertible Note Documents and
any applicable grace period relating to such Default shall have
expired.

       

      SECTION
8.1.6  Judgments.  Any
judgment or order for the payment of money in excess of $1,000,000 shall be
rendered against the Borrower or any Subsidiary (which judgment is not covered
by insurance and with respect to such judgment an insurance carrier has not
accepted responsibility for coverage) and either:

       

      (a)           enforcement
proceedings shall have been commenced by any creditor upon such judgment or
order; or

       

      (b)           there
shall be any period of 10 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise, shall not be
in effect.

       

      SECTION
8.1.7  Pension
Plans.  Any of the following events shall occur with respect to
any Pension Plan:

       

      (a)           the
institution of any steps by the Borrower, any member of its Controlled Group or
any other Person to terminate a Pension Plan if, as a result of such
termination, the Borrower or any such member reasonably would be expected to be
required to make a contribution to such Pension Plan, or would reasonably expect
to incur a liability or obligation to such Pension Plan, in excess of
$1,000,000; or

       

      
        
           


        

        
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      (b)           a
contribution failure occurs with respect to any Pension Plan sufficient to give
rise to a Lien under Section 302(f) of ERISA.

      


      SECTION
8.1.8  Change of
Control.  Any Change of Control shall occur.

      


      SECTION
8.1.9  Bankruptcy, Insolvency,
etc.  The Borrower or any Subsidiary shall:

       

      (a)           become
insolvent or generally fail to pay, or admit in writing its inability or
unwillingness to pay, its debts as they become due;

       

      (b)           apply
for, consent to, or acquiesce in, the appointment of a trustee, receiver,
sequestrator or other custodian for such Person or any property of such Person,
or make a general assignment for the benefit of creditors;

       

      (c)           in
the absence of such application, consent or acquiescence, permit or suffer to
exist the appointment of a trustee, receiver, sequestrator or other custodian
for such Person or for a substantial part of the property of such Person, and
such trustee, receiver, sequestrator or other custodian shall not be discharged
within 60 days, provided that the
Borrower hereby expressly authorizes the Agent and each Lender to appear in any
court conducting any relevant proceeding during such 60-day period to preserve,
protect and defend their rights under the Loan Documents;

       

      (d)           permit
or suffer to exist the commencement of any bankruptcy, reorganization, debt
arrangement or other case or proceeding under any bankruptcy or insolvency law,
or any dissolution, winding up or liquidation proceeding, in respect of such
Person, and, if any such case or proceeding is not commenced by such Person,
such case or proceeding shall be consented to or acquiesced in by such Person or
shall result in the entry of an order for relief or shall remain for 60 days
undismissed, provided that the
Borrower hereby expressly authorizes the Agent and each Lender to appear in any
court conducting any such case or proceeding during such 60-day period to
preserve, protect and defend their rights under the Loan Documents;
or

       

      (e)           take
any action authorizing, or in furtherance of, any of the foregoing.

       

      SECTION
8.1.10  Impairment of Security,
etc.  Any Loan Document, or any Lien granted thereunder, shall
(except in accordance with its terms or pursuant to Section 7.2.9), in
whole or in part, terminate, cease to be effective or cease to be the legally
valid, binding and enforceable obligation of any Credit Party thereto; any
Credit Party or any other party shall, directly or indirectly, contest in any
manner the effectiveness, validity, binding nature or enforceability of any Loan
Document or Lien granted thereunder; or any Lien securing any Obligation shall,
in whole or in part, cease to be a perfected first priority Lien, subject only
to those exceptions expressly permitted by such Loan Document.

       

      SECTION
8.1.11  Fraud and Abuse
Laws.  Receipt by the Borrower or any Subsidiary of a notice
from a governmental authority or third party payor that it intends to disallow
requested reimbursements, or intends to demand or demands adjustment or
repayment of past reimbursements in excess of, either individually or in the
aggregate with any other disallowed reimbursements, ten percent (10%) of the net
revenues of the Borrower for the previous fiscal quarter respecting amounts
submitted for reimbursement or collected by such Person from participation in
the Medicare, Medicaid or third party payor programs.


      
        
           


        

        
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      SECTION
8.1.12  Certifications.  (i)
Revocation, suspension or involuntary cancellation or termination of any
Medicare Certification, Medicare Provider Agreement, Medicaid Certification,
Medicaid Provider Agreement or third party payor certification, if any, or
agreement of or affecting the Borrower or any Subsidiary or notice of any
investigation or notice of any proceeding being instituted against any Credit
Party, any of the Minority ASC Entities, or any of their respective officers,
directors, members or managers by any governmental authority which could
reasonably be expected to result in any of the foregoing actions, or (ii) the
loss of any other permits, licenses, authorizations, certifications or approval
from any federal, state or local governmental authority or termination of any
contract with any such authority by the Borrower or any Subsidiary, in either
case which cancellation, revocation, suspension or termination, (x) continues
for a period greater than 60 days and (y) results in the suspension or
termination of operations of the Borrower or any Subsidiary or in the failure of
the Borrower or any Subsidiary to be eligible to participate in Medicare,
Medicaid or third party payor programs or to accept assignments of rights to
reimbursement under Medicaid Regulations, Medicare Regulations or guidelines
established by a third party payor; or (z) results in the exclusion of Borrower,
or any Subsidiary, or any Minority ASC Entities, or any of their respective
officers, directors, members or managers from participation in any Federal or
State healthcare program, provided that any
such events described in this Section 8.1.12 shall
result or reasonably be expected to, either singly or in the aggregate, in the
termination, cancellation, revocation, suspension or material impairment of
operations or rights to reimbursement which produce ten percent (10%) or more of
the Borrower’s net revenues (determined in accordance with GAAP).

      


      SECTION
8.1.13  Subordination Provisions of
Convertible Notes.  (a) Any of the Obligations shall fail to be
“Senior Debt” (or any comparable term) under and as defined in, the Convertible
Note Documents; (b) any Indebtedness, other than the Obligations, shall
constitute “Designated Senior Debt” (or any comparable term) under, and as
defined in, the Convertible Note Documents; or (c) the subordination provisions
of the Convertible Note Documents shall, in whole or in part, terminate, cease
to be effective or cease to be legally valid, binding and enforceable against
any holder of such Convertible Notes.

      


      SECTION
8.2  Action
if Bankruptcy.  If any Event of Default described in clauses (a) through
(e) of Section 8.1.9 shall
occur, the Revolving Commitments (if not theretofore terminated) and the
obligation of the Letter of Credit Issuer to issue Letters of Credit shall
automatically terminate and the outstanding principal amount of all outstanding
Loans and all other Obligations shall automatically be and become immediately
due and payable, without notice or demand.

       

      SECTION
8.3  Action
if Other Event of Default.  If any  Event of Default
(other than any Event of Default described in clauses (a) through
(e) of Section 8.1.9) shall
occur for any reason, whether voluntary or involuntary, and be continuing, the
Agent, upon the direction of the Required Lenders, shall by notice to the
Borrower declare all or any portion of the outstanding principal amount of the
Loans and other Obligations to be due and payable and/or the Revolving
Commitments (if not theretofore terminated) and/or the obligation of the Letter
of Credit Issuer to issue Letters of Credit to be terminated, whereupon the full
unpaid amount of such Loans and other Obligations which shall be so declared due
and payable shall be and become immediately due and payable, without further
notice, demand or presentment, and/or, as the case may be, the Revolving
Commitments shall terminate.


      
        
           


        

        
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      SECTION
8.4  Letters
of Credit.  In addition to the foregoing, following the
occurrence and during the continuance of an Event of Default, so long as any
Letter of Credit has not been fully drawn and has not been canceled or expired
by its terms, upon demand by the Lenders, the Borrower shall deposit in an
account (the “Letter of Credit
Cash Collateral Account”) maintained with National City in the name of
the Agent, for the benefit of itself and the Lenders, cash in an amount equal to
the aggregate undrawn face amount of all outstanding Letters of Credit and all
fees and other amounts due or which may become due with respect
thereto.  The Borrower shall have no control over funds in the Letter
of Credit Cash Collateral Account, which funds shall be invested by the Agent
from time to time in its discretion in certificates of deposit of National City
having a maturity not exceeding thirty days.  Such funds shall be
promptly applied by the Agent to reimburse the Letter of Credit Issuer for
drafts drawn from time to time under the Letters of Credit.  Such
funds, if any, remaining in the Letter of Credit Cash Collateral Account
following the payment of all Obligations in full or the earlier termination of
all Events of Default shall, unless the Agent is otherwise directed by a court
of competent jurisdiction, be promptly paid over to the Borrower.

       

      ARTICLE
IX


       

      THE
AGENT

       

      SECTION
9.1  Actions.  Each
Lender hereby appoints National City as its Agent under and for purposes of this
Agreement, the Notes and each other Loan Document.  Each Lender
authorizes the Agent to act on behalf of such Lender under this Agreement, the
Notes and each other Loan Document and, in the absence of other written
instructions from the Required Lenders received from time to time by the Agent
(with respect to which the Agent agrees that it will comply, except as otherwise
provided in this Section or as otherwise advised by counsel), to exercise such
powers hereunder and thereunder as are specifically delegated to or required of
the Agent by the terms hereof and thereof, together with such powers as may be
reasonably incidental thereto.  Each Lender hereby indemnifies (which
indemnity shall survive any termination of this Agreement) the Agent, pro rata according to
such Lender’s Percentage, from and against any and all liabilities, obligations,
losses, damages, claims, costs or expenses of any kind or nature whatsoever
which may at any time be imposed on, incurred by, or asserted against, the Agent
in any way relating to or arising out of this Agreement, the Notes and any other
Loan Document, including reasonable attorneys’ fees, and as to which the Agent
is not reimbursed by the Borrower; provided, however, that no
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, claims, costs or expenses which are determined by
a court of competent jurisdiction in a final proceeding to have resulted solely
from the Agent’s gross negligence or willful misconduct.  The Agent
shall not be required to take any action hereunder, under the Notes or under any
other Loan Document, or to prosecute or defend any suit in respect of this
Agreement, the Notes or any other Loan Document, unless it is indemnified
hereunder to its satisfaction.  If any indemnity in favor of the Agent
shall be or become, in the Agent’s determination, inadequate, the Agent may call
for additional indemnification from the Lenders and cease to do the acts
indemnified against hereunder until such additional indemnity is
given.


      
        
           


        

        
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      SECTION
9.2  Funding
Reliance, etc.  Unless the Agent shall have been notified by
telephone, confirmed in writing, by any Lender by 5:00 p.m. (EST), on the day
prior to a Borrowing that such Lender will not make available the amount which
would constitute its Percentage of such Borrowing on the date specified
therefor, the Agent may assume that such Lender has made such amount available
to the Agent and, in reliance upon such assumption, make available to the
Borrower a corresponding amount.  If and to the extent that such
Lender shall not have made such amount available to the Agent, such Lender and
the Borrower severally, without duplication, agree to repay the Agent forthwith
on demand such corresponding amount together with interest thereon, for each day
from the date the Agent made such amount available to the Borrower to the date
such amount is repaid to the Agent, at the interest rate applicable at the time
to Loans comprising such Borrowing.

       

      SECTION
9.3  Exculpation.  Neither
the Agent nor any of its directors, officers, employees or agents shall be
liable to any Lender for any action taken or omitted to be taken by it under
this Agreement or any other Loan Document, or in connection herewith or
therewith, except for its own willful misconduct or gross negligence, nor
responsible for any recitals or warranties herein or therein, nor for the
effectiveness, enforceability, validity or due execution of this Agreement or
any other Loan Document, nor for the creation, perfection or priority of any
Liens purported to be created by any of the Loan Documents, or the validity,
genuineness, enforceability, existence, value or sufficiency of any collateral
security, nor to make any inquiry respecting the performance by the Borrower of
its obligations hereunder or under any other Loan Document.  Any such
inquiry which may be made by the Agent shall not obligate it to make any further
inquiry or to take any action.  The Agent shall be entitled to rely
upon advice of counsel concerning legal matters and upon any notice, consent,
certificate, statement or writing which the Agent believes to be genuine and to
have been presented by a proper Person.

       

      SECTION
9.4  Successor.  The
Agent may resign as such at any time upon at least 30 days’ prior notice to the
Borrower and all Lenders.  If the Agent at any time shall resign, the
Required Lenders, with, so long as no Default or Event of Default exists and is
continuing, the consent of the Borrower, may appoint another Lender as a
successor Agent which shall thereupon become the Agent hereunder.  If
no successor Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring Agent’s
giving notice of resignation, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent, which shall be one of the Lenders or a
commercial banking institution organized under the laws of the U.S. (or any
State thereof) or a U.S. branch or agency of a commercial banking institution,
and having a combined capital and surplus of at least
$500,000,000.  Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall be entitled to
receive from the retiring Agent such documents of transfer and assignment as
such successor Agent may reasonably  request, and shall thereupon
succeed to and become vested with all rights, powers, privileges and duties of
the retiring Agent, and the retiring Agent shall be discharged from its duties
and obligations under this Agreement.  After any retiring Agent’s
resignation hereunder as the Agent, the provisions of


      
        
           


        

        
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      (i)           this
Article IX
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was the Agent under this Agreement; and

       

      (ii)           Section 10.3 and
Section 10.4
shall continue to inure to its benefit.

       

      SECTION
9.5  Loans
by National City.  National City shall have the same rights and
powers with respect to (x) the Loans made by it or any of its Affiliates, and
(y) the Notes held by it or any of its Affiliates as any other Lender and may
exercise the same as if it were not the Agent.  National City and its
Affiliates may accept deposits from, lend money to, and generally engage in any
kind of business with the Borrower or any Subsidiary or Affiliate of Borrower as
if National City were not the Agent hereunder.

       

      SECTION
9.6  Credit
Decisions.  Each Lender acknowledges that it has, independently
of the Agent and each other Lender, and based on such Lender’s review of the
financial information of each Credit Party, this Agreement, the other Loan
Documents (the terms and provisions of which being satisfactory to such Lender)
and such other documents, information and investigations as such Lender has
deemed appropriate, made its own credit decision to extend its Revolving
Commitment and Term Loan Commitment.  Each Lender also acknowledges
that it will, independently of the Agent and each other Lender, and based on
such other documents, information and investigations as it shall deem
appropriate at any time, continue to make its own credit decisions as to
exercising or not exercising from time to time any rights and privileges
available to it under this Agreement or any other Loan Document.

       

      SECTION
9.7  Copies,
etc.  The Agent
shall give prompt notice to each Lender of each notice or request required or
permitted to be given to the Agent by any Credit Party pursuant to the terms of
this Agreement (unless concurrently delivered to the Lenders by such Credit
Party).  The Agent will distribute to each Lender each document or
instrument received for its account and copies of all other communications
received by the Agent from any Credit Party for distribution to the Lenders by
the Agent in accordance with the terms of this Agreement.

       

      SECTION
9.8  Designation
of Additional Agents.  No
Lender identified in this Agreement as a “Syndication Agent” or “Documentation
Agent” shall have any right, power, obligation, liability, responsibility or
duty under this Agreement other than those applicable to all Lenders as such.
Without limiting the foregoing, none of such Lenders shall have or be deemed to
have a fiduciary relationship with any Lender.

       

      ARTICLE
X


       

      MISCELLANEOUS
PROVISIONS

       

      SECTION
10.1  Waivers, Amendments,
etc.  The provisions of this Agreement and of each other Loan
Document may from time to time be amended, modified or waived, if such
amendment, modification or waiver is in writing and consented to by the Borrower
and the Required Lenders; provided, however, that no such
amendment, modification or waiver which would:


      
        
           


        

        
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      (a)           modify
any requirement hereunder that any particular action be taken by all the Lenders
or by the Required Lenders shall be effective unless consented to by each
Lender;

       

      (b)           modify
this Section
10.1, change the definition of “Required Lenders”, increase
the Revolving Commitment Amount, Term Loan Commitment Amount or the Percentage
of any Lender, reduce the rate of interest or any fees described in Article III, change
the schedule of repayments of Loans provided for in Section 3.1.2 and
3.1.3, release any Guarantor from its obligations pursuant to the
Guarantee and Collateral Agreement (except in connection with a Permitted Asset
Disposition or as otherwise permitted hereby, in which such cases no consent of
any Lender is required), release all or substantially all of the collateral
security (except in connection with a Permitted Asset Disposition or as
otherwise permitted hereby, in which such cases no consent of any Lender is
required) or except as otherwise specifically provided in any Loan Document,
permit any payment, prepayment, redemption, conversion to cash, defeasance or
acquisition for value, refund, refinance or exchange of any Convertible Notes or
Convertible Note Documents except as otherwise permitted by Section 7.2.6(f)
hereof without the consent of each Lender, or extend the Revolving Commitment
Termination Date or Maturity Date shall be made without the consent of each
Lender;

       

      (c)           extend
the due date for, or reduce the amount of, any scheduled repayment or prepayment
of principal of or interest on any Loan or any fee payable to a Lender (or
reduce the principal amount of or rate of interest on any Loan) shall be made
without the consent of the holder of that Note evidencing such Loan or Lender
entitled to such fee;

       

      (d)           affect
adversely the interests, rights or obligations of the Agent qua the Agent shall
be made without consent of the Agent; or

       

      (e)           modify
Section 2.8 or
8.4 shall be
made without the consent of the Letter of Credit Issuer.

       

      No
failure or delay on the part of the Agent, any Lender or the holder of any Note
in exercising any power or right under this Agreement or any other Loan Document
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such power or right preclude any other or further exercise thereof or the
exercise of any other power or right.  No notice to or demand on any
Credit Party in any case shall entitle it to any notice or demand in similar or
other circumstances.  No waiver or approval by the Agent, any Lender
or the holder of any Note under this Agreement or any other Loan Document shall,
except as may be otherwise stated in such waiver or approval, be applicable to
subsequent transactions.  No waiver or approval hereunder shall
require any similar or dissimilar waiver or approval thereafter to be granted
hereunder.

       

      If, in
connection with any proposed amendment, modification, waiver or termination (a
“Proposed
Change”) requiring the consent of a specific Lender, the consent of
Required Lenders is obtained, but the consent of the specific Lenders whose
consent is required is not obtained (any such Lender whose consent is not
obtained being referred to as a  “Non Consenting
Lender”), then, so long as Agent is not a Non Consenting Lender, at
Borrowers request Agent, or a Person reasonably acceptable to Agent, shall have
the right with Agent’s consent and in Agent’s sole discretion (but shall have no
obligation) to purchase from such Non Consenting Lenders, and such Non
Consenting Lenders agree that they shall, upon Agent’s request, sell and assign
to Agent or such Person, all of the Revolving Commitments of such Non Consenting
Lenders for an amount equal to the principal balance of all Loans held by the
Non Consenting Lenders and all accrued interest and Fees with respect thereto
through the date of sale, such purchase and sale to be consummated pursuant to
an executed Assignment Agreement.


      
        
           


        

        
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      SECTION
10.2  Notices.  All
notices and other communications provided to any party hereto under this
Agreement or any other Loan Document shall be in writing or by facsimile
transmission and addressed, delivered or transmitted to such party at its
address, facsimile number transmission set forth below in Schedule 10.2 hereto
or set forth in the Lender Assignment Agreement or at such other address, or
facsimile transmission number as may be designated by such party in a notice to
the other parties.  Any notice, if mailed and properly addressed with
postage prepaid or if properly addressed and sent by pre-paid courier service,
shall be deemed given when received; any notice, if transmitted by facsimile
transmission, shall be deemed given when transmitted, provided such notice is
delivered or facsimile transmitted during regular business hours on a Business
Day.

       

      SECTION
10.3  Payment of Costs and
Expenses.  The Borrower agrees to pay on demand all reasonable
expenses of the Agent (including the reasonable fees and out-of-pocket expenses
of counsel to the Agent and of local counsel, if any, who may be retained by
counsel to the Agent) in connection with:

       

      (i)           the
negotiation, preparation, execution and delivery of this Agreement and of each
other Loan Document, including schedules and exhibits, and any amendments,
waivers, consents, supplements or other modifications to this Agreement or any
other Loan Document as may from time to time hereafter be required, whether or
not the transactions contemplated hereby are consummated, and

       

      (ii)           the
filing, recording, refiling or rerecording of any Collateral Document and/or any
Uniform Commercial Code financing statements relating thereto and all
amendments, supplements and modifications to any thereof and any and all other
documents or instruments of further assurance required to be filed or recorded
or refiled or rerecorded by the terms hereof or of such Collateral Document,
and

       

      (iii)           the
preparation and review of the form of any document or instrument required by
this Agreement or any other Loan Document.

       

      The
Borrower further agrees to pay, and to save the Agent and the Lenders harmless
from all liability for, any stamp or other taxes which may be payable in
connection with the execution or delivery of this Agreement, the borrowings
hereunder, or the issuance of the Notes or any other Loan
Documents.  The Borrower also agrees to reimburse the Agent and each
Lender upon demand for all reasonable out-of-pocket expenses (including
reasonable attorneys’ fees and legal expenses) incurred by the Agent or such
Lender in connection with (x) the negotiation of any restructuring or
“work-out”, whether or not consummated, of any Obligations and (y) the
enforcement of any Obligations.  Notwithstanding anything contained
herein to the contrary, the Borrower shall not be responsible for any costs or
expenses incurred by the Agent or any Lender in connection with the transactions
contemplated by either of Section 10.11.1 or
10.11.2
hereof.


      
        
           


        

        
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      SECTION
10.4  Indemnification.  In
consideration of the execution and delivery of this Agreement by each Lender and
the extension of the Revolving Commitments and Term Loan Commitments and the
making of the Loans, the Borrower hereby indemnifies, exonerates and holds the
Agent and each Lender and each of their respective officers, directors,
employees and agents (collectively, the “Indemnified Parties”) free
and harmless from and against any and all actions, causes of action, suits,
losses, costs, liabilities and damages, and expenses incurred in connection
therewith (irrespective of whether any such Indemnified Party is a party to the
action for which indemnification hereunder is sought), including reasonable
attorneys’ fees and disbursements (collectively, the “Indemnified Liabilities”),
incurred by the Indemnified Parties or any of them as a result of, or arising
out of, or relating to:

       

      (i)           any
transaction financed or to be financed in whole or in part, directly or
indirectly, with the proceeds of any Loan;

       

      (ii)           the
entering into and performance of this Agreement and any other Loan Document by
any of the Indemnified Parties (including any action brought by or on behalf of
the Borrower as the result of any determination by the Required Lenders pursuant
to Article V
not to fund any Borrowing);

       

      (iii)           any
investigation, litigation or proceeding related to any acquisition or proposed
acquisition by the Borrower of all or any portion of the stock or assets of any
Person, whether or not the Agent or such Lender is party thereto;

       

      (iv)           any
investigation, litigation or proceeding related to any environmental cleanup,
audit, compliance or other matter relating to the protection of the environment
or the Release by Borrower or any of its Subsidiaries of any Hazardous Material;
or

       

      (v)           the
presence on or under, or the escape, seepage, leakage, spillage, discharge,
emission, discharging or releases from, any real property owned or operated by
the Borrower or any Subsidiary thereof of any Hazardous Material (including any
losses, liabilities, damages, injuries, costs, expenses or claims asserted or
arising under any Environmental Law), regardless of whether caused by, or within
the control of, the Borrower or such Subsidiary,

       

      except
for any such Indemnified Liabilities arising for the account of a particular
Indemnified Party by reason of the relevant Indemnified Party’s gross negligence
or willful misconduct.  If and to the extent that the foregoing
undertaking may be unenforceable for any reason, the Borrower hereby agrees to
make the maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law.

       

      SECTION
10.5  Survival.  The
obligations of the Borrower under Sections 4.3, 4.4, 4.5, 4.6 and 10.3 and 10.4, and the
obligations of the Lenders under Section 9.1, shall in
each case survive any termination of this Agreement, the payment in full of all
Obligations and the termination of all Revolving Commitments.  The
representations and warranties made by the Borrower in this Agreement and in
each other Loan Document shall survive the execution and delivery of this
Agreement and each such other Loan Document.


      
        
           


        

        
          75

          
            

          

        

        
           


        

      

       

      SECTION
10.6  Severability.  Any
provision of this Agreement or any other Loan Document which is prohibited or
unenforceable in any jurisdiction shall, as to such provision and such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this Agreement
or such Loan Document or affecting the validity or enforceability of such
provision in any other jurisdiction.

       

      SECTION
10.7  Headings.  The
various headings of this Agreement and of each other Loan Document are inserted
for convenience only and shall not affect the meaning or interpretation of this
Agreement or such other Loan Document or any provisions hereof or
thereof.

       

      SECTION
10.8  Execution in Counterparts,
Effectiveness, etc.  This Agreement may be executed by the
parties hereto in several counterparts, each of which shall be executed by the
Borrower and the Agent and be deemed to be an original and all of which shall
constitute together but one and the same agreement.  This Agreement
shall become effective when counterparts hereof executed on behalf of the
Borrower and each Lender (or notice thereof satisfactory to the Agent) shall
have been received by the Agent and notice thereof shall have been given by the
Agent to the Borrower and each Lender.

       

      SECTION
10.9  Governing Law; Entire
Agreement.  THIS AGREEMENT, THE NOTES AND EACH OTHER LOAN
DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF ILLINOIS.  This Agreement, the Notes and
the other Loan Documents constitute the entire understanding among the parties
hereto with respect to the subject matter hereof and supersede any prior
agreements, written or oral, with respect thereto.

       

      SECTION
10.10  Successors and
Assigns.  This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and
assigns; provided, however,
that:

       

      (i)           the
Borrower may not assign or transfer its rights or obligations hereunder without
the prior written consent of the Agent and all Lenders; and

       

      (ii)           the
rights of sale, assignment and transfer of the Lenders are subject to Section
10.11.

       

      SECTION
10.11  Sale
and Transfer of Loans and Note; Participations in Loans and
Note.  Each Lender may assign, or sell participations in, its
Loans and Revolving Commitment to one or more other Persons in accordance with
this Section
10.11.

       

      SECTION
10.11.1  Assignments.  Any
Lender:

       

      (i)           with
the written consent of the Agent and, provided no Event of Default then shall
exist or be continuing, the Borrower (which consent shall not be unreasonably
delayed or withheld (it is agreed that it shall not be unreasonable for Borrower
to withhold consent to institutions that have higher reserve costs or
withholding taxes which would result in increased costs to the Borrower)) may at
any time assign and delegate to one or more commercial banks or other financial
institutions, and


      
        
           


        

        
          76

          
            

          

        

        
           


        

      

       

      (ii)           with
notice to the Borrower and the Agent, but without the consent of the Borrower or
the Agent, may assign and delegate to any of its Affiliates or to any other
Lender,

       

      (each
Person described in either of the foregoing clauses as being the Person to whom
such assignment and delegation is to be made, being hereinafter referred to as
an “Assignee Lender”),
all or any fraction of such Lender’s total Loans and Revolving Commitment (which
assignment and delegation shall be of a constant, and not a varying, percentage
of all the assigning Lender’s Loans and Revolving Commitment) in a minimum
aggregate amount of $2,500,000 (or such lesser amount to the extent that after
giving effect to such assignment such Lender’s total Loans and Revolving
Commitment is reduced to zero); provided, however, that any
such Assignee Lender will comply, if applicable, with the provisions contained
in the penultimate sentence of Section 4.6, and
provided further, however, that, the
Borrower and the Agent shall be entitled to continue to deal solely and directly
with such Lender in connection with the interests so assigned and delegated to
an Assignee Lender until:

       

      (i)           written
notice of such assignment and delegation, together with payment instructions,
addresses and related information with respect to such Assignee Lender, shall
have been given to the Borrower and the Agent by such Lender and such Assignee
Lender,

       

      (ii)           such
Assignee Lender shall have executed and delivered to the Borrower and the Agent
a Lender Assignment Agreement, accepted by the Agent, and

       

      (ii)           the
processing fees described below shall have been paid.

       

      From and
after the date that the Agent accepts such Lender Assignment Agreement, (x) the
Assignee Lender thereunder shall be deemed automatically to have become a party
hereto and to the extent that rights and obligations hereunder have been
assigned and delegated to such Assignee Lender in connection with such Lender
Assignment Agreement, shall have the rights and obligations of a Lender
hereunder and under the other Loan Documents, and (y) the assignor Lender, to
the extent that rights and obligations hereunder have been assigned and
delegated by it in connection with such Lender Assignment Agreement, shall be
released from such obligations hereunder and under the other Loan
Documents.  Within five Business Days after its receipt of notice that
the Agent has received an executed Lender Assignment Agreement, the Borrower
shall execute and deliver to the Agent (for delivery to the relevant Assignee
Lender) a new Note evidencing such Assignee Lender’s assigned Loans and
Revolving Commitment and, if the assignor Lender has retained Loans and a
Revolving Commitment hereunder, a replacement Note in the principal amount of
the Loans and Revolving Commitment retained by the assignor Lender hereunder
(such Note to be in exchange for, but not in payment of, that Note then held by
such assignor Lender).  Each such Note shall be dated the date of the
predecessor Note.  The assignor Lender shall mark the predecessor Note
“exchanged” and deliver it to the Borrower.  Accrued interest on that
part of the predecessor Note evidenced by the new Note, and accrued fees, shall
be paid as provided in the Lender Assignment Agreement.  Accrued
interest on that part of the predecessor Note evidenced by the replacement Note
shall be paid to the assignor Lender.  Accrued interest and accrued
fees shall be paid at the same time or times provided in the predecessor Note
and in this Agreement.  Such assignor Lender or such Assignee Lender
must also pay a processing fee to the Agent upon delivery of any Lender
Assignment Agreement in the amount of $3,500.  Any attempted
assignment and delegation not made in accordance with this Section 10.11.1 shall
be null and void.


      
        
           


        

        
          77

          
            

          

        

        
           


        

      

       

      SECTION
10.11.2  Participations.  Any
Lender may at any time sell to one or more commercial banks or other Persons
(each of such commercial banks and other Persons being herein called a “Participant”) participating
interests in any of the Loans, its Revolving Commitment, or other interests of
such Lender hereunder; provided, however,
that:

       

      (i)           no
participation contemplated in this Section 10.11 shall
relieve such Lender from its Revolving Commitment or its other obligations
hereunder or under any other Loan Document,

       

      (ii)           such
Lender shall remain solely responsible for the performance of its Revolving
Commitment and such other obligations,

       

      (iii)           the
Borrower and the Agent shall continue to deal solely and directly with such
Lender in connection with such Lender’s rights and obligations under this
Agreement and each of the other Loan Documents,

       

      (iv)           no
Participant, unless such Participant is an Affiliate of such Lender, or is
itself a Lender, shall be entitled to require such Lender to take or refrain
from taking any action hereunder or under any other Loan Document, except that
such Lender may agree with any Participant that such Lender will not, without
such Participant’s consent, take any actions of the type described in clause (b) or (c) of Section 10.1,
and

       

      (v)           the
Borrower shall not be required to pay any amount under Section 4.6 that is
greater than the amount which it would have been required to pay had no
participating interest been sold.

       

      The
Borrower acknowledges and agrees that each Participant, for purposes of Sections 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 10.3 and 10.4, shall be
considered a Lender.

       

      SECTION
10.12  Confidentiality.  The
Lenders shall hold all non-public information (which has been identified as such
by Borrower) obtained pursuant to the requirements of this Agreement in
accordance with their customary procedures for handling confidential information
of this nature and in accordance with safe and sound banking practices and in
any event may make disclosure to any of their examiners, Affiliates, outside
auditors, counsel and other professional advisors in connection with this
Agreement or as reasonably required by any bona fide transferee,
participant or assignee or as required or requested by any governmental agency
or representative thereof or pursuant to legal process; provided, however,
that:


      
        
           


        

        
          78

          
            

          

        

        
           


        

      


      (i)           unless
specifically prohibited by applicable law or court order, each Lender shall
notify the Borrower of any request by any governmental agency or representative
thereof (other than any such request in connection with an examination of the
financial condition of such Lender by such governmental agency) for disclosure
of any such non-public information prior to disclosure of such
information;

       

      (ii)           prior
to any such disclosure pursuant to this Section 10.12, each
Lender shall require any such bona fide transferee, participant and assignee
receiving a disclosure of non-public information to agree in
writing:

       

      (1)           to
be bound by this Section 10.12;
and

       

      (2)           to
require such Person to require any other Person to whom such Person discloses
such non-public information to be similarly bound by this Section 10.12;
and

       

      (iii)           except
as may be required by an order of a court of competent jurisdiction and to the
extent set forth therein, no Lender shall be obligated or required to return any
materials furnished by any Credit Party.

       

      (iv)           to
the extent necessary to comply with HIPAA, the Lenders and Borrower and each of
the other Credit Parties that is a "covered entity" under HIPAA shall execute a
Business Associate Agreement pursuant to HIPAA attached hereto as Exhibit L, to
protect the Borrower’s disclosure of individually identifiable health
information to the Lenders.

       

      SECTION
10.13  Other
Transactions.  Nothing contained herein shall preclude the
Agent or any other Lender from engaging in any transaction, in addition to those
contemplated by this Agreement or any other Loan Document, with the Borrower or
any of its Affiliates in which Borrower or such Affiliate is not restricted
hereby from engaging with any other Person.

       

      SECTION
10.14  Amendment and
Restatement.

       

      (a)           On
the Closing Date, the Original Credit Agreement (as previously amended, restated
or otherwise modified) shall be amended, restated and superseded in its
entirety.  The parties hereto acknowledge and agree that (i) this
Agreement, any Notes delivered pursuant hereto and the other Loan Documents
executed and delivered in connection herewith do not constitute a novation,
payment and reborrowing, or termination of the "Obligations" (as defined in the
Original Credit Agreement (as previously amended, restated or otherwise
modified) under the Original Credit Agreement (as previously amended, restated
or otherwise modified) as in effect prior to the Closing Date; (ii) such
"Obligations" are in all respects continuing with only the terms thereof being
modified as provided in this Agreement; (iii) the Liens as granted under the
Collateral Documents securing payment of such "Obligations" are in all respects
continuing and in full force and effect and secure the payment of the
Obligations (as defined in this Agreement) and are hereby fully ratified and
affirmed; and (iv) upon the effectiveness of this Agreement all loans and
letters of credit outstanding under the Original Credit Agreement (as previously
amended, restated or otherwise modified) immediately before the effectiveness of
this Agreement will be part of the Loans and Letters of Credit hereunder on the
terms and conditions set forth in this Agreement.  Without limitation
of the foregoing, Borrower hereby fully and unconditionally ratifies and affirms
all Collateral Documents and agrees that all collateral granted thereunder shall
from and after the Closing Date secure all Obligations
hereunder.


      
        
           


        

        
          79

          
            

          

        

        
           


        

      

       

      (b)           Notwithstanding
the modifications effected by this Agreement of the representations, warranties
and covenants of the Credit Parties contained in the Original Credit Agreement
(as previously amended, restated or otherwise modified), Borrower acknowledges
and agrees that any causes of action or other rights created in favor of any
Lender and its successors arising out of the representations and warranties of
any Credit Party contained in or delivered (including representations and
warranties delivered in connection with the making of the loans or other
extensions of credit thereunder) in connection with the Original Credit
Agreement (as previously amended, restated or otherwise modified) or any other
Loan Document executed in connection therewith shall survive the execution and
delivery of this Agreement, provided, further, that the
Obligations under the other Loan Documents shall also continue in full force and
effect including, without limitation, the Obligations of each Credit Party
pursuant to the Collateral Documents. All indemnification obligations of each
Credit Party pursuant to the Original Credit Agreement (as previously amended,
restated or otherwise modified) (including any arising from a breach of the
representations thereunder) shall survive the amendment and restatement of the
Original Credit Agreement (as previously amended, restated or otherwise
modified) pursuant to this Agreement.

       

      (c)           On
and after the Closing Date, (i) each reference in the Loan Documents to the
"Credit Agreement", "thereunder", "thereof" or similar words referring to the
Credit Agreement shall mean and be a reference to this Agreement and (ii) each
reference in the Loan Documents to a "Note" shall mean and be a Note as defined
in this Agreement.

       

      SECTION
10.15  Forum
Selection and Consent to Jurisdiction.  ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE AGENT, THE LENDERS OR ANY CREDIT
PARTY SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF
ILLINOIS OR IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN  DISTRICT OF ILLINOIS; PROVIDED, HOWEVER, THAT ANY
SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE
BROUGHT, AT THE AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND.  THE BORROWER HEREBY
EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE
OF ILLINOIS AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
ILLINOIS FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND
IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION
WITH SUCH LITIGATION.  BORROWER FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE
WITHIN OR WITHOUT THE STATE OF ILLINOIS.  THE BORROWER HEREBY
EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY
SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT
ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.  TO THE
EXTENT THAT THE BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM
JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR
NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR
OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, EACH SUCH CREDIT PARTY HEREBY
IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS.


      
        
           


        

        
          80

          
            

          

        

        
           


        

      

       

      SECTION
10.16  Waiver of Jury
Trial.  THE AGENT, THE LENDERS AND THE BORROWER HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF THE AGENT, THE LENDERS OR THE BORROWER.  THE BORROWER
ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION
FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO
WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
AGENT AND THE LENDERS ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER LOAN
DOCUMENT.

       

      SECTION
10.17  USA
Patriot Act Notice.

       

      Each of the Agent and each 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 on October 26, 2001))
(the “Patriot Act”), each of the Agent and each Lender 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 the Lender to identify the Borrower in accordance with the Patriot
Act.

      


      *    *    *


      
        
           


        

        
          81

          
            

          

        

        
           


        

      


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

       

      
        
          
            	
                    NOVAMED,
      INC.

                  
	 
      	 
      
	
                    By

                  	
                     /s/ Scott T.
  Macomber

                  
	 
      	
                    Title:  EVP
      and CFO

                  
	 
      	 
      
	
                    NATIONAL
      CITY BANK,

                  
	
                    Individually
      as a Lender, as Letter of Credit

                  
	
                    Issuer
      and as Agent

                  
	 
      	 
      
	
                    By

                  	
                     /s/ James Kershner

                  
	 
      	
                    Title:  Vice
      President

                  
	 
      
	
                    BANK OF AMERICA, N.A.,
      Individually as a

                  
	
                    Lender

                  
	 
      	 
      
	
                    By

                  	
                     /s/ Sophia Taylor

                  
	 
      	
                    Title:  Senior
      Vice President

                  
	 
      	 
      
	
                    TD BANKNORTH,
      Individually as a

                  
	
                    Lender

                  
	 
      	 
      
	
                    By

                  	
                     /s/ Linda Fournier

                  
	 
      	
                    Title:
      CLO

                  
	 
      	 
      
	
                    SIEMENS FINANCIAL SERVICES,
      INC.,

                  
	
                    Individually
      as a Lender

                  
	 
      	 
      
	
                    By

                  	
                     /s/ Carol Walters

                  
	 
      	
                    Title:  Vice
      President – Documentation

                  
	 
      	 
      
	
                    FIRSTMERIT BANK, N.A.,
      Individually as a

                    Lender

                  
	 
      	 
      
	
                    By

                  	
                     /s/ Robert G.
  Morlan

                  
	 
      	
                    Title:  Senior
      Vice President

                  


          

        

      

    

     

     

    
      
        
        

      

      
        82

        
          

        

      

      
        
        

      

    

    
      
        
        

      

      


      
        Schedules
and Exhibits*

      

      


      
        	
                SCHEDULE
      1

              	
                --

              	
                Agreed
      EBITDA Formula

              
	
                SCHEDULE
      6.3

              	
                --

              	
                Approvals

              
	
                SCHEDULE
      6.8

              	
                --

              	
                Subsidiaries

              
	
                SCHEDULE
      6.10

              	
                --

              	
                Tax
      Matters

              
	
                SCHEDULE
      6.17

              	
                --

              	
                Existing
      Indebtedness

              
	
                SCHEDULE
      6.22

              	
                --

              	
                Insurance

              
	
                SCHEDULE
      6.21

              	
                --

              	
                Licensing
      and Accreditation

              
	
                SCHEDULE
      6.28

              	
                --

              	
                Capitalization

              
	
                SCHEDULE
      7.1.4

              	
                --

              	
                Insurance

              
	
                SCHEDULE
      7.2.3

              	
                --

              	
                Existing
      Liens

              
	
                SCHEDULE
      7.2.5(a)

              	
                --

              	
                Existing
      Investments

              
	
                SCHEDULE
      7.2.5(b)

              	
                --

              	
                Deposit
      Accounts

              
	
                SCHEDULE
      7.2.8

              	
                --

              	
                Subsidiaries
      to be Dissolved

              
	
                SCHEDULE
      10.1

              	
                --

              	
                Commitment
      Percentages

              
	
                SCHEDULE
      10.2

              	
                --

              	
                Notice
      Information

              


      

      


       

      
        	
                EXHIBIT
      A

              	
                Form
      of Note

              
	
                EXHIBIT
      B

              	
                Form
      of Borrowing Request

              
	
                EXHIBIT
      C

              	
                Form
      of Continuation/Conversion Notice

              
	
                EXHIBIT
      D

              	
                Form
      of Lender Assignment Agreement

              
	
                EXHIBIT
      E

              	
                Form
      of Opinion of Counsel to the Borrower

              
	
                EXHIBIT
      F

              	
                Permitted
      Asset Dispositions

              


      

       

      *
NovaMed, Inc. agrees to furnish supplementally a copy of any omitted schedule or
exhibit to the Securities and Exchange Commission upon request.