Exhibit 10.3


 


*              Portions
of this exhibit have been omitted pursuant to a request for confidential
treatment and have been filed separately with the Commission.


 


CREDIT AGREEMENT


 


dated as of


 


August 23, 2007


 


among


 


SYMBOL HOLDINGS CORPORATION,


as Holdings


 


SYMBOL MERGER SUB, INC. (to be
merged with and into


SYMBION, INC.),


as the Borrower


 


The Lenders Party Hereto from
Time to Time


 


MERRILL LYNCH CAPITAL
CORPORATION,


as Administrative Agent and
Collateral Agent


 


BANK OF AMERICA, N.A.,


as Syndication Agent


 


and


 


THE ROYAL BANK OF SCOTLAND PLC,


FIFTH THIRD BANK


as Co-Documentation Agents


 






 


MERRILL LYNCH & CO.,


MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED AND


BANC OF AMERICA SECURITIES LLC,


as Joint Lead Arrangers and
Joint Lead Bookrunners


 


Cahill Gordon & Reindel LLP


80 Pine Street


New York, NY 10005


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE I

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Definitions

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 1.01.

  	
   

  	
  Defined Terms

  	
   

  	
  2

  
	
  SECTION 1.02.

  	
   

  	
  Classification of Loans and Borrowings

  	
   

  	
  32

  
	
  SECTION 1.03.

  	
   

  	
  Terms Generally

  	
   

  	
  32

  
	
  SECTION 1.04.

  	
   

  	
  Accounting Terms; GAAP

  	
   

  	
  32

  
	
  SECTION 1.05.

  	
   

  	
  Pro Forma Calculations

  	
   

  	
  33

  
	
   

  	
   

  	
  ARTICLE II

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  The Credits

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.01.

  	
   

  	
  Commitments

  	
   

  	
  33

  
	
  SECTION 2.02.

  	
   

  	
  Loans and Borrowings

  	
   

  	
  33

  
	
  SECTION 2.03.

  	
   

  	
  Requests for Borrowings

  	
   

  	
  34

  
	
  SECTION 2.04.

  	
   

  	
  Swingline Loans

  	
   

  	
  35

  
	
  SECTION 2.05.

  	
   

  	
  Letters of Credit

  	
   

  	
  36

  
	
  SECTION 2.06.

  	
   

  	
  Funding of Borrowings

  	
   

  	
  39

  
	
  SECTION 2.07.

  	
   

  	
  Interest Elections

  	
   

  	
  40

  
	
  SECTION 2.08.

  	
   

  	
  Termination and Reduction of Commitments

  	
   

  	
  41

  
	
  SECTION 2.09.

  	
   

  	
  Repayment of Loans; Evidence of Debt

  	
   

  	
  41

  
	
  SECTION 2.10.

  	
   

  	
  Amortization of Term Loans

  	
   

  	
  42

  
	
  SECTION 2.11.

  	
   

  	
  Prepayment of Loans

  	
   

  	
  44

  
	
  SECTION 2.12.

  	
   

  	
  Fees

  	
   

  	
  46

  
	
  SECTION 2.13.

  	
   

  	
  Interest

  	
   

  	
  47

  
	
  SECTION 2.14.

  	
   

  	
  Alternate Rate of Interest

  	
   

  	
  48

  
	
  SECTION 2.15.

  	
   

  	
  Increased Costs

  	
   

  	
  48

  
	
  SECTION 2.16.

  	
   

  	
  Break Funding Payments

  	
   

  	
  49

  
	
  SECTION 2.17.

  	
   

  	
  Taxes

  	
   

  	
  50

  
	
  SECTION 2.18.

  	
   

  	
  Payments Generally; Pro Rata Treatment; Sharing of Setoffs

  	
   

  	
  51

  
	
  SECTION 2.19.

  	
   

  	
  Mitigation Obligations; Replacement of Lenders

  	
   

  	
  53

  
	
  SECTION 2.20.

  	
   

  	
  Incremental Extensions of Credit

  	
   

  	
  53

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE III

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Representations and Warranties

  	
   

  	
   

  
	
  SECTION 3.01.

  	
   

  	
  Organization; Power

  	
   

  	
  54

  
	
  SECTION 3.02.

  	
   

  	
  Authorization; Enforceability

  	
   

  	
  55

  
	
  SECTION 3.03.

  	
   

  	
  Governmental Approvals; No Conflicts

  	
   

  	
  55

  
	
  SECTION 3.04.

  	
   

  	
  Financial Condition; No Material Adverse Change

  	
   

  	
  55

  
	
  SECTION 3.05.

  	
   

  	
  Properties

  	
   

  	
  56

  
	
  SECTION 3.06.

  	
   

  	
  Litigation

  	
   

  	
  56

  



 


i

















 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.07.

  	
   

  	
  Compliance with Laws

  	
   

  	
  56

  
	
  SECTION 3.08.

  	
   

  	
  Investment Company Status

  	
   

  	
  56

  
	
  SECTION 3.09.

  	
   

  	
  Taxes

  	
   

  	
  56

  
	
  SECTION 3.10.

  	
   

  	
  ERISA

  	
   

  	
  57

  
	
  SECTION 3.11.

  	
   

  	
  Disclosure

  	
   

  	
  57

  
	
  SECTION 3.12.

  	
   

  	
  Subsidiaries

  	
   

  	
  57

  
	
  SECTION 3.13.

  	
   

  	
  [Reserved]

  	
   

  	
  57

  
	
  SECTION 3.14.

  	
   

  	
  Labor Matters

  	
   

  	
  57

  
	
  SECTION 3.15.

  	
   

  	
  Solvency

  	
   

  	
  57

  
	
  SECTION 3.16.

  	
   

  	
  [Reserved]

  	
   

  	
  58

  
	
  SECTION 3.17.

  	
   

  	
  Reimbursement from Third Party Payors

  	
   

  	
  58

  
	
  SECTION 3.18.

  	
   

  	
  Fraud and Abuse; Licenses

  	
   

  	
  58

  
	
  SECTION 3.19.

  	
   

  	
  Margin Regulations

  	
   

  	
  59

  
	
  SECTION 3.20.

  	
   

  	
  [Reserved]

  	
   

  	
  59

  
	
  SECTION 3.21.

  	
   

  	
  Intellectual Property; Licenses, Etc.

  	
   

  	
  59

  
	
  SECTION 3.22.

  	
   

  	
  Security Documents

  	
   

  	
  59

  
	
  SECTION 3.23.

  	
   

  	
  Environmental Compliance

  	
   

  	
  60

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE IV

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Conditions

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.01.

  	
   

  	
  Effective Date

  	
   

  	
  61

  
	
  SECTION 4.02.

  	
   

  	
  Each Credit Event

  	
   

  	
  62

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE V

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Affirmative Covenants

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.01.

  	
   

  	
  Financial Statements and Other Information

  	
   

  	
  63

  
	
  SECTION 5.02.

  	
   

  	
  Notices of Material Events

  	
   

  	
  65

  
	
  SECTION 5.03.

  	
   

  	
  Information Regarding Collateral

  	
   

  	
  65

  
	
  SECTION 5.04.

  	
   

  	
  Existence; Conduct of Business

  	
   

  	
  65

  
	
  SECTION 5.05.

  	
   

  	
  Payment of Obligations

  	
   

  	
  66

  
	
  SECTION 5.06.

  	
   

  	
  Maintenance of Properties

  	
   

  	
  66

  
	
  SECTION 5.07.

  	
   

  	
  Insurance

  	
   

  	
  66

  
	
  SECTION 5.08.

  	
   

  	
  [Reserved]

  	
   

  	
  66

  
	
  SECTION 5.09.

  	
   

  	
  Books and Records; Inspection and Audit
  Rights

  	
   

  	
  66

  
	
  SECTION 5.10.

  	
   

  	
  Compliance with Laws

  	
   

  	
  66

  
	
  SECTION 5.11.

  	
   

  	
  Use of Proceeds and Letters of Credit

  	
   

  	
  66

  
	
  SECTION 5.12.

  	
   

  	
  Additional Subsidiaries

  	
   

  	
  67

  
	
  SECTION 5.13.

  	
   

  	
  Further Assurances

  	
   

  	
  67

  
	
  SECTION 5.14.

  	
   

  	
  Environmental Matters

  	
   

  	
  67

  
	
  SECTION 5.15.

  	
   

  	
  Designation of Subsidiaries

  	
   

  	
  68

  
	
  SECTION 5.16.

  	
   

  	
  Post Closing Matters

  	
   

  	
  69

  



 


ii

















 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE VI

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Negative Covenants

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.01.

  	
   

  	
  Indebtedness; Certain Equity Securities

  	
   

  	
  70

  
	
  SECTION 6.02.

  	
   

  	
  Liens

  	
   

  	
  73

  
	
  SECTION 6.03.

  	
   

  	
  Fundamental Changes

  	
   

  	
  74

  
	
  SECTION 6.04.

  	
   

  	
  Investments, Loans, Advances, Guarantees
  and Acquisitions

  	
   

  	
  75

  
	
  SECTION 6.05.

  	
   

  	
  Asset Sales

  	
   

  	
  78

  
	
  SECTION 6.06.

  	
   

  	
  Sale and Leaseback Transactions

  	
   

  	
  80

  
	
  SECTION 6.07.

  	
   

  	
  Swap Agreements

  	
   

  	
  80

  
	
  SECTION 6.08.

  	
   

  	
  Restricted Payments

  	
   

  	
  80

  
	
  SECTION 6.09.

  	
   

  	
  Transactions with Affiliates

  	
   

  	
  82

  
	
  SECTION 6.10.

  	
   

  	
  Restrictive Agreements

  	
   

  	
  84

  
	
  SECTION 6.11.

  	
   

  	
  Amendment of Material Documents

  	
   

  	
  86

  
	
  SECTION 6.12.

  	
   

  	
  Senior Secured Leverage Ratio

  	
   

  	
  86

  
	
  SECTION 6.13.

  	
   

  	
  Fiscal Year

  	
   

  	
  86

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE VII

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Events of Default

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.01.

  	
   

  	
  Events of Default

  	
   

  	
  86

  
	
  SECTION 7.02.

  	
   

  	
  Borrower’s Right to Cure

  	
   

  	
  89

  
	
  SECTION 7.03.

  	
   

  	
  Exclusion of Immaterial Subsidiaries

  	
   

  	
  89

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE VIII

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  The Agents

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.01.

  	
   

  	
  The Agents

  	
   

  	
  90

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE IX

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Miscellaneous

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9.01.

  	
   

  	
  Notices

  	
   

  	
  92

  
	
  SECTION 9.02.

  	
   

  	
  Waivers; Amendments

  	
   

  	
  94

  
	
  SECTION 9.03.

  	
   

  	
  Expenses; Indemnity; Damage Waiver

  	
   

  	
  97

  
	
  SECTION 9.04.

  	
   

  	
  Successors and Assigns

  	
   

  	
  98

  
	
  SECTION 9.05.

  	
   

  	
  Survival

  	
   

  	
  101

  
	
  SECTION 9.06.

  	
   

  	
  Counterparts; Integration; Effectiveness

  	
   

  	
  101

  
	
  SECTION 9.07.

  	
   

  	
  Severability

  	
   

  	
  101

  
	
  SECTION 9.08.

  	
   

  	
  Right of Setoff

  	
   

  	
  101

  
	
  SECTION 9.09.

  	
   

  	
  Governing Law; Jurisdiction; Consent to
  Service of Process

  	
   

  	
  102

  
	
  SECTION 9.10.

  	
   

  	
  WAIVER OF JURY TRIAL

  	
   

  	
  102

  
	
  SECTION 9.11.

  	
   

  	
  Headings

  	
   

  	
  103

  
	
  SECTION 9.12.

  	
   

  	
  Confidentiality

  	
   

  	
  103

  
	
  SECTION 9.13.

  	
   

  	
  Interest Rate Limitation

  	
   

  	
  103

  
	
  SECTION 9.14.

  	
   

  	
  USA Patriot Act

  	
   

  	
  103

  



 


iii

















 


	
  SECTION 9.15.

  	
   

  	
  Release of Guarantee and Collateral

  	
   

  	
  104

  



 


iv

















 


	
  SCHEDULES:

  	
   

  
	
   

  	
   

  
	
  Schedule 1.01(a)

  	
  — Existing Letters of Credit

  
	
  Schedule 1.01(c)

  	
  — Specified Subsidiaries

  
	
  Schedule 2.01

  	
  — Commitments

  
	
  Schedule 3.03

  	
  — No Conflicts

  
	
  Schedule 3.05

  	
  — Real Property

  
	
  Schedule 3.06

  	
  — Litigation

  
	
  Schedule 3.12

  	
  — Subsidiaries

  
	
  Schedule 5.01

  	
  — Website Address

  
	
  Schedule 6.01

  	
  — Existing Indebtedness

  
	
  Schedule 6.02

  	
  — Existing Liens

  
	
  Schedule 6.04

  	
  — Existing Investments

  
	
  Schedule 6.05

  	
  — Sales, Transfers and Dispositions

  
	
  Schedule 6.08

  	
  — Outstanding Warrants

  
	
  Schedule 6.09

  	
  — Existing Transactions with Affiliates

  
	
  Schedule 6.10

  	
  — Existing Restrictions

  
	
   

  	
   

  
	
  EXHIBITS:

  	
   

  
	
   

  	
   

  
	
  Exhibit A

  	
  — Form of Assignment and Assumption

  
	
  Exhibit B-1

  	
  — Form of Opinion of Davis
  Polk & Wardwell

  
	
  Exhibit B-2

  	
  — Form of Opinion of Waller Lansden
  Dortch & Davis, LLP

  
	
  Exhibit C

  	
  — Form of Collateral Agreement

  
	
  Exhibit D

  	
  — Form of Perfection Certificate

  
	
  Exhibit E

  	
  — Form of Borrowing Request

  
	
  Exhibit F

  	
  — Form of Interest Election Request

  
	
  Exhibit G-1

  	
  — Form of Term Loan Note

  
	
  Exhibit G-2

  	
  — Form of Revolving Credit Note

  



 

















 


CREDIT
AGREEMENT dated as of August 23, 2007, among SYMBOL MERGER SUB, INC. (to
be merged with and into SYMBION, INC.), a Delaware corporation (the “Borrower”),
SYMBOL HOLDINGS CORPORATION, a Delaware corporation (“Holdings”), the
LENDERS party hereto from time to time, MERRILL LYNCH CAPITAL CORPORATION, as
Administrative Agent and Collateral Agent, MERRILL LYNCH & CO.,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED and BANC OF AMERICA
SECURITIES LLC, as joint lead arrangers and joint bookrunners, BANK OF AMERICA,
N.A., as Syndication Agent, and THE ROYAL BANK OF SCOTLAND PLC and FIFTH THIRD
BANK, as Co-Documentation Agents.


 


Pursuant to
the Agreement and Plan of Merger dated as of April 24, 2007 (the “Merger
Agreement”), by and between Merger Sub and the Acquired Business, on the
Effective Date, Merger Sub will merge with and into the Acquired Business (the “Merger”),
with the Acquired Business surviving the Merger and acceding to all of Merger
Sub’s rights and obligations hereunder.


 


Immediately
prior to or substantially concurrently with the consummation of the Merger, (a) the
Permitted Investors will contribute cash to Holdings (the “Equity
Contributions”) in an aggregate amount that together with the value of the
equity of Holdings held by members of management (the “Rollover Equity”)
will be equal to at least 25% of the consolidated capitalization of Holdings
and its subsidiaries after giving effect to the Transactions, and Holdings will
contribute to the Borrower the portion of such cash contributions not used to
pay Transaction Costs; (b) the Borrower will cause the repayment of, and
terminate all commitments under and all liens in connection with, the Existing
Credit Facility (the “Repayment”); and (c) the Borrower will enter
into the Bridge Loan Credit Agreement.


 


The Borrower
has requested that the Lenders extend credit in the form of (a) Tranche A
Term Loans on the Effective Date in an aggregate principal amount not to exceed
$125,000,000, (b) Tranche B Term Loans on the Effective Date in an
aggregate principal amount not to exceed $125,000,000 and (c) Revolving
Loans, Swingline Loans and Letters of Credit at any time and from time to time
during the Revolving Availability Period, in an aggregate principal amount at
any time outstanding not to exceed $100,000,000.


 


The proceeds
of the Term Loans and any Revolving Loans borrowed on the Effective Date will
be used by the Borrower on the Effective Date, solely (i) first, to
pay the Transaction Costs, (ii) second, to pay all principal,
interest, fees and other amounts outstanding under the Existing Credit Facility
and (iii) third, together with the Equity Contributions, to pay the
merger consideration (the “Merger Consideration”) required by the Merger
Agreement; provided that no more than $5,000,000 in Revolving Loans may
be drawn on the Effective Date.  The
proceeds of Revolving Loans borrowed after the Effective Date, Swingline Loans
and Letters of Credit will be used by the Borrower for working capital and
general corporate purposes (including Permitted Acquisitions).


 


The Lenders
are willing to extend such credit to the Borrower, and the Issuing Bank is
willing to issue Letters of Credit for the account of the Borrower, on the
terms and subject to the conditions set forth herein.  Accordingly, the parties hereto agree as follows:


 

















 


ARTICLE I


 


Definitions


 


SECTION 1.01.                                    Defined Terms.  As used in this Agreement, the following
terms have the meanings specified below:


 


“ABR”,
when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate
determined by reference to the Alternate Base Rate.


 


“Acquired
Business” means Symbion, Inc., a Delaware corporation.  It is understood and agreed that upon and
following the consummation of the Merger, the Acquired Business shall be the Borrower
hereunder.


 


“Acquisition
Documents” means the Merger Agreement, the other agreements to be entered
into in connection with the Merger and all schedules, exhibits and annexes to
each of the foregoing.


 


“Additional
Lender” has the meaning set forth in Section 2.20.


 


“Administrative
Agent” means Merrill Lynch Capital Corporation, in its capacity as administrative
agent for the Lenders under the Loan Documents.


 


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


 


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


 


“Agent Affiliates”
has the meaning set forth in Section 8.01.


 


“Agents”
means the Administrative Agent, the Collateral Agent, the Syndication Agent and
the Documentation Agents.


 


“Agreement”
means this Credit Agreement, as the same may be renewed, extended, modified,
supplemented or amended from time to time.


 


“Alternate
Base Rate” means, for any day, a rate per annum equal to the greater of (a) the
Prime Rate in effect on such day and (b) the Federal Funds Effective Rate
in effect on such day plus 1/2 of 1%. 
Any change in the Alternate Base Rate due to a change in the Prime Rate
or the Federal Funds Effective Rate shall be effective from and including the
effective date of such change in the Prime Rate or the Federal Funds Effective
Rate, respectively.


 


“Applicable
Percentage” means, with respect to any Revolving Lender, the percentage of
the aggregate Revolving Commitments represented by such Lender’s Revolving
Commitment.  If the Revolving Commitments
have terminated or expired, the Applicable Percentages shall be determined
based upon the Revolving Commitments most recently in effect, giving effect to
any assignments that occur thereafter.


 


1

















 


“Applicable
Rate” means, for any day with respect to (a) any ABR Loan or Eurodollar
Loan that is a Revolving Loan or (b) the commitment fees payable hereunder
in respect of the Revolving Commitments, as applicable, the applicable rate per
annum set forth below under the caption “Revolving Loan ABR Spread”, “Revolving
Loan Eurodollar Spread” or “Revolving Commitment Fee Rate”, as applicable, in
each case, based upon the Leverage Ratio as of the most recent determination
date, provided that prior to the date of delivery to the Administrative
Agent, pursuant to Section 5.01, of the Borrower’s consolidated financial
information for the Borrower’s first full fiscal quarter ending after the
Effective Date, the “Applicable Rate” for purposes of clauses (a) and (b) above
shall be the applicable rate per annum set forth below in Category 1:


 


	
  Leverage Ratio

  	
   

  	
  Revolving

  Loan ABR

  Spread

  	
   

  	
  Revolving

  Loan

  Eurodollar

  Spread

  	
   

  	
  Revolving

  Commitment

  Fee Rate

  	
   

  
	
  Category 1
 > 3.25:1.00

  	
   

  	
  2.25

  	
  %

  	
  3.25

  	
  %

  	
  0.50

  	
  %

  
	
  Category 2

  < 3.25:1.00 and

  > 2.75:1.00

  	
   

  	
  2.00

  	
  %

  	
  3.00

  	
  %

  	
  0.50

  	
  %

  
	
  Category 3
 < 2.75:1.00

  	
   

  	
  1.75

  	
  %

  	
  2.75

  	
  %

  	
  0.50

  	
  %

  



 


The Applicable
Rate for Term Loans shall at all times be 3.25% per annum for Eurodollar Loans
and 2.25% per annum for ABR Loans.


 


For purposes
of the foregoing, (x) the Leverage Ratio shall be determined on a Pro
Forma Basis as of the end of each fiscal quarter of the Borrower based upon the
Borrower’s consolidated financial statements delivered pursuant to Section 5.01(a) or
(b) and (y) each change in the Applicable Rate resulting from a
change in the Leverage Ratio shall be effective during the period commencing on
and including the date of delivery to the Administrative Agent of such
consolidated financial statements indicating such change and ending on the date
immediately preceding the effective date of the next such change, provided
that the Applicable Rate shall be the applicable rate per annum set forth above
in Category 1 (i) at any time that an Event of Default under Section 7.01(a),
(b), (h) or (i) has occurred and is continuing or (ii) if the
Borrower fails to deliver the consolidated financial statements required to be
delivered by it pursuant to Section 5.01(a) or (b), during the period
from the expiration of the time for delivery thereof until such consolidated
financial statements are delivered.  The
Administrative Agent shall notify the Borrower and the Lenders upon any change
in the Applicable Rate in accordance with the proviso in the immediately
preceding sentence provided that the failure to give such notice shall
not affect the validity of such change in the Applicable Rate.


 


“Approved Electronic Communications” means each
notice, demand, communication, information, document and other material that
any Loan Party is obligated to, or otherwise chooses to, provide to the
Administrative Agent pursuant to any Loan Document or the transactions
contemplated therein, including (a) any supplement, joinder or amendment
to the Security Documents and any other written contractual obligation
delivered or required to be delivered in respect of any Loan Document or the
transactions contemplated therein and (b) any financial statement,
financial and other report, notice, request, certificate and other information
material.


 


“Approved
Electronic Platform” has the meaning set forth in Section 8.01.


 


2

















 


“Approved
Fund” has the meaning set forth in Section 9.04(b).


 


“Arrangers”
means Merrill Lynch, Pierce, Fenner & Smith Incorporated and Banc of
America Securities LLC.


 


“Assignment
and Assumption” means an assignment and assumption entered into by a Lender
and an assignee (with the consent of any party whose consent is required by Section 9.04)
and accepted by the Administrative Agent, in the form of Exhibit A
or any other form approved by the Administrative Agent.


 


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


 


“Board of
Directors” shall mean, with respect to any Person, (i) in the case of
any corporation, the board of directors of such Person or any committee thereof
duly authorized to act on behalf of such board, (ii) in the case of any
limited liability company, the board of managers of such Person, (iii) in
the case of any partnership, the board of directors or board of managers of the
general partner of such Person and (iv) in any other case, the functional
equivalent of the foregoing.


 


“Borrower”
has the meaning set forth in the preamble to this Agreement.


 


“Borrowing”
means (a) Loans of the same Class and Type made, converted or
continued on the same date and, in the case of Eurodollar Loans, as to which a
single Interest Period is in effect, or (b) a Swingline Loan.


 


“Borrowing
Request” means a request by the Borrower for a Borrowing in accordance with
Section 2.03, provided that a written Borrowing Request shall be
substantially in the form of Exhibit E, or such other form as shall
be approved by the Administrative Agent.


 


“Bridge
Loan Credit Agreement” means the Credit Agreement, dated the Effective
Date, among the Borrower, Holdings, the lenders party thereto from time to time
and Merrill Lynch Capital Corporation, as Administrative Agent.


 


“Bridge
Loan Documents” means the “Loan Documents” as defined in the Bridge Loan
Credit Agreement.


 


“Business
Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain
closed, provided that when used in connection with a Eurodollar Loan,
the term “Business Day” shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.


 


“Calculation
Date” means the date on which any event for which the calculation of the
Fixed Charge Coverage Ratio, the Senior Secured Leverage Ratio or the Leverage
Ratio is required occurs.


 


“Capital
Expenditures” means, for any period (and without duplication), (a) the
additions to property, plant and equipment and other capital expenditures of
the Borrower and any of the Restricted Subsidiaries that are (or would be) set
forth in a consolidated statement of cash flows of the Borrower for such period
prepared in accordance with GAAP and (b) Capital Lease Obligations
incurred by the Borrower and the Restricted Subsidiaries during such period.


 


3

















 


“Capital
Lease Obligations” of any Person means the obligations of such Person to
pay rent or other amounts under any lease of (or other arrangement conveying
the right to use) real or personal property, or a combination thereof, which
obligations are required to be classified and accounted for as capital leases
on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.


 


“Center”
means a surgery center, a diagnostic imaging center, a surgical hospital center
or a hospital located in the United States that in each case provides only
surgical services and services directly related thereto.


 


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


 


“CERCLIS”
means the Comprehensive Environmental Response, Compensation and Liability
Information System maintained by the U.S. Environmental Protection Agency.


 


“Change in
Control” means:


 


(a)                                  prior
to an IPO, the Borrower ceasing to be a direct or indirect wholly owned
subsidiary of Holdings,


 


(b)                                 prior
to an IPO, the failure by the Permitted Investors to own, directly or indirectly,
beneficially or of record, Equity Interests in Holdings representing a majority
of the aggregate ordinary voting power represented by the issued and
outstanding Equity Interests in Holdings,


 


(c)                                  upon
and after an IPO, the acquisition of ownership, directly or indirectly, beneficially
or of record, by any Person or group (within the meaning of the Securities Exchange
Act of 1934, as amended, and the rules of the SEC thereunder as in effect
on the date hereof) of Equity Interests in Holdings representing 50% or more of
the aggregate ordinary voting power represented by the issued and outstanding
Equity Interests in Holdings, or


 


(d)                                 occupation
of a majority of the seats (other than vacant seats) on the Board of Directors
of Holdings by Persons who were not (i) nominated by at least a majority
of the Board of Directors of Holdings, (ii) appointed by at least a
majority of directors so nominated or (iii) nominated by the Permitted
Investors, or


 


(e)                                  the
occurrence of a “Change in Control”, as defined in the Bridge Loan Documents or
the documents governing the Take Out Notes.


 


“Change in
Law” means (a) the adoption of any law, rule or regulation after
the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender
or the Issuing Bank (or, for purposes of Section 2.15(b), by any lending
office of such Lender or by such Lender’s or the Issuing Bank’s holding
company, if any) with any request, guideline or directive (whether or not
having the force of law) of any Governmental Authority made or issued after the
date of this Agreement.


 


“Charges”
has the meaning set forth in Section 9.13.


 


4

















 


“Class”,
when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Loans, Tranche A Term
Loans, Tranche B Term Loans or Swingline Loans and, when used in reference to
any Commitment, refers to whether such Commitment is a Revolving Commitment, a
Tranche A Commitment or a Tranche B Commitment.


 


“CLO”
has the meaning set forth in Section 9.04(b).


 


“Code”
means the Internal Revenue Code of 1986 and the rules and regulations
promulgated thereunder, as amended from time to time.


 


“Collateral”
means any and all “Collateral”, as defined in any applicable Security Document
(which shall include the Mortgaged Properties), and all other property of
whatever kind subject or purported to be subject from time to time to a Lien
under any Security Document.


 


“Collateral
Agent” means Merrill Lynch Capital Corporation in its capacity as
collateral agent for the Lenders under this Agreement and any Security
Document.


 


“Collateral
Agreement” means the Guarantee and Collateral Agreement among the Loan
Parties and the Collateral Agent, substantially in the form of Exhibit C.


 


“Collateral
and Guarantee Requirement” means the requirement that:


 


(a)                                  the
Collateral Agent shall have received from each Loan Party either (i) a counterpart
of the Collateral Agreement duly executed and delivered on behalf of such Loan
Party or (ii) in the case of any Person that becomes a Loan Party after
the Effective Date, a supplement to the Collateral Agreement, in the form
specified therein, duly executed and delivered on behalf of such Loan Party;


 


(b)                                 all
outstanding Equity Interests of (i) the Borrower and (ii) each wholly
owned Restricted Subsidiary owned directly by any Loan Party shall have been
pledged pursuant to the Collateral Agreement (except that the Loan Parties (i) shall
not be required to pledge more than 65% of the outstanding voting Equity
Interests of any first-tier Foreign Subsidiary and (ii) shall not be
required to pledge or otherwise grant security interests in any assets of a
Foreign Subsidiary) and the Collateral Agent shall have received certificates
or other instruments (if any) representing all such Equity Interests, together
with undated stock powers or other instruments of transfer with respect thereto
endorsed in blank;


 


(c)                                  all
Indebtedness of a Restricted Subsidiary that is not a Loan Party (other than
any such Indebtedness that does not exceed $10,000,000 in the aggregate at any
one time outstanding) that is owing to a Loan Party shall be evidenced by a
Pledged Note and shall have been pledged pursuant to the Collateral Agreement,
and the Collateral Agent shall have received all such Pledged Notes and other
promissory notes required to be delivered pursuant to the Collateral Agreement,
together with undated instruments of transfer with respect thereto;


 


(d)                                 all
documents and instruments, including Uniform Commercial Code financing
statements, required by law or reasonably requested by the Collateral Agent to
be executed, filed, registered or recorded to create the Liens intended to be
created by the Collateral Agreement and perfect such Liens to the extent required
by the Collateral Agreement, shall have been executed, filed, registered or
recorded or delivered to the Collateral Agent for filing, registration or recording;
and


 


5
















 


(e)           the
Collateral Agent shall have received (i) counterparts of a Mortgage with respect
to each Mortgaged Property duly executed and delivered by the record owner of
such Mortgaged Property and (ii) a policy or policies of title insurance
issued by a nationally recognized title insurance company, in an amount not to
exceed the Fair Market Value of such Mortgaged Property, insuring the Lien of
each such Mortgage as a valid Lien on the Mortgaged Property described therein,
free of any other Liens except as expressly permitted by Section 6.02,
together with such customary endorsements and such surveys (to the extent
currently existing), legal opinions (excluding zoning and land use opinions), a
completed Federal Emergency Management Agency Standard Flood Hazard
Determination with respect to each Mortgaged Property and other documents as
the Collateral Agent or the Required Lenders may reasonably request with
respect to any such Mortgage or Mortgaged Property;


 


Notwithstanding anything to the contrary in
this Agreement or any Security Document, no Loan Party shall be required to
pledge or grant security interests in particular assets if, in the reasonable
judgment of the Administrative Agent or the Collateral Agent, the costs of
creating or perfecting such pledges or security interests in such assets
(including any mortgage, stamp, intangibles or other tax) are excessive in relation
to the benefits to the Lenders therefrom. 
The Administrative Agent may grant extensions of time for the perfection
of security interests in or the obtaining of title insurance or surveys with
respect to particular assets (including extensions beyond the Effective Date
for the perfection of security interests in the assets of the Loan Parties on
such date) where it reasonably determines, in consultation with the Borrower,
that perfection cannot be accomplished without undue effort or expense by the
time or times at which it would otherwise be required by this Agreement or the
Security Documents.  Notwithstanding the
foregoing provisions of this definition or anything in this Agreement or any
other Loan Document to the contrary, Liens required to be granted from time to
time pursuant to the Collateral and Guarantee Requirement shall be subject to
exceptions and limitations set forth in the Security Documents.


 


“Commitment” means a Revolving Commitment, a
Tranche A Commitment, a Tranche B Commitment, a Commitment in respect of an
Incremental Extension of Credit (if any) or any combination thereof (as the context
requires).


 


“Consolidated EBITDA”
means, with respect to any specified Person for any period, Consolidated Net
Income for such Person for such period plus


 


(a)           without
duplication and to the extent deducted in determining such Consolidated Net
Income for such period, the sum of:  (i) consolidated
interest expense (and solely for purposes of calculating the Fixed Charge
Coverage Ratio, other Fixed Charges) of the Borrower and its Restricted
Subsidiaries for such period and, to the extent not reflected in such total
interest expense, increased by payments made in respect of hedging obligations
or other derivative instruments entered into for the purpose of hedging
interest rate risk, minus any payments received in respect of such hedging
obligations or other derivative instruments, (ii) consolidated Tax expense
of the Borrower and its Restricted Subsidiaries based on income, profits or
capital, including state, franchise, capital and similar taxes and withholding
taxes paid or accrued during such period, (iii) all amounts attributable
to depreciation and amortization expense of the Borrower and its Restricted
Subsidiaries for such period, (iv) any Non-Cash Charges for such period, (v) Transaction
Costs made or incurred by the Borrower and its Restricted Subsidiaries in connection
with the Transactions for such period that are paid, accrued or reserved for
within 365 days of the consummation of the Transactions, (vi) any
extraordinary, unusual or non-recurring fees, cash charges and other cash
expenses for such period (A) made or incurred by the Borrower and its
Restricted Subsidiaries in connection with any Permitted Acquisition, including
severance, relocation and facilities closing costs, including any earnout
payments, whether or not accounted 


 


7

















 


for as such that are paid,
accrued or reserved for within 365 days of such transaction, or (B) incurred
in connection with the issuance of Equity Interests or Indebtedness or the
extinguishment of Indebtedness, (vii) cash expenses incurred during such
period in connection with a Permitted Acquisition to the extent that such
expenses are reimbursed in cash during such period pursuant to indemnification
provisions of any agreement relating to such transaction, (viii) fees paid
to the Sponsor or any Sponsor Affiliate under Section 6.09(j) or
6.09(r), (ix) cash expenses incurred during such period in connection with
extraordinary casualty events to the extent such expenses are reimbursed in
cash by insurance during such period, (x) income attributable to
discontinued operations (excluding income attributable to assets or operations
that have been disposed of during such period) and (xi) Net Income of any
Person to the extent excluded from the calculation of Consolidated Net Income
pursuant to clause (1) of the definition thereof (i.e., the minority interest
of the Borrower in the entities generating such Net Income) for such period; minus


 


(b)           without
duplication and to the extent included in determining such Consolidated Net
Income, (i) any cash payments made during such period in respect of
Non-Cash Charges described in clause (a)(iv) taken in a prior period
or taken in such period, (ii) any non-cash items of income for such period
(other than the accrual of revenue or recording of receivables in the ordinary
course of business) and (iii) losses attributable to discontinued
operations (excluding losses attributable to assets or operations that have
been disposed of during such period), all determined on a consolidated basis in
accordance with GAAP,


 


(c)           (without
duplication) plus unrealized losses and minus unrealized gains in
each case in respect of Swap Agreements, as determined in accordance with GAAP,
plus


 


(d)           with
respect to any Restricted Subsidiary that is not wholly owned by the Borrower
or a Subsidiary Loan Party that has any outstanding Pledged Note(s) issued
to the Borrower or any Subsidiary Loan Party, the least of (i) the
minority interest of such Restricted Subsidiary as of the last day of such
period, (ii) the outstanding amount of all Pledged Notes issued by such
Restricted Subsidiary to the Borrower or any Subsidiary Loan Party as of the
last day of such period and (iii) the amount of the Consolidated EBITDA of
such Restricted Subsidiary for such period that is not otherwise included in the
calculation of Consolidated EBITDA for such period, plus


 


(e)           with
respect to any Non-Consolidated Entity that has any outstanding Pledged Note(s) issued
to the Borrower or any Subsidiary Loan Party, the lesser of (i) the outstanding
amount of all Pledged Notes issued by such Non-Consolidated Entity to the
Borrower or a Subsidiary Loan Party as of the last day of such period and (ii) the
amount of the Consolidated EBITDA of such Non-Consolidated Entity for such
period that is not otherwise included in the calculation of Consolidated EBITDA
for such period, all as determined in accordance with GAAP.


 


For the purpose of the definition of Consolidated
EBITDA, “Non-Cash Charges” means (a) losses on asset sales, disposals
or abandonments, (b) any impairment charge or asset write-off or
write-down related to intangible assets, long-lived assets, and investments in
debt and equity securities pursuant to GAAP, (c) all losses from
investments recorded using the equity method, (d) stock-based awards
compensation expense, and (e) other non-cash charges (provided that
if any non-cash charges, expenses and write-downs referred to in this clause (e) represent
an accrual or reserve for potential cash items in any future period, the cash
payment in respect thereof in such future period shall be subtracted from
Consolidated EBITDA to such extent, and excluding amortization of a prepaid
cash item that was paid in a prior period).


 


8

















 


“Consolidated Net Income” means, with respect
to any specified Person for any period, the aggregate of the Net Income of such
specified Person and its subsidiaries (or in the case of the Borrower, its
Restricted Subsidiaries) for such period, on a consolidated basis, determined
in accordance with GAAP; provided that:


 


(1)           the
Net Income (and net loss) of any other Person that is not a Restricted Subsidiary
of such specified Person or that is accounted for by the equity method of
accounting will be excluded; provided that Consolidated Net Income of
the Borrower will be increased by the amount of dividends or other
distributions or other payments actually paid in cash (or to the extent
converted into cash) or Permitted Investments to the Borrower or a Restricted
Subsidiary thereof in respect of such period, to the extent not already
included therein;


 


(2)           solely
for the purposes of any calculation of Excess Cash Flow, the Net Income for
such period of any Restricted Subsidiary (other than any Subsidiary Loan Party)
shall be excluded to the extent that the declaration or payment of dividends or
similar distributions by that Restricted Subsidiary of its Net Income is not at
the date of determination wholly permitted without any prior governmental
approval (which has not been obtained) or, directly or indirectly, by the
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule, or governmental regulation applicable to that
Restricted Subsidiary or its stockholders, unless such restriction with respect
to the payment of dividends or similar distributions has been legally waived; provided
that Consolidated Net Income of the Borrower shall be increased by the amount
of dividends or other distributions or other payments actually paid in cash (or
to the extent converted into cash) or Permitted Investments to the Borrower or
a Restricted Subsidiary in respect of such period, to the extent not already included
therein;


 


(3)           the
cumulative effect of a change in accounting principles will be excluded;


 


(4)           the
amortization of any premiums, fees or expenses incurred in connection with the
Transactions or any amounts required or permitted by Accounting Principles
Board Opinions Nos. 16 (including non-cash write-ups and non-cash charges
relating to inventory and fixed assets, in each case arising in connection with
the Transactions) and 17 (including non-cash charges relating to intangibles
and goodwill), in each case in connection with the Transactions, will be
excluded;


 


(5)           any
gain or loss, together with any related provision for Taxes on such gain or
loss, realized in connection with: (a) any sales of assets out of the
ordinary course of business (it being understood that a sale of assets
comprising discontinued operations shall be deemed a sale of assets out of the
ordinary course of business); or (b) the disposition of any securities by
such Person or any of its Restricted Subsidiaries or the extinguishment of any
Indebtedness of such Person or any of its Restricted Subsidiaries will be
excluded;


 


(6)           any
extraordinary gain or loss, together with any related provision for Taxes on
such extraordinary gain or loss will be excluded;


 


(7)           income
or losses attributable to discontinued operations (including without limitation,
operations disposed during such period whether or not such operations were
classified as discontinued) will be excluded;


 


(8)           any
non-cash charges (i) attributable to applying the purchase method of
accounting in accordance with GAAP, (ii) resulting from the application of
FAS 142 or FAS 144, and 


 


9

















 


(iii) relating to the
amortization of intangibles resulting from the application of FAS 141, will be
excluded;


 


(9)           all
non-cash charges relating to employee benefit or other management or stock
compensation plans of the Borrower or a Restricted Subsidiary (excluding any
such non-cash charge to the extent that it represents an accrual of or reserve
for cash expenses in any future period or amortization of a prepaid cash
expense incurred in a prior period) will be excluded to the extent that such
non-cash charges are deducted in computing such Consolidated Net Income; provided, further, that if the Borrower or any
Restricted Subsidiary of the Borrower makes a cash payment in respect of such
non-cash charge in any period, such cash payment will (without duplication) be
deducted from the Consolidated Net Income of the Borrower for such period;


 


(10)         all
unrealized gains and losses relating to hedging transactions and mark-to-market
of Indebtedness denominated in foreign currencies resulting from the application
of FAS 52 shall be excluded; and


 


(11)         accruals
and reserves that are established within twelve months after the Effective Date
and that are so required to be established as a result of the Transactions in
accordance with GAAP shall be executed.


 


“Contract Consideration” has the meaning set
forth in the definition of “Excess Cash Flow.”


 


“Control” means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of a Person, whether through the ability to exercise voting power, by
contract or otherwise.  “Controlling”
and “Controlled” have meanings correlative thereto.


 


“Cumulative Retained Excess Cash Flow” shall
mean, at any time, (a) the aggregate amount of Excess Cash Flow generated
in each fiscal year of the Borrower that shall have been completed at or prior
to such time to the extent the deliveries required by Section 5.01(a) and
5.01(c)(ii)(B) with respect to such fiscal year shall have been made minus
(b) all prepayments that are or shall be required by Section 2.11(d) with
respect to such Excess Cash Flow generated in all such completed fiscal years.


 


“Cure Amount” has the meaning set forth in Section 7.02(a).


 


“Cure Right” has the meaning set forth in Section 7.02(a).


 


“Default” means any event or condition that
constitutes an Event of Default or which upon notice, lapse of time or both
would, unless cured or waived, become an Event of Default.


 


“Designated Noncash Consideration” means any
non-cash consideration received by the Borrower or a Restricted Subsidiary in
connection with an asset sale pursuant to Section 6.05(g) that is
designated as Designated Noncash Consideration pursuant to an officers’
certificate of the Borrower.


 


“Designation Date” has the meaning set forth
in Section 5.15(a).


 


“Disqualified Equity Interests” means any
Equity Interest that, by its terms (or by the terms of any security into which
it is convertible, or for which it is exchangeable, in each case, at the option
of the holder of the Equity Interest), or upon the happening of any event,
matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or redeemable at the option of the holder 


 


10

















 


of the Equity Interest, in
whole or in part, other than in each case solely in exchange for Qualified
Equity Interests, on or prior to the date that is 90 days after the Tranche B
Maturity Date.  Notwithstanding the
preceding sentence, (x) any Equity Interest that would constitute
Disqualified Equity Interests solely because the holders of the Equity Interest
have the right to require the Borrower or the Subsidiary that issued such Equity
Interest to repurchase such Equity Interest upon the occurrence of a change of
control or an asset sale will not constitute Disqualified Equity Interests if
the terms of such Equity Interest provide that the Borrower may not repurchase
such Equity Interest unless the Borrower would be permitted to do so in
compliance with Section 6.08, (y) any Equity Interest that would
constitute Disqualified Equity Interests solely as a result of any redemption
feature that is conditioned upon, and subject to, compliance with Section 6.08
will not constitute Disqualified Equity Interests and (z) any Equity
Interest issued to any plan for the benefit of employees will not constitute
Disqualified Equity Interests solely because it may be required to be
repurchased by the Borrower or the Subsidiary that issued such Equity Interest
in order to satisfy applicable statutory or regulatory obligations.  The amount of Disqualified Equity Interests
deemed to be outstanding at any time for purposes of this Agreement will be the
maximum amount that the Borrower and its Restricted Subsidiaries may become
obligated to pay upon the maturity of, or pursuant to any mandatory redemption
provisions of, such Disqualified Equity Interests, exclusive of accrued
dividends.


 


“Documentation Agents” means The Royal Bank
of Scotland PLC and Fifth Third Bank, in their capacity as documentation
agents.


 


“dollars” or “$” refers to lawful
money of the United States of America.


 


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


 


“Effective Date” means August 23, 2007.


 


“Environmental Laws” means all applicable
laws (including the common law), rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, or binding agreements issued, promulgated or
entered into by or with any Governmental Authority, relating to the
environment, or the presence, management, Release or threatened Release of any
chemical, waste, pollutant or contaminant or any explosive, radioactive,
infectious, toxic or otherwise hazardous material, substance or waste.


 


“Environmental Liability” means liabilities,
obligations, damages, claims, actions, suits, judgments, orders, fines, penalties,
fees, expenses and costs (including administrative oversight costs, natural
resource damages and medical monitoring, investigation or remediation costs),
whether contingent or otherwise, arising out of or relating to (a) compliance
or non-compliance with any Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any Hazardous Materials,
(c) exposure to any Hazardous Materials, (d) the Release or
threatened Release of any Hazardous Materials or (e) any contract,
agreement or other consensual agreement pursuant to which liability is assumed
or imposed with respect to any of the forgoing.


 


“Environmental Permit” means any permit,
approval, identification number, license or other authorization required under
any Environmental Law and relating to the business of Holdings, the Borrower or
any Subsidiary.


 


“Equity Contributions” has the meaning set
forth in the preamble to this Agreement.


 


11

















 


“Equity Interests” means shares of capital
stock, partnership interests, membership interests in a limited liability
company, beneficial interests in a trust or other equity ownership interests in
a Person, and any warrants, options or other rights entitling the holder
thereof to purchase or acquire any such equity interest from the issuer
thereof.


 


“ERISA” means the Employee Retirement Income
Security Act of 1974 and the regulations promulgated thereunder, as amended
from time to time.


 


“ERISA Affiliate” means any trade or business
(whether or not incorporated) that, together with the Borrower, is treated as a
single employer under Section 414 of the Code.


 


“ERISA Event” means (a) any “reportable
event”, as defined in Section 4043 of ERISA or the regulations issued
thereunder, with respect to a Plan (other than an event for which the 30 day
notice period is waived), (b) the failure to satisfy the minimum funding
standard of Section 412 of the Code or Section 302 of ERISA, whether
or not waived, (c) the failure to make by its due date a required
installment under Section 412(m) of the Code (or Section 430(j) of
the Code, as amended by the Pension Protection Act of 2006) with respect to any
Plan or the failure to make any required contribution to a Multiemployer Plan, (d) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of
ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan, (e) the incurrence by the Borrower or any of its
ERISA Affiliates of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, with respect
to the termination of any Plan, (f) the receipt by the Borrower or any
ERISA Affiliate from the PBGC or a plan administrator of any notice relating to
an intention to terminate any Plan or Plans or to appoint a trustee to
administer any Plan, (g) the incurrence by the Borrower or any of its
ERISA Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan, (h) the receipt by the
Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer
Plan from the Borrower or any ERISA Affiliate of any notice, concerning the
imposition of Withdrawal Liability or a determination that a Multiemployer Plan
is, or is expected to be, insolvent or in reorganization, within the meaning of
Title IV of ERISA, (i) the “substantial cessation of operations” within
the meaning of Section 4062(e) of ERISA with respect to a Plan, (j) the
making of any amendment to any Plan which could directly result in the
imposition of a lien or the posting of a bond or other security or (k) the
occurrence of a nonexempt prohibited transaction (within the meaning of Section 4975
of the Code or Section 406 of ERISA) which, individually or in the
aggregate, is reasonably likely to result in a Material Adverse Effect.


 


“Eurodollar”, when used in reference to any
Loan or Borrowing, refers to whether such Loan, or the Loans comprising such
Borrowing, are bearing interest at a rate determined by reference to the LIBO
Rate.


 


“Event of Default” has the meaning set forth
in Section 7.01.


 


“Excess Cash Flow”
means, for any fiscal year, the sum (without duplication) of:


 


(a)           Consolidated
Net Income for such fiscal year, adjusted to exclude any gains or losses
attributable to Prepayment Events; plus


 


(b)           depreciation,
amortization and other non-cash charges or losses (including deferred income
taxes) deducted in determining such Consolidated Net Income for such fiscal
year; plus


 


12

















 


(c)           the
amount, if any, by which Net Working Capital decreased during such fiscal year
(except as a result of reclassification of items from short-term to long-term);
minus


 


(d)           the
sum of (i) any non-cash gains or non-cash items of income included in determining
Consolidated Net Income for such fiscal year plus (ii) the amount,
if any, by which Net Working Capital increased during such fiscal year (except
as a result of reclassification of items from long-term to short-term); minus


 


(e)           the
amount of cash Capital Expenditures of the Borrower and its Restricted Subsidiaries
in such fiscal year financed with Internally Generated Funds; minus


 


(f)            the
aggregate principal amount of Long-Term Indebtedness or other long-term liabilities
repaid or prepaid by the Borrower and its Restricted Subsidiaries during such
fiscal year, excluding (i) Indebtedness in respect of Revolving Loans,
Swingline Loans and Letters of Credit (unless there is a corresponding
reduction in the aggregate Revolving Commitments), (ii) Term Loans prepaid
pursuant to Section 2.11(a), (c) or (d), and (iii) repayments or
prepayments of Long-Term Indebtedness or other long term-liabilities financed
other than with Internally Generated Funds; minus


 


(g)           cash
Taxes paid in such fiscal year that did not reduce Consolidated Net Income for
such fiscal year; minus


 


(h)           without
duplication of amounts deducted pursuant to clause (j) below in prior fiscal
years, the amount of Investments and acquisitions made during such period
pursuant to Section 6.04 financed with Internally Generated Funds,
including, to the extent not expensed, fees, cash charges and other cash
expenses in connection with such Investment or acquisition (other than any
Investment in Holdings, the Borrower or any wholly owned Restricted
Subsidiary); minus


 


(i)             to
the extent not otherwise deducted from Consolidated Net Income, Transaction
Costs that are paid, accrued or reserved for within 365 days of such transaction;
minus


 


(j)             without
duplication of amounts deducted from Excess Cash Flow in prior periods, the
aggregate consideration required to be paid in cash by the Borrower or any of
the Restricted Subsidiaries pursuant to binding contracts (the “Contract
Consideration”) entered into prior to or during such period relating to
Permitted Acquisitions or Capital Expenditures to be consummated or made during
the period of four consecutive fiscal quarters of the Borrower following the
end of such period, provided
that to the extent the aggregate amount of internally generated cash actually
utilized to finance such Permitted Acquisitions during such period of four
consecutive fiscal quarters is less than the Contract Consideration, the amount
of such shortfall shall be added to the calculation of Excess Cash Flow at the
end of such period of four consecutive fiscal quarters; minus


 


(k)           cash
payments made during such fiscal year in respect of non-cash charges that
increased Excess Cash Flow in any prior fiscal year; minus


 


(l)            any
Restricted Payments paid in cash to any Person that is not the Borrower or any
Restricted Subsidiary during such fiscal year by the Borrower to the extent
permitted pursuant to Section 6.08 and financed with Internally Generated
Funds.


 


13

















 


“Exchange Act” shall mean the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.


 


“Excluded Taxes” means, with respect to the
Administrative Agent, any Lender, the Issuing Bank or any other recipient of
any payment to be made by or on account of any obligation of the Borrower
hereunder, (a) income or franchise taxes imposed on (or measured by) its
overall net income or net profits by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized or in which
its principal office is located or, in the case of any Lender, in which its
applicable lending office is located, or as a result of doing business in the
jurisdiction imposing such tax, other than solely as a result of the Loan
Documents or any transaction contemplated hereby, (b) any branch profits
taxes imposed by the United States of America or any similar tax imposed by any
other jurisdiction described in clause (a) above, (c) in the case of
a Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 2.19(b)), any withholding tax that is in effect and would
apply to amounts payable to such Foreign Lender at the time such Foreign Lender
becomes a party to this Agreement (or designates a new lending office), except
to the extent that such Foreign Lender (or its assignor, if any) was entitled,
at the time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to any withholding tax
pursuant to Section 2.17(a), (d) any withholding tax that is
attributable to a Lender’s failure to comply with Section 2.17(e), and (e) any
penalty or interest that is attributable to the foregoing taxes.


 


“Existing Credit Facility” means the Amended
and Restated Credit Agreement dated as of March 21, 2005 among the
Acquired Business, the guarantors identified therein, Bank of America, N.A., as
administrative agent, and the lenders party thereto, as amended, through the Effective
Date.


 


“Existing Issuing Bank” means SunTrust Bank.


 


“Existing Lender” has the meaning set forth
in Section 2.20.


 


“Existing Letters of Credit” means those
letters of credit outstanding on the Effective Date and listed on Schedule
1.01(a).


 


“Fair Market Value” means the value that
would be paid by a willing buyer to an unaffiliated willing seller in a
transaction not involving distress or necessity of either party, determined in
good faith by the Board of Directors, chief executive officer or chief
financial officer of the Borrower.


 


“Federal Funds Effective Rate” means, for any
day, the weighted average (rounded upwards, if necessary, to the next 1/100 of
1%) of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published on the
next succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.


 


“Financial Officer” means the chief financial
officer, principal accounting officer, treasurer or controller of the Borrower,
in each case in his or her capacity as such.


 


“Financial Performance Covenant” means the
covenant of the Borrower set forth in Section 6.12.


 


14

















 


“Fixed Charge Coverage Ratio” means the ratio
of (a) Consolidated EBITDA for the most recent period of four consecutive
fiscal quarters of the Borrower for which internal financial statements are
available ended prior to any applicable date to (b) the Fixed Charges of
the Borrower and its Restricted Subsidiaries for such period.


 


“Fixed Charges”
means, with respect to any specified Person for any period, the sum, without
duplication, of:


 


(1)           the
consolidated interest expense of such Person and its subsidiaries (or in the
case of the Borrower, its Restricted Subsidiaries) for such period, net of
interest income, whether paid or accrued, including, without limitation,
original issue discount, non-cash interest payments, the interest component of
all payments associated with Capital Lease Obligations, commissions, discounts
and other fees and charges incurred in respect of letter of credit or bankers’
acceptance financings, and net of the effect of all cash payments made or
received pursuant to hedging obligations in respect of interest rates, and
excluding (v) amortization of deferred financing costs, (w) accretion
or accrual of discounted liabilities not constituting Indebtedness, (x) any
expense resulting from the discounting of any Indebtedness in connection with
the application of purchase accounting in connection with any acquisition, (y) any
expensing of bridge, commitment and other financing fees and (z) to the
extent included in Fixed Charges, the portion of consolidated interest expenses
of such Person and its Restricted Subsidiaries attributable to Indebtedness
incurred in connection with the acquisition of discontinued operations; plus


 


(2)           any
interest on Indebtedness of another Person that is guaranteed by such Person or
one of its Restricted Subsidiaries or secured by a Lien on assets of such
Person or one of its Restricted Subsidiaries, but only to the extent such
Guarantee or Lien is called upon; plus


 


(3)           all
cash dividends paid on any series of preferred stock of such Person or any of
its Restricted Subsidiaries (other than to the Borrower or any Restricted
Subsidiary of the Borrower), in each case, determined on a consolidated basis
in accordance with GAAP.


 


“Foreign Lender” means any Lender that is
organized under the laws of a jurisdiction other than that in which the
Borrower is located.  For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.


 


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


 


“GAAP” means generally accepted accounting
principles in the United States of America, as in effect from time to time.


 


“Government Programs” means (i) the
Medicare and Medicaid Programs, (ii) the United States Department of
Defense Civilian Health Program for Uniformed Services (including TRICARE
Prime, TRICARE Extra and TRICARE Standard) and any successor or predecessor
thereof and (iii) other similar foreign or domestic Federal, state or
local reimbursement or governmental healthcare programs.


 


 “Governmental
Authority” means the government of the United States of America, any other
nation or any political subdivision thereof, whether state or local, and any
agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of government.


 


15

















 


 “Governmental
Reimbursement Program Cost” means with respect to any amount due and
payable by the Borrower and its Subsidiaries the sum of:


 


(a)           all amounts (including punitive and
other similar amounts) agreed to be paid or payable (i) in settlement of
claims or (ii) as a result of a final, non-appealable judgment, award or
similar order, in each case, relating to participation in Government Programs;


 


(b)           all final, non-appealable fines,
penalties, forfeitures or other amounts rendered pursuant to criminal
indictments or other criminal proceedings relating to participation in Government
Programs; and


 


(c)           the amount of final, non-appealable
recovery, damages, awards, penalties, forfeitures or similar amounts rendered
in any litigation, suit, arbitration, investigation, review or other legal or
administrative proceeding of any kind relating to participation in Government
Programs.


 


“Guarantee” of or by any Person (the “Guarantor”)
means any obligation, contingent or otherwise, of the guarantor guaranteeing or
having the economic effect of guaranteeing any Indebtedness or other obligation
of any other Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of the guarantor, direct
or indirect, (a) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation or to purchase
(or to advance or supply funds for the purchase of) any security for the payment
thereof, (b) to purchase or lease property, securities or services for the
purpose of assuring the owner of such Indebtedness or other obligation of the
payment thereof, (c) to maintain working capital, equity capital or any
other financial statement condition or liquidity of the primary obligor so as
to enable the primary obligor to pay such Indebtedness or other obligation or (d) as
an account party or applicant in respect of any letter of credit or letter of
guaranty issued to support such Indebtedness or obligation, provided
that the term “Guarantee” shall not include endorsements for collection or
deposit in the ordinary course of business. 
The amount of any Guarantee of any Guarantor shall be deemed to be the
lower of (a) an amount equal to the stated or determinable amount of the
primary obligation in respect of which the Guarantee is made and (b) the
maximum amount for which such Guarantor may be liable pursuant to the terms of
the instrument embodying such Guarantee.


 


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


 


“Holdings” has the meaning set forth in the
preamble to this Agreement.


 


“Immaterial Subsidiary” means a Restricted
Subsidiary that has total assets with a Fair Market Value of not more than
$500,000; provided that all Immaterial Subsidiaries taken together shall
not have total assets of more than $5,000,000 and all Restricted Subsidiaries
that would otherwise be Immaterial Subsidiaries but for such $5,000,000
limitation shall not be considered Immaterial Subsidiaries.


 


“Incremental Extensions of Credit” has the
meaning set forth in Section 2.20.


 


“Incremental Facility Amendment” has the
meaning set forth in Section 2.20.


 


“Incremental Facility Closing Date” has the
meaning set forth in Section 2.20.


 


16

















 


“Indebtedness” of any Person means, without
duplication, (a) all obligations of such Person for borrowed money, (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, (c) all obligations of such Person under conditional sale or
other title retention agreements relating to property acquired by such Person, (d) all
obligations of such Person in respect of the deferred purchase price of
property or services (excluding trade accounts payable and accrued obligations
incurred in the ordinary course of business), (e) all obligations of
others secured by any Lien on property owned or acquired by such Person,
whether or not the obligations secured thereby have been assumed, but limited,
in the event such secured obligations are nonrecourse to such Person, to the
fair value of such property, (f) all Guarantees by such Person of the
Indebtedness of any other Person, (g) all Capital Lease Obligations of
such Person, (h) all reimbursement obligations of such Person as an
account party or applicant in respect of letters of credit and letters of
guaranty and (i) all obligations, contingent or otherwise, of such Person
in respect of bankers’ acceptances.  The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person’s ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.


 


“Indemnified Taxes” means Taxes other than Excluded
Taxes.


 


“Indemnitee” has the meaning set forth in Section 9.03(b).


 


“Information” has the meaning set forth in Section 9.12.


 


“Information Memorandum” means the Confidential
Information Memorandum dated July 2007, relating to Holdings, the
Borrower, its Subsidiaries and the Transactions.


 


“Interest Election Request” means a request
by the Borrower to convert or continue a Revolving Borrowing or a Term
Borrowing in accordance with Section 2.07, provided that a written
Interest Election Request shall be substantially in the form of Exhibit F,
or such other form as shall be approved by the Administrative Agent.


 


“Interest Payment Date” means (a) with
respect to any ABR Loan (including a Swingline Loan), the last Business Day of
each March, June, September and December and (b) with respect to
any Eurodollar Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurodollar
Borrowing with an Interest Period of more than three months’ duration, each day
prior to the last day of such Interest Period that occurs at intervals of three
months’ duration after the first day of such Interest Period.


 


“Interest Period” means, with respect to any
Eurodollar Borrowing, the period commencing on the date of such Borrowing and
ending on the numerically corresponding day in the calendar month that is one,
two, three or six months thereafter (or nine or twelve months thereafter if, at
the time of the relevant Borrowing, all Lenders participating therein agree to
make an interest period of such duration available), as the Borrower may elect,
provided that (a) if any Interest Period would end on a day other
than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless such next succeeding Business Day would fall in
the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day, (b) any Interest Period that commences on the
last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest Period)
shall end on the last Business Day of the last calendar month of such Interest
Period.  For purposes hereof, the date of
a Borrowing initially shall be the date on which such Borrowing is made and
thereafter shall be the effective date of the most recent conversion or 


 


17

















 


continuation of such
Borrowing and (c) the initial Interest Period in respect of Eurodollar
Borrowings of Term Loans made on the Effective Date shall commence on the
Effective Date and end on the last Business Day of September 2007.


 


“Internally Generated Funds” means any amount
expended by the Borrower and its Restricted Subsidiaries and not representing (i) the
proceeds of Capital Lease Obligations or Long-Term Indebtedness (other than
Indebtedness under a revolving line of credit to the extent repaid), (ii) the
proceeds of the issuance of Equity Interests (or capital contributions in
respect thereof) or (iii) Net Proceeds from a Prepayment Event or other
credit received from a disposition, sale or other transfer or exchange of
assets outside the ordinary course of business.


 


“Investment” has
the meaning set forth in Section 6.04.


 


“IPO” means a bona fide underwritten initial
public offering of Equity Interests of Holdings, the Borrower or a Parent after
the Effective Date.


 


“IP Rights” has the meaning set forth in Section 3.21.


 


“Issuing Bank” means Fifth Third Bank or such
other Lender designated as an “Issuing Bank” pursuant to Section 2.05(k) and,
with respect to each Existing Letter of Credit, the Existing Issuing Bank.  The Issuing Bank may, in its discretion, arrange
for one or more Letters of Credit to be issued by Affiliates of the Issuing
Bank, in which case the term “Issuing Bank” shall include any such Affiliate
with respect to Letters of Credit issued by such Affiliate.


 


“LC Disbursement” means a payment made by the
Issuing Bank pursuant to a Letter of Credit.


 


“LC Exposure” means, at any time, the sum of (a) the
aggregate undrawn amount of all outstanding Letters of Credit at such time plus
(b) the aggregate amount of all LC Disbursements that have not yet been
reimbursed by or on behalf of the Borrower at such time.  The LC Exposure of any Revolving Lender at
any time shall be its Applicable Percentage of the aggregate LC Exposure at
such time.


 


“Lenders” means the Persons listed on Schedule
2.01 and any other Person that shall have become a party hereto pursuant to
an Assignment and Assumption or an Incremental Facility Amendment, other than
any such Person that ceases to be a party hereto pursuant to an Assignment and
Assumption.  Unless the context otherwise
requires, the term “Lenders” includes the Swingline Lender.


 


“Letter of Credit” means any letter of credit
issued pursuant to this Agreement or any Existing Letter of Credit.


 


“Leverage Ratio” means, on any date, the
ratio of (a) Total Indebtedness on such date to (b) Consolidated
EBITDA for the period of four consecutive fiscal quarters of the Borrower ended
on such date (or, if such date is not the last day of a fiscal quarter, ended
on the last day of the fiscal quarter of the Borrower most recently ended prior
to such date).


 


“LIBO Rate” means, with respect to any
Eurodollar Borrowing for any Interest Period, the rate per annum determined by
the Administrative Agent to be the arithmetic mean of the offered rates for
deposits in dollars with a term comparable to such Interest Period (as set
forth by any service selected by Administrative Agent which has been nominated
by the British Bankers’ Association as an authorized information vendor for the
purpose of displaying such rates) at approximately 11:00 a.m., London, England


 


18

















 


time, on the second full
Business Day preceding the first day of such Interest Period; provided, however,
that to the extent that an interest rate is not ascertainable pursuant to the
foregoing provisions of this definition, the “LIBO Rate” shall be the interest
rate per annum determined by Administrative Agent to be the average of the
rates per annum at which deposits in dollars are offered for such Interest
Period to major banks in the London interbank market in London, England at
approximately 11:00 a.m. (London time) on the date that is two Business
Days prior to the beginning of such Interest Period.  Each determination by Administrative Agent
pursuant to this definition shall be conclusive absent manifest error.


 


“Lien” means, with respect to any asset, (a) any
mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or
security interest in, on or of such asset and (b) the interest of a vendor
or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same
economic effect as any of the foregoing) relating to such asset.


 


“Limitation” means a revocation, suspension,
termination, impairment, probation, limitation, nonrenewal, forfeiture,
declaration of ineligibility, loss of status as a participating provider in any
Third Party Payor Arrangement, and the loss of any other rights.


 


“Loan Documents” means this Agreement, the
Notes, if any, executed and delivered pursuant to Section 2.09(e), any
Incremental Facility Amendment, the Collateral Agreement and the other Security
Documents.


 


“Loan Parties” means Holdings (other than for
purposes of Article VI and terms used therein), the Borrower and the Subsidiary
Loan Parties.


 


“Loans” means the loans made by the Lenders
to the Borrower pursuant to this Agreement or an Incremental Facility
Amendment.


 


“Long-Term Indebtedness” means any
Indebtedness that, in accordance with GAAP, constitutes (or, when incurred,
constituted) a long-term liability.


 


“Material Adverse Effect” means a material
adverse effect on (a) the business, operations, assets or financial
condition of Holdings, the Borrower and its Restricted Subsidiaries, taken as a
whole, (b) the ability of the Loan Parties taken as a whole to perform
their payment obligation under any Loan Document or (c) the rights of or
benefits available to the Lenders and Agents under any Loan Document or the
ability of the Agent and the Lenders to enforce the Loan Documents.


 


“Material Indebtedness” means Indebtedness
(other than the Loans and Letters of Credit), or obligations in respect of one
or more Swap Agreements, of any one or more of Holdings, the Borrower and its
Restricted Subsidiaries in an aggregate principal amount, individually or in
the aggregate, exceeding $10,000,000. 
For purposes of determining Material Indebtedness, the “principal amount”
of the obligations of the Borrower or any Restricted Subsidiary in respect of
any Swap Agreement at any time shall be the maximum aggregate amount (giving
effect to any netting agreements) that the Borrower or such Restricted
Subsidiary would be required to pay if such Swap Agreement were terminated at
such time.


 


“Maximum Rate” has the meaning set forth in Section 9.13.


 


“Medicare and Medicaid Programs” means the
programs established under Title XVIII and XIX of the Social Security Act and
any successor programs performing similar functions.


 


19

















 


“Merger” has the meaning set forth in the
preamble to this Agreement.


 


“Merger Agreement” has the meaning set forth
in the preamble to this Agreement.


 


“Merger Consideration” has the meaning set
forth in the preamble to this Agreement.


 


“Merger Sub” means Symbol Merger Sub, Inc.,
a Delaware corporation.  It is understood
and agreed that Merger Sub shall initially be the “Borrower” hereunder on the
Effective Date prior to the consummation of the Merger.


 


“Moody’s” means Moody’s Investors Service, Inc.


 


“Mortgage” means a mortgage, deed of trust,
assignment of leases and rents or other security document granting a Lien on
any Mortgaged Property to secure the Obligations.  Each Mortgage shall be reasonably
satisfactory in form and substance to the Collateral Agent.


 


“Mortgaged Property” means each parcel of
real property owned by a Loan Party and improvements thereto owned by a Loan
Party with respect to which a Mortgage is granted pursuant to Section 5.12
or 5.13. In no event shall Mortgaged Property include, or shall any Loan Party
be obligated to grant a Mortgage with respect to, any leasehold.


 


“Multiemployer Plan” means a multiemployer
plan as defined in Section 4001(a)(3) of ERISA, to which the Borrower
or any ERISA Affiliate makes or is obligated to make contributions.


 


“Net Income” means, with respect to any
specified Person, the net income (loss) of such Person, determined in
accordance with GAAP and before any reduction in respect of preferred stock dividends.


 


“Net Proceeds” means, with respect to any
event, (a) the cash proceeds received in respect of such event including (i) any
cash received in respect of any non-cash proceeds (including any cash payments
received by way of deferred payment of principal pursuant to a note or
installment receivable or purchase price adjustment receivable or otherwise,
but excluding any interest payments), but only as and when received, (ii) in
the case of a casualty, insurance proceeds and (iii) in the case of a
condemnation or similar event, condemnation awards and similar payments, net of
(b) the sum of (i) all reasonable fees and out-of-pocket expenses
paid to third parties in connection with such event, (ii) in the case of a
sale, transfer or other disposition of an asset (including pursuant to a sale
and leaseback transaction or a casualty or a condemnation or similar
proceeding), (X) the amount of all payments required to be made as a
result of such event to repay Indebtedness (other than Loans) secured by such
asset or otherwise subject to mandatory prepayment as a result of such event
and, in the case of any such sale, transfer or other disposition of an asset of
a Subsidiary that is not a Subsidiary Loan Party, the amount of any repayments
of Indebtedness of such Subsidiary (including intercompany Indebtedness) made
with the proceeds of such sale, transfer or other disposition and (Y) in
the event that a Restricted Subsidiary makes a pro rata payment of dividends to
all of its stockholders from any cash proceeds, the amount of dividends paid to
any stockholder other than the Borrower or any other Restricted Subsidiary, provided
that any net proceeds of a sale, transfer or other disposition by a Restricted
Subsidiary that is not a Subsidiary Loan Party that are subject to legal or
contractual restrictions on repatriation to the Borrower will not be considered
Net Proceeds for so long as such proceeds are subject to such restrictions, provided,
however, that any such contractual restrictions on repatriation were not
entered into in contemplation of such sale, transfer or other disposition, (iii) any
distributions and other payments required to be made to minority interest
holders or holders in joint ventures as a result of such asset sale and (iv) the
amount of all Taxes paid (or reasonably


 


20
















 


estimated to be payable) and
the amount of any reserves established to fund liabilities reasonably estimated
to be payable and that are directly attributable to such event (as determined
reasonably and in good faith by a Financial Officer); provided that in
no event shall the Net Proceeds received by any Restricted Subsidiary that is
not a wholly owned Restricted Subsidiary exceed the Loan Parties’ ratable ownership
in such Restricted Subsidiary.


 


“Net Working Capital” means, at any date, (a) the
consolidated current assets of the Borrower and its Restricted Subsidiaries as
of such date (excluding cash and Permitted Investments) minus (b) the
consolidated current liabilities of the Borrower and its Restricted
Subsidiaries as of such date (excluding current portion of any Long-Term
Indebtedness).  Net Working Capital at
any date may be a positive or negative number. 
Net Working Capital increases when it becomes more positive or less
negative and decreases when it becomes less positive or more negative.


 


“Non-Cash Charges” has the meaning specified
in the definition of the term “Consolidated EBITDA.”


 


“Non-Consenting Lender” has the meaning set
forth in Section 9.02(b).


 


“Non-Consolidated Entity” means each of the
operating partnerships, limited liability companies, limited liability
partnerships, joint ventures or similar entities in which the Borrower or its
Restricted Subsidiaries, directly or indirectly, own Equity Interests, other
than Subsidiaries.


 


“Note” means a    Term Loan Note substantially in the form set forth in Exhibit G-1
or a Revolving Credit Note substantially in the form set forth in Exhibit G-2,
as the context may require, which Term Loan Notes and Revolving Credit Notes
are referred to collectively as the “Notes”.


 


“NPL” means the National Priorities List
under CERCLA.


 


“Obligations” has the meaning set forth in
the Collateral Agreement.


 


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


 


“Other Taxes” means any and all present or
future recording, stamp, documentary, excise, transfer, sales, property or
similar Taxes, charges or levies arising from any payment made under any Loan
Document or from the execution, delivery or enforcement of, or from the filing
or recording of or otherwise with respect to the exercise by the Administrative
Agent or the Lenders of their rights under, any Loan Document.


 


“Parent” means any direct or indirect parent
of which Holdings is a wholly owned subsidiary.


 


21

















 


“Participant” has the meaning set forth in Section 9.04(c).


 


“Participant Register” has the meaning set
forth in Section 9.04(c).


 


“PBGC” means the Pension Benefit Guaranty Corporation
referred to and defined in ERISA and any successor entity performing similar
functions.


 


“Perfection Certificate” means a certificate
in the form of Exhibit D or any other form approved by the
Collateral Agent.


 


“Permitted Acquisitions” means any
acquisition by the Borrower or any Qualified Restricted Subsidiary of Equity Interests
in, all or substantially all the assets of, or all or substantially all the
assets constituting a division or line of business of, a Person (that in the
case of an acquisition of Equity Interests, is or becomes a Restricted Subsidiary
or a Non-Consolidated Entity) if (a) no Event of Default has occurred and
is continuing or would result therefrom, (b) any Person or assets or
division as acquired in accordance herewith shall be in one or more lines of
Permitted Business and (c) if such acquisition exceeds $10,000,000 in
aggregate cash consideration the Borrower, promptly after the consummation of
such acquisition, delivered to the Administrative Agent an officer’s certificate
to the effect set forth in clauses (a) and (b) above.


 


“Permitted Business” means (i) any
business engaged in by the Borrower or any of its Restricted Subsidiaries on
the Effective Date, and (ii) any business or other activities that are
reasonably similar, ancillary, complementary or related to, or a reasonable
extension, development or expansion of, the businesses in which the Borrower
and its Restricted Subsidiaries are engaged on the Effective Date.


 


“Permitted Encumbrances” means:


 


(a)                                  Liens imposed
by law for Taxes that are not yet due or are being contested in compliance with
Section 5.05;


 


(b)                                 carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s, construction
contractors and other like Liens imposed by law, arising in the ordinary course
of business and securing obligations that are not overdue by more than 45 days
or that are being contested in good faith;


 


(c)                                  (i) pledges
and deposits made in the ordinary course of business in compliance with workers’
compensation, unemployment insurance and other social security laws or regulations
and (ii) pledges and deposits in the ordinary course of business securing
liability for reimbursement or indemnification obligations of (including
obligations in respect of letters of credit or bank guarantees for the benefit
of) insurance carriers providing property, casualty or liability insurance to
Holdings, the Borrower or any Restricted Subsidiary;


 


(d)                                 deposits to
secure the performance of bids, trade contracts, government contracts,
licenses, leases, statutory obligations, surety, stay, customs and appeal
bonds, performance bonds and other obligations of a like nature (including
those to secure health, safety and environmental obligations);


 


(e)                                  judgment liens
in respect of judgments that do not constitute an Event of Default under Section 7.01(k);


 


22

















 


(f)            easements, zoning restrictions, rights-of-way,
encroachments, protrusions, minor defects or irregularities of title and other
similar encumbrances on real property that do not either detract from the value
of the affected property or interfere with the ordinary conduct of business of
the Borrower or any Restricted Subsidiary, in each case in any material
respect;


 


(g)           landlords’ and lessors’ and other like Liens in respect of
rent not in default;


 


(h)           any Liens shown on the title insurance policies in favor
of the Collateral Agent insuring the Liens of the Mortgages;


 


(i)            licenses or sublicenses, leases or subleases granted to
others not interfering in any material respect with the business of the
Borrower or any Subsidiary; and


 


(j)            Liens securing the Obligations.


 


“Permitted Investments” means:


 


(a)           direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed by
the full faith and credit of the United States of America) or by any State of
the United States of America or any political subdivision of such state, in
each case maturing within one year from the date of acquisition thereof;


 


(b)           investments in commercial paper maturing within 365 days
from the date of acquisition thereof and having, at such date of acquisition, a
credit rating from S&P or Moody’s of at least A2 or P2, respectively;


 


(c)           investments in certificates of deposit, banker’s
acceptances, demand deposits and time deposits maturing within 365 days from
the date of acquisition thereof issued or guaranteed by or placed with, and
money market deposit accounts issued or offered by, (i) any Lender who
accepts such deposits in the ordinary course of such Lender’s business, (ii) any
domestic office of any commercial bank organized under the laws of the United
States of America or any State thereof that has a combined capital and surplus
and undivided profits of not less than $500,000,000 or (iii) any bank
whose short-term commercial paper rating from S&P is at least A-2 or the
equivalent thereof or from Moody’s is at least P-2 or the equivalent thereof;


 


(d)           fully collateralized repurchase agreements with a term of
not more than 30 days for securities described in clause (a) above and
entered into with a financial institution satisfying the criteria described in
clause (c) above; and


 


(e)           investments in money market funds that comply with the
criteria set forth in SEC Rule 2a-7 under the Investment Company Act of
1940, as amended, substantially all of whose assets are invested in investments
of the type described in clauses (a) through (d) above.


 


“Permitted Investors” means the Sponsor, Northwestern
Mutual Life Insurance Company and members of management of the Borrower who are
holders of Equity Interests of Holdings on the Effective Date and, in each
case, their respective Affiliates.


 


“Permitted Payment Restriction” means any
encumbrance or restriction (each, a “restriction”) on the ability of any
Restricted Subsidiary to pay dividends or make any other distributions on its 


 


23

















 


Equity Interests to the
Borrower or a Restricted Subsidiary, which restriction would not materially
impair the Borrower’s ability to make scheduled payments of cash interest and
to make required principal payments on the Loans as determined in good faith by
the chief financial officer of the Borrower, whose determination shall be
conclusive.


 


“Permitted Refinancing Indebtedness” means,
with respect to any Indebtedness, any Indebtedness that renews, refinances or
replaces such Indebtedness; provided that (1) the only obligors under
such renewal, refinancing or replacement Indebtedness are Persons (or other
Loan Parties) that were obligors under the Indebtedness being renewed,
refinanced or replaced, (2) if the Indebtedness being renewed, refinanced
or replaced is subordinated in right of payment to the Obligations, such
renewal, refinancing or replacement Indebtedness shall be subordinated in right
of payment to the Obligations on terms at least as favorable to the Lenders as
those contained in the documentation governing the Indebtedness being renewed,
refinanced or replaced, (3) such renewal, refinancing or replacement shall
not increase the principal amount of such Indebtedness by an amount in excess
of any accrued interest, premiums, fees or expenses payable in connection with such
renewal, refinancing or replacement, (4) such renewal, refinancing or
replacement Indebtedness has a final stated maturity date equal to or later
than the earlier of (i) the final stated maturity date of the Indebtedness
being renewed, refinanced or replaced and (ii) the first anniversary of
the Tranche B Maturity Date and (5) either (i) such renewal,
refinancing or replacement Indebtedness has a weighted average life to maturity
equal to or longer than the weighted average life to maturity of the Indebtedness
being renewed, refinanced or replaced or (ii) the aggregate amount of all
scheduled principal repayments in respect of such renewal, refinancing or
replacement Indebtedness during the period through the first anniversary of the
Tranche B Maturity Date shall not be greater than the aggregate amount of
scheduled principal prepayments during such period of the Indebtedness being
renewed, refinanced or replaced, and the average weighted life of the scheduled
principal repayments of such renewal, refinancing or replacement Indebtedness
during such period shall not be earlier than the average weighted life of the remaining
scheduled principal repayments during such period of the Indebtedness being
renewed, refinanced or replaced.


 


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


 


“Plan” means any employee pension benefit
plan subject to the provisions of Title IV or Section 302 of ERISA or Section 412
of the Code, and in respect of which the Borrower or any ERISA Affiliate is
(or, if such plan were terminated, would under Section 4069 of ERISA be
deemed to be) an “employer” as defined in Section 3(5) of ERISA.


 


“Pledged Notes” means any promissory note
issued to the Borrower or a Subsidiary Loan Party that is pledged to the
Collateral Agent under the Security Documents and is a “Pledged Debt Security”
under the Collateral Agreement.


 


“Prepayment Event” means:


 


(a)           any sale, transfer or other disposition of any property or
asset of Holdings, the Borrower or any Restricted Subsidiary (including
pursuant to Section 6.06) resulting in Net Proceeds in excess of $250,000
(in any single transaction or series of related transactions), other than dispositions
described in clauses (a)(i), (a)(iii), (b), (c), (d), (h), (i), (j) and (k) of
Section 6.05;


 


(b)           any casualty or other insured damage to, or any taking
under power of eminent domain or by condemnation or similar proceeding of, any
property or asset of Holdings, the Borrower or any Restricted Subsidiary
resulting in Net Proceeds in excess of $250,000; or


 


24

















 


(c)           the incurrence by Holdings, the Borrower or any Restricted
Subsidiary of any Indebtedness (other than Indebtedness permitted under Section 6.01).


 


“Prime Rate” means the rate of interest per
annum publicly announced from time to time by Merrill Lynch Capital Corporation
as its base rate in effect for dollars at its principal office in New York, New
York; each change in the Prime Rate shall be effective from and including the
date such change is publicly announced as being effective.


 


“Pro Forma Basis” means, for purposes of
calculating the Fixed Charge Coverage Ratio, the Senior Secured Leverage Ratio
or the Leverage Ratio (the “Relevant Calculation”) for any period, in
the event that the Borrower or any of its Restricted Subsidiaries incurs,
assumes, repays, repurchases, redeems, defeases or otherwise discharges, or
proposes, in a transaction giving rise to the need to calculate the Fixed
Charge Coverage Ratio, the Senior Secured Leverage Ratio or the Leverage Ratio,
to incur, assume, repay, repurchase, redeem, defease or otherwise discharge,
any Indebtedness (other than revolving credit borrowings; provided that
pro forma effect shall be given to repayments if such Indebtedness has been
permanently repaid and not replaced) or issues, repurchases or redeems or
proposes, in a transaction giving rise to the need to calculate the Fixed
Charge Coverage Ratio, the Senior Secured Leverage Ratio or the Leverage Ratio,
to issue, repurchase or redeem, preferred stock or Disqualified Equity
Interests subsequent to the commencement of the period for which the Relevant
Calculation is being calculated and on or prior to the date on which the event
for which the Relevant Calculation is made, then the Relevant Calculation will
be calculated giving pro forma effect to such incurrence, assumption,
repayment, repurchase, redemption, defeasance or other discharge of
Indebtedness, or such issuance, repurchase or redemption of preferred stock or
Disqualified Equity Interests, and the use of the proceeds therefrom, as if the
same had occurred at the beginning of the applicable four-quarter reference period.


 


In addition, for purposes of the Relevant Calculation:


 


(1)           Investments, acquisitions, mergers, consolidations and
dispositions that have been made by the Borrower or any of its Restricted
Subsidiaries, or any Person or any of its Restricted Subsidiaries acquired by,
merged or consolidated with the Borrower or any of its Restricted Subsidiaries,
and including any related financing transactions and including increases in
ownership of Restricted Subsidiaries, during the four-quarter reference period
or subsequent to such reference period and on or prior to the Calculation Date
will be given pro forma effect, including giving effect to Pro Forma Cost
Savings as if they had occurred on the first day of the four-quarter reference
period;


 


(2)           the Fixed Charges attributable to discontinued operations,
as determined in accordance with GAAP, and operations or businesses (and
ownership interests therein) disposed of prior to the Calculation Date, will be
excluded, but only to the extent that the obligations giving rise to such Fixed
Charges will not be obligations of the Borrower or any of its Restricted Subsidiaries
following the Calculation Date;


 


(3)           any Person that is a Restricted Subsidiary on the
Calculation Date will be deemed to have been a Restricted Subsidiary at all
times during such four-quarter period;


 


(4)           any Person that is not a Restricted Subsidiary on the
Calculation Date will be deemed not to have been a Restricted Subsidiary at any
time during such four-quarter period; and


 


(5)           if any Indebtedness bears a floating rate of interest, the
interest expense on such Indebtedness will be calculated as if the rate in
effect on the Calculation Date had been the 


 


25

















 


applicable rate for the
entire period (taking into account any Swap Agreement applicable to such Indebtedness).


 


For purposes of this definition, whenever pro forma
effect is given to a transaction, the pro forma calculations shall be made in
good faith by a responsible financial or accounting officer of the Borrower.


 


Interest on a Capital Lease Obligation shall be
deemed to accrue at an interest rate reasonably determined by a Financial
Officer to be the rate of interest implicit in such Capital Lease Obligation in
accordance with GAAP.  For purposes of making
the computation referred to above, interest on any Indebtedness under a
revolving credit facility computed on a pro forma basis shall be computed based
upon the average daily balance of such Indebtedness during the applicable
period.  Interest on Indebtedness that
may optionally be determined at an interest rate based upon a factor of a prime
or similar rate, a eurocurrency interbank offered rate, or other rate, shall be
deemed to have been based upon the rate actually chosen, or, if none, then
based upon such optional rate chosen as the Borrower may designate.


 


“Pro Forma Cost Savings” means, with respect
to any period, (A) the operating expense reductions and other operating
improvements or synergies that (i) were directly attributable to an acquisition,
merger, consolidation or disposition (a “pro forma event”) that occurred
during the four-quarter reference period or subsequent to the four-quarter
reference period and on or prior to the Calculation Date and calculated on a
basis that is consistent with Article 11 of Regulation S-X under the
Securities Act of 1933, as in effect and applied as of the Effective Date, (ii) were
actually implemented by the business that was the subject of any such pro forma
event within 12 months after the date of such pro forma event and prior to the
Calculation Date that are reasonably determined in good faith by a responsible
financial or accounting officer of the Borrower or (iii) relate to the
business that is the subject of any such pro forma event and that are reasonably
determined in good faith by a responsible financial or accounting officer of
the Borrower and is expected to be taken in the 12 months following such pro
forma event and (B) all adjustments of the nature used in connection with
the calculation of “Pro Forma Adjusted EBITDA-MI” as set forth in the
Information Memorandum to the extent such adjustments, without duplication,
continue to be applicable to such four-quarter period and, in the case of each
of (A) and (B), are described in an officers’ certificate, as if all such
reductions in costs had been effected as of the beginning of such period.


 


“Proposed Change” has the meaning set forth
in Section 9.02(b).


 


“Qualified Equity Interests” means any Equity
Interests that are not Disqualified Equity Interests.


 


“Qualified Restricted Subsidiary” means any
Restricted Subsidiary that satisfies each of the following requirements:  (1) except for Permitted Payment
Restrictions, there are no consensual restrictions, directly or indirectly, on
the ability of such Restricted Subsidiary to pay dividends or make distributions
to the holders of its Equity Interests; (2) the Equity Interests of such
Restricted Subsidiary consist solely of (A) Equity Interests owned by the
Borrower and its Qualified Restricted Subsidiaries, (B) Equity Interests
owned by Strategic Investors and (C) directors’ qualifying shares; and (3) the
primary business of such Restricted Subsidiary is a Permitted Business.


 


“Refinanced Term Loans” has the meaning set
forth in Section 9.02(c).


 


“Register” has the meaning set forth in Section 9.04(b)(iv).


 


26

















 


“Regulation U” shall mean Regulation U of the
Board of Governors of the Federal Reserve System as from time to time in effect
and any successor to all or a portion thereof.


 


“Regulation X” shall mean Regulation X of the
Board of Governors of the Federal Reserve System as from time to time in effect
and any successor to all or a portion thereof.


 


“Reimbursement Approvals” means, with respect
to all Government Programs, any and all certifications, provider numbers,
provider agreements, participation agreements, accreditations and any other
similar agreements with or approvals by any Governmental Authority or other
Person.


 


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


 


“Release” means any release, spill, emission,
leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal,
leaching or migration into or through the environment or within, or upon any
building, structure, facility or fixture.


 


“Repayment” has the meaning set forth in the
preamble to this Agreement.


 


“Replacement Term Loans” has the meaning set
forth in Section 9.02(c).


 


“Required Lenders” means, at any time,
Lenders having Revolving Exposures, Term Loans, Loans in respect of Incremental
Extensions of Credit (if any) and unused Commitments representing more than 50%
of the aggregate Revolving Exposures, outstanding Term Loans, outstanding Loans
in respect of Incremental Extensions of Credit (if any) and unused Commitments
at such time; provided that Revolving Exposures, Term Loans, Loans in
respect of Incremental Extensions of Credit (if any) and unused Commitments
held by Holdings or a subsidiary thereof or any Permitted Investor shall be
deemed to not be outstanding for purposes of calculating the Required Lenders.


 


“Required Revolving Lenders” means, at any
time, Revolving Lenders having Revolving Exposures and unused Revolving
Commitments representing more than 50% of the aggregate Revolving Exposures and
unused Revolving Commitments at such time; provided that Revolving Exposures
and unused Revolving Commitments held by Holdings or a subsidiary thereof or
any Permitted Investor shall be deemed to not be outstanding for purposes of
calculating the Required Revolving Lenders.


 


“Requirement of Law” means, with respect to
any Person, (i) the charter, articles or certificate of organization or
incorporation and bylaws or other organizational or governing documents of such
Person and (ii) any statute, law, treaty, rule, regulation, order, decree,
writ, injunction or determination of any arbitrator or 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 any of its property is subject.


 


“Restricted Payment” means any dividend or
other distribution (whether in cash, securities or other property) with respect
to any Equity Interests in the Borrower or any Subsidiary, or any payment
(whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any Equity Interests in Holdings or
the Borrower or any option, warrant or other right to acquire any such Equity
Interests in Holdings or the Borrower.


 


27

















 


“Restricted Subsidiary” means any Subsidiary
of the Borrower other than an Unrestricted Subsidiary.


 


“Revolving Availability Period” means the
period from and including the Effective Date to but excluding the earlier of (a) the
Revolving Maturity Date and (b) the date of termination of the Revolving
Commitments.


 


“Revolving Commitment” means, with respect to
each Lender, the commitment, if any, of such Lender to make Revolving Loans and
to acquire participations in Letters of Credit and Swingline Loans hereunder,
expressed as an amount representing the maximum possible aggregate amount of
such Lender’s Revolving Exposure hereunder, as such commitment may be (a) reduced
from time to time pursuant to Section 2.08, (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04
or (c) increased pursuant to Section 2.20.  The initial amount of each Lender’s Revolving
Commitment is set forth on Schedule 2.01 or in the Assignment and
Assumption pursuant to which such Lender shall have assumed its Revolving
Commitment, as applicable.  The initial
aggregate amount of the Lenders’ Revolving Commitments is $100,000,000.


 


“Revolving Exposure” means, with respect to
any Lender at any time, the sum of the outstanding principal amount of such
Lender’s Revolving Loans and its LC Exposure and Swingline Exposure at such
time.


 


“Revolving Lender” means a Lender with a
Revolving Commitment or, if the Revolving Commitments have terminated or
expired, a Lender with Revolving Exposure.


 


“Revolving Loan” means a Loan made pursuant
to Section 2.01(c).


 


“Revolving Maturity Date” means the sixth
anniversary of the Effective Date.


 


“Rollover Equity” has the meaning set forth
in the preamble to this Agreement.


 


“S&P” means Standard & Poor’s, a
division of The McGraw-Hill Companies, Inc.


 


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


 


“Security Documents” means the Collateral
Agreement, the Perfection Certificate, the Mortgages and each other security
agreement or other instrument or document executed and delivered pursuant to Section 5.12
or 5.13 to secure any of the Obligations.


 


“Senior Secured Leverage Ratio” means, on any
date, the ratio of (a) Total Senior Secured Indebtedness on such date to (b) Consolidated
EBITDA for the period of four consecutive fiscal quarters of the Borrower ended
on such date (or, if such date is not the last day of a fiscal quarter, ended
on the last day of the fiscal quarter of the Borrower most recently ended prior
to such date).


 


“Specified Subsidiary” means (i) each
wholly owned Domestic Subsidiary listed on Schedule 1.01(c) (provided
that if any such Subsidiary has not been legally dissolved within 180 days
after the Effective Date and no Equity Interests therein are owned by Strategic
Investors 180 days after the Effective Date, such Subsidiary shall no longer
constitute a Specified Subsidiary) and (ii) any Qualified Restricted
Subsidiary that is a wholly owned Domestic Subsidiary formed or acquired after
the Effective Date if a Financial Officer or General Counsel of the Borrower
represents in writing to the Administrative


 


28

















 


Agent that the Borrower
intends in good faith to syndicate the Equity Interests to Strategic Investors
within 270 days of such formation or acquisition (provided that if no
Equity Interests of such Subsidiary have been syndicated to Strategic Investors
within 270 days after such formation or acquisition, such Subsidiary shall no
longer constitute a Specified Subsidiary); provided that any Specified
Subsidiary shall cease to be a Specified Subsidiary if the Borrower has opted
for it to satisfy the Collateral and Guarantee Requirement.


 


“Sponsor” means Crestview Partners GP, L.P.


 


“Sponsor
Management Agreement” means the Management Agreement between the Borrower
and Sponsor dated as of the date hereof, as in effect on the date hereof.


 


“Statutory Reserve Rate” means a fraction (expressed
as a decimal), the numerator of which is the number one and the denominator of
which is the number one minus the aggregate of the maximum reserve
percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Board to which the bank
serving as the Administrative Agent is subject with respect to the LIBO Rate,
for eurocurrency funding (currently referred to as “Eurocurrency Liabilities”
in Regulation D of the Board).  Such
reserve percentages shall include those imposed pursuant to such Regulation D.  Eurodollar Loans shall be deemed to
constitute eurocurrency funding and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under such Regulation D or any
comparable regulation.  The Statutory
Reserve Rate shall be adjusted automatically on and as of the effective date of
any change in any reserve percentage.


 


“Strategic Investors” means physicians,
hospitals, health systems, other healthcare providers, other healthcare companies
and other similar strategic joint venture partners which joint venture partners
are actively involved in the day-to-day operations of providing surgical care
and surgery-related services, or, in the case of physicians, that have retired
therefrom, individuals who are former owners or employees of surgical care
facilities purchased by the Borrower or any of its Restricted Subsidiaries or
Persons owned, controlled or managed by individual physicians, and consulting firms
that receive common Equity Interests as consideration for consulting services
performed or for cash invested.


 


“Subordinated Indebtedness” means
Indebtedness of Holdings, the Borrower or any Subsidiary that is contractually
subordinated to the Obligations.


 


“subsidiary” means, with respect to any
Person (the “parent”) at any date, any corporation, limited liability
company, partnership, association or other entity the accounts of which would
be consolidated with those of the parent in the parent’s consolidated financial
statements if such financial statements were prepared in accordance with GAAP
as of such date.


 


“Subsidiary” means any subsidiary of the
Borrower.


 


“Subsidiary Loan Party” means any Domestic
Subsidiary that is a Restricted Subsidiary (other than (a) any Subsidiary
that is not a wholly owned Subsidiary, (b) any Subsidiary that is prohibited
by applicable law from guaranteeing the Obligations, (c) any Immaterial
Subsidiary for which the Borrower has not opted to satisfy the Collateral and Guarantee
Requirement, (d) any Specified Subsidiary and (e) any other
Subsidiary with respect to which, in the reasonable judgment of the
Administrative Agent (confirmed in writing by notice to the Borrower), the cost
or other consequences (including any adverse Tax consequences) of providing a
Guarantee of the Borrower’s obligations under the Loan Documents shall be
excessive in view of the benefits to be obtained by the Lenders therefrom).


 


29

















 


“Swap Agreement” means any agreement with
respect to any swap, forward, future or derivative transaction or option or similar
agreement involving, or settled by reference to, one or more rates, currencies,
commodities, equity or debt instruments or securities, or economic, financial
or pricing indices or measures of economic, financial or pricing risk or value
or any similar transaction or any combination of these transactions, provided
that no phantom stock or similar plan providing for payments only on account of
services provided by current or former directors, officers, employees or
consultants of the Borrower or the Subsidiaries shall be a Swap Agreement.


 


“Swingline Exposure” means, at any time, the
aggregate principal amount of all Swingline Loans outstanding at such
time.  The Swingline Exposure of any
Lender at any time shall be its Applicable Percentage of the aggregate
Swingline Exposure at such time.


 


“Swingline Lender” means Merrill Lynch
Capital Corporation, in its capacity as lender of Swingline Loans hereunder.


 


“Swingline Loan” means a Loan made pursuant
to Section 2.04.


 


“Syndication Agent” means Banc of America,
N.A., in its capacity as syndication agent.


 


“Take Out Notes” means any debt securities
issued to refinance all or any portion of the Indebtedness incurred under the
Bridge Loan Documents.


 


“Tax” or “Taxes” means any and all
present or future taxes, levies, imposts, duties, deductions, charges or
withholdings imposed by any Governmental Authority.


 


“Term Lender” means a Tranche A Lender or a
Tranche B Lender.


 


“Term Loan” means a Tranche A Term Loan or a
Tranche B Term Loan.


 


“Third Party Payor” means any Government Program
and any quasi-public agency, Blue Cross, Blue Shield and any managed care plans
and organizations, including health maintenance organizations and preferred
provider organizations and private commercial insurance companies and any
similar third party arrangements, plans or programs for payment or
reimbursement in connection with healthcare services, products or supplies.


 


“Third Party Payor Arrangement” means any arrangement,
plan or program for payment or reimbursement by any Third Party Payor in
connection with the provision of healthcare services, products or supplies.


 


“Total Assets”  means
the total assets of the Borrower and its Restricted Subsidiaries on a
consolidated basis as shown on the most recent consolidated balance sheet of
the Borrower required to be delivered pursuant to Section 5.01(a) or (b)
(or if prior to the first time such a consolidated balance sheet is so required
to be delivered, on the most recent consolidated balance sheet of the Borrower
and its Restricted Subsidiaries that is then available).


 


“Total Indebtedness” means, as of any date,
the aggregate principal amount of Indebtedness of the type specified in clauses
(a), (b) and (g) of the definition thereof of the Borrower and its Restricted
Subsidiaries outstanding as of such date determined on a consolidated basis, minus
the amount of unrestricted cash and Permitted Investments that is not subject
to any Lien (other than any Lien under the Loan Documents or Liens permitted by
clauses (vi), (ix), (x), (xi) and (xiii) of Section 6.02 and Liens 


 


30

















 


under clause (a) of the
definition of “Permitted Encumbrances”) held, on such date, by the Borrower and
its Restricted Subsidiaries.


 


“Total
Senior Secured Indebtedness” means, as of any date, the aggregate principal
amount, determined on a consolidated basis, of (x) without duplication
Indebtedness of the type specified in clauses (a), (b) and (g) of the
definition thereof (other than Subordinated Indebtedness) of any Loan Party
(other than Holdings) that is secured by a Lien on the assets of any such Loan
Party and (y) without duplication Indebtedness of the type specified in
clauses (a), (b) and (g) of the definition thereof of any Restricted
Subsidiary that is not a Loan Party, in each case, outstanding as of such date,
minus the amount of unrestricted cash and Permitted Investments that is
not subject to any Lien (other than any Lien under the Loan Documents or Liens
permitted by clauses (vi), (ix), (x), (xi) and (xiii) of Section 6.02 and
Liens under clause (a) of the definition of “Permitted Encumbrances”)
held, on such date, by the Borrower and its Restricted Subsidiaries.


 


“Tranche A Commitment” means, with respect to
each Lender, the commitment, if any, of such Lender to make a Tranche A Term
Loan hereunder on the Effective Date, expressed as an amount representing the
maximum principal amount of the Tranche A Term Loan to be made by such Lender
hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.08 and (b) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to Section 9.04.  The initial amount of each Lender’s Tranche A
Commitment is set forth on Schedule 2.01 or in the Assignment and
Assumption pursuant to which such Lender shall have assumed its Tranche A Commitment,
as applicable.  The initial aggregate
amount of the Lenders’ Tranche A Commitments is $125,000,000.


 


“Tranche A Lender” means a Lender with a
Tranche A Commitment or an outstanding Tranche A Term Loan.


 


“Tranche A Maturity Date” means the sixth
anniversary of the Effective Date.


 


“Tranche A Term Loan” means a Loan made pursuant
to Section 2.01(a).


 


“Tranche B Commitment” means, with respect to
each Lender, the commitment, if any, of such Lender to make a Tranche B Term
Loan hereunder on the Effective Date, expressed as an amount representing the
maximum principal amount of the Tranche B Term Loan to be made by such Lender
hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.08 and (b) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to Section 9.04.  The initial amount of each Lender’s Tranche B
Commitment is set forth on Schedule 2.01 or in the Assignment and
Assumption pursuant to which such Lender shall have assumed its Tranche B Commitment,
as applicable.  The initial aggregate
amount of the Lenders’ Tranche B Commitments is $125,000,000.


 


“Tranche B Lender” means a Lender with a
Tranche B Commitment or an outstanding Tranche B Term Loan.


 


“Tranche B Maturity Date” means the seventh
anniversary of the Effective Date.


 


“Tranche B Term Loan” means a Loan made pursuant
to Section 2.01(b).


 


“Transaction Costs” means the payment of
fees, expenses and other costs in connection with the items described in
clauses (a)-(f) of the definition of “Transactions.”


 


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“Transactions” means (a) the Merger and
the other transactions contemplated by the Acquisition Documents, (b) the
Equity Contributions and the rollover of the Rollover Equity, (c) the Repayment,
(d) the execution, delivery and performance by each Loan Party of the Loan
Documents to which it is to be a party, the borrowing of Loans, the use of the
proceeds thereof and the issuance of Letters of Credit hereunder on the Effective
Date, (e) the execution, delivery and performance by each Loan Party of
the Bridge Loan Documents to which it is to be a party and the borrowing of the
loans thereunder and (f) payment of the Transaction Costs on the Effective
Date.


 


“Type”, when used in reference to any Loan or
Borrowing, refers to whether the rate of interest on such Loan, or on the Loans
comprising such Borrowing, is determined by reference to the LIBO Rate or the
Alternate Base Rate.


 


“Unrestricted Subsidiary” means any
Subsidiary of the Borrower designated by the Board of Directors of the Borrower
as an Unrestricted Subsidiary pursuant to Section 5.15(a) subsequent
to the date hereof.


 


“USA Patriot Act” has the meaning set forth
in Section 9.14.


 


“wholly owned” means with respect to any
Person, a subsidiary of such Person all the outstanding Equity Interests of
which (other than (x) directors’ qualifying shares and (y) shares
issued to foreign nationals to the extent required by applicable law) are owned
by such Person and/or by one or more wholly owned subsidiaries of such Person.


 


“Withdrawal Liability” means liability to a
Multiemployer Plan as a result of a complete or partial withdrawal from such
Multiemployer Plan, as such terms are defined in ERISA.


 


SECTION 1.02.            Classification of Loans and
Borrowings.  For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g.,
a “Revolving Loan”) or by Type (e.g., a “Eurodollar Loan”) or by Class and
Type (e.g., a “Eurodollar Revolving Loan”).  Borrowings also may be classified and
referred to by Class (e.g., a “Revolving Borrowing”) or by Type (e.g.,
a “Eurodollar Borrowing”) or by Class and Type (e.g., a “Eurodollar
Revolving Borrowing”).


 


SECTION 1.03.            Terms Generally.  The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms.  The words “include”, “includes” and “including”
shall be deemed to be followed by the phrase “without limitation”.  The word “will” shall be construed to have
the same meaning and effect as the word “shall”.  Unless the context requires otherwise (a) any
definition of or reference to any agreement, instrument or other document
herein shall be construed as referring to such agreement, instrument or other
document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (b) any reference herein to any Person shall be construed
to include such Person’s successors and assigns, (c) the words “herein”, “hereof”
and “hereunder”, and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words “asset” and “property” shall be construed
to have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.


 


SECTION 1.04.            Accounting Terms; GAAP.  Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP as in


 


32





















 


effect from time to time, provided
that if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision (including any definition) hereof to
eliminate the effect of any change occurring after the date hereof in GAAP or
in the application thereof on the operation of such provision (or if the
Administrative Agent notifies the Borrower that the Required Lenders request an
amendment to any provision (including any definition) hereof for such purpose),
regardless of whether any such notice is given before or after such change in
GAAP or in the application thereof, then such provision shall be interpreted on
the basis of GAAP as in effect and applied immediately before such change shall
have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith.


 


SECTION 1.05.            Pro Forma Calculations.  Notwithstanding anything to the contrary
herein, the calculation of the Fixed Charge Coverage Ratio, the Senior Secured
Leverage Ratio and the Leverage Ratio on any Calculation Date for any purpose under
this Agreement shall be made on a Pro Forma Basis.


 


ARTICLE II


 


The Credits


 


SECTION 2.01.            Commitments.  Subject to the terms and conditions set forth
herein, each Lender agrees (a) to make a Tranche A Term Loan to the
Borrower on the Effective Date in a principal amount not exceeding its Tranche
A Commitment, (b) to make a Tranche B Term Loan to the Borrower on the
Effective Date in a principal amount not exceeding its Tranche B Commitment and
(c) to make Revolving Loans to the Borrower from time to time during the
Revolving Availability Period in an aggregate principal amount that will not
result in such Lender’s Revolving Exposure exceeding such Lender’s Revolving
Commitment; provided that no more than $5.0 million of Revolving Loans
may be made on the Effective Date. 
Within the foregoing limits and subject to the terms and conditions set
forth herein, the Borrower may borrow, prepay and reborrow Revolving
Loans.  Amounts repaid or prepaid in
respect of the Term Loans may not be reborrowed.


 


SECTION 2.02.            Loans and Borrowings.


 


(a)           Each Loan (other than a Swingline Loan) shall be made as
part of a Borrowing consisting of Loans of the same Class and Type made by
the Lenders ratably in accordance with their respective Commitments of the
applicable Class.  The failure of any
Lender to make any Loan required to be made by it shall not relieve any other
Lender of its obligations hereunder, provided that the Commitments of
the Lenders are several and no Lender shall be responsible for any other Lender’s
failure to make Loans as required.


 


(b)           Subject to Section 2.14, each Revolving Borrowing and
Term Loan Borrowing shall be comprised entirely of ABR Loans or Eurodollar
Loans as the Borrower may request in accordance herewith.  Each Swingline Loan shall be an ABR
Loan.  Each Lender at its option may make
any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of
such Lender to make such Loan, provided that any exercise of such option
shall not affect the obligation of the Borrower to repay such Loan in accordance
with the terms of this Agreement.


 


(c)           At the commencement of each Interest Period for any
Eurodollar Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $500,000 and not less than $1,000,000.  At the time that each ABR Borrowing is made,
such Borrowing shall be in an aggregate amount that is an integral multiple of
$500,000 and not less than $1,000,000; provided that, notwithstanding


 


33





















 


the foregoing each Swingline Loan shall be
not less than $250,000 and if greater than such amount shall be in an amount that
is an integral multiple of $100,000. 
Borrowings of more than one Type and Class may be outstanding at
the same time.  There shall not at any
time be more than a total of ten Eurodollar Borrowings outstanding.  Notwithstanding anything to the contrary herein,
an ABR Revolving Borrowing or Swingline Loan may be in an aggregate amount, subject
in the case of Swingline Loans to the limitations on the amounts thereof set
forth in Section 2.04(a), (i) that is equal to the entire unused balance
of the aggregate Revolving Commitments or (ii) that is required to finance
the reimbursement of an LC Disbursement as contemplated by Section 2.05(e).


 


(d)           Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Revolving Maturity Date, the Tranche A Maturity Date or the Tranche B
Maturity Date, as applicable.


 


SECTION 2.03.            Requests for Borrowings.  To request a Revolving Borrowing or Term Loan
Borrowing, the Borrower shall notify the Administrative Agent of such request
by telephone (a) in the case of a Eurodollar Borrowing, not later than
1:00 p.m., New York City time, three Business Days before the date of the
proposed Borrowing or (b) in the case of an ABR Borrowing, not later than
10 a.m., New York City time, one Business Day before the date of the
proposed Borrowing.  Each such telephonic
Borrowing Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Borrowing Request
signed by the Borrower.  Each such
telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:


 


(i)      whether the requested
Borrowing is to be a Revolving Borrowing, a Tranche A Term Loan Borrowing or a
Tranche B Term Loan Borrowing;


 


(ii)     the aggregate amount of
such Borrowing;


 


(iii)    the date of such
Borrowing, which shall be a Business Day;


 


(iv)    whether such Borrowing is
to be an ABR Borrowing or a Eurodollar Borrowing;


 


(v)     in the case of a
Eurodollar Borrowing, the initial Interest Period to be applicable thereto,
which shall be a period contemplated by the definition of the term “Interest Period”;
and


 


(vi)    the location and number of
the Borrower’s account to which funds are to be disbursed, which shall comply
with the requirements of Section 2.06.


 


If no election as to the
Type of Borrowing is specified, then the requested Borrowing shall be an ABR
Borrowing.  If no Interest Period is
specified with respect to any requested Eurodollar Borrowing, then the Borrower
shall be deemed to have selected an Interest Period of one month’s
duration.  Promptly following receipt of
a Borrowing Request in accordance with this Section 2.03, the Administrative
Agent shall advise each Lender of the details thereof and of the amount of such
Lender’s Loan to be made as part of the requested Borrowing.


 


SECTION 2.04.            Swingline Loans.


 


(a)           Subject to the terms and conditions set forth herein, the
Swingline Lender agrees to make Swingline Loans to the Borrower from time to
time during the Revolving Availability Period, in


 


34
















 


an aggregate principal amount
at any time outstanding that will not result in (i) the aggregate
principal amount of outstanding Swingline Loans exceeding $10,000,000 or (ii) the
aggregate Revolving Exposures exceeding the aggregate Revolving Commitments, provided
that the Swingline Lender shall not be required to make a Swingline Loan to refinance
an outstanding Swingline Loan.  Within
the foregoing limits and subject to the terms and conditions set forth herein,
the Borrower may borrow, prepay and reborrow Swingline Loans.


 


(b)           To request a Swingline Loan, the
Borrower shall notify the Administrative Agent of such request by telephone (confirmed
by telecopy), not later than 1:00 p.m., New York City time, on the day of
a proposed Swingline Loan.  Each such notice
shall be irrevocable and shall specify the requested date (which shall be a
Business Day) and amount of the requested Swingline Loan.  The Administrative Agent will promptly advise
the Swingline Lender of any such notice received from the Borrower.  The Swingline Lender shall make each Swingline
Loan available to the Borrower by means of a credit to the general deposit
account of the Borrower maintained with the Swingline Lender (or, in the case
of a Swingline Loan made to finance the reimbursement of an LC Disbursement as
provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m.,
New York City time, on the requested date of such Swingline Loan.


 


(c)           The Swingline Lender may by written
notice given to the Administrative Agent not later than 2:00 p.m., New
York City time, on any Business Day require the Revolving Lenders to acquire
participations on such Business Day in all or a portion of the Swingline Loans
outstanding.  Such notice shall specify
the aggregate amount of Swingline Loans in which Revolving Lenders will participate.  Promptly upon receipt of such notice, the
Administrative Agent will give notice thereof to each Revolving Lender,
specifying in such notice such Lender’s Applicable Percentage of such Swingline
Loan or Swingline Loans.  Each Revolving
Lender hereby absolutely and unconditionally agrees, upon receipt of notice as
provided above, to pay to the Administrative Agent, for the account of the
Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or
Swingline Loans.  Each Revolving Lender
acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or reduction or termination of the Commitments,
and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. 
Each Revolving Lender shall comply with its obligation under this
paragraph by wire transfer of immediately available funds, in the same manner
as provided in Section 2.06 with respect to Loans made by such Lender (and
Section 2.06 shall apply, mutatis  mutandis, to the payment
obligations of the Revolving Lenders), and the Administrative Agent shall
promptly pay to the Swingline Lender the amounts so received by it from the
Revolving Lenders.  The Administrative
Agent shall notify the Borrower of any participations in any Swingline Loan
acquired pursuant to this paragraph, and thereafter payments in respect of such
Swingline Loan shall be made to the Administrative Agent and not to the
Swingline Lender.  Any amounts received
by the Swingline Lender from the Borrower (or other party on behalf of the Borrower)
in respect of a Swingline Loan after receipt by the Swingline Lender of the
proceeds of a sale of participations therein shall be promptly remitted to the
Administrative Agent; any such amounts received by the Administrative Agent
shall be promptly remitted by the Administrative Agent to the Revolving Lenders
that shall have made their payments pursuant to this paragraph and to the
Swingline Lender, as their interests may appear, provided that any such
payment so remitted shall be repaid to the Swingline Lender or to the
Administrative Agent, as applicable, if and to the extent such payment is
required to be refunded to the Borrower for any reason.  The purchase of participations in a Swingline
Loan pursuant to this paragraph shall not relieve the Borrower of any default
in the payment thereof.


 


35

















 


SECTION 2.05.            Letters of Credit.


 


(a)           General.  Subject to the terms and conditions set forth
herein, the Borrower may request the issuance of Letters of Credit for its own
account (or for the account of any of its Restricted Subsidiaries so long as
the Borrower is a co-applicant), in a form reasonably acceptable to the Administrative
Agent and the Issuing Bank, at any time and from time to time during the Revolving
Availability Period.  In the event of any
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit application or other agreement
submitted by the Borrower to, or entered into by the Borrower with, the Issuing
Bank relating to any Letter of Credit, the terms and conditions of this
Agreement shall control.  All Existing
Letters of Credit shall be deemed to be issued hereunder and shall constitute
Letters of Credit subject to the terms hereof and, to the extent previously
issued for the account of a Restricted Subsidiary of the Borrower, shall
constitute an obligation of the Borrower pursuant to this Agreement.


 


(b)           Notice of Issuance, Amendment,
Renewal, Extension; Certain Conditions.  To request the issuance of a Letter of Credit
(or the amendment, renewal or extension of an outstanding Letter of Credit),
the Borrower shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the Issuing
Bank) to the Issuing Bank and the Administrative Agent (reasonably in advance
of the requested date of issuance, amendment, renewal or extension) a notice
requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, and specifying the date of issuance,
amendment, renewal or extension (which shall be a Business Day), the date on
which such Letter of Credit is to expire (which shall comply with Section 2.05(c)),
the amount of such Letter of Credit, the name and address of the beneficiary
thereof and such other information as shall be necessary to prepare, amend,
renew or extend such Letter of Credit. 
If requested by the Issuing Bank, the Borrower also shall submit a
letter of credit application on the Issuing Bank’s standard form in connection
with any request for a Letter of Credit. 
A Letter of Credit shall be issued, amended, renewed or extended only if
(and upon issuance, amendment, renewal or extension of each Letter of Credit
the Borrower shall be deemed to represent and warrant that), after giving
effect to such issuance, amendment, renewal or extension, (i) the LC
Exposure shall not exceed $10,000,000 and (ii) the aggregate Revolving
Exposures shall not exceed the aggregate Revolving Commitments.


 


(c)           Expiration Date.  Each Letter of Credit shall expire at or
prior to the close of business on the earlier of (i) the date that is one
year after the date of the issuance of such Letter of Credit (or, in the case
of any renewal or extension thereof, one year after such renewal or extension)
and (ii) ten days prior to the Revolving Maturity Date; provided
that at the option of the Issuing Bank any Letter of Credit having a tenor of
one year or greater may provide for the renewal of such Letters of Credit for additional
one year periods so long as such renewal period does not end after the date described
in clause (ii).


 


(d)           Participations.  By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the Issuing Bank or the Lenders, the Issuing Bank
hereby grants to each Revolving Lender, and each Revolving Lender hereby
acquires from the Issuing Bank, a participation in such Letter of Credit equal
to such Lender’s Applicable Percentage of the aggregate amount available to be
drawn under such Letter of Credit.  In consideration
and in furtherance of the foregoing, each Revolving Lender hereby absolutely
and unconditionally agrees to pay to the Administrative Agent, for the account
of the Issuing Bank, such Lender’s Applicable Percentage of each LC
Disbursement made by the  Issuing Bank
and not reimbursed by the Borrower on the date due as provided in Section 2.05(e),
or of any reimbursement payment required to be refunded to the Borrower for any
reason.  Each Revolving Lender
acknowledges and agrees that its obligation to acquire participations pursuant
to this paragraph in respect of Letters of Credit is absolute and 


 


36

















 


unconditional and shall not be
affected by any circumstance whatsoever, including any amendment, renewal or
extension of any Letter of Credit or the occurrence and continuance of a
Default or reduction or termination of the Commitments, and that each such
payment shall be made without any offset, abatement, withholding or reduction
whatsoever.


 


(e)           Reimbursement.  If the Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse
such LC Disbursement by paying to the Administrative Agent an amount equal to
such LC Disbursement not later than 12:00 noon, New York City time, on the
Business Day immediately following the day that the Borrower shall have
received notice of such LC Disbursement; provided that, if such LC
Disbursement is not less than $250,000, the Borrower may, subject to the
conditions to borrowing set forth herein, request (and, if the Borrower fails
to reimburse such LC Disbursement when due, the Borrower shall be deemed to have
requested) in accordance with Section 2.04 that such LC Disbursement be financed
with a Swingline Loan in an equivalent amount and, to the extent so financed,
the Borrower’s obligation to make such payment shall be discharged and replaced
by the resulting Swingline Loan.  If the
Borrower fails to make such payment when due, the Administrative Agent shall
notify each Revolving Lender of the applicable LC Disbursement, the payment
then due from the Borrower in respect thereof and such Lender’s Applicable Percentage
thereof.  Promptly following receipt of
such notice, each Revolving Lender shall pay to the Administrative Agent its
Applicable Percentage of the payment then due from the Borrower, in the same
manner as provided in Section 2.06 with respect to Loans made by such
Lender (and Section 2.06 shall apply, mutatis  mutandis, to the payment
obligations of the Revolving Lenders), and the Administrative Agent shall
promptly pay to the Issuing Bank the amounts so received by it from the
Revolving Lenders.  Promptly following
receipt by the Administrative Agent of any payment from the Borrower pursuant
to this paragraph, the Administrative Agent shall distribute such payment to
the Issuing Bank or, to the extent that Revolving Lenders have made payments
pursuant to this paragraph to reimburse the Issuing Bank, then to such Lenders
and the Issuing Bank as their interests may appear.  Any payment made by a Revolving Lender
pursuant to this paragraph to reimburse the Issuing Bank for any LC
Disbursement (other than the funding of a Swingline Loan as contemplated above)
shall not constitute a Loan and shall not relieve the Borrower of its obligation
to reimburse such LC Disbursement.


 


(f)            Obligations Absolute.  The Borrower’s obligation to reimburse LC
Disbursements as provided in Section 2.05(e) shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter
of Credit or this Agreement, or any term or provision therein, (ii) any
draft or other document presented under a Letter of Credit proving to be
forged, fraudulent or invalid in any respect or any statement therein being
untrue or inaccurate in any respect, (iii) payment by the Issuing Bank
under a Letter of Credit against presentation of a draft or other document that
does not comply with the terms of such Letter of Credit, or (iv) any other
event or circumstance whatsoever, whether or not similar to any of the
foregoing, that might, but for the provisions of this Section 2.05, constitute
a legal or equitable discharge of, or provide a right of setoff against, the
Borrower’s obligations hereunder. 
Neither the Administrative Agent, the Lenders nor the Issuing Bank, nor
any of their Related Parties, shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of
Credit or any payment or failure to make any payment thereunder (irrespective
of any of the circumstances referred to in the preceding sentence), or any
error, omission, interruption, loss or delay in transmission or delivery of any
draft, notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes beyond
the control of the Issuing Bank, provided that the foregoing shall not
be construed to excuse the Issuing Bank from liability to the Borrower to the
extent of any direct damages (as opposed to consequential or punitive damages,
claims in respect of which are hereby waived by the Borrower to the extent
permitted by applicable 


 


37

















 


law) suffered by the Borrower
that are caused by the Issuing Bank’s failure to exercise care when determining
whether drafts and other documents presented under a Letter of Credit comply
with the terms thereof or the Issuing Bank’s willful misconduct or gross
negligence.  The parties hereto expressly
agree that, in the absence of gross negligence or willful misconduct on the
part of the Issuing Bank (as finally determined by a court of competent
jurisdiction), the Issuing Bank shall be deemed to have exercised care in each
such determination.  In furtherance of
the foregoing and without limiting the generality thereof, the parties agree
that, with respect to documents presented that appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such documents
if such documents are not in strict compliance with the terms of such Letter of
Credit.


 


(g)           Disbursement Procedures.  The Issuing Bank shall, promptly following
its receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit.  The
Issuing Bank shall promptly notify the Administrative Agent and the Borrower by
telephone (confirmed by telecopy) of such demand for payment and whether the
Issuing Bank has made or will make an LC Disbursement thereunder, provided
that any failure to give or delay in giving such notice shall not relieve the
Borrower of its obligation to reimburse the Issuing Bank and the Revolving
Lenders with respect to any such LC Disbursement in accordance with Section 2.05(e).


 


(h)           Interim Interest.  If the Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans, provided
that, if the Borrower fails to reimburse such LC Disbursement when due pursuant
to Section 2.05(e), then Section 2.13(c) shall apply.  Interest accrued pursuant to this paragraph
shall be for the account of the Issuing Bank, except that interest accrued on
and after the date of payment by any Revolving Lender pursuant to Section 2.05(e) to
reimburse the Issuing Bank shall be for the account of such Lender to the
extent of such payment.


 


(i)            Replacement of the Issuing Bank.  The Issuing Bank may be replaced at any time
by written agreement among the Borrower, the Administrative Agent and the
successor Issuing Bank.  The Administrative
Agent shall notify the Lenders of any such replacement of the Issuing
Bank.  At the time any such replacement
shall become effective, the Borrower shall pay all unpaid fees accrued for the
account of the replaced Issuing Bank pursuant to Section 2.12(b).  From and after the effective date of any such
replacement, (i) the successor Issuing Bank shall have all the rights and
obligations of the Issuing Bank under this Agreement with respect to Letters of
Credit to be issued thereafter and (ii) references herein to the term “Issuing
Bank” shall be deemed to refer to such successor or to any previous Issuing
Bank, or to such successor and all previous Issuing Banks, as the context shall
require.  After the replacement of the
Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto
and shall continue to have all the rights and obligations of the Issuing Bank
under this Agreement with respect to Letters of Credit issued by it prior to
such replacement, but shall not be required to issue additional Letters of
Credit.


 


(j)            Cash Collateralization.  If any Event of Default shall occur and be
continuing, on the Business Day that the Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Revolving Lenders with LC Exposure representing greater
than 50% of the aggregate LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, the Borrower shall deposit in an account with the
Collateral Agent, in the name of the Collateral Agent and for the benefit of
the Lenders, an amount in cash equal to 105% the LC Exposure as of 


 


38

















 


such date plus any
accrued and unpaid interest thereon, provided that the obligation to
deposit such cash collateral shall become effective immediately, and such
deposit shall become immediately due and payable, without demand or other
notice of any kind, upon the occurrence of any Event of Default with respect to
the Borrower described in Section 7.01(h) or (i).  The Borrower also shall deposit cash
collateral pursuant to this paragraph as and to the extent required by Section 2.11(b).  Each such deposit shall be held by the
Collateral Agent as collateral for the payment and performance of the
Obligations of the Borrower under this Agreement.  The Collateral Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such
account.  Other than any interest earned
on the investment of such deposits, which investments shall be made at the
option and sole discretion of the Administrative Agent and at the Borrower’s
risk and expense, such deposits shall not bear interest.  Interest or profits, if any, on such
investments shall accumulate in such account. 
Moneys in such account shall be applied by the Administrative Agent to
reimburse the Issuing Bank for LC Disbursements for which it has not been
reimbursed and, to the extent not so applied, shall be held for the
satisfaction of the reimbursement obligations of the Borrower for the LC
Exposure at such time or, if the maturity of the Loans has been accelerated
(but subject to the consent of Revolving Lenders with LC Exposure representing
greater than 50% of the aggregate LC Exposure), be applied to satisfy other
obligations of the Borrower under this Agreement.  If the Borrower is required to provide an
amount of cash collateral hereunder as a result of the occurrence of an Event
of Default, such amount (to the extent not applied as aforesaid) shall be returned
to the Borrower within three Business Days after all Events of Default have
been cured or waived.


 


(k)           Additional Issuing Banks.  The Borrower may at any time, and from time
to time, designate one or more additional Lenders to act as an issuing bank
under this Agreement with the consent of the Administrative Agent and, if Fifth
Third Bank is an Issuing Bank, Fifth Third Bank (which consent, in each case,
shall not be unreasonably withheld) and such Lender.  Any Lender designated as an issuing bank
pursuant to this Section 2.05(k) shall be deemed to be and shall have
all the rights and obligations of an “Issuing Bank” hereunder.


 


SECTION 2.06.            Funding of Borrowings.


 


(a)           Each Lender shall make each Loan to
be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York City time, to the account
of the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders, provided that Swingline Loans shall be made as
provided in Section 2.04.  The
Administrative Agent will make such Loans available to the Borrower by promptly
crediting the amounts so received, in like funds, to an account of the Borrower
maintained with the Administrative Agent in New York City and designated by the
Borrower in the applicable Borrowing Request, provided that ABR
Revolving Loans made to finance the reimbursement of an LC Disbursement as
provided in Section 2.05(e) shall be remitted by the Administrative
Agent to the Issuing Bank.


 


(b)           Unless the Administrative Agent shall
have received notice from a Lender prior to the proposed Borrowing that such
Lender will not make available to the Administrative Agent such Lender’s share
of such Borrowing, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with Section 2.06(a) and
may, in reliance upon such assumption and in its sole discretion, make
available to the Borrower a corresponding amount.  In such event, if a Lender has not in fact
made its share of the applicable Borrowing available to the Administrative
Agent, then the applicable Lender and the Borrower severally agree to pay to
the Administrative Agent forthwith on demand such corresponding amount with
interest thereon, for each day from and including the date such amount is made
available to the Borrower to but excluding the date of payment to the
Administrative Agent, at (i) in the case of such Lender, the greater of
the Federal Funds Effective Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation 


 


39

















 


or (ii) in the case of the
Borrower, the interest rate applicable to such Borrowing.  If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender’s Loan
included in such Borrowing.


 


SECTION 2.07.            Interest Elections.


 


(a)           Each Revolving Borrowing and Term
Loan Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an
initial Interest Period as specified in such Borrowing Request or as designated
by Section 2.03.  Thereafter, the
Borrower may elect to convert such Borrowing to a different Type or to continue
such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest
Periods therefor, all as provided in this Section 2.07.  The Borrower may elect different options with
respect to different portions of the affected Borrowing, in which case each
such portion shall be allocated ratably among the Lenders holding the Loans
comprising such Borrowing, and the Loans comprising each such portion shall be
considered a separate Borrowing.  This Section 2.07
shall not apply to Swingline Borrowings, which may not be converted or continued.


 


(b)           To make an election pursuant to this Section 2.07,
the Borrower shall notify the Administrative Agent of such election by
telephone by the time that a Borrowing Request would be required under Section 2.03
if the Borrower were requesting a Revolving Borrowing of the Type resulting
from such election to be made on the effective date of such election.  Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery
or telecopy to the Administrative Agent of a written Interest Election Request
signed by the Borrower.


 


(c)           Each telephonic and written Interest
Election Request shall specify the following information in compliance with Section 2.02:


 


(i)            the
Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, the
portions thereof to be allocated to each resulting Borrowing (in which case the
information to be specified pursuant to clauses (iii) and (iv) below
shall be specified for each resulting Borrowing);


 


(ii)           the
effective date of the election made pursuant to such Interest Election Request,
which shall be a Business Day;


 


(iii)          whether
the resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;
and


 


(iv)          if
the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a
period contemplated by the definition of the term “Interest Period”.


 


If any such
Interest Election Request requests a Eurodollar Borrowing but does not specify
an Interest Period, then the Borrower shall be deemed to have selected an
Interest Period of one month’s duration.


 


(d)           Promptly following receipt of an
Interest Election Request, the Administrative Agent shall advise each Lender of
the details thereof and of such Lender’s portion of each resulting Borrowing.


 


40

















 


(e)           If the Borrower fails to deliver a
timely Interest Election Request with respect to a Eurodollar Borrowing prior
to the end of the Interest Period applicable thereto, then, unless such Borrowing
is repaid as provided herein, at the end of such Interest Period such Borrowing
shall (i) in the case of a Revolving Borrowing, be converted to an ABR
Borrowing and (ii) in the case of a Term Borrowing, be continued as a
Eurodollar Borrowing with an Interest Period of one month.


 


(f)            Notwithstanding any contrary
provision hereof, if a payment Event of Default has occurred and is continuing
and the Administrative Agent, at the request of the Required Lenders, so
notifies the Borrower, then, so long as such Event of Default is continuing, (i) no
outstanding Borrowing may be converted to or continued as a Eurodollar
Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be
converted to an ABR Borrowing at the end of the Interest Period applicable
thereto.


 


SECTION 2.08.            Termination and Reduction of
Commitments.


 


(a)           Unless previously terminated, (i) the
Tranche A Commitments shall terminate at 5:00 p.m., New York City time, on
the Effective Date, (ii) the Tranche B Commitments shall terminate at 5:00 p.m.,
New York City time, on the Effective Date and (iii) the Revolving
Commitments shall terminate at the start of the Revolving Maturity Date.


 


(b)           The Borrower may at any time
terminate, or from time to time reduce, the Commitments of any Class, provided
that (i) each reduction of the Commitments of any Class shall be in
an amount that is an integral multiple of $500,000 and not less than $1,000,000
and (ii) the Borrower shall not terminate or reduce the Revolving
Commitments if, after giving effect to any concurrent prepayment of the
Revolving Loans in accordance with Section 2.11, the aggregate Revolving
Exposures would exceed the aggregate Revolving Commitments.


 


(c)           The Borrower shall notify the
Administrative Agent of any election to terminate or reduce the Commitments
under Section 2.08(b) at least three Business Days prior to the effective
date of such termination or reduction, specifying such election and the
effective date thereof.  Promptly following
receipt of any notice, the Administrative Agent shall advise the Lenders of the
contents thereof.  Each notice delivered
by the Borrower pursuant to this Section 2.08 shall be irrevocable, provided
that a notice of termination of the Revolving Commitments delivered by the
Borrower may state that such notice is conditioned upon the effectiveness of
other credit facilities or the consummation of any other event, in which case
such notice may be revoked by the Borrower (by notice to the Administrative
Agent on or prior to the specified effective date) if such condition is not
satisfied.  Any termination or reduction
of the Commitments of any Class shall be permanent.  Each reduction of the Commitments of any Class shall
be made ratably among the Lenders in accordance with their respective
Commitments of such Class.


 


SECTION 2.09.            Repayment of Loans; Evidence of
Debt.


 


(a)           The Borrower hereby unconditionally
promises to pay (i) to the Administrative Agent for the account of each
Lender the then unpaid principal amount of each Revolving Loan of such Lender
on the Revolving Maturity Date, (ii) to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Tranche A Term
Loan of such Lender as provided in Section 2.10, (iii) to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Tranche B Term Loan of such Lender as provided in Section 2.10
and (iv) the then unpaid principal amount of each Swingline Loan on the
earlier of the Revolving Maturity Date and the first date after such Swingline
Loan is made that is the 15th or last day of a calendar month and is at least
two Business Days after such Swingline Loan is made; provided that on
each date that a Revolving Borrowing is made, the Borrower shall repay all
Swingline Loans then outstanding.


 


41

















 


(b)           Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the indebtedness
of the Borrower to such Lender resulting from each Loan made by such Lender, including
the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.


 


(c)           The Administrative Agent shall
maintain accounts in which it shall record (i) the amount of each Loan
made hereunder, the Class and Type thereof and the Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable or
to become due and payable from the Borrower to each Lender hereunder and (iii) the
amount of any sum received by the Administrative Agent hereunder for the account
of the Lenders and each Lender’s share thereof.


 


(d)           The entries made in the accounts
maintained pursuant to Section 2.09(b) and (c) shall be prima
facie evidence of the existence and amounts of the obligations recorded
therein, provided that the failure of any Lender or the Administrative
Agent to maintain such accounts or any error therein shall not in any manner
affect the obligation of the Borrower to repay the Loans in accordance with the
terms of this Agreement.


 


(e)           Any Lender may request that Loans of
any Class made by it be evidenced by a Note.  In such event, the Borrower shall prepare,
execute and deliver to such Lender a Note payable to the order of such Lender
(or, if requested by such Lender, to such Lender and its registered
assigns).  Thereafter, the Loans
evidenced by such Notes and interest thereon shall at all times (including
after assignment pursuant to Section 9.04) be represented by one or more
Notes in such form payable to the order of the payee named therein (or, if such
Note is a registered note, to such payee and its registered assigns).


 


SECTION 2.10.            Amortization of Term Loans.


 


(a)           Subject to adjustment pursuant to Section 2.10(d),
the Borrower shall repay Tranche A Term Loan Borrowings on each date set forth
below in the aggregate principal amount set forth opposite such date (as
adjusted from time to time pursuant to Section 2.10(d)):


 


	
  Date

  	
   

  	
  Amount

  	
   

  
	
  December 31, 2007

  	
   

  	
  $

  	
  312,500

  	
   

  
	
  March 30, 2008

  	
   

  	
  $

  	
  312,500

  	
   

  
	
  June 30, 2008

  	
   

  	
  $

  	
  312,500

  	
   

  
	
  September 30, 2008

  	
   

  	
  $

  	
  312,500

  	
   

  
	
  December 31, 2008

  	
   

  	
  $

  	
  312,500

  	
   

  
	
  March 31, 2009

  	
   

  	
  $

  	
  312,500

  	
   

  
	
  June 30, 2009

  	
   

  	
  $

  	
  312,500

  	
   

  
	
  September 30, 2009

  	
   

  	
  $

  	
  312,500

  	
   

  
	
  December 31, 2009

  	
   

  	
  $

  	
  1,562,500

  	
   

  
	
  March 31, 2010

  	
   

  	
  $

  	
  1,562,500

  	
   

  
	
  June 30, 2010

  	
   

  	
  $

  	
  1,562,500

  	
   

  
	
  September 30, 2010

  	
   

  	
  $

  	
  1,562,500

  	
   

  
	
  December 31, 2010

  	
   

  	
  $

  	
  4,687,500

  	
   

  
	
  March 31, 2011

  	
   

  	
  $

  	
  4,687,500

  	
   

  
	
  June 30, 2011

  	
   

  	
  $

  	
  4,687,500

  	
   

  
	
  September 30, 2011

  	
   

  	
  $

  	
  4,687,500

  	
   

  
	
  December 31, 2011

  	
   

  	
  $

  	
  6,250,000

  	
   

  



 


42

















 


	
  Date

  	
   

  	
  Amount

  	
   

  
	
  March 31, 2012

  	
   

  	
  $

  	
  6,250,000

  	
   

  
	
  June 30, 2012

  	
   

  	
  $

  	
  6,250,000

  	
   

  
	
  September 30, 2012

  	
   

  	
  $

  	
  6,250,000

  	
   

  
	
  December 31, 2012

  	
   

  	
  $

  	
  18,125,000

  	
   

  
	
  March 31, 2013

  	
   

  	
  $

  	
  18,125,000

  	
   

  
	
  June 30, 2013

  	
   

  	
  $

  	
  18,125,000

  	
   

  
	
  Tranche A Maturity Date

  	
   

  	
  $

  	
  18,125,000

  	
   

  



 


(b)           Subject to adjustment pursuant to Section 2.10(d),
the Borrower shall repay Tranche B Term Loan Borrowings on each date set forth
below in the aggregate principal amount set forth opposite such date (as
adjusted from time to time pursuant to Section 2.10(d)):


 


	
  Date

  	
   

  	
  Amount

  	
   

  
	
  December 31, 2007

  	
   

  	
  $

  	
  312,500

  	
   

  
	
  March 30, 2008

  	
   

  	
  $

  	
  312,500

  	
   

  
	
  June 30, 2008

  	
   

  	
  $

  	
  312,500

  	
   

  
	
  September 30, 2008

  	
   

  	
  $

  	
  312,500

  	
   

  
	
  December 31, 2008

  	
   

  	
  $

  	
  312,500

  	
   

  
	
  March 31, 2009

  	
   

  	
  $

  	
  312,500

  	
   

  
	
  June 30, 2009

  	
   

  	
  $

  	
  312,500

  	
   

  
	
  September 30, 2009

  	
   

  	
  $

  	
  312,500

  	
   

  
	
  December 31, 2009

  	
   

  	
  $

  	
  312,500

  	
   

  
	
  March 31, 2010

  	
   

  	
  $

  	
  312,500

  	
   

  
	
  June 30, 2010

  	
   

  	
  $

  	
  312,500

  	
   

  
	
  September 30, 2010

  	
   

  	
  $

  	
  312,500

  	
   

  
	
  December 31, 2010

  	
   

  	
  $

  	
  312,500

  	
   

  
	
  March 31, 2011

  	
   

  	
  $

  	
  312,500

  	
   

  
	
  June 30, 2011

  	
   

  	
  $

  	
  312,500

  	
   

  
	
  September 30, 2011

  	
   

  	
  $

  	
  312,500

  	
   

  
	
  December 31, 2011

  	
   

  	
  $

  	
  312,500

  	
   

  
	
  March 31, 2012

  	
   

  	
  $

  	
  312,500

  	
   

  
	
  June 30, 2012

  	
   

  	
  $

  	
  312,500

  	
   

  
	
  September 30, 2012

  	
   

  	
  $

  	
  312,500

  	
   

  
	
  December 31, 2012

  	
   

  	
  $

  	
  312,500

  	
   

  
	
  March 31, 2013

  	
   

  	
  $

  	
  312,500

  	
   

  
	
  June 30, 2013

  	
   

  	
  $

  	
  312,500

  	
   

  
	
  September 30, 2013

  	
   

  	
  $

  	
  312,500

  	
   

  
	
  December 31, 2013

  	
   

  	
  $

  	
  312,500

  	
   

  
	
  March 31, 2014

  	
   

  	
  $

  	
  312,500

  	
   

  
	
  June 30, 2014

  	
   

  	
  $

  	
  312,500

  	
   

  
	
  Tranche B Maturity Date

  	
   

  	
  $

  	
  116,562,500

  	
   

  



 


(c)           To the extent not previously paid,
all Tranche B Term Loans shall be due and payable on the Tranche B Maturity
Date.  To the extent not previously paid,
all Tranche A Term Loans shall be due and payable on the Tranche A Maturity
Date.


 


43

















 


(d)           Any mandatory prepayment of a Term
Loan Borrowing shall be applied to reduce, in the direct order of maturity, the
scheduled repayments of the Term Loan Borrowings to be made pursuant to this Section 2.10
on the scheduled payment dates next following the date of such prepayment,
unless and until each such scheduled repayment has been eliminated as a result
of reductions hereunder.  Any optional
prepayment of a Term Loan Borrowing shall be applied as directed by the
Borrower to do one of the following: (i) to reduce in the direct order of
maturity the scheduled repayments of the Term Loan Borrowings to be made
pursuant to this Section 2.10, (ii) to reduce in the inverse order of
maturity the scheduled repayments of the Term Loan Borrowings to be made pursuant
to this Section 2.10 or (iii) to reduce ratably the remaining
scheduled repayments of the Term Loan Borrowings.


 


SECTION 2.11.            Prepayment of Loans.


 


(a)           The Borrower shall have the right at
any time and from time to time to prepay any Borrowing in whole or in part, subject
to the requirements of this Section 2.11.


 


(b)           In the event and on such occasion
that the aggregate Revolving Exposures exceeds the aggregate Revolving
Commitments, the Borrower shall prepay Revolving Borrowings or Swingline
Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral
in an account with the Collateral Agent pursuant to Section 2.05(j)) in an
aggregate amount equal to such excess.


 


(c)           In the event and on each occasion
that any Net Proceeds are received by or on behalf of Holdings, the Borrower or
any Restricted Subsidiary in respect of any Prepayment Event, the Borrower
shall, promptly after such Net Proceeds are received by Holdings, the Borrower
or such Restricted Subsidiary (and in any event not later than the fifth
Business Day after such Net Proceeds are received), prepay Term Loan Borrowings
in an aggregate amount equal to 100% of such Net Proceeds; provided that
in the case of any event described in clause (a) or (b) of the
definition of the term “Prepayment Event” (other than if the event generating
such Net Proceeds is a disposition made pursuant to Section 6.05 (m)), if
the Borrower shall deliver to the Administrative Agent a certificate of a
Financial Officer to the effect that the Borrower and the Restricted
Subsidiaries intend to apply the Net Proceeds from such event (or a portion
thereof specified in such certificate), within 365 days after receipt of such
Net Proceeds, to acquire or replace real property, equipment or other tangible
assets (excluding inventory) to be used in the business of the Borrower and the
Restricted Subsidiaries, and certifying that no Event of Default has occurred
and is continuing, then no prepayment shall be required pursuant to this
paragraph in respect of the Net Proceeds specified in such certificate, except
to the extent that the aggregate amount of such Net Proceeds that have not been
so applied or contractually committed in writing by the end of such 365-day
period (and, if so contractually committed in writing but not applied prior to
the end of such 365-day period, applied within 180 days of the end of such
period), promptly after which time a prepayment shall be required in an amount
equal to such Net Proceeds.


 


(d)           Following the end of each fiscal year
of the Borrower, commencing with the fiscal year ending December 31, 2008,
the Borrower shall prepay Borrowings in an aggregate amount equal to:


 


(x)                                   the
excess of (A) 50% of Excess Cash Flow over (B) prepayments of Loans under
Section 2.11(a) during such fiscal year (other than prepayments
funded with the proceeds of incurrences of Indebtedness and in the case of
prepayments of Revolving Loans only so long as the corresponding Commitments
are reduced permanently) for any fiscal year for which the Leverage Ratio at
the end of such fiscal year is greater than 5.00 to 1.00,


 


44
















 


(y)                                 the
excess of (A) 25% of Excess Cash Flow over (B) prepayments of Loans under
Section 2.11(a) during such fiscal year for any fiscal year (other
than prepayments funded with the proceeds of incurrences of Indebtedness and in
the case of prepayments of Revolving Loans only so long as the corresponding
Commitments are reduced permanently) for which the Leverage Ratio at the end of
such fiscal year is less than or equal to 5.00 to 1.00 and greater than 4.00 to
1.00 and


 


(z)                                   none
of Excess Cash Flow for any fiscal year for which the Leverage Ratio at the end
of such fiscal year is less than or equal to 4.00 to 1.00.


 


Each
prepayment pursuant to this paragraph shall be made within five Business Days
of the date on which financial statements are delivered pursuant to Section 5.01
with respect to the fiscal year for which Excess Cash Flow is being calculated
(and in any event within 95 days after the end of such fiscal year).


 


(e)                                  Prior
to any optional or mandatory prepayment of Borrowings hereunder, the Borrower
shall determine in accordance with Section 2.10(d) the Borrowing or
Borrowings to be prepaid and shall specify such determination in the notice of
such prepayment pursuant to Section 2.11(f).


 


(f)                                    The
Borrower shall notify the Administrative Agent (and, in the case of prepayment
of a Swingline Loan, the Swingline Lender) by telephone (confirmed by telecopy)
of any prepayment hereunder (i) in the case of prepayment of a Eurodollar
Borrowing, not later than 12:00 noon, New York City time, three Business Days
before the date of prepayment, (ii) in the case of prepayment of an ABR
Borrowing, not later than 11:00 a.m., New York City time, on the date of
prepayment or (iii) in the case of prepayment of a Swingline Loan, not
later than 2:00 p.m., New York City time, on the date of prepayment.  Each such notice shall be irrevocable and
shall specify the prepayment date, the principal amount of each Borrowing or
portion thereof to be prepaid and, in the case of a mandatory prepayment, a
reasonably detailed calculation of the amount of such prepayment, provided
that if a notice of prepayment states that such notice is conditioned on the
effectiveness of other credit facilities or the consummation of any other
event, then such notice of prepayment may be revoked by the Borrower (by notice
to the Administrative Agent on or prior to the specified effective date) if
such condition is not satisfied. 
Promptly following receipt of any such notice (other than a notice
relating solely to Swingline Loans), the Administrative Agent shall advise the
Lenders of the contents thereof.  Each
partial prepayment of any Borrowing shall be in an amount that would be
permitted in the case of an advance of a Borrowing of the same Type as provided
in Section 2.02, except as necessary to apply fully the required amount of
a mandatory prepayment.  Each prepayment
of a Borrowing shall be applied ratably to the Loans included in the prepaid
Borrowing.  Prepayments shall be
accompanied by accrued interest to the extent required by Section 2.13 but
shall in no event include premium or penalty. 
All prepayments of Term Loans under this Section 2.11 shall be made
pro rata amongst the Tranche A Term Loans and the Tranche B Term Loans outstanding
at the time of such prepayment and then with respect to such Term Loans, in accordance
with Section 2.10(d). 
Notwithstanding the foregoing any Tranche B Lender may elect, by written
notice to the Administrative Agent at least one Business Day prior to the
prepayment date, to decline all or any portion of any prepayment of its Trance
B Term Loans, pursuant to this Section 2.11, in which case the aggregate
amount of the prepayment that would have been applied to prepay such Tranche B
Term Loans, but was so declined shall be applied to prepay the Tranche A Term
Loans then outstanding pro rata amongst all the Tranche A Term Loans
outstanding , in accordance with Section 2.10(d) and, following
repaying in full of all Tranche A Term Loans, such amount shall be retained by
Borrower.


 


(g)                                 All
Swap Agreements, if any, between Borrower and any of the Lenders or their
respective affiliates are independent agreements governed by the written
provisions of said Swap 


 


45

















 


Agreements, which will remain
in full force and effect, unaffected by any repayment, prepayment,
acceleration, reduction, increase or change in the terms of the Loans, except
as otherwise expressly provided in said written Swap Agreements, and any payoff
statement from the Lenders relating to the Loans shall not apply to said Swap
Agreements except as otherwise expressly provided in such payoff statement.


 


SECTION 2.12.                 Fees.


 


(a)                                  The
Borrower agrees to pay to the Administrative Agent for the account of each
Lender a commitment fee, which shall accrue at the Applicable Rate on the
average daily unused amount of the Revolving Commitment of such Lender during
the period from and including the Effective Date to but excluding the date on
which the aggregate Revolving Commitments terminate.  Accrued commitment fees shall be payable in arrears
in respect of the Revolving Commitments on the last Business Day of March,
June, September and December of each year and on the date on which
the Revolving Commitments terminate, commencing on the first such date to occur
after the date hereof.  All commitment
fees shall be computed on the basis of a year of 360 days and shall be payable
for the actual number of days elapsed (including the first day but excluding
the last day).  For purposes of computing
commitment fees with respect to Revolving Commitments, a Revolving Commitment
of a Lender shall be deemed to be used to the extent of the outstanding
Revolving Loans and LC Exposure of such Lender (and the Swingline Exposure of
such Lender shall be disregarded for such purpose).


 


(b)                                 The
Borrower agrees to pay (i) to the Administrative Agent for the account of
each Revolving Lender a participation fee with respect to its participations in
Letters of Credit, which shall accrue at the same Applicable Rate used to
determine the interest rate applicable to Eurodollar Revolving Loans on the average
daily amount of such Lender’s LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Effective Date to but excluding the later of the date on which
such Lender’s Revolving Commitment terminates and the date on which such Lender
ceases to have any LC Exposure, and (ii) to the Issuing Bank a fronting
fee, which shall accrue at a rate equal to 0.125% per annum on the average
daily amount of the LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date of termination of the
Revolving Commitments and the date on which there ceases to be any LC Exposure,
as well as the Issuing Bank’s standard fees with respect to the issuance,
amendment, renewal or extension of any Letter of Credit or processing of
drawings thereunder.  Participation fees
and fronting fees shall be payable on the last Business Day of March, June, September and
December of each year, commencing on the first such date to occur after
the Effective Date, provided that all such fees shall be payable on the
date on which the Revolving Commitments terminate and any such fees accruing
after the date on which the Revolving Commitments terminate shall be payable on
demand.  Any other fees payable to the
Issuing Bank pursuant to this paragraph shall be payable within 10 days after
demand.  All participation fees and
fronting fees shall be computed on the basis of a year of 360 days and shall be
payable for the actual number of days elapsed (including the first day but excluding
the last day).


 


(c)                                  The
Borrower agrees to pay to the Administrative Agent, for its own account, fees
payable in the amounts and at the times separately agreed upon between the
Borrower and the Administrative Agent.


 


(d)                                 All
fees payable hereunder shall be paid on the dates due, in immediately available
funds, to the Administrative Agent (or to the Issuing Bank, in the case of fees
payable to it) for distribution, in the case of commitment fees and
participation fees, to the Lenders entitled thereto.  Fees paid shall not be refundable under any
circumstances.


 


46

















 


SECTION 2.13.                 Interest.


 


(a)                                  The
Loans comprising each ABR Borrowing (including each Swingline Loan) shall bear
interest at the Alternate Base Rate plus the Applicable Rate.


 


(b)                                 The
Loans comprising each Eurodollar Borrowing shall bear interest at the LIBO Rate
for the Interest Period in effect for such Borrowing plus the Applicable
Rate.


 


(c)                                  Notwithstanding
the foregoing, if any principal of or interest on any Loan or any fee or other
amount payable by the Borrower hereunder is not paid when due, whether at
stated maturity, upon acceleration or otherwise, such overdue amount shall bear
interest, after as well as before judgment, at a rate per annum equal to (i) in
the case of overdue principal of any Loan, 2% plus the rate otherwise
applicable to such Loan as provided in the preceding paragraphs of this Section 2.13
or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Revolving Loans as provided in Section 2.13(a).


 


(d)                                 Accrued
interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan and, in the case of Revolving Loans, upon termination of the
Revolving Commitments, provided that (i) interest accrued pursuant
to Section 2.13(c) shall be payable on demand, (ii) in the event
of any repayment or prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan prior to the end of the Revolving Availability Period), accrued
interest on the principal amount repaid or prepaid shall be payable on the date
of such repayment or prepayment and (iii) in the event of any conversion
of any Eurodollar Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective date
of such conversion.


 


(e)                                  All
interest hereunder shall be computed on the basis of a year of 360 days, except
that interest computed by reference to the Alternate Base Rate at times when
the Alternate Base Rate is based on the Prime Rate shall be computed on the basis
of a year of 365 days (or 366 days in a leap year), and in each case shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day).  The applicable
Alternate Base Rate or LIBO Rate shall be determined by the Administrative
Agent, and such determination shall be conclusive absent manifest error.


 


SECTION 2.14.                 Alternate Rate of Interest.  If prior to the commencement of any Interest
Period for a Eurodollar Borrowing:


 


(a)                                  the
Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for
ascertaining the LIBO Rate for such Interest Period; or


 


(b)                                 the
Administrative Agent is advised by the Required Lenders that the LIBO Rate for
such Interest Period will not adequately and fairly reflect the cost to such
Lenders of making or maintaining their Loans included in such Borrowing for
such Interest Period;


 


then the Administrative Agent shall give notice thereof to the Borrower
and the Lenders by telephone or telecopy as promptly as practicable thereafter
and, until the Administrative Agent notifies the Borrower and the Lenders that
the circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing.


 


47

















 


SECTION 2.15.                 Increased Costs.


 


(a)                                  If
any Change in Law shall:


 


(i)                                     impose,
modify or deem applicable any reserve, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended by,
any Lender (except any such reserve requirement reflected in the LIBO Rate) or
the Issuing Bank; or


 


(ii)                                  impose
on any Lender or the Issuing Bank or the London interbank market any other
condition (other than attributable to Taxes or Other Taxes) affecting this
Agreement or Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein;


 


and the result of any of the foregoing shall be to increase the cost to
such Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
Issuing Bank of participating in, issuing or maintaining any Letter of Credit
or to reduce the amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender or the Issuing Bank, as applicable, such
additional amount or amounts as will compensate such Lender or the Issuing
Bank, as applicable, for such additional costs incurred or reduction suffered.


 


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


 


(c)                                  The
Borrower shall pay to each Lender, (i) as long as such Lender shall be required
to maintain reserves with respect to liabilities or assets consisting of or
including Eurodollar funds or deposits, additional interest on the unpaid
principal amount of each Eurodollar Loan equal to the actual costs of such
reserves allocated to such Loan by such Lender (as determined by such Lender in
good faith, which determination shall be conclusive in the absence of manifest
error), and (ii) as long as such Lender shall be required to comply with
any reserve ratio requirement or analogous requirement of any other central
banking or financial regulatory authority imposed in respect of the maintenance
of the Commitments or the funding of the Eurodollar Loans, such additional
costs (expressed as a percentage per annum and rounded upwards, if necessary,
to the nearest five decimal places) equal to the actual costs allocated to such
Commitment or Loan by such Lender (as determined by such Lender in good faith,
which determination shall be conclusive absent manifest error) which in each
case shall be due and payable on each date on which interest is payable on such
Loan, provided the Borrower shall have received at least fifteen (15)
days’ prior notice (with a copy to the Administrative Agent, and which notice
shall specify the Statutory Reserve Rate, if any, applicable to such Lender) of
such additional interest or cost from such Lender.  If a Lender fails to give notice fifteen (15)
days prior to the relevant Interest Payment Date, such additional interest or
cost shall be due and payable fifteen (15) days from receipt of such notice.


 


48

















 


(d)                                 A
certificate of a Lender or the Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender or the Issuing Bank or its holding company,
as applicable, as specified in Section 2.15(a), (b) or (c) shall
be delivered to the Borrower and shall be conclusive absent manifest
error.  The Borrower shall pay such
Lender or the Issuing Bank, as applicable, the amount shown as due on any such
certificate within 10 days after receipt thereof.


 


(e)                                  Failure
or delay on the part of any Lender or the Issuing Bank to demand compensation
pursuant to this Section 2.15 shall not constitute a waiver of such Lender’s
or the Issuing Bank’s right to demand such compensation, provided that
the Borrower shall not be required to compensate a Lender or the Issuing Bank
pursuant to this Section 2.15 for any increased costs or reductions incurred
more than 270 days prior to the date that such Lender or the Issuing Bank, as applicable,
notifies the Borrower of the Change in Law giving rise to such increased costs
or reductions and of such Lender’s or the Issuing Bank’s intention to claim
compensation therefor, provided, further, that, if the Change in
Law giving rise to such increased costs or reductions is retroactive, then the
270-day period referred to above shall be extended to include the period of
retroactive effect thereof.


 


SECTION 2.16.                 Break Funding Payments.  In the event of (a) the payment of any
principal of any Eurodollar Loan other than on the last day of an Interest
Period applicable thereto (including as a result of an Event of Default), (b) the
conversion of any Eurodollar Loan other than on the last day of the Interest Period
applicable thereto, (c) the failure to borrow, convert, continue or prepay
any Revolving Loan or Term Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice may be revoked under Section 2.11(f) and
is revoked in accordance therewith), or (d) the assignment of any
Eurodollar Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by the Borrower pursuant to Section 2.19,
then, in any such event, the Borrower shall compensate each Lender for the
loss, cost and expense attributable to such event.  In the case of a Eurodollar Loan, such loss,
cost or expense to any Lender shall be deemed to include an amount determined
by such Lender to be the excess, if any, of (i) the amount of interest
that would have accrued on the principal amount of such Loan had such event not
occurred, at the LIBO Rate that would have been applicable to such Loan, for
the period from the date of such event to the last day of the then current
Interest Period therefor (or, in the case of a failure to borrow, convert or
continue, for the period that would have been the Interest Period for such
Loan), over (ii) the amount of interest that would accrue on such principal
amount for such period at the interest rate that such Lender would bid were it
to bid, at the commencement of such period, for dollar deposits of a comparable
amount and period from other banks in the eurodollar market.  A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this Section 2.16
shall be delivered to the Borrower and shall be conclusive absent manifest error.  The Borrower shall pay such Lender the amount
shown as due on any such certificate within 10 days after receipt thereof.  Notwithstanding the foregoing, no additional
amounts shall be due and payable pursuant to this Section 2.16 to the
extent that on the relevant due date the Borrower deposits in a Prepayment
Account an amount equal to any payment of Eurodollar Loans otherwise required
to be made on a date that is not the last day of the applicable Interest
Period; provided that on the last day of the applicable Interest Period,
the Administrative Agent shall be authorized, without any further action by or
notice to or from the Borrower or any other Loan Party, to apply such amount to
the prepayment of such Eurodollar Loans. 
For purposes of this Agreement, the term “Prepayment Account” shall mean
a non-interest bearing account established by the Borrower with the
Administrative Agent and over which the Administrative Agent shall have
exclusive dominion and control, including the right of withdrawal for
application in accordance with this Section 2.16.  Anything to the contrary contained herein
notwithstanding, no Lender nor any Participant is required to match fund any
Obligation and the provisions of this Section 2.16 shall apply as if match
funding had occurred by acquiring Eurodollar deposits for each Interest Period
in the amount of the applicable Eurodollar Loans.


 


49

















 


SECTION 2.17.                 Taxes.


 


(a)                                  Any
and all payments by or on account of any obligation of any Loan Party hereunder
or under any other Loan Document shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes, provided that if any
Loan Party shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so
that after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.17) the Administrative Agent,
Lender or Issuing Bank (as applicable) receives an amount equal to the amount
it would have received had no such deductions been made, (ii) such Loan
Party shall make such deductions and (iii) such Loan Party shall pay the
full amount deducted to the relevant Governmental Authority in accordance with
applicable law.


 


(b)                                 In
addition, the applicable Loan Party shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.


 


(c)                                  The
applicable Loan Party shall indemnify the Administrative Agent, each Lender and
the Issuing Bank, within 10 Business Days after written demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or the Issuing Bank, as applicable, on or
with respect to any payment by or on account of any obligation of the Borrower
hereunder or under any other Loan Document (including Indemnified Taxes or
Other Taxes imposed or asserted on or attributable to amounts payable under
this Section 2.17) and any reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental
Authority.  A certificate setting forth
in reasonable detail the amount of such payment or liability delivered to the
Borrower by a Lender or the Issuing Bank, or by the Administrative Agent on its
own behalf or on behalf of a Lender or the Issuing Bank, shall be conclusive
absent manifest error.


 


(d)                                 As
soon as practicable after any payment of Indemnified Taxes or Other Taxes by
any Loan Party to a Governmental Authority, such Loan Party shall deliver to
the Administrative Agent the original or a certified copy of a receipt issued
by such Governmental Authority evidencing such payment, if any, a copy of the
return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.


 


(e)                                  Any
Foreign Lender that is entitled to an exemption from or reduction of withholding
tax under the law of the United States, or any treaty to which the United
States is a party, with respect to payments under this Agreement shall deliver
to the Borrower (with a copy to the Administrative Agent), on or prior to the
Effective Date in the case of each Foreign Lender that is a signatory hereto,
and on the date of assignment pursuant to which it becomes a Lender in the case
of each other Lender and from time to time thereafter as reasonably requested
by either of the Borrower or the Administrative Agent, such properly completed,
original and executed documentation prescribed by applicable law or reasonably
requested by the Borrower as will permit such payments to be made without
withholding or at a reduced rate.  Each
Lender that is a U.S. Person within the meaning of Section 7701(a)(30) of
the Code on or prior to the date of its execution and delivery of this
Agreement, on or prior to the date on which it becomes a Lender, in the case of
an assignee, and from time to time thereafter if requested in writing by the
Borrower or the Administrative Agent, shall provide the Borrower and the
Administrative Agent with duplicate executed originals of Internal Revenue
Service Form W-9, or any successor form, certifying that such Lender is
entitled to exemption from United States backup withholding tax.


 


(f)                                    If
the Administrative Agent or a Lender determines, in its reasonable discretion,
that it has received a refund of any Taxes or Other Taxes as to which it has
been indemnified by the 


 


50

















 


Borrower or with respect to
which the Borrower has paid additional amounts pursuant to this Section 2.17,
it shall pay over such refund to the Borrower (but only to the extent of
indemnity payments made, or additional amounts paid, by the Borrower under this
Section 2.17 with respect to the Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses of the Administrative Agent or such
Lender and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), provided that the Borrower, upon
the request of the Administrative Agent or such Lender, agrees to repay the
amount paid over to the Borrower (plus any penalties, interest or other
charges imposed by the relevant Governmental Authority) to the Administrative
Agent or such Lender in the event the Administrative Agent or such Lender is
required to repay such refund to such Governmental Authority.  This Section 2.17 shall not be construed
to require the Administrative Agent or any Lender to make available its Tax
returns (or any other information relating to its Taxes that it deems confidential)
to the Borrower or any other Person.  Notwithstanding
anything contained herein to the contrary, in no event will the Administrative
Agent or any Lender be required to pay any amount to the Borrower the payment
of which would place such Administrative Agent or Lender in a less favorable
net after-tax position than such Lender would have been in if the additional
amounts giving rise to such refund of any Indemnified Taxes or Other Taxes had
never been paid.


 


(g)                                 To
the extent required by any applicable law, the Administrative Agent may
withhold from any payment to any Lender an amount equivalent to any applicable
withholding tax.  If the Internal Revenue
Service or any authority of the U.S. or other jurisdiction asserts a claim that
the Administrative Agent did not properly withhold tax from amounts paid to or
for the account of any Lender (because the appropriate form was not delivered
or properly executed, or because such Lender failed to notify the
Administrative Agent of a change in circumstances that rendered the exemption
from, or reduction of, withholding tax ineffective, or for any other reason),
such Lender shall indemnify the Administrative Agent (to the extent that the
Administrative Agent has not already been reimbursed by the Loan Parties and
without limiting the obligation of the Loan Parties to do so) fully for all
amounts paid, directly or indirectly, by the Administrative Agent as Tax or
otherwise, including penalties and interest, together with all expenses incurred.


 


SECTION 2.18.                 Payments Generally; Pro Rata
Treatment; Sharing of Setoffs.


 


(a)                                  The
Borrower shall make each payment required to be made by it hereunder or under
any other Loan Document (whether of principal, interest, fees or reimbursement
of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or
2.17, or otherwise) prior to the time expressly required hereunder or under
such other Loan Document for such payment (or, if no such time is expressly
required, prior to 3:00 p.m., New York City time), on the date when due,
in immediately available funds, without setoff or counterclaim.  Any amounts received after such time on any
date may, in the discretion of the Administrative Agent, be deemed to have been
received on the next succeeding Business Day for purposes of calculating
interest thereon.  All such payments
shall be made to the Administrative Agent at its offices at 4 World Financial
Center, 250 Vesey Street New York, NY 
10080, except payments to be made directly to the Issuing Bank or
Swingline Lender as expressly provided herein and except that payments pursuant
to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons
entitled thereto and payments pursuant to other Loan Documents shall be made to
the Persons specified therein.  The
Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof.  If any payment under
any Loan Document shall be due on a day that is not a Business Day, the date
for payment shall be extended to the next succeeding Business Day, and, in the
case of any payment accruing interest, interest thereon shall be payable for
the period of such extension.  All
payments under each Loan Document shall be made in dollars.


 


51

















 


(b)                                 If
at any time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, unreimbursed LC Disbursements,
interest and fees then due hereunder, such funds shall be applied (i) first,
towards payment of interest and fees then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (ii) second, towards payment of principal
and unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed
LC Disbursements then due to such parties.


 


(c)                                  If
any Lender shall, by exercising any right of setoff or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its
Revolving Loans, Tranche A Term Loans, Tranche B Term Loans or participations
in LC Disbursements or Swingline Loans resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its Revolving Loans,
Tranche A Term Loans, Tranche B Term Loans and participations in LC Disbursements
and Swingline Loans and accrued interest thereon than the proportion received
by any other Lender, then the Lender receiving such greater proportion shall
purchase (for cash at face value) participations in the Revolving Loans,
Tranche A Term Loans, Tranche B Term Loans and participations in LC
Disbursements and Swingline Loans of other Lenders to the extent necessary so
that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Revolving Loans, Tranche A Term Loans, Tranche B Term Loans
and participations in LC Disbursements and Swingline Loans, provided
that (i) if any such participations are purchased and all or any portion
of the payment giving rise thereto is recovered, such participations shall be rescinded
and the purchase price restored to the extent of such recovery, without
interest, and (ii) the provisions of this paragraph shall not be construed
to apply to any payment made by the Borrower pursuant to and in accordance with
the express terms of this Agreement or any payment obtained by a Lender as consideration
for the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements to any assignee or participant, other than
to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions
of this paragraph shall apply).  The
Borrower consents to the foregoing and agrees, to the extent it may effectively
do so under applicable law, that any Lender acquiring a participation pursuant
to the foregoing arrangements may exercise against the Borrower rights of
setoff and counterclaim with respect to such participation as fully as if such
Lender were a direct creditor of the Borrower in the amount of such participation.


 


(d)                                 Unless
the Administrative Agent shall have received notice from the Borrower prior to
the date on which any payment is due to the Administrative Agent for the
account of the Lenders or the Issuing Bank hereunder that the Borrower will not
make such payment, the Administrative Agent may assume that the Borrower has
made such payment on such date in accordance herewith and may, in reliance upon
such assumption and in its sole discretion, distribute to the Lenders or the
Issuing Bank, as applicable, the amount due. 
In such event, if the Borrower has not in fact made such payment, then
each of the Lenders or the Issuing Bank, as applicable, severally agrees to
repay to the Administrative Agent forthwith on demand the amount so distributed
to such Lender or Issuing Bank with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date
of payment to the Administrative Agent, at the greater of the Federal Funds Effective
Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation.


 


(e)                                  If
any Lender shall fail to make any payment required to be made by it pursuant to
Section 2.04(c), 2.05(d) or (e), 2.06(a), 2.18(d) or 9.03(c),
then the Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender’s
obligations under such Sections until all such unsatisfied obligations are
fully paid.


 


52

















 


SECTION 2.19.                 Mitigation Obligations; Replacement
of Lenders.


 


(a)                                  If
any Lender requests compensation under Section 2.15, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then
such Lender shall use reasonable efforts to designate a different lending office
for funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the
judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17, as
applicable, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender.  The Borrower hereby agrees to
pay all reasonable costs and expenses incurred by any Lender in connection with
any such designation or assignment.


 


(b)                                 If
any Lender requests compensation under Section 2.15, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental Authority
for the account of any Lender pursuant to Section 2.17, or if any Lender
defaults in its obligation to fund Loans hereunder, then the Borrower may, at
its sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in Section 9.04),
all its interests, rights and obligations under this Agreement to an assignee
that shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment), provided that (i) the Borrower
shall have received the prior written consent of the Administrative Agent (and
if a Revolving Commitment is being assigned, the Issuing Bank and the Swingline
Lender), which consent shall not unreasonably be withheld, (ii) such
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and participations in LC Disbursements and Swingline
Loans, accrued interest thereon, accrued fees and all other amounts payable to
it hereunder, from the assignee (to the extent of such outstanding principal
and accrued interest and fees) or the Borrower (in the case of all other
amounts) and (iii) in the case of any such assignment resulting from a claim
for compensation under Section 2.15 or payments required to be made
pursuant to Section 2.17, such assignment will result in a material reduction
in such compensation or payments.  A
Lender shall not be required to make any such assignment and delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation
cease to apply.


 


SECTION 2.20.                 Incremental Extensions of Credit.  At any time during the Revolving Availability
Period, subject to the terms and conditions set forth herein, the Borrower may
at any time and from time to time, by notice to the Administrative Agent
(whereupon the Administrative Agent shall promptly deliver a copy to each of
the Lenders), request to add additional term loans or additional revolving
commitments (together, the “Incremental Extensions of Credit”) in
minimum principal amounts of $5,000,000; provided that such amount may
be less than $5,000,000 if such amount represents all the remaining
availability under the aggregate principal amount set forth below; provided,
further, that (x) immediately prior to and after giving effect to
any Incremental Facility Amendment (as defined below), no Event of Default has
occurred or is continuing or shall result therefrom, (y) the Senior
Secured Leverage Ratio on a Pro Forma Basis as of the last day of the most
recent period in respect of which financial statements shall have been required
to be delivered pursuant to Section 5.01(a) or (b) (or if prior
to the first time such financial statements are so required to be delivered, as
of the last day of the most recent period in respect of which financial
statements of the Borrower and its Restricted Subsidiaries are available) shall
not exceed a ratio that is 0.25 less than the ratio specified in Section 6.12
for such last day (it being understood that if such last day is prior to March 31,
2008, then the ratio specified for March 31, 2008 under Section 6.12
shall be deemed to be the ratio specified in Section 6.12 for such last
day) and (z) the Borrower shall have delivered to the Administrative Agent
an officer’s certificate to the effect set forth in clauses (x) and (y) above.  The Incremental Extensions of Credit:


 


53

















 


(a)                                  shall
be in an aggregate principal amount not exceeding $50,000,000 since the
Effective Date, and


 


(b)                                 shall
rank pari  passu in right of payment and right of security with
the Revolving Loans and Term Loans in respect of the Collateral;


 


provided that (i) the Incremental
Extensions of Credit in the form of term loans shall not have a final maturity
date earlier than the Tranche B Maturity Date, (ii) the Incremental
Extensions of Credit in the form of revolving loans shall not have a final
maturity date earlier than the Revolving Maturity Date, (iii) the
Incremental Extensions of Credit in the form of term loans shall not have a
weighted average life that is shorter than that of the then-remaining weighted
average life of the existing Tranche B Term Loans (without giving effect to any
reductions of such weighted average life caused by voluntary or mandatory
prepayments of Tranche B Term Loans pursuant to Section 2.11) and (iv) the
Incremental Extensions of Credit shall be, in the case of revolving loan
extensions, on the terms and pursuant to the documentation applicable to the
Revolving Loans.  The Borrower shall by
written notice offer each Lender (an “Existing  Lender”) the
opportunity for no less than ten (10) Business Days after delivery of the
notice to commit to provide its pro  rata portion (based on the
amount of its outstanding Tranche A Term Loans, Tranche B Term Loans or outstanding
Revolving Loans and unused Revolving Commitments, as applicable, on the date of
such notice) of any requested Incremental Extension of Credit, provided
that no Existing Lender shall be obligated to provide any Incremental Extension
of Credit unless it so agrees.  Any
additional bank, financial institution, Existing Lender or other Person that
elects to extend Incremental Extensions of Credit shall be reasonably
satisfactory to the Borrower and the Administrative Agent and, in the case of
Incremental Extensions of Credit in the form of revolving loans, the Issuing
Bank (any such bank, financial institution, Existing Lender or other Person
being called an “Additional Lender”) and shall become a Lender under
this Agreement pursuant to an amendment (an “Incremental Facility Amendment”)
to this Agreement giving effect to the modifications permitted by this Section 2.20
and, as appropriate, the other Loan Documents and executed by the Borrower,
each Additional Lender and the Administrative Agent.  Commitments in respect of Incremental
Extensions of Credit shall be Commitments under this Agreement.  An Incremental Facility Amendment may,
without the consent of any other Lenders, effect such amendments to this
Agreement and the other Loan Documents as may be necessary or appropriate, in
the opinion of the Administrative Agent, to effect the provisions of this Section 2.20
(including voting provisions applicable to the Additional Lenders comparable to
the provisions of clause (B) of the second proviso of Section 9.02(b)).  The effectiveness of any Incremental Facility
Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental
Facility Closing Date”) of each of the conditions set forth in Section 4.02
(it being understood that all references to “the date of such Borrowing” in
such Section 4.02 shall be deemed to refer to the Incremental Facility
Closing Date).  The proceeds of the Incremental
Extensions of Credit shall be used for working capital and general corporate
purposes (including Permitted Acquisitions).


 


ARTICLE III


 


Representations
and Warranties


 


The Borrower
and Holdings represent and warrant to the Lenders (it being understood and
agreed that the representations and warranties made on or prior to the
Effective Date are deemed made concurrently with, and after giving effect to,
the consummation of the Transactions on the Effective Date) that:


 


SECTION 3.01.                 Organization; Power.  Each Loan Party (a) is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, (b) except where the 


 


54

















 


failure to do so, individually
or in the aggregate, is not reasonably likely to result in a Material Adverse
Effect, (i) has the power and authority and all governmental rights,
qualifications, approvals, authorizations, permits, accreditations, Reimbursement
Approvals, licenses and franchises material to the business of the Borrower and
the Subsidiaries taken as a whole that are necessary to own its assets, to
carry on its business as now conducted and as proposed to be conducted and to
execute, deliver and perform its obligations under each Loan Document to which
it is a party and (ii) is qualified to do business in, and is in good
standing in, every jurisdiction where such qualification is required.


 


SECTION 3.02.                 Authorization; Enforceability.  The Transactions to be entered into by each
Loan Party have been duly authorized by all necessary corporate or other action
and, if required, stockholder action. 
This Agreement has been duly executed and delivered by each of Holdings
and the Borrower and constitutes, and each other Loan Document to which any
Loan Party is to be a party, when executed and delivered by such Loan Party,
will constitute, a legal, valid and binding obligation of Holdings, the
Borrower or such Loan Party, as applicable, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other laws affecting creditors’ rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law.


 


SECTION 3.03.                 Governmental Approvals; No
Conflicts.  Except as set forth in Schedule
3.03 the Transactions (a) do not require any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority,
except such as have been obtained or made and are in full force and effect and
except those that are required or permitted to be obtained following
consummation of the Transactions, the absence of which individually or in the
aggregate are not reasonably likely to result in a Material Adverse Effect and
filings necessary to perfect Liens created under the Loan Documents, (b) will
not violate any Requirement of Law applicable to Holdings, the Borrower or any
of the Subsidiaries, as applicable, except as is not reasonably likely to
result in, individually or in the aggregate, a Material Adverse Effect, (c) will
not violate or result in a default under any indenture or other material
agreement or instrument binding upon Holdings, the Borrower or any of the
Subsidiaries or its assets, except as is not reasonably likely to result in,
individually or in the aggregate, a Material Adverse Effect, (d) will not
result in a Limitation on any right, qualification, approval, permit,
accreditation, authorization, Reimbursement Approval, license or franchise or
authorization granted by any Governmental Authority, Third Party Payor or other
Person applicable to the business, operations or assets of the Borrower or any
of the Subsidiaries or adversely affect the ability of the Borrower or any of
the Subsidiaries to participate in any Third Party Payor Arrangement except for
Limitations, individually or in the aggregate, as are not reasonably likely to
result in a Material Adverse Effect, and (e) will not result in the
creation or imposition of any Lien on any asset of Holdings, the Borrower or
any of the Subsidiaries, except Liens created under the Loan Documents.  There is no pending or, to the knowledge of
the Borrower, threatened Limitation by any Governmental Authority, Third Party
Payor or any other Person of any right, qualification, approval, permit,
authorization, accreditation, Reimbursement Approval, license or franchise of
the Borrower, or any Subsidiary, except for such Limitations, individually or
in the aggregate, as are not reasonably likely to result in a Material Adverse
Effect.  No certifications by any
Governmental Authority or any Third Party Payor are required for operation of
the business of the Borrower and the Subsidiaries that are not in place, except
for such certifications or agreements, the absence of which do not materially
and adversely affect the operation of the business.


 


SECTION 3.04.                 Financial Condition; No Material
Adverse Change.


 


(a)                                  The
Borrower has heretofore furnished to the Lenders its consolidated balance sheet
and consolidated statements of operations and comprehensive income,
stockholders’ equity and cash flows as of and for the fiscal years ended December 31,
2004, December 31, 2005, and 


 


55

















 


December 31, 2006,
reported on by Ernst & Young LLP, independent public accountants.  Such financial statements present fairly, in
all material respects, the financial position and results of operations and
cash flows of the Borrower and its subsidiaries as of such dates and for such
periods in accordance with GAAP consistently applied.


 


(b)                                 The
Borrower has heretofore furnished to the Lenders its pro forma consolidated
balance sheet as of June 30, 2007 prepared giving effect to the
Transactions as if the Transactions had occurred on such date.  Such pro forma consolidated balance sheet (i) has
been prepared in good faith based on assumptions (which are believed by the
Borrower to be reasonable), (ii) accurately reflects all adjustments
necessary to give effect to the Transactions and (iii) presents fairly, in
all material respects, the pro forma financial position of the Borrower and its
subsidiaries as of June 30, 2007 as if the Transactions had occurred on
such date.


 


(c)                                  No
event, change, condition or state of facts has occurred that has resulted in,
or is reasonably likely to result in, individually or in the aggregate, a
Material Adverse Effect since December 31, 2006.


 


SECTION 3.05.                 Properties.


 


(a)                                  Each
of Holdings, the Borrower and the Subsidiaries has good title to, or valid
leasehold interests in, all its real property material to its business, except
for such defects in title as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, free and clear of all
Liens, except for Liens expressly permitted pursuant to Section 6.02.


 


(b)                                 Schedule
3.05 sets forth the address of each real property owned by any of the Loan
Parties as of the Effective Date after giving effect to the Transactions.


 


SECTION 3.06.                 Litigation.  Except as set forth on Schedule 3.06,
there are no actions, suits or proceedings by or before any arbitrator or
Governmental Authority pending against or, to the knowledge of Holdings and the
Borrower, threatened against or affecting Holdings, the Borrower or any
Subsidiary that would reasonably be likely to, individually or in the
aggregate, (i) result in a Material Adverse Effect or (ii) adversely
affect in any material respect the ability of the Loan Parties to consummate
the Transactions or the other transactions contemplated hereby.


 


SECTION 3.07.                 Compliance with Laws.  Except as is not reasonably likely to result
in, individually or in the aggregate, a Material Adverse Effect, each of
Holdings, the Borrower and the Subsidiaries is in compliance with all Requirements
of Law applicable to it or its property.


 


SECTION 3.08.                 Investment Company Status.  No Loan Party is required to be registered as
an “investment company” as defined in the Investment Company Act of 1940, as
amended.


 


SECTION 3.09.                 Taxes.  Each of Holdings, the Borrower and the
Subsidiaries has timely filed or caused to be filed all Federal income and
other material income Tax returns and reports required to have been filed and
has paid or caused to be paid all Taxes shown to be due and payable on such
returns or on any assessments made by it, including in their capacity as
withholding agent, except any Taxes that are being contested in good faith by
appropriate proceedings for which Holdings, the Borrower or such Subsidiary, as
applicable, has set aside on its books adequate reserves in accordance with
GAAP or to the extent that the failure to pay such Taxes so is not reasonably
likely, individually or in the aggregate, to result in a Material Adverse
Effect.  Each of Holdings, the Borrower
and the Subsidiaries has made adequate provision in accordance with GAAP for
all Taxes not yet due and payable.  None
of 


 


56
















 


Holdings, the
Borrower and the Subsidiaries is aware of any proposed or pending Tax
assessment, deficiency or audit that would reasonably be expected to,
individually or in the aggregate, result in a Material Adverse Effect.


 


SECTION 3.10.            ERISA.  No ERISA Event has occurred, or is reasonably
expected to occur that, when taken together with all other such ERISA Events
for which liability is reasonably expected to occur, is reasonably likely,
individually or in the aggregate, to result in a Material Adverse Effect.  Except as would not be reasonably likely,
individually or in the aggregate, to result in a Material Adverse Effect, the
present value of all accumulated benefit obligations under each Plan (based on
the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed the fair value of the assets of such
Plan.  Except as would not be reasonably
likely to result in, individually or in the aggregate, a Material Adverse
Effect, each employee benefit plan maintained or contributed to by the Borrower
or any Subsidiary and each Plan is in compliance with the applicable provisions
of ERISA and the Code.  Using actuarial
assumptions and computation methods consistent with subpart 1 of subtitle E of
Title IV of ERISA, the aggregate liabilities of each ERISA Affiliate to all
Multiemployer Plans in the event of a complete withdrawal therefrom, as of the
close of the most recent fiscal year of each such Multiemployer Plan, are not
reasonably likely, individually or in the aggregate, to result in a Material
Adverse Effect.


 


SECTION 3.11.            Disclosure.  Neither the Information Memorandum nor any of
the other reports, financial statements, certificates or other information
furnished by or on behalf of any Loan Party to the Administrative Agent or any
Lender in connection with the negotiation of this Agreement or any other Loan
Document or delivered hereunder or thereunder (as modified or supplemented by other
information so furnished and taken as a whole) contains any material misstatement
of fact or omits to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, provided that the foregoing shall not apply to any projected
financial information, and with respect to such projected financial
information, Holdings and the Borrower represent only that such information was
prepared in good faith based upon assumptions believed by them to be reasonable
at the time delivered and as of the Effective Date.


 


SECTION 3.12.            Subsidiaries.  After giving effect to the Merger, as of the
Effective Date, Holdings does not have any subsidiaries other than the Borrower
and the Subsidiaries and Inactive Subsidiaries listed on Schedule 3.12.  Schedule 3.12 sets forth the name of,
and the ownership or beneficial interest of Holdings in, each subsidiary,
including the Borrower, and identifies each Subsidiary that is a Subsidiary
Loan Party, in each case as of the Effective Date.


 


SECTION 3.13.            [Reserved].


 


SECTION 3.14.            Labor
Matters.  As of the Effective Date,
there are no strikes, lockouts or slowdowns against Holdings, the Borrower or
any Subsidiary pending or, to the knowledge of Holdings and the Borrower,
threatened, that would reasonably be expected to, individually or in the
aggregate, result in a Material Adverse Effect.


 


SECTION 3.15.            Solvency.  Immediately after the consummation of the
Transactions to occur on the Effective Date, (a) the fair value of the
assets of the Loan Parties, taken as a whole, at a fair valuation, will exceed
their debts and liabilities, subordinated, contingent or otherwise, (b) the
present fair saleable value of the property of the Loan Parties, taken as a
whole, will be greater than the amount that will be required to pay the
probable liability of their debts and other liabilities, subordinated, contingent
or otherwise, as 


 


57

















 


such debts and
other liabilities become absolute and matured, (c) the Loan Parties, taken
as a whole, will be able to pay their debts and liabilities, subordinated,
contingent or otherwise, as such debts and liabilities become absolute and
matured, and (d) the Loan Parties, taken as a whole, will not have unreasonably
small capital with which to conduct the business in which they are engaged as
such business is now conducted and is proposed to be conducted following the
Effective Date, in each case after giving effect to any rights of indemnification,
contribution or subrogation arising among the Subsidiary Loan Parties pursuant
to the Collateral Agreement or by law.


 


SECTION 3.16.            [Reserved].


 


SECTION 3.17.            Reimbursement
from Third Party Payors.  The
accounts receivable of Holdings, the Borrower and the Subsidiaries have been
and will continue to be adjusted in all material respects to reflect the
reimbursement policies required by all applicable Requirements of Law and other
Third Party Payor Arrangements to which Holdings, the Borrower or such
Subsidiary is subject, and do not exceed in any material respect amounts the
Borrower or such Subsidiary is entitled to receive under any capitation
arrangement, fee schedule, discount formula, cost-based reimbursement or other
adjustment or limitation to usual charges.


 


SECTION 3.18.            Fraud
and Abuse; Licenses.  To the
knowledge of the Borrower and Holdings, none of Holdings, the Borrower or any
Subsidiary, nor any of their respective partners, members, stockholders,
officers or directors, acting on behalf of Holdings, the Borrower or any
Subsidiary, have engaged on behalf of Holdings, the Borrower or any Subsidiary
in any activities that are prohibited under 42 U.S.C. § 1320a-7, 42 U.S.C.
§ 1320a-7a, 42 U.S.C. § 1320a-7b, 42 U.S.C. § 1395nn, 31 U.S.C.
§ 3729 et  seq., or the regulations promulgated thereunder,
or related Requirements of Law, or under any similar state law or regulation,
or that are prohibited by binding rules of professional conduct, including
(a) knowingly and willfully making or causing to be made a false statement
or misrepresentation of a material fact in any application for any benefit or
payment, (b) knowingly and willfully making or causing to be made any
false statement or misrepresentation of a material fact for use in determining
rights to any benefit or payment, (c) failing to disclose knowledge by a
claimant of the occurrence of any event affecting the initial or continued
right to any benefit or payment on its own behalf or on behalf of another, with
intent to secure such benefit or payment fraudulently, (d) knowingly and
willfully soliciting or receiving any remuneration (including any kickback,
bribe or rebate), directly or indirectly, overtly or covertly, in cash or in
kind, or offering to pay or receive such remuneration (i) in return for
referring an individual to a Person for the furnishing or arranging for the
furnishing of any item or service for which payment may be made, in whole or in
part, pursuant to any Third Party Payor Arrangement to which the foregoing rules and
regulations apply or (ii) in return for purchasing, leasing or ordering or
arranging for or recommending purchasing, leasing or ordering any good,
facility, service or item for which payment may be made, in whole or in part,
pursuant to any Third Party Payor Arrangement to which the foregoing rules and
regulations apply and (e) making any prohibited referral for designated
health services, or presenting or causing to be presented a claim or bill to
any individual, Third Party Payor or other entity for designated health
services furnished pursuant to a prohibited referral.  Neither Holdings, the Borrower nor any Subsidiary
shall be considered to be in breach of this Section 3.18 so long as (a) it
shall have taken such actions (including implementation of appropriate internal
controls) as may be reasonably necessary to prevent such prohibited actions and
(b) such prohibited actions as have occurred, individually or in the
aggregate, are not reasonably likely result in a Material Adverse Effect.


 


The facilities
operated by the Borrower and its Subsidiaries are qualified for participation
in the Government Programs in which they participate, and comply in all
material respects with the conditions of participation in all Government
Programs in which they participate or have participated, except for the fact
that facilities newly developed by any such Person may from time to time be
awaiting an initial Medicare certification and/or initial Medicare or Medicaid
provider number in accordance with customary processing and certification
timeframes of such Government Programs. 
There is no pending or, to 


 


58

















 


the Borrower’s
and Holdings’ knowledge, threatened proceeding or investigation by any of the
Government Programs with respect to (i) the Borrower’s or any Subsidiary’s
qualification or right to participate in any Government Program in which it
participates or has participated, (ii) the compliance or non-compliance by
any such Person with the terms or provisions of any Government Program in which
it participates or has participated, or (iii) the right of any such Person
to receive or retain amounts received or due or to become due from any
Government Program in which it participates or has participated, which
proceeding or investigation, together with all other such proceedings and
investigations, would be reasonably likely to result in a Material Adverse Effect.


 


SECTION 3.19.            Margin
Regulations.  The Borrower is not
engaged nor will it engage, principally or as one of its important activities,
in the business of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the Board), or extending credit for the purpose of
purchasing or carrying margin stock, and no proceeds of any Borrowings or
drawings under any Letter of Credit will be used for any purpose that violates
such Regulation U.


 


SECTION 3.20.            [Reserved].


 


SECTION 3.21.            Intellectual
Property; Licenses, Etc.  Holdings,
the Borrower and each of its Subsidiaries own, license or possess the right to
use, all of the trademarks, service marks, trade names, domain names,
copyrights, patents, patent rights, licenses, technology, software, know-how
database rights, design rights and other intellectual property rights
(collectively, “IP Rights”) that are reasonably necessary for the
operation of their respective businesses as currently conducted, and, without
conflict with the rights of any Person, except to the extent such conflicts,
either individually or in the aggregate, are not reasonably likely to result in
a Material Adverse Effect.  Holdings, the
Borrower and its Subsidiaries in the operation of their respective businesses
as currently conducted do not infringe upon any rights held by any Person
except for such infringements, individually or in the aggregate, which are not
reasonably likely to result in a Material Adverse Effect.  No claim or litigation regarding any of the
IP Rights, owned by Holdings, the Borrower and each of its Subsidiaries, is
pending or, to the knowledge of the Borrower and Holdings, threatened against
Holdings, the Borrower or any of its Subsidiaries, which, either individually
or in the aggregate, is reasonably likely to result in a Material Adverse
Effect.


 


Except
pursuant to licenses and other user agreements entered into by each Loan Party
in the ordinary course of business, on and as of the date hereof (i) each
Loan Party owns and possesses the right to use, and has done nothing to
authorize or enable any other Person to use, any copyright, patent or trademark
listed in Schedule 9(a) or 9(b) to the Perfection Certificate and (ii) all
registrations listed in Schedule 9(a) or 9(b) to the Perfection
Certificate are valid and in full force and effect, except, in each case, to
the extent failure to own or possess such right to use or of such registrations
to be valid and in full force and effect is not reasonably likely, individually
or in the aggregate, to result in a Material Adverse Effect.


 


SECTION 3.22.            Security
Documents.


 


(a)           Security
Agreement. 
The Security Documents (other than the Mortgages) are effective to
create in favor of the Collateral Agent for the benefit of the Lenders, legal,
valid and enforceable Liens on, and security interests in, the Collateral
described therein to the extent intended to be created thereby and (i) when
financing statements and other filings in appropriate form are filed in the offices
specified on Schedule 7 to the Perfection Certificate and (ii) upon the
taking of possession or control by the Collateral Agent of such Collateral with
respect to which a security interest may be perfected only by possession or
control (which possession or control shall be given to the Collateral Agent to
the extent possession or control by the Collateral Agent is required by the
Security Documents), the Liens created 


 


59

















 


by the
Security Documents shall constitute fully perfected Liens on, and security
interests in (to the extent intended to be created thereby), all right, title
and interest of the grantors in such Collateral to the extent perfection can be
obtained by filing financing statements or possession or control, as
applicable, and to the extent required by the Security Documents, in each case
subject to no Liens other than Liens permitted hereunder.


 


(b)           PTO Filing;
Copyright Office Filing.  When the
Collateral Agreement or a short form thereof is properly filed in the United
States Patent and Trademark Office and the United States Copyright Office, the
Liens created by the Collateral Agreement shall, to the extent allowed by law,
constitute fully perfected Liens on, and security interests in, all right,
title and interest of the grantors thereunder (to the extent intended to be
created thereby) in Patents and Trademarks (each as defined in the Collateral Agreement)
registered or applied for with the United States Patent and Trademark Office or
Copyrights (as defined in the Collateral Agreement) registered or applied for
with the United States Copyright Office, as the case may be, in each case
subject to no Liens other than Liens permitted hereunder (it being understood
that subsequent recordings in the United States Patent and Trademark Office and
the United States Copyright Office may be necessary to perfect a Lien on
registered Patents, Trademarks and Copyrights acquired by the grantors thereof
after the Effective Date).


 


(c)           Valid Liens.  Each Security
Document (other than the Mortgages) delivered pursuant to Sections 5.12 and
5.13 will, upon execution and delivery thereof, be effective to create in favor
of the Collateral Agent, for the benefit of the Lenders, legal, valid and
enforceable Liens on, and security interests in (to the extent intended to be
created thereby), all of the Loan Parties’ right, title and interest in and to
the Collateral thereunder and (i) when all appropriate filings,
recordings, registrations or notifications are made as may be required under
applicable law and (ii) upon the taking of possession or control by the
Collateral Agent of such Collateral with respect to which a security interest
may be perfected only by possession or control (which possession or control
shall be given to the Collateral Agent to the extent required by any such
Security Document), such Security Document will constitute fully perfected
Liens on, and security interests in (to the extent intended to be created
thereby), all right, title and interest of the Loan Parties in such Collateral
to the extent perfection can be obtained by filing financing statements or
possession or control, as applicable, and to the extent required by the
Security Documents, in each case subject to no Liens other than Liens permitted
hereunder.


 


(d)           Mortgages.
Each Mortgage is effective to create, in favor of the Collateral Agent, for the
benefit of the Lenders, legal, valid and enforceable first priority Liens on,
and security interests in, all of the right, title and interest of the Loan
Party that is a party thereto in and to the Mortgaged Property described
therein, subject only to Permitted Encumbrances or other Liens acceptable to
the Collateral Agent, and when such Mortgage is filed in the applicable offices
(or, in the case of any Mortgage executed and delivered after the date hereof
in accordance with the provisions of Sections 5.12 and 5.13, when such
Mortgage is filed in the offices specified in the local counsel opinion
delivered with respect thereto in accordance with the provisions of
Sections 5.12 and 5.13), such Mortgage shall constitute fully perfected
Liens on, and security interests in, all right, title and interest of such Loan
Party in the Mortgaged Property.


 


SECTION 3.23.            Environmental
Compliance.


 


(a)           Except with respect
to any matters that, individually or in the aggregate, are not reasonably
likely to result in a Material Adverse Effect, neither Holdings, the Borrower
nor any Subsidiary (i) has failed to comply with any Environmental Law or
to obtain, maintain or comply with any Environmental Permit or to provide any
notification required under any Environmental Law or has become subject to any
Environmental Liability or is conducting or financing any investigation,
response or corrective


 


60

















 


action
pursuant to any Environmental Law at any location; or (ii) knows of any
basis for Environmental Liability.


 


(b)           Except as not
reasonably likely to result in, individually or in the aggregate, a Material
Adverse Effect, to the Borrowers knowledge, (i) none of the properties
currently or formerly owned, leased or operated by Holdings, the Borrower or
any of its Subsidiaries is listed or proposed for listing on the NPL or on the
CERCLIS or any analogous state or local list or is adjacent to any such property;
(ii) there has been no Release of Hazardous Materials by any Person on any
property currently or formerly owned, leased or operated by Holdings, the
Borrower or any of its Subsidiaries and there has been no Release of Hazardous
Materials by Holdings, the Borrower or any of its Subsidiaries at any other location.


 


(c)           To the Borrowers
knowledge, all Hazardous Materials generated, used, treated, handled or stored
at, or transported to or from, any property currently or formerly owned or
operated by Holdings, the Borrower or any of its Subsidiaries have been
disposed of in a manner not reasonably likely to result in, individually or in
the aggregate, a Material Adverse Effect.


 


ARTICLE IV


 


Conditions


 


SECTION 4.01.            Effective
Date.  The obligations of the Lenders
to make Loans and of the Issuing Bank to issue Letters of Credit hereunder
shall not become effective until the date on which each of the following
conditions is satisfied (or waived):


 


(a)           The Administrative
Agent shall have received from each party hereto either (i) a counterpart
of this Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such party
has signed a counterpart of this Agreement.


 


(b)           The Administrative
Agent shall have received a written opinion (addressed to the Administrative
Agent and the Lenders and dated the Effective Date) of each of (i) Davis
Polk & Wardwell, special New York counsel for Holdings and the
Borrower, substantially in the form of Exhibit B-1 and (ii) Waller
Lansden Dortch & Davis, LLP, special Tennessee counsel for Holdings
and the Borrower, substantially in the form of Exhibit B-2.


 


(c)           The Administrative
Agent shall have received such documents and certificates as the Administrative
Agent or its counsel may reasonably request relating to the organization, existence
and good standing of each Loan Party, the authorization of the Transactions and
any other legal matters relating to the Loan Parties, the Loan Documents or the
Transactions, all in form and substance reasonably satisfactory to the Administrative
Agent.


 


(d)           The Administrative
Agent shall have received a certificate, dated the Effective Date and signed by
a Financial Officer, confirming compliance with the condition set forth in
paragraph (a) of Section 4.02 (subject to the provisions set forth in
Section 4.02(a)).


 


(e)           The Administrative
Agent shall have received all fees and other amounts due and payable on or
prior to the Effective Date, including, to the extent invoiced, reimbursement
or payment of all out-of-pocket expenses (including fees, charges and
disbursements of counsel) required to be reimbursed or paid by any Loan Party
hereunder or under any other Loan Document.


 


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(f)            The Collateral and
Guarantee Requirement shall have been satisfied and the Administrative Agent
shall have received a completed Perfection Certificate dated the Effective Date
and signed by a Financial Officer, together with all attachments contemplated
thereby, including the results of a search of the Uniform Commercial Code (or
equivalent) filings made with respect to the Loan Parties in the jurisdictions
contemplated by the Perfection Certificate and copies of the financing
statements (or similar documents) disclosed by such search and evidence
reasonably satisfactory to the Administrative Agent that the Liens indicated by
such financing statements (or similar documents) are permitted by Section 6.02
or have been released, provided that the Collateral Agent may, in its
reasonable judgment, grant extensions of time for compliance with the Collateral
and Guarantee Requirement by any Loan Party.


 


(g)           The Administrative
Agent shall have received evidence that the insurance required by Section 5.07
is in effect.


 


(h)           The Administrative
Agent shall have received a certificate, dated the Effective Date and signed by
a Financial Officer, confirming that since April 24, 2007, there has not
been any change, event, condition, circumstance or state of facts, individually
or in the aggregate, that has had or could reasonably be expected to have a
Company Material Adverse Effect (as defined in the Merger Agreement as in
effect on April 24, 2007).


 


(i)            The Lenders shall
have received (i) audited consolidated and consolidating balance sheets
and related statements of income, stockholders’ equity and cash flows of the Borrower
for fiscal year 2006 (without any qualified audit opinion thereon) and (ii) unaudited
consolidated balance sheets and related statements of income, stockholders’
equity and cash flows of the Borrower for each subsequently completed fiscal
quarter (commencing with the fiscal quarter ended March 31, 2007) ended at
least 45 days prior to the Effective Date, which financial statements described
in clauses (i) and (ii) shall be prepared in accordance with GAAP.


 


(j)            The Transactions
shall have been consummated or shall be consummated substantially
simultaneously with the Effective Date in accordance with the Merger Agreement
(in each case without giving effect to any amendments, modifications or waivers
to or of such documents that are materially adverse to the Lenders not approved
by the Arrangers).


 


(k)           The Equity
Contributions shall have been made.


 


(l)            The consummation of
the Transactions shall comply in all respects with the terms of the Bridge Loan
Documents and the Bridge Loan Credit Agreement shall have been entered into
substantially simultaneously with the Effective Date.


 


The
Administrative Agent shall notify the Borrower and the Lenders of the Effective
Date, and such notice shall be conclusive and binding.


 


SECTION 4.02.            Each
Credit Event.  The obligation of each
Lender to make any Loan and of the Issuing Bank to issue, amend, renew or
extend any Letter of Credit, is subject to receipt of the request therefor in
accordance herewith and to the satisfaction of the following conditions:


 


(a)           The representations
and warranties of each Loan Party set forth in the Loan Documents shall be true
and correct in all material respects 
(except to the extent any such representation or warranty is qualified
by “materially”, “Material Adverse Effect” or a similar term, in which case
such representation and warranty (as so qualified) shall be true and correct in
all 


 


62

















 


respects) on and as of the date of such
Borrowing or the date of issuance, amendment, renewal or extension of such
Letter of Credit, as applicable, except to the extent such representations and
warranties expressly relate to an earlier date (in which case such
representations and warranties shall be true and correct in all material
respects (except to the extent any such representation or warranty is qualified
by “materially”, “Material Adverse Effect” or a similar term, in which case
such representation and warranty (as so qualified) shall be true and correct in
all respects) as of such earlier date); provided that the only
representations relating to the Borrower or its Subsidiaries and their
businesses, the accuracy of which shall be a condition to availability on the
Effective Date shall be those in Sections 3.01, 3.02, 3.08 and 3.19.


 


(b)           At the time of and
immediately after giving effect to such Borrowing or the issuance, amendment,
renewal or extension of such Letter of Credit, as applicable, no Default or
Event of Default shall have occurred and be continuing.


 


Each Borrowing
(provided that a conversion or continuation of a Borrowing shall not
constitute a “Borrowing” for purposes of this Section 4.02) and each
issuance, amendment, renewal or extension of a Letter of Credit shall be deemed
to constitute a representation and warranty by Holdings and the Borrower on the
date thereof as to the matters specified in paragraphs (a) and (b) of
this Section 4.02.


 


ARTICLE V


 


Affirmative
Covenants


 


Until the
Commitments have expired or been terminated and the principal of and interest
on each Loan and all fees, expenses and other amounts then due and payable
under any Loan Document shall have been paid in full and all Letters of Credit
shall have expired or terminated and all LC Disbursements shall have been reimbursed,
each of Holdings and the Borrower covenants and agrees with the Lenders that:


 


SECTION 5.01.            Financial
Statements and Other Information.   
The Borrower will furnish to the Administrative Agent (for distribution
to each Lender):


 


(a)           within 90 days (or
such shorter period as the SEC shall specify for the filing of annual reports
on Form 10-K if the Borrower is subject to the reporting requirements of
the Exchange Act) after the end of each fiscal year of the Borrower commencing
with the fiscal year ended December 31, 2007, (i) its audited
consolidated balance sheet and consolidated statements of operations and
comprehensive income, stockholders’ equity and cash flows as of the end of and
for such fiscal year, and the related notes thereto, setting forth in each case
in comparative form the figures for the previous fiscal year, all reported on
by Ernst & Young LLP or other independent public accountants of
recognized national standing or otherwise reasonably satisfactory to the
Administrative Agent (without a “going concern” or like qualification or
exception and without any qualification or exception as to the scope of such
audit) to the effect that such consolidated financial statements present fairly
in all material respects the financial condition and results of operations of
the Borrower and the Subsidiaries on a consolidated basis in accordance with
GAAP consistently applied, and (ii) a “management’s discussion and
analysis of financial condition and results of operations” that describes the
financial condition and results of operations of the Borrower and its
consolidated Subsidiaries;


 


(b)           within 45 days (or
such shorter period as the SEC shall specify for the filing of quarterly
reports on Form 10-Q if the Borrower is subject to the reporting requirements
of the 


 


63

















 


Exchange Act) after the end of each of the
first three fiscal quarters of each fiscal year of the Borrower commencing with
the fiscal quarter ending September 30, 2007, (i) its unaudited
consolidated balance sheet and consolidated statements of operations and
comprehensive income, stockholders’ equity and cash flows as of the end of and
for such fiscal quarter and the then-elapsed portion of the fiscal year,
setting forth in each case in comparative form the figures for the corresponding
period or periods of (or, in the case of the balance sheet, as of the end of)
the previous fiscal year, all certified by a Financial Officer as presenting
fairly in all material respects the financial condition and results of
operations of the Borrower and the Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes, and (ii) if at any time the
Borrower is not subject to the reporting requirements of Section 13 or 15(d) of
the Exchange Act, a “management’s discussion and analysis of financial
condition and results of operations” that describes the financial condition and
results of operations of the Borrower and its consolidated Subsidiaries;


 


(c)           concurrently with
any delivery of financial statements under Section 5.01(a) or (b), a
certificate of a Financial Officer (i) certifying to his or her knowledge
as to whether a Default or Event of Default has occurred and, if a Default or
Event of Default has occurred, specifying the details thereof and any action
taken or proposed to be taken with respect thereto, (ii) setting forth (A) reasonably
detailed calculations demonstrating compliance with Section 6.12 (including
any exercise of the rights set forth in Section 7.02), and showing a
calculation of the Leverage Ratio for purposes of determining the Applicable
Rate and (B) in the case of financial statements delivered under Section 5.01(a) and
if the Leverage Ratio is greater than 3.50 to 1.0 as of the last day of the
applicable fiscal year, reasonably detailed calculations of Excess Cash Flow
for the applicable period, (iii) certifying as to the calculation of
Consolidated EBITDA on a Pro Forma Basis for the four fiscal quarter period
ending on the date of such financial statements and accompanied by reasonably
detailed supporting evidence, and (iv) certifying as to the applicable
Senior Secured Leverage Ratio, accompanied by reasonably detailed supporting evidence;


 


(d)           concurrently with
any delivery of financial statements under Section 5.01(a), a certificate
of the accounting firm that reported on such financial statements stating
whether they obtained knowledge during the course of their examination of such
financial statements of any Event of Default due to any failure to comply with Section 6.12
and, if such knowledge has been obtained, describing such Event of Default
(which certificate may be limited to the extent required by accounting
policies, rules or guidelines);


 


(e)           within 45 days after
the commencement of each fiscal year of the Borrower, a detailed consolidated
budget for such fiscal year (including a projected consolidated balance sheet
and consolidated statements of projected operations and cash flows as of the
end of and for such fiscal year) and, promptly when available, any material
revisions of such budget approved by the Board of Directors of Borrower;


 


(f)            promptly after the
same become publicly available, copies of all periodic and other reports, proxy
statements and other materials filed by the Borrower or any Subsidiary with the
SEC or with any national securities exchange, as applicable;


 


(g)           simultaneously with
the delivery of each set of consolidated financial statements referred to in Sections
5.01(a) and 5.01(b) above, the related consolidating financial
statements reflecting the adjustments necessary to eliminate the accounts of
Unrestricted Subsidiaries (if any) from such consolidated financial statements;
and


 


64

















 


(h)           promptly following
any request therefor, such other information regarding the operations, business
affairs and financial condition of Holdings, the Borrower or any Subsidiary, or
compliance with the terms of any Loan Document, as the Administrative Agent or
any Lender may reasonably request.


 


Documents
required to be delivered pursuant to Section 5.01(a), (b) or (f) may
(to the extent any such documents are included in materials otherwise filed
with the SEC) be delivered electronically and if so delivered, shall be deemed
to have been delivered on the date (i) on which the Borrower posts such
documents, or provides a link thereto on the Borrower’s website on the Internet
at the website address listed on Schedule 5.01 or (ii) on which
such documents are posted on the Borrower’s behalf on an Internet or intranet
website, if any, to which each Lender and the Administrative Agent have access
(whether a commercial, third-party website or whether sponsored by the Administrative
Agent); provided that the Borrower shall deliver paper copies of such
documents to the Administrative Agent or any Lender that requests the Borrower
to deliver such paper copies until a written request to cease delivering paper
copies is given by the Administrative Agent or such Lender.  Notwithstanding anything contained herein, in
every instance the Borrower shall be required to provide paper copies of the
certificate of the Financial Officer required by Section 5.01(c) to
the Administrative Agent.  Except for
such certificate of the Financial Officer, the Administrative Agent shall have
no obligation to request the delivery or to maintain copies of the documents
referred to above, and in any event shall have no responsibility to monitor
compliance by the Borrower with any such request for delivery, and each Lender
shall be solely responsible for requesting delivery to it or maintaining its
copies of such documents.


 


SECTION 5.02.            Notices
of Material Events.  Holdings and the
Borrower will furnish to the Administrative Agent (for distribution to each
Lender), through the Administrative Agent, written notice of the following
promptly after obtaining knowledge thereof:


 


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


 


(b)           the filing or
commencement of any action, suit or proceeding by or before any arbitrator or
Governmental Authority against or affecting Holdings, the Borrower or any
Subsidiary that is reasonably likely to result in a Material Adverse Effect.


 


Each notice
delivered under this Section 5.02 shall be accompanied by a statement of a
Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.


 


SECTION 5.03.            Information
Regarding Collateral.  The Borrower
will furnish to the Collateral Agent prompt written notice (but in no event
later than 30 days) of any change (i) in any Loan Party’s correct legal
name, (ii) in the jurisdiction of incorporation or organization of any
Loan Party or (iii) in any Loan Party’s organizational identification
number.  The Borrower agrees not to
effect or permit any change referred to in the preceding sentence unless all
filings have been made under the Uniform Commercial Code or otherwise that are
required in order for the Collateral Agent to continue at all times following
such change to have a valid, legal and perfected security interest in all the
Collateral to the extent required by the Security Documents.


 


SECTION 5.04.            Existence;
Conduct of Business.  Each of
Holdings and the Borrower will, and will cause each of the Restricted Subsidiaries
to, do or cause to be done all things necessary to preserve, renew and keep in
full force and effect its legal existence and the rights, qualifications,
permits, approvals, accreditations, authorizations, Reimbursement Approvals,
licenses, franchises, patents, copyrights, trademarks and trade names material
to the conduct of its business, except to the extent the failure 


 


65

















 


to do so could
not reasonably be expected to have a Material Adverse Effect and provided
that the foregoing shall not prohibit any merger, consolidation, liquidation,
dissolution or asset sales or other dispositions permitted under Section 6.03
or 6.05.


 


SECTION 5.05.            Payment
of Obligations.  Each of Holdings and
the Borrower will, and will cause each of the Restricted Subsidiaries to, pay
its Tax liabilities, before the same shall become delinquent or in default,
except where (i) (a) the validity or amount thereof is being
contested in good faith by appropriate proceedings, (b) Holdings, the
Borrower or such Restricted Subsidiary has set aside on its books adequate
reserves with respect thereto in accordance with GAAP, and (c) such
contest effectively suspends the enforcement of any Lien securing such
obligation or (ii) the failure to make such payment is not reasonably
likely to, individually or in the aggregate, result in a Material Adverse Effect.


 


SECTION 5.06.            Maintenance
of Properties.  Each of Holdings and
the Borrower will, and will cause each of the Restricted Subsidiaries to, keep
and maintain all property material to the conduct of its business in good
working order and condition, ordinary wear and tear and fire or other casualty
excepted, except to the extent the failure to do so could not reasonably be
expected to have a Material Adverse Effect.


 


SECTION 5.07.            Insurance.  Each of Holdings and the Borrower will, and
will cause each of the Restricted Subsidiaries to, maintain, with financially
sound and reputable insurance companies (which may include self-insurance), (a) insurance
in such amounts (with no greater risk retention) and against such risks as are
customarily maintained by companies of established repute engaged in the same
or similar businesses operating in the same or similar locations and (b) all
insurance required to be maintained pursuant to the Security Documents.


 


SECTION 5.08.            [Reserved].


 


SECTION 5.09.            Books
and Records; Inspection and Audit Rights. 
Each of Holdings and the Borrower will, and will cause each of the
Restricted Subsidiaries to, keep proper books of record and account in which
full, true and correct (in all material respects) entries are made of all
dealings and transactions in relation to its business and activities to the
extent necessary to prepare the consolidated financial statements of the
Borrower in accordance with GAAP.  Each
of Holdings and the Borrower will, and will cause each of the Restricted
Subsidiaries to, permit any representatives designated by the Administrative
Agent or any Lender, upon reasonable prior notice, to visit and inspect its
properties during normal business hours, to examine and make extracts from its
books and records, including any information relating to actual or potential
compliance with or liability under Environmental Laws, and to discuss its
affairs, finances and condition with its officers and independent accountants (provided
that the Borrower shall be provided the opportunity to participate in any such
discussions with its independent accountants), all at such reasonable times and
as often as reasonably requested.


 


SECTION 5.10.            Compliance
with Laws.  Each of Holdings and the
Borrower will, and will cause each of the Restricted Subsidiaries to comply
with all Requirements of Law (except in such instances in which such
Requirement of Law is being contested by appropriate proceedings diligently
conducted), including ERISA and Environmental Laws, applicable to it, its
operations and all property owned, operated and leased by any of them, except
where the failure to do so, individually or in the aggregate, is not reasonably
likely to result in a Material Adverse Effect.


 


SECTION 5.11.            Use
of Proceeds and Letters of Credit. 
The proceeds of the Tranche A Term Loans, Tranche B Term Loans and any
Revolving Loans borrowed on the Effective Date will be used by the Borrower on
the Effective Date solely for (a) first, the payment of the
Transaction Costs, (b)


 


66

















 


second,
the payment of all principal, interest, fees and other amounts outstanding
under the Existing Credit Facility, and (c) third, together with
the Equity Contributions and cash on hand of the Borrower, the payment of the
Merger Consideration.  The proceeds of
the Revolving Loans (except as described above), Swingline Loans and Letters of
Credit will be used only for working capital and for other general corporate
purposes (including Permitted Acquisitions). 
No part of the proceeds of any Loan and no Letter of Credit will be
used, whether directly or indirectly, for any purpose that entails a violation
of any of the Regulations of the Board, including Regulations U and X.


 


SECTION 5.12.            Additional
Subsidiaries.  If any additional
wholly owned Restricted Subsidiary is formed or acquired after the Effective
Date (or if any wholly owned Immaterial Subsidiary or Specified Subsidiary that
is not a Subsidiary Loan Party ceases to qualify as an Immaterial Subsidiary or
Specified Subsidiary, as applicable) the Borrower will, promptly and in any
event within 30 days of such event, notify the Collateral Agent and the
Administrative Agent thereof and within 60 days of such event cause the
Collateral and Guarantee Requirement to be satisfied with respect to such
Subsidiary (if it is a Subsidiary Loan Party) and with respect to any Equity
Interest in such wholly owned Restricted Subsidiary owned by any Loan Party; provided
that the Collateral Agent may, in its reasonable judgment, grant extensions of
time for compliance, or exceptions from compliance, with the provisions of this
paragraph by any Restricted Subsidiary.


 


SECTION 5.13.            Further
Assurances.


 


(a)           Holdings and the
Borrower will, and will cause each Subsidiary Loan Party to, execute any and
all further documents, financing statements, agreements and instruments, and
take all such further actions (including the filing and recording of financing
statements, fixture filings, mortgages, deeds of trust and other documents),
which may be required under any applicable law, or which the Administrative
Agent or the Required Lenders may reasonably request, to cause the Collateral
and Guarantee Requirement to be and remain satisfied, all at the expense of the
Loan Parties.  Each of Holdings and the
Borrower also agrees to provide to the Collateral Agent, from time to time upon
reasonable request, evidence reasonably satisfactory to the Administrative
Agent as to the perfection and priority of the Liens created or intended to be
created by the Security Documents.


 


(b)           If any material
assets (including any real property (other than any leased real property),
other than any owned real property with a fair value of less than $5,000,000),
are acquired by the Borrower or any Subsidiary Loan Party after the Effective
Date (other than assets constituting Collateral under the Collateral Agreement
that become subject to the Lien in favor of the Collateral Agent upon
acquisition thereof), the Borrower will promptly notify the Administrative
Agent and the Lenders thereof and, if requested by the Administrative Agent or
the Required Lenders, the Borrower will cause such assets to be subjected to
the Lien of the Security Documents securing the Obligations and will take, and
cause the Subsidiary Loan Parties to take, such actions as shall be necessary
or reasonably requested by the Administrative Agent to grant and perfect such
Liens, including actions described in Section 5.13(a), all at the expense
of the Loan Parties, all within 90 days of such request, provided that
the Collateral Agent may, in its reasonable judgment, grant extensions of time
for compliance or exceptions with the provisions of this paragraph by any Loan
Party.  Notwithstanding anything to the
contrary in this Agreement or any Security Document, no Loan Party shall be
required to pledge or grant security interests in particular assets if, in the
reasonable judgment of the Administrative Agent or the Collateral Agent, the
costs of creating or perfecting such pledges or security interests in such
assets (including any mortgage, stamp, intangibles or other Tax) are excessive
in relation to the benefits to the Lenders therefrom


 


SECTION 5.14.            Environmental
Matters.  Except to the extent that
the failure to do so is not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect, Holdings and 


 


67

















 


the Borrower
will (a) comply, and take all reasonable actions to cause its lessees to
comply with all applicable Environmental Laws and Environmental Permits; (b) obtain
and renew all Environmental Permits necessary for its operations and necessary
for its ownership or leasing of its properties; and (c) in each case to
the extent Holdings, the Borrower or any Restricted Subsidiary is required by
Environmental Laws, conduct any investigation, study, sampling and testing, and
undertake any cleanup, removal, remedial or other action necessary to remove
and clean up Hazardous Materials at, on, under or emanating from any affected
property, in accordance with the requirements of such Environmental Laws.


 


SECTION 5.15.            Designation
of Subsidiaries.


 


(a)           The Borrower may at
any time after the Effective Date designate any Restricted Subsidiary of the
Borrower as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a
Restricted Subsidiary; provided that (i) immediately before and
after such designation on a Pro Forma Basis, no Default shall have occurred and
be continuing, (ii) immediately after giving effect to such designation,
the Borrower shall be in compliance, on a Pro Forma Basis, with the Financial
Performance Covenant as of the last day of the most recent period in respect of
which financial statements shall have been required to be delivered pursuant to
Section 5.01(a) or (b) (or if prior to the first time such
financial statements are so required to be delivered, as of the last day of the
most recent period for which financial statements of the Borrower and its
Restricted Subsidiaries are available); it being understood that if such last
day is prior to March 31, 2008, then the ratio specified for March 31,
2008 under Section 6.12 shall be deemed to apply (it being understood that
as a condition precedent to the effectiveness of any such designation, the Borrower
shall deliver to the Administrative Agent a certificate of a Financial Officer
setting forth in reasonable detail the calculations demonstrating such
compliance), (iii) no Subsidiary may be designated as an Unrestricted
Subsidiary or continue as an Unrestricted Subsidiary if (A) it is a “Restricted
Subsidiary” for the purpose of the Bridge Loan Credit Agreement or any other
Indebtedness of Holdings or the Borrower or (B) the Borrower or any
Restricted Subsidiary provides any Guarantee or credit support of any kind,
including any undertaking, Guarantee, indemnity, agreement or instrument that
would constitute Indebtedness (other than the pledge of Equity Interests of
Unrestricted Subsidiaries) of any Indebtedness of such Unrestricted Subsidiary
or is directly or indirectly liable on such Indebtedness, as a guarantor or
otherwise or any Indebtedness of such Unrestricted Subsidiary contains a
default that would permit, upon notice, lapse of time or both, any holder of
any Indebtedness of Borrower or any Restricted Subsidiary to declare a default
under such other Indebtedness or cause the payment thereof to be accelerated or
payable prior to its stated maturity, and (iv) if a Restricted Subsidiary
is being designated as an Unrestricted Subsidiary hereunder, the sum of (A) the
assets of such Subsidiary as of such date of designation (the “Designation
Date”), as set forth on such Subsidiary’s most recent balance sheet, plus
(B) the aggregate amount of assets of all Unrestricted Subsidiaries
designated as Unrestricted Subsidiaries pursuant to this Section 5.15(a) prior
to the Designation Date (in each case measured as of the date of each such
Unrestricted Subsidiary’s designation as an Unrestricted Subsidiary), together
with the amount of all Investments outstanding pursuant to Section 6.04(i) and
Section 6.04(xv), as of the Designation Date shall not exceed $20,000,000
(net of cash returns on such Investments to the Borrower or a Qualified
Restricted Subsidiary) during any period of 12 consecutive months (with any
amount not used during such period permitted to be carried forward to any
subsequent period) as of the Designation Date on a pro forma basis for such
designation.  The designation of any
Subsidiary as an Unrestricted Subsidiary after the Effective Date shall
constitute an Investment by the Borrower therein at the date of designation in
an amount equal to the net book value of the Borrower’s or its Subsidiary’s (as
applicable) investment therein.  The
designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall
constitute (i) the incurrence at the time of designation of any
Investment, Indebtedness or Liens of such Subsidiary existing at such time and (ii) a
return on any Investment by the Borrower in Unrestricted Subsidiaries pursuant
to the preceding sentence in an amount equal to the Fair Market Value at the
date of such designation of the Borrower’s or its Subsidiary’s (as applicable)
Investment in such Subsidiary.


 


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(b)           If, at any time, a
Restricted Subsidiary would fail to meet the requirements set forth in the
definition of “Qualified Restricted Subsidiary”, it will thereafter cease to be
a Qualified Restricted Subsidiary for purposes of this Agreement and any
Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted
Subsidiary that is not a Qualified Restricted Subsidiary as of such date and,
if such Indebtedness is not permitted to be incurred as of such date under Section 6.01
the Borrower will be in default of such covenant.  The Chief Executive Officer or Chief
Financial Officer of the Borrower may at any time designate any Restricted
Subsidiary not to be a Qualified Restricted Subsidiary; provided  that such designation will be deemed to
be an incurrence of Indebtedness by such Restricted Subsidiary of any outstanding
Indebtedness of such Restricted Subsidiary, and such designation will only be
permitted if (1) such Indebtedness is permitted under Section 6.01
and (2) no Default or Event of Default would be in existence upon or
following such designation.  In the event
(x) a Restricted Subsidiary fails to meet the requirements to be a
Qualified Restricted Subsidiary or (y) the Chief Executive Officer or
Chief Financial Officer designates a Qualified Restricted Subsidiary not to be
a Restricted Subsidiary, then all Investments in such Subsidiary since the
Effective Date shall be deemed to be an incurrence under Section 6.04(xv)
and to consequently reduce amounts available under Section 5.15(a)(iv),
the proviso to Section 6.04(i) and Section 6.04(xv).  The
Borrower shall deliver to the Administrative Agent a certificate of a Financial
Officer setting forth any such designation as a condition precedent to such
designation.


 


(c)           Except to the extent
restricted pursuant to any Permitted Payment Restrictions, the Borrower shall,
and shall cause each Restricted Subsidiary to, cause each Qualified Restricted
Subsidiary to declare and pay regular monthly, quarterly, semiannual or annual
dividends or distributions to the holders of its Equity Interests in an amount
equal to substantially all of the available cash flow of such Qualified
Restricted Subsidiary for such period as determined in good faith by the Board
of Directors of such Qualified Restricted Subsidiary, subject to fiduciary
duties applicable to such Board of Directors and  such ordinary and customary reserves and
other amounts as, in the good faith judgment of such individuals, may be
necessary so that the business of such Qualified Restricted Subsidiary may be
properly and advantageously conducted at all times, including amounts for
operations, capital expenditures and debt service of such Qualified Restricted
Subsidiary.


 


SECTION 5.16.            Post
Closing Matters.  Borrower shall use
its commercially reasonable efforts to (a) deliver within 10 Business Days
after the Closing Date (unless waived or extended in the Collateral Agent’s
reasonable discretion) that certain promissory note from NorthStar Surgical
Center, L.P. to ARC Financial Services Corporation, dated July 15, 2005,
accompanied by duly executed instruments of transfer or assignment in blank and
(b)(i) order the reports required by Section 4.01(f) for
searches conducted with respect to (1) Davidson County, Tennessee and (2) the
United States District Court for the Middle District of Tennessee) within 10
Business Days after the Closing Date (unless waived or extended in the
Collateral Agent’s sole discretion) and thereafter use commercially reasonable
efforts to obtain such reports, (ii) cause such reports to be delivered to
the Collateral Agent promptly upon receipt thereof (unless waived or extended
in the Collateral Agent’s reasonable discretion) and (iii) within 30 days
of the receipt of such reports, cause any Liens (other than Liens permitted by Section 6.02
or other Liens permitted by the Collateral Agent in its reasonable discretion)
disclosed in such results to be discharged.


 


ARTICLE VI


 


Negative
Covenants


 


Until the
Commitments have expired or been terminated and the principal of and interest
on each Loan and all fees, expenses and other amounts then due and payable
under any Loan Document 


 


69
















 


have been paid
in full and all Letters of Credit have expired or terminated and all LC Disbursements
shall have been reimbursed, the Borrower covenants and agrees with the Lenders
that:


 


SECTION 6.01.                                    Indebtedness;
Certain Equity Securities.


 


(a)                                  The
Borrower will not, nor will it permit any Restricted Subsidiary to, directly or
indirectly create, incur, issue, guarantee or assume or otherwise become
directly or indirectly liable for any Indebtedness, contingently or otherwise,
except:


 


(i)                                     Indebtedness
created under the Loan Documents;


 


(ii)                                  Indebtedness
of any Loan Party under the Bridge Loan Documents or the Take Out Notes in an
aggregate principal amount not to exceed $175,000,000 plus any interest
accrued thereon and not paid in cash but added to the principal thereof
(whether or not accompanied by the issuance of additional notes); provided
that such Indebtedness (a) shall mature (after giving effect to any
automatic extension of the maturity date thereof) no earlier than the eighth
anniversary of the Effective Date, (b) shall provide for no interim
amortization, mandatory redemption or mandatory prepayment prior to maturity
(other than (x) the mandatory prepayment contemplated in
Section 2.11(b) of the Bridge Loan Credit Agreement as in effect on
the date hereof or any similar mandatory prepayment or mandatory redemption
provision and (y) in the case of Indebtedness under the Bridge Loan
Documents, any mandatory redemption or mandatory prepayment with the proceeds
of the Take Out Notes) and (c) shall not provide that the holders thereof
have the right to require any of the obligors under such Indebtedness to
repurchase or prepay (or offer to repurchase or prepay) such Indebtedness,
except, in the case of clauses (b) and (c) above, upon customary
“change of control” and “asset sale” events;


 


(iii)                               Indebtedness
existing on the Effective Date and set forth in Schedule 6.01 and
extensions, renewals and replacements of any such Indebtedness, provided
that such extending, renewal or replacement Indebtedness (A) shall not be
in a principal amount that exceeds the principal amount of the Indebtedness
being extended, renewed or replaced (plus accrued interest and premium
thereon and reasonable fees and expenses incurred in connection therewith),
(B) shall not have an earlier maturity date or a decreased weighted
average life than the Indebtedness being extended, renewed or replaced,
(C) if applicable, shall be subordinated to the Obligations on the same
terms (or, from a Lender’s perspective, better terms) as the Indebtedness being
extended, renewed or replaced, and (D) there is no obligor of such
Indebtedness that is not an obligor of such Indebtedness on the Effective Date;


 


(iv)                              Indebtedness
of the Borrower owed to any Restricted Subsidiary and of any Restricted Subsidiary
owed to the Borrower or another Restricted Subsidiary; provided that in the case of any
such Indebtedness of a Restricted Subsidiary owed to the Borrower or a
Subsidiary Loan Party, such Indebtedness is evidenced by a Pledged Note to the
extent required by the Collateral and Guarantee Requirement;


 


(v)                                 [Reserved];


 


(vi)                              Guarantees
by the Borrower of Indebtedness of any Qualified Restricted Subsidiary and by
any Qualified Restricted Subsidiary of Indebtedness of the Borrower or any
other Qualified Restricted Subsidiary, provided that the Indebtedness so
Guaranteed would have otherwise been permitted to be incurred by Borrower or
the Guaranteeing Qualified Restricted Subsidiary under another clause of this
Section 6.01;


 


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(vii)                           (A) Indebtedness
of the Borrower or any Restricted Subsidiary that was assumed in connection
with a Permitted Acquisition, which Indebtedness was in existence at the time
of such Permitted Acquisition and not incurred in contemplation thereof and
Permitted Refinancing Indebtedness in respect thereof, (B) Indebtedness of
the Borrower or any Restricted Subsidiary incurred to finance the design,
acquisition, construction, lease installation or improvement of any property
(real or personal), fixed or capital assets, including Capital Lease
Obligations (whether through their direct purchase or purchase of Equity
Interest of a Person owing such property) and extensions, renewals and
replacements thereof, and (C) any Indebtedness assumed by the Borrower or
any Restricted Subsidiary in connection with the acquisition of any such assets
or secured by a Lien on any such assets prior to the acquisition thereof and
Permitted Refinancing Indebtedness in respect thereof; provided that the
aggregate principal amount of Indebtedness permitted by this
Section 6.01(a)(vii) shall not exceed $50.0 million at any one time
outstanding;


 


(viii)                        Indebtedness
owed to any Person (including obligations in respect of letters of credit for
the benefit of such Person) providing workers’ compensation, health, disability
or other employee benefits or property, casualty or liability insurance
pursuant to reimbursement or indemnification obligations to such Person, in
each case incurred in the ordinary course of business;


 


(ix)                                Indebtedness
of the Borrower or any Restricted Subsidiary in respect of (i) performance
bonds, bid bonds, surety bonds, performance and completion guarantees and
similar obligations, in each case provided in the ordinary course of business,
and (ii) appeal bonds;


 


(x)                                   Indebtedness
of any Loan Party pursuant to Swap Agreements permitted by Section 6.07;


 


(xi)                                so
long as (x) no Event of Default has occurred and is continuing or would
result therefrom and (y) the Senior Secured Leverage Ratio on a Pro Forma
Basis as of the last day of the most recent period for which financial
statements shall have been required to be delivered pursuant to
Section 5.01(a) or (b) (or if prior to the first time such
financial statements are so required to be delivered, as of the last day of the
most recent period in respect of which financial statements of the Borrower and
its Restricted Subsidiaries are available) shall not exceed a ratio that is
0.25 less than the ratio specified in Section 6.12 for such last day (it
being understood that if such last day is prior to March 31, 2008, then
the ratio specified for March 31, 2008 under Section 6.12 shall be
deemed to be the ratio specified in Section 6.12 for such last day),
Indebtedness of a Loan Party that is secured with a Lien on the Collateral that
is pari passu with the Lien on the Collateral securing the Obligations may be
incurred; provided that (a) such Indebtedness shall not have
(A) a final maturity date earlier than the Tranche B Maturity Date,
(B) a weighted average life that is shorter than that of the
then-remaining weighted average life of the Tranche B Term Loans (without
giving effect to any reductions of such weighted average life caused by
voluntary or mandatory prepayments of Tranche B Term Loans pursuant to
Section 2.11) or (C) covenants or events of default that are, when
taken as a whole, materially more restrictive to such Loan Party and its
Subsidiaries than the terms of the Loan Documents and (b) the holders of
such Indebtedness (or an agent on their behalf) shall have entered into
intercreditor agreements with the Collateral Agent that are reasonably
satisfactory to the Collateral Agent;


 


(xii)                             Indebtedness
representing deferred compensation to employees of the Borrower and the
Restricted Subsidiaries incurred in the ordinary course of business;


 


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(xiii)                          Indebtedness
in respect of promissory notes issued to physicians, consultants, employees or
directors or former employees, consultants or directors in connection with
repurchases of Equity Interests permitted by Section 6.08(a)(iii)


 


(xiv)                         Guarantees
by any Loan Party of Indebtedness of a Non-Consolidated Entity in compliance
with Section 6.04(xv);


 


(xv)                            Indebtedness
of the Borrower or any Restricted Subsidiary; provided that the aggregate
principal amount of Indebtedness permitted by this Section 6.01(a)(xv)
shall not exceed $20.0 million;


 


(xvi)                         Indebtedness
of the Borrower or any Restricted Subsidiary; provided that after giving
effect to the incurrence of such Indebtedness, the Borrower’s Fixed Charge
Coverage Ratio shall be at least 2.0:1.0 on a Pro Forma Basis as of the last
day of the most recent period in respect of which financial statements shall
have been required to be delivered pursuant to Section 5.01(a) or
(b) (or if prior to the first time such financial statements are so
required to be delivered, as of the last day of the most recent period in
respect of which financial statements of the Borrower and its Restricted
Subsidiaries are available); provided
that the maximum amount of Indebtedness that may be incurred by a Subsidiary
that is not a Subsidiary Loan Party under this Section 6.01(a)(xvi) shall
be $10.0 million outstanding at any time and such Indebtedness of a Restricted
Subsidiary may be secured to the extent permitted by Section 6.02; provided
further that no Indebtedness may be incurred pursuant to this
Section 6.01(a)(xvi) prior to the first anniversary of the Effective Date
while any Indebtedness is outstanding under the Bridge Loan Credit Agreement;
and


 


(xvii)                      Subordinated
Indebtedness of Borrower or a Subsidiary Loan Party in an aggregate outstanding
principal amount not to exceed (x) $50.0 million outstanding at any time
if after giving effect the incurrence of such Indebtedness, the Borrower’s
Leverage Ratio is greater than 5.5 to 1.0 on a Pro Forma Basis as of the last
day of the most recent period in respect of which financial statements shall
have been required to be delivered pursuant to Section 5.01(a) or
(b) (or if prior to the first time such financial statements are so
required to be delivered, as of the last day of the most recent period in
respect of which financial statements of the Borrower and its Restricted
Subsidiaries are available) and (y) $100.0 million outstanding at any time
if after giving effect the incurrence of such Indebtedness, the Borrower’s
Leverage Ratio is less than or equal to 5.5 to 1.0 on a Pro Forma Basis as of
the last day of the most recent period in respect of which financial statements
shall have been required to be delivered pursuant to
Section 5.01(a) or (b) (or if prior to the first time such
financial statements are so required to be delivered, as of the last day of the
most recent period in respect of which financial statements of the Borrower and
its Restricted Subsidiaries are available).


 


(b)                                 All
Indebtedness incurred pursuant to this Section 6.01 of any Loan Party owed
to any Subsidiary or Non-Consolidated Entity that is not a Loan Party shall be
subordinated to the Obligations on terms reasonably satisfactory to the
Administrative Agent; provided that, notwithstanding the foregoing, such
Indebtedness shall only be subordinated to the extent permitted by applicable
laws or regulations.


 


(c)                                  For
purposes of determining compliance with this Section 6.01, in the event
that an item of proposed Indebtedness meets the criteria of more than one of
the exceptions permitted above, the Borrower will be permitted to classify such
item of Indebtedness on the date of its incurrence, or later reclassify all or
a portion of such item of Indebtedness, in any manner that complies with this
covenant.


 


72

















 


SECTION 6.02.                                    Liens.  The Borrower will not, nor will it permit any
Restricted Subsidiary to, create, incur, assume or permit to exist any Lien on
any property or asset now owned or hereafter acquired by it, or assign or sell
any income or revenues (including accounts receivable) or rights in respect of
any thereof, except:


 


(i)                                     Liens
created by the Loan Documents;


 


(ii)                                  Permitted
Encumbrances;


 


(iii)                               any
Lien on any property or asset of the Borrower or any Restricted Subsidiary
existing on the Effective Date and set forth in Schedule 6.02 and any
renewals or extensions thereof; provided that (A) such Lien shall
not apply to any other property or asset of the Borrower or any Restricted
Subsidiary and (B) such Lien shall secure only those obligations which it
secures on the Effective Date and extensions, renewals and replacements thereof
that do not increase the outstanding principal amount thereof (plus accrued
interest and premium thereon);


 


(iv)                              any
Lien existing on any property or asset prior to the acquisition thereof by the
Borrower or any Restricted Subsidiary or existing on any property or asset or
Equity Interests of any Person that becomes a Restricted Subsidiary after the
date hereof prior to the time such Person becomes a Restricted Subsidiary; provided
that (A) such Lien is not created in contemplation of or in connection
with such acquisition or such Person becoming a Restricted Subsidiary, as applicable,
(B) such Lien shall not apply to any other property or asset of the
Borrower or any Restricted Subsidiary and (C) such Lien shall secure only
those obligations that it secures on the date of such acquisition or the date
such Person becomes a Restricted Subsidiary, as applicable, and extensions,
renewals and replacements thereof that do not increase the outstanding
principal amount thereof (plus accrued interest and premium thereon);


 


(v)                                 Liens
on fixed or capital assets acquired, constructed or improved by the Borrower or
any Restricted Subsidiary, provided that (A) such security
interests secure Indebtedness permitted by Sections 6.01(a)(vi), (B) such
security interests and the Indebtedness secured thereby are incurred prior to
or within one year after such acquisition or the completion of such
construction or improvement and (C) such security interests shall not
apply to any other property or assets of the Borrower or any Restricted Subsidiary
and extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof (plus accrued interest and premium
thereon);


 


(vi)                              Liens
of a collecting bank arising in the ordinary course of business under
Section 4-208 of the Uniform Commercial Code in effect in the relevant
jurisdiction covering only the items being collected upon;


 


(vii)                           Liens
arising out of sale and leaseback transactions permitted by Section 6.06;


 


(viii)                        Liens
granted by a Subsidiary that is not a Loan Party in favor of the Borrower or
another Loan Party in respect of Indebtedness owed by such Subsidiary;


 


(ix)                                licenses
or sublicenses, leases or subleases granted to others not interfering in any
material respect with the business of the Borrower or any Subsidiary;


 


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


 


(xi)                            Liens
that are contract rights of set-off (i) relating to the establishment of
depositary relations with banks not given in connection with the issuance of
Indebtedness, (ii) relating to pooled deposit or sweep accounts of the
Borrower or any Restricted Subsidiary to permit satisfaction of overdraft or
similar obligations incurred in the ordinary course of business of the Borrower
and the Restricted Subsidiaries or (iii) relating to purchase orders and
other agreements entered into with customers of the Borrower or any Restricted
Subsidiary in the ordinary course of business;


 


(xii)                         Liens
solely on any cash earned money deposits made by the Borrower or any Restricted
Subsidiary in connection with any letter of intent or purchase agreement
permitted hereunder;


 


(xiii)                      Liens in
favor of a Loan Party securing Indebtedness permitted under Sections
6.01(a)(iv);


 


(xiv)                     Liens
securing Indebtedness permitted under Section 6.01(a)(xi);


 


(xv)                        Liens
created or deemed to exist by the establishment of trusts for the purpose of
satisfying (i) Governmental Reimbursement Program Costs in the ordinary
course of business and (ii) other actions or claims pertaining to the same
or related matters or other Government Programs in the ordinary course of
business, provided that the Borrower and its Restricted Subsidiaries, in
each case, shall have established adequate reserves for such claims or actions;


 


(xvi)                     Liens of
sellers of goods to the Borrower and any of its Restricted Subsidiaries arising
under Article 2 of the Uniform Commercial Code or similar provisions of
applicable law in the ordinary course of business, covering only the goods sold
and securing only the unpaid purchase price for such goods and related expenses;


 


(xvii)                  Liens securing
Indebtedness incurred by a Restricted Subsidiary that is not a Subsidiary Loan
Party pursuant to Section 6.01(a)(xvi); and


 


(xviii)               other Liens
securing Indebtedness and other obligations in an aggregate amount not exceeding
$10,000,000 at any time.


 


SECTION 6.03.                                    Fundamental
Changes.


 


(a)                              The
Borrower will not, nor will it permit any Restricted Subsidiary to, merge into
or consolidate with any other Person, or permit any other Person to merge into
or consolidate with it, or liquidate or dissolve, except that (i) any
Person may merge into the Borrower in a transaction in which the surviving
entity is a Person organized or existing under the laws of the United States of
America, any State thereof or the District of Columbia and, if such surviving
entity is not the Borrower, such Person expressly assumes, in writing, all the
obligations of the Borrower under the Loan Documents, (ii) any Person may
merge into any Restricted Subsidiary in a transaction in which the surviving
entity is a Restricted Subsidiary and, if any party to such merger is a Subsidiary
Loan Party or a Qualified Restricted Subsidiary, is or becomes a Subsidiary
Loan Party and/or Qualified Restricted Subsidiary, as applicable, concurrently
with such merger, (iii) any Restricted Subsidiary may liquidate or
dissolve if the Borrower 


 


74

















 


determines in
good faith that such liquidation or dissolution is in the best interests of the
Borrower and is not materially disadvantageous to the Lenders, (iv) any Restricted
Subsidiary that is not a wholly owned Subsidiary may merge with any Person
other than a Loan Party, provided that such Restricted Subsidiary repays
any Indebtedness owing to any Loan Party prior to or in connection with such
merger, (v) any asset sale permitted by Section 6.05(g) may be
effected through the merger of a subsidiary of the Borrower with a third party
and (vi) any Qualified Restricted Subsidiary may merge with any Person
other than a Loan Party in connection with a Permitted Acquisition, provided
that any such merger referred to in clauses (i), (ii) or
(iv) above involving a Person that is not a Subsidiary immediately prior
to such merger shall not be permitted unless also permitted by
Section 6.04.


 


(b)                                 The
Borrower will not, will not permit any Restricted Subsidiary to, engage to any
material extent in any business other than a Permitted Business.


 


SECTION 6.04.                                    Investments,
Loans, Advances, Guarantees and Acquisitions.  The Borrower will not, nor will it permit any
Restricted Subsidiary to, purchase or acquire (including pursuant to any merger
with any Person that was not a wholly owned Subsidiary prior to such merger)
any Equity Interests in or evidences of indebtedness or other securities
(including any option, warrant or other right to acquire any of the foregoing)
of, make any loans or advances to, Guarantee any obligations of, or make any
investment or any other interest in, any other Person, or purchase or otherwise
acquire (in one transaction or a series of transactions) any Person or assets
or division constituting a business unit (collectively, “Investments”),
except:


 


(i)                  Permitted
Acquisitions; provided that the aggregate amount of consideration paid
(other than consideration consisting of Equity Interests in Holdings) for all
Permitted Acquisitions of Non-Consolidated Entities and Restricted Subsidiaries
that are not Qualified Restricted Subsidiaries together with the aggregate
amount of Investments made pursuant to Section 5.15(a)(iv) and
Section 6.04(xv) shall not exceed $20,000,000 (net of cash returns on any
such Investments to the Borrower or a Qualified Restricted Subsidiary) during
any period of twelve consecutive months (with any amount not used during such
period permitted to be carried forward to any subsequent period);


 


(ii)               Permitted
Investments;


 


(iii)            Investments set forth
on Schedule 6.04 and extensions, modifications or renewals of such
Investments (excluding any such extension, modification or renewal involving
additional advances, contributions or other investments of cash or property or
other increases thereof unless it is a result of the accrual or accretion of
interest or original issue discount or payment-in-kind pursuant to the terms,
as of the Effective Date, of the original Investment so extended, modified or renewed);


 


(iv)           Investments by the
Borrower and the Restricted Subsidiaries in (i) Loan Parties and
(ii) Equity Interests in Qualified Restricted Subsidiaries or any Person
that is a Non-Consolidated Entity or a Restricted Subsidiary that is not a
Qualified Restricted Subsidiary but will in each case be a Qualified Restricted
Subsidiary upon such Investment;


 


(v)              loans or advances
made by the Borrower to any Qualified Restricted Subsidiary and made by any
Restricted Subsidiary to the Borrower or any Qualified Restricted Subsidiary; provided
that any such loans and advances made by a Loan Party shall be evidenced by
Pledged Notes pledged in accordance with the Collateral and Guarantee Requirement;


 


75

















 


(vi)                              Guarantees
constituting Indebtedness permitted by Section 6.01; provided that
if at the time of and after giving effect to any Guarantee (and without
limiting the foregoing) the aggregate principal amount of Indebtedness of Restricted
Subsidiaries that are not Qualified Restricted Subsidiaries that is Guaranteed
by the Borrower or any Qualified Restricted Subsidiary together with the
aggregate amount of Investments made pursuant to Section 6.04(xvi))
exceeds $20,000,000 (net of cash returns on any such Investments to the
Borrower or a Qualified Restricted Subsidiary) during any period of twelve
consecutive months (with any amount not used during such period permitted to be
carried forward to any subsequent period) (in each case determined without
regard to any write-downs or write-offs), such Guarantee shall not be
permitted; provided  further that substantially all of the
business activities of any such Restricted Subsidiary that is not a Qualified
Restricted Subsidiary whose Indebtedness is so Guaranteed consists of owning or
operating a Center;


 


(vii)                           receivables
or other trade payables owing to the Borrower or any Restricted Subsidiary if
created or acquired in the ordinary course of business;


 


(viii)                        Investments
consisting of Equity Interests, obligations, securities or other property
received (x) in settlement of delinquent accounts of and disputes with
customers and suppliers in the ordinary course of business and owing to the
Borrower or any Restricted Subsidiary, (y) in satisfaction of judgments or
(z) in settlement of or as a result of foreclosure with respect to any secured
Investment;


 


(ix)                                Investments
by the Borrower or any Restricted Subsidiary in payroll, travel and similar
advances to cover matters that are expected at the time of such advances
ultimately to be treated as expenses for accounting purposes and that are made
in the ordinary course of business;


 


(x)                                   loans
or advances by the Borrower or any Restricted Subsidiary to employees
(a) made for reasonable and customary business-related travel,
entertainment, relocation and analogous ordinary business purposes and
(b) otherwise not exceeding $2,500,000 in the aggregate at any time
outstanding (determined without regard to any write-downs or write-offs of such
loans or advances);


 


(xi)                                Investments
in the form of Swap Agreements permitted by Section 6.07;


 


(xii)                             Investments
of any Person existing at the time such Person becomes a Restricted Subsidiary
of the Borrower or consolidates or merges with the Borrower or any of the
Restricted Subsidiaries (including in connection with a Permitted Acquisition)
so long as such investments were not made in contemplation of such Person
becoming a Restricted Subsidiary or of such consolidation or merger;


 


(xiii)                          Investments
received in connection with the dispositions of assets permitted by
Section 6.05;


 


(xiv)                         Investments
constituting (x) deposits described in clauses (c) and (d) of
the definition of the term “Permitted Encumbrances” or (y) negotiable
instruments held for collection;


 


(xv)                            Investments in Non-Consolidated
Entities, Restricted Subsidiaries that are not (after giving effect to such
Investment) Qualified Restricted Subsidiaries and Unrestricted Subsidiaries by
the Borrower or any Qualified Restricted Subsidiary in an aggregate amount
not to exceed at the time of such Investment on a pro forma basis, together
with the consideration paid 


 


76

















 


(other than consideration
consisting of the Equity Interests in Holdings) for Permitted Acquisitions in
Non-Consolidated Entities and Restricted Subsidiaries that are not Qualified
Restricted Subsidiaries and the amount of Investments permitted under
Section 5.15(a)(iv) and Section 6.04(i), $20,000,000 (net
of cash returns on any such Investments to the Borrower or a Qualified
Restricted Subsidiary) during
any period of twelve consecutive months (with any amount not used during this
period permitted to be carried forward to any subsequent period); provided
that substantially all of the business activities of any such Non-Consolidated
Entity, Restricted Subsidiary that is not a Qualified Restricted Subsidiary, or
Unrestricted Subsidiary consists of owning or operating a Center;


 


(xvi)                         Investments
consisting of loans or advances to, or Guarantees of Indebtedness of,
Non-Consolidated Entities, Restricted Subsidiaries that are not (after giving
effect to such Investments) Qualified Restricted Subsidiaries and Unrestricted
Subsidiaries by the Borrower or any Qualified Restricted Subsidiary in an aggregate
amount not to exceed at the time of such investment on a pro forma basis, together
with the aggregate amount of Investments made pursuant to the proviso to
Section 6.04(vi), $20,000,000 (net of cash returns on any such
investments to the Borrower or a Qualified Restricted Subsidiary) during any
period of twelve consecutive months (with any amount not used during such
period permitted to be carried forward to any subsequent period); provided
that substantially all of the business activities of any Non-Consolidated
Entity, Restricted Subsidiary that is not a Qualified Restricted Subsidiary, or
Unrestricted Subsidiary consists of owning or operating a Center;


 


(xvii)                      Guarantees
by the Borrower or any Restricted Subsidiary of real estate and leases (other
than Capital Lease Obligations) or of other obligations that do not constitute
Indebtedness, in each case entered into in the ordinary course of business;


 


(xviii)                   advances to
Non-Consolidated Entities in the ordinary course of business, provided
that (i) such advances when made are expected to be repaid within 270 days
of such advance and (ii) the aggregate amount of all advances made
pursuant to this Section 6.04(xvii) does not exceed $20,000,000 at any
time outstanding;


 


(xix)                           Investments
consisting of amounts potentially due from a seller of property in a Permitted
Acquisition that (i) relate to customary post-closing adjustments with
respect to accounts receivable, accounts payable and similar items typically
subject to post-closing adjustments in similar transactions and (ii) are
outstanding for a period of one hundred twenty (120) days or less following the
closing of such Permitted Acquisition;


 


(xx)                              so
long as (x) no Event of Default shall have occurred and be continuing or
would result therefrom and (y) the Leverage Ratio is less than 5.50 to
1.00, Investments at any time not to exceed the difference between (x) 50%
of Cumulative Retained Excess Cash Flow (or, if the Leverage Ratio is less than
4.50 to 1.00, 100% of Cumulative Retained Excess Cash Flow) at such time (the
Leverage Ratio to be measured at the time of, and after giving effect to, any
such Investment) minus (y) all Investments
made prior to such time pursuant to this Section 6.04(xx) (net of cash
returns on any such Investments to, or reduction in the amount of Investments
constituting Guarantees made by, the Borrower or any Qualified Restricted
Subsidiary) and all Restricted Payments made at or prior to such time pursuant
to Section 6.08(a)(viii);


 


(xxi)                           Investments
at any time in an aggregate amount not to exceed the difference between
(x) the amount of Net Proceeds received by the Borrower from the issuance
of any of its Qualified Equity Interests (or capital contributions to the
Borrower) and (y) all Investments made 


 


77

















 


prior to such time pursuant to this
Section 6.04(xxi) (net of cash returns on any such Investments to, or
reduction in the amount of Investments constituting Guarantees made by, the
Borrower or any Qualified Restricted Subsidiary) and the aggregate amount of
all Restricted Payments made pursuant to Section 6.08(xiv); and


 


(xxii)                        Investments
not otherwise permitted by the foregoing clauses in an amount not to exceed
$10,000,000 in the aggregate at any time outstanding;


 


provided, however, that if any Investment
pursuant to Section 6.04(i), 6.04(xi), 6.04(xv) or 6.04(xvi) is made in
any Person that is not a Qualified Restricted Subsidiary of the Borrower at the
date of the making of such Investment and such Person becomes a Qualified
Restricted Subsidiary of the Borrower after such date, such Investment shall
thereafter be deemed to have been made pursuant to clause (i) (but not
subject to the proviso thereof), (iv) or (v) above, as appropriate,
and shall cease to have been made pursuant to Section 6.04(xi), 6.04(xv),
6.04(xvi) or the proviso to Section 6.04(i), as applicable, for as long as
such Person continues to be a Qualified Restricted Subsidiary (it being
understood that if such Person thereafter ceases to be a Qualified Restricted
Subsidiary of the Borrower, such Investment will again be deemed to have been
made pursuant to Section 6.04(xi), 6.04(xv), 6.04(xvi) or the proviso to
Section 6.04(i), as applicable; provided, further, that
substantially all of the business activities of any such Person consists of a
Permitted Business.


 


SECTION 6.05.                                    Asset Sales.  The Borrower will not, nor will it permit any
Restricted Subsidiary to, sell, transfer, lease or otherwise dispose of any
asset, including any Equity Interest owned by it, nor will the Borrower permit
any Restricted Subsidiary to issue any additional Equity Interest in such
Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary
in compliance with Section 6.04), except:


 


(a)                                  sales, transfers and
dispositions of (i) inventory in the ordinary course of business,
(ii) used, obsolete, worn out, no longer used or useful or surplus
equipment or property and (iii) the sale or other disposition of cash and
Permitted Investments;


 


(b)                                 sales,
transfers and dispositions to a Loan Party (other than Holdings) or any
Subsidiary, provided that any such sales, transfers or dispositions from
the Borrower or a Restricted Subsidiary to an Unrestricted Subsidiary or from
the Borrower or a Qualified Restricted Subsidiary to a Restricted Subsidiary
that is not a Qualified Restricted Subsidiary are permitted under
Section 6.04;


 


(c)                                  sales,
transfers and dispositions of accounts receivable in connection with the
compromise, settlement or collection thereof consistent with past practice;


 


(d)                                 sales,
transfers and dispositions of property to the extent such property constitutes
an investment permitted by Sections 6.04(ii), (viii) or (xii);


 


(e)                                  sale
and leaseback transactions permitted by Section 6.06;


 


(f)                                    dispositions
resulting from any casualty or other insured damage to, or any taking under
power of eminent domain or by condemnation or similar proceeding of, any
property or asset of the Borrower or any Restricted Subsidiary;


 


78

















 


(g)                                 sales,
transfers and other dispositions of assets that are not permitted by any other
paragraph of this Section 6.05, provided that the aggregate Fair
Market Value of all assets sold, transferred or otherwise disposed of in
reliance upon this clause (g) (excluding any single transaction or series
of related transactions that involves assets having a Fair Market Value of less
than $250,000) shall not exceed 5% of Total Assets during any fiscal year of
the Borrower (measured as of the start of such fiscal year);


 


(h)                                 exchanges
of property for similar replacement property for fair value;


 


(i)                                     Investments
in compliance with Section 6.04 and Restricted Payments in compliance with
Section 6.08;


 


(j)                                     licenses,
sublicenses, leases or subleases granted to others not interfering in any
material respect with the business of the Borrower and its Subsidiaries;


 


(k)                                  the
sale of Equity Interests in (i) any Subsidiary or Non-Consolidated Entity
to a Strategic Investor and (ii) an Unrestricted Subsidiary;


 


(l)                                     sales,
transfers and dispositions described on Schedule 6.05; and


 


(m)                               any
disposition of assets by any Restricted Subsidiary that is not wholly owned by
the Borrower or a Subsidiary Loan Party all or substantially all of whose
property consists of a Center and assets related to the operations of such
Center; provided that the Net Proceeds of such disposition are promptly
(and in any event within five Business Days) applied (x) first to satisfy
the Indebtedness evidenced by any Pledged Note(s) issued by such
Restricted Subsidiary to any Loan Party (other than Holdings) and
(y) second to satisfy the requirements of Section 2.11(c) with respect
to such disposition;


 


provided
that all sales, transfers, leases and other dispositions permitted hereby
(other than those permitted by paragraphs (a), (b), (c), (f), (i) and
(j) above) shall be made for Fair Market Value and (other than those
permitted by paragraphs (a), (b), (c), (f), (h), (i) and (j) above)
for at least 75% cash consideration (with each of the following being deemed to
be cash for such purpose: (i) Permitted Investments, (ii) any
liabilities (as shown on the Borrower’s most recent consolidated balance sheet
required to be delivered pursuant to Section 5.01(a) or (b) (or
if prior to the first time such a consolidated balance sheet is so required to
be delivered, the most recent date for which a consolidated balance sheet of
the Borrower and its Restricted Subsidiaries is available)) of the Borrower or
any Restricted Subsidiary (other than contingent liabilities and liabilities
that are by their terms subordinated to any of the Obligations) that are
assumed by the transferee of any such assets pursuant to a customary novation
agreement that releases the Borrower or the applicable Restricted Subsidiary
from further liability, (iii) any securities, notes or other obligations
received by the Borrower or any such Restricted Subsidiary from such transferee
that are converted by the Borrower or such Restricted Subsidiary into cash
within 180 days of receipt, to the extent of the cash received in that
conversion, (iv) any Designated Noncash Consideration received by the
Borrower or a Restricted Subsidiary in connection with the sale or contribution
of assets by the Borrower or a Restricted Subsidiary to a joint venture with a
Strategic Investor, provided, further, that in the case of this
clause (iv), (x) any such Designated Noncash Consideration that is
converted into Permitted Investments shall be treated as Net Proceeds in the
manner set forth below and (y) in the event such Designated Noncash Consideration
is an Investment in a Non-Consolidated Entity, Restricted Subsidiary that is
not a Qualified Restricted Subsidiary or an Unrestricted Subsidiary, such
Designated Noncash Consideration shall be deemed to have been acquired and
consequently reduce amounts available under Sections 5.15(a), 6.04(vi) and
6.04(xv) and (v) other Designated Noncash Consideration the Fair Market
Value of which, 


 


79

















 


when taken
together with all other Designated Noncash Consideration received pursuant to
this clause (v) (and not subsequently converted into Permitted Investments
that are treated as Net Proceeds), does not exceed 5% of Total Assets at the
time of receipt since the Effective Date, with the Fair Market Value of each
item of Designated Noncash Consideration being measured at the time received
and without giving effect to subsequent changes in value).


 


SECTION 6.06.                                    Sale and
Leaseback Transactions.  The Borrower
will not, nor will it permit any Restricted Subsidiary to, enter into any arrangement,
directly or indirectly, whereby it shall sell or transfer any property, real or
personal, used or useful in its business, whether now owned or hereafter
acquired, and thereafter rent or lease such property or other property that it
intends to use for substantially the same purpose or purposes as the property
sold or transferred, except for (x) any such sale of any fixed or capital
assets of the Borrower or any Restricted Subsidiary which sale is made for cash
consideration in an amount not less than the fair value of such fixed or
capital asset and is consummated within 180 days after the Borrower or such
Restricted Subsidiary acquires or completes the construction of such fixed or
capital asset or (y) sale and leaseback transactions with respect to
properties acquired after the Effective Date, where the Fair Market Value of
such properties in the aggregate does not to exceed $20,000,000.


 


SECTION 6.07.                                    Swap Agreements.  The Borrower will not, nor will it permit any
Restricted Subsidiary to, enter into any Swap Agreement, except (a) Swap
Agreements entered into to hedge or mitigate risks to which the Borrower or any
Restricted Subsidiary has actual exposure (other than those in respect of Equity
Interests of the Borrower or any of the Restricted Subsidiaries) and
(b) Swap Agreements entered into in order to effectively cap, collar or
exchange interest rates (from fixed to floating rates, from one floating rate
to another floating rate or otherwise) with respect to any interest-bearing liability
or investment of the Borrower or any Restricted Subsidiary.


 


SECTION 6.08.                                    Restricted
Payments.


 


The Borrower
will not, nor will they permit any Restricted Subsidiary to, declare or make,
or agree to pay or make, directly or indirectly, any Restricted Payment, or
incur any obligation (contingent or otherwise) to do so, except:


 


(i)                                     the
Borrower may declare and pay dividends with respect to its common stock payable
solely in additional shares of its common stock, and, with respect to its
preferred stock, payable solely in additional shares of such preferred stock or
in shares of its common stock;


 


(ii)                                  Restricted
Subsidiaries may declare and pay dividends ratably with respect to their
capital stock, membership or partnership interests or other similar Equity Interests;


 


(iii)                               Borrower
may declare and pay dividends or make other distributions to Holdings, the
proceeds of which are used by Holdings or a Parent to (i) purchase or
redeem Equity Interests of Holdings or a Parent acquired by former or current
employees, consultants or directors of Holdings, the Borrower or any Restricted
Subsidiary or (ii) pay principal or interest on promissory notes that were
issued in lieu of cash payments for the repurchase, retirement or other acquisition
or retirement for value of such Equity Interests, provided that the
aggregate amount of such dividends or other distributions under this
Section 6.08(a)(iii) shall not exceed in any fiscal year $3,000,000
(it being understood, however, that unused amounts permitted to be paid
pursuant to this proviso are available to be carried over to subsequent fiscal
years); provided that
any cancellation of Indebtedness owing to the Borrower in connection with and
as consideration for a repurchase of Equity Interests of Holdings (or a Parent)
shall not be deemed to constitute a Restricted 


 


80

















 


Payment for purposes of this
Section 6.08(a)(iii), so long as such Indebtedness was incurred solely for
the purpose of purchasing such Equity Interests; provided  further  that such amount in any calendar year may be increased by
an amount not to exceed (1) the cash proceeds of key man life insurance
policies received by Holdings (to the extent such proceeds are contributed to
the Borrower and not used to fund any Restricted Payments other than those made
pursuant to this Section 6.08(a)(iii)) or any Borrower or any Restricted
Subsidiary after the Effective Date (provided
that the Borrower may elect to apply all or any portion of the aggregate
increase contemplated by clause (1) above in any calendar year) less
(2) the amount of any Restricted Payments previously made pursuant to
clause (1) of this Section 6.08(a)(iii);


 


(iv)                              the
Borrower may make Restricted Payments to Holdings to be used by Holdings solely
to pay (or to make Restricted Payments to allow a Parent to pay) its franchise
taxes and other fees required to maintain its corporate existence and to pay
for general corporate and overhead expenses (including salaries and other
compensation of employees) incurred by Holdings or a Parent, provided
that such Restricted Payments shall not exceed $3,000,000 in any calendar year
or to be used by Holdings to pay fees and expenses (other than to Affiliates)
relating to any unsuccessful debt or equity offering;


 


(v)                                 the
Borrower may make Restricted Payments to Holdings in an amount necessary to
enable Holdings to pay (or make Restricted Payments to allow a Parent to pay)
the Taxes directly attributable to (or arising as a result of) the operations
of a Parent, Holdings, the Borrower and the Restricted Subsidiaries, provided
that (A) the amount of such Restricted Payments shall not exceed the
lesser of (x) the Tax liabilities that the Borrower and the Restricted
Subsidiaries would be required to pay in respect of Federal, state, local and
foreign Taxes were the Borrower and the Restricted Subsidiaries to pay such
Taxes as stand-alone taxpayers less any Tax payable directly by the Borrower or
any Restricted Subsidiary or (y) the actual liabilities of the Parent
group on a consolidated or combined basis and (B) all Restricted Payments
made to Holdings or a Parent pursuant to this clause (v) are used by
Holdings or a Parent for the purposes specified herein within 20 days of the
receipt thereof;


 


(vi)                              the
Borrower may make Restricted Payments to Holdings to pay management, consulting
and advisory fees to the Sponsor or any Sponsor Affiliate and to reimburse any
related expenses to the extent permitted by Section 6.09(a);


 


(vii)                           the
Borrower and the Restricted Subsidiaries may make additional Restricted
Payments (and Holdings may make Restricted Payments with such amounts received
from the Borrower) in an aggregate amount throughout the term of this Agreement
not exceeding $5,000,000;


 


(viii)                        so long as (x) no Event of
Default shall have occurred and be continuing or would result therefrom and
(y) the Leverage Ratio is less than 4.50 to 1.00, Restricted Payments at
any time not to exceed the difference between 100% of Cumulative Retained
Excess Cash Flow) at such time (the Leverage Ratio to be measured at the time
of, and after giving effect to, any such Restricted Payment) minus (y) all Restricted Payments made prior to such
time pursuant to this Section 6.08(a)(viii) and all Investments made
at or prior such time pursuant to Section 6.04(xx) (net of cash
returns on any such Investments to, or reduction in the amount of Investments
constituting Guarantees made by, the Borrower or any Qualified Restricted
Subsidiary);


 


81

















 


(ix)                                the
Merger Consideration paid on or promptly following the Effective Date,
Transaction Costs and payments to former stockholders of the Borrower in
connection with the exercise of appraisal rights;


 


(x)                                   Investments
in non-wholly owned Subsidiaries or Non-Consolidated Entities permitted by
Section 6.04;


 


(xi)                                the
purchase, redemption or other acquisition or retirement for value of Equity
Interests of a Qualified Restricted Subsidiary owned by a Strategic Investor if
such purchase, redemption or other acquisition or retirement for value is made
for consideration not in excess of the Fair Market Value of such Equity Interests;


 


(xii)                             each
Restricted Subsidiary may make Restricted Payments to any Loan Party (other
than Holdings);


 


(xiii)                          the
Borrower may issue its common stock and options, warrants or other equity
awards with respect to its common stock under any stock option, stock incentive
or similar plan approved by the shareholders of the Borrower (including deferred
purchases under the deferred stock purchase program) and repurchase Equity
Interests to the extent (x) such repurchase is deemed to occur upon the
exercise of such options, warrants or other equity awards and (y) such
Equity Interests represent a portion of the purchase price of such options,
warrants or other equity awards;


 


(xiv)                         the
Borrower may make Restricted Payments to Holdings in an aggregate amount not to
exceed the cash proceeds received by Holdings from a substantially concurrent
issue of new shares of Holdings’ Qualified Equity Interests and contributed to
the Borrower less the amount of Investments made pursuant to
Section 6.04(xxi); and


 


(xv)                            the
Borrower may declare and make payments under the outstanding warrants of the
Borrower described on Schedule 6.08 and repurchase any of the foregoing.


 


SECTION 6.09.                                    Transactions
with Affiliates.  The Borrower will
not, nor will it permit any Restricted Subsidiary to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with,
any of its Affiliates involving aggregate consideration in excess of $2.5
million, except:


 


(a)                                  transactions
that are at prices and on terms and conditions substantially not less favorable
to the Borrower or such Restricted Subsidiary as could be obtained on an
arm’s-length basis from unrelated third parties,


 


(b)                                 transactions
between or among the Borrower and Qualified Restricted Subsidiaries,


 


(c)                                  any
investment permitted under Section 6.04 (iii), 6.04(iv), 6.04(v),
6.04(vi), 6.04(vii), 6.04(xiii), 6.04(xv), 6.04(xvi) or 6.04(xvii),


 


(d)                                 any
Indebtedness permitted under Section 6.01,


 


(e)                                  any
Restricted Payment permitted under Section 6.08,


 


82
















 


(f)            any sale, transfer or disposition permitted under Section 6.05,


 


(g)           loans or advances to employees pursuant to Section 6.04,


 


(h)           any mergers, consolidations, liquidations or dissolutions
permitted under Section 6.03,


 


(i)            any lease or sublease entered into between the Borrower
or any Restricted Subsidiary, as lessee or sublessee, and any of the Affiliates
(as of the Effective Date) of the Borrower or entity controlled by such
Affiliates, as lessor or sublessor, which is approved in good faith by a majority
of the disinterested members of the Board of Directors of the Borrower,


 


(j)            any management, transaction, monitoring or termination
fees and related indemnities and reimbursement of expenses pursuant to the
Sponsor Management Agreement as in effect on the Effective Date or as amended
in a manner not materially adverse to the Lenders;


 


(k)           the payment of reasonable fees to directors of the
Borrower or any Restricted Subsidiary who are not employees of the Borrower or
any Restricted Subsidiary, and compensation and employee benefit arrangements
paid to, and indemnities provided for the benefit of, directors, officers or
employees of the Borrower or any Restricted Subsidiary in the ordinary course
of business,


 


(l)            any issuances of securities or other payments, awards or
grants in cash, securities or otherwise pursuant to, or the funding of,
employment agreements, employee benefit plans, stock options and stock
ownership plans approved by the Borrower’s Board of Directors,


 


(m)          transactions pursuant to agreements set forth on Schedule 6.09
and any amendments thereto to the extent such amendments are not materially
less favorable to the Borrower or such Subsidiary Loan Party than those provided
for in the original agreements,


 


(n)           employment and severance arrangements entered into in the
ordinary course of business and approved by the Borrower’s Board of Directors
between a Parent, Holdings, the Borrower or any Restricted Subsidiary and any
employee thereof, and


 


(o)           the Transactions, including all payments made or to be
made in connection with the Transactions, including the payment of the
Transaction Costs.


 


(p)           transactions with a Person (other than an Unrestricted
Subsidiary of the Borrower) that is an Affiliate of the Borrower solely because
the Borrower owns, directly or through a Restricted Subsidiary, an Equity
Interest in, or controls, such Person;


 


(q)           any issuance of Equity Interests (other than Disqualified
Equity Interests) of the Borrower to Affiliates of the Borrower;


 


(r)            payments by the Borrower or any of its Restricted
Subsidiaries to the Sponsor and/or any of its Affiliates for any transaction
for which financial advisory, financing, underwriting or placement services or
in respect of other investment banking activities are provided to the Borrower
or one of its Subsidiaries, including, without limitation, in connection with
acquisitions or divestitures, which payments are approved by the majority of
the disinterested members of the Board of Directors of the Borrower in good
faith;


 


83

















 


(s)           transactions with Restricted Subsidiaries that are not
Qualified Restricted Subsidiaries, Non-Consolidated Entities, Unrestricted
Subsidiaries, customers, suppliers, contractors, joint venture partners (including
without limitation physicians) or purchasers or sellers of goods or services,
in each case which are in the ordinary course of business (including, without
limitation, pursuant to joint venture agreements) and otherwise in compliance
with the terms of this Agreement;


 


(t)            the existence of, or the performance by the Borrower or
any Restricted Subsidiary of their obligations, if any, or obligations of
Holdings under the terms of, any subscription, registration rights or
stockholders agreement, partnership agreement, limited liability company
agreement or similar agreement to which Holdings, the Borrower or any
Restricted Subsidiary is a party as of the Effective Date and any similar
agreements which the Borrower, any Restricted Subsidiary, Holdings or any other
direct or indirect parent company of the Borrower may enter into thereafter; provided, however, that the entering into
by the Borrower or any Restricted Subsidiary or the performance by the Borrower
or any Restricted Subsidiary of obligations under any future amendment to any
such existing agreement or under any similar agreement entered into after the
Effective Date will only be permitted by this clause to the extent that the
terms of any such amendment or new agreement, taken as a whole, are not materially
disadvantageous to the Lenders, as determined in good faith by the Board of
Directors, chief executive officer or chief financial officer of the Borrower;


 


(u)           [Reserved];


 


(v)           the entering into of any tax sharing agreement or arrangement;


 


(w)          the issuance of Equity Interests (other than Disqualified
Equity Interests) in the Issuer or any Restricted Subsidiary for compensation
purposes;


 


(x)            intellectual property licenses in the ordinary course of
business;


 


(y)           transactions in which the Borrower or any Restricted
Subsidiary delivers to the Administrative Agent a letter from an accounting,
appraisal or investment banking firm of national standing stating that such
transaction is fair to the Borrower or such Restricted Subsidiary from a
financial point of view and which are approved by a majority of the
disinterested members of the Board of Directors of the Borrower in good faith.


 


SECTION 6.10.            Restrictive Agreements.


 


(a)           Subject to clauses (b) through (e) below, the
Borrower will not, nor will it permit any Restricted Subsidiary to, directly or
indirectly, enter into, incur or permit to exist any agreement or other
consensual arrangement that prohibits, restricts or imposes any condition upon (i) the
ability of the Borrower or any Restricted Subsidiary to create, incur or permit
to exist any Lien upon any of its property or assets securing the Obligations
or (ii) the ability of any Subsidiary to pay dividends or other distributions
with respect to any shares of its capital stock or to make or repay loans or
advances to the Borrower or any Restricted Subsidiary or to Guarantee the
Obligations.


 


(b)           Section 6.10(a) shall not apply to restrictions
and conditions (i) imposed by law or any regulatory authority or by any
Loan Document or any Bridge Loan Document or documents governing the Take Out
Notes or any document governing Indebtedness of a Foreign Subsidiary permitted
to be incurred under this Agreement (provided that such restrictions
shall apply only to such Foreign Subsidiary), 


 


84

















 


(ii) existing on the date hereof
identified on Schedule 6.10 (but shall apply to any extension, renewal,
amendment or modification, but only to the extent expanding the scope of, any
such restriction or condition), (iii) contained in agreements relating to
the sale of a Restricted Subsidiary or any other asset pending such sale, provided
such restrictions and conditions apply only to the Restricted Subsidiary or
asset that is to be sold and such sale is permitted hereunder, (iv) imposed
by any customary provisions restricting assignment of any agreement entered
into the ordinary course of business, (v) imposed by any instrument or
agreement governing Indebtedness of a Restricted Subsidiary acquired by the
Borrower or any of its Restricted Subsidiaries as in effect at the time of such
acquisition (except to the extent such Indebtedness was incurred in connection
with or in contemplation of such acquisition), which encumbrance or restriction
is not applicable to any Person, or the properties or assets of any such
Person, other than the Person or any of its Subsidiaries, so acquired (provided
that such Indebtedness was permitted by Section 6.01 to be incurred), (vi) imposed
by any instrument or agreement governing Indebtedness (x) of any Foreign
Subsidiary and (y) of the Borrower or any Restricted Subsidiary that is
incurred or issued subsequent to the Effective Date and is permitted pursuant
to Section 6.01 (provided that the restrictions in such Indebtedness
are not materially more restrictive in the aggregate than the restrictions
contained in this Agreement or the Bridge Loan Documents or the Borrower’s
Board of Directors determines in good faith that restrictions are not reasonably
likely to have a materially adverse effect on the Borrower’s and/or the
Subsidiary Loan Parties’ ability to make principal and interest payments on the
Loans), (vii) consisting of Permitted Payment Restrictions, (viii) restrictions
in the Sponsor Management Agreement that require the payment of management fees
to the Borrower or one of its Restricted Subsidiaries prior to payment of
dividends or distributions, (ix) customary provisions in joint venture and
other similar agreements, including agreements related to the ownership and
operation of surgical facilities, relating solely to such joint venture or
facilities of the Persons who own Equity Interests therein and (x) any
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings of the Indebtedness, preferred stock,
Liens, agreements, contracts, licenses, leases, subleases, instruments or obligations
referred to in any of the foregoing clauses; provided,
however, that such amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings are
not materially more restrictive, taken as a whole (as determined by the
Borrower in good faith), than those restrictions contained in the Indebtedness,
preferred stock, Liens, agreements, contracts, licenses, leases, subleases,
instruments or obligations referred to in the foregoing clauses above, as
applicable prior to such amendment, modification, restatement, renewal,
increase, supplement, refunding, replacement or refinancing.


 


(c)           Section 6.10(a)(i) shall not apply to (i) restrictions
or conditions imposed by customary provisions in leases, subleases, licenses
and sublicenses restricting the assignment thereof or (ii) any
restrictions imposed by agreements or instruments governing Indebtedness or
other obligations permitted to be secured pursuant to Section 6.02 and
limited to the assets subject to thereto.


 


(d)           Section 6.10(a)(ii) shall not apply to customary
provisions in joint venture agreements relating to purchase options, rights of
first refusal or call or similar rights of a third party that owns Equity
Interests in such joint venture.


 


(e)           Section 6.10(a) shall not apply to reasonable
and customary restrictions on distributions regarding timing, reserves,
available cash and the like that are contained in the organization documents of
joint ventures in effect on the date hereof and those hereafter entered into in
the ordinary course of business of the Borrower and its Subsidiaries.


 


For the purposes of determining compliance
with this covenant, (i) the priority of any preferred stock in receiving
dividends or liquidating distributions prior to dividends or liquidating distributions
being paid on common stock shall not be deemed a restriction on the ability to
make distributions 


 


85

















 


on
Equity Interests and (ii) a subordination of loans or advances made to the
Borrower or a Restricted Subsidiary of the Borrower to other Indebtedness
incurred by the Borrower or any such Restricted Subsidiary shall not be deemed
a restriction on the ability to make loans or advances.


 


SECTION 6.11.            Amendment of Material Documents.  The Borrower will not, nor will it permit any
Restricted Subsidiary to, amend, modify or waive any of its rights under any
documentation governing any Subordinated Indebtedness.


 


SECTION 6.12.            Senior Secured Leverage Ratio.  The Borrower shall not permit the Senior
Secured Leverage Ratio as of the last day of any fiscal quarter set forth below
to be greater than the ratio set forth below opposite such quarter:


 


	
  Quarter Ended

  	
   

  	
  Maximum Ratio

  
	
  March 31,
  2008

  	
   

  	
  4.25:1.00

  
	
  June 30,
  2008

  	
   

  	
  4.25:1.00

  
	
  September 30,
  2008

  	
   

  	
  4.25:1.00

  
	
  December 31,
  2008

  	
   

  	
  4.00:1.00

  
	
  March 31,
  2009

  	
   

  	
  4.00:1.00

  
	
  June 30,
  2009

  	
   

  	
  4.00:1.00

  
	
  September 30,
  2009

  	
   

  	
  4.00:1.00

  
	
  December 31,
  2009

  	
   

  	
  3.50:1.00

  
	
  March 31,
  2010

  	
   

  	
  3.50:1.00

  
	
  June 30,
  2010

  	
   

  	
  3.50:1.00

  
	
  September 30,
  2010

  	
   

  	
  3.50:1.00

  
	
  December 31,
  2010

  	
   

  	
  3.00:1.00

  
	
  March 31,
  2011

  	
   

  	
  3.00:1.00

  
	
  June 30,
  2011

  	
   

  	
  3.00:1.00

  
	
  September 30,
  2011

  	
   

  	
  3.00:1.00

  
	
  December 31,
  2011

  	
   

  	
  2.75:1.00

  
	
  March 31,
  2012

  	
   

  	
  2.75:1.00

  
	
  June 30,
  2012

  	
   

  	
  2.75:1.00

  
	
  September 30,
  2012

  	
   

  	
  2.75:1.00

  
	
  December 31,
  2012 and thereafter

  	
   

  	
  2.50:1.00

  



 


SECTION 6.13.            Fiscal Year.  None of the Borrower or any Restricted
Subsidiary will change its fiscal year-end to a date other than December 31
or its fiscal quarter-end dates to dates other than the last day of March,
June, September and December.


 


ARTICLE
VII


 


Events
of Default


 


SECTION 7.01.            Events of Default.  If any of the following events (any such
event, an “Event of Default”) shall occur:


 


(a)           the Borrower shall fail to pay any principal of any Loan
or any reimbursement obligation in respect of any LC Disbursement when and as
the same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or otherwise;


 


86

















 


(b)           (i) the Borrower shall fail to pay any interest on
any Loan or fees under Section 2.12 when and as the same shall become due
and payable under this Agreement and such failure shall continue unremedied for
a period of three Business Days or (ii) the Borrower shall fail to pay any
other amount (other than an amount referred to in Section 7.01(a) and
7.01(b)(i)) payable under this Agreement or any other Loan Document, when and
as the same shall become due and payable, and such failure shall continue
unremedied for a period of ten Business Days;


 


(c)           any representation or warranty made or deemed made by or
on behalf of Holdings, the Borrower or any Subsidiary in or in connection with
any Loan Document or any amendment or modification thereof or waiver
thereunder, or in any report, certificate, financial statement or other
document furnished pursuant to or in connection with any Loan Document or any
amendment or modification thereof or waiver thereunder, shall prove to have
been incorrect in any material respect when made or deemed made;


 


(d)           the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02, 5.04 (with
respect to the existence of Holdings and the Borrower), 5.11 or in Article VI;


 


(e)           the Borrower or any Subsidiary Loan Party shall fail to
observe or perform any covenant, condition or agreement contained in any Loan
Document (other than those specified in Sections 7.01(a), (b) or (d)), and
such failure shall continue unremedied for a period of 30 days after notice
thereof from the Administrative Agent to the Borrower (which notice will be
given at the request of any Lender);


 


(f)            Holdings, the Borrower or any Restricted Subsidiary shall
fail to make any payment (whether of principal or interest) in respect of any
Material Indebtedness, when and as the same shall become due and payable (after
giving effect to any applicable grace period);


 


(g)           any event or condition occurs that results in any Material
Indebtedness (other than Indebtedness hereunder) becoming due prior to its
scheduled maturity or that enables or permits (after giving effect to any
applicable grace period) the holder or holders of any Material Indebtedness
(other than Indebtedness hereunder) or any trustee or agent on its or their
behalf to cause any Material Indebtedness (other than Indebtedness hereunder)
to become due, or to require the prepayment, repurchase, redemption or
defeasance thereof, prior to its scheduled maturity, provided that this
clause (g) shall not apply to (i) Indebtedness that becomes due as a
result of the voluntary sale or transfer of property or assets (to the extent
not prohibited under this Agreement) or (ii) Indebtedness under the Bridge
Loan Credit Agreement becoming due upon, and to the extent of the net cash
proceeds of, the issuance of Take Out Notes;


 


(h)           an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of Holdings, the Borrower or any Restricted
Subsidiary or its debts, or of a substantial part of its assets, under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar law
now or hereafter in effect or (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for Holdings, the
Borrower or any Restricted Subsidiary or for a substantial part of its assets,
and, in any such case, such proceeding or petition shall continue undismissed
for 60 days or an order or decree approving or ordering any of the foregoing
shall be entered;


 


(i)            Holdings, the Borrower or any Restricted Subsidiary shall
(i) voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under 


 


87

















 


any
Federal, state or foreign bankruptcy, insolvency, receivership or similar law
now or hereafter in effect, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition
described in Section 7.01(h), (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for Holdings, the Borrower or any Restricted Subsidiary or for
a substantial part of its assets, (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding, (v) make
a general assignment for the benefit of creditors or (vi) take any formal
action for the purpose of effecting any of the foregoing;


 


(j)            Holdings, the Borrower or any Restricted Subsidiary shall
become unable, admit in writing its inability or fail generally to pay its
debts as they become due;


 


(k)           one or more judgments for the payment of money (to the
extent not paid or covered by insurance provided by a carrier that has not
denied its obligation to pay such claim in writing) in an aggregate amount in
excess of $10,000,000 shall be rendered against Holdings, the Borrower, any
Restricted Subsidiary or any combination thereof and the same shall remain undischarged
for a period of 30 consecutive days during which execution shall not be
effectively stayed, or any action shall be legally taken by a judgment creditor
to attach or levy upon any assets of Holdings, the Borrower or any Restricted
Subsidiary to enforce any such judgment;


 


(l)            an ERISA Event shall have occurred that, in the opinion
of the Required Lenders, when taken together with all other ERISA Events that
have occurred, could reasonably be expected to result in liability of the
Borrower and the Restricted Subsidiaries in an aggregate amount exceeding
$10,000,000 for all periods;


 


(m)          any Lien purported to be created under any Security
Document shall cease to be a valid and perfected Lien on any material portion
of the Collateral with the priority required by the applicable Security
Document, except as a result of the sale or other disposition of the applicable
Collateral in a transaction permitted under the Loan Documents or as otherwise
expressly permitted hereunder;


 


(n)           any Loan Document shall for any reason be asserted by any
Loan Party not to be a legal, valid and binding obligation of any party
thereto;


 


(o)           the Guarantees of the Obligations by Holdings and the
Subsidiary Loan Parties pursuant to the Collateral Agreement shall cease to be
in full force and effect (other than in accordance with the terms of the Loan
Documents) or shall be asserted by Holdings, the Borrower or any Subsidiary
Loan Party not to be in effect or not to be legal, valid and binding
obligations; or


 


(p)           a Change in Control shall occur;


 


then, and in every such event (other than an
event with respect to the Borrower described in Section 7.01(h) or
(i)), and at any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders shall, by
notice to the Borrower, take either or both of the following actions, at the
same or different times:  (i) terminate
the Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or
in part, in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the principal of
the Loans so declared to be due and payable, together with accrued interest
thereon and all fees and other obligations of the Borrower accrued 


 


88

















 


hereunder, shall become due and payable
immediately, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower; and in case of any event with
respect to the Borrower described in Section 7.01(h) or (i), the Commitments
shall automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other obligations of
the Borrower accrued hereunder, shall automatically become due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower.


 


SECTION 7.02.            Borrower’s Right to Cure.


 


(a)           Notwithstanding anything to the contrary contained in Section 7.01,
in the event that the Borrower fails to comply with the requirement of the
Financial Performance Covenant, until the expiration of the tenth day
subsequent to the date on which financial statements with respect to the fiscal
period for which the Financial Performance Covenant is being measured are
required to be delivered pursuant to Section 5.01, Holdings shall have the
right to issue Qualified Equity Interests (the “Cure Right”), and upon
the receipt by the Borrower of cash (such amount of cash being referred to as
the “Cure Amount”) pursuant to the exercise by Holdings of such Cure Right,
the Financial Performance Covenant shall be recalculated giving effect to the
following pro forma adjustments:


 


(i)            Consolidated EBITDA
shall be increased, solely for the purpose of determining the existence of a
Default or Event of Default under the Financial Performance Covenant with respect
to any period of four consecutive fiscal quarters that includes the fiscal
quarter for which the Cure Right was exercised and not for any other purpose
under this Agreement, by an amount equal to the Cure Amount; and


 


(ii)           if, after giving
effect to the foregoing recalculations, the Borrower shall then be in
compliance with the requirements of the Financial Performance Covenant
(including for purposes of Section 4.02), the Borrower shall be deemed to
have satisfied the requirements of the Financial Performance Covenant as of the
relevant date of determination with the same effect as though there had been no
failure to comply therewith at such date, and the applicable breach or default
of the Financial Performance Covenant that had occurred shall be deemed cured
for the purposes of this Agreement.


 


(b)           Notwithstanding anything herein to the contrary, (a) in
each four fiscal quarter period there shall be a period of at least two fiscal
quarters in which no Cure Right is made, (b) all Cure Amounts shall be
disregarded for purposes of determining any items in this Agreement (including
basket sizes) dependent upon equity contributions or offerings and (c) the
Cure Amount shall be no greater than the amount required to cause Borrower to
be in compliance with the Financial Performance Covenant.


 


SECTION 7.03.            Exclusion of Immaterial
Subsidiaries.  Solely for the
purposes of determining whether a Default has occurred under Section 7.01(h) or
(i), any reference in any such clause to any Restricted Subsidiary shall be
deemed not to include any Restricted Subsidiary affected by any event or
circumstance referred to in any such clause that did not, as of the last day of
the fiscal quarter of the Borrower most recently ended, have assets with a
value in excess of 5% of the consolidated total assets of the Borrower and the
Restricted Subsidiaries or 5% of the total revenues of the Borrower and the Restricted
Subsidiaries as of such date; provided that if it is necessary to
exclude more than one Restricted Subsidiary from Section 7.01(h) or (i) pursuant
to this Section 7.03 in order to avoid an Event of Default thereunder, all
excluded Restricted Subsidiaries shall be considered to be a single
consolidated Restricted Subsidiary for purposes of determining whether the
condition specified above is satisfied.


 


89

















 


ARTICLE
VIII


 


The
Agents


 


SECTION 8.01.            The Agents.  Each of the Lenders and the Issuing Bank
hereby irrevocably appoints the Administrative Agent as its agent and
authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms
of the Loan Documents, together with such actions and powers as are reasonably
incidental thereto.  For purposes of this
Article VIII, all references to the Administrative Agent shall be deemed
to be references to both the Administrative Agent and the Collateral Agent.


 


The bank serving as the Administrative Agent hereunder
shall have the same rights and powers in its capacity as a Lender as any other
Lender and may exercise the same as though it were not the Administrative
Agent, and such bank 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 other Affiliate thereof as if it were not the Administrative
Agent hereunder.


 


The Administrative Agent shall not have any duties
or obligations except those expressly set forth in the Loan Documents.  Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any
fiduciary or other implied duties, regardless of whether a Default has occurred
and is continuing, (b) the Administrative Agent shall not have any duty to
take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated by the Loan Documents
that the Administrative Agent is required to exercise in writing as directed by
the Required Lenders (or such other number or percentage of the Lenders as
shall be necessary under the circumstances as provided in Section 2.05(j) and
Section 9.02), and (c) except as expressly set forth in the Loan
Documents, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to
Holdings, the Borrower or any of the Subsidiaries that is communicated to or
obtained by the bank serving as Administrative Agent or any of its Affiliates
in any capacity.  The Administrative
Agent shall not be liable for any action taken or not taken by it with the
consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 2.05(j) or Section 9.02) or in the absence
of its own gross negligence or willful misconduct.  The Administrative Agent shall be deemed not
to have knowledge of any Default unless and until written notice thereof is
given to the Administrative Agent by Holdings, the Borrower or a Lender, and
the Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with any Loan Document, (ii) the contents of any
certificate, report or other document delivered thereunder or in connection
therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth in any Loan Document, (iv) the
validity, enforceability, effectiveness or genuineness of any Loan Document or
any other agreement, instrument or document, or (v) the satisfaction of
any condition set forth in Article IV or elsewhere in any Loan Document,
other than to confirm receipt of items expressly required to be delivered to
the Administrative Agent.


 


The Administrative Agent shall be entitled to rely
upon, and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person.  The Administrative Agent also may rely upon
any statement made to it orally or by telephone and believed by it to be made
by the proper Person, and shall not incur any liability for relying
thereon.  The Administrative Agent may
consult with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.


 


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The Administrative Agent may perform any and all its
duties and exercise its rights and powers by or through any one or more
subagents appointed by the Administrative Agent.  The Administrative Agent and any such
subagent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. 
The exculpatory provisions of the preceding paragraphs shall apply to
any such subagent and to the Related Parties of each Administrative Agent and
any such subagent, and shall apply to their respective activities in connection
with the syndication of the credit facilities provided for herein as well as
activities as Administrative Agent.


 


Each of the Lenders, the Issuing Bank and the Loan
Parties agree that the Administrative Agent may, subject to Section 9.01(b),
but shall not be obligated to, make the Approved Electronic Communications available
to the Lenders and the Issuing Bank by posting such Approved Electronic
Communications on IntraLinksTM or a substantially similar secure electronic
platform chosen by the Administrative Agent to be its electronic transmission
system (the “Approved Electronic Platform”) and each of the Loan Parties
agrees to make the Approved Electronic Communications available to the Administrative
Agent in an acceptable soft copy or electronic format.


 


Although the Approved Electronic Platform and its
primary web portal are secured with generally-applicable security procedures
and policies implemented or modified by the Administrative Agent from time to
time (including, as of the Effective Date, a dual firewall and a User
ID/Password Authorization System) and the Approved Electronic Platform is
secured through a single-user-per-deal authorization method whereby each user
may access the Approved Electronic Platform only on a deal-by-deal basis, each
of the Lenders and the Issuing Bank and the Loan Parties acknowledge and agree
that the distribution of material through an electronic medium is not
necessarily secure and that there are confidentiality and other risks
associated with such distribution.  In
consideration for the convenience and other benefits afforded by such
distribution and for the other consideration provided hereunder, the receipt
and sufficiency of which is hereby acknowledged, each of the Lenders, the Loan
Parties and the Issuing Bank hereby approve distribution of the Approved
Electronic Communications through the Approved Electronic Platform and understands
and assumes the risks of such distribution.


 


The Approved Electronic Communications and the
Approved Electronic Platform are provided “as is” and “as available”.  None of the Administrative Agent or any of
its Affiliates or any of their respective officers, directors, employees,
agents, advisors or representatives (the “Agent Affiliates”) warrant the
accuracy, adequacy or completeness of the Approved Electronic Communications
and the Approved Electronic Platform and each expressly disclaims liability for
errors or omissions in the Approved Electronic Communications and the Approved
Electronic Platform.  No warranty of any
kind, express, implied or statutory (including, without limitation, any
warranty of merchantability, fitness for a particular purpose, noninfringement
of third party rights or freedom from viruses or other code defects) is made by
the Agent Affiliates in connection with the Approved Electronic Communications
or the Approved Electronic Platform.


 


Each of the Lenders, the Issuing Bank, and the Loan
Parties agrees that the Administrative Agent may, but (except as may be
required by applicable law) shall not be obligated to, store the Approved
Electronic Communications on the Approved Electronic Platform in accordance
with the Administrative Agent’s generally-applicable document retention
procedures and policies.


 


The Administrative Agent may resign at any time by
notifying the Lenders, the Issuing Bank and the Borrower.  Upon any such resignation, the Required
Lenders shall have the right, with the consent of the Borrower, to appoint a
successor.  If no successor shall have
been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may, on behalf of
the Lenders 


 


91

















 


and the Issuing Bank, appoint a successor Administrative
Agent which shall be a bank with an office in New York, New York, or an
Affiliate of any such bank.  Upon the
acceptance of its appointment as Administrative Agent hereunder by a successor,
such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder.  The fees payable by the Borrower
to a successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such
successor.  After the Administrative
Agent’s resignation hereunder, the provisions of this Article and Section 9.03
shall continue in effect for the benefit of such retiring Administrative Agent,
its subagents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while it was acting as Administrative
Agent.


 


Each Lender acknowledges that it has, independently
and without reliance upon the Administrative Agent or any other Lender and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement.  Each Lender also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender and based on such documents and information as it shall from time to
time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any other Loan Document or
related agreement or any document furnished hereunder or thereunder.  The Lenders identified in this Agreement as
the Syndication Agent and the Documentation Agents shall not have any right,
power, obligation, liability, responsibility or duty under this Agreement other
than those applicable to all Lenders. 
Without limiting the foregoing, neither the Syndication Agent nor the
Documentation Agents shall have or be deemed to have a fiduciary relationship
with any Lender.


 


ARTICLE
IX


 


Miscellaneous


 


SECTION 9.01.            Notices.


 


(a)           Except in the case of notices and other communications
expressly permitted to be given by telephone, all notices and other
communications provided for herein shall be in writing and shall be delivered
by hand or overnight courier service, mailed by certified or registered mail or
sent by telecopy, as follows:


 


(i)            if to the Borrower,
to:


 


	
  Symbion, Inc.

  
	
  40 Burton Hills Blvd.

  
	
  Suite 500

  
	
  Nashville, TN 37215

  
	
  Attention: Teresa F. Sparks, Chief Financial Officer

  
	
  (Telecopy No. (615) 234-7994)

  
	
   

  
	
  with a copy to:

  
	
  Derek Bell, Assistant Vice President of Finance

  
	
  (Telecopy No. (615) 234-5998);

  
	
   

  
	
  with a copy (which shall not constitute notice) to:

  



 


92

















 


	
   

  
	
  Waller Lansden Dortch & Davis, LLP

  
	
  511 Union Street, Suite 2700

  
	
  Nashville, TN 37219

  
	
  Attention: Robert L. Harris, Esq.

  
	
  Facsimile: (615) 244-6804;

  



 


(ii)           if to the
Administrative Agent, the Swingline Lender or the Collateral Agent, to:


 


	
  For all credit notices:

  
	
   

  
	
  Merrill Lynch & Co

  4 World Financial Center / 250 Vesey Street

  22nd Floor

  New York, NY  10080

  Attention: Michael E. O’Brian, Director

  Telecopy:  (212) 738-1186

  Telephone:  (212) 449-0948

  
	
   

  
	
  For all operations notices:

  
	
   

  
	
  Merrill Lynch Capital
  Corporation

  
	
  (c/o BNY Asset Solutions)

  
	
  600 East Las Colinas
  Blvd., Suite 1300

  
	
  Irving, TX 75039

  
	
  Attention: Rachel Suiter,
  Agency Services Primary Closer

  
	
  Telecopy: (972) 401-8557

  
	
  Telephone: (972) 401-8588

  



 


(iii)          if to the Issuing
Bank, to:


 


	
  Bill Nartker, Manager

  Fifth Third Bank

  Global Payments Trade Services

  5050 Kingsley Drive, MD 1MOCBR

  Cincinnati, OH 45227

  Tel: 513-358-2126

  Fax: 513-358-5950

  email: William.nartker@53.com

  



 


(iv)          if to any other
Lender, to it at its address (or telecopy number) set forth in its Administrative
Questionnaire.


 


(b)           Notices and other communications to the Lenders hereunder
may be delivered or furnished by electronic communications pursuant to
procedures approved by the Administrative Agent, provided that the
foregoing shall not apply to notices to any Lender or the Issuing Bank pursuant
to Article II or of a Default if such Lender or the Issuing Bank,
as applicable, has notified the Administrative Agent that it is incapable of
receiving notices under such Article by electronic communication and provided
that the Administrative Agent shall in any event also receive hard copies of
the notices described in this proviso and, to the extent requested, any other
documents delivered electronically under this Agreement.  The Administrative Agent or the Borrower may,
in its discretion, agree to accept notices and other 


 


93

















 


communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may
be limited to particular notices or communications.  All such notices and other communications (i) sent
to an e-mail address shall be deemed received upon the sender’s receipt of an
acknowledgement from the intended recipient (such as by the “return receipt requested”
function, as available, return e-mail or other written acknowledgement); provided
that if not given during the normal business hours of the recipient, such
notice or communication shall be deemed to have been given at the opening of
business on the next Business Day for the recipient, and (ii) posted to an
Internet or intranet website shall be deemed received upon the deemed receipt
by the intended recipient at its e-mail address as described in the foregoing
clause (i) of any required notification that such notice or
communication is available and identifying the website address therefor.


 


(c)           Any party hereto may change its address or telecopy number
for notices and other communications hereunder by notice to the Administrative
Agent (and, in the case of the Administrative Agent, by written notice to the
Borrower).  All notices and other
communications given to any party hereto in accordance with the provisions of
this Agreement shall be deemed to have been given as follows:  notices sent by hand or overnight courier
service, or mailed by certified or registered mail, shall be deemed to have
been given when received; notices sent by telecopier (with a send successful
notice) shall be deemed to have been given when sent (except that, if not given
during normal business hours for the recipient, shall be deemed to have been
given at the opening of business on the next business day for the recipient).


 


SECTION 9.02.            Waivers; Amendments.


 


(a)           No failure or delay by the Administrative Agent, the
Issuing Bank, the Collateral Agent, the Swingline Lender or any Lender in
exercising any right or power hereunder or under any other Loan Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. 
The rights and remedies of the Administrative Agent, the Issuing Bank,
the Collateral Agent, the Swingline Lender and the Lenders hereunder and under
the other Loan Documents are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. 
No waiver of any provision of any Loan Document or consent to any departure
by any Loan Party therefrom shall in any event be effective unless the same
shall be permitted by Section 9.02(b), and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given.  Without limiting the generality
of the foregoing, the making of a Loan or issuance of a Letter of Credit shall
not be construed as a waiver of any Default, regardless of whether the Administrative
Agent, any Lender, the Collateral Agent, the Swingline Lender or the Issuing
Bank may have had notice or knowledge of such Default at the time.


 


(b)           Except as provided in Section 2.20 with respect to an
Incremental Facility Amendment (or to give effect to any restatement of this
Agreement, the substantive terms of which are otherwise permitted hereby),
neither this Agreement nor any other Loan Document nor any provision hereof or
thereof may be waived, amended or modified except, in the case of this
Agreement, pursuant to an agreement or agreements in writing entered into by
Holdings, the Borrower and the Required Lenders or, in the case of any other
Loan Document, pursuant to an agreement or agreements in writing entered into
by the Administrative Agent and the Loan Party or Loan Parties that are parties
thereto (and, if party thereto, the Collateral Agent), in each case with the
consent of the Required Lenders; provided that no such agreement shall


 


(i)            increase the
Commitment of any Lender without the written consent of such Lender,


 


94

















 


(ii)           reduce the
principal amount of any Loan or LC Disbursement or reduce the rate of interest
thereon, or reduce any fees payable hereunder, without the written consent of
each Lender affected (other than any waiver of default interest payable
pursuant to Section 2.13(c)) thereby (it being understood that a change to
the definition of the Leverage Ratio that could have the effect of reducing
such interest or fees upon certain conditions shall not be deemed in and of
itself to reduce such interest or fees),


 


(iii)          postpone the final
maturity of any Loan, or any scheduled date of payment of the principal amount
of any Term Loan under Section 2.10, the required date of reimbursement of
any LC Disbursement, or any date for the payment of any interest or fees
payable hereunder, or reduce the amount of, waive or excuse any such payment,
or postpone the scheduled date of expiration of any Commitment, without the
written consent of each Lender affected thereby,


 


(iv)          change Section 2.18(b) or
(c) in a manner that would alter the prorata
sharing of payments required thereby, without the written consent of each
Lender,


 


(v)           change any of the
provisions of this Section 9.02 or the percentage set forth in the
definition of “Required Lenders” or any other provision of any Loan Document
specifying the number or percentage of Lenders (or Lenders of any Class)
required to waive, amend or modify any rights thereunder or make any
determination or grant any consent thereunder, without the written consent of
each Lender (or each Lender of such Class, as applicable),


 


(vi)          release Holdings or
substantially all Subsidiary Loan Parties from their Guarantee under the
Collateral Agreement (except as provided in Section 9.15 or in the
Collateral Agreement) or limit liability of Holdings or of substantially all
Subsidiary Loan Parties in respect of such Guarantee, without the written
consent of each Lender,


 


(vii)         release all or
substantially all the Collateral from the Liens of the Security Documents
(except as provided in Section 9.15 or in the Collateral Agreement),
without the written consent of each Lender,


 


(viii)        change any
provisions of any Loan Document in a manner that by its terms adversely affects
the rights in respect of payments due to Lenders holding Loans of any Class differently
than those holding Loans of any other Class, without the written consent of
Lenders holding a majority in interest of the outstanding Loans and unused
Commitments of each adversely affected Class, or


 


(ix)           modify the
definition of “Interest Period” to allow periods of more than twelve months
without regard to the agreement of all participating Lenders, without the
written consent of each Lender;


 


provided, further,
that (A) no such agreement shall amend, modify or otherwise affect the rights
or duties of the Administrative Agent, the Issuing Bank or the Swingline Lender
without the prior written consent of the Administrative Agent, the Issuing Bank
or the Swingline Lender, as applicable, (B) any waiver, amendment or
modification of this Agreement that by its terms affects the rights or duties under
this Agreement of the Revolving Lenders (but not the Term Lenders), the
Tranche B Lenders (but not the Tranche A Lenders or Revolving Lenders) ,
the Tranche A Lenders (but not the Tranche B Lenders or Revolving
Lenders), or the Term Lenders (but not the Revolving Lenders) may be effected
by an agreement or agreements in writing entered into by Holdings, the Borrower
and requisite percentage in interest of the affected Class(es) of Lenders that
would be required to consent thereto under this Section 9.02(b) if


 


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such Class(es) of Lenders were the only
Class(es) of Lenders hereunder at the time and (C) if the Administrative
Agent and the Borrower shall have jointly identified an obvious error or any
error or omission of a technical or immaterial nature in any provision of the
Loan Documents, then the Administrative Agent and the Borrower shall be
permitted to amend such provision and such amendment shall become effective
without any further action or consent of any other party to any Loan Document
if the same is not objected to in writing by the Required Lenders within five (5) Business
Days notice thereof.  In connection with
any proposed amendment, modification, waiver or termination (a “Proposed
Change”) requiring the consent of all affected Lenders, if the consent of
the Required Lenders (and, to the extent any Proposed Change requires the
consent of Lenders holding Loans of any Class pursuant to Section 9.02(b)(viii),
the consent of not less than a majority in interest of the outstanding Loans
and unused Commitments of such Class) to such Proposed Change is obtained, but
the consent to such Proposed Change of other Lenders whose consent is required
is not obtained (any such Lender whose consent is not obtained as described in
this Section 9.02(b) being referred to as a “Non-Consenting Lender”),
then, so long as the Lender that is acting as the Administrative Agent is not a
Non-Consenting Lender, at the Borrower’s request, any assignee that is acceptable
to the Administrative Agent shall have the right, with the Administrative Agent’s
consent, to purchase from such Non-Consenting Lender, and such Non-Consenting
Lender agrees that it shall, upon the Borrower’s request, sell and assign to
such assignee, at no expense to such Non-Consenting Lender, all the
Commitments, Term Loans and Revolving Exposure of such Non-Consenting Lender
for an amount equal to the principal balance of all Term Loans and Revolving
Loans (and funded participations in Swingline Loans and unreimbursed LC
Disbursements) held by such Non-Consenting Lender and all accrued interest and
fees with respect thereto through the date of sale (including amounts under
Sections 2.15, 2.16 and 2.17) so long as such principal balance of all other
Non-Consenting Lenders is similarly purchased, such purchase and sale to be
consummated pursuant to an executed Assignment and Assumption in accordance
with Section 9.04(b) (which Assignment and Assumption need not be
signed by such Non-Consenting Lender).


 


(c)           Notwithstanding the provisions of Section 9.02(b),
this Agreement may be amended (or amended and restated) with the written
consent of the Required Lenders, the Administrative Agent, Holdings and the
Borrower (i) to add one or more additional credit facilities to this
Agreement and to permit the extensions of credit from time to time thereunder
and the accrued interest and fees in respect thereof to share ratably in the
benefits of this Agreement and the other Loan Documents with the Term Loans and
the Revolving Loans and the accrued interest and fees in respect thereof, and (ii) to
include appropriately the Lenders holding such credit facilities in any
determination of the Required Lenders. 
In addition, this Agreement may be amended with the written consent of
the Administrative Agent, Holdings, the Borrower and the Lenders providing the
relevant Replacement Term Loans (as defined below) to permit the refinancing of
all outstanding Tranche A Term Loans and Tranche B Term Loans (the “Refinanced
Term Loans”) and, if applicable, related outstanding commitments, with a
replacement term loan tranche or tranches hereunder (the “Replacement Term
Loans”); provided that (i) the
aggregate principal amount of such Replacement Term Loans shall not exceed the
aggregate principal amount of such Refinanced Term Loans, (ii) the
weighted average Applicable Rate for such Replacement Term Loans shall not be
higher than the weighted average Applicable Rate for such Refinanced Term
Loans, (iii) the weighted average life to maturity of such Replacement
Term Loans shall not be shorter than the weighted average life to maturity of
such Refinanced Term Loans at the time of such refinancing (except to the extent
of nominal amortization for periods where amortization has been eliminated as a
result of prepayment of the Refinanced Term Loans) and (iv) all other
terms applicable to such Replacement Term Loans shall be substantially
identical to, or less favorable to the Lenders providing such Replacement Term
Loans than, those applicable to such Refinanced Term Loans, except to the
extent necessary to provide for covenants and other terms applicable to any
period after the latest final maturity of the Refinanced Term Loans in effect immediately
prior to such refinancing.


 


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SECTION 9.03.            Expenses; Indemnity; Damage
Waiver.


 


(a)           The Borrower shall pay (i) all reasonable
out-of-pocket expenses incurred by the Agents and their respective Affiliates,
including the reasonable fees, charges and disbursements of counsel for the Agents,
in connection with the syndication of the credit facilities provided for
herein, the preparation and administration of the Loan Documents or any
amendments, modifications or waivers of the provisions thereof (whether or not
the transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the Issuing Bank in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all out-of-pocket expenses
incurred by the Administrative Agent, the Issuing Bank or any Lender, including
the fees, charges and disbursements of any counsel for the Administrative
Agent, the Issuing Bank or any Lender, in connection with the enforcement of its
rights in connection with the Loan Documents, including its rights under this Section 9.03,
or in connection with the Loans made or Letters of Credit issued hereunder,
including all such reasonable out-of-pocket expenses incurred during any
workout or restructuring in respect of such Loans or Letters of Credit.


 


(b)           The Borrower shall indemnify the Administrative Agent,
each Agent, the Issuing Bank and each Lender, and each Related Party of any of
the foregoing Persons (each such Person being called an “Indemnitee”),
and hold each Indemnitee harmless, from and against any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted
against any Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of any Loan Document or any other agreement or instrument
contemplated hereby, the performance by the parties to the Loan Documents of
their respective obligations thereunder or the consummation of the Transactions
or any other transactions contemplated hereby, (ii) any Loan or Letter of
Credit or the use of the proceeds therefrom (including any refusal by the
Issuing Bank to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not strictly comply with
the terms of such Letter of Credit), (iii) any actual or alleged presence
or Release of Hazardous Materials on, at, under or emanating from any Mortgaged
Property or any other property currently or formerly owned or operated by the
Borrower or any of its Subsidiaries, or any actual or alleged Environmental
Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any
actual or prospective claim, litigation, investigation or proceeding relating
to any of the foregoing, whether based on contract, tort or any other theory
and regardless of whether any Indemnitee is a party thereto or such litigation,
claim, investigation or proceeding is brought by a third party or by the
Borrower or its Affiliates, provided that such indemnity shall not, as
to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses (y) are finally judicially determined
by a non-appealable judgment of a court of competent jurisdiction to have
resulted from the gross negligence, bad faith or willful misconduct of, or
breach of the Loan Documents by, such Indemnitee or (z) result from the
presence or Release of Hazardous Materials or an Environmental Liability to the
extent such presence, Release or Environmental Liability is caused by such
Indemnitee or first occurs or first exists after completion of the foreclosure
upon the Collateral, granting a deed-in-lieu of foreclosure with respect to the
Collateral or similar transfer of title or possession of the Collateral.


 


(c)           To the extent that the Borrower fails to pay any amount
required to be paid by it to the Administrative Agent, each Agent, the Issuing
Bank or the Swingline Lender under Sections 9.03(a) or (b), each Lender
severally agrees to pay to the Administrative Agent, such Agent, the Issuing
Bank or the Swingline Lender, as applicable, such Lender’s pro  rata
share (determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought) of such unpaid amount, provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as applicable, was incurred by or asserted against the Administrative
Agent, the Issuing Bank or the Swingline Lender in its capacity as such.  For purposes hereof, a Lender’s “pro rata
share” shall be determined based 


 


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upon its share of the aggregate Revolving
Exposures, outstanding Term Loans and unused Commitments at the time.


 


(d)           To the extent permitted by applicable law, neither
Holdings nor the Borrower shall assert, and each hereby waives, any claim
against any Indemnitee, on any theory of liability, for special, indirect, consequential
or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or
instrument contemplated hereby, the Transactions, any Loan or Letter of Credit
or the use of the proceeds thereof.


 


(e)           All amounts due under this Section 9.03 shall be
payable not later than ten Business Days after written demand therefor.


 


SECTION 9.04.            Successors and Assigns.


 


(a)           The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby (including any Affiliate of the Issuing Bank that
issues any Letter of Credit), except that (i) the Borrower may not assign
or otherwise transfer any of its rights or obligations hereunder without the
prior written consent of each Lender (and any attempted assignment or transfer
by the Borrower without such consent shall be null and void) except in
connection with any transaction permitted in accordance with Section 6.03(a)(i) and
(ii) no Lender may assign or otherwise transfer its rights or obligations
hereunder except in accordance with this Section 9.04.  Nothing in this Agreement, express or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of Credit), Participants
(to the extent provided in Section 9.04(c)) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent,
the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.


 


(b)           (i)  Subject to the conditions set forth in
clause (b)(ii) below, any Lender may assign to one or more assignees all
or a portion of its rights and obligations under this Agreement (including all
or a portion of its Commitment and the Loans at the time owing to it) with the
prior written consent (such consent not to be unreasonably withheld or delayed)
of:


 


(1)           the Borrower, provided that no consent of the
Borrower shall be required for an assignment to a Lender, an Affiliate of a
Lender, an Approved Fund (as defined below) or, if an Event of Default under Section 7.01(a),
(b), (h), (i) or (j) has occurred and is continuing, any other assignee;


 


(2)           the Administrative Agent, provided that no consent
of the Administrative Agent shall be required for an assignment of all or any
portion of a Term Loan to a Lender, an Affiliate of a Lender or an Approved
Fund; and


 


(3)           the Issuing Bank, provided that no consent of the
Issuing Bank shall be required for an assignment of all or any portion of a
Term Loan.


 


(ii)           Assignments shall be subject to the
following conditions:


 


(1)           except in the case of an assignment to a Lender or an
Affiliate of a Lender or an assignment of the entire remaining amount of the
assigning Lender’s Commitment or Loans of any Class, the amount of the
Commitment or Loans of the assigning Lender subject to each such 


 


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assignment (determined as of
the date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $5,000,000 or, in
the case of a Term Loan, $1,000,000, unless each of the Borrower and the
Administrative Agent otherwise consents; provided that no such consent
of the Borrower shall be required (x) for an assignment by a Lender to an
Approved Fund of a Lender or (y) if an Event of Default has occurred and
is continuing, and that contemporaneous assignments to Approved Funds related
to the same Lender shall be aggregated when calculating such minimum assignment
amounts;


 


(2)           each partial assignment shall be made as an assignment of
a proportionate part of all the assigning Lender’s rights and obligations under
this Agreement; provided that this clause shall not be construed to
prohibit assignment of a proportionate part of all the assigning Lender’s
rights and obligations in respect of one Class of Commitments or Loans;


 


(3)           the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Assumption, together with a processing
and recordation fee of $3,500; and


 


(4)           the assignee, if it is not already a Lender, shall deliver
to the Administrative Agent an Administrative Questionnaire.


 


For purposes of this Section 9.04(b):


 


“Approved Fund” means
(a) a CLO and (b) with respect to any Lender that is a fund which
invests in bank loans and similar extensions of credit, any other fund that
invests in bank loans and similar extensions of credit and is managed or
advised by the same investment advisor as such Lender or by an Affiliate of
such investment advisor.


 


“CLO” means any
entity (whether a corporation, partnership, trust or otherwise) that is engaged
in making, purchasing, holding or otherwise investing in bank loans and similar
extensions of credit in the ordinary course and is administered or managed by a
Lender or an Affiliate of such Lender.


 


(iii)          Subject to acceptance and recording thereof pursuant to Section 9.04(b)(iv),
from and after the effective date specified in each Assignment and Assumption
the assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and obligations
of a Lender under this Agreement, and the assigning Lender thereunder shall, to
the extent of the interest assigned by such Assignment and Assumption, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Assumption covering all the assigning Lender’s rights and
obligations under this Agreement, such Lender shall cease to be a party hereto
but shall continue to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and
9.03).  Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this Section 9.04 shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in accordance
with Section 9.04(c).


 


 (iv)          The
Administrative Agent, acting for this purpose as an agent of the Borrower,
shall maintain at one of its offices a register for the recordation of the
names and addresses of the Lenders, and the Commitment of, and principal amount
of the Loans and LC Disbursements owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”).  The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent, the Issuing Banks and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder 


 


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for all purposes of this Agreement, notwithstanding
notice to the contrary.  The Register
shall be available for inspection by the Borrower, the Issuing Banks and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.


 


(v)           Upon its receipt of a duly completed Assignment and
Assumption executed by an assigning Lender and an assignee, the assignee’s
completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in Section 9.04(b) and
any written consent to such assignment required by Section 9.04(b), the
Administrative Agent shall accept such Assignment and Assumption and record the
information contained therein in the Register. 
No assignment shall be effective for purposes of this Agreement unless
it has been recorded in the Register as provided in this paragraph.


 


(c)           (i)  Any Lender may, without the consent of the
Borrower, the Administrative Agent, the Issuing Banks or the Swingline Lender,
sell participations to one or more banks or other entities (a “Participant”)
in all or a portion of such Lender’s rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans owing to
it), provided that (A) such Lender’s obligations under this
Agreement shall remain unchanged, (B) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (C) the Borrower, the Administrative Agent, the Issuing Bank and the
other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement.  Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement, provided that
such agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 9.02(b) that affects such
Participant.  Each Lender that sells a participation
shall, acting solely for this purpose as a non-fiduciary agent of Borrower,
maintain a register on which it enters the name and address of each Participant
and the principal and interest amounts of each
Participant’s interest in the Loans held by it (the “Participant Register”).  The entries in the Participant Register shall
be conclusive, absent manifest error, and such Lender shall treat each Person
whose name is recorded in the Participant Register as the owner of such Loan or
other obligation hereunder for all purposes of this Agreement notwithstanding
any notice to the contrary.  Subject to Section 9.04(c)(ii),
the Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.15, 2.16 and 2.17 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to Section 9.04(b).  To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section 9.08 as though it were a
Lender, provided such Participant agrees to be subject to Section 2.18(c) as
though it were a Lender.


 


(ii)           A Participant shall not be entitled to receive any greater
payment under Section 2.15 or 2.17 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant except to the extent that the entitlement to any greater payment
results from any change in Requirement of Law after the
participant becomes a Participant and, for the avoidance of doubt, the
applicable Lender would have been entitled to receive such greater payment as a
result of such change in Requirement of Law, unless the sale of the
participation to such Participant is made with the Borrower’s prior written
consent.  A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 2.17
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with Section 2.17(e) as
though it were a Lender.


 


 (iii)          Any Lender may
at any time pledge, assign or grant a security interest in all or any portion
of its rights under this Agreement to secure obligations of such Lender,
including any pledge, 


 


100

















 


assignment or grant to secure obligations to a
Federal Reserve Bank, and this Section 9.04 shall not apply to any such
pledge, assignment or grant of a security interest, provided that no
such pledge, assignment or grant of a security interest shall release a Lender
from any of its obligations hereunder or substitute any such pledge or assignee
for such Lender as a party hereto.


 


SECTION 9.05.            Survival.  All covenants, agreements, representations
and warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement or any other Loan Document shall have independent significance
and be considered to have been relied upon by the other parties hereto and
shall survive the execution and delivery of the Loan Documents and the making
of any Loans and issuance of any Letters of Credit, regardless of any investigation
made by any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time
any credit is extended hereunder, and shall continue in full force and effect
as long as the principal of or any accrued interest on any Loan or any fee or
any other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated.  The provisions of
Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII shall survive and
remain in full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration or termination
of the Letters of Credit and the Commitments or the termination of this
Agreement or any provision hereof.


 


SECTION 9.06.            Counterparts; Integration;
Effectiveness.  This Agreement may be
executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which
when taken together shall constitute a single contract.  This Agreement, the other Loan Documents and
any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof.  Except as provided in Section 4.01, this
Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.  Delivery of an executed counterpart of a
signature page of this Agreement by facsimile or electronic transmission
shall be effective as delivery of a manually executed counterpart of this
Agreement.


 


SECTION 9.07.            Severability.  Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.


 


SECTION 9.08.            Right of Setoff.  If any Event of Default under Section 7.01(a) or
(b) shall have occurred and be continuing, each Lender and each of its
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other obligations at any time owing by such Lender or Affiliate to or for the
credit or the account of the Borrower against any of and all the obligations of
the Borrower now or hereafter existing under this Agreement then due and owing
held by such Lender, irrespective of whether or not such Lender shall have made
any demand under this Agreement.  The
applicable Lender shall notify the Borrower and the Administrative Agent of
such setoff or application, provided that any failure to give or any
delay in giving such notice shall not affect


 


101

















 


 the
validity of any such setoff or application under this Section 9.08.  The rights of each Lender under this Section 9.08
are in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.


 


SECTION 9.09.            Governing Law; Jurisdiction; Consent
to Service of Process.


 


(a)           This Agreement shall be
construed in accordance with and governed by the law of the State of New York.


 


(b)           Each of Holdings and the
Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of the Supreme Court of the State of
New York sitting in New York County and of the United States District Court of
the Southern District of New York, and any appellate court from any thereof, in
any action or proceeding arising out of or relating to any Loan Document, or
for recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State
or, to the extent permitted by law, in such Federal court.  Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall, to the fullest extent permitted
by laws, be conclusive and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by law.  Nothing in this Agreement or any other Loan
Document shall affect any right that the Administrative Agent, the Issuing Bank
or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement or any other Loan Document against Holdings, the Borrower or
their respective properties in the courts of any jurisdiction.


 


(c)           Each of Holdings and the Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
any other Loan Document in any court referred to in Section 9.09(b).  Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.


 


(d)           Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 9.01.  Nothing in this Agreement or any other Loan
Document will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.


 


SECTION 9.10.            WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.10.


 


102

















 


SECTION 9.11.            Headings.  Article and Section headings and
the Table of Contents used herein are for convenience of reference only, are
not part of this Agreement and shall not affect the construction of, or be
taken into consideration in interpreting, this Agreement.


 


SECTION 9.12.            Confidentiality.  Each of the Administrative Agent, the Issuing
Banks and the Lenders agrees to maintain the confidentiality of the Information
(as defined below), except that Information may be disclosed (a) to its
and its Affiliates’ directors, trustees, officers, employees and agents,
including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority or
self-regulatory authority, (c) to the extent required by applicable laws
or regulations or by any subpoena or similar legal process, (d) to any
other party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or any other Loan Document or the enforcement of rights hereunder or thereunder,
(f) subject to an agreement containing provisions substantially the same
as those of this Section 9.12, to (i) any assignee or pledgee of or
Participant in, or any prospective assignee or pledgee of or Participant in,
any of its rights or obligations under this Agreement or (ii) any actual
or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Borrower and its obligations, (g) with the
consent of the Borrower or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section 9.12
or (ii) becomes available to the Administrative Agent, any Issuing Bank or
any Lender on a nonconfidential basis from a source other than Holdings or the
Borrower or any of their subsidiaries, provided that such source is not
actually known by such disclosing party to be bound by an agreement containing
provisions substantially the same as those contained in this Section 9.12.  For the purposes of this Section 9.12,
the term “Information” means all information received from Holdings or
the Borrower relating to Holdings or the Borrower or its business, other than
any such information that is available to the Administrative Agent, any Issuing
Bank or any Lender on a nonconfidential basis prior to disclosure by Holdings
or the Borrower.  Any Person required to
maintain the confidentiality of Information as provided in this Section 9.12
shall be considered to have complied with its obligation to do so if such
Person has exercised the same degree of care to maintain the confidentiality of
such Information as such Person would accord to its own confidential information.


 


SECTION 9.13.            Interest Rate Limitation.  Notwithstanding anything herein to the contrary,
if at any time the interest rate applicable to any Loan, together with all
fees, charges and other amounts that are treated as interest on such Loan under
applicable law (collectively, the “Charges”), shall exceed the maximum
lawful rate (the “Maximum Rate”) that may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would
have been payable in respect of such Loan but were not payable as a result of
the operation of this Section 9.13 shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be
increased (but not above the Maximum Rate therefor) until such cumulated
amount, together with interest thereon at the Federal Funds Effective Rate to
the date of repayment, shall have been received by such Lender.


 


SECTION 9.14.            USA Patriot Act.  Each Lender, each Agent and the Issuing Bank
hereby notifies the Borrower that pursuant to the requirements of the Uniting
and Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act of 2001, Public Law 107-56 (the “USA Patriot Act”),
it is required to obtain, verify and record information that identifies the
Borrower, which information includes the name and address of the Borrower and
other information that will allow such Person to identify the Borrower in accordance
with the USA Patriot Act.


 


103

















 


SECTION 9.15.            Release of Guarantee and
Collateral.  Upon any sale or other
transfer of any Loan Party or by any Loan Party of any Collateral that is
permitted under this Agreement, or upon the effectiveness of any written
consent to the release of any Guarantee or the security interest granted hereby
in any Collateral pursuant to Section 9.02 of this Agreement, such
Guarantee or the Mortgage or other security interest in such Collateral, as
applicable, shall be automatically released and the Collateral Agent is
authorized to, and shall, take any action to effect the foregoing, including,
without limitation, executing and delivering to the Borrower, in recordable
form, discharges and releases of such Guarantee or such Mortgage or other
security interest.


 


104

















 


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


 


	
   

  	
  SYMBOL MERGER SUB, INC.,

  as the Borrower

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas J.
  Murphy, Sr.

  
	
   

  	
   

  	
  Name: Thomas J.
  Murphy, Sr.

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SYMBION, INC.,

  as the Borrower, (with effect only from and after the consummation of the
  Merger)

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kenneth C. Mitchell

  
	
   

  	
   

  	
  Name: Kenneth C. Mitchell

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SYMBION HOLDING CORPORATION,

  as Holdings

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kenneth C. Mitchell

  
	
   

  	
   

  	
  Name: Kenneth C. Mitchell

  
	
   

  	
   

  	
  Title: Vice President

  



 


1

















 


	
   

  	
  MERRILL LYNCH CAPITAL CORPORATION,

  as a Lender and as Administrative Agent and 

  Collateral Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael E. O’Brien

  
	
   

  	
   

  	
  Name: Michael E. O’Brien

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

  as Joint Lead Arranger and Joint Bookrunner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael E. O’Brien

  
	
   

  	
   

  	
  Name: Michael E. O’Brien

  
	
   

  	
   

  	
  Title: Director

  



 


2

















 


	
   

  	
  MERRILL LYNCH CAPITAL CORPORATION, 

  as a Lender and as Administrative Agent and 

  Collateral Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sarang Gadkari

  
	
   

  	
   

  	
  Name: Sarang Gadkari

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MERRILL LYNCH, PIERCE, FENNER & SMITH 

  INCORPORATED 

  as Joint Lead Arranger and Joint Bookrunner

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sarang Gadkari

  
	
   

  	
   

  	
  Name: Sarang Gadkari

  
	
   

  	
   

  	
  Title: Managing Director

  



 


3

















 


	
   

  	
  BANK OF AMERICA, N.A., 

  as a Lender and as Syndication Agent

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Alysa Trakus

  
	
   

  	
   

  	
  Name: Alysa Trakus

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BANC OF AMERICA SECURITIES LLC, 

  as Joint Lead Arranger and Joint Bookrunner

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ A. Britt Canady

  
	
   

  	
   

  	
  Name: A. Britt Canady

  
	
   

  	
   

  	
  Title: Managing Director

  



 


4

















 


	
   

  	
  THE ROYAL BANK OF SCOTLAND
  PLC, 

  as a Lender and as Documentation Agent

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jonathan Salkin

  
	
   

  	
   

  	
  Name: Jonathan Salkin

  
	
   

  	
   

  	
  Title: Managing Director

  



 


5

















 


	
   

  	
  FIFTH THIRD BANK, as
  Issuing Bank and as Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sandy Hammrick

  
	
   

  	
   

  	
  Name: Sandy Hammrick

  
	
   

  	
   

  	
  Title: Vice President

  



 


6
















 


EXHIBIT A


Form of


ASSIGNMENT AND
ASSUMPTION


 


This
Assignment and Assumption is dated as of the date set forth below (the “Effective
Date”) and is entered into by and between [the][each] Assignor (as defined
below) and [the][each] Assignee (as defined below). Capitalized terms used in
this Assignment and Assumption and not otherwise defined herein have the
meanings specified in the Credit Agreement dated as of August 23, 2007
(the “Credit Agreement”), among Symbion, Inc., a Delaware
corporation, Symbol Merger Sub, Inc. (to be merged with and into
Symbion, Inc.), a Delaware corporation (the “Borrower”), Symbol
Holdings Corporation, a Delaware corporation (“Holdings”), the Lenders
party thereto from time to time, Merrill Lynch Capital Corporation, as
Administrative Agent and Collateral Agent, Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated and Banc of America
Securities LLC, as Joint Lead
Arrangers and Joint Bookrunners, Bank of America, N.A., as Syndication Agent,
and The Royal Bank of Scotland plc and Fifth Third Bank, as Co-Documentation
Agents, receipt of a copy of which is hereby acknowledged by [the][each]
Assignee. The Standard Terms and Conditions set forth in Annex 1 attached
hereto (the “Standard Terms”) are hereby agreed to and incorporated
herein by reference and made a part of this Assignment and Assumption as if set
forth herein in full.


 


For
an  agreed consideration, [the][each]
Assignor hereby irrevocably sells and assigns to [the][each] Assignee, and [the][each]
Assignee hereby irrevocably purchases and assumes from [the][each] Assignor,
subject to and in accordance with the Standard Terms and the Credit Agreement,
as of the Effective Date inserted by the Administrative Agent as contemplated
below (a) all of [the][each] Assignor’s rights and obligations in its capacity as a Lender under the Credit Agreement
and any other documents or instruments
delivered pursuant thereto to the extent related to the amount and percentage
interest identified below of all of such outstanding rights and obligations of [the][each] Assignor
under the facilities identified
below (including participations in any Letters
of Credit and Swingline Loans included in such facilities) and (b) to the
extent permitted to be assigned under applicable law, all claims, suits, causes
of action and any other right of [the][each] Assignor (in its capacity as a
Lender) against any Person, whether known or unknown, arising under or in
connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in
any way based on or related to any of the foregoing, including contract claims,
tort claims, malpractice claims, statutory claims and all other claims at law
or in equity related to the rights and obligations
sold and assigned pursuant to clause (a) above (the rights and obligations sold and assigned pursuant
to clauses (a) and
(b) above being referred to herein collectively as the “Assigned
Interest”). Such sale and assignment is without recourse to [the][each]
Assignor and, except as expressly provided in this Assignment and Assumption,
without representation or warranty by [the][such] Assignor.


 

















 


1.                                       Assignor[(s)]:


 


2.                                       Assignee[(s)]:


 


[Assignee is an Affiliate
of:](1)


 


[Assignee is an Approved
Fund:]


 


3.                                       Borrower: SYMBION, INC.


 


4.                                       Administrative Agent: MERRILL LYNCH
CAPITAL CORPORATION, as Administrative Agent under the Credit Agreement.


 


5.                                       Assigned Interest:


 


	
  Facility Assigned(2)

  	
   

  	
  Aggregate Amount

  of All Lenders’

  Commitments and

  Loans

  	
   

  	
  Amount of

  Commitments

  and Loans Assigned

  	
   

  	
  Percentage of

  Global Commitment

  Assigned

  	
   

  	
  CUSIP

  	
   

  
	
  Revolving Facility

  	
   

  	
  $

  	
  100,000,000

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  	
   

  	
   

  
	
  Tranche
  A Facility

  	
   

  	
  $

  	
  125,000,000

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  	
   

  	
   

  
	
  Tranche
  B Facility

  	
   

  	
  $

  	
  125,000,000

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  	
   

  	
   

  



 


Effective Date:


 






(1)           Select
as applicable.


 


(2)           Select
as applicable.


 


2

















 


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


 


 


	
   

  	
   

  	
  ,

  
	
   

  	
  as Assignor(3)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
				



 


 


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


 


 


	
   

  	
   

  	
  ,

  
	
   

  	
  as Assignee(2)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
				



 






(3)           Additional
signatures may be added as appropriate.


 


3

















 


	
   

  	
  [Consented to and Accepted:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MERRILL LYNCH
  CAPITAL CORPORATION,

  as Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title: ](4)

  



 


 


	
   

  	
  [Consented to and Accepted:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [                                                           ],(5)

  
	
   

  	
  as Issuing Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


Consented to:


 


[SYMBION, INC.](6)


 


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 






(4)           To
be included to the extent applicable under Section 9.04 of the Credit
Agreement.


 


(5)           To
be included to the extent applicable under Section 9.04 of the Credit
Agreement.


 


(6)           To
be included to the extent applicable under Section 9.04 of the Credit
Agreement.


 


4

















 


STANDARD TERMS AND CONDITIONS


FOR ASSIGNMENT AND ASSUMPTION


 


1.            Representations and Warranties.


 


1.1          Assignor.
[The][Each] Assignor (a) represents
and warrants that (i) it is the legal and beneficial owner of the Assigned
Interest, (ii) the Assigned Interest is free and clear of any lien,
encumbrance or other adverse claim and (iii) it has full power and
authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated hereby, and (b) assumes no
responsibility with respect to (i) any statements, warranties or representations
made in or in connection with the Credit Agreement or any other Loan Document, (ii) the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Loan Documents or any collateral thereunder, (iii) the
financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by the
Borrower, any of its Subsidiaries
or Affiliates or any other Person of any of their respective obligations under any Loan Document.


 


1.2          Assignee. [The][Each]
Assignee (a) represents and
warrants that (i) it has full power and authority, and has taken all
action necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) it
satisfies the requirements, if any, specified in the Credit Agreement that are
required to be satisfied by it in order to acquire the Assigned Interest and
become a Lender, (iii) from and after the Effective Date, it shall be
bound by the provisions of the
Credit Agreement as a Lender thereunder and, to the extent of the Assigned
Interest, shall have the obligations
of a Lender thereunder, (iv) it has received a copy of the Credit
Agreement, together with copies of the most recent financial statements delivered pursuant to Section 4.01(1) or
5.01 of the Credit Agreement, as applicable, and such other documents and
information as it has deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Assumption and to purchase the Assigned Interest, on the
basis of which it has made such analysis
and decision independently and without reliance on the Administrative Agent or
any other Lender, (v) if it is a Foreign Lender, attached to this
Assignment and Assumption is any documentation required to be delivered by it
pursuant to Section 2.17(e) of the Credit Agreement, duly completed
and executed by [the][such] Assignee and (vi) it is sophisticated with
respect to decisions to acquire
assets of the type represented by the Assigned Interest and either it, or the
Person exercising discretion in making its decision to acquire the Assigned
Interest, is experienced in acquiring assets of such type, and (b) agrees
that (i) it will, independently and without reliance on the Administrative
Agent, [the][each] Assignor or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking
or not taking action under the Loan Documents, and (ii) it will perform in
accordance with their terms all of the obligations
which by the terms of the Loan Documents are required to be performed by it as
a Lender.


 


2.           Payments. From
and after the Effective Date, the Administrative Agent shall make all payments
in respect of the Assigned Interest (including payments of principal, interest,
fees and other amounts) to [the][each] Assignor for amounts which have accrued
to but


 

















 


excluding the Effective Date and to [the][each] Assignee for amounts
which have accrued from and after the Effective Date.


 


3.           General Provisions.
This Assignment and Assumption shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns. This Assignment and Assumption may be
executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. Delivery of an executed counterpart of a signature page of
this Assignment and Assumption by facsimile or other electronic transmission
shall be as effective as delivery of a manually executed counterpart of this
Assignment and Assumption. This Assignment and Assumption shall be construed in
accordance with and governed by the law of the State of New York.


 


2
















 


EXHIBIT E


 


Form of


BORROWING REQUEST


 


Merrill Lynch Capital
Corporation,


as Administrative Agent
for


the Lenders referred to
below,


(c/o BNY Asset Solutions)


600 East Las Colinas
Blvd., Suite 1300


Irving, TX 75039


 


	
  Attention:

  	
   

  	
  Rachel Suiter, Agency
  Services Primary Closer

  
	
   

  	
   

  	
  Telecopier: (972)
  401-8557

  
	
   

  	
   

  	
  Telephone: (972)
  401-8588

  



 


[DATE]


 


Ladies and Gentlemen:


 


The
undersigned, Symbion, Inc., a Delaware corporation (the “Borrower”), refers
to the Credit Agreement dated as of August 23, 2007 (as amended, supplemented
or otherwise modified from time to time, the “Credit Agreement”), among
Symbion, Inc., a Delaware corporation, Symbol Merger Sub, Inc. (to be merged
with and into Symbion, Inc.), a Delaware corporation (the “Borrower”), Symbol
Holdings Corporation, a Delaware corporation (“Holdings”), the Lenders
party thereto from time to time, Merrill Lynch Capital Corporation, as
Administrative Agent and Collateral Agent, Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Banc of America Securities LLC, as Joint Lead
Arrangers and Joint Bookrunners, Bank of America, N.A., as Syndication Agent, and
The Royal Bank of Scotland plc and Fifth Third Bank, as Co-Documentation Agents.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement. The Borrower hereby
gives you notice pursuant to Section 2.03 of the Credit Agreement that it requests a Borrowing under the Credit
Agreement, and in that connection sets forth below the terms on which such
Borrowing is requested to be made:


 


	
  (A)

  	
   

  	
  Date of Borrowing

  
	
   

  	
   

  	
  (which is a Business
  Day)

  
	
   

  	
   

  	
   

  
	
  (B)

  	
   

  	
  Principal Amount of
  Borrowing

  



 

















 


	
  (C)

  	
   

  	
  Class of Borrowing(7)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (D)

  	
   

  	
  Type of Borrowing(8)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (E)

  	
   

  	
  [Interest Period and the
  last day thereof(9)

  	
  ]

  
	
   

  	
   

  	
   

  
	
  (F)

  	
   

  	
  Funds
  are requested to be disbursed to the Borrower’s account as follows (Account
  No.                     )

  



 






	
  (7)

  	
   

  	
  Specify
  Tranche A Term Loan, Tranche B Term Loan, Revolving Loan or Swingline Loan.

  
	
   

  	
   

  	
   

  
	
  (8)

  	
   

  	
  Specify
  Eurodollar Borrowing or ABR Borrowing.

  
	
   

  	
   

  	
   

  
	
  (9)

  	
   

  	
  Applicable
  for Eurodollar Borrowings only; which shall be subject to the definition of
  “Interest Period” and end not later than the Revolving Maturity Date, the
  Tranche A Maturity Date or the Tranche B Maturity Date, as applicable.

  



 


2

















 


The
Borrower hereby represents and
warrants to the Administrative Agent and the Lenders that, on the date of this
Borrowing Request and on the date of the related Borrowing, the conditions to lending specified in Section
4.02 of the Credit Agreement have been satisfied.


 


	
   

  	
  [              ],

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title: [Responsible
  Officer]

  



 


3
















 


EXHIBIT F


 


Form of


INTEREST ELECTION REQUEST


 


Merrill Lynch Capital
Corporation,


as Administrative Agent
for


the Lenders referred to
below,


(c/o BNY Asset Solutions)


600 East Las Colinas Blvd.,
Suite 1300


Irving, TX 75039


 


	
  Attention:

  	
   

  	
  Rachel Suiter, Agency Services Primary Closer

  
	
   

  	
   

  	
  Telecopier: (972)
  401-8557

  
	
   

  	
   

  	
  Telephone: (972)
  401-8588

  



 


[Date]


 


Ladies and Gentlemen:


 


Reference
is made to the Credit Agreement dated as of August 23, 2007 (as amended, supplemented
or otherwise modified from time to time, the “Credit Agreement”), among
Symbion, Inc., a Delaware corporation, Symbol Merger Sub, Inc. (to be merged
with and into Symbion, Inc.), a Delaware corporation (the “Borrower”), Symbol
Holdings Corporation, a Delaware corporation (“Holdings”), the Lenders party
thereto from time to time, Merrill Lynch Capital Corporation, as Administrative
Agent and Collateral Agent, Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner
& Smith Incorporated and Banc of America Securities LLC, as Joint Lead Arrangers and Joint Bookrunners, Bank
of America, N.A., as Syndication Agent, and The Royal Bank of Scotland plc and
Fifth Third Bank, as Co-Documentation Agents. Capitalized terms used herein and
not otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement. This notice constitutes an Interest Election Request, and the
Borrower hereby requests the
conversion or continuation of a Borrowing under the Credit Agreement, and in
that connection the Borrower specifies the following information with respect
to the Borrowing to be converted or continued as requested hereby:


 


	
   

  	
  (A)

  	
  Borrowing to which this
  request applies:(10)

  



 






	
  (10)

  	
   

  	
  Specify existing Class (Tranche
  A Term Loan, Tranche B Term Loan or Revolving Loan), Type (Eurodollar
  Borrowing or ABR Borrowing) and last day of current Interest Period. If
  different options are being elected with respect to different portions of the
  Borrowing, use separate form for each portion.

  



 


1

















 


	
   

  	
  (B)

  	
  Principal amount of the
  Borrowing to be converted/continued:

  
	
   

  	
   

  	
   

  
	
   

  	
  (C)

  	
  Effective date of
  election (which is a Business Day):

  
	
   

  	
   

  	
   

  
	
   

  	
  (D)

  	
  Type of resulting
  Borrowing:(11)

  
	
   

  	
   

  	
   

  
	
   

  	
  (E)

  	
  [Interest Period of
  resulting Borrowing:                                             ](12)

  



 


	
   

  	
  Very truly yours, 

  
	
   

  	
   

  
	
   

  	
  SYMBION, INC.,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 






	
  (11)

  	
   

  	
  Eurodollar
  Borrowing or ABR Borrowing.

  
	
   

  	
   

  	
   

  
	
  (12)

  	
   

  	
  Applicable
  only if the resulting Borrowing is a Eurodollar Borrowing; which shall be
  subject to the definition of “Interest Period” and end not later than the
  Revolving Maturity Date, the Tranche A Maturity Date or the Tranche B
  Maturity Date, as applicable.

  



 


2
















 


EXHIBIT G-1


 


Form of


TERM LOAN NOTE


 


	
  $

  	
   

  	
  New York, New
  York

  
	
   

  	
   

  	
  [Date]

  



 


FOR VALUE RECEIVED, the undersigned, SYMBION, INC., a Delaware
corporation (the “Borrower”), hereby promises to pay to the order of [              ]
(the “Lender”) on the [Tranche A] [Tranche B] Maturity Date (as defined
in the Credit Agreement referred to below) in lawful money of the United States and in immediately available
funds, the principal amount of             DOLLARS
($          ), or, if less,
the aggregate unpaid principal amount of all [Tranche A Term Loans] [Tranche B
Term Loans] of the Lender outstanding under the Credit Agreement referred to
below, which sum shall be due and payable in such amounts and on such dates as
are set forth in the Credit Agreement. Borrower further agrees to pay interest
in like money at such office specified in Section 2.18 of the Credit Agreement
on the unpaid principal amount hereof from time to time from the date hereof at
the rates, and on the dates, set forth in the Credit Agreement.


 


The holder of this
Note may endorse and attach a schedule to reflect the date, type and amount of
each [Tranche A Term Loan] [Tranche B Term Loan] of the Lender outstanding
under the Credit Agreement, the date and amount of each payment or prepayment
of principal hereof, and the date of each interest rate conversion or
continuation pursuant to Section 2.07  of
the Credit Agreement and the principal amount subject thereto; provided that the failure of the Lender to
make any such recordation (or any error in such recordation) shall not affect
the obligations of Borrower hereunder or under the Credit Agreement.


 


This Note is one
of the Notes referred to in the Credit Agreement dated as of August 23, 2007
(as amended, amended and restated, supplemented or otherwise modified from time
to time, the “Credit Agreement”), among the Symbion, Inc., a Delaware
Corporation, Symbol Merger Sub, Inc. (to be merged with and into Symbion, Inc.),
a Delaware corporation (the “Borrower”), Symbol Holdings Corporation, a
Delaware corporation (“Holdings”), the Lenders party thereto from time
to time, Merrill Lynch Capital Corporation, as Administrative Agent and
Collateral Agent, Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated and Banc of America Securities LLC, as Joint Lead Arrangers
and Joint Bookrunners, Bank of America, N.A., as Syndication Agent, and The
Royal Bank of Scotland plc and Fifth Third Bank, as Co-Documentation Agents, is
subject to the provisions
thereof and is subject to optional and mandatory prepayment in whole or in part
as provided therein. Terms used herein which are defined in the Credit
Agreement shall have such defined meanings unless otherwise defined herein or
unless the context otherwise requires.


 


This Note is
secured and guaranteed as provided in the Credit Agreement and the Security
Documents. Reference is hereby made to the Credit Agreement and the Security
Documents for a description of the properties
and assets in which a security
interest has been


 


1

















 


granted, the nature and
extent of the security and guarantees, the terms and conditions upon which the security interest and each guarantee was
granted and the rights of the holder of this Note in respect thereof.


 


Upon the
occurrence and during the continuation of any one or more of the Events of
Default specified in the Credit Agreement, all amounts then remaining unpaid on
this Note shall become, or may be declared to be, immediately due and payable
all as provided therein.


 


All parties now
and hereafter liable with respect to this Note whether maker, principal,
surety, guarantor, endorser or otherwise, hereby waive presentment, demand,
protest and all other notices of any kind.


 


THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS OF
THE CREDIT AGREEMENT. TRANSFERS OF THIS NOTE MUST BE RECORDED IN THE REGISTER
MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE TERMS OF THE CREDIT
AGREEMENT.


 


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


 


[Signature Page Follows]


 


2

















 


	
   

  	
  [SYMBION MERGER SUB,
  INC.,

  
	
   

  	
  as
  Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
  ]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SYMBION,
  INC. [(with effect only from and after the consummation of the Merger)](13),

  
	
   

  	
  as
  Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 






	
  (13)

  	
   

  	
  To be included only on
  Notes delivered on or prior to the Effective Date.

  



 


3
















 


EXHIBIT G-2


 


Form of


REVOLVING CREDIT NOTE


 


	
  $

  	
   

  	
  New York, New
  York

  
	
   

  	
   

  	
  [Date]

  



 


FOR VALUE RECEIVED, the undersigned, SYMBION, INC., a Delaware
corporation (the “Borrower”), hereby promises to pay to the order of [                                             ]
(the “Lender”) on the Revolving Maturity Date (as defined in the Credit
Agreement referred to below), in lawful money of the United States and in
immediately available funds, the principal amount of the lesser of (a)
                      
DOLLARS ($           )  and (b) the aggregate unpaid
principal amount of all Revolving Loans of the Lender outstanding under the
Credit Agreement referred to below. Borrower further agrees to pay interest in
like money at such office specified in Section 2.18 of the Credit Agreement on
the unpaid principal amount hereof from time to time from the date hereof at
the rates, and on the dates, set forth in the Credit Agreement.


 


The holder of this
Note may endorse and attach a schedule to reflect the date, type and amount of
each Revolving Loan of the Lender outstanding under the Credit Agreement, the
date and amount of each payment or prepayment of principal hereof, and the date
of each interest rate conversion or continuation pursuant to Section 2.07 of
the Credit Agreement and the principal amount subject thereto; provided that the failure of the Lender to
make any such recordation (or any error in such recordation) shall not affect
the obligations of Borrower
hereunder or under the Credit Agreement.


 


This Note is one
of the Notes referred to in the Credit Agreement dated as of August 23, 2007
(as amended, amended and restated, supplemented or otherwise modified from time
to time, the “Credit Agreement”), among the Symbion, Inc., a Delaware
corporation, Symbol Merger Sub, Inc. (to be merged with and into Symbion, Inc.),
a Delaware corporation (the “Borrower”), Symbol Holdings Corporation, a
Delaware corporation (“Holdings”), the Lenders party thereto from time
to time, Merrill Lynch Capital Corporation, as Administrative Agent and
Collateral Agent, Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated and Banc of America Securities LLC, as Joint Lead Arrangers
and Joint Bookrunners, Bank of America, N.A., as Syndication Agent, and The
Royal Bank of Scotland plc and Fifth Third Bank, as Co-Documentation Agents, is
subject to the provisions thereof
and is subject to optional and mandatory prepayment in whole or in part as
provided therein. Terms used herein which are defined in the Credit Agreement
shall have such defined meanings unless otherwise defined herein or unless the
context otherwise requires.


 


This Note is
secured and guaranteed as provided in the Credit Agreement and the Security
Documents. Reference is hereby made to the Credit Agreement and the Security
Documents for a description of the properties
and assets in which a security interest has been granted, the nature and extent
of the security and guarantees, the terms and conditions upon


 

















 


which
the security interest and each guarantee was granted and the rights of the
holder of this Note in respect thereof.


 


Upon the occurrence and during the continuation of any one or more of
the Events of Default specified in the Credit Agreement, all amounts then
remaining unpaid on this Note shall become, or may be declared to be,
immediately due and payable, all as provided therein.


 


All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.


 


THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS OF
THE CREDIT AGREEMENT. TRANSFERS OF THIS NOTE MUST BE RECORDED IN THE REGISTER
MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE TERMS OF THE CREDIT AGREEMENT.


 


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


 


[Signature Page Follows]


 


2

















 


	
   

  	
  [SYMBION MERGER SUB,
  INC.,

  
	
   

  	
  as
  Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
  ]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SYMBION,
  INC. [(with effect only from and after the consummation of the Merger)](14),

  
	
   

  	
  as
  Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 






	
  (14)

  	
   

  	
  To be included only on
  Notes delivered on or prior to the Effective Date.

  



 


3
















 


SCHEDULES


 


TO THE


 


CREDIT AGREEMENT


 


DATED AS OF


 


AUGUST 23, 2007


 


AMONG


 


SYMBION HOLDINGS CORPORATION,


AS HOLDINGS


 


SYMBOL MERGER SUB, INC. (TO BE MERGED WITH
AND INTO


SYMBION, INC.),


AS THE BORROWER


 


THE LENDERS PARTY HERETO FROM TIME TO TIME


 


MERRILL LYNCH CAPITAL CORPORATION,


AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT


 


BANK OF AMERICA, N.A.,


AS SYNDICATION AGENT


 


AND


 


THE ROYAL BANK OF SCOTLAND PLC AND FIFTH
THIRD BANK,


AS CO-DOCUMENTATION AGENTS


 






 


MERRILL LYNCH & CO.,


MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED AND


BANC OF AMERICA SECURITIES LLC,


AS JOINT LEAD ARRANGERS AND JOINT LEAD
BOOKRUNNERS


 

















 


EXISTING LETTERS OF CREDIT


 


SCHEDULE 1.01(a)


 


None.


 

















 


SCHEDULE 1.01(c)


 


SPECIFIED SUBSIDIARIES


 


NSC of Edmond, Inc.


SARC/West Houston, LLC


SI/Dry Creek, Inc.


Symbion Imaging, Inc.


TOSF, LLC


SMBIMS Brooksville, Inc.


ARC Dry Creek, Inc.


SARC/Savannah, Inc.


SARC/San Antonio, LLC


SMBIMS, Tuscaloosa, Inc.


SARC/Columbia, Inc.


SMBISS Sandy Springs, LLC


SMBISS Roswell, LLC


Houston PSC - I, Inc.


Northstar Hospital, LLC


 

















 


SCHEDULE 2.01


 


COMMITMENTS


 


	
  Lender

  	
   

  	
  Revolving

  Commitment

  	
   

  	
  Term Loan A

  Commitment

  	
   

  	
  Term Loan B

  Commitment

  	
   

  
	
  Merrill Lynch Capital Corporation

  	
   

  	
  $

  	
  46,261,111.00

  	
   

  	
  $

  	
  46,933,333.00

  	
   

  	
  $

  	
  68,750,000.00

  	
   

  
	
  Bank of America, N.A.

  	
   

  	
  $

  	
  29,438,889.00

  	
   

  	
  $

  	
  29,866,667.00

  	
   

  	
  $

  	
  43,750,000.00

  	
   

  
	
  The Royal Bank of Scotland plc

  	
   

  	
  $

  	
  10,000,000.00

  	
   

  	
  $

  	
  12,500,000.00

  	
   

  	
  $

  	
  12,500,000.00

  	
   

  
	
  Fifth Third Bank

  	
   

  	
  $

  	
  14,300,000.00

  	
   

  	
  $

  	
  35,700,000.00

  	
   

  	
  $

  	
  —

  	
   

  
	
  Totals

  	
   

  	
  $

  	
  100,000,000.00

  	
   

  	
  $

  	
  125,000,000.00

  	
   

  	
  $

  	
  125,000,000.00

  	
   

  



 

















 


SCHEDULE 3.03


 


NO CONFLICTS


 


	
   

  	
   

  	
  State

  	
   

  	
  Type of Permit or License

  	
   

  	
  Action

  
	
  1.

  	
   

  	
  RI

  	
   

  	
  ASC
  License

  	
   

  	
  Change in Effective
  Control application filed 6/28/2007.

  
	
  2.

  	
   

  	
  RI

  	
   

  	
  Medicaid

  	
   

  	
  Change of information form
  required.

  
	
  3.

  	
   

  	
  TX

  	
   

  	
  Medicaid

  	
   

  	
  New application required.

  
	
  4.

  	
   

  	
  WA

  	
   

  	
  Medicaid

  	
   

  	
  New application required.

  



 


In
addition to the licenses and permits listed above, each facility that is
currently enrolled in Medicare will be required to make a change of information
filing with Medicare within 30 days post-closing.


 

















 


SCHEDULE 3.05


 


REAL PROPERTY


 


SMBIMS
Durango, LLC, 40 Burton Hills Blvd., Suite 500, Nashville, TN 37215, owns
undeveloped land, Lot 3R, Rivergate Medical Center Lot 2-R Condominium Plat and
Resubdivision of Lot 2& 3, Rivergate Planned Development, According to the
Recorded Plat thereof filed for record July 21, 2005 under Reception No. 913882,
County of La Plata, State of Colorado, Licensed to hospital.


 

















 


SCHEDULE 3.06


 


LITIGATION


 


None.


 
















 


SCHEDULE 3.12


 


SUBSIDIARIES


 


	
  Current
  Legal Entities

  Owned

  	
   

  	
  Loan Party, Qualified Restricted

  Subsidiary or Specified

  Subsidiary Record Owner

  	
   

  	
  No. of Shares

  	
   

  	
  Interest

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BORROWER:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Symbion, Inc.

  	
   

  	
  Symbion Holdings
  Corporation

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SUBSIDIARY LOAN PARTIES:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Ambulatory Resource Centres Investment
  Company, Inc.

  	
   

  	
  ARC Financial Services
  Corporation

  	
   

  	
  100

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Ambulatory Resource Centres of Florida, Inc.

  	
   

  	
  ARC Financial Services
  Corporation

  	
   

  	
  100

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Ambulatory Resource Centres of
  Massachusetts, Inc.

  	
   

  	
  ARC Financial Services
  Corporation

  	
   

  	
  100

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Ambulatory Resource Centres of Texas, Inc.

  	
   

  	
  ARC Financial Services
  Corporation

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Ambulatory Resource Centres of Washington, Inc.

  	
   

  	
  ARC Financial Services
  Corporation

  	
   

  	
  100

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Ambulatory Resource Centres of Wilmington, Inc.

  	
   

  	
  ARC Financial Services
  Corporation

  	
   

  	
  100

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARC Development Corporation

  	
   

  	
  ARC Financial Services
  Corporation

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARC Financial Services Corporation

  	
   

  	
  Symbion Ambulatory
  Resource Centres, Inc.

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ASC of Hammond, Inc.

  	
   

  	
  ARC Financial Services
  Corporation

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ASC of New Albany, Inc.

  	
   

  	
  ARC Financial Services
  Corporation

  	
   

  	
  200

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Lubbock SurgiCenter, Inc.

  	
   

  	
  PSC Development
  Company, LLC

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MediSphere Health Partners Management of
  Tennessee, Inc.

  	
   

  	
  Symbion Ambulatory
  Resource Centres, Inc.

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MediSphere Health Partners — Oklahoma
  City, Inc.

  	
   

  	
  Symbion Ambulatory
  Resource Centres, Inc.

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Physicians Surgical Care, Inc.

  	
   

  	
  Symbion, Inc.

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Premier Ambulatory Surgery of Duncanville, Inc.

  	
   

  	
  Symbion Ambulatory
  Resource Centres, Inc.

  	
   

  	
  100

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  PSC Development Company, LLC

  	
   

  	
  Physicians Surgical
  Care, Inc.

  	
   

  	
  50,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  PSC Operating Company, LLC

  	
   

  	
  Physicians Surgical
  Care, Inc.

  	
   

  	
  1,000,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  PSC of New York, L.L.C.

  	
   

  	
  PSC Development
  Company, LLC

  	
   

  	
  Not designated

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Quahog Holding Company, LLC

  	
   

  	
  ARC Financial Services
  Corporation

  	
   

  	
  100

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SARC/Asheville, Inc.

  	
   

  	
  ARC Financial Services
  Corporation

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SARC/Circleville, Inc.

  	
   

  	
  ARC Financial Services
  Corporation

  	
   

  	
  1,000

  	
   

  	
  100%

  



 

















 


	
  Current
  Legal Entities

  Owned

  	
   

  	
  Loan Party, Qualified Restricted

  Subsidiary or Specified

  Subsidiary Record Owner

  	
   

  	
  No. of Shares

  	
   

  	
  Interest

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SARC/DeLand,
  Inc.

  	
   

  	
  ARC Financial Services Corporation

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SARC/Ft.
  Myers, Inc.

  	
   

  	
  ARC Financial Services Corporation

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SARC/FW,
  Inc.

  	
   

  	
  ARC Financial Services Corporation

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SARC/Georgia,
  Inc.

  	
   

  	
  ARC Financial Services Corporation

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SARC/Jacksonville,
  Inc.

  	
   

  	
  ARC Financial Services Corporation

  	
   

  	
  100

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SARC/Kent,
  LLC

  	
   

  	
  SymbionARC Management Services, Inc.

  	
   

  	
  Not designated

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SARC/Knoxville,
  Inc.

  	
   

  	
  ARC Financial Services Corporation

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SARC/Largo,
  Inc.

  	
   

  	
  ARC Financial Services Corporation

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SARC/Largo
  Endoscopy, Inc.

  	
   

  	
  ARC Financial Services Corporation

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SARC/Metairie,
  Inc.

  	
   

  	
  ARC Financial Services Corporation

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SARC/Providence,
  Inc. 

  	
   

  	
  ARC Financial Services Corporation

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SARC/St.
  Charles, Inc.

  	
   

  	
  ARC Financial Services Corporation

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SARC/Vincennes,
  Inc.

  	
   

  	
  ARC Financial Services Corporation

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SARC/Worcester,
  Inc.

  	
   

  	
  ARC Financial Services Corporation

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SMBI
  Havertown, LLC

  	
   

  	
  SymbionARC Management Services, Inc.

  	
   

  	
  Not designated

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SMBI
  Northstar, LLC

  	
   

  	
  SymbionARC Management Services, Inc.

  	
   

  	
  100

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SMBI
  Portsmouth, LLC

  	
   

  	
  SymbionARC Management Services, Inc.

  	
   

  	
  100

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SMBIMS
  119, LLC

  	
   

  	
  SymbionARC Management Services, Inc.

  	
   

  	
  100

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SMBIMS
  Birmingham, Inc.

  	
   

  	
  ARC Financial Services Corporation

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SMBIMS
  Durango, LLC

  	
   

  	
  SymbionARC Management Services, Inc.

  	
   

  	
  100

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SMBIMS
  Elk River, LLC

  	
   

  	
  SymbionARC Management Services, Inc.

  	
   

  	
  Not designated

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SMBIMS
  Florida I, LLC

  	
   

  	
  SymbionARC Management Services, Inc.

  	
   

  	
  100

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SMBIMS
  Greenville, LLC

  	
   

  	
  SymbionARC Management Services, Inc.

  	
   

  	
  100

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SMBIMS
  Kirkwood, Inc.

  	
   

  	
  ARC Financial Services Corporation

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SMBIMS
  Maple Grove, LLC

  	
   

  	
  SymbionARC Management Services, Inc.

  	
   

  	
  100

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SMBIMS
  Novi, LLC

  	
   

  	
  SymbionARC Management Services, Inc.

  	
   

  	
  100

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SMBIMS
  Orange City, LLC

  	
   

  	
  SymbionARC Management Services, Inc.

  	
   

  	
  100

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SMBIMS
  Steubenville, Inc.

  	
   

  	
  ARC Financial Services Corporation

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SMBIMS
  Tampa, LLC

  	
   

  	
  SymbionARC Management Services, Inc.

  	
   

  	
  100

  	
   

  	
  100%

  



 

















 


	
  Current
  Legal Entities

  Owned

  	
   

  	
  Loan Party, Qualified Restricted

  Subsidiary or Specified

  Subsidiary Record Owner

  	
   

  	
  No. of Shares

  	
   

  	
  Interest

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SMBIMS
  Temple, LLC

  	
   

  	
  SymbionARC Management Services, Inc.

  	
   

  	
  100

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SMBIMS
  Wichita, LLC

  	
   

  	
  SymbionARC Management Services, Inc.

  	
   

  	
  Not designated

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SMBISS
  Arcadia, LLC

  	
   

  	
  SymbionARC Management Services, Inc.

  	
   

  	
  Not designated

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SMBISS
  Beverly Hills, LLC

  	
   

  	
  SymbionARC Management Services, Inc.

  	
   

  	
  Not designated

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SMBISS
  Chesterfield, LLC

  	
   

  	
  SymbionARC Management Services, Inc.

  	
   

  	
  Not designated

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SMBISS
  Encino, LLC

  	
   

  	
  SymbionARC Management Services, Inc.

  	
   

  	
  Not designated

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SMBISS
  Irvine, LLC

  	
   

  	
  SymbionARC Management Services, Inc.

  	
   

  	
  Not designated

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SMBISS
  Thousand Oaks, LLC

  	
   

  	
  SymbionARC Management Services, Inc.

  	
   

  	
  Not designated

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SurgiCare
  of DeLand, Inc.

  	
   

  	
  SARC/DeLand, Inc.

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Symbion
  Ambulatory Resource Centres, Inc.

  	
   

  	
  Symbion, Inc.

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SymbionARC
  Management Services, Inc.

  	
   

  	
  ARC Financial Services Corporation

  	
   

  	
  100

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SymbionARC
  Support Services, LLC

  	
   

  	
  SymbionARC Management Services, Inc.

  	
   

  	
  Not designated

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Texarkana
  Surgery Center GP, Inc.

  	
   

  	
  PSC Operating Company, LLC

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  UniPhy
  Healthcare of Eugene/Springfield I, Inc.

  	
   

  	
  Symbion, Inc.

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  UniPhy
  Healthcare of Johnson City VI, LLC

  	
   

  	
  Symbion, Inc.

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  UniPhy
  Healthcare of Louisville, Inc.

  	
   

  	
  Symbion, Inc.

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  UniPhy
  Healthcare of Maine I, Inc.

  	
   

  	
  Symbion, Inc.

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  UniPhy
  Healthcare of Memphis I, LLC

  	
   

  	
  UniPhy Healthcare of Memphis II, Inc.

  	
   

  	
  Not designated

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  UniPhy
  Healthcare of Memphis II, Inc.

  	
   

  	
  Symbion, Inc.

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  UniPhy
  Healthcare of Memphis III, Inc.

  	
   

  	
  Symbion, Inc.

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  UniPhy
  Healthcare of Memphis IV, Inc.

  	
   

  	
  Symbion, Inc.

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  VASC,
  Inc.

  	
   

  	
  SARC/St. Charles, Inc.

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Village
  SurgiCenter, Inc.

  	
   

  	
  PSC Development Company, LLC

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  QUALIFIED
  RESTRICTED SUBSIDIARIES:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Ambulatory
  Surgery Center of Worcester, LLC

  	
   

  	
  SARC/Worcester, Inc.

  	
   

  	
  Not designated

  	
   

  	
  51%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Animas
  Surgical Hospital, LLC

  	
   

  	
  SMBIMS Durango, LLC

  	
   

  	
  129.02

  Class B

  	
   

  	
  53.983%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARC
  of Bellingham, L.P.

  	
   

  	
  Ambulatory Resource Centres of Washington, Inc.

   

  Ambulatory Resource Centres Investment Company, Inc.

  	
   

  	
   

  2 GP Units

   

  83 LP Units

  	
   

  	
   

  2% (GP)

   

  83% (LP)

  



 

















 


	
  Current
  Legal Entities

  Owned

  	
   

  	
  Loan Party, Qualified Restricted

  Subsidiary or Specified

  Subsidiary Record Owner

  	
   

  	
  No. of Shares

  	
   

  	
  Interest

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARC
  of Georgia, LLC

  	
   

  	
  ARC Development Corporation

   

  Symbion Ambulatory Resource Centres, Inc.

  	
   

  	
  2 Class A

   

  56 Class B

  	
   

  	
  2% (Class A)

   

  56% (Class B)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARC
  Kentucky, LLC

  	
   

  	
  ARC Financial Services Corporation

   

  Symbion Ambulatory Resource Centres, Inc.

  	
   

  	
  2 Units

   

  59 Units

  	
   

  	
  2%

   

  59%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARC
  Worcester Center, L.P.

  	
   

  	
  Ambulatory Resource Centers of Massachusetts, Inc.

   

  Ambulatory Resource Centres Investment Company, Inc.

  	
   

  	
   

  2 GP Units

   

  75 LP Units

   

  	
   

  	
   

  2.041% (GP)

   

  76.531% (LP)

   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bayside
  Endoscopy Center, LLC

  	
   

  	
  SARC/Providence, Inc.

  	
   

  	
  75 Units

  	
   

  	
  75%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Birmingham
  Surgery Center, LLC

  	
   

  	
  SMBIMS Birmingham, Inc.

  	
   

  	
  60 Units

  	
   

  	
  61.54%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Cardinal
  Sleep Centers of St. Charles, LLC

  	
   

  	
  Valley Sleep Centers, LLC

  	
   

  	
  100 Units

  	
   

  	
  95%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Central
  Austin Ambulatory Surgery Center, L.P.

  	
   

  	
  Ambulatory Resource Centres of Texas, Inc.

   

  Ambulatory Resource Centres Investment Company, Inc.

  	
   

  	
  2 Units

   

  39 Units

   

  	
   

  	
  2.139% (GP)

   

  41.711% (LP)

   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CMMP
  Surgical Center, L.L.C.

  	
   

  	
  PSC Operating Company, LLC

  	
   

  	
  40 Class A Units

  	
   

  	
  40%

  (Class A)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CSS
  Services, LLC

  	
   

  	
  The Center for Special Surgery, LLC

  	
   

  	
  100 Units

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Cypress
  Surgery Center, LLC

  	
   

  	
  SMBIMS Wichita, LLC

  	
   

  	
  Not designated

  	
   

  	
  53.32%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  DeLand
  Surgery Center, Ltd.

  	
   

  	
  Surgicare of DeLand, Inc.

  	
   

  	
  75.5 GP Units

   

  20.5 LP  Units

  	
   

  	
  75.5%

   

  20.5%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Dry
  Creek Imaging, LLC

  	
   

  	
  SI/Dry Creek, Inc.

  	
   

  	
  900 Class A Units

  	
   

  	
  90%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Dry
  Creek Surgery Center, LLC

  	
   

  	
  ARC Dry Creek, Inc.

  	
   

  	
  51 Units

  	
   

  	
  51%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  DSC
  Anesthesia, LLC

  	
   

  	
  DeLand Surgery Center, Ltd.

  	
   

  	
  100 Units

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  HMFW
  Surgery Center, L.P.

  	
   

  	
  SARC/FW, Inc.

   

  Ambulatory Resource Centres Investment Company, Inc.

  	
   

  	
  2 GP Units

   

  31 LP Units

   

  	
   

  	
  2.04% (GP)

   

  31.63%  (LP)

   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Jacksonville
  Beach Surgery Center, L.P.

  	
   

  	
  SARC/Jacksonville, Inc.

   

  Ambulatory Resource Centres Investment Company, Inc.

  	
   

  	
  2 GP Units

   

  78 LP Units

   

  	
   

  	
  2.02%

   

  78.79%

   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Kent,
  LLC

  	
   

  	
  SARC/Kent, LLC

  	
   

  	
  Not designated

  	
   

  	
  75%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Largo
  Endoscopy Center, L.P.

  	
   

  	
  SARC/Largo Endoscopy, Inc.

   

  Ambulatory Resource Centres Investment Company, Inc.

  	
   

  	
  2 GP Units

   

  49 LP  Units

   

  	
   

  	
  2% (GP)

   

  49.02% (LP)

   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Largo
  Surgery, LLC

  	
   

  	
  SARC/Largo, Inc.

  	
   

  	
  51 Class A Units

  	
   

  	
  51%

  



 

















 


	
  Current
  Legal Entities

  Owned

  	
   

  	
  Loan Party, Qualified Restricted

  Subsidiary or Specified

  Subsidiary Record Owner

  	
   

  	
  No. of Shares

  	
   

  	
  Interest

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  New Albany Outpatient
  Surgery, L.P.

  	
   

  	
  ASC
  of New Albany, Inc.

  	
   

  	
  60
  GP Units

   

  8
  LP Units

  	
   

  	
  60.606%
  (GP)

   

  8.081%
  (LP)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Northeast Baptist Surgery
  Center, LLC

  	
   

  	
  SARC/San
  Antonio, LLC

  	
   

  	
  225
  Units

  	
   

  	
  56.87%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  NorthStar Surgical Center,
  L.P.

  	
   

  	
  Lubbock
  SurgiCenter, Inc.

   

  PSC
  Development Company, LLC

  	
   

  	
  4
  GP Units

   

  174.9
  Class A LP Units

  	
   

  	
  1.02%
  (GP)

   

  44.54481%
  (LP)

   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  One Nineteen ASC, LLC

  	
   

  	
  SMBIMS
  119, LLC

  	
   

  	
  Not
  designated

  	
   

  	
  50%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Orlando Surgery Center II,
  Ltd.

  	
   

  	
  Ambulatory
  Resource Centres of Florida, Inc.

  	
   

  	
  Not
  designated

  	
   

  	
  65.92%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Orlando Surgery Center Real
  Estate Partnership, Ltd.

  	
   

  	
  Ambulatory
  Resource Centres of Florida, Inc.

  	
   

  	
  30
  GP Units

  	
   

  	
  30%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2000 Orange Avenue, Ltd.

  	
   

  	
  Orlando
  Surgery Center Real Estate Partnership, Ltd.

  	
   

  	
  Not
  designated

  	
   

  	
  4%
  (GP)

  1%
  (LP)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Orthopaedic Surgery Center
  of Asheville, L.P.

  	
   

  	
  SARC/Asheville, Inc.

   

  Ambulatory
  Resource Centres Investment Company, Inc.

  	
   

  	
  2
  GP Units

   

  59
  LP Units

  	
   

  	
  2%
  (GP)

   

  59%
  (LP)

   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Physicians Surgical
  Specialty Hospital, LLC

  	
   

  	
  PSC
  Operating Company, LLC

  	
   

  	
  136.2
  Class A Units

  	
   

  	
  53.7576%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Physicians Surgery Center, LLC

  	
   

  	
  SARC/Ft.
  Myers, Inc.

  	
   

  	
  Not
  designated

  	
   

  	
  50%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Pickaway Surgery Center,
  Ltd.

  	
   

  	
  SARC/Circleville, Inc.

   

  Ambulatory
  Resource Centres Investment Company, Inc.

  	
   

  	
  47
  Units

   

  6
  Units

  	
   

  	
  47%

   

  6%

   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Portsmouth, LLC

  	
   

  	
  SMBI
  Portsmouth, LLC

  	
   

  	
  Not
  designated

  	
   

  	
  75%
  Class B

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Recovery Care, L.P.

  	
   

  	
  Valley
  Ambulatory Surgery Center, L.P.

  	
   

  	
  Not
  designated

  	
   

  	
  99.9%
  (LP)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Savannah Outpatient
  Anesthesia, LLC

  	
   

  	
  Savannah
  Outpatient Foot and Ankle Surgery, LLC

  	
   

  	
  100
  Units

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Savannah Outpatient Foot and
  Ankle Surgery, LLC

  	
   

  	
  SARC/Savannah, Inc.

  	
   

  	
  Not
  designated

  	
   

  	
  80.5%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  South Shore Operating
  Company, L.L.C.

  	
   

  	
  PSC
  Development Company, LLC

   

  PSC
  of New York, LLC

  	
   

  	
  275
  Units

   

  5
  Units

  	
   

  	
  56.122%

   

  1.020%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Specialty Surgical Center,
  LLC

  	
   

  	
  SMBISS
  Beverly Hills, LLC

  	
   

  	
  Not
  designated

  	
   

  	
  55.12%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Specialty Surgical Center
  of Beverly Hills, L.P.

  	
   

  	
  SMBISS
  Beverly Hills, LLC

  	
   

  	
  Not
  designated

  	
   

  	
  0.765%
  (LP)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Specialty Surgical Center
  of Encino, LLC

  	
   

  	
  SMBISS
  Encino, LLC

  	
   

  	
  Not
  designated

  	
   

  	
  55.02%
  (Class B)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Specialty Surgical Center
  of Encino, L.P.

  	
   

  	
  SMBISS
  Encino, LLC

  	
   

  	
  Not
  designated

  	
   

  	
  1%
  (LP)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Surgery Center of
  Duncanville, L.P.

  	
   

  	
  Premier
  Ambulatory Surgery of Duncanville, Inc.

  	
   

  	
  77
  Units

  	
   

  	
  38.5%
  (GP)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Surgery Center of Hammond,
  LLC

  	
   

  	
  ASC
  of Hammond, Inc.

  	
   

  	
  76.5
  Units

  	
   

  	
  76.5%

  



 

















 


	
  Current
  Legal Entities

  Owned

  	
   

  	
  Loan Party, Qualified Restricted

  Subsidiary or Specified

  Subsidiary Record Owner

  	
   

  	
  No. of Shares

  	
   

  	
  Interest

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Surgery
  Center Partners, LLC

  	
   

  	
  SMBIMS Kirkwood, Inc.

  	
   

  	
  534 Units

  	
   

  	
  52.87%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The
  Center for Special Surgery, LLC

  	
   

  	
  SMBIMS Greenville, LLC

  	
   

  	
  70 Class B

  	
   

  	
  70%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The
  Hand Surgery Center of Louisiana, L.P.

  	
   

  	
  SARC/Metairie, Inc.

   

  Ambulatory Resource Centres Investment Company, Inc.

  	
   

  	
  2 GP Units

   

  28 LP Units

   

  	
   

  	
  2% (GP)

   

  28% (LP)

   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The
  Surgery Center, LLC

  	
   

  	
  SARC/Georgia, Inc.

  	
   

  	
  64.92 Units

  	
   

  	
  64.92%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The
  Surgery Center of Ocala, LLC

  	
   

  	
  Ambulatory Resource Centres Investment Company, Inc.

  	
   

  	
  Not designated

  	
   

  	
  51%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Texarkana
  Surgery Center, L.P.

  	
   

  	
  Texarkana Surgery Center GP, Inc.

  	
   

  	
  66.372 GP Units

  	
   

  	
  65.62% (GP)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Valley
  Ambulatory Surgery Center, L.P.

  	
   

  	
  VASC, Inc.

  	
   

  	
  Not designated

  	
   

  	
  40% (GP)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Valley
  Medical Inn, L.P.

  	
   

  	
  Valley Ambulatory Surgery Center, L.P.

  	
   

  	
  Not designated

  	
   

  	
  99.9% (LP)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Valley
  Sleep Center, LLC

  	
   

  	
  Valley Ambulatory Surgery Center, L.P.

  	
   

  	
  Not designated

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Valley
  Surgical Center, Ltd.

  	
   

  	
  SMBIMS Steubenville, Inc.

  	
   

  	
  Not designated

  	
   

  	
  55.93%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Village
  SurgiCenter, Limited Partnership

  	
   

  	
  PSC Operating Company, LLC

   

  Village SurgiCenter, Inc.

  	
   

  	
  Not designated

  	
   

  	
  72.0154%

   

  1%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Vincennes Surgery Center, L.P.

  	
   

  	
  SARC/Vincennes, Inc.

  	
   

  	
  Not designated

  	
   

  	
  51.52%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Wilmington
  Surgery Center, L.P.

  	
   

  	
  Ambulatory Resource Centres of Wilmington, Inc.

   

  Ambulatory Resource Centres Investment Company, Inc.

  	
   

  	
  Not designated

  	
   

  	
  2% (GP)

   

  85.25% (LP)

   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SPECIFIED
  SUBSIDIARIES

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARC
  Dry Creek, Inc.

  	
   

  	
  ARC Financial Services Corporation

  	
   

  	
  100

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Houston
  PSC – I, Inc.

  	
   

  	
  PSC Operating Company, LLC

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Northstar
  Hospital, LLC

  	
   

  	
  SMBI Northstar, LLC

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  NSC
  Edmond, Inc.

  	
   

  	
  Symbion Ambulatory Resource Centres, Inc.

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SARC/Columbia,
  Inc.

  	
   

  	
  ARC Financial Services Corporation

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SARC/San
  Antonio, LLC

  	
   

  	
  ARC Financial Services Corporation

  	
   

  	
  Not designated

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SARC/Savannah,
  Inc.

  	
   

  	
  ARC Financial Services Corporation

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SARC/West
  Houston, LLC

  	
   

  	
  ARC Financial Services Corporation

  	
   

  	
  Not designated

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SI/Dry
  Creek, Inc.

  	
   

  	
  Symbion Imaging, Inc.

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SMBIMS
  Brooksville, Inc.

  	
   

  	
  ARC Financial Services Corporation

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SMBIMS
  Tuscaloosa, Inc.

  	
   

  	
  ARC Financial Services Corporation

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SMBISS
  Roswell, LLC

  	
   

  	
  SymbionARC Management Services, Inc.

  	
   

  	
  Not designated

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SMBISS
  Sandy Springs, LLC

  	
   

  	
  SymbionARC Management Services, Inc.

  	
   

  	
  Not designated

  	
   

  	
  100%

  



 

















 


	
  Current
  Legal Entities

  Owned

  	
   

  	
  Loan Party, Qualified Restricted

  Subsidiary or Specified

  Subsidiary Record Owner

  	
   

  	
  No. of Shares

  	
   

  	
  Interest

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Symbion
  Imaging, Inc.

  	
   

  	
  Symbion, Inc.

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TOSF,
  LLC

  	
   

  	
  SMBIMS Tampa, LLC

  	
   

  	
  100 Units

  	
   

  	
  100%

  



 


IMMATERIAL SUBSIDIARIES


 


None.


 
















 


SCHEDULE 5.01


 


WEBSITE ADDRESS


 


http://www.symbion.com/


 

















 


SCHEDULE 6.01


 


EXISTING INDEBTEDNESS


 


1.             Capital Lease Agreement,
dated 10/1/2006, between LaSalle National Leasing Corporation (Lessor) and
Symbion, Inc. (Lessee) on behalf of Orlando Surgery Center II, Ltd.  (Balance as of June 30, 2007: $47,797).


 


2.             Capital Lease Agreement,
dated 10/1/2006, between LaSalle National Leasing Corporation (Lessor) and
Symbion, Inc. (Lessee) on behalf of Village SurgiCenter, Limited
Partnership.  (Balance as of June 30,
2007: $179,650).


 


3.             Capital Lease Agreement,
dated 10/1/2006, between LaSalle National Leasing Corporation (Lessor) and
Symbion, Inc. (Lessee) on behalf of Largo Endoscopy Center, L.P.  (Balance as of June 30, 2007: $141,147).


 


4.             Capital Lease Agreement,
dated 10/1/2006, between LaSalle National Leasing Corporation (Lessor) and
Symbion, Inc. (Lessee) on behalf of Bayside Endoscopy Center, LLC.  (Balance as of June 30, 2007: $18,335).


 


5.             Capital Lease Agreement,
dated 6/1/2007, between LaSalle National Leasing Corporation (Lessor) and
Symbion, Inc. (Lessee) on behalf of Bayside Endoscopy Center, LLC.  (Balance as of June 30, 2007:  $109,603).


 


6.             Capital Lease Agreement,
dated 6/1/2007, between LaSalle National Leasing Corporation (Lessor) and
Symbion, Inc. (Lessee) on behalf of Pickaway Surgical Center, Ltd.
(Balance as of June 30, 2007: 
$169,204).


 


7.             Capital Lease Agreement,
dated 6/1/2007, between LaSalle National Leasing Corporation (Lessor) and
Symbion, Inc. (Lessee) on behalf of Orlando Surgery Center II, Ltd..  (Balance as of June 30, 2007: $55,468).


 


8.             Capital Lease Agreement,
dated 6/1/2007, between LaSalle National Leasing Corporation (Lessor) and
Symbion, Inc. (Lessee) on behalf of Largo Endoscopy Center, L.P.  (Balance as of June 30, 2007:  $60,051).


 


9.             Capital Lease Agreement,
dated 7/1/2007, between LaSalle National Leasing Corporation (Lessor) and
Symbion, Inc. (Lessee) on behalf of The Surgery Center, LLC  (Balance as of June 30, 2007:  $53,834).


 


10.           Capital Lease Agreement,
dated 8/1/2007, between LaSalle National Leasing Corporation (Lessor) and
Symbion, Inc. (Lessee) on behalf of Valley Surgical Center, Ltd. (Balance
as of June 30, 2007:  $153,105).


 


11.           Loan and Security Agreement,
dated 12/8/2004, between Fifth Third Bank (Lender) and Symbion Inc. (Borrower)
on behalf of ARC Worcester Center, L.P. 
(Balance as of June 30, 2007: 
$91,721).


 


12.           Loan and Security Agreement,
dated 12/23/2004, between Fifth Third Bank (Lender) and Symbion, Inc.
(Borrower) on behalf of The Surgery Center Of Ocala, LLC.  (Balance as of June 30, 2007: $84,442).


 

















 


13.           Loan and Security Agreement,
dated 4/22/2005, between Fifth Third Bank (Lender) and  Symbion, Inc. (Borrower) on behalf of
Village SurgiCenter, Limited Partnership (Balance as of June 30, 2007:  $75,922).


 


14.           Capital Lease Agreement,
dated 3/17/2004, between Fifth Third Leasing Company (Lessor) and Symbion, Inc.
(Lessee) on behalf of Uniphy Healthcare of Memphis III, Inc.  (Balance as of June 30, 2007:  $42,174).


 


15.           Loan and Security Agreement,
dated 8/1/2005, between Fifth Third Bank (Lender) and Symbion, Inc.
(Borrower) on behalf of South Shore Operating Company, L.L.C.  (Balance as of June 30, 2007:  $178,975).


 


16.           Loan and Security Agreement,
dated 8/1/2005, between Fifth Third Bank (Lender) and Symbion, Inc.
(Borrower) on behalf of Dry Creek Surgery Center, LLC  (Balance as of June 30, 2007:  $32,389).


 


17.           Loan and Security Agreement,
dated 9/10/2005, between Fifth Third Bank (Lender) and Symbion, Inc.
(Borrower) on behalf of ARC Worcester Center, L.P.  (Amount: $30,114).


 


18.           Loan and Security Agreement,
dated 9/10/2005, between Fifth Third Bank (Lender) and Symbion, Inc.
(Borrower) on behalf of Valley Surgical Center, Ltd. (Balance as of June 30,
2007:  $119,796).


 


19.           Loan and Security Agreement,
dated 12/2/2005, between Fifth Third Bank (Lender) and Symbion Inc. (Borrower)
on behalf of ARC Worcester Center, L.P. 
(Balance as of June 30, 2007: 
$106,682).


 


20.           Loan and Security Agreement
dated 12/22/2005, between Fifth Third Bank (Lender) and Symbion, Inc.
(Borrower) on behalf of Largo Surgery, LLC. 
(Balance as of June 30, 2007: $152,828).


 


21.           Loan and Security Agreement,
dated 2/14/2006, between Fifth Third Bank (Lender) and Symbion, Inc.
(Borrower) on behalf of ARC of Bellingham, L.P. (Balance as of June 30,
2007: $17,924).


 


22.           Loan and Security Agreement,
dated 2/14/2006, between Fifth Third Bank (Lender) and Symbion, Inc.
(Borrower) on behalf of Village SurgiCenter, Limited Partnership.  (Balance as of June 30, 2007:  $60,928).


 


23.           Loan and Security Agreement,
dated October 29, 2004, between Fifth Third Bank (Lender) and Symbion, Inc.
(Borrower) on behalf of Bayside Endoscopy Center, LLC  (Balance as of June 30, 2007: $71,745).


 


24.           Capital Lease Agreement,
dated April 29, 2004, between Ameritech Credit Corporation (Lessor) and
Specialty Surgical Center, LLC (Lessee). 
(Balance as of June 30, 2007: $39,415).


 


25.           Capital Lease Agreement,
dated September 15, 2006, between Olympus America Inc. (Lessor) and
Specialty Surgical Center of Beverly Hills, L.P. (Lessee).  (Balance as of June 30, 2007: $375,575).


 

















 


26.           Capital Lease Agreement,
dated December 4, 2006, between Olympus America Inc. (Lessor) and
Specialty Surgical Center of Encino, LLC (Lessee).  (Balance as of June 30, 2007: $54,291).


 


27.           Capital Lease Agreement,
dated February 9, 2004, between Alcon Laboratories Inc. (Lessor) and
Specialty Surgical Center of Encino, LLC (Lessee).  (Balance as of June 30, 2007: $32,979).


 


28.           Capital Lease Agreement,
dated May 28, 2003, between Siemens Medical Solutions USA, Inc.
(Lessor) and Animas Surgical Hospital, LLC (Lessee).  (Balance as of June 30, 2007:
$1,512,230).


 


29.           Capital Lease Agreement,
dated December 18, 2002, between GE Healthcare Financial Services (Lessor)
and The Surgery Center, LLC (Lessee). 
(Balance as of June 30, 2007: 
$11,670).


 


30.           Note Payable, dated January 4,
2002, between US Bank Portfolio Services, formerly DVI Financial Services, Inc.
(Lender), and Deland Surgery Center, Ltd. (Borrower).  (Balance as of June 30, 2007: $16,377).


 


31.           Note Payable, dated September 8,
2006, between Alcon Laboratories Inc. (Lender) and The Surgery Center, LLC
(Borrower).  (Balance as of June 30,
2007: $46,790).


 


32.           Capital Lease Agreement,
dated February 7, 2007, between Olympus America Inc. (Lessor) and Bayside
Endoscopy Center, LLC (Lessee).  (Balance
as of June 30, 2007:  $123,205).


 


33.           Capital Lease Agreement,
dated December 12, 2005, between Stryker Capital (Lessor) and Village
SurgiCenter, Inc. (Lessee). 
(Balance as of June 30, 2007: 
$123,066).


 


34.           Loan and Security Agreement,
dated June 15, 2004, between Bank of Colorado (Lender) and Animas Surgical
Hospital, LLC (Borrower)  (Balance as of June 30,
2007:  $1,267,841).


 


35.           Loan and Security Agreement,
dated July 22, 2006, between SunTrust Bank (Lender) and Cape Coral
Ambulatory Surgery Center, LLC (Borrower) 
(Balance as of June 30, 2007: 
$1,731,482).


 


36.           Loan and Security Agreement,
dated April 28, 2003, between Synergy Bank (Lender) and Physicians
Surgical Specialty Hospital, LLC (Borrower) 
(Balance as of June 30, 2007: 
$237,050).


 


37.           Loan and Security Agreement,
dated June 16, 2005, between Synergy Bank (Lender) and Physicians Surgical
Specialty Hospital, LLC (Borrower) 
(Balance as of June 30, 2007: 
$3,625,670).


 


38.           Loan and Security Agreement,
dated January 23, 2007, between Synergy Bank (Lender) and Physicians
Surgical Specialty Hospital, LLC (Borrower) 
(Balance as of June 30, 2007: 
$2,126,187).


 

















 


39.           Capital Lease Agreement,
dated May 27, 2005, between General Electric Capital Corporation (Lessor)
and Cape Coral Ambulatory Surgery Center, LLC (Lessee).  (Balance as of June 30, 2007:  $122,820).


 
















 


SCHEDULE 6.02


 


EXISTING LIENS


 


Debtor:  Symbion, Inc.


 


	
  Jurisdiction

  	
   

  	
  Result

  	
   

  	
  Date of Filing

  	
   

  	
  Filing Number

  	
   

  	
  Secured Party

  	
   

  	
  Collateral

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  DE SOS

  	
   

  	
  UCC-1

  	
   

  	
  04/06/04

  	
   

  	
  40959405

  	
   

  	
  The Fifth Third Leasing Company

  	
   

  	
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  

  *amendment

  	
   

  	
  06/08/04

  

  *05/01/07

  	
   

  	
  41575754

  

  *71630127

  	
   

  	
  The Fifth Third Leasing Company and Fifth Third Bank, N.A.

  	
   

  	
  equipment
  

  

  *changed address of secured party

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  

  *amendment

  	
   

  	
  12/02/04

  

  *05/01/07

  	
   

  	
  43380302

  

  *71630044

  	
   

  	
  The Fifth Third Leasing Company and Fifth Third Bank, N.A.

  	
   

  	
  equipment

  

  *changed address of secured party

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  

  *amendment

  	
   

  	
  01/04/05

  

  *05/01/07

  	
   

  	
  50020660

  

  *71630193

  	
   

  	
  The Fifth Third Leasing Company and Fifth Third Bank, N.A.

  	
   

  	
  equipment

  

  *changed address of secured party

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  

  *amendment

  	
   

  	
  01/04/05

  

  *05/01/07

  	
   

  	
  50021213

  

  *71630184

  	
   

  	
  The Fifth Third Leasing Company and Fifth Third Bank, N.A.

  	
   

  	
  equipment

  

  *changed address of secured party

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  

  *termination

  	
   

  	
  04/04/05

  

  *04/04/05

  	
   

  	
  51017285

  

  *51017640

  	
   

  	
  The Fifth Third Leasing Company and Fifth Third Bank, N.A.

  	
   

  	
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  

  *amendment

  *amendment

  	
   

  	
  04/04/05

  

  *09/15/05

  *09/16/05

  	
   

  	
  51017459

  

  *52854967

  *52952662

  	
   

  	
  Fifth Third Bank (Tennessee)

  	
   

  	
  equipment

  

  *restated collateral description

  *restated collateral description

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  04/04/05

  	
   

  	
  51018051

  	
   

  	
  Fifth Third Bank (Tennessee)

  	
   

  	
  medical
  and surgical equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  08/05/05

  	
   

  	
  52430354

  	
   

  	
  Fifth Third Bank (Tennessee)

  	
   

  	
  medical
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  08/05/05

  	
   

  	
  52430370

  	
   

  	
  Fifth Third Bank (Tennessee)

  	
   

  	
  medical
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  12/09/05

  	
   

  	
  53815702

  	
   

  	
  Fifth Third Bank, N.A.

  	
   

  	
  medical
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  12/30/05

  	
   

  	
  54062411

  	
   

  	
  Fifth Third Bank, N.A.

  	
   

  	
  medical
  imaging equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  02/27/06

  	
   

  	
  60670026

  	
   

  	
  Fifth Third Bank, N.A.

  	
   

  	
  medical
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  02/27/06

  	
   

  	
  60670042

  	
   

  	
  Fifth Third Bank, N.A.

  	
   

  	
  medical
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  02/27/06

  	
   

  	
  60670133

  	
   

  	
  Fifth Third Bank, N.A.

  	
   

  	
  medical
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  08/18/06

  	
   

  	
  62886307

  	
   

  	
  LaSalle National Leasing Corporation

  	
   

  	
  equipment

  



 

















 


	
   

  	
   

  	
  UCC-1

  	
   

  	
  08/18/06

  	
   

  	
  62886372

  	
   

  	
  LaSalle National Leasing Corporation

  	
   

  	
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  08/18/06

  	
   

  	
  62886380

  	
   

  	
  LaSalle National Leasing Corporation

  	
   

  	
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  10/06/06

  	
   

  	
  63466547

  	
   

  	
  LaSalle National Leasing Corporation

  	
   

  	
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  10/06/06

  	
   

  	
  63466604

  	
   

  	
  LaSalle National Leasing Corporation

  	
   

  	
  medical
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  05/04/07

  	
   

  	
  71682771

  	
   

  	
  LaSalle National Leasing Corporation

  	
   

  	
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  05/04/07

  	
   

  	
  71682789

  	
   

  	
  LaSalle National Leasing Corporation

  	
   

  	
  surgical
  center equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  05/04/07

  	
   

  	
  71682797

  	
   

  	
  LaSalle National Leasing Corporation

  	
   

  	
  surgical
  center equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  05/04/07

  	
   

  	
  71682805

  	
   

  	
  LaSalle National Leasing Corporation

  	
   

  	
  surgical
  center equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  06/20/07

  	
   

  	
  72330420

  	
   

  	
  LaSalle National Leasing Corporation

  	
   

  	
  surgical
  center equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TN SOS

  	
   

  	
  UCC-1

  	
   

  	
  09/20/02

  	
   

  	
  302054062

  	
   

  	
  US Bank, N.A. and DVI Financial Services, Inc.

  	
   

  	
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  09/20/02

  	
   

  	
  302054063

  	
   

  	
  US Bank, N.A. and DVI Financial Services, Inc.

  	
   

  	
  equipment

  



 


Debtor: 
Ambulatory Surgery Center of Worcester, LLC


 


	
  Jurisdiction

  	
   

  	
  Result

  	
   

  	
  Date of Filing

  	
   

  	
  Filing Number

  	
   

  	
  Secured Party

  	
   

  	
  Collateral

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  DE SOS

  	
   

  	
  UCC-1

  

  *amendment

  	
   

  	
  03/21/07

  

  *04/23/07

  	
   

  	
  71137628

  

  *71578284

  	
   

  	
  Meridian Leasing Corporation

  	
   

  	
  equipment

  

  *added additional equipment

  



 


Debtor:  Animas
Surgical Hospital, LLC


 


	
  Jurisdiction

  	
   

  	
  Result

  	
   

  	
  Date of Filing

  	
   

  	
  Filing Number

  	
   

  	
  Secured Party

  	
   

  	
  Collateral

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  DE SOS

  	
   

  	
  UCC-1

  	
   

  	
  05/22/07

  	
   

  	
  71924587

  	
   

  	
  Dade Behring, Inc.

  	
   

  	
  equipment

  



 

















 


Debtor:  ARC of
Bellingham, L.P.


 


	
  Jurisdiction

  	
   

  	
  Result

  	
   

  	
  Date of Filing

  	
   

  	
  Filing Number

  	
   

  	
  Secured Party

  	
   

  	
  Collateral

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TN SOS

  	
   

  	
  UCC-1

  	
   

  	
  03/29/06

  	
   

  	
  206017082

  	
   

  	
  Alcon
  Laboratories, Inc.

  	
   

  	
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  09/06/06

  	
   

  	
  206055538

  	
   

  	
  Stryker
  Capital

  	
   

  	
  equipment

  



 


Debtor:  ARC
Worcester Center, L.P.


 


	
  Jurisdiction

  	
   

  	
  Result

  	
   

  	
  Date of Filing

  	
   

  	
  Filing Number

  	
   

  	
  Secured Party

  	
   

  	
  Collateral

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TN SOS

  	
   

  	
  UCC-1

  	
   

  	
  07/29/03

  	
   

  	
  103033603

  	
   

  	
  American Express Business Finance Corp.

  	
   

  	
  equipment

  



 


Debtor:  Bayside
Endoscopy Center, LLC


 


	
  Jurisdiction

  	
   

  	
  Result

  	
   

  	
  Date of Filing

  	
   

  	
  Filing Number

  	
   

  	
  Secured Party

  	
   

  	
  Collateral

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  RI SOS

  	
   

  	
  UCC-1

  	
   

  	
  11/27/02

  	
   

  	
  015633

  	
   

  	
  Olympus
  America, Inc.

  	
   

  	
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  02/06/07

  	
   

  	
  200704603970

  	
   

  	
  Olympus
  America, Inc.

  	
   

  	
  equipment

  



 


Debtor:  DeLand
Surgery Center, Ltd.


 


	
  Jurisdiction

  	
   

  	
  Result

  	
   

  	
  Date of Filing

  	
   

  	
  Filing Number

  	
   

  	
  Secured Party

  	
   

  	
  Collateral

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FL SOS

  	
   

  	
  UCC-1

  

  *continuation

  	
   

  	
  02/27/02

  

  *10/02/06

  	
   

  	
  200200477089

  

  *200603788341

  	
   

  	
  US
  Bank Trust, N.A.

  	
   

  	
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  10/22/02

  	
   

  	
  200202463581

  	
   

  	
  US
  Bancorp

  	
   

  	
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  

  *continuation

  	
   

  	
  02/27/02

  

  *10/02/06

  	
   

  	
  200200477070

  

  *20060378835X

  	
   

  	
  US
  Bank Trust, N.A.

  	
   

  	
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  10/28/02

  	
   

  	
  20020249892X

  	
   

  	
  US
  Bancorp

  	
   

  	
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  11/18/03

  	
   

  	
  200305485200

  	
   

  	
  Bank
  of America, N.A.

  	
   

  	
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  04/04/06

  	
   

  	
  200602288019

  	
   

  	
  US
  Bancorp

  	
   

  	
  equipment
  lease

  



 

















 


Debtor:  Dry Creek
Surgery Center, LLC


 


	
  Jurisdiction

  	
   

  	
  Result

  	
   

  	
  Date of Filing

  	
   

  	
  Filing Number

  	
   

  	
  Secured Party

  	
   

  	
  Collateral

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CO SOS

  	
   

  	
  UCC-1

  	
   

  	
  01/31/03

  	
   

  	
  20032011449

  	
   

  	
  Baxter
  Healthcare Corp

  	
   

  	
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  02/04/03

  	
   

  	
  20032012921

  	
   

  	
  Baxter
  Healthcare Corp

  	
   

  	
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  *assignment

  	
   

  	
  09/15/04

  *09/13/05

  	
   

  	
  20042101845

  *20052095373

  	
   

  	
  Sound
  Surgical Technologies, LLC

  *assigned to US Bankcorp

  	
   

  	
  equipment

  



 


Debtor:  Largo
Surgery, LLC


 


	
  Jurisdiction

  	
   

  	
  Result

  	
   

  	
  Date of Filing

  	
   

  	
  Filing Number

  	
   

  	
  Secured Party

  	
   

  	
  Collateral

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FL SOS

  	
   

  	
  UCC-1

  

  *amendment

  *amendment

  *continuation

  	
   

  	
  03/30/01

  

  *07/08/02

  *07/11/02

  *03/31/06

  	
   

  	
  200100070128 

  

  *200201611579 *200201635613 *200602253991

  	
   

  	
  Olympus
  America, Inc.

  	
   

  	
  equipment

  

  *added equipment to collateral description 

  *added equipment to collateral description

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  

  *amendment

  	
   

  	
  11/01/05

  

  *11/30/05

  	
   

  	
  200501060497

  

  *200501282708

  	
   

  	
  ARC
  Financial Services Corporation

  	
   

  	
  equipment
  referenced (no exhibit attached)

  

  *added exhibit with equipment description

  



 


Debtor:  New
Albany Outpatient Surgery, L.P.


 


	
  Jurisdiction

  	
   

  	
  Result

  	
   

  	
  Date of Filing

  	
   

  	
  Filing Number

  	
   

  	
  Secured Party

  	
   

  	
  Collateral

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  DE SOS

  	
   

  	
  UCC-1

  	
   

  	
  12/04/02

  	
   

  	
  23180639

  	
   

  	
  Preferred Capital, Inc.

  	
   

  	
  equipment

  



 
















 


Debtor: 
Northstar Surgical Center, L.P.


 


	
  Jurisdiction

  	
   

  	
  Result

  	
   

  	
  Date of Filing

  	
   

  	
  Filing Number

  	
   

  	
  Secured Party

  	
   

  	
  Collateral

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TX SOS

  	
   

  	
  UCC-1

  	
   

  	
  03/21/03

  	
   

  	
  03-0021502245

  	
   

  	
  Baxter Healthcare Corporation

  	
   

  	
  equipment
  lease

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

   

  *correction

  	
   

  	
  04/11/03 

   

  *04/16/04

  	
   

  	
  03-0024008633

   

  *04-00643182

  	
   

  	
  Olympus America, Inc.

  	
   

  	
  equipment
  

   

  *Filing
  Officer Statement

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  05/27/04

  	
   

  	
  04-0069469856

  	
   

  	
  Stryker Capital

  	
   

  	
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  10/05/04

  	
   

  	
  04-0084098093

  	
   

  	
  Olympus America, Inc.

  	
   

  	
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  04/11/05

  	
   

  	
  05-0011114093

  	
   

  	
  Olympus America, Inc.

  	
   

  	
  equipment

  



 


Debtor:  Orlando
Surgery Center II, Ltd.


 


	
  Jurisdiction

  	
   

  	
  Result

  	
   

  	
  Date of Filing

  	
   

  	
  Filing Number

  	
   

  	
  Secured Party

  	
   

  	
  Collateral

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FL SOS

  	
   

  	
  UCC-1 

   

  *amendment *continuation

  	
   

  	
  02/15/99 

   

  *01/27/04 *01/27/04

  	
   

  	
  990000035000 

   

  *200406010577 *200406010593

  	
   

  	
  Finova
  Capital Corp

  	
   

  	
  equipment

   

  *changed
  mailing address of secured party

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

   

  *amendment *continuation

  	
   

  	
  06/07/99 

   

  *01/27/04

  *01/27/04

  	
   

  	
  990000129087 

   

  *200406010569

  *200406010585

  	
   

  	
  Finova
  Capital Corp

  	
   

  	
  equipment

   

  *changed
  mailing address of secured party

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  10/12/06

  	
   

  	
  200603882968

  	
   

  	
  US
  Bancorp

  	
   

  	
  equipment
  lease

  



 


Debtor: 
Physicians Surgical Specialty Hospital, LLC


 


	
  Jurisdiction

  	
   

  	
  Result

  	
   

  	
  Date of Filing

  	
   

  	
  Filing Number

  	
   

  	
  Secured Party

  	
   

  	
  Collateral

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LA Central Filing Index

  	
   

  	
  UCC-1

  	
   

  	
  03/11/03

  	
   

  	
  09-1019428

  	
   

  	
  Baxter Healthcare Corporation

  	
   

  	
  equipment
  (filing made in Caddo Parish, LA)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  03/11/03

  	
   

  	
  09-1019430

  	
   

  	
  Baxter Healthcare Corporation

  	
   

  	
  equipment
  (filing made in Caddo Parish, LA)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  05/12/03

  	
   

  	
  29-936493

  	
   

  	
  Synergy Bank

  	
   

  	
  equipment
  (filing made in Lafourche Parish, LA)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  06/05/03

  	
   

  	
  29-938087

  	
   

  	
  Synergy Bank

  	
   

  	
  equipment
  (filing made in Lafourche Parish, LA)

  



 

















 


Debtor: 
Specialty Surgical Center, LLC


 


	
  Jurisdiction

  	
   

  	
  Result

  	
   

  	
  Date of Filing

  	
   

  	
  Filing Number

  	
   

  	
  Secured Party

  	
   

  	
  Collateral

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CA SOS

  	
   

  	
  UCC-1

   

  *continuation

  	
   

  	
  11/20/98

   

  *11/19/03

  	
   

  	
  9832760679

   

  *03325C0205

  	
   

  	
  Bankers
  Trust Co.

  	
   

  	
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

   

  *continuation

  	
   

  	
  11/25/98

   

  *11/20/03

  	
   

  	
  9833460120

   

  *03328C0646

  	
   

  	
  Heritage
  Financial Services

  	
   

  	
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  07/15/02

  	
   

  	
  0219760991

  	
   

  	
  US
  Bancorp

  	
   

  	
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  09/27/02

  	
   

  	
  0227360533

  	
   

  	
  Richard
  Wolf Medical Instruments Corp.

  	
   

  	
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  01/02/04

  	
   

  	
  0400860576

  	
   

  	
  Ameritech
  Credit Corporation

  	
   

  	
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  01/02/04

  	
   

  	
  0400860578

  	
   

  	
  Ameritech
  Credit Corporation

  	
   

  	
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  01/02/04

  	
   

  	
  0400860585

  	
   

  	
  Ameritech
  Credit Corp

  	
   

  	
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

   

  *amendment

  *amendment

  *amendment

  	
   

  	
  03/29/04

   

  *10/06/04

  *11/20/04

  *11/20/04

  	
   

  	
  0409860590

   

  *0470050184

  *0470049977

  *0470050278

  	
   

  	
  Alcon
  Laboratories, Inc.

  	
   

  	
  equipment

   

  *added
  equipment

  *filing
  number generated incorrectly

  *filing
  number generated incorrectly

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  05/24/04

  	
   

  	
  0415660326

  	
   

  	
  Ameritech
  Credit Corporation

  	
   

  	
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  01/20/06

  	
   

  	
  067056213393

  	
   

  	
  ARC
  Financial Services Corp

  	
   

  	
  all
  assets of Debtor

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  01/16/07

  	
   

  	
  077089782513

  	
   

  	
  Alcon
  Laboratories, Inc.

  	
   

  	
  equipment

  



 


Debtor: 
Specialty Surgical Center of Encino, LLC


 


	
  Jurisdiction

  	
   

  	
  Result

  	
   

  	
  Date of Filing

  	
   

  	
  Filing Number

  	
   

  	
  Secured Party

  	
   

  	
  Collateral

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CA SOS

  	
   

  	
  UCC-1

  	
   

  	
  07/15/02

  	
   

  	
  0219760983

  	
   

  	
  US
  Bancorp

  	
   

  	
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  09/27/02

  	
   

  	
  02287360521

  	
   

  	
  Richard
  Wolf Medical Instruments Corp.

  	
   

  	
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

   

  *amendment

  	
   

  	
  12/08/06

   

  *12/13/06

  	
   

  	
  067094739469

   

  *0670952805

  	
   

  	
  Olympus
  America, Inc.

  	
   

  	
  equipment

   

  *added
  additional equipment

  



 

















 


Debtor: 
Specialty Surgical Center of Encino, L.P.


 


	
  Jurisdiction

  	
   

  	
  Result

  	
   

  	
  Date of Filing

  	
   

  	
  Filing Number

  	
   

  	
  Secured Party

  	
   

  	
  Collateral

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

   

  *amendment

  *amendment

  *continuation

  	
   

  	
  11/02/01

   

  *02/18/04

  *02/19/04

  *06/28/06

  	
   

  	
  0131060022

   

  *04055C0570

  *04056C0188

  *0670756801

  	
   

  	
  Alcon
  Laboratories, Inc.

  	
   

  	
  equipment
  

   

  *added
  additional equipment

  *changed address of Debtor

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  07/15/02

  	
   

  	
  0219760983

  	
   

  	
  US
  Bancorp

  	
   

  	
  equipment

  



 


Debtor:  Surgery
Center of Duncanville, L.P.


 


	
  Jurisdiction

  	
   

  	
  Result

  	
   

  	
  Date of Filing

  	
   

  	
  Filing Number

  	
   

  	
  Secured Party

  	
   

  	
  Collateral

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TX SOS

  	
   

  	
  UCC-1

  	
   

  	
  08/12/02

  	
   

  	
  02-0040402911

  	
   

  	
  FirstBank

  	
   

  	
  equipment
  lease

  



 


Debtor:  Symbion
Ambulatory Resource Centres, Inc.


 


	
  Jurisdiction

  	
   

  	
  Result

  	
   

  	
  Date of Filing

  	
   

  	
  Filing Number

  	
   

  	
  Secured Party

  	
   

  	
  Collateral

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TN SOS

  	
   

  	
  UCC-1

   

  *assignment

  	
   

  	
  04/05/07

   

  *06/06/07

  	
   

  	
  207057714

   

  *107028822

  	
   

  	
  Smith & Nephew Capital

   

  *assigned to First Security Bank

  	
   

  	
  equipment

  



 


Debtor:  The
Surgery Center, LLC


 


	
  Jurisdiction

  	
   

  	
  Result

  	
   

  	
  Date of Filing

  	
   

  	
  Filing Number

  	
   

  	
  Secured Party

  	
   

  	
  Collateral

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GA Cooperative Authority

  	
   

  	
  UCC-1

  	
   

  	
  10-31-02

  	
   

  	
  106-2002-002363

  	
   

  	
  GE Capital Corporation

  	
   

  	
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1 

   

  *amendment

  	
   

  	
  04/27/05 

   

  *07/13/05

  	
   

  	
  007-2005-006296 

   

  *007-2005-010494

  	
   

  	
  American Express Business Finance Corp

  	
   

  	
  equipment
  

   

  *changed
  name of Secured Party to Key Equipment Finance, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  07/10/06

  	
   

  	
  106-2006-001561

  	
   

  	
  Smith & Nephew Capital

  	
   

  	
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  10/05/06

  	
   

  	
  007-2006-018184

  	
   

  	
  Alcon Laboratories, Inc.

  	
   

  	
  equipment

  



 

















 


Debtor:  The
Surgery Center of Ocala, LLC


 


	
  Jurisdiction

  	
   

  	
  Result

  	
   

  	
  Date of Filing

  	
   

  	
  Filing Number

  	
   

  	
  Secured Party

  	
   

  	
  Collateral

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TN SOS

  	
   

  	
  UCC-1

  	
   

  	
  01/15/02

  	
   

  	
  202003017

  	
   

  	
  Stryker Capital

  	
   

  	
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  04/03/02

  	
   

  	
  302017643

  	
   

  	
  US Bank Trust, N.A.

  	
   

  	
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  04/03/02

  	
   

  	
  302017644

  	
   

  	
  US Bank Trust, N.A.

  	
   

  	
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  02/19/03

  	
   

  	
  203009034

  	
   

  	
  Baxter Healthcare Corporation

  	
   

  	
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  10/20/03

  	
   

  	
  203057676

  	
   

  	
  General Electric Capital Corporation

  	
   

  	
  equipment

  



 


Debtor:  Valley
Ambulatory Surgery Center, L.P.


 


	
  Jurisdiction

  	
   

  	
  Result

  	
   

  	
  Date of Filing

  	
   

  	
  Filing Number

  	
   

  	
  Secured Party

  	
   

  	
  Collateral

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  IL SOS

  	
   

  	
  UCC-1

  	
   

  	
  03/21/07

  	
   

  	
  011912338

  	
   

  	
  Marlin Leasing Corp.

  	
   

  	
  equipment

  



 


Debtor:  Valley
Medical Inn, L.P.


 


	
  Jurisdiction

  	
   

  	
  Result

  	
   

  	
  Date of Filing

  	
   

  	
  Filing Number

  	
   

  	
  Secured Party

  	
   

  	
  Collateral

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  IL SOS

  	
   

  	
  UCC-1

  	
   

  	
  03/21/07

  	
   

  	
  11912389

  	
   

  	
  Marlin Leasing Corp.

  	
   

  	
  equipment

  



 


Debtor:  Valley
Surgical Center, Ltd.


 


	
  Jurisdiction

  	
   

  	
  Result

  	
   

  	
  Date of Filing

  	
   

  	
  Filing Number

  	
   

  	
  Secured Party

  	
   

  	
  Collateral

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  OH SOS

  	
   

  	
  UCC-1

  	
   

  	
  09/03/02

  	
   

  	
  OH00053796119

  	
   

  	
  HPSC, Inc.

  	
   

  	
  equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  10/08/02

  	
   

  	
  OH00055125089

  	
   

  	
  Alcon Laboratories, Inc.

  	
   

  	
  equipment

  



 

















 


Debtor:  Village
SurgiCenter, Limited Partnership


 


	
  Jurisdiction

  	
   

  	
  Result

  	
   

  	
  Date of Filing

  	
   

  	
  Filing Number

  	
   

  	
  Secured Party

  	
   

  	
  Collateral

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  DE SOS

  	
   

  	
  UCC-1

  	
   

  	
  02/23/04

  	
   

  	
  40491284

  	
   

  	
  U.S. Bank, N.A.

  	
   

  	
  “in-lieu”
  filing to continue effectiveness of PA filings made on 3/7/2000-file no
  31360377 and on 3/9/2000-file no: 20376-00 for future building materials and
  improvements

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  02/23/04

  	
   

  	
  40491292

  	
   

  	
  U.S. Bank, N.A.

  	
   

  	
  “in-lieu”
  filing to continue effectiveness of PA filings made on 3/7/2000-file no
  3136038 and on 3/9/2000-file no: 20380-00 for equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  02/23/04

  	
   

  	
  40491300

  	
   

  	
  U.S. Bank, N.A.

  	
   

  	
  “in-lieu”
  filing to continue effectiveness of PA filings made on 10/12/2000-file no
  31371711 and on 10/16/2000-file no: 21677-00 for equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UCC-1

  	
   

  	
  12/22/05

  	
   

  	
  54059326

  	
   

  	
  Stryker Capital

  	
   

  	
  equipment

  



 
















 


SCHEDULE 6.04


 


EXISTING INVESTMENTS


 


Investment made by SMBISS Thousand Oaks, LLC in
Specialty Surgical Center of Thousand Oaks, LLC in the amount of $5,011.46.


 


Investment made by SMBISS Irvine, LLC in Specialty
Surgical Center of Irvine, LLC in the amount of $1,428,109.51.


 


Investment made by SMBISS Irvine, LLC in Specialty
Surgical Center of Irvine, L.P. in the amount of $156,999.30.


 


Investment made by SMBISS Arcadia, LLC in Specialty
Surgical Center of Arcadia, LLC in the amount of $712,897.99.


 


Investment made by SMBISS Arcadia, LLC in Specialty
Surgical Center of Arcadia, L.P. in the amount of $17,866.94.


 


Investment made by SARC/Knoxville, Inc. in
University Ambulatory Surgical Center in the amount of $294,325.97.


 


Investment made by MediSphere Health Partners —
Oklahoma City, Inc. in Lakeside Women’s Center of Oklahoma City, L.L.C. in
the amount of $4,969,273.85.


 


Investment made by Symbion Ambulatory Resource
Centres, Inc. in Ambulatory Surgery Center of Cool Springs, LLC in the
amount of $573,776.48.


 


Investment made by SMBIMS Florida I, LLC in Cape
Coral Ambulatory Surgery Center, LLC in the amount of $866,354.86.


 


Investment made by SMBIMS Novi, LLC in Novi Surgery
Center, LLC in the amount of $3,808,536.09.


 


Investment made by SMBIMS Temple, LLC in The Surgery
Center of Temple, LLC in the amount of $101,000.00.


 


Investment made by SMBIMS Maple Grove, LLC in
Fairview Maple Grove Surgery Center, LLC in the amount of $12,549.35.


 


Investment made by SMBISS Chesterfield, LLC in
Chesterfield Spine Center, LLC in the amount of $140,218.79.


 

















 


SCHEDULE 6.05


 


SALES, TRANSFERS AND DISPOSITIONS


 


Divestitures:


 


1.                                       Dry Creek
Surgery Center, LLC (Englewood, CO)


 


2.                                       Northeast
Baptist Surgery Center, LLC (San Antonio, TX)


 


3.                                       Savannah
Outpatient Foot and Ankle Surgery Center, LLC (Savannah, GA)


 


Dissolutions:


 


1.                                       SMBIMS Tuscaloosa, Inc.


 


2.                                       SARC/Columbia, Inc.


 


3.                                       SMBISS Sandy Springs, LLC


 


4.                                       SMBISS Roswell, LLC


 


5.                                       Houston PSC - I, Inc.


 

















 


SCHEDULE 6.08


 


OUTSTANDING WARRANTS


 


	
  WARRANT HOLDER

  	
   

  	
  WARRANTS (A)

  	
   

  	
  WARRANTS (B)

  	
   

  	
  WARRANTS (C)

  	
   

  	
  TOTAL

  WARRANTS

  	
   

  
	
  *

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  423

  	
   

  	
  423

  	
   

  
	
  *

  	
   

  	
  4,677

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  4,677

  	
   

  
	
  *

  	
   

  	
  —

  	
   

  	
  766

  	
   

  	
  —

  	
   

  	
  766

  	
   

  
	
  *

  	
   

  	
  —

  	
   

  	
  10,129

  	
   

  	
  —

  	
   

  	
  10,129

  	
   

  
	
  *

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  564

  	
   

  	
  564

  	
   

  
	
  *

  	
   

  	
  —

  	
   

  	
  4,428

  	
   

  	
  —

  	
   

  	
  4,428

  	
   

  
	
  *

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  564

  	
   

  	
  564

  	
   

  
	
  *

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  564

  	
   

  	
  564

  	
   

  
	
  *

  	
   

  	
  —

  	
   

  	
  3,402

  	
   

  	
  —

  	
   

  	
  3,402

  	
   

  
	
  *

  	
   

  	
  —

  	
   

  	
  772

  	
   

  	
  —

  	
   

  	
  772

  	
   

  
	
  *

  	
   

  	
  —

  	
   

  	
  3,086

  	
   

  	
  —

  	
   

  	
  3,086

  	
   

  
	
  *

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  282

  	
   

  	
  282

  	
   

  
	
  *

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  564

  	
   

  	
  564

  	
   

  
	
  *

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  282

  	
   

  	
  282

  	
   

  
	
  *

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  564

  	
   

  	
  564

  	
   

  
	
  *

  	
   

  	
  —

  	
   

  	
  767

  	
   

  	
  —

  	
   

  	
  767

  	
   

  
	
  *

  	
   

  	
  —

  	
   

  	
  5,535

  	
   

  	
  —

  	
   

  	
  5,535

  	
   

  
	
  *

  	
   

  	
  —

  	
   

  	
  2,172

  	
   

  	
  —

  	
   

  	
  2,172

  	
   

  
	
  *

  	
   

  	
  —

  	
   

  	
  5,535

  	
   

  	
  —

  	
   

  	
  5,535

  	
   

  
	
  *

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  564

  	
   

  	
  564

  	
   

  
	
  *

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  *

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  564

  	
   

  	
  564

  	
   

  
	
  *

  	
   

  	
  —

  	
   

  	
  1,178

  	
   

  	
  —

  	
   

  	
  1,178

  	
   

  
	
  *

  	
   

  	
  —

  	
   

  	
  386

  	
   

  	
  —

  	
   

  	
  386

  	
   

  
	
  *

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  282

  	
   

  	
  282

  	
   

  
	
  *

  	
   

  	
  —

  	
   

  	
  2,373

  	
   

  	
  —

  	
   

  	
  2,373

  	
   

  
	
  *

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  564

  	
   

  	
  564

  	
   

  
	
  *

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  141

  	
   

  	
  141

  	
   

  
	
  *

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  2,257

  	
   

  	
  2,257

  	
   

  
	
  *

  	
   

  	
  —

  	
   

  	
  2,356

  	
   

  	
  —

  	
   

  	
  2,356

  	
   

  
	
  *

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  564

  	
   

  	
  564

  	
   

  
	
  *

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  282

  	
   

  	
  282

  	
   

  
	
  *

  	
   

  	
  —

  	
   

  	
  713

  	
   

  	
  —

  	
   

  	
  713

  	
   

  
	
  TOTAL

  	
   

  	
  4,677

  	
   

  	
  43,598

  	
   

  	
  9,025

  	
   

  	
  57,300

  	
   

  



 

















 






(A) ORIGINAL PSC WARRANTS.


 


(B) AS ISSUED BY ARC - PRIMARILY WILMINGTON AND
LOUISVILLE.


 


(C) AS ISSUED BY MEDISPHERE.


 

















 


SCHEDULE 6.09


 


EXISTING TRANSACTIONS WITH AFFILIATES


 


None.


 

















 


SCHEDULE 6.10


 


EXISTING RESTRICTIONS


 


Fairview
Maple Grove Surgery Center, LLC: Board approval and approval of all Class S,
F and U Governors required to declare dividends and distributions.