exv10w1






Exhibit 10.1




EXECUTION VERSION




 





U.S. $750,000,000




CREDIT AGREEMENT




Dated as of June 22, 2011




among




COVENTRY HEALTH CARE, INC.

as Borrower




and




THE INITIAL LENDERS NAMED HEREIN

as Initial Lenders




and




THE INITIAL ISSUING BANKS NAMED HEREIN

as Initial Issuing  Banks




and




JPMORGAN CHASE BANK, NATIONAL ASSOCIATION

as Administrative Agent




and




CITIBANK, N.A.

and

BANK OF AMERICA, N.A.

as Syndication Agents




 



J.P. MORGAN SECURITIES LLC,

CITIGROUP GLOBAL MARKETS INC.

and

MERRILL LYNCH PIERCE FENNER & SMITH INCORPORATED

as Joint Lead Arrangers

and Joint Bookrunners




 









 





TABLE OF CONTENTS




	 	 	 	 	 

	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	SECTION 1.01. Certain Defined Terms
	 	 	1	 
	SECTION 1.02. Terms Generally
	 	 	19	 
	SECTION 1.03. Computation of Time Periods
	 	 	19	 
	SECTION 1.04. Accounting Terms
	 	 	19	 
	 
	ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT
	 	 	20	 
	SECTION 2.01. The Advances and Letters of Credit
	 	 	20	 
	SECTION 2.02. Making the Advances
	 	 	20	 
	SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of Credit
	 	 	22	 
	SECTION 2.04. Fees
	 	 	24	 
	SECTION 2.05. Optional Termination or Reduction of the Commitments
	 	 	24	 
	SECTION 2.06. Repayment
	 	 	25	 
	SECTION 2.07. Interest on Advances
	 	 	26	 
	SECTION 2.08. Interest Rate Determination
	 	 	26	 
	SECTION 2.09. Optional Conversion of Advances
	 	 	28	 
	SECTION 2.10. Prepayments of Advances
	 	 	28	 
	SECTION 2.11. Increased Costs
	 	 	28	 
	SECTION 2.12. Illegality
	 	 	29	 
	SECTION 2.13. Payments and Computations
	 	 	30	 
	SECTION 2.14. Taxes
	 	 	31	 
	SECTION 2.15. Sharing of Payments, Etc
	 	 	33	 
	SECTION 2.16. Evidence of Debt
	 	 	34	 
	SECTION 2.17. Use of Proceeds
	 	 	34	 






i 









 






	 	 	 	 	 

	SECTION 2.18. Increase in the Aggregate Revolving Credit Commitments
	 	 	34	 
	SECTION 2.19. Extension of Termination Date
	 	 	36	 
	SECTION 2.20. Defaulting Lenders
	 	 	39	 
	SECTION 2.21. Cash Collateral
	 	 	41	 
	SECTION 2.22. Replacement of Lenders
	 	 	42	 
	 
	ARTICLE III CONDITIONS TO EFFECTIVENESS AND LENDING
	 	 	43	 
	SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01
	 	 	43	 
	SECTION 3.02. Conditions Precedent to Each Borrowing, Letter of Credit Issuance and
Commitment Increase
	 	 	44	 
	SECTION 3.03.Determinations Under Section 3.01
	 	 	45	 
	 
	ARTICLE IV REPRESENTATIONS AND WARRANTIES
	 	 	45	 
	SECTION 4.01.Representations and Warranties of the Borrower
	 	 	45	 
	 
	ARTICLE V COVENANTS OF THE BORROWER
	 	 	47	 
	SECTION 5.01.Affirmative Covenants
	 	 	47	 
	SECTION 5.02.Negative Covenants
	 	 	51	 
	SECTION 5.03.Financial Covenant
	 	 	54	 
	 
	ARTICLE VI EVENTS OF DEFAULT
	 	 	54	 
	SECTION 6.01.Events of Default
	 	 	54	 
	SECTION 6.02.Actions in Respect of the Letters of Credit upon Default
	 	 	57	 
	 
	ARTICLE VII THE AGENT
	 	 	57	 
	SECTION 7.01.Authorization and Action
	 	 	57	 
	SECTION 7.02.Agent’s Reliance, Etc
	 	 	58	 
	SECTION 7.03.JPMCB and Affiliates
	 	 	58	 
	SECTION 7.04.Lender Credit Decision
	 	 	58	 
	SECTION 7.05.Indemnification
	 	 	59	 
	SECTION 7.06.Successor Agent
	 	 	60	 
	SECTION 7.07.Other Agents
	 	 	60	 






ii 









 






	 	 	 	 	 

	ARTICLE VIII MISCELLANEOUS
	 	 	60	 
	SECTION 8.01.Amendments, Etc
	 	 	60	 
	SECTION 8.02.Notices, Etc
	 	 	61	 
	SECTION 8.03.No Waiver; Remedies
	 	 	62	 
	SECTION 8.04.Costs and Expenses
	 	 	62	 
	SECTION 8.05.Right of Setoff
	 	 	64	 
	SECTION 8.06.Binding Effect
	 	 	64	 
	SECTION 8.07.Assignments and Participations
	 	 	64	 
	SECTION 8.08.Confidentiality
	 	 	68	 
	SECTION 8.09.Governing Law
	 	 	69	 
	SECTION 8.10.Execution in Counterparts
	 	 	69	 
	SECTION 8.11.Jurisdiction, Etc
	 	 	69	 
	SECTION 8.12.No Liability of the Issuing Banks
	 	 	69	 
	SECTION 8.13.Patriot Act Notice
	 	 	70	 
	SECTION 8.14.Waiver of Jury Trial
	 	 	70	 
	SECTION 8.15.No Fiduciary Duty
	 	 	70	 
	SECTION 8.16.Severability
	 	 	71	 






	 	 	 

	Schedules
	 	 
	Schedule I

	 	List of Applicable Lending Offices
	Schedule 2.01(b)

	 	Existing Letters of Credit
	Schedule 4.01(c)

	 	Required Authorizations and Approvals
	Schedule 4.01(f)

	 	Disclosed Litigation
	Schedule 4.01(j)

	 	Subsidiaries
	Schedule 5.02(a)

	 	Existing Liens
	Schedule 5.02(d)

	 	Existing Debt






	 	 	 

	Exhibits
	 	 
	Exhibit A

	 	Form of Note
	Exhibit B

	 	Form of Notice of Borrowing
	Exhibit C

	 	Form of Assignment and Acceptance
	Exhibit D-1

	 	Form of Opinion of General Counsel for the Borrower
	Exhibit D-2

	 	Form of Opinion of Bass, Berry & Sims PLC






iii 









 






CREDIT AGREEMENT



          CREDIT AGREEMENT, dated as of June 22, 2011 (this “Agreement”), among COVENTRY HEALTH
CARE, INC., a Delaware corporation (the “Borrower”), the banks, financial institutions and
other institutional lenders (the “Initial Lenders”) and issuers of letters of credit (the
“Initial Issuing Banks”) listed on Schedule I hereto, and their successors and
permitted assigns, and JPMORGAN CHASE BANK, NATIONAL ASSOCIATION (“JPMCB”), as
administrative agent (the “Agent”) for the Lenders (as hereinafter defined).


          The parties hereto agree as follows:



ARTICLE I




DEFINITIONS AND ACCOUNTING TERMS



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


          “Advance” means an advance by a Lender to the Borrower as part of a Borrowing and
refers to a Base Rate Advance or a Eurodollar Rate Advance (each of which shall be a “Type”
of Advance).


          “Affiliate” means, as to any Person, any other Person that, directly or indirectly,
controls, is controlled by or is under common control with such Person or is a director or
executive officer of such Person. For purposes of this definition, the term “control” (including
the terms “controlling”, “controlled by” and “under common control with”) of a Person means the
possession, direct or indirect, of the power to vote 10% or more of the Voting Stock of such Person
or to direct or cause the direction of the management and policies of such Person, whether through
the ownership of Voting Stock, by contract or otherwise.


          “Agent’s Account” means the account of the Agent maintained by the Agent at JPMCB at
its office at 10 South Dearborn, Floor 07, Chicago, IL 60603-2003, Attention: Joyce King.


          “Anniversary Date” has the meaning specified in Section 2.19(a).


          “Applicable Lending Office” means, with respect to each Lender, such Lender’s Domestic
Lending Office in the case of a Base Rate Advance and such Lender’s Eurodollar Lending Office in
the case of a Eurodollar Rate Advance.


          “Applicable Margin” means, as of any date, (a) with respect to Base Rate Advances, one
percent per annum less than the Applicable Margin for Eurodollar Rate Advances as of such date, but
in no event less than zero, and (b) with respect to Eurodollar Rate Advances, a percentage per
annum determined by reference to the Public Debt Rating in effect on such date as set forth below:



 









 







	 	 	 
	 	 	Applicable Margin for
	Public Debt Rating S&P/Moody’s/Fitch	 	Eurodollar Rate Advances
	Level 1
	 	 
	BBB+/Baa1/BBB+ or above
	 	1.050%
	Level 2
	 	 
	BBB/Baa2/BBB
	 	1.250%
	Level 3
	 	 
	BBB-/Baa3/BBB-
	 	1.475%
	Level 4
	 	 
	BB+/ Ba1/BB+
	 	1.675%
	Level 5
	 	 
	Lower than Level 4
	 	1.850%





          “Applicable Percentage” means, as of any date, a percentage per annum determined by
reference to the Public Debt Rating in effect on such date as set forth below:



	 	 	 
	 	 	Applicable
	Public Debt Rating S&P/Moody’s/Fitch	 	Percentage
	Level 1
	 	 
	BBB+/Baa1/BBB+ or above
	 	0.200%
	Level 2
	 	 
	BBB/ Baa2/BBB
	 	0.250%
	Level 3
	 	 
	BBB-/ Baa3/BBB-
	 	0.275%
	Level 4
	 	 
	BB+/ Ba1/BB+
	 	0.325%
	Level 5
	 	 
	Lower than Level 4
	 	0.400%





          “Approved Fund” means any Person (other than a natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar extensions of credit in the
ordinary course of its business and that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.


          “Assignment and Acceptance” means an assignment and acceptance entered into by a
Lender and an Eligible Assignee, and accepted by the Agent, in substantially the form of
Exhibit C hereto.



2









 







          “Assuming Lender” has the meaning specified in Section 2.18(d).


          “Assumption Agreement” has the meaning specified in Section 2.18(d)(ii).


          “Available Amount” of any Letter of Credit means, at any time, the maximum amount
available to be drawn under such Letter of Credit at such time (assuming compliance at such time
with all conditions to drawing); provided, however, that, with respect to any
Letter of Credit that, by its terms or the terms of any Letter of Credit Agreement related thereto,
provides for one or more automatic increases in the stated amount thereof, the Available Amount of
such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit
after giving effect to all such increases, whether or not such maximum stated amount is in effect
at such time.


          “Bankruptcy Event” means, with respect to any Person, when such Person becomes the
subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee,
administrator, custodian, assignee for the benefit of creditors or similar Person charged with the
reorganization or liquidation of its business appointed for it, or, in the good faith determination
of the Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any such proceeding or appointment; provided that a Bankruptcy Event shall
not result solely by virtue of any ownership interest, or the acquisition of any ownership
interest, in such Person by a Governmental Authority or instrumentality thereof so long as such
ownership interest does not result in or provide such Person with immunity from the jurisdiction of
courts within the United States or from the enforcement of judgments or writs of attachment on its
assets or permit such Person (or such Governmental Authority or instrumentality) to reject,
repudiate, disavow or disaffirm any contracts or agreements made by such Person.


          “Base Rate” means, for any date, a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to (a) the highest of (i) the rate
of interest announced publicly by JPMCB as its prime rate in effect at its office located at 270
Park Avenue, New York, New York, from time to time, (ii) 1/2 of one percent per annum above the
Federal Funds Rate and (iii) one percent per annum above the Eurodollar Rate for a one-month
interest period as in effect on the date of determination plus (b) the Applicable Margin.


          “Base Rate Advance” means an Advance that bears interest as provided in Section
2.07(a)(i).


          “Board” means the Board of Governors of the Federal Reserve System.


          “Borrower Information” has the meaning specified in Section 8.08.


          “Borrowing” means a borrowing consisting of simultaneous Advances of the same Type
made by each of the Lenders pursuant to Section 2.01(a).


          “Business Day” means a day of the year on which banks are not required or authorized
by law to close in New York City and, if the applicable Business Day relates to any Eurodollar Rate
Advances, on which dealings are carried on in the London interbank market.



3









 







          “Capital Lease Obligations” means, as to any Person, 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, to the extent such obligations are required to be
classified and accounted for as capital leases on a balance sheet of such Person under GAAP and,
for the purposes of this Agreement, the amount of such obligations at any time shall be the
capitalized amount thereof at such time determined in accordance with GAAP.


          “Cash Collateralize” means to deposit in the L/C Cash Collateral Account, or to pledge
and deposit with or deliver to the Agent, for the benefit of one or more of the Issuing Banks or
Lenders, as collateral for the L/C Exposure, cash or deposit account balances, pursuant to
documentation in form and substance satisfactory to the Agent and each applicable Issuing Bank.
“Cash Collateral” shall have a meaning correlative to the foregoing and shall include the
proceeds of such cash collateral and other credit support.


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


          “Commitment” means a Revolving Credit Commitment or a Letter of Credit Commitment.


          “Commitment Date” has the meaning specified in Section 2.18(b).


          “Commitment Increase” has the meaning specified in Section 2.18(a).


          “Communications” has the meaning specified in Section 8.02(b).


          “Consent Date” has the meaning specified in Section 2.19(a).


          “Consolidated” refers to the consolidation of accounts in accordance with GAAP.


          “Consolidated EBITDA” means, for any period, Consolidated Net Income for such period
plus, without duplication and to the extent reflected as a charge in the statement of such
Consolidated Net Income for such period, the sum of (a) income tax expense, (b) interest expense,
amortization or writeoff of debt discount and debt issuance costs and commissions, discounts and
other fees and charges associated with Debt (including the Advances), (c) depreciation and
amortization expense, (d) amortization of intangibles (including, but not limited to, goodwill) and
organization costs, and non-cash write-offs and impairment charges with respect thereto, (e)
non-cash stock-based compensation expense and (f) any extraordinary or



4









 







non-recurring expenses or losses (including, whether or not otherwise includable as a separate
item in the statement of such Consolidated Net Income for such period, losses on sales of assets
outside of the ordinary course of business), and minus, to the extent included in the
statement of such Consolidated Net Income for such period, the sum of (i) any extraordinary or
non-recurring income or gains (including, whether or not otherwise includable as a separate item in
the statement of such Consolidated Net Income for such period, gains on sales of assets outside of
the ordinary course of business) and (ii) all non-cash items increasing Consolidated Net Income for
such period (other than any such non-cash item to the extent that it will result in the receipt of
cash payments in any future period). For the purposes of calculating Consolidated EBITDA for any
period of four consecutive fiscal quarters (each, a “Reference Period”) with respect to any
determination of the Consolidated Leverage Ratio, (i) if at any time during such Reference Period
the Borrower or any of its Subsidiaries shall have made any Material Disposition (as defined
below), the Consolidated EBITDA for such Reference Period shall be reduced by an amount equal to
the Consolidated EBITDA (if positive) attributable to the property that is the subject of such
Material Disposition for such Reference Period or increased by an amount equal to the Consolidated
EBITDA (if negative) attributable thereto for such Reference Period and (ii) if during such
Reference Period the Borrower or any of its Subsidiaries shall have made a Material Acquisition (as
defined below), Consolidated EBITDA for such Reference Period shall be calculated after giving pro
forma effect thereto as if such Material Acquisition occurred on the first day of such Reference
Period. As used in this definition, “Material Acquisition” means any acquisition of
property or series of related acquisitions of property that (a) constitutes assets comprising all
or substantially all of an operating unit of a business or results in a Person becoming a
Subsidiary of the Borrower and (b) involves the payment of consideration by the Borrower and its
Subsidiaries in excess of $25,000,000; and “Material Disposition” means any sale, lease,
transfer or other disposition of property or series of related sales, leases, transfers or other
dispositions of property that yields gross proceeds to the Borrower or any of its Subsidiaries in
excess of $25,000,000.


          “Consolidated Leverage Ratio” means, as at the last day of any period, the ratio of
(a) Consolidated Total Debt on such day to (b) Consolidated EBITDA for such period.


          “Consolidated Net Income” means, for any period, the consolidated net income (or loss)
of the Borrower and its Subsidiaries, determined on a consolidated basis in accordance with GAAP;
provided that there shall be excluded (a) the income (or deficit) of any Person accrued
prior to the date it becomes a Subsidiary of the Borrower or is merged into or consolidated with
the Borrower or any of its Subsidiaries, (b) the income (or deficit) of any Person (other than a
Subsidiary of the Borrower) in which the Borrower or any of its Subsidiaries has an ownership
interest, except to the extent that any such income is actually received by the Borrower or such
Subsidiary in the form of dividends or other distributions and (c) the undistributed earnings of
any Subsidiary of the Borrower to the extent that the declaration or payment of dividends or
similar distributions by such Subsidiary is not at the time permitted by the terms of any
contractual obligation (other than under this Agreement or the Notes) or (other than in the case of
any such Subsidiary that is an HMO Subsidiary or an Insurance Subsidiary) requirement of law
applicable to such Subsidiary.


          “Consolidated Net Worth” means, at any date, the consolidated shareholders’ equity of
the Borrower and its Subsidiaries, determined on a consolidated basis as of such date.



5









 







          “Consolidated Total Debt” means, at any date, the aggregate principal amount of all
Debt of the Borrower and its Subsidiaries at such date, determined on a consolidated basis in
accordance with GAAP.


          “Convert”, “Conversion” and “Converted” each refers to a conversion of
Advances of one Type into Advances of the other Type pursuant to Section 2.08 or 2.09.


          “Debt” of any Person means, without duplication, (a) all indebtedness of such Person
for borrowed money, (b) all obligations of such Person for the deferred purchase price of property
or services (other than trade payables incurred in the ordinary course of such Person’s business),
(c) all obligations of such Person evidenced by notes, bonds, debentures or other similar
instruments, (d) all obligations of such Person created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such Person (even though the
rights and remedies of the seller or lender under such agreement in the event of default are
limited to repossession or sale of such property), (e) all Capital Lease Obligations of such
Person, (f) all obligations of such Person, contingent or otherwise, as an account party or
applicant under or in respect of acceptances, letters of credit or similar arrangements, (g) the
liquidation value of all mandatorily redeemable preferred capital stock of such Person, (h) all
Guarantee Obligations of such Person in respect of obligations of the kind referred to in clauses
(a) through (g) above, (i) all obligations of the kind referred to in clauses (a) through (h) above
secured by (or for which the holder of such obligation has an existing right, contingent or
otherwise, to be secured by) any Lien on property (including accounts and contract rights) owned by
such Person, whether or not such Person has assumed or become liable for the payment of such
obligation, and (j) for the purposes of Section 6.01(d) only, all obligations of such Person in
respect of Hedge Agreements. The Debt of any Person shall include the Debt 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 Debt expressly provide that such Person is not
liable therefor.


          “Debtor Relief Law” has the meaning specified in Section 6.01(e).


          “Default” means any Event of Default or any event that would constitute an Event of
Default but for the requirement that notice be given or time elapse or both.


          “Defaulting Lender” means, subject to Section 2.20(b), any Lender that (a) has failed
to (i) fund all or any portion of its Advances within two Business Days of the date such Advances
were required to be funded hereunder unless such Lender notifies the Agent and the Borrower in
writing that such failure is the result of such Lender’s good faith determination that one or more
conditions precedent to funding (each of which conditions precedent, together with any applicable
default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to
the Agent, any Issuing Bank or any other Lender any other amount required to be paid by it
hereunder (including in respect of its participation in Letters of Credit) within two Business Days
of the date when due, (b) has notified the Borrower, the Agent or any Issuing Bank in writing that
it does not intend to comply with its funding obligations hereunder, or has made a public statement
to that effect (unless such writing or public statement relates to such Lender’s obligation to fund
an Advance hereunder and states that such position is based on such Lender’s



6









 







good faith determination that a condition precedent to funding (which condition precedent,
together with any applicable default, shall be specifically identified in such writing or public
statement) cannot be satisfied), (c) has failed, within three Business Days after written request
by the Agent or the Borrower, to confirm in writing to the Agent and the Borrower that it will
comply (and is financially able to comply) with its prospective funding obligations hereunder
( provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause
(c) upon receipt of such written confirmation by the Agent and the Borrower in form and substance
satisfactory to the Agent and the Borrower) or (d) has, or has a direct or indirect parent company
that has, become the subject of a Bankruptcy Event. Any determination by the Agent that a Lender
is a Defaulting Lender under clauses (a) through (d) above shall be conclusive and binding absent
manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section
2.20(b)) upon delivery of written notice of such determination to the Borrower, each Issuing Bank
and each Lender.


          “Disclosed Litigation” has the meaning specified in Section 4.01(f).


          “Domestic Lending Office” means, with respect to any Lender, the office of such Lender
specified as its “Domestic Lending Office” opposite its name on Schedule I hereto or in the
Assumption Agreement or the Assignment and Acceptance pursuant to which it became a Lender, or such
other office of such Lender as such Lender may from time to time specify to the Borrower and the
Agent.


          “Effective Date” has the meaning specified in Section 3.01.


          “Eligible Assignee” means (i) a Lender; (ii) an Affiliate of a Lender; (iii) an
Approved Fund; and (iv) any other Person approved by the Agent and each Issuing Bank (such approval
not to be unreasonably withheld or delayed) and, unless an Event of Default has occurred and is
continuing at the time any assignment is effected in accordance with Section 8.07, the Borrower
(such approval not to be unreasonably withheld or delayed); provided that the Borrower
shall be deemed to have consented to any such assignment unless it shall object thereto by written
notice to the Agent within five Business Days after having received notice thereof. Neither (x)
the Borrower or an Affiliate of the Borrower nor (y) any Defaulting Lender or any of its
Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the
foregoing Persons described in this clause (y), shall qualify as an Eligible Assignee.


          “Environmental Law” means any federal, state, local or foreign statute, law,
ordinance, rule, regulation, code, order, judgment, decree or judicial or agency interpretation,
policy or guidance relating to pollution or protection of the environment or natural resources,
including those relating to the use, handling, transportation, treatment, storage, disposal,
release or discharge of Hazardous Materials.


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



7









 







          “ERISA Affiliate” means any Person that for purposes of Title IV of ERISA is a member
of the Borrower’s controlled group, or under common control with the Borrower, within the meaning
of Section 414 of the Internal Revenue Code.


          “ERISA Event” means (a) (i) the occurrence of a reportable event, within the meaning
of Section 4043 of ERISA, with respect to any Plan unless the 30-day notice requirement with
respect to such event has been waived by the PBGC, or (ii) the requirements of subsection (1) of
Section 4043(b) of ERISA (without regard to subsection (2) of such Section) are met with respect to
a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan, and an event
described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably
expected to occur with respect to such Plan within the following 30 days; (b) the application for a
minimum funding waiver with respect to a Plan; (c) the provision by the administrator of any Plan
of a notice of intent to terminate such Plan pursuant to Section 4041(a)(2) of ERISA (including any
such notice with respect to a plan amendment referred to in Section 4041(e) of ERISA); (d) the
cessation of operations at a facility of the Borrower or any ERISA Affiliate in the circumstances
described in Section 4062(e) of ERISA; (e) the withdrawal by the Borrower or any ERISA Affiliate
from a Multiple Employer Plan during a plan year for which it was a substantial employer, as
defined in Section 4001(a)(2) of ERISA; (f) the conditions for the imposition of a lien under
Section 302(f) of ERISA shall have been met with respect to any Plan; (g) the adoption of an
amendment to a Plan requiring the provision of security to such Plan pursuant to Section 307 of
ERISA; or (h) the institution by the PBGC of proceedings to terminate a Plan pursuant to Section
4042 of ERISA, or the occurrence of any event or condition described in Section 4042 of ERISA that
constitutes grounds for the termination of, or the appointment of a trustee to administer, a Plan.


          “Eurocurrency Liabilities” has the meaning assigned to that term in Regulation D of
the Board, as in effect from time to time.


          “Eurodollar Lending Office” means, with respect to any Lender, the office of such
Lender specified as its “Eurodollar Lending Office” opposite its name on Schedule I hereto
or in the Assumption Agreement or the Assignment and Acceptance pursuant to which it became a
Lender (or, if no such office is specified, its Domestic Lending Office), or such other office of
such Lender as such Lender may from time to time specify to the Borrower and the Agent.


          “Eurodollar Rate” means, for any Interest Period for each Eurodollar Rate Advance
comprising part of the same Borrowing, an interest rate per annum equal to the rate per annum
obtained by dividing (a) the rate per annum (rounded upward to the nearest whole multiple of 1/100
of 1% per annum) appearing on Reuters LIBOR01 Screen (or any successor page) as the London
interbank offered rate for deposits in U.S. dollars at approximately 11:00 A.M. (London time) two
Business Days prior to the first day of such Interest Period in an amount equal to the amount of
such Eurodollar Rate Advance and for a period comparable to such Interest Period or, if for any
reason such rate is not available, the average (rounded upward to the nearest whole multiple of
1/100 of 1% per annum, if such average is not such a multiple) of the rate per annum at which
deposits in U.S. dollars are offered by the principal office of each of the Reference Banks in
London, England to prime banks in the London interbank market at 11:00 A.M. (London time) two
Business Days before the first day of such Interest Period in an amount equal to the amount of such
Eurodollar Rate Advance and for a period comparable to




8









 







such Interest Period by (b) a percentage
equal to 100% minus the Eurodollar Rate Reserve Percentage for such Interest Period. If
the Reuters LIBOR01 Screen (or any successor page) is unavailable, the Eurodollar Rate for any
Interest Period for each Eurodollar Rate Advance comprising part of the same Borrowing shall be
determined by the Agent on the basis of
applicable rates furnished to and received by the Agent from the Reference Banks two Business
Days before the first day of such Interest Period, subject, however, to the
provisions of Section 2.08.


          “Eurodollar Rate Advance” means an Advance that bears interest as provided in Section
2.07(a)(ii).


          “Eurodollar Rate Reserve Percentage” means, for any Interest Period for all Eurodollar
Rate Advances comprising part of the same Borrowing, the reserve percentage applicable two Business
Days before the first day of such Interest Period under regulations issued from time to time by the
Board (or any successor) for determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) for a member bank of the Federal Reserve System
in New York City with respect to liabilities or assets consisting of or including Eurocurrency
Liabilities (or with respect to any other category of liabilities that includes deposits by
reference to which the interest rate on Eurodollar Rate Advances is determined) having a term equal
to such Interest Period.


          “Events of Default” has the meaning specified in Section 6.01.


          “Extending Commitments” has the meaning specified in Section 2.19(b).


          “Extending Lender” has the meaning specified in Section 2.19(a).


          “Facility” means the Revolving Credit Facility or the Letter of Credit Facility.


          “Federal Funds Rate” means, for any period, a fluctuating interest rate per annum for
each day during such period equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next preceding 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 of the quotations for such day on such transactions received by the Agent
from three Federal funds brokers of recognized standing selected by it.


          “Fitch” means Fitch Investor’s Service, Inc.


          “Fronting Exposure” means, at any time there is a Defaulting Lender, with respect to
any Issuing Bank, such Defaulting Lender’s Ratable Share of the outstanding L/C Exposure with
respect to the Letters of Credit issued by such Issuing Bank other than the L/C Exposure as to
which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or
Cash Collateralized in accordance with the terms hereof.


          “GAAP” has the meaning specified in Section 1.04.



9









 







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


          “Guarantee Obligation” means, as to any Person (the “guaranteeing person”),
any obligation, including a reimbursement, counterindemnity or similar obligation, of the
guaranteeing person that guarantees or in effect guarantees, or which is given to induce the
creation of a separate obligation by another Person (including any bank under any letter of credit)
that guarantees or in effect guarantees, any Debt, leases, dividends or other obligations (the
“primary obligations”) of any other third Person (the “primary obligor”) in any
manner, whether directly or indirectly, including any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or any property constituting
direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or
payment of any such primary obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation
against loss in respect thereof; provided, however, that the term “Guarantee
Obligation” shall not include endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Guarantee Obligation of any guaranteeing person 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 such Guarantee Obligation is made and (b) the maximum amount for
which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such
Guarantee Obligation, unless such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability
in respect thereof as determined by the Borrower in good faith.


          “Hazardous Materials” means (a) petroleum and petroleum products, byproducts or
breakdown products, radioactive materials, asbestos-containing materials, polychlorinated biphenyls
and radon gas and (b) any other chemicals, materials or substances designated, classified or
regulated as hazardous or toxic or as a pollutant or contaminant under any Environmental Law.


          “Hedge Agreements” means interest rate swap, cap or collar agreements, interest rate
future or option contracts, currency swap agreements, currency future or option contracts and other
similar agreements.


          “HIPAA” means, collectively, the Health Insurance Portability and Accountability Act
of 1996, as amended, and any successor statute thereto, as interpreted by the rules and regulations
thereunder, all as the same may be in effect from time to time. References to sections of HIPAA
shall be construed also to refer to any successor sections.



10









 





          “HITECH Act” means the Health Information Technology for Economic and Clinical Health
Act, Title XIII of Division A and Title IV of Division B of the American Recovery and Reinvestment
Act of 2009 (ARRA), Pub. L. 111-5, Feb. 17, 2009, as amended, and any successor statute thereto, as
interpreted by the rules and regulations thereunder, all as the
same may be in effect from time to time. References to sections of the HITECH Act shall be
construed also to refer to any successor sections.


          “HMO” means any Person licensed as a health maintenance organization, managed care
organization or similar organization by a Governmental Authority having jurisdiction over such
Person.


          “HMO Regulations” means all requirements of law applicable to any HMO Subsidiary
(other than provisions of the organizational or governing documents of such HMO Subsidiary) under
federal or state law and any regulations, orders and directives promulgated or issued pursuant to
the foregoing, including regulations regarding total statutory capital levels.


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


          “HMO Subsidiary” means any Subsidiary of the Borrower that is an HMO.


          “Increase Date” has the meaning specified in Section 2.18(a).


          “Increasing and Extending Lender” has the meaning specified in Section 2.19(a).


          “Increasing Lender” has the meaning specified in Section 2.18(b).


          “Indemnified Taxes” means Taxes that arise from any payment made hereunder or under
the Notes or any other documents to be delivered hereunder or from the execution, delivery or
registration of, performing under, or otherwise with respect to, the Loan Documents.


          “Indentures” means (a) the Indenture, dated as of January 28, 2005, between the
Borrower and U.S. Bank National Association, successor to Wachovia Bank, National Association, as
trustee, in connection with the issuance of the Borrower’s 57/8 % senior notes due 2012, (b) the
Indenture, dated as of January 28, 2005, between the Borrower and U.S. Bank National Association,
successor to Wachovia Bank, National Association, as trustee, in connection with the issuance of
the Borrower’s
61/8% senior notes due 2015, and (c) the Indenture, dated as of March 20, 2007,
between the Borrower and The Bank of New York, as trustee, in connection with the issuance of the
Borrower’s 5.95% senior notes due 2017, as amended by the first supplemental indenture, dated as of
August 27, 2007, between the Borrower and Union Bank, National Association (successor to Union Bank
of California, N.A.), as trustee, in connection with the issuance of the Borrower’s 6.30% senior
notes due 2014, and as amended by the second supplemental indenture, dated as of June 7, 2011,
between the Borrower and Union Bank, National Association, as trustee, in connection with the
issuance of the Borrower’s 5.450% senior notes due 2021.



11









 







          “Ineligible Institution” means a (a) natural person or (b) holding company, investment
vehicle or trust for, or owned and operated for the primary benefit of, a natural person or
relative(s) thereof; provided that, such holding company, investment vehicle or trust shall
not constitute an Ineligible Institution if it (x) has not been established for the primary purpose
of acquiring any Advances or Commitments, (y) is managed by a professional advisor, who is not
such natural person or a relative thereof, having significant experience in the business of
making or purchasing commercial loans, and (z) has assets greater than $25,000,000 and a
significant part of its activities consist of making or purchasing commercial loans and similar
extensions of credit in the ordinary course of its business; provided, further,
that, upon the occurrence of an Event of Default, any Person (other than a Lender) shall be an
Ineligible Institution if, after giving effect to any proposed assignment to such Person, such
Person would hold more than 25% of the then outstanding Revolving Credit Exposure or Commitments,
as the case may be.


          “Information Memorandum” means the information memorandum dated June, 2011 used by the
Agent in connection with the syndication of the Commitments.


          “Insurance Regulations” means all requirements of law applicable to any Insurance
Subsidiary (other than provisions of the organizational or governing documents of such Insurance
Subsidiary) under federal or state law and any regulations, orders and directives promulgated or
issued pursuant to the foregoing, including regulations regarding total statutory capital levels.


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


          “Insurance Subsidiary” means any Subsidiary of the Borrower that is doing business or
is licensed under Insurance Regulations to offer and sell health, dental and life insurance (or
required to so qualify or to be so licensed).


          “Interest Period” means, for each Eurodollar Rate Advance comprising part of the same
Borrowing, the period commencing on the date of such Eurodollar Rate Advance or the date of the
Conversion of a Base Rate Advance into such Eurodollar Rate Advance and ending on the last day of
the period selected by the Borrower pursuant to the provisions below and, thereafter, each
subsequent period commencing on the last day of the immediately preceding Interest Period and
ending on the last day of the period selected by the Borrower pursuant to the provisions below.
The duration of each such Interest Period shall be one, two, three or six months, and subject to
clause (c) of this definition, nine or twelve months, as the Borrower may, upon notice received by
the Agent not later than 11:00 A.M. (New York City time) on the third Business Day prior to the
first day of such Interest Period, select; provided, however, that:


          (a) the Borrower may not select any Interest Period with respect to any Eurodollar Rate
Advance under a Facility that ends after any scheduled principal repayment installment date for
such Facility unless, after giving effect to such selection, the aggregate principal amount of Base
Rate Advances and of Eurodollar Rate Advances having Interest Periods that end on or prior to such
principal repayment installment date for such Facility shall



12









 






be at least equal to the aggregate
principal amount of Advances under such Facility due and payable on or prior to such date;


          (b) Interest Periods commencing on the same date for Eurodollar Rate Advances comprising part
of the same Borrowing shall be of the same duration;


          (c) the Borrower shall not be entitled to select an Interest Period having duration of nine or
twelve months unless, by 2:00 P.M. (New York City time) on the second Business Day prior to the
first day of such Interest Period, each Lender has notified the Agent of such Lender’s approval of
such Interest Period (the failure of any Lender to so respond by such time being deemed for all
purposes of this Agreement as an objection by such Lender to the requested duration of such
Interest Period); provided that, if any or all of the Lenders object to the requested
duration of such Interest Period, the duration of such Interest Period shall be one, two, three or
six months, as specified by the Borrower in the applicable Notice of Borrowing or notice of
Conversion as the desired alternative to an Interest Period of nine or twelve months;


          (d) whenever the last day of any Interest Period would otherwise occur on a day other than a
Business Day, the last day of such Interest Period shall be extended to occur on the next
succeeding Business Day; provided, however, that, if such extension would cause the
last day of such Interest Period to occur in the next following calendar month, the last day of
such Interest Period shall occur on the next preceding Business Day; and


          (e) whenever the first day of any Interest Period occurs on a day of an initial calendar month
for which there is no numerically corresponding day in the calendar month that succeeds such
initial calendar month by the number of months equal to the number of months in such Interest
Period, such Interest Period shall end on the last Business Day of such succeeding calendar month.


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


          “Issuing Bank” means an Initial Issuing Bank or any Lender designated as an “Issuing
Bank” hereunder by written notice to such effect to the Agent by the Borrower and such Lender so
long as such Lender expressly agrees to perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be performed by it as an Issuing
Bank and notifies the Agent of its Applicable Lending Office (which information shall be recorded
by the Agent in the Register), and their respective successors as Issuing Banks hereunder.


          “L/C Cash Collateral Account” means an interest-bearing cash collateral account to be
established and maintained by the Agent, over which the Agent shall have sole dominion and control,
upon terms as may be satisfactory to the Agent.


          “L/C Disbursement” means a payment made by an Issuing Bank pursuant to a Letter of
Credit.


          “L/C 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 L/C




13









 




Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time
(through Advances or otherwise). The L/C Exposure of any Lender at any time shall be its Ratable
Share of the total L/C Exposure at such time.


          “L/C Related Documents” has the meaning specified in Section 2.06(b)(i).


          “Lenders” means the Initial Lenders, each Issuing Bank, each Assuming Lender that
shall become a party hereto pursuant to Section 2.18, each New Lender that shall become a party
hereto pursuant to Section 2.19 and each Person that shall become a party hereto pursuant to
Section 8.07.


          “Letter of Credit” has the meaning specified in Section 2.01(b).


          “Letter of Credit Agreement” has the meaning specified in Section 2.03(a).


          “Letter of Credit Commitment” means, with respect to each Issuing Bank, the obligation
of such Issuing Bank to issue Letters of Credit for the account of the Borrower and their specified
Subsidiaries in (a) the amount set forth opposite such Issuing Bank’s name on Schedule I
hereto or (b) in the notice designating such Issuing Bank as an Issuing Bank hereunder, in each
case as such amount may be reduced prior to such time pursuant to Section 2.05 and from time to
time by the Available Amount of any outstanding Letter of Credit issued by any other Issuing Bank.


          “Letter of Credit Facility” means, at any time, an amount equal to the lesser of (a)
the aggregate amount of the Issuing Banks’ Letter of Credit Commitments at such time and (b)
$100,000,000, as such amount may be reduced at or prior to such time pursuant to Section 2.05.


          “Letter of Credit Fee” has the meaning specified in Section 2.04(b).


          “Lien” means any lien, security interest or other charge or encumbrance of any kind,
or any other type of preferential arrangement, including the lien or retained security title of a
conditional vendor and any encumbrance on title to real property that secures debt.


          “Loan Documents” means, collectively, this Agreement, the Notes and each certificate,
agreement or document executed by the Borrower and delivered to the Agent or any Lender in
connection with the foregoing.


          “Material Adverse Change” means any material adverse change in the business, financial
condition or results of operations of the Borrower and its Subsidiaries, taken as a whole.


          “Material Adverse Effect” means a material adverse effect on (a) the business,
financial condition or results of operations of the Borrower and its Subsidiaries, taken as a
whole, or (b) the rights and remedies of the Agent or the Lenders under the Loan Documents.


          “Material HMO Subsidiary” means any HMO Subsidiary that is also a Material Subsidiary.



14









 





          “Material Insurance Subsidiary” means any Insurance Subsidiary that is also a Material
Subsidiary.




          “Material Subsidiary” means, at any date, a Subsidiary of the Borrower having (a)
assets in an amount equal to at least 5% of the amount of total Consolidated assets of the Borrower
and its Subsidiaries as of the last day of the most recent fiscal quarter of the Borrower
for which financial statements of the Borrower have been furnished pursuant to Section 5.01(i)
or (b) revenues in an amount equal to at least 5% of the amount of total Consolidated revenues of
the Borrower and its Subsidiaries for the twelve-month period ending on such date.


          “Medicaid Regulations” means, collectively, (a) all federal statutes (whether set
forth in Title XIX of the Social Security Act or elsewhere) affecting the medical assistance
program established by said Title XIX, (b) all applicable provisions of all federal rules
promulgated pursuant to or in connection with the statutes described in clause (a) above and all
federal administrative, reimbursement and other guidelines of all governmental authorities having
the force of law promulgated pursuant to or in connection with the statutes described in clause (a)
above, (c) all state statutes and plans for medical assistance enacted in connection with the
statutes and provisions described in clauses (a) and (b) above and (d) all applicable provisions of
all rules, regulations, manuals and orders of all governmental authorities promulgated pursuant to
or in connection with the statutes described in clause (c) above and all state administrative,
reimbursement and other guidelines of all governmental authorities having the force of law
promulgated pursuant to or in connection with the statutes described in clause (b) above.


          “Minimum Collateral Amount” means, at any time, with respect to Cash Collateral
consisting of cash or deposit account balances, an amount equal to 102% of the Fronting Exposure of
all Issuing Banks with respect to Letters of Credit issued and outstanding at such time.


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


          “Multiemployer Plan” means a multiemployer plan, as defined in Section 4001(a)(3) of
ERISA, to which the Borrower or any ERISA Affiliate is making or accruing an obligation to make
contributions, or has within any of the preceding five plan years made or accrued an obligation to
make contributions.


          “Multiple Employer Plan” means a single employer plan, as defined in Section
4001(a)(15) of ERISA, that (a) is maintained for employees of the Borrower or any ERISA Affiliate
and at least one Person other than the Borrower and the ERISA Affiliates or (b) was so maintained
and in respect of which the Borrower or any ERISA Affiliate could have liability under Section 4064
or 4069 of ERISA in the event such plan has been or were to be terminated.


          “New Lenders” means, for purposes of Section 2.19, an Assignee, approved by the Agent
(which approval shall not be unreasonably withheld), that the Borrower has requested to become a
Lender hereunder pursuant to Section 2.19(c).


          “New Termination Date” has the meaning specified in Section 2.19(a).



15









 






          “Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting
Lender at such time.


          “Non-Extending Lender” has the meaning specified in Section 2.19(a).


          “Note” means a promissory note of the Borrower payable to the order of a Lender,
delivered pursuant to a request made under Section 2.16 in substantially the form of Exhibit
A hereto, evidencing the aggregate indebtedness of the Borrower to such Lender resulting from
the Advances made by such Lender.


          “Notice” has the meaning specified in Section 8.02(c).


          “Notice of Borrowing” has the meaning specified in Section 2.02(a).


          “Notice of Issuance” has the meaning specified in Section 2.03(a).


          “OFAC” means the U.S. Department of Treasury’s Office of Foreign Assets Control.


          “Other Taxes” has the meaning specified in Section 2.14(b).


          “Patriot Act” means the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56, signed into law
October 26, 2001.


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


          “Person” means an individual, partnership, corporation (including a business trust),
joint stock company, trust, unincorporated association, joint venture, limited liability company or
other entity, or a government or any political subdivision or agency thereof.


          “Plan” means a Single Employer Plan or a Multiple Employer Plan.


          “Platform” has the meaning specified in Section 8.02(b).


          “Prior Facility” means that certain Credit Agreement, dated as of July 11, 2007, by
and among the Borrower, the Initial Lenders, the Initial Issuing Banks, certain other lenders party
thereto and Citibank, N.A., as Agent (as such terms are defined therein).


          “Proposed Additional Commitment” has the meaning specified in Section 2.19(a).


          “Public Debt Rating” means, as of any date, the rating that has been most recently
announced by S&P, Moody’s or Fitch, as the case may be, for any class of non-credit-enhanced
long-term senior unsecured debt issued by the Borrower or, if any such rating agency shall have
issued more than one such rating, the lowest such rating issued by such rating agency (but not
lower than the rating, if any, assigned to the Facilities by such agency). For purposes of the
foregoing, (a) if only one of S&P, Moody’s and Fitch shall have in effect a Public Debt Rating, the
Applicable Margin and the Applicable Percentage shall be determined by reference to the




16











 




available rating; (b) if none of S&P, Moody’s or Fitch shall have in effect a Public Debt
Rating, the Applicable Margin and the Applicable Percentage will be set in accordance with Level 5
under the definition of “Applicable Margin” or “Applicable Percentage”, as the case
may be; (c) if the ratings established by S&P, Moody’s and Fitch shall each fall within different
levels, the Applicable Margin and the Applicable Percentage shall be based upon the middle rating;
(d) if the ratings established by S&P, Moody’s and Fitch shall fall within different levels and two
of such ratings fall within the same level (the “majority level”), the Applicable Margin
and Applicable Percentage shall be based on the majority level; (e) if any rating established by
S&P, Moody’s or Fitch shall be changed, such change shall be effective as of the date on which such
change is first announced publicly by the rating agency making such change; and (f) if S&P, Moody’s
or Fitch shall change the basis on which ratings are established, each reference herein to the
Public Debt Rating announced by S&P, Moody’s or Fitch, as the case may be, shall refer to the then
equivalent rating by S&P, Moody’s or Fitch, as the case may be.




          “Ratable Share” of any amount means, with respect to any Lender at any time, the
product of (a) a fraction the numerator of which is the amount of such Lender’s Revolving Credit
Commitment at such time and the denominator of which is the aggregate Revolving Credit Commitments
at such time and (b) such amount.




          “Reference Banks” means JPMCB, Citibank, N.A. and Bank of America, N.A.




          “Register” has the meaning specified in Section 8.07(e).




          “Required Lenders” means at any time Lenders owed or holding at least a majority in
interest of the sum of (a) the aggregate principal amount of the Advances outstanding at such time,
(b) the aggregate Available Amount of all Letters of Credit outstanding at such time and (c) the
aggregate Unused Revolving Credit Commitments at such time. For purposes of this definition, the
Available Amount of each Letter of Credit shall be considered to be owed to the Lenders ratably in
accordance with their respective Revolving Credit Commitments.




          “Responsible Officer” means the Chief Executive Officer, President, Chief Financial
Officer, Senior Vice President of Finance or Treasurer of the Borrower, but in any event, with
respect to financial matters, the Chief Financial Officer, Senior Vice President of Finance or
Treasurer of the Borrower.




          “Revolving Credit Commitment” means, as to any Lender, (a) the amount set forth
opposite such Lender’s name on Schedule I hereto as such Lender’s “Revolving Credit
Commitment”, (b) if such Lender has become a Lender hereunder pursuant to an Assumption Agreement,
the amount set forth as such Lender’s “Revolving Credit Commitment” in such Assumption Agreement or
(c) if such Lender has entered into any Assignment and Acceptance, the amount set forth as such
Lender’s “Revolving Credit Commitment” in the Register maintained by the Agent pursuant to Section
8.07(e), as such amount may be reduced pursuant to Section 2.05. The aggregate amount of the
Revolving Credit Commitments on the Effective Date is $750,000,000.







17









 








          “Revolving Credit Exposure” means, with respect to any Lender at any time, the sum of
the outstanding principal amount of all Advances made by such Lender (in its capacity as a Lender)
and its L/C Exposure at such time.




          “Revolving Credit Facility” means, at any time, the aggregate amount of the Lenders’
Revolving Credit Commitments at such time.




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




          “Single Employer Plan” means a single employer plan, as defined in Section 4001(a)(15)
of ERISA, that (a) is maintained for employees of the Borrower or any ERISA Affiliate and no Person
other than the Borrower and the ERISA Affiliates or (b) was so maintained and in respect of which
the Borrower or any ERISA Affiliate could have liability under Section 4069 of ERISA in the event
such plan has been or were to be terminated.




          “Subsidiary” of any Person means any corporation, partnership, joint venture, limited
liability company, trust or estate of which (or in which) more than 50% of (a) the issued and
outstanding capital stock having ordinary voting power to elect a majority of the board of
directors of such corporation (irrespective of whether at the time capital stock of any other class
or classes of such corporation shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of such limited liability company,
partnership or joint venture or (c) the beneficial interest in such trust or estate is at the time
directly or indirectly owned or controlled by such Person, by such Person and one or more of its
other Subsidiaries or by one or more of such Person’s other Subsidiaries. Unless otherwise
qualified, all references in this Agreement to a “Subsidiary” or “Subsidiaries” shall refer to a
Subsidiary of the Borrower.




          “Taxes” has the meaning specified in Section 2.14(a).




          “Termination Date” means, for any Lender, the earlier of (a) June 22, 2016, subject to
extension as provided in Section 2.19, and (b) the date of termination in whole of the Commitments
pursuant to Section 2.05 or 6.01.




          “Unissued Letter of Credit Commitment” means, with respect to any Issuing Bank, the
obligation of such Issuing Bank to issue Letters of Credit for the account of the Borrower or its
specified Subsidiaries in an amount equal to the excess of (a) the amount of its Letter of Credit
Commitment over (b) the aggregate Available Amount of all Letters of Credit issued by such Issuing
Bank.




          “Unused Revolving Credit Commitment” means, with respect to each Lender at any time,
(a) such Lender’s Revolving Credit Commitment at such time minus (b) the sum of (i) the
aggregate principal amount of all Advances made by such Lender (in its capacity as a Lender) and
outstanding at such time, plus (ii) such Lender’s Ratable Share of the aggregate Available
Amount of all the Letters of Credit outstanding at such time.




          “Voting Stock” means capital stock issued by a corporation, or equivalent interests in
any other Person, the holders of which are ordinarily, in the absence of contingencies,






18









 







entitled to vote for the election of directors (or persons performing similar functions) of
such Person, even if the right so to vote has been suspended by the happening of such a
contingency.




          SECTION 1.02. Terms Generally. With reference to this Agreement and each other Loan
Document, unless otherwise specified herein or in such other Loan Document:




The definitions of terms herein and therein 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 in a Loan Document to
Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, the Loan Document in which such references appear; 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 1.03. Computation of Time Periods. In this Agreement in the computation of
periods of time from a specified date to a later specified date, the word “from” means “from and
including” and the words “to” and “until” each mean “to but excluding”.




          SECTION 1.04. Accounting Terms. All accounting terms not specifically defined herein
shall be construed in accordance with generally accepted accounting principles consistent with
those applied in the preparation of the financial statements referred to in Section 4.01(e)
(“GAAP”). In the event that any Accounting Change (as defined below) shall occur and such
change results in a change in the method of calculation of financial covenants, standards or terms
in this Agreement, then the Borrower and the Agent agree to enter into good faith negotiations in
order to amend such provisions of this Agreement so as to reflect equitably such Accounting Changes
with the desired result that the criteria for evaluating the Borrower’s financial condition shall
be the same after such Accounting Changes as if such Accounting Changes had not been made. Until
such time as such an amendment shall have been executed and delivered by the Borrower, the Agent
and the Required Lenders, all financial covenants, standards and terms in this Agreement shall
continue to be calculated or construed as if such Accounting Changes had not occurred.
“Accounting Changes” refers to changes in accounting principles required by the
promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting
Standards Board of the American Institute of Certified Public Accountants or, if applicable, the
Securities and Exchange Commission.







19









 








ARTICLE II




AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT



          SECTION 2.01. The Advances and Letters of Credit. (a) Advances. Each Lender
severally agrees, on the terms and conditions hereinafter set forth, to make Advances to the
Borrower from time to time on any Business Day during the period from the Effective Date until the
Termination Date in an amount not to exceed at any time such Lender’s Unused Revolving Credit
Commitment. Each Borrowing shall be in an aggregate amount of $10,000,000 or an integral multiple
of $1,000,000 in excess thereof and shall consist of Advances of the same Type made on the same day
by the Lenders ratably according to their respective Revolving Credit Commitments. Within the
limits of each Lender’s Revolving Credit Commitment, the Borrower may borrow under this Section
2.01(a), prepay pursuant to Section 2.10 and reborrow under this Section 2.01(a).




          (b) Letters of Credit. Each Issuing Bank agrees, on the terms and conditions
hereinafter set forth, to issue letters of credit (each, a “Letter of Credit”) for the
support of the Borrower’s or its Subsidiaries’ obligations from time to time on any Business Day
during the period from the Effective Date until 30 days before the Termination Date in an aggregate
Available Amount (i) for all Letters of Credit issued by each Issuing Bank not to exceed at any
time the lesser of (x) the Letter of Credit Facility at such time and (y) such Issuing Bank’s
Letter of Credit Commitment at such time and (ii) for each such Letter of Credit not to exceed an
amount equal to the aggregate Unused Revolving Credit Commitments of the Lenders at such time.
Each Letter of Credit shall be for an amount of $50,000 or more. No Letter of Credit shall have an
expiration date (including all rights of the Borrower or the beneficiary to require renewal) later
than the earlier of (x) the date that is one year after the date of issuance thereof;
provided that any Letter of Credit which provides for automatic one-year extension(s) of
such expiration date shall be deemed to comply with the foregoing requirement if the Issuing Bank
has the unconditional right to prevent any such automatic extension from taking place and each
Issuing Bank hereby agrees to exercise such right to the extent necessary to prevent any such
Letter of Credit from being outstanding after the Termination Date or (y) five Business Days prior
to the Termination Date. Within the limits referred to above, the Borrower may request the
issuance of Letters of Credit under this Section 2.01(b), repay any Advances resulting from
drawings thereunder pursuant to Section 2.03(c) and request the issuance of additional Letters of
Credit under this Section 2.01(b). Each letter of credit listed on Schedule 2.01(b) shall
be deemed to constitute a Letter of Credit issued hereunder, and each Lender or each Affiliate of a
Lender that is an issuer of such a Letter of Credit shall, for purposes of Section 2.03, be deemed
to be an Issuing Bank for each such letter of credit; provided that any renewal or
replacement of any such letter of credit shall be issued by an Issuing Bank pursuant to the terms
of this Agreement.




          SECTION 2.02. Making the Advances. (a) Except as otherwise provided in Section
2.03(c), each Borrowing shall be made on notice, given not later than (x) 12:00 Noon (New York City
time) on the third Business Day prior to the date of the proposed Borrowing in the case of a
Borrowing consisting of Eurodollar Rate Advances or (y) 10:00 A.M. (New York City time) on the date
of the proposed Borrowing in the case of a Borrowing consisting of Base Rate Advances, by the
Borrower to the Agent, which shall give each Lender prompt notice






20









 







thereof by telecopier or other form of electronic communication satisfactory to the Agent.
Each such notice of a Borrowing (a “Notice of Borrowing”) shall be by telephone, confirmed
immediately in writing or by telecopier or other form of electronic communication satisfactory to
the Agent in substantially the form of Exhibit B hereto, specifying therein the requested
(i) date of such Borrowing, (ii) Type of Advances comprising such Borrowing, (iii) aggregate amount
of such Borrowing, and (iv) in the case of a Borrowing consisting of Eurodollar Rate Advances,
initial Interest Period for each such Advance. Each Lender shall, before 12:00 Noon (New York City
time) on the date of such Borrowing, make available for the account of its Applicable Lending
Office to the Agent at the Agent’s Account, in same day funds, such Lender’s ratable portion of
such Borrowing. After the Agent’s receipt of such funds and upon fulfillment of the applicable
conditions set forth in Article III, the Agent will make such funds available to the Borrower at
the Agent’s address referred to in Section 8.02.




          (b) Anything in subsection (a) above to the contrary notwithstanding, (i) the Borrower may not
select Eurodollar Rate Advances for any Borrowing if the aggregate amount of such Borrowing is less
than $10,000,000 or if the obligation of the Lenders to make Eurodollar Rate Advances shall then be
suspended pursuant to Section 2.08 or 2.12 and (ii) the Eurodollar Rate Advances may not be
outstanding as part of more than seven separate Borrowings.




          (c) Each Notice of Borrowing shall be irrevocable and binding on the Borrower. In the case of
any Borrowing that the related Notice of Borrowing specifies is to be comprised of Eurodollar Rate
Advances, the Borrower shall indemnify each Lender against any loss, cost or expense incurred by
such Lender as a result of any failure to fulfill on or before the date specified in such Notice of
Borrowing for such Borrowing the applicable conditions set forth in Article III, including any loss
(including loss of anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the Advance to be made by
such Lender as part of such Borrowing when such Advance, as a result of such failure, is not made
on such date.




          (d) Unless the Agent shall have received notice from a Lender prior to the time of any
Borrowing under a Facility under which such Lender has a Commitment that such Lender will not make
available to the Agent such Lender’s ratable portion of such Borrowing, the Agent may assume that
such Lender has made such portion available to the Agent on the date of such Borrowing in
accordance with subsection (a) of this Section 2.02, and the Agent may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount. If and to the
extent that such Lender shall not have so made such portion available to the Agent, such Lender and
the Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made available to the
Borrower until the date such amount is repaid to the Agent, at (i) in the case of the Borrower, the
interest rate applicable at the time to Advances comprising such Borrowing and (ii) in the case of
such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding
amount, such amount so repaid shall constitute such Lender’s Advance as part of such Borrowing for
purposes of this Agreement.




          (e) The failure of any Lender to make the Advance to be made by it as part of any Borrowing
shall not relieve any other Lender of its obligation, if any, hereunder to make its






21









 







Advance on the date of such Borrowing, but no Lender shall be responsible for the failure of
any other Lender to make the Advance to be made by such other Lender on the date of any Borrowing.




          SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of Credit. (a)
Request for Issuance. (i) Each Letter of Credit shall be issued upon notice, given not
later than 1:00 P.M. (New York City time) on the fifth Business Day prior to the date of the
proposed issuance of such Letter of Credit (or on such shorter notice as the applicable Issuing
Bank may agree), by the Borrower to any Issuing Bank, and such Issuing Bank shall give the Agent
prompt notice thereof by telecopier or other form of electronic communication satisfactory to the
Agent. Each such notice of issuance of a Letter of Credit (a “Notice of Issuance”) shall
be by telephone, confirmed immediately in writing or by telecopier or other form of electronic
communication satisfactory to the Issuing Bank, specifying therein the requested (A) date of such
issuance (which shall be a Business Day), (B) Available Amount of such Letter of Credit, (C)
expiration date of such Letter of Credit (which shall not be later than the earlier of five
Business Days prior to the Termination Date or one year after the date of issuance thereof;
provided that any Letter of Credit which provides for automatic one-year extension(s) of
such expiration date shall be deemed to comply with the foregoing requirement if the Issuing Bank
has the unconditional right to prevent any such automatic extension from taking place and each
Issuing Bank hereby agrees to exercise such right to the extent necessary to prevent any such
Letter of Credit from being outstanding after the Termination Date), (D) name and address of the
beneficiary of such Letter of Credit and (E) form of such Letter of Credit, and shall be
accompanied by such customary application and agreement for letter of credit as such Issuing Bank
may specify to the Borrower for use in connection with such requested Letter of Credit (a
“Letter of Credit Agreement”). If the requested form of such Letter of Credit is
acceptable to such Issuing Bank in its sole discretion, such Issuing Bank will, upon fulfillment of
the applicable conditions set forth in Article III, make such Letter of Credit available to the
Borrower at its office referred to in Section 8.02 or as otherwise agreed with the Borrower in
connection with such issuance. In the event and to the extent that the provisions of any Letter of
Credit Agreement shall conflict with this Agreement, the provisions of this Agreement shall govern.




          (b) 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
applicable Issuing Bank or the Lenders, such Issuing Bank hereby grants to each Lender, and each
Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to
such Lender’s Ratable Share of the Available Amount of such Letter of Credit. The Borrower hereby
agrees to each such participation. Each Lender acknowledges and agrees that its obligation to
acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and
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 Revolving Credit Commitments, and that each such payment shall be
made without any offset, abatement, withholding or reduction whatsoever. Each Lender further
acknowledges and agrees that its participation in each Letter of Credit will be automatically
adjusted to reflect such Lender’s Ratable Share of the Available Amount of such Letter of Credit at
each time such Lender’s Revolving Credit Commitment is amended






22









 







pursuant to the operation of Section 2.18, by an assignment in accordance with Section 8.07 or
otherwise pursuant to this Agreement.




          (c) Drawing and Reimbursement. The payment by an Issuing Bank of a draft drawn under
any Letter of Credit shall constitute for all purposes of this Agreement the making by such Issuing
Bank of an Advance, which shall be a Base Rate Advance, in the amount of such draft. Each Issuing
Bank shall give prompt notice (and such Issuing Bank will use its commercially reasonable efforts
to deliver such notice within one Business Day) to the Borrower and the Agent of each drawing under
any Letter of Credit issued by it. Upon written demand by such Issuing Bank, with a copy of such
demand to the Agent, each Lender shall pay to the Agent such Lender’s Ratable Share of such
outstanding Advance, by making available for the account of its Applicable Lending Office to the
Agent for the account of such Issuing Bank, by deposit to the Agent’s Account, in same day funds,
an amount equal to the portion of the outstanding principal amount of such Advance to be funded by
such Lender. Promptly after receipt thereof, the Agent shall transfer such funds to such Issuing
Bank. Each Lender agrees to fund its Ratable Share of such outstanding Advance on (i) the Business
Day on which demand therefor is made by such Issuing Bank, provided that notice of such
demand is given not later than 11:00 A.M. (New York City time) on such Business Day, or (ii) the
first Business Day next succeeding such demand if notice of such demand is given after such time.
If and to the extent that any Lender shall not have so made the amount of such Advance available to
the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with
interest thereon, for each day from the date of demand by any such Issuing Bank until the date such
amount is paid to the Agent, at the Federal Funds Rate for its account or the account of such
Issuing Bank, as applicable. If such Lender shall pay to the Agent such amount for the account of
any such Issuing Bank on any Business Day, such amount so paid in respect of principal shall
constitute an Advance made by such Lender on such Business Day for purposes of this Agreement, and
the outstanding principal amount of the Advance made by such Issuing Bank shall be reduced by such
amount on such Business Day.




          (d) Letter of Credit Reports. Each Issuing Bank shall furnish (i) to the Agent on the
first Business Day of each month a written report summarizing issuance and expiration dates of
Letters of Credit issued by it during the preceding month and drawings during such month under all
Letters of Credit and (ii) to the Agent and each Lender on the first Business Day of each calendar
quarter a written report setting forth the average daily aggregate Available Amount during the
preceding calendar quarter of all Letters of Credit issued by it.




          (e) Failure to Make Advances. The failure of any Lender to make the Advance to be
made by it on the date specified in Section 2.03(c) shall not relieve any other Lender of its
obligation hereunder to make its Advance on such date, but no Lender shall be responsible for the
failure of any other Lender to make the Advance to be made by such other Lender on such date.




          (f) Applicability of ISP and UCP. Unless otherwise expressly agreed by the Issuing
Bank and the Borrower when a Letter of Credit is issued, (i) the rules of the International Standby
Practices (1998 Revision) International Chamber of Commerce Publication No. 590 shall apply to each
standby Letter of Credit, and (ii) the rules of the Uniform Customs and






23









 







Practice for Documentary Credits, as most recently published by the International Chamber of
Commerce at the time of issuance, shall apply to each commercial Letter of Credit.




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




          SECTION 2.04. Fees. (a) Facility Fee. The Borrower agrees to pay to the
Agent for the account of each Lender a facility fee on the average daily amount of such Lender’s
Revolving Credit Commitment (whether used or unused) from the date hereof in the case of each
Initial Lender and from the effective date specified in the Assumption Agreement or in the
Assignment and Acceptance pursuant to which it became a Lender in the case of each other Lender
until the Termination Date at a rate per annum equal to the Applicable Percentage in effect from
time to time, payable in arrears quarterly on the last day of each March, June, September and
December, commencing June 30, 2011, and on the Termination Date.




          (b) Letter of Credit Fees. (i) The Borrower shall pay to the Agent for the account
of each Lender a commission (the “Letter of Credit Fee”) on such Lender’s Ratable Share of
the average daily aggregate Available Amount of all Letters of Credit outstanding from time to time
at a rate per annum equal to the Applicable Margin for Eurodollar Rate Advances in effect from time
to time, payable in arrears quarterly on the last day of each March, June, September and December,
commencing June 30, 2011, and on the Termination Date, and after the Termination Date, payable upon
demand; provided that the Applicable Margin shall increase by 2% upon the occurrence and
during the continuation of an Event of Default if the Borrower is required to pay default interest
pursuant to Section 2.07(b).





     (ii) The Borrower shall pay to each Issuing Bank for its own account such reasonable
and customary fronting, issuance, presentation, amendment and other processing fees as may
from time to time be agreed in writing between the Borrower and such Issuing Bank.



          (c) Agent’s Fees. The Borrower shall pay to the Agent for its own account such fees
as have been agreed between the Borrower and the Agent.




          SECTION 2.05. Optional Termination or Reduction of the Commitments. (a) The Borrower
shall have the right, upon at least three Business Days’ notice to the Agent, to terminate in whole
or permanently reduce ratably in part the Unused Revolving Credit Commitments or the Unissued
Letter of Credit Commitments; provided that each partial reduction of a Facility (i) shall
be in the aggregate amount of $10,000,000 or an integral multiple of $1,000,000 in excess thereof
and (ii) with respect to the Revolving Credit Facility, shall be made ratably among the Lenders in
accordance with their Commitments.







24









 








          (b) The Borrower may terminate the unused amount of the Commitment of any Lender that is a
Defaulting Lender upon not less than five Business Days’ prior notice to the Agent (which shall
promptly notify the Lenders thereof), and in such event the provisions of Section 2.20(a)(ii) will
apply to all amounts thereafter paid by the Borrower for the account of such Defaulting Lender
under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts);
provided that (i) no Event of Default shall have occurred and be continuing, and (ii) such
termination shall not be deemed to be a waiver or release of any claim the Borrower, the Agent, any
Issuing Bank or any Lender may have against such Defaulting Lender.




          SECTION 2.06. Repayment. (a) Advances. The Borrower shall repay to the
Agent for the ratable account of the Lenders on the Termination Date the aggregate principal amount
of the Advances then outstanding.




          (b) Letter of Credit Reimbursements. Without limiting Section 8.12 hereof, it is
understood and agreed that the obligations of the Borrower under this Agreement, any Letter of
Credit Agreement and any other agreement or instrument relating to any Letter of Credit shall be
unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement, such Letter of Credit Agreement and such other agreement or instrument under all
circumstances, including the following circumstances (it being understood that any such payment by
the Borrower is without prejudice to, and does not constitute a waiver of, any rights the Borrower
might have or might acquire as a result of the payment by any Lender of any draft or the
reimbursement by the Borrower thereof):





     (i) any lack of validity or enforceability of this Agreement, any Letter of Credit, any
Letter of Credit Agreement or any other agreement or instrument, in each case, relating
thereto (all of the foregoing being, collectively, the “L/C Related Documents”);




     (ii) any change in the time, manner or place of payment of, or in any other term of,
all or any of the obligations of the Borrower in respect of any L/C Related Document or any
other amendment or waiver of or any consent to departure from all or any of the L/C Related
Documents;




     (iii) the existence of any claim, set-off, defense or other right that the Borrower may
have at any time against any beneficiary or any transferee of a Letter of Credit (or any
Persons for which any such beneficiary or any such transferee may be acting), any Issuing
Bank, the Agent, any Lender or any other Person, whether in connection with the transactions
contemplated by the L/C Related Documents or any unrelated transaction;




     (iv) any statement or any other document presented under a Letter of Credit proving to
be forged, fraudulent, invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect;




     (v) payment by any Issuing Bank under a Letter of Credit against presentation of a
draft or certificate that does not strictly comply with the terms of such Letter of Credit;



25









 






     (vi) any exchange, release or non-perfection of any collateral, or any release or
amendment or waiver of or consent to departure from any guarantee, for all or any of the
obligations of the Borrower in respect of the L/C Related Documents; or




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



          SECTION 2.07. Interest on Advances. (a) Scheduled Interest. The Borrower
shall pay interest on the unpaid principal amount of each Advance owing to each Lender from the
date of such Advance until such principal amount shall be paid in full, at the following rates per
annum:





     (i) Base Rate Advances. During such periods as such Advance is a Base Rate
Advance, a rate per annum equal at all times to the Base Rate in effect from time to time,
payable in arrears quarterly on the last day of each March, June, September and December
during such periods and on the date such Base Rate Advance shall be Converted or paid in
full.




     (ii) Eurodollar Rate Advances. During such periods as such Advance is a
Eurodollar Rate Advance, a rate per annum equal at all times during each Interest Period for
such Advance to the sum of (x) the Eurodollar Rate for such Interest Period for such Advance
plus (y) the Applicable Margin in effect from time to time, payable in arrears on the last
day of such Interest Period and, if such Interest Period has a duration of more than three
months, on each day that occurs during such Interest Period every three months from the
first day of such Interest Period and on the date such Eurodollar Rate Advance shall be
Converted or paid in full.



          (b) Default Interest. Upon the occurrence and during the continuance of an Event of
Default, the Agent may, and upon the request of the Required Lenders shall, require the Borrower to
pay interest (“Default Interest”) on (i) the unpaid principal amount of each Advance owing
to each Lender, payable in arrears on the dates referred to in clause (a)(i) or (a)(ii) above, at a
rate per annum equal at all times to 2% per annum above the rate per annum required to be paid on
such Advance pursuant to clause (a)(i) or (a)(ii) above, as applicable, and (ii) to the fullest
extent permitted by law, the amount of any interest, fee or other amount payable hereunder that is
not paid when due, from the date such amount shall be due until such amount shall be paid in full,
payable in arrears on the date such amount shall be paid in full and on demand, at a rate per annum
equal at all times to 2% per annum above the rate per annum required to be paid on Base Rate
Advances pursuant to clause (a)(i) above; provided, however, that following
acceleration of the maturity of the Advances pursuant to Section 6.01, Default Interest shall
accrue and be payable hereunder whether or not previously required by the Agent.




          SECTION 2.08. Interest Rate Determination. (a) Each Reference Bank agrees to furnish
to the Agent timely information for the purpose of determining each Eurodollar Rate. If any one or
more of the Reference Banks shall not furnish such timely information to the Agent for the purpose
of determining any such interest rate, the Agent shall determine such interest rate on the basis of
timely information furnished by the remaining Reference Banks. The Agent shall






26









 







give prompt notice to the Borrower and the Lenders of the applicable interest rate determined
by the Agent for purposes of Section 2.07(a)(i) or (ii), and the rate, if any, furnished by each
Reference Bank for the purpose of determining the interest rate under Section 2.07(a)(ii).




          (b) If, with respect to any Eurodollar Rate Advances under any Facility, the Lenders owed at
least 51% of the aggregate principal amount thereof notify the Agent that the Eurodollar Rate for
any Interest Period for such Advances will not adequately reflect the cost to such Required Lenders
of making, funding or maintaining their respective Eurodollar Rate Advances for such Interest
Period, the Agent shall forthwith so notify the Borrower and the Lenders, whereupon (i) each
Eurodollar Rate Advance will automatically, on the last day of the then existing Interest Period
therefor, Convert into a Base Rate Advance, and (ii) the obligation of the Lenders to make, or to
Convert Advances into, Eurodollar Rate Advances shall be suspended and such Lenders have determined
that the circumstances causing such suspension no longer exist and the Agent shall so notify the
Borrower.




          (c) If the Borrower shall fail to select the duration of any Interest Period for any
Eurodollar Rate Advances in accordance with the provisions contained in the definition of “Interest
Period” in Section 1.01, the Agent will forthwith so notify the Borrower and the Lenders and such
Advances will automatically, on the last day of the then existing Interest Period therefor, Convert
into Base Rate Advances.




          (d) On the date on which the aggregate unpaid principal amount of Eurodollar Rate Advances
comprising any Borrowing shall be reduced, by payment or prepayment or otherwise, to less than
$10,000,000, such Advances shall automatically, on the last day of the then existing Interest
Period therefor, Convert into Base Rate Advances.




          (e) Upon the occurrence and during the continuance of any Event of Default, (i) each
Eurodollar Rate Advance will automatically, on the last day of the then existing Interest Period
therefor, Convert into a Base Rate Advance and (ii) the obligation of the Lenders to make, or to
Convert Advances into, Eurodollar Rate Advances shall be suspended.




          (f) If the Reuters LIBOR01 Screen (or any successor page) is unavailable and fewer than two
Reference Banks furnish timely information to the Agent for determining the Eurodollar Rate for any
Eurodollar Rate Advances:





     (i) the Agent shall forthwith notify the Borrower and the Lenders that the interest
rate cannot be determined for such Eurodollar Rate Advances;




     (ii) each outstanding Eurodollar Rate Advance will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Base Rate Advance (or if such
Advance is then a Base Rate Advance, will continue as a Base Rate Advance); and




     (iii) the obligation of the Lenders to make Eurodollar Rate Advances or to Convert
Advances into Eurodollar Rate Advances shall be suspended until the Agent shall notify the
Borrower and the Lenders that the circumstances causing such suspension no longer exist.



27









 





          SECTION 2.09. Optional Conversion of Advances. The Borrower may on any Business Day,
upon notice given to the Agent not later than 12:00 Noon (New York City time) on the third Business
Day prior to the date of the proposed Conversion and subject to the provisions of Sections 2.08 and
2.12, Convert all or any portion of Advances of one Type comprising the same Borrowing into
Advances of the other Type; provided, however, that (a) any Conversion of
Eurodollar Rate Advances into Base Rate Advances shall be made only on the last day of an Interest
Period for such Eurodollar Rate Advances, (b) any Conversion of Base Rate Advances into Eurodollar
Rate Advances shall be in an amount not less than the minimum amount specified in Section 2.02(b),
(c) no Conversion of any Advances shall result in more separate Borrowings than permitted under
Section 2.02(b) and (d) each Conversion of Advances comprising part of the same Borrowing under any
Facility shall be made ratably among the Lenders in accordance with their Commitments under such
Facility. Each such notice of a Conversion shall, within the restrictions specified above, specify
(i) the date of such Conversion, (ii) the Advances to be Converted, and (iii) if such Conversion is
into Eurodollar Rate Advances, the duration of the initial Interest Period for each such Advance.
Each notice of Conversion shall be irrevocable and binding on the Borrower.




          SECTION 2.10. Prepayments of Advances. The Borrower may, upon notice at least three
Business Days prior to the date of such prepayment, in the case of Eurodollar Rate Advances, and
not later than 12:00 Noon (New York City time) on the date of such prepayment, in the case of Base
Rate Advances, to the Agent stating the proposed date and aggregate principal amount of the
prepayment, and if such notice is given the Borrower shall prepay the outstanding principal amount
of the Advances comprising part of the same Borrowing in whole or ratably in part, together with
accrued interest to the date of such prepayment on the principal amount prepaid; provided,
however, that (x) each partial prepayment shall be in an aggregate principal amount of
$10,000,000 or an integral multiple of $1,000,000 in excess thereof and (y) in the event of any
such prepayment of a Eurodollar Rate Advance, the Borrower shall be obligated to reimburse the
Lenders in respect thereof pursuant to Section 8.04(c).




          SECTION 2.11. Increased Costs. (a) If any Change in Law shall:





     (i) impose, modify or deem applicable any reserve, special deposit or similar
requirement (including any compulsory loan requirement, insurance charge or other
assessment) against assets of, deposits with or for the account of, or credit extended by,
any Lender (except any such reserve requirement reflected in the Eurodollar Rate) or Issuing
Bank; or




     (ii) impose on any Lender or Issuing Bank or the London interbank market any other
condition, cost or expense affecting this Agreement or Eurodollar Rate Advances made by such
Lender or any Letter of Credit or participation therein;


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Rate Advance (or of maintaining its obligation to make any such Advance)
or to increase the cost to such Lender or 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
Issuing Bank hereunder (whether of principal, interest or otherwise), then the Borrower will pay to
such Lender or Issuing Bank, as the case may be, such additional amount or






28









 







amounts as will compensate such Lender or Issuing Bank, as the case may be, for such additional
costs incurred or reduction suffered.




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




          (c) A certificate of a Lender or Issuing Bank setting forth the amount or amounts necessary to
compensate such Lender or Issuing Bank or its holding company, as the case may be, as specified in
paragraph (a) or (b) of this Section shall be delivered to the Borrower and shall be conclusive
absent manifest error. The Borrower shall pay such Lender or Issuing Bank, as the case may be, the
amount shown as due on any such certificate within 15 days after receipt thereof.




          (d) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant
to this Section shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand
such compensation; provided that the Borrower shall not be required to compensate a Lender
or Issuing Bank pursuant to this Section for any increased costs or reductions incurred more than
180 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the
Borrower of the Change in Law giving rise to such increased costs or reductions and of such
Lender’s or 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 180-day period referred to above shall be extended to include the period of
retroactive effect thereof.




          SECTION 2.12. Illegality. Notwithstanding any other provision of this Agreement, if
any Lender shall notify the Agent that any Change in Law makes it unlawful, or any Governmental
Authority asserts that it is unlawful, for any Lender or its Eurodollar Lending Office to perform
its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate
Advances hereunder, (a) each Eurodollar Rate Advance will automatically, upon such demand, Convert
into a Base Rate Advance and (b) the obligation of the Lenders to make Eurodollar Rate Advances or
to Convert Advances into Eurodollar Rate Advances shall be suspended until the Agent shall notify
the Borrower and the Lenders that the circumstances causing such suspension no longer exist;
provided, however, that, before making any such demand, each Lender agrees to use
reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to
designate a different Eurodollar Lending Office if the making of such a designation would allow
such Lender or its Eurodollar Lending Office to continue to perform its obligations to make
Eurodollar Rate Advances or to continue to fund or






29









 







maintain Eurodollar Rate Advances and would not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender.




          SECTION 2.13. Payments and Computations. (a) The Borrower shall make each payment
hereunder, irrespective of any right of counterclaim or set-off, not later than 11:00 A.M. (New
York City time) on the day when due in U.S. dollars to the Agent at the Agent’s Account in same day
funds. The Agent will promptly thereafter cause to be distributed like funds relating to the
payment of principal, interest, fees or commissions ratably (other than amounts payable pursuant to
Section 2.04(b)(ii), 2.11, 2.14, 2.20 or 8.04(c)) to the Lenders for the account of their
respective Applicable Lending Offices, and like funds relating to the payment of any other amount
payable to any Lender to such Lender for the account of its Applicable Lending Office, in each case
to be applied in accordance with the terms of this Agreement. Upon any Assuming Lender becoming a
Lender hereunder as a result of a Commitment Increase pursuant to Section 2.18, and upon the
Agent’s receipt of such Lender’s Assumption Agreement and recording of the information contained
therein in the Register, from and after the applicable Increase Date, the Agent shall make all
payments hereunder and under any Notes issued in connection therewith in respect of the interest
assumed thereby to the Assuming Lender. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to Section 8.07(c), from
and after the effective date specified in such Assignment and Acceptance, the Agent shall make all
payments hereunder and under the Notes in respect of the interest assigned thereby to the Lender
assignee thereunder, and the parties to such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective date directly between themselves.




          (b) The Borrower hereby authorizes each Lender, if and to the extent payment owed to such
Lender is not made when due hereunder or under the Note held by such Lender, to charge from time to
time against any or all of the Borrower’s accounts with such Lender any amount so due.




          (c) All computations of interest based on the Base Rate shall be made by the Agent on the
basis of a year of 365 or 366 days, as the case may be, and all computations of interest based on
the Eurodollar Rate or the Federal Funds Rate and of fees and Letter of Credit commissions shall be
made by the Agent on the basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for which such
interest, fees or commissions are payable. Each determination by the Agent of an interest rate
hereunder shall be presumed correct for all purposes, absent manifest error.




          (d) Whenever any payment hereunder or under the Notes shall be stated to be due on a day other
than a Business Day, such payment shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of payment of interest, fee or
commission, as the case may be; provided, however, that, if such extension would
cause payment of interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding Business Day.







30









 








          (e) Unless the Agent shall have received notice from the Borrower prior to the date on which
any payment is due to the Lenders hereunder that the Borrower will not make such payment in full,
the Agent may assume that the Borrower has made such payment in full to the Agent on such date and
the Agent may, in reliance upon such assumption, cause to be distributed to each Lender on such due
date an amount equal to the amount then due such Lender. If and to the extent the Borrower shall
not have so made such payment in full to the Agent, each Lender shall repay to the Agent forthwith
on demand such amount distributed to such Lender together with interest thereon, for each day from
the date such amount is distributed to such Lender until the date such Lender repays such amount to
the Agent, at the Federal Funds Rate.




          SECTION 2.14. Taxes. (a) Any and all payments by the Borrower to or for the account
of any Lender or the Agent hereunder or under the Notes or any other documents to be delivered
hereunder shall be made, in accordance with Section 2.13 or the applicable provisions of such other
documents, free and clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender and the Agent, taxes imposed on its overall net
income, and franchise and excise taxes imposed on it in lieu of net income taxes, imposed on such
Lender or the Agent (as the case may be) as a result of a present or former connection between such
Lender or the Agent and the jurisdiction of the Governmental Authority imposing such tax or any
political subdivision thereof or taxing authority thereof or therein (other than any such
connection arising solely from such Lender or the Agent having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement or any of the Notes) (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities in respect
of payments hereunder or under the Notes being hereinafter referred to as “Taxes”). If the
Borrower shall be required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under any Note or any other documents to be delivered hereunder to any Lender or the
Agent, (i) the sum payable shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under this Section 2.14)
such Lender or the Agent (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make such deductions and (iii)
the Borrower shall pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.




          (b) In addition, the Borrower shall pay any present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies that arise from any payment made
hereunder or under the Notes or any other documents to be delivered hereunder or from the
execution, delivery or registration of, performing under, or otherwise with respect to, this
Agreement or the Notes or any other documents to be delivered hereunder (hereinafter referred to as
“Other Taxes”).




          (c) The Borrower shall indemnify each Lender and the Agent for and hold it harmless against
the full amount of Indemnified Taxes or Other Taxes (including taxes of any kind imposed or
asserted by any jurisdiction on amounts payable under this Section 2.14) imposed on or paid by such
Lender or the Agent (as the case may be) and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto. This indemnification shall be made within 30
days from the date such Lender or the Agent (as the case may be) makes written demand therefor.







31









 








          (d) Within 30 days after the date of any payment of Taxes, the Borrower shall furnish to the
Agent, at its address referred to in Section 8.02, the original or a certified copy of a receipt
evidencing such payment to the extent such a receipt is issued therefor, or other written proof of
payment thereof that is reasonably satisfactory to the Agent. In the case of any payment hereunder
or under the Notes or any other documents to be delivered hereunder by or on behalf of the Borrower
through an account or branch outside the United States or by or on behalf of the Borrower by a
payor that is not a United States person, if the Borrower determines that no Taxes are payable in
respect thereof, the Borrower shall furnish, or shall cause such payor to furnish, to the Agent, at
such address, an opinion of counsel acceptable to the Agent stating that such payment is exempt
from Taxes. For purposes of this subsection (d) and subsection (e), the terms “United
States” and “United States person” shall have the meanings specified in Section 7701 of
the Internal Revenue Code.




          (e) Each Lender organized under the laws of a jurisdiction outside the United States, on or
prior to the date of its execution and delivery of this Agreement in the case of each Initial
Lender and on the date of the Assumption Agreement or the Assignment and Acceptance pursuant to
which it becomes a Lender in the case of each other Lender, and from time to time thereafter as
reasonably requested in writing by the Borrower (but only so long as such Lender remains lawfully
able to do so), shall provide each of the Agent and the Borrower with two original Internal Revenue
Service Forms W-8BEN or W-8ECI, as appropriate, or any successor or other form prescribed by the
Internal Revenue Service, certifying that such Lender is exempt from or entitled to a reduced rate
of United States withholding tax on payments pursuant to this Agreement or the Notes. If the form
provided by a Lender at the time such Lender first becomes a party to this Agreement indicates a
United States interest withholding tax rate in excess of zero, withholding tax at such rate shall
be considered excluded from Taxes unless and until such Lender provides the appropriate forms
certifying that a lesser rate applies, whereupon withholding tax at such lesser rate only shall be
considered excluded from Taxes for periods governed by such form; provided,
however, that, if at the date of the Assignment and Acceptance pursuant to which a Lender
assignee becomes a party to this Agreement, the Lender assignor was entitled to payments under
subsection (a) in respect of United States withholding tax with respect to interest paid at such
date, then, to such extent, the term “Taxes” shall include (in addition to withholding taxes that
may be imposed in the future or other amounts otherwise includable in Taxes) United States
withholding tax, if any, applicable with respect to the Lender assignee on such date. If any form
or document referred to in this subsection (e) requires the disclosure of information, other than
information necessary to compute the tax payable and information required on the date hereof by
Internal Revenue Service Form W-8BEN or W-8ECI, that the Lender reasonably considers to be
confidential, the Lender shall give notice thereof to the Borrower and shall not be obligated to
include in such form or document such confidential information.




          (f) For any period with respect to which a Lender has failed to provide the Borrower with the
appropriate form, certificate or other document described in
Section 2.14(e) (other than if such
failure is due to a Change in Law occurring subsequent to the date on which a form, certificate or
other document originally was required to be provided, or if such form, certificate or other
document otherwise is not required under subsection (e) above), such Lender shall not be entitled
to indemnification under Section 2.14(a) or (c) with respect to Taxes imposed by the United States
by reason of such failure; provided, however, that should a Lender






32









 







become subject to Taxes because of its failure to deliver a form, certificate or other
document required hereunder, the Borrower shall take such steps as the Lender shall reasonably
request to assist the Lender to recover such Taxes.




          (g) If the Agent or any Lender determines, in its sole discretion, that it has received a
refund of any Taxes or Other Taxes as to which it has been indemnified by the Borrower or with
respect to which the Borrower has paid additional amounts pursuant to this Section 2.14, 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 2.14 with respect to the Taxes or Other
Taxes giving rise to such refund), net of all out-of-pocket expenses of the 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 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 Agent or such Lender in the event
the Agent or such Lender is required to repay such refund to such Governmental Authority. This
paragraph shall not be construed to require the Agent or any Lender to make available its tax
returns (or any other information relating to its taxes which it deems confidential) to the
Borrower or any other Person.




          (h) Any Lender claiming any additional amounts payable pursuant to this Section 2.14 agrees to
use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions)
to change the jurisdiction of its Eurodollar Lending Office if the making of such a change would
avoid the need for, or reduce the amount of, any such additional amounts that may thereafter accrue
and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such
Lender.




          SECTION 2.15. Sharing of Payments, Etc. If any Lender shall obtain any payment
(whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on
account of the Advances owing to it (other than pursuant to Section 2.11, 2.14, 2.20 or 8.04(c)) in
excess of its Ratable Share of payments on account of the Advances obtained by all the Lenders,
such Lender shall forthwith purchase from the other Lenders such participations in the Advances
owing to them as shall be necessary to cause such purchasing Lender to share the excess payment
ratably with each of them; provided, however, that, if all or any portion of such
excess payment is thereafter recovered from such purchasing Lender, such purchase from each Lender
shall be rescinded and such Lender shall repay to the purchasing Lender the purchase price to the
extent of such recovery together with an amount equal to such Lender’s Ratable Share (according to
the proportion of (i) the amount of such Lender’s required repayment to (ii) the total amount so
recovered from the purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered; provided, further,
that, so long as the maturity of the obligations under this Agreement and the Notes shall not have
been accelerated, any excess payment received by any Lender shall be shared on a pro rata basis
only with other Lenders. The Borrower agrees that any Lender so purchasing a participation from
another Lender pursuant to this Section 2.15 may, to the fullest extent permitted by law, exercise
all its rights of payment (including the right of set-off) with respect to such participation as
fully as if such Lender were the direct creditor of the Borrower in the amount of such
participation.







33









 








          SECTION 2.16. Evidence of Debt. (a) 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 Advance owing to such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time hereunder in respect of
Advances. The Borrower agrees that upon notice by any Lender to the Borrower (with a copy of such
notice to the Agent) to the effect that a Note is required or appropriate in order for such Lender
to evidence (whether for purposes of pledge, enforcement or otherwise) the Advances owing to, or to
be made by, such Lender, the Borrower shall promptly execute and deliver to such Lender a Note in
substantially the form of Exhibit A hereto, payable to the order of such Lender in a
principal amount equal to the Revolving Credit Commitment of such Lender.




          (b) The Register maintained by the Agent pursuant to Section 8.07(e) shall include a control
account, and a subsidiary account for each Lender, in which accounts (taken together) shall be
recorded (i) the date and amount of each Borrowing made hereunder, the Type of Advances comprising
such Borrowing and, if appropriate, the Interest Period applicable thereto, (ii) the terms of each
Assumption Agreement and each Assignment and Acceptance delivered to and accepted by it, (iii) the
amount of any principal or interest due and payable or to become due and payable from the Borrower
to each Lender hereunder and (iv) the amount of any sum received by the Agent from the Borrower
hereunder and each Lender’s share thereof.




          (c) Entries made in good faith by the Agent in the Register pursuant to subsection (b) above,
and by each Lender in its account or accounts pursuant to subsection (a) above, shall be prima
facie evidence of the amount of principal and interest due and payable or to become due and payable
from the Borrower to, in the case of the Register, each Lender and, in the case of such account or
accounts, such Lender, under this Agreement, absent manifest error; provided,
however, that the failure of the Agent or such Lender to make an entry, or any finding that
an entry is incorrect, in the Register or such account or accounts shall not limit or otherwise
affect the obligations of the Borrower under this Agreement.




          SECTION 2.17. Use of Proceeds. The proceeds of the Advances shall be available (and
the Borrower agrees that it shall use such proceeds) for refinancing of the Prior Facility and for
general corporate purposes of the Borrower and its Subsidiaries.




          SECTION 2.18. Increase in the Aggregate Revolving Credit Commitments. (a) The
Borrower may, at any time prior to the Termination Date, by notice to the Agent, request that the
aggregate amount of the Revolving Credit Commitments be increased by an amount of at least
$10,000,000 or an integral multiple thereof (each a “Commitment Increase”) to be effective
as of a date that is at least 90 days prior to the scheduled Termination Date then in effect (the
“Increase Date”) as specified in the related notice to the Agent; provided,
however that (i) in no event shall the aggregate amount of the Revolving Credit Commitments
at any time exceed $1,000,000,000 and (ii) on the date of any request by the Borrower for a
Commitment Increase and on the related Increase Date the conditions set forth in Section 3.02 shall
have been satisfied.




          (b) The Agent shall promptly notify the Lenders of a request by the Borrower for a Commitment
Increase, which notice shall include (i) the proposed amount of such requested Commitment Increase,
(ii) the proposed Increase Date and (iii) the date by which






34









 






Lenders wishing to participate in the Commitment Increase must commit to an increase in the
amount of their respective Revolving Credit Commitments (the “Commitment Date”). Each
Lender that is willing to participate in such requested Commitment Increase (each an
“Increasing Lender”) shall, in its sole discretion, give written notice to the Agent on or
prior to the Commitment Date of the amount by which it is willing to increase its Revolving Credit
Commitment. If the Lenders notify the Agent that they are willing to increase the amount of their
respective Revolving Credit Commitments by an aggregate amount that exceeds the amount of the
requested Commitment Increase, the requested Commitment Increase shall be allocated among the
Lenders willing to participate therein in such amounts as are agreed between the Borrower and the
Agent.




          (c) Promptly following each Commitment Date, the Agent shall notify the Borrower as to the
amount, if any, by which the Lenders are willing to participate in the requested Commitment
Increase. If the aggregate amount by which the Lenders are willing to participate in any requested
Commitment Increase on any such Commitment Date is less than the requested Commitment Increase,
then the Borrower may extend offers to one or more Eligible Assignees to participate in any portion
of the requested Commitment Increase that has not been committed to by the Lenders as of the
applicable Commitment Date; provided, however, that the Revolving Credit Commitment
of each such Eligible Assignee shall be in an amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof.




          (d) On each Increase Date, each Eligible Assignee that accepts an offer to participate in a
requested Commitment Increase in accordance with Section 2.18(c) (each such Eligible Assignee, an
“Assuming Lender”) shall become a Lender party to this Agreement as of such Increase Date
and the Revolving Credit Commitment of each Increasing Lender for such requested Commitment
Increase shall be so increased by such amount (or by the amount allocated to such Lender pursuant
to the last sentence of Section 2.18(b)) as of such Increase Date; provided,
however, that the Agent shall have received on or before such Increase Date the following,
each dated such date:





     (i) (A) a certificate signed by a duly authorized officer of the Borrower attaching the
Borrower’s certificate of incorporation and by-laws; (B) certified copies of resolutions of
the board of directors of the Borrower or the executive committee of such board approving
the Commitment Increase and the corresponding modifications to this Agreement, (C) a good
standing certificate of the Borrower issued by the Secretary of State of the State of
Delaware and (D) opinions of counsel for the Borrower (which may be in-house counsel), in
substantially the forms of Exhibits D-1 and D-2 hereto;




     (ii) an assumption agreement from each Assuming Lender, if any, in form and substance
satisfactory to the Borrower and the Agent (each an “Assumption Agreement”), duly
executed by such Assuming Lender, the Agent and the Borrower; and




     (iii) confirmation from each Increasing Lender of the increase in the amount of its
Revolving Credit Commitment in a writing satisfactory to the Borrower and the Agent.



35









 




On each Increase Date, upon fulfillment of the conditions set forth in the immediately preceding
sentence of this Section 2.18(d) and in Section 3.02, the Agent shall notify the Lenders (including
each Assuming Lender) and the Borrower, on or before 1:00 P.M. (New York City time), by telecopier
or other form of electronic communication satisfactory to the Agent, of the occurrence of the
Commitment Increase to be effected on such Increase Date and shall record in the Register the
relevant information with respect to each Increasing Lender and each Assuming Lender on such date.




          (e) On the Increase Date, if any Advances are then outstanding, the Borrower shall borrow from
all or certain of the Lenders and/or (subject to compliance by the Borrower with Section 8.04(c))
prepay Advances of all or certain of the Lenders such that, after giving effect thereto, the
Advances (including the Types and Interest Periods thereof) shall be held by the Lenders (including
for such purposes the Increasing Lenders and the Assuming Lenders) ratably in accordance with their
respective Revolving Credit Commitments. On and after each Increase Date, the Ratable Share of
each Lender’s participation in Letters of Credit and Advances from draws under Letters of Credit
shall be calculated after giving effect to each such Commitment Increase.




          SECTION 2.19. Extension of Termination Date.




          (a) The Borrower may, by notice to the Agent (which shall promptly notify the Lenders) not
less than 45 days and not more than 90 days prior to each of the first and second anniversaries of
the Effective Date (each anniversary, an “Anniversary Date”), request that each Lender
extend such Lender’s Termination Date to the date (the “New Termination Date”) that is one
year after the then Termination Date. Each Lender, acting in its sole discretion, shall, by
written notice to the Agent given no later than the date (the “Consent Date”) that is 20
days prior to the relevant Anniversary Date (provided that, if such date is not a Business
Day, the Consent Date shall be the next succeeding Business Day), advise the Agent as to:





     (i) whether such Lender agrees to such extension of its Termination Date (each Lender
so agreeing to such extension being an “Extending Lender”); and




     (ii) only if such Lender is an Extending Lender, whether such Lender also irrevocably
offers to increase the amount of its Revolving Credit Commitment in connection with the
replacement of one or more Non-Extending Lenders (each Lender so offering to increase its
Revolving Credit Commitment being an “Increasing and Extending Lender” as well as an
Extending Lender) and, if so, the amount of the additional Commitment such Lender so
irrevocably offers to assume hereunder (such Lender’s “Proposed Additional
Commitment”).


Each Lender that determines not to extend its Termination Date (a “Non-Extending Lender”)
shall notify the Agent (which shall notify the Lenders) of such fact promptly after such
determination but in any event no later than the Consent Date, and any Lender that does not advise
the Agent in writing on or before the Consent Date shall be deemed to be a Non-Extending Lender and
(without limiting the Borrower’s rights under Section 2.19(c)) shall have no liability to the
Borrower in connection therewith. The election of any Lender to agree to such extension shall not
obligate any other Lender so to agree. The Agent shall notify the






36









 







Borrower of each Lender’s determination under this Section 2.19(a) no later than the date 15 days
prior to the relevant Anniversary Date (or, if such date is not a Business Day, on the next
preceding Business Day).





     (b) (i) If all of the Lenders are Extending Lenders, then, effective as of the Consent
Date, the Termination Date of each Lender shall be extended to the New Termination Date as
provided in Section 2.19(b)(ii)(1), and the respective Revolving Credit Commitments of the
Lenders will not be subject to change at such Consent Date pursuant to this Section 2.19.




     (ii) If and only if the sum of (x) the aggregate amount of the Revolving Credit
Commitments of the Extending Lenders (that are not Increasing and Extending Lenders)
plus (y) the aggregate amount of the Proposed Additional Commitments of the
Increasing and Extending Lenders (such sum, the “Extending Commitments”) shall be
equal to at least 50% of the then total Revolving Credit Commitments, then:




     (1) effective as of the Consent Date, the Termination Date of each Extending
Lender shall be extended to the New Termination Date;




     (2) the Borrower shall (so long as no Default shall have occurred and be
continuing) have the right, but not the obligation, during the period commencing on
the Consent Date and ending on the immediately succeeding Anniversary Date to
replace each Non-Extending Lender as a party to this Agreement in accordance with
Section 2.19(c); and




     (3) the Agent shall notify the Issuing Banks of the New Termination Date and
the Lenders whose Termination Dates are the New Termination Date, and each Issuing
Bank, acting in its sole discretion, shall determine whether it shall elect to
extend its Termination Date to the New Termination Date and shall so notify the
Agent, at which time such Issuing Bank’s obligation to issue Letters of Credit
pursuant to Section 2.03 shall be extended to the date that is 30 days prior to the
New Termination Date.




     (iii) If neither of the conditions specified in clause (i) or clause (ii) of this
Section 2.19(b) is satisfied, then neither the Termination Date nor the Commitment of any
Lender will change pursuant to this Section 2.19 on such Consent Date, and the Borrower will
not have the right to take any of the actions specified in Section 2.19(b)(ii)(2).



          (c) Replacement by the Borrower of Non-Extending Lenders pursuant to Section 2.19(b)(ii)(2)
shall be effected as follows (certain terms being used in this Section 2.19(c) having the meanings
assigned to them in Section 2.19(d)) on the relevant Assignment Date:





     (i) the Assignors shall severally assign and transfer to the Assignees, and the
Assignees shall severally purchase and assume from the Assignors, all of the Assignors’
rights and obligations (including the Assignors’ respective Revolving Credit Commitments)
hereunder and under the Notes;



37









 






     (ii) each Assignee shall pay to the Agent, for account of the Assignors, an amount
equal to such Assignee’s Share of the aggregate outstanding principal amount of the Advances
then held by the Assignors; and




     (iii) the Borrower shall pay to the Agent, for account of the Assignors, all interest,
fees and other amounts (other than principal of outstanding Advances) then due and owing to
the Assignors by the Borrower hereunder (including payments due such Assignors, if any,
under Sections 2.11, 2.14 and 8.04).


The assignments provided for in this Section 2.19(c) shall be effected on the relevant Assignment
Date in accordance with Section 8.07 and pursuant to one or more Assignments and Acceptances.
After giving effect to such assignments, each Assignee shall have a Revolving Credit Commitment
hereunder (which, if such Assignee was a Lender hereunder immediately prior to giving effect to
such assignment, shall be in addition to such Assignee’s existing Revolving Credit Commitment) in
an amount equal to the amount of its Assumed Commitment. Upon any such termination or assignment,
each Assignor shall cease to be a party hereto to the extent of its assignment but shall continue
to be obligated under Section 7.05 and be entitled to the benefits of Section 8.04, as well as to
any fees and other amounts accrued for its account under Sections 2.04, 2.11 or 2.14 and not yet
paid.




          (d) For purposes of this Section 2.19, the following terms shall have the following meanings
(such meanings to be equally applicable to both the singular and plural forms of the terms
defined):




          “Assigned Commitments” means the Commitments of Non-Extending Lenders to be replaced
pursuant to Section 2.19(b)(ii)(2).




          “Assignees” means, at any time, Increasing and Extending Lenders and, if the Assigned
Commitments exceed the aggregate amount of the Proposed Additional Commitments, one or more New
Lenders.




          “Assignment Date” means the relevant Anniversary Date or such earlier date as shall be
acceptable to the Borrower, the relevant Assignors, the relevant Assignees and the Agent.




          “Assignors” means, at any time, the Non-Extending Lenders to be replaced by the
Borrower pursuant to Section 2.19(b)(ii)(2).




          The “Assumed Commitment” of each Assignee shall be determined as follows:




          (a) If the aggregate amount of the Proposed Additional Commitments of all of the Increasing
Lenders shall exceed the aggregate amount of the Assigned Commitments, then (i) the amount of the
Assumed Commitment of each Increasing and Extending Lender shall be equal to (x) the aggregate
amount of the Assigned Commitments multiplied by (y) a fraction, the numerator of
which is equal to such Increasing and Extending Lender’s Commitment as then in effect and the
denominator of which is the aggregate amount of the Commitments of all Increasing and Extending
Lenders as then in effect; and (ii) no New Lender shall be entitled to






38









 







become a Lender hereunder pursuant to Section 2.19(c) (and, accordingly, each New Lender shall
have an Assumed Commitment of zero).




          (b) If the aggregate amount of the Proposed Additional Commitments of all of the Increasing
and Extending Lenders shall be less than or equal to the aggregate amount of the Assigned
Commitments, then: (i) the amount of the Assumed Commitment of each Increasing and Extending
Lender shall be equal to such Increasing and Extending Lender’s Proposed Additional Commitment; and
(ii) the excess, if any, of the aggregate amount of the Assigned Commitments over the
aggregate amount of the Proposed Additional Commitments shall be allocated among New Lenders in
such a manner as the Borrower and the Agent may agree.




          (c) “Share” means, as to any Assignee, a fraction the numerator of which is equal to
such Assignee’s Assumed Commitment and the denominator of which is the aggregate amount of the
Assumed Commitments of all the Assignees.




          SECTION 2.20. Defaulting Lenders. (a) Defaulting Lender Adjustments.
Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a
Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the
extent permitted by applicable law:





     (i) Waivers and Amendments. The Revolving Credit Commitment of such Defaulting
Lender shall not be included in determining whether the Required Lenders have taken or may
take any action hereunder (including any consent to any amendment, waiver or other
modification pursuant to Section 8.01); provided that, if a particular amendment,
waiver or modification requires consent of all Lenders, the vote of a Defaulting Lender
shall not be included except where such amendment, waiver or modification specifically
requires consent of such Lender or each Lender affected thereby.




     (ii) Defaulting Lender Waterfall. Any payment of principal, interest, fees or
other amounts received by the Agent for the account of such Defaulting Lender (whether
voluntary or mandatory, at maturity, pursuant to Article III or otherwise) or received by
the Agent from a Defaulting Lender pursuant to Section 8.05 shall be applied at such time or
times as may be determined by the Agent as follows: first, to the payment of any amounts
owing by such Defaulting Lender to the Agent hereunder; second, to the payment on a pro rata
basis of any amounts owing by such Defaulting Lender to any Issuing Bank hereunder; third,
to Cash Collateralize the Issuing Banks’ Fronting Exposure with respect to such Defaulting
Lender in accordance with Section 2.21; fourth, as the Borrower may request (so long as no
Default or Event of Default exists), to the funding of any Advance in respect of which such
Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as
determined by the Agent; fifth, if so determined by the Agent and the Borrower, to be held
in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s
potential future funding obligations with respect to the Advances under this Agreement and
(y) Cash Collateralize the Issuing Banks’ future Fronting Exposure with respect to such
Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in
accordance with Section 2.21; sixth, to the payment of any amounts owing to the Lenders or
the Issuing



39









 






Banks as a result of any judgment of a court of competent jurisdiction obtained by any
Lender or the Issuing Banks against such Defaulting Lender as a result of such Defaulting
Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or
Event of Default exists, to the payment of any amounts owing to the Borrower as a result of
any judgment of a court of competent jurisdiction obtained by the Borrower against such
Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under
this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of
competent jurisdiction; provided that if (x) such payment is a payment of the
principal amount of any Advances or L/C Disbursements in respect of which such Defaulting
Lender has not fully funded its appropriate share, and (y) such Advances were made or the
related Letters of Credit were issued at a time when the conditions set forth in Section
3.02 were satisfied or waived, such payment shall be applied solely to pay the Advances of,
and L/C Disbursements owed to, all Non-Defaulting Lenders on a pro rata basis prior to being
applied to the payment of any Advances of, or L/C Disbursements owed to, such Defaulting
Lender until such time as all Advances and funded and unfunded participations in the L/C
Exposure are held by the Lenders pro rata in accordance with their Commitments under the
applicable Facility without giving effect to Section 2.20(a)(iv). Any payments, prepayments
or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay
amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section
2.20(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each
Lender irrevocably consents hereto.




     (iii) Certain Fees. (A) Each Defaulting Lender shall be entitled to receive a
Facility Fee for any period during which that Lender is a Defaulting Lender only to the
extent allocable to the sum of (x) the outstanding principal amount of the Advances funded
by it and (y) its Ratable Share of the stated amount of Letters of Credit for which it has
provided Cash Collateral pursuant to Section 2.21.



     (B) Each Defaulting Lender shall be entitled to receive the Letter of Credit
Fee for any period during which that Lender is a Defaulting Lender only to the
extent allocable to its Ratable Share of the stated amount of Letters of Credit for
which it has provided Cash Collateral pursuant to Section 2.21.



     (C) With respect to any Facility Fee or Letter of Credit Fee not required to be
paid to any Defaulting Lender pursuant to clause (A) or (B) above, the Borrower
shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise
payable to such Defaulting Lender with respect to such Defaulting Lender’s
participation in the L/C Exposure that has been reallocated to such Non-Defaulting
Lender pursuant to clause (iv) below, (y) pay to each Issuing Bank the amount of any
such fee otherwise payable to such Defaulting Lender to the extent allocable to such
Issuing Bank’s Fronting Exposure to such Defaulting Lender and (z) not be required
to pay the remaining amount of any such fee.




     (iv) Reallocation of Participations to Reduce Fronting Exposure. All or any
part of such Defaulting Lender’s participation in the L/C Exposure shall be reallocated
among the Non-Defaulting Lenders in accordance with their respective Ratable Share
(calculated without regard to such Defaulting Lender’s Revolving Credit Commitment)



40









 






but only to the extent that (x) the conditions set forth in Section 3.02 are satisfied
at the time of such reallocation (and, unless the Borrower shall have otherwise notified the
Agent at such time, the Borrower shall be deemed to have represented and warranted that such
conditions are satisfied at such time), and (y) such reallocation does not cause the
aggregate Revolving Credit Exposure of any Non-Defaulting Lender to exceed such
Non-Defaulting Lender’s Revolving Credit Commitment. No reallocation hereunder shall
constitute a waiver or release of any claim of any party hereunder against a Defaulting
Lender arising from that Lender having become a Defaulting Lender, including any claim of a
Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure
following such reallocation.




     (v) Cash Collateral. If the reallocation described in clause (iv) above
cannot, or can only partially, be effected, the Borrower shall, without prejudice to any
right or remedy available to it hereunder or under law, Cash Collateralize the Issuing
Banks’ Fronting Exposure in accordance with the procedures set forth in Section 2.21 for so
long as such Fronting Exposure is outstanding.



          (b) Defaulting Lender Cure. If the Borrower, the Agent and each Issuing Bank agree in
writing that a Lender is no longer a Defaulting Lender, the Agent will so notify the parties
hereto, whereupon as of the effective date specified in such notice and subject to any conditions
set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender
will, to the extent applicable, purchase at par that portion of outstanding Advances of the other
Lenders or take such other actions as the Agent may determine to be necessary to cause the Advances
and funded and unfunded participations in Letters of Credit to be held pro rata by the Lenders in
accordance with their Commitments under the applicable Facility (without giving effect to Section
2.20(a)(iv)), whereupon such Lender will cease to be a Defaulting Lender; provided that no
adjustments will be made retroactively with respect to fees accrued or payments made by or on
behalf of the Borrower while that Lender was a Defaulting Lender; and provided,
further, that except to the extent otherwise expressly agreed by the affected parties, no
change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim
of any party hereunder arising from that Lender’s having been a Defaulting Lender.




          (c) New Letters of Credit. So long as any Lender is a Defaulting Lender, no Issuing
Bank shall be required to issue, extend, renew or increase any Letter of Credit unless it is
satisfied that it will have no Fronting Exposure after giving effect thereto.




          (d) Other Arrangements. If an Issuing Bank has a good faith belief that any Lender
has defaulted in fulfilling its obligations under one or more other agreements in which such Lender
commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any
Letter of Credit unless such Issuing Bank shall have entered into arrangements with the Borrower or
such Lender, satisfactory to such Issuing Bank, to mitigate any risk to it in respect of such
Lender hereunder.




          SECTION 2.21. Cash Collateral. At any time that there shall exist a Defaulting
Lender, within one Business Day following the written request of the Agent or any Issuing Bank
(with a copy to the Agent), the Borrower shall Cash Collateralize the Issuing Banks’ Fronting





41











 




Exposure with respect to such Defaulting Lender in an amount (determined after giving effect
to Section 2.20(a)(iv) and any Cash Collateral provided by such Defaulting Lender) not less than
the Minimum Collateral Amount.




          (a) Grant of Security Interest. The Borrower, and to the extent provided by any
Defaulting Lender, such Defaulting Lender, hereby grants to the Agent, for the benefit of the
Issuing Banks, and agrees to maintain, a first priority security interest in all such Cash
Collateral as security for the Defaulting Lenders’ obligation to fund participations in respect of
the L/C Exposure, to be applied pursuant to clause (b) below. If at any time the Agent determines
that the required Cash Collateral is subject to any right or claim of any Person other than the
Agent and the Issuing Banks as herein provided or that the total amount of such Cash Collateral is
less than the Minimum Collateral Amount, the Borrower will, promptly upon demand by the Agent, pay
or provide to the Agent additional Cash Collateral in an amount sufficient to eliminate such
deficiency (after giving effect to any Cash Collateral provided by the Defaulting Lender).



          (b) Application. Notwithstanding anything to the contrary contained in this
Agreement, Cash Collateral provided under this Section 2.21 or Section 2.20 in respect of the
Letters of Credit shall be applied to the satisfaction of the Defaulting Lenders’ obligation to
fund participations in respect of the L/C Exposure (including, as to Cash Collateral provided by a
Defaulting Lender, any interest accrued on such obligation) for which the Cash Collateral was so
provided, prior to any other application of such property as may otherwise be provided for herein.



          (c) Termination of Requirement. Cash Collateral (or the appropriate portion
thereof) provided to reduce any Issuing Bank’s Fronting Exposure shall no longer be required to be
held as Cash Collateral pursuant to this Section 2.21 or Section 2.20 following (i) the elimination
of the applicable Fronting Exposure (including by the termination of Defaulting Lender status of
the applicable Lender), or (ii) the determination by the Agent and each Issuing Bank that there
exists excess Cash Collateral; provided that, subject to Section 2.20, the Person providing
Cash Collateral and each Issuing Bank may agree that Cash Collateral shall be held to support
future anticipated Fronting Exposure or other obligations.



          SECTION 2.22. Replacement of Lenders. If any Lender requests compensation under
Section 2.11 or if any Lender is a Defaulting Lender, then the Borrower may, at its sole expense
and effort, upon notice to such Lender and the Agent, require such Lender to assign and delegate,
without recourse (in accordance with and subject to the restrictions contained in, and consents
required by, Section 8.07), all of its interests, rights and obligations under this Agreement and
the related Loan Documents to an Eligible Assignee that shall assume such obligations (which
assignee may be another Lender, if a Lender accepts such assignment); provided that:



          (a) the Borrower shall have paid to the Agent the assignment fee (if any) specified in
Section 8.07;



          (b) such Lender shall have received payment of an amount equal to the outstanding
principal of its Advances and participations in the L/C Disbursements, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the other



42









 




Loan Documents (including any amounts under Section 8.04(c)) from the assignee (to the extent
of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all
other amounts);




          (c) in the case of any such assignment resulting from a claim for compensation under
Section 2.11, such assignment will result in a reduction in such compensation or payments
thereafter; and



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


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




ARTICLE III




CONDITIONS TO EFFECTIVENESS AND LENDING



          SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01. Section 2.01
of this Agreement shall become effective on and as of the first date (the “Effective Date”)
on which the following conditions precedent have been satisfied:



          (a) There shall have occurred no Material Adverse Change since December 31, 2010.



          (b) All governmental and third party consents and approvals necessary in connection with
the transactions contemplated hereby shall have been obtained (without the imposition of any
conditions that are not acceptable to the Lenders) and shall remain in effect, and no law or
regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents
or imposes materially adverse conditions upon the transactions contemplated hereby.



          (c) The Borrower, through the Agent, shall have notified the Agent and each Lender in
writing as to the proposed Effective Date.



          (d) The Borrower shall have paid all accrued fees and expenses of the Agent and the
Lenders (including the accrued fees and expenses of counsel to the Agent) that the Borrower is
obligated to pay on or before the Effective Date pursuant to the terms of this Agreement.



          (e) On the Effective Date, the following statements shall be true, and the Agent shall
have received for the account of each Lender a certificate signed by a duly authorized officer of
the Borrower, dated the Effective Date, stating that:




     (i) The representations and warranties contained in Section 4.01 are correct on and
as of the Effective Date, excluding, however, representations and warranties made as of
specified earlier date, which shall remain true and correct as of such earlier date; and



43









 






     (ii) No event has occurred and is continuing that constitutes a Default.



          (f) The Agent shall have received on or before the Effective Date the following, each
dated such day, in form and substance satisfactory to the Agent:




     (i) The Notes to the order of the Lenders to the extent requested by any Lender
pursuant to Section 2.16;




     (ii) Certified copies of the resolutions of the board of directors of the Borrower
approving this Agreement and the Notes, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with respect to this Agreement and the
Notes;




     (iii) A certificate of the Secretary or an Assistant Secretary of the Borrower
certifying the names and true signatures of the officers of the Borrower authorized to sign
the Loan Documents and attaching the Borrower’s certificate of incorporation and by-laws;




     (iv) A favorable opinion of Thomas C. Zielinski, General Counsel of the Borrower,
and a favorable opinion of Bass, Berry & Sims PLC, counsel for the Borrower, substantially
in the form of Exhibits D-1 and D-2 hereto, respectively, and as to such
other matters as any Lender through the Agent may reasonably request;




     (v) A favorable opinion of Chadbourne & Parke LLP, counsel for the Agent, in form
and substance satisfactory to the Agent; and




     (vi) A good standing certificate of the Borrower issued by the Secretary of State
of the State of Delaware.



          (g) The Agent shall have received evidence to its satisfaction of the termination of the
Prior Facility.



          SECTION 3.02. Conditions Precedent to Each Borrowing, Letter of Credit Issuance and
Commitment Increase. The obligation of each Lender to make an Advance on the occasion of each
Borrowing (other than pursuant to Section 2.03(c)), the obligation of each Issuing Bank to issue,
extend or renew a Letter of Credit and each Commitment Increase shall be subject to the conditions
precedent that the Effective Date shall have occurred and, on the date of such Borrowing, such
issuance or the applicable Increase Date:



          (a) the following statements shall be true (and each of the giving of the applicable
Notice of Borrowing, Notice of Issuance or request for Commitment Increase and the acceptance by
the Borrower of the proceeds of such Borrowing shall constitute a representation and warranty by
the Borrower that on the date of such Borrowing, such issuance or such Increase Date such
statements are true):




     (i) the representations and warranties contained in Section 4.01 (except, in the
case of Borrowings or issuances, the representations set forth in the last sentence of
subsection (e) thereof) are correct on and as of such date, before and after giving effect
to



44









 






such Borrowing, such issuance, such Commitment Increase and to the application of the
proceeds therefrom, as though made on and as of such date, excluding, however,
representations and warranties made as of specified earlier date, which shall remain true
and correct as of such earlier date; and




     (ii) no event has occurred and is continuing, or would result from such Borrowing,
such issuance, such Commitment Increase or from the application of the proceeds therefrom,
that constitutes a Default.



          (b) The Agent shall have received such other approvals, opinions or documents as any
Lender through the Agent may reasonably request.



          SECTION 3.03. Determinations Under Section 3.01. For purposes of determining
compliance with the conditions specified in Section 3.01, each Lender shall be deemed to have
consented to, approved or accepted or to be satisfied with each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an
officer of the Agent responsible for the transactions contemplated by this Agreement shall have
received notice from such Lender prior to the date that the Borrower, by notice to the Lenders,
designates as the proposed Effective Date, specifying its objection thereto. The Agent shall
promptly notify the Lenders of the occurrence of the Effective Date.



ARTICLE IV




REPRESENTATIONS AND WARRANTIES



          SECTION 4.01. Representations and Warranties of the Borrower. The Borrower
represents and warrants as follows:



          (a) The Borrower is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware.



          (b) The execution, delivery and performance by the Borrower of this Agreement and the
Notes to be delivered by it, and the consummation of the transactions contemplated hereby, are
within the Borrower’s corporate powers, have been duly authorized by all necessary corporate
action, and do not contravene (i) the Borrower’s certificate of incorporation or by-laws or (ii)
law or any material contractual restriction binding on or affecting the Borrower.



          (c) No authorization or approval or other action by, and no notice to or filing with, any
Governmental Authority or regulatory body or any other third party is required for the due
execution, delivery and performance by the Borrower of this Agreement or the Notes to be delivered
by it, except for those authorizations, approvals, actions, notices and filings listed on
Schedule 4.01(c) hereto, all of which have been duly obtained, taken, given or made and are
in full force and effect.



          (d) This Agreement has been, and each of the Notes to be delivered by it when delivered
hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and each
of the Notes when delivered hereunder will be, the legal, valid and



45









 




binding obligation of the Borrower enforceable against the Borrower in accordance with their
respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights
generally and by general equitable principles (whether enforcement is sought by proceedings in
equity or at law).




          (e) The Consolidated balance sheet of the Borrower and its Subsidiaries as at December 31,
2010, and the related Consolidated statements of income and cash flows of the Borrower and its
Subsidiaries for the fiscal year then ended, accompanied by an opinion of Ernst & Young LLP,
independent public accountants, and the Consolidated balance sheet of the Borrower and its
Subsidiaries as at March 31, 2011, and the related Consolidated statements of income and cash flows
of the Borrower and its Subsidiaries for the three months then ended, duly certified by the chief
financial officer of the Borrower, copies of which have been furnished to each Lender, fairly
present, subject, in the case of said balance sheet as at March 31, 2011, and said statements of
income and cash flows for the three months then ended, to year-end audit adjustments, the
Consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the
Consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended
on such dates, all in accordance with generally accepted accounting principles consistently
applied. Since December 31, 2010, there has been no Material Adverse Change.



          (f) There is no pending or threatened action, suit, investigation, litigation or
proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency
or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect (other than the
matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”)) or (ii)
purports to materially and adversely affect the legality, validity or enforceability of this
Agreement or any Note or the consummation of the transactions contemplated hereby, and there has
been no material adverse change in the status, or in the financial effect on the Borrower and its
Subsidiaries, taken as a whole, of the Disclosed Litigation from that described on Schedule
4.01(f) hereto.



          (g) The Borrower is not engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board), and
no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit
to others for the purpose of purchasing or carrying any margin stock in violation of any Regulation
of the Board, including Regulations T, U or X.



          (h) The Borrower is not an “investment company”, or a company “controlled” by an
“investment company”, within the meaning of the Investment Company Act of 1940, as amended.



          (i) Neither the Information Memorandum nor any other final written information, exhibit or
report furnished by or on behalf of the Borrower to the Agent or any Lender in connection with the
negotiation and syndication of this Agreement or pursuant to the terms of this Agreement contained,
as of the respective dates thereof, any untrue statement of a material fact or omitted to state a
material fact necessary to make the statements made therein, taken as a whole, not misleading. The
projections and pro forma financial information contained in the material referenced above are
based upon good faith estimates and assumptions believed



46









 




by management of the Borrower to be reasonable at the time made, it being recognized by the
Lenders that such financial information as it relates to future events is not to be viewed as fact
and that actual results during the period or periods covered by such financial information may
differ from the projected results set forth therein by a material amount.




          (j) Except as disclosed to the Agent by the Borrower in writing from time to time after
the Closing Date, Schedule 4.01(j) sets forth the name and jurisdiction of incorporation of
each Subsidiary of the Borrower and, as to each such Subsidiary, the percentage of each class of
capital stock owned by any the Borrower and its Subsidiaries and whether such Subsidiary is an HMO
Subsidiary or an Insurance Subsidiary.



          (k) The Borrower and each of its Subsidiaries has filed or caused to be filed all Federal
and other material tax returns that are required to be filed and has paid all taxes shown to be due
and payable on said returns or on any assessments made against it or any of its property and all
other taxes, fees or other charges imposed on it or any of its property by any Governmental
Authority (other than any the amount or validity of which are currently being contested in good
faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have
been provided on the books of the Borrower or such Subsidiary). No tax Lien has been filed and, to
the knowledge of the Borrower, no claim is being asserted, with respect to any such tax, fee or
other charge.



          (l) The Borrower and each of its Subsidiaries is in compliance with all applicable laws,
rules, regulations and orders, such compliance to include compliance with applicable requirements
of ERISA, Environmental Laws, HIPAA, Medicaid Regulations, HMO Regulations, Insurance Regulations
and the Patriot Act, except to the extent that failure to comply therewith could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.



ARTICLE V




COVENANTS OF THE BORROWER



          SECTION 5.01. Affirmative Covenants. So long as any Advance shall remain unpaid
or any Lender shall have any Commitment hereunder, the Borrower will:



          (a) Compliance with Laws, Etc. Comply, and cause each of its Subsidiaries to
comply, with all applicable laws, rules, regulations and orders, such compliance to include
compliance with applicable requirements of ERISA, Environmental Laws, HIPAA, Medicaid Regulations,
HMO Regulations, Insurance Regulations and the Patriot Act, except to the extent that failure to
comply therewith could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.



          (b) Payment of Taxes, Etc. Pay and discharge, and cause each of its Subsidiaries
to pay and discharge, before the same shall become delinquent, (i) all taxes, assessments and
governmental charges or levies imposed upon it or upon its property and (ii) all lawful claims
that, if unpaid, might by law become a Lien upon its property; provided, however,
that neither the Borrower nor any of its Subsidiaries shall be required to pay or discharge any



47









 




such tax, assessment, charge or claim (i) that is being contested in good faith and by proper
proceedings and as to which appropriate reserves are being maintained, unless and until any Lien
resulting therefrom attaches to its property and becomes enforceable against its other creditors or
(ii) if a failure to pay or discharge the same, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.




          (c) Maintenance of Insurance. Maintain, and cause each of its Subsidiaries to
maintain, such insurance with responsible and reputable insurance companies or associations in such
amounts and covering such risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which the Borrower or such Subsidiary
operates; provided, however, that the Borrower and its Subsidiaries may self-insure
to the same extent as other companies engaged in similar businesses and owning similar properties
in the same general areas in which the Borrower or such Subsidiary operates and to the extent
consistent with prudent business practice.



          (d) Preservation of Corporate Existence, Etc. (i) Preserve and maintain, and
cause each of its Subsidiaries to preserve and maintain, its organizational existence and (ii)
take, and cause each of its Subsidiaries to take, all reasonable action to maintain all rights,
privileges and franchises necessary or desirable in the normal conduct of its business (including
all licenses and certifications required pursuant to any HMO Regulations or Insurance Regulations,
all certifications and authorizations necessary to ensure that each of the Borrower’s HMO
Subsidiaries and Insurance Subsidiaries is eligible for all reimbursements available under HMO
Regulations and Insurance Regulations to the extent applicable to HMOs and insurance companies of
their type and the products provided by them, and all material licenses, permits, authorizations
and qualifications required under HMO Regulations and Insurance Regulations in connection with the
ownership or operation of HMOs and insurance companies), except (x) in each case, as otherwise
permitted by Section 5.02(b), (y) the Borrower may permit the dissolution and winding-up of any of
its Subsidiaries if such Subsidiary has no material assets, engages in no material business and has
no material activities other than activities related to the maintenance of its existence and good
standing and (z) in the case of clause (i) above as to Subsidiaries and except in the case of
clause (ii) above, to the extent that failure to do so could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.



          (e) Visitation Rights. At any reasonable time and from time to time upon
reasonable prior notice and during normal business hours, permit the Agent or any of the Lenders or
any agents or representatives thereof, to examine and make copies of and abstracts from the records
and books of account of, and visit the properties of, the Borrower and any of its Subsidiaries, and
to discuss the affairs, finances and accounts of the Borrower and any of its Subsidiaries with any
of their officers or directors and with their independent certified public accountants. During the
course of the aforementioned examinations, visits and discussions, representatives of the Agent and
the Lenders may encounter individually identifiable healthcare information or other confidential
information relating to healthcare patients (collectively, the “Confidential Healthcare
Information”). Unless otherwise required by law, the Agent and the Lenders, and their
respective representatives, shall not disclose, compile, aggregate, remove from the properties of
the Borrower or any of its Subsidiaries or record in any manner any Confidential Healthcare
Information, and shall not require the Borrower or any of its



48









 




Subsidiaries to violate any laws, regulations or ordinances intended to protect the privacy
rights of healthcare patients, including HIPAA and the HITECH Act.




          (f) Keeping of Books. Keep, and cause each of its Subsidiaries to keep, proper
books of record and account, in which full and correct entries shall be made of all financial
transactions and the assets and business of the Borrower and each such Subsidiary in accordance
with generally accepted accounting principles in effect from time to time.



          (g) Maintenance of Properties, Etc. Except to the extent that a failure to do so
could not reasonably be expected to have a Material Adverse Effect, maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its properties that are used or
useful in the conduct of its business in good working order and condition, ordinary wear and tear
excepted.



          (h) Transactions with Affiliates. Conduct, and cause each of its Subsidiaries to
conduct, all transactions otherwise permitted under this Agreement with any of their Affiliates
(other than transactions that are not material to the Borrower and its Subsidiaries on a
Consolidated basis and transactions between or among the Borrower and its Subsidiaries) on terms
that are fair and reasonable and no less favorable to the Borrower or such Subsidiary than it would
obtain in a comparable arm’s-length transaction with a Person not an Affiliate.



          (i) Reporting Requirements. Furnish to the Lenders through the Agent:




     (i) as soon as available and in any event within 10 days after the date the Company
is required to file its Form 10-Q with the Securities and Exchange Commission (taking into
account any extension of such due date, whether obtained by filing the notification
permitted by Rule 12b-25 or any successor provision or otherwise), the Consolidated balance
sheet of the Borrower and its Subsidiaries as of the end of such quarter and Consolidated
statements of income and cash flows of the Borrower and its Subsidiaries for the period
commencing at the end of the previous fiscal year and ending with the end of such quarter,
duly certified (subject to year-end audit adjustments) by a Responsible Officer as having
been prepared in accordance with generally accepted accounting principles (it being
understood that the Borrower’s obligations under this clause (i) shall be satisfied in
respect of any fiscal quarter by delivery to the Agent in accordance with Section 8.02(b)
within the time specified above of the Borrower’s quarterly report for such fiscal quarter
on Form 10-Q as filed with the Securities and Exchange Commission) and certificates of a
Responsible Officer as to compliance with the terms of this Agreement and setting forth in
reasonable detail the calculations necessary to demonstrate compliance with Section 5.03;
provided that in the event of any change in generally accepted accounting principles
used in the preparation of such financial statements, the Borrower shall also provide, if
necessary for the determination of compliance with Section 5.03, a statement of
reconciliation conforming such financial statements to GAAP;




     (ii) as soon as available and in any event within 10 days after the date the
Company is required to file its Form 10-K with the Securities and Exchange Commission
(taking into account any extension of such due date, whether obtained by filing the



49









 






notification permitted by Rule 12b-25 or any successor provision or otherwise), a copy
of the annual audit report for such year for the Borrower and its Subsidiaries, containing
the Consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such
fiscal year and Consolidated statements of income and cash flows of the Borrower and its
Subsidiaries for such fiscal year, in each case accompanied by an opinion reasonably
acceptable to the Required Lenders by Ernst & Young LLP or other independent public
accountants of recognized national standing (it being understood that the Borrower’s
obligations under this clause (ii) shall be satisfied in respect of any fiscal year by
delivery to the Agent in accordance with Section 8.02(b) within the time specified above of
the Borrower’s annual report for such fiscal year on Form 10-K as filed with the Securities
and Exchange Commission) and certificates of a Responsible Officer as to compliance with the
terms of this Agreement and setting forth in reasonable detail the calculations necessary to
demonstrate compliance with Section 5.03; provided that in the event of any change
in generally accepted accounting principles used in the preparation of such financial
statements, the Borrower shall also provide, if necessary for the determination of
compliance with Section 5.03, a statement of reconciliation conforming such financial
statements to GAAP;




     (iii) to the extent not otherwise provided in accordance with this Section 5.01(i),
promptly after the sending or filing thereof, copies of all quarterly and annual reports and
proxy solicitations that the Borrower sends to any of its security holders, and copies of
all reports on Form 8-K and registration statements for the public offering (other than
pursuant to employee Plans) of securities that the Borrower or any Subsidiary files with the
Securities and Exchange Commission or any national securities exchange;




     (iv) notice of the occurrence of any Default;




     (v) [Reserved];




     (vi) notice of any litigation or proceeding affecting the Borrower or any of its
Subsidiaries (A) in which the amount involved is $50,000,000 or more and not covered by
insurance, (B) in which injunctive or similar relief is sought and that, if adversely
determined, could reasonably be expected to have a Material Adverse Effect, or (C) that
relates to this Agreement or any Note;




     (vii) notice of any ERISA Event;




     (viii) notice of any investigation by any Governmental Authority or the filing or
commencement of any action, suit or proceeding by or before any arbitrator or Governmental
Authority (including any HMO Regulator or Insurance Regulator) against or affecting the
Borrower or any of its Subsidiaries, or any adverse change in the status of the matters
referred to in Section 4.01(f), that, individually or in the aggregate, has had, or could
reasonably be expected to have, a Material Adverse Effect;




     (ix) notice of receipt by the Borrower, any Material HMO Subsidiary or any Material
Insurance Subsidiary of any notice of loss of licensure, loss of participation



50









 






under any
reimbursement program or loss of applicable health care license or certificate
of authority, or loss of any permit, authorization, accreditation, or qualification or
any notice relating to the threatened loss of any of the foregoing, from any Governmental
Authority, HMO Regulator or Insurance Regulator that, individually or in the aggregate, has
had, or could reasonably be expected to have, a Material Adverse Effect;




     (x) notice of receipt by the Borrower, any Material HMO Subsidiary or any Material
Insurance Subsidiary of any other deficiency notice, compliance order or adverse reports
issued by any Governmental Authority, HMO Regulator, Insurance Regulator or private
insurance company pursuant to a provider agreement that, if not promptly complied with or
cured, could reasonably be expected to result in the suspension or forfeiture of any
license, certification or licensure necessary for such Material HMO Subsidiary or Material
Insurance Subsidiary to carry on its business as then conducted or the termination of any
insurance or reimbursement program available to any Material HMO Subsidiary or any Material
Insurance Subsidiary and that, individually or in the aggregate, has had, or could
reasonably be expected to have, a Material Adverse Effect;




     (xi) notice of receipt by the Borrower, any Material HMO Subsidiary or any Material
Insurance Subsidiary of any correspondence from any Governmental Authority, HMO Regulator or
Insurance Regulator that asserts that the Borrower, any Material HMO Subsidiary or any
Material Insurance Subsidiary is not in substantial compliance with any HMO Regulation or
Insurance Regulation or that threatens the taking of any action against the Borrower, any
Material HMO Subsidiary or any Material Insurance Subsidiary under any HMO Regulation or any
Insurance Regulation and that, individually or in the aggregate, had had, or could
reasonably be expected to have, a Material Adverse Effect; and




     (xii) such other information respecting the Borrower or any of its Subsidiaries as
any Lender through the Agent may from time to time reasonably request.



          Each notice pursuant to clauses (iv) through (xii) above shall be accompanied by a statement
of a Responsible Officer setting forth details of the occurrence referred to therein and stating
what action the Borrower or the applicable Subsidiary proposes to take with respect thereto.



          (j) Use of Proceeds. No part of the proceeds of any Advance will be used, whether
directly or indirectly, for any purpose that entails a violation of any of the Regulations of the
Board, including Regulations T, U and X. The proceeds of the Advances made under this Agreement
may be used to repay the amounts outstanding under the Prior Facility and for general corporate
purposes.



          SECTION 5.02. Negative Covenants. So long as any Advance shall remain unpaid or
any Lender shall have any Commitment hereunder, the Borrower will not:



          (a) Liens. Create or suffer to exist, or permit any of its Subsidiaries to create
or suffer to exist, any Lien on or with respect to any of its properties, whether now owned or



51









 




hereafter acquired, or assign, or permit any of its Subsidiaries to assign, any right to
receive income, other than:





     (i) Liens for taxes not yet delinquent or that are being contested in good faith by
appropriate proceedings; provided that adequate reserves with respect thereto are
maintained on the books of the Borrower or its Subsidiaries, as the case may be, in
conformity with GAAP;




     (ii) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other
like Liens arising in the ordinary course of business that are not overdue for a period of
more than 60 days or that are being contested in good faith by appropriate proceedings;




     (iii) pledges or deposits in connection with the workers’ compensation,
unemployment insurance and other social security legislation;




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




     (v) easements, reservations, rights-of-way, covenants, conditions, restrictions and
other similar encumbrances incurred in the ordinary course of business that, in the
aggregate, are not substantial in amount and that do not in any case materially detract from
the value of the property subject thereto or materially interfere with the ordinary conduct
of the business of the Borrower or any of its Subsidiaries;




     (vi) Liens in existence on the date hereof listed on Schedule 5.02(a),
securing Debt permitted by Section 5.02(d)(iii); provided that no such Lien is
spread to cover any additional property after the Effective Date and that the amount of Debt
secured thereby is not increased;




     (vii) Liens securing Debt of the Borrower, or Debt of a Subsidiary incurred
pursuant to Section 5.02(d) (iv), (x) to finance the acquisition of fixed or capital assets
or (y) pursuant to a sale and leaseback transaction; provided that (A) such Liens
shall be created substantially simultaneously with the acquisition of such fixed or capital
assets or such sale and leaseback transaction, as the case may be, (B) such Liens do not at
any time encumber any property other than the property financed by such Debt and (C) the
amount of Debt secured thereby is not increased;




     (viii) Liens created in connection with this Agreement to secure the Borrower’s
obligations hereunder;




     (ix) any interest or title of a lessor under any lease entered into by the Borrower
or any other Subsidiary permitted by this Agreement and covering only the assets so leased;




     (x) Liens on property of a Person at the time such Person becomes a Subsidiary of
the Borrower and securing Debt of such Person permitted under



52









 






Section 5.02(d)(v); provided that any such Lien may not extend to any other property of
the Borrower or any other Subsidiary of the Borrower that is not a direct Subsidiary of such
Person; provided, further, that any such Lien shall not have been incurred
in anticipation of or in connection with the transaction or series of transactions pursuant
to which such Person became a Subsidiary of the Borrower;




     (xi) Liens in respect of any writ of execution, attachment, garnishment, judgment
or judicial award, if (A) enforcement proceedings have not been commenced by the judgment
creditor upon such judgment, and there has not been any period of 30 consecutive days during
which a stay of enforcement of such judgment or order, by reason of a pending appeal or
otherwise, has not been in effect, or (B) the underlying claim is fully covered by insurance
and the insurer has been notified of, and has not disputed its responsibility to pay, such
claim; and




     (xii) Liens not otherwise permitted by this Section so long as the aggregate
outstanding principal amount of the obligations secured thereby does not at any one time
exceed (as to the Borrower and all of its Subsidiaries) 10% of Consolidated Net Worth.



          (b) Mergers, Etc. Merge or consolidate with or into any Person except that (i)
any Subsidiary of the Borrower may merge into the Borrower and (ii) any Person may merge into the
Borrower so long as the Borrower is the surviving corporation; provided, in each case, that
no Default shall have occurred and be continuing at the time of such proposed transaction or would
otherwise result therefrom.



          (c) Accounting Changes. Make or permit, or permit any of its Subsidiaries to make
or permit, any change in accounting policies or reporting practices, except as required or
permitted by generally accepted accounting principles.



          (d) Subsidiary Debt. Permit any of its Subsidiaries to create or suffer to exist,
any Debt other than:




     (i) Debt owed to the Borrower or to a wholly-owned Subsidiary of the Borrower;




     (ii) Guarantee Obligations in respect of obligations of any Subsidiary of the
Borrower;




     (iii) Debt existing on the Effective Date and described on Schedule 5.02(d)
hereto (the “Existing Debt”) and any Debt extending the maturity of, or refunding or
refinancing, in whole or in part, the Existing Debt; provided that the principal
amount of such Existing Debt shall not be increased above the principal amount thereof
outstanding immediately prior to such extension, refunding or refinancing, and the direct
and contingent obligors therefor shall not be changed except as permitted by clause (ii)
above, as a result of or in connection with such extension, refunding or refinancing;




     (iv) Debt (including Capital Lease Obligations) secured by Liens permitted by
Section 5.02(a)(vii) in an aggregate principal amount not to exceed $100,000,000 at any one
time outstanding;



53









 






     (v) Debt of a Subsidiary of the Borrower outstanding on the date on which such
Subsidiary was acquired by the Borrower (other than Debt incurred as consideration in, or to
provide all or any portion of the funds or credit support utilized to consummate, the
transaction or series of transactions pursuant to which such Subsidiary became a Subsidiary
of the Borrower or was otherwise acquired by the Borrower) in an aggregate amount (for all
Subsidiaries) at any one time outstanding not to exceed 10% of Consolidated Net Worth; and




     (vi) additional Debt in an aggregate principal amount not to exceed 10% of
Consolidated Net Worth at any one time outstanding.



          (e) Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of, or
permit any of its Subsidiaries to sell, lease, transfer or otherwise dispose of, all or
substantially all of the Consolidated assets of the Borrower and its Subsidiaries, except
dispositions by any Subsidiary to the Borrower or any other Subsidiary.



          (f) Change in Nature of Business. Enter into any material business, either
directly or through any Subsidiary, except for those businesses in which the Borrower and its
Subsidiaries are engaged on the date hereof or that are reasonably related thereto.



          (g) Clauses Restricting Subsidiary Distributions. Enter into or suffer to exist
or become effective any consensual encumbrance or restriction on the ability of any Subsidiary of
the Borrower to (i) make payments in respect of any capital stock of such Subsidiary held by, or
pay any Debt owed to, the Borrower or any other Subsidiary of the Borrower, (ii) make loans or
advances to, or other investments in, the Borrower or any other Subsidiary of the Borrower or (iii)
transfer any of its assets to the Borrower or any other Subsidiary of the Borrower, except for such
encumbrances or restrictions existing under or by reason of (A) any restrictions existing under
this Agreement or the Indentures, (B) any restrictions with respect to a Subsidiary imposed
pursuant to an agreement that has been entered into in connection with the disposition of all or
substantially all of the capital stock or assets of such Subsidiary, (C) any restrictions on a
Subsidiary imposed by HMO Regulations, Insurance Regulations or other requirements of law, or any
agreements entered into pursuant thereto, and (D) any restrictions applicable to a Person at the
time such Person becomes a Subsidiary of the Borrower; provided that any such restriction
shall not have been created in anticipation of or in connection with the transaction or series of
transactions pursuant to which such Person became a Subsidiary of the Borrower.



          SECTION 5.03. Financial Covenant. So long as any Advance shall remain unpaid or
any Lender shall have any Commitment hereunder, the Borrower will not permit, as of the last day of
any period of four consecutive fiscal quarters of the Borrower, the Consolidated Leverage Ratio to
exceed 3.00 to 1.00.



ARTICLE VI




EVENTS OF DEFAULT



          SECTION 6.01. Events of Default. If any of the following events (“Events of
Default”) shall occur and be continuing:



54









 





          (a) The Borrower shall fail to pay any principal of any Advance when the same becomes due
and payable; or the Borrower shall fail to pay any interest on any Advance or make any other
payment of fees or other amounts payable under this Agreement or any Note within five Business Days
after the same becomes due and payable;



          (b) Any representation or warranty made by the Borrower herein or by the Borrower in any
certificate, document or financial or other statement furnished by it in connection with this
Agreement shall prove to have been incorrect in any material respect when made;



          (c) (i) The Borrower shall fail to perform or observe any term, covenant or agreement
contained in Section 5.01(d), (e), (h), (i) or (j), 5.02 or 5.03, or (ii) the Borrower shall fail
to perform or observe any other term, covenant or agreement contained in this Agreement on its part
to be performed or observed if such failure shall remain unremedied for 30 days after written
notice thereof shall have been given to the Borrower by the Agent or any Lender;



          (d) The Borrower or any of its Subsidiaries shall fail to pay any principal of or premium
or interest on any Debt that is outstanding in a principal or notional amount of at least
$50,000,000 in the aggregate (but excluding Debt outstanding hereunder) of the Borrower or such
Subsidiary (as the case may be), when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement or instrument relating to
Debt in excess of the aforesaid threshold amount; or any other event shall occur or condition shall
exist under any agreement or instrument relating to any such Debt and shall continue after the
applicable grace period, if any, specified in such agreement or instrument, if the effect of such
event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt;
or any Debt in excess of the aforesaid threshold amount shall be declared to be due and payable, or
required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or
redemption), purchased or defeased, or an offer to prepay, redeem, purchase or defease such Debt
shall be required to be made, in each case prior to the stated maturity thereof;



          (e) (i) The Borrower or any of its Subsidiaries shall generally not pay its debts as such
debts become due, or shall admit in writing its inability to pay its debts generally; (ii) the
Borrower or any of its Subsidiaries shall make a general assignment for the benefit of creditors;
(iii) any proceeding shall be instituted by or against the Borrower or any of its Subsidiaries
seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, reorganization or other
relief in respect of the Borrower or any Subsidiary or its debts or a substantial part of its
assets under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now
or hereafter in effect (“Debtor Relief Law”), or seeking the entry of an order for relief
or the appointment of a receiver, trustee, custodian or other similar official for it or for any
substantial part of its property under any Debtor Relief Law, and, in the case of any such
proceeding instituted against it (but not instituted by it), either such proceeding shall remain
undismissed or unstayed for a period of 60 days, or any of the actions sought in such proceeding
(including the entry of an order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or for any substantial part of its property) shall
occur; or (iv) the Borrower or any of its Subsidiaries shall take any corporate action to authorize
any of the actions set forth above in clause (ii) or (iii) of this subsection (e);



55









 





          (f) Judgments or orders for the payment of money in excess of $50,000,000 in the aggregate
shall be rendered against the Borrower or any of its Subsidiaries and either (i) enforcement
proceedings shall have been commenced by any creditor upon such judgment or order or (ii) there
shall be any period of 30 consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect; provided,
however, that any such judgment or order shall not be an Event of Default under this
Section 6.01(f) if and for so long as (i) the amount of such judgment or order is covered by a
valid and binding policy of insurance between the defendant and the insurer covering payment
thereof and (ii) such insurer has been notified of, and has not disputed the claim made for payment
of, the amount of such judgment or order;



          (g) (i) Any Person (other than the Borrower) or two or more Persons acting in concert
shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under the Securities Exchange Act of 1934), directly or indirectly, of Voting
Stock of the Borrower (or other securities convertible into such Voting Stock) representing 35% or
more of the combined voting power of all Voting Stock of the Borrower; or (ii) during any period of
24 consecutive months, commencing after the date of this Agreement, individuals who at the
beginning of such 24-month period were directors of the Borrower shall cease for any reason (other
than due to death or disability) to constitute a majority of the board of directors of the Borrower
(except to the extent that individuals who at the beginning of such 24-month period were replaced
by individuals (x) elected by a majority of the remaining members of the board of directors of the
Borrower or (y) nominated for election by, or whose nomination for election is recommended by, a
majority of the remaining members of the board of directors of the Borrower and thereafter elected
as directors by the shareholders of the Borrower);



          (h) The Borrower or any of its ERISA Affiliates shall incur liability in excess of
$50,000,000 in the aggregate as a result of one or more of the following: (i) the occurrence of
any ERISA Event; (ii) the partial or complete withdrawal of the Borrower or any of its ERISA
Affiliates from a Multiemployer Plan; or (iii) the reorganization or termination of a Multiemployer
Plan; or



          (i) the non-compliance by the Borrower or any of its Subsidiaries with any terms or
provisions of any applicable HMO Regulation or Insurance Regulation pertaining to the fiscal
soundness, solvency or financial condition of the Borrower or any of its Subsidiaries and such
non-compliance shall not have been cured or waived within 30 days after the applicable statutory
grace period (if any), if such non-compliance could reasonably be expected to have a Material
Adverse Effect;


then, and in any such event, the Agent (i) shall at the request, or may with the consent, of the
Required Lenders, by notice to the Borrower, declare the obligation of each Lender to make Advances
to be terminated, whereupon the same shall forthwith terminate, and (ii) shall at the request, or
may with the consent, of the Required Lenders, by notice to the Borrower, declare the Advances, all
interest thereon and all other amounts payable under this Agreement to be forthwith due and
payable, whereupon the Advances, all such interest and all such amounts shall become and be
forthwith due and payable, without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by the Borrower; provided,






56









 







however, that in the event of an event described in Section 6.01(e)(ii), (iii) or (iv) with
respect to the Borrower, (A) the obligation of each Lender to make Advances shall automatically be
terminated and (B) the Advances, all such interest and all such other amounts shall automatically
become and be due and payable, without presentment, demand, protest or any notice of any kind, all
of which are hereby expressly waived by the Borrower.




          SECTION 6.02. Actions in Respect of the Letters of Credit upon Default. If any
Event of Default shall have occurred and be continuing, the Agent may with the consent, or shall at
the request, of the Required Lenders, irrespective of whether it is taking any of the actions
described in Section 6.01 or otherwise, make demand upon the Borrower to, and forthwith upon such
demand the Borrower will, (a) pay to the Agent on behalf of the Lenders in same day funds at the
Agent’s office designated in such demand, for deposit in the L/C Cash Collateral Account, an amount
equal to 102% of the aggregate L/C Exposure or (b) make such other arrangements in respect of the
outstanding Letters of Credit as shall be acceptable to the Required Lenders. If at any time the
Agent determines that any funds held in the L/C Cash Collateral Account are subject to any right or
claim of any Person other than the Agent and the Lenders or that the total amount of such funds is
less than 102% of the aggregate L/C Exposure, the Borrower will, forthwith upon demand by the
Agent, pay to the Agent, as additional funds to be deposited and held in the L/C Cash Collateral
Account, an amount equal to the excess of (a) 102% of the aggregate L/C Exposure over (b) the total
amount of funds, if any, then held in the L/C Cash Collateral Account that the Agent determines to
be free and clear of any such right and claim. Upon the drawing of any Letter of Credit, to the
extent funds are on deposit in the L/C Cash Collateral Account, such funds shall be applied to
reimburse the Issuing Banks to the extent permitted by applicable law. After (i) no Event of
Default shall be continuing or (ii) all such Letters of Credit shall have expired or been fully
drawn upon and all other obligations of the Borrower hereunder and under the Notes shall have been
paid in full, the balance, if any, in such L/C Cash Collateral Account shall be returned to the
Borrower.



ARTICLE VII




THE AGENT



          SECTION 7.01. Authorization and Action. Each Lender (in its capacity as a Lender
or an Issuing Bank, as applicable) hereby appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers and discretion under this Agreement as are
delegated to the Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters not expressly provided for by this Agreement
(including enforcement or collection of the Notes), the Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of the Required
Lenders, and such instructions shall be binding upon all Lenders and all holders of Notes;
provided, however, that the Agent shall not be required to take any action that
exposes the Agent to personal liability or that is contrary to this Agreement or applicable law,
including for the avoidance of doubt any action that may be in violation of the automatic stay
under any Debtor Relief Law or that may effect a forfeiture, modification or termination of
property of a Defaulting Lender in violation of any Debtor Relief Law. The Agent agrees to give to
each



57









 




Lender prompt notice of each notice given to it by the Borrower pursuant to the terms of this
Agreement.




          SECTION 7.02. Agent’s Reliance, Etc. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable for any action taken or omitted to be taken by it or
them under or in connection with this Agreement, except for its or their own gross negligence or
willful misconduct. Without limitation of the generality of the foregoing, the Agent: (i) may
treat the Lender that made any Advance as the holder of the Debt resulting therefrom until the
Agent receives and accepts an Assumption Agreement entered into by an Assuming Lender as provided
in Section 2.18 or an Assignment and Acceptance entered into by such Lender, as assignor, and an
Eligible Assignee, as assignee, as provided in Section 8.07; (ii) may consult with legal counsel
(including counsel for the Borrower), independent public accountants and other experts selected by
it and shall not be liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (iii) makes no warranty or
representation to any Lender and shall not be responsible to any Lender for any statements,
warranties or representations (whether written or oral) made in or in connection with this
Agreement; (iv) shall not have any duty to ascertain or to inquire as to the performance,
observance or satisfaction of any of the terms, covenants or conditions of this Agreement on the
part of the Borrower or the existence at any time of any Default or to inspect the property
(including the books and records) of the Borrower; (v) shall not be responsible to any Lender for
the due execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to be created under or
in connection with, this Agreement or any other instrument or document furnished pursuant hereto;
and (vi) shall incur no liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopier or other form of
electronic communication satisfactory to the Agent) believed by it to be genuine and signed or sent
by the proper party or parties.



          SECTION 7.03. JPMCB and Affiliates. With respect to its Commitments, the Advances
made by it and the Note issued to it, JPMCB shall have the same rights and powers under this
Agreement as any other Lender and may exercise the same as though it were not the Agent; and the
term “Lender” or “Lenders” shall, unless otherwise expressly indicated, include JPMCB in its
individual capacity. JPMCB and its Affiliates may accept deposits from, lend money to, act as
trustee under indentures of, accept investment banking engagements from and generally engage in any
kind of business with, the Borrower, any of its Subsidiaries and any Person who may do business
with or own securities of the Borrower or any such Subsidiary, all as if JPMCB were not the Agent
and without any duty to account therefor to the Lenders. The Agent shall have no duty to disclose
any information obtained or received by it or any of its Affiliates relating to the Borrower or any
of its Subsidiaries to the extent such information was obtained or received in any capacity other
than as Agent.



          SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender and based on the financial
statements referred to in Section 4.01 and such other 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 Agent or any other
Lender and based on such documents and information as it shall deem appropriate at



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the time, continue to make its own credit decisions in taking or not taking action under this
Agreement.




          SECTION 7.05. Indemnification. (a) Each Lender agrees to indemnify the Agent (to
the extent not promptly reimbursed by the Borrower and without limiting any obligation of the
Borrower to do so) from and against such Lender’s Ratable Share of any and all liabilities,
obligations, losses, damages, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever that may be imposed on, incurred by, or asserted against the Agent in any
way relating to or arising out of this Agreement or any action taken or omitted by the Agent in its
capacity as such under this Agreement (collectively, the “Indemnified Costs”),
provided that no Lender shall be liable for any portion of the Indemnified Costs resulting
from the Agent’s gross negligence or willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse the Agent promptly upon demand for its Ratable Share of any
out-of-pocket expenses (including counsel fees) incurred by the Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that the Agent is not reimbursed for such
expenses by the Borrower. In the case of any investigation, litigation or proceeding giving rise
to any Indemnified Costs, this Section 7.05(a) applies whether any such investigation, litigation
or proceeding is brought by the Agent, any Lender or a third party.



          (b) Each Lender severally agrees to indemnify the Issuing Banks (to the extent not
promptly reimbursed by the Borrower and without limiting any obligation of the Borrower to do so)
from and against such Lender’s Ratable Share of any and all liabilities, obligations, losses,
damages, actions, judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against any such Issuing Bank in any
way relating to or arising out of this Agreement or any action taken or omitted by such Issuing
Bank in its capacity as such hereunder or in connection herewith; provided,
however, that no Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, actions, judgments, suits, costs, expenses or disbursements resulting from such
Issuing Bank’s gross negligence or willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse any such Issuing Bank promptly upon demand for its Ratable Share of any
costs and expenses (including fees and expenses of counsel) payable by the Borrower under Section
8.04, to the extent that such Issuing Bank is not promptly reimbursed for such costs and expenses
by the Borrower.



          (c) The failure of any Lender to reimburse the Agent or any Issuing Bank promptly upon
demand for its Ratable Share of any amount required to be paid by the Lenders to the Agent or such
Issuing Bank as provided herein shall not relieve any other Lender of its obligation hereunder to
reimburse the Agent or such Issuing Bank for its Ratable Share of such amount, but no Lender shall
be responsible for the failure of any other Lender to reimburse the Agent or an Issuing Bank for
such other Lender’s Ratable Share of such amount. Without prejudice to the survival of any other
agreement of any Lender hereunder, the agreement and obligations of each Lender contained in this
Section 7.05 shall survive the payment in full of principal, interest and all other amounts payable
hereunder and under the Notes.



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          SECTION 7.06. Successor Agent. (a) The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower and may be removed at any time with or
without cause by the Required Lenders. Upon any such resignation or removal, the Required Lenders
shall have the right to appoint a successor Agent, which shall be subject to the Borrower’s
approval (not to be unreasonably withheld or delayed) unless an Event of Default has occurred and
is continuing. If no successor Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring Agent’s giving of notice of
resignation or the Required Lenders’ removal of the retiring Agent, then the retiring Agent may, on
behalf of the Lenders, appoint a successor Agent, which shall be a commercial bank organized under
the laws of the United States of America or of any State thereof and having a combined capital and
surplus of at least $500,000,000 and which shall be subject to the Borrower’s approval (not to be
unreasonably withheld or delayed) unless an Event of Default has occurred and is continuing.



          (b) Upon the acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the rights, powers,
discretion, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations under this Agreement arising thereafter. After any retiring
Agent’s resignation or removal hereunder as Agent, the provisions of this Article VII shall inure
to its benefit as to any actions taken or omitted to be taken by it while it was Agent under this
Agreement.



          SECTION 7.07. Other Agents. Each Lender hereby acknowledges that neither the
syndication agents nor any other Lender designated as any “agent” on the cover or signature pages
hereof has any liability hereunder other than in its capacity as a Lender.



ARTICLE VIII




MISCELLANEOUS



          SECTION 8.01. Amendments, Etc. No amendment or waiver of any provision of this
Agreement or the Notes, nor consent to any departure by the Borrower therefrom, shall in any event
be effective unless the same shall be in writing and signed by the Required Lenders and (with
respect to amendments) the Borrower, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided, however,
that (a) no amendment, waiver or consent shall, unless in writing and signed by all the Lenders, do
any of the following: (i) waive any of the conditions specified in Section 3.01, (ii) change the
percentage of the Revolving Credit Commitments or of the aggregate unpaid principal amount of the
Advances, or the number of Lenders (including as set forth in the definition of Required Lenders)
that shall be required for the Lenders or any of them to take any action hereunder or (iii) amend
this Section 8.01; (b) no amendment, waiver or consent shall, unless in writing and signed by each
Lender that is directly affected by such amendment, waiver or consent, (i) other than as provided
in Sections 2.18 or 2.19, increase any Commitment of such Lender, (ii) reduce or forgive the
principal of, or interest on, the Advances or any fees or other amounts payable hereunder to such
Lender, (iii) other than as provided in Section 2.19, postpone any date fixed for any payment of
principal of, or interest on, the Advances or any fees or other amounts payable hereunder to such
Lender or (iv) change Section 2.13(a) or 2.15 or the



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definition of Ratable Share in a manner that would alter the ratable sharing of payments; and
(c) no amendment, waiver or consent shall, unless in writing and signed by the Required Lenders,
the Agent and the Issuing Banks, shall change Section 2.20 or 2.21; provided,
further, that (x) no amendment, waiver or consent shall, unless in writing and signed by
the Agent in addition to the Lenders required above to take such action, affect the rights or
duties of the Agent under this Agreement or any Note and (y) no amendment, waiver or consent shall,
unless in writing and signed by the Issuing Banks in addition to the Lenders required above to take
such action, adversely affect the rights or obligations of the Issuing Banks under this Agreement.




          In addition, notwithstanding the foregoing, the consent of a Lender to an amendment (or
amendment and restatement) of this Agreement shall not be required if, upon giving effect to such
amendment (or amendment and restatement), such Lender shall no longer be a party to this Agreement
(as so amended or amended and restated), the Revolving Credit Commitment of such Lender shall have
terminated (but such Lender shall continue to be entitled to the benefits of Sections 2.11, 2.14
and 8.04 with respect to facts and circumstances occurring prior to the effective date of such
amendment or amendment and restatement), such Lender shall have no other commitment or other
obligation hereunder and shall have been paid in full all principal, interest and other amounts
owing to it or accrued for its account under this Agreement.



          SECTION 8.02. Notices, Etc. (a) All notices and other communications provided
for hereunder shall be either (x) in writing (including telecopier, electronic mail and other forms
of electronic communication) and mailed, telecopied, telegraphed, sent by electronic mail or
delivered or (y) communicated as and to the extent set forth in Section 8.02(b) and in the proviso
to this Section 8.02(a), addressed as follows: If to the Borrower, at its address at 6705
Rockledge Drive, Suite 900, Bethesda, Maryland 20817, Attention: Chief Financial Officer, with a
copy to General Counsel; if to any Initial Lender, at its Domestic Lending Office specified
opposite its name on Schedule I hereto; if to any other Lender, at its Domestic Lending
Office specified in the Assumption Agreement or the Assignment and Acceptance pursuant to which it
became a Lender; and if to the Agent, at its address at 10 South Dearborn, Floor 07, Chicago,
Illinois 60603-2003, Attention: Joyce King, with a copy to 395 North Service Road, 3rd Floor,
Melville, New York 11747, Attention: Alicia Schreibstein; or, as to the Borrower or the Agent, at
such other address as shall be designated by such party in a written notice to the other parties
and, as to each other party, at such other address as shall be designated by such party in a
written notice to the Borrower and the Agent; provided that materials required to be
delivered pursuant to Section 5.01(i)(i), (ii) or (iii) shall be delivered to the Agent as
specified in Section 8.02(b) or as otherwise specified to the Borrower by the Agent. All such
notices and communications shall, when mailed, telecopied, telegraphed or e-mailed, be effective
when deposited in the mails, telecopied, delivered to the telegraph company or confirmed by e-mail,
respectively, except that notices and communications to the Agent pursuant to Article II, III or
VII shall not be effective until received by the Agent. Delivery by telecopier or e-mail of an
executed counterpart of any amendment or waiver of any provision of this Agreement or the Notes or
of any Exhibit hereto to be executed and delivered hereunder shall be effective as delivery of a
manually executed counterpart thereof.



          (b) So long as JPMCB or any of its Affiliates is the Agent, materials required to be
delivered pursuant to Section 5.01(i)(i), (ii) and (iii) shall be either (x) delivered to the Agent
in an electronic medium in a format acceptable to the Agent and the Lenders by e-mail at



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large.corporate.agency@jpmchase.com or (y) deemed to have been delivered when the Borrower
provides notice to the Agent by e-mail at
large.corporate.agency@jpmchase.com that such materials
are posted on the SEC’s website at www.sec.gov. The Borrower agrees that the Agent may make such
materials, as well as any other written information, documents, instruments and other material
relating to the Borrower, any of its Subsidiaries or any other materials or matters relating to
this Agreement, the Notes or any of the transactions contemplated hereby (collectively, the
“Communications”) available to the Lenders by posting such notices on Intralinks or a
substantially similar electronic system (the “Platform”). The Borrower acknowledges that
(i) the distribution of material through an electronic medium is not necessarily secure and that
there are confidentiality and other risks associated with such distribution, (ii) the Platform is
provided “as is” and “as available” and (iii) neither the Agent nor any of its Affiliates warrants
the accuracy, adequacy or completeness of the Communications or the Platform and each expressly
disclaims liability for errors or omissions in the Communications or the Platform. No warranty of
any kind, express, implied or statutory, including any warranty of merchantability, fitness for a
particular purpose, non-infringement of third party rights or freedom from viruses or other code
defects, is made by the Agent or any of its Affiliates in connection with the Platform.




          (c) Each Lender agrees that notice to it (as provided in the next sentence) (a
“Notice”) specifying that any Communications have been posted to the Platform shall
constitute effective delivery of such information, documents or other materials to such Lender for
purposes of this Agreement; provided that, if requested by any Lender, the Agent shall
deliver a copy of the Communications to such Lender by email or telecopier. Each Lender agrees (i)
to notify the Agent in writing of such Lender’s e-mail address to which a Notice may be sent by
electronic transmission (including by electronic communication) on or before the date such Lender
becomes a party to this Agreement (and from time to time thereafter to ensure that the Agent has on
record an effective e-mail address for such Lender) and (ii) that any Notice may be sent to such
e-mail address.



          SECTION 8.03. No Waiver; Remedies. No failure on the part of any Lender or the
Agent to exercise, and no delay in exercising, any right hereunder or under any Note shall operate
as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other
or further exercise thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.



          SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to pay on demand all
reasonable costs and expenses of the Agent in connection with the preparation, execution, delivery,
administration, modification and amendment of this Agreement, the Notes and the other documents to
be delivered hereunder, including (A) all due diligence, syndication (including printing,
distribution and bank meetings), transportation, computer, duplication, appraisal, consultant and
audit expenses (subject to any limitations thereon previously agreed by the Borrower and the Agent)
and (B) the reasonable fees and expenses of counsel for the Agent with respect thereto and with
respect to advising the Agent as to its rights and responsibilities under this Agreement;
provided, however, that, so long as no Default shall have occurred and be
continuing, the Borrower shall not be responsible for the fees and expenses of more than one firm.
The Borrower further agrees to pay on demand all costs and expenses of the Agent and the Lenders,
if any (including reasonable counsel fees and expenses), in connection with the



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enforcement (whether through negotiations, legal proceedings or otherwise) of this Agreement,
the Notes and the other documents to be delivered hereunder, including reasonable fees and expenses
of counsel for the Agent and each Lender in connection with the enforcement of rights under this
Section 8.04(a).




          (b) The Borrower agrees to indemnify and hold harmless the Agent and each Lender and each
of their Affiliates and their officers, directors, employees, agents and advisors (each, an
“Indemnified Party”) from and against any and all claims, damages, losses, liabilities and
expenses (including reasonable fees and expenses of counsel) incurred by or asserted or awarded
against any Indemnified Party, in each case arising out of or in connection with or by reason of
(including in connection with any investigation, litigation or proceeding or preparation of a
defense in connection therewith) the Notes, this Agreement, any of the transactions contemplated
herein or the actual or proposed use of the proceeds of the Advances, except to the extent such
claim, damage, loss, liability or expense is found in a final, non-appealable judgment by a court
of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence, willful
misconduct or material breach in bad faith of its express contractual obligations hereunder. In
the case of an investigation, litigation or other proceeding to which the indemnity in this Section
8.04(b) applies, such indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by the Borrower, its directors, equityholders or creditors or an Indemnified
Party or any other Person, whether or not any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are consummated. The Borrower also agrees not
to assert any claim for special, indirect, consequential or punitive damages against the Agent, any
Lender, any of their Affiliates, or any of their respective directors, officers, employees,
attorneys and agents, on any theory of liability, arising out of or otherwise relating to the
Notes, this Agreement, any of the transactions contemplated herein or the actual or proposed use of
the proceeds of the Advances. The Borrower further agrees to pay any civil penalty or fine
assessed by OFAC against the Agent or any Lender, and all reasonable costs and expenses (including
reasonable counsel fees and expenses) incurred in connection with the defense thereof, as a result
of conduct by the Borrower that violates a sanction enforced by OFAC.



          (c) If any payment of principal of, or Conversion of, any Eurodollar Rate Advance is made
by the Borrower to or for the account of a Lender other than on the last day of the Interest Period
for such Advance, as a result of a payment or Conversion pursuant to Section 2.08(e), 2.10 or 2.12,
acceleration of the maturity of the Notes pursuant to Section 6.01 or for any other reason, or by
an Eligible Assignee to a Lender other than on the last day of the Interest Period for such Advance
upon an assignment of rights and obligations under this Agreement pursuant to Section 8.07 as a
result of a demand by the Borrower pursuant to Section 8.07(a), the Borrower shall, upon demand by
such Lender (with a copy of such demand to the Agent), pay to the Agent for the account of such
Lender any amounts required to compensate such Lender for any additional losses, costs or expenses
that it may reasonably incur as a result of such payment or Conversion, including any loss
(including loss of anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance
(but without duplication of any obligation of the Borrower under Section 2.11 or any other
provision of this Agreement).



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          (d) Without prejudice to the survival of any other agreement of the Borrower hereunder,
the agreements and obligations of the Borrower contained in Sections 2.11, 2.14 and 8.04 shall
survive the payment in full of principal, interest and all other amounts payable hereunder and
under the Notes.



          SECTION 8.05. Right of Setoff. Upon (i) the occurrence and during the continuance
of any Event of Default and (ii) the making of the request or the granting of the consent specified
by Section 6.01 to authorize the Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, 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
indebtedness at any time owing by such Lender or such Affiliate to or for the credit or the account
of the Borrower against any and all of the obligations of the Borrower now or hereafter existing
under this Agreement and the Note held by such Lender, whether or not such Lender shall have made
any demand under this Agreement or such Note and although such obligations may be unmatured;
provided that, in the event that any Defaulting Lender shall exercise any such right of
setoff, (x) all amounts so set off shall be paid over immediately to the Agent for further
application in accordance with the provisions of Section 2.20 and, pending such payment, shall be
segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit
of the Agent, the Issuing Banks and the Lenders, and (y) the Defaulting Lender shall provide
promptly to the Agent a statement describing in reasonable detail the obligations owing to such
Defaulting Lender as to which it exercised such right of setoff. Each Lender agrees promptly to
notify the Borrower after any such setoff and application; provided that the failure to
give such notice shall not affect the validity of such setoff and application. The rights of each
Lender and its Affiliates under this Section are in addition to other rights and remedies
(including other rights of setoff) that such Lender and its Affiliates may have. Notwithstanding
anything to the contrary contained herein or in any other Loan Document, each Lender expressly
waives its right of setoff (and any similar right including bankers’ liens) with respect to deposit
accounts in which have been deposited payments received under Medicare, Medicaid, TRICARE and other
health care programs of the United States or any state (including the District of Columbia) thereof
and any agency or other Governmental Authority thereof.



          SECTION 8.06. Binding Effect. This Agreement shall become effective (other than
Section 2.01, which shall only become effective upon satisfaction of the conditions precedent set
forth in Section 3.01) when it shall have been executed by the Borrower and the Agent and when the
Agent shall have been notified by each Initial Lender that such Initial Lender has executed it and
thereafter shall be binding upon and inure to the benefit of the Borrower, the Agent and each
Lender and their respective successors and assigns, except that the Borrower shall not have the
right to assign its rights hereunder or any interest herein without the prior written consent of
the Lenders.



          SECTION 8.07. Assignments and Participations. (a) Each Lender may and, if
demanded by the Borrower (following a demand by such Lender pursuant to Section 2.11 or 2.14 or a
suspension of Eurodollar Rate Advances pursuant to Section 2.12 and only if no Event of Default has
occurred and is continuing) upon at least five Business Days’ notice to such Lender and the Agent,
will assign to one or more Persons (other than an Ineligible Institution) all or a



64









 




portion of its rights and obligations under this Agreement (including all or a portion of its
Revolving Credit Commitment or Letter of Credit Commitment, the Advances owing to it, its
participations in Letters of Credit and the Note or Notes held by it); provided,
however, that (i) each such assignment shall be of a constant, and not a varying,
percentage of all rights and obligations under and in respect of the Facilities so assigned, (ii)
except in the case of an assignment to a Person that, immediately prior to such assignment, was a
Lender or an Affiliate of a Lender or an assignment of all of a Lender’s rights and obligations
under this Agreement, the amount of the Revolving Credit Commitment of the assigning Lender being
assigned pursuant to each such assignment (determined as of the date of the Assignment and
Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or an
integral multiple of $1,000,000 in excess thereof, unless the Borrower and the Agent otherwise
agree, (iii) each such assignment shall be to an Eligible Assignee, (iv) each such assignment made
as a result of a demand by the Borrower pursuant to this Section 8.07(a) shall be arranged by the
Borrower after consultation with the Agent and shall be either an assignment of all of the rights
and obligations of the assigning Lender under this Agreement or an assignment of a portion of such
rights and obligations made concurrently with another such assignment or other such assignments
that together cover all of the rights and obligations of the assigning Lender under this Agreement,
(v) no Lender shall be obligated to make any such assignment as a result of a demand by the
Borrower pursuant to this Section 8.07(a) unless and until such Lender shall have received, as
consideration for such assignment, one or more payments from either the Borrower or one or more
Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal
amount of the Advances owing to such Lender, together with accrued interest thereon to the date of
payment of such principal amount and all other amounts payable to such Lender under this Agreement,
and (vi) the parties to each such assignment shall execute and deliver to the Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance, together with any Note
subject to such assignment and a processing and recordation fee of $3,500 payable by the parties to
each such assignment other than the Borrower; provided, however, that in the case
of each assignment made as a result of a demand by the Borrower, such recordation fee shall be
payable by the Borrower except that no such recordation fee shall be payable in the case of an
assignment made at the request of the Borrower to an Eligible Assignee that is an existing Lender.
Upon such execution, delivery, acceptance and recording, from and after the effective date
specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto
and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) the Lender
assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned
by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights
under Sections 2.11, 2.14 and 8.04 to the extent any claim thereunder relates to an event arising
prior to such assignment) and be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a party hereto).




          (b) By executing and delivering an Assignment and Acceptance, the Lender assignor
thereunder and the assignee thereunder confirm to and agree with each other and the other parties
hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning
Lender makes no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this



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Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or
value of, or the perfection or priority of any lien or security interest created or purported to be
created under or in connection with, this Agreement or any other instrument or document furnished
pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under this Agreement or any other instrument
or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in Section 4.01 and
such other documents and information as it has deemed appropriate to make its own credit analysis
and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently
and without reliance upon the Agent, such assigning Lender 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 this Agreement; (v) such assignee confirms that it
is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action
as agent on its behalf and to exercise such powers and discretion under this Agreement as are
delegated to the Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance
with their terms all of the obligations that by the terms of this Agreement are required to be
performed by it as a Lender.




          (c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and
an assignee representing that it is an Eligible Assignee, together with any Note or Notes subject
to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii)
record the information contained therein in the Register and (iii) give prompt notice thereof to
the Borrower.



          (d) In connection with any assignment of rights and obligations of any Defaulting Lender
hereunder, no such assignment shall be effective unless and until, in addition to the other
conditions thereto set forth herein, the parties to the assignment shall make such additional
payments to the Agent in an aggregate amount sufficient, upon distribution thereof as appropriate
(which may be outright payment, purchases by the assignee of participations or subparticipations,
or other compensating actions, including funding, with the consent of the Borrower and the Agent,
the applicable Ratable Share of Advances previously requested but not funded by such Defaulting
Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x)
pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Agent,
each Issuing Bank and each other Lender hereunder (and interest accrued thereon), and (y) acquire
(and fund as appropriate) its full Ratable Share of all Advances and participations in Letters of
Credit. Notwithstanding the foregoing, in the event that any assignment of rights and obligations
of any Defaulting Lender hereunder shall become effective under applicable law without compliance
with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a
Defaulting Lender for all purposes of this Agreement until such compliance occurs. Except to the
extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender
will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s
having been a Defaulting Lender.



66









 





          (e) The Agent shall maintain at its address referred to in Section 8.02 a copy of each
Assumption Agreement and each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and the Commitment of, and
principal amount of the Advances owing to, each Lender from time to time (the “Register”).
The entries in the Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in
the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time and from time to time
upon reasonable prior notice.



          (f) Each Lender may sell participations to one or more banks or other entities (other than
the Borrower or any of its Affiliates or an Ineligible Institution) in or to all or a portion of
its rights and obligations under this Agreement (including all or a portion of its Commitment, the
Advances owing to it and any Note or Notes held by it); provided, however, that (i)
such Lender’s obligations under this Agreement (including its Commitment to the Borrower hereunder)
shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any
such Note for all purposes of this Agreement, (iv) the Borrower, the Agent 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 and (v) no participant under any such participation shall have
any right to approve any amendment or waiver of any provision of this Agreement or any Note, or any
consent to any departure by the Borrower therefrom, except to the extent that such amendment,
waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other
amounts payable hereunder subject to such participation, in each case to the extent subject to such
participation, or postpone any date fixed for any payment of principal of, or interest on, the
Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such
participation. The Borrower agrees that each participant shall be entitled to the benefits of
Sections 2.11, 2.14 and 8.04(c) (subject to the requirements and limitations therein, including the
requirements under Section 2.14(e) (it being understood that the documentation required under
Section 2.14(e) shall be delivered to the participating Lender)) to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section;
provided that such participant (A) agrees to be subject to the provisions of Sections 2.15
and 2.22, as if it were an assignee under paragraph (b) of this Section, and (B) shall not be
entitled to receive any greater payment under Sections 2.11 or 2.14, with respect to any
participation, than its participating Lender would have been entitled to receive. To the extent
permitted by law, each participant also shall be entitled to the benefits of Section 8.05 as though
it were a Lender, provided such participant agrees to be subject to Section 2.15 as though it were
a Lender.



          (g) Notwithstanding any other provision set forth in this Agreement, any Lender may at any
time create a security interest in all or any portion of its rights under this Agreement (including
the Advances owing to it and any Note or Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board.



          (h) Notwithstanding anything to the contrary contained herein, if at any time any Lender
that is also an Issuing Bank assigns all of its Revolving Credit Commitment and Advances pursuant
to subsection (a) above, such Lender may, upon 30 days’ notice to the



67









 




Borrower and the Lenders, resign as Issuing Bank. In the event of any such resignation as
Issuing Bank, the Borrower shall be entitled to appoint from among the Lenders a successor Issuing
Bank hereunder; provided, however, that no failure by the Borrower to appoint any
such successor shall affect the resignation of such Lender as Issuing Bank. If any such Lender
resigns as Issuing Bank, it shall retain all the rights and obligations of an Issuing Bank
hereunder with respect to all Letters of Credit issued by it in such capacity outstanding as of the
effective date of its resignation as Issuing Bank (including the right to require the Lenders to
make Advances or fund participations in respect thereof pursuant to Section 2.03(b)).




          SECTION 8.08. Confidentiality. Each of the Agent, the Lenders and each Issuing
Bank agrees to maintain the confidentiality of the Borrower Information (as defined below), except
that Borrower Information may be disclosed (a) to its Affiliates and to its and its Affiliates’
respective managers, administrators, trustees, partners, directors, officers, employees, agents,
advisors and other representatives on a “need to know basis” (it being understood that the Persons
to whom such disclosure is made will be informed of the confidential nature of such Borrower
Information and instructed to keep such Borrower Information confidential), (b) to the extent
requested by any regulatory authority purporting to have jurisdiction over it or its Affiliates
(including any self-regulatory authority, such as the National Association of Insurance
Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any action or proceeding
relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement containing provisions substantially the same as those of
this Section 8.08, to (i) any assignee of or participant in, or any prospective assignee of or
participant in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective party (or its managers, administrators, trustees, partners, directors, officers,
employees, agents, advisors and other representatives) to any swap or derivative or similar
transaction under which payments are to be made by reference to the Borrower and its obligations,
this Agreement or payments hereunder, (iii) any rating agency in connection with the rating of the
Borrower or its obligations, or (iv) the CUSIP Service Bureau or any similar organization, (g) with
the consent of the Borrower or (h) to the extent such Borrower Information (x) becomes publicly
available other than as a result of a breach of this Section 8.08 or (y) becomes available to the
Agent, any Lender, any Issuing Bank or any of their respective Affiliates on a nonconfidential
basis from a source other than the Borrower.



          For purposes of this Section 8.08, “Borrower Information” means all information
received from the Borrower or any of its Subsidiaries relating to the Borrower or any of its
Subsidiaries or any of their respective businesses, other than any such information that is
available to the Agent, any Lender or any Issuing Bank on a nonconfidential basis prior to
disclosure by the Borrower or any of its Subsidiaries; provided that, in the case of
information received from the Borrower or any of its Subsidiaries after the date hereof, such
information is clearly identified at the time of delivery as confidential. Any Person required to
maintain the confidentiality of Borrower Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Borrower Information as such Person would
accord to its own confidential information.



68









 





          SECTION 8.09. Governing Law. This Agreement and the Notes shall be governed by,
and construed in accordance with, the laws of the State of New York.



          SECTION 8.10. Execution in Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts, each of which when
so executed shall be deemed to be an original and all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement
by telecopier or any other electronic means that reproduces an image of the actual executed
signature page shall be effective as delivery of a manually executed counterpart of this Agreement.



          SECTION 8.11. Jurisdiction, Etc. (a) The Borrower hereby irrevocably and
unconditionally submits, for itself and its property, to the exclusive jurisdiction of any New York
State court or federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes, 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 any such New York State court or, to the extent
permitted by law, in such federal court. The Borrower hereby consents to the service of process in
any action or proceeding in such courts by the mailing thereof by any parties hereto by registered
or certified mail, postage prepaid, to the Borrower at its address specified pursuant to Section
8.02. Each of the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by law. Nothing in this Agreement shall affect any right that the Agent or
any Lender may otherwise have to bring any action or proceeding relating to this Agreement or the
Notes in the courts of any jurisdiction.



          (b) Each of the parties hereto 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
the Notes in any New York State or federal court. 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.



          SECTION 8.12. No Liability of the Issuing Banks. The Borrower assumes all risks
of the acts or omissions of any beneficiary or transferee of any Letter of Credit with respect to
its use of such Letter of Credit. Neither an Issuing Bank nor any of its officers or directors
shall be liable or responsible for: (a) the use that may be made of any Letter of Credit or any
acts or omissions of any beneficiary or transferee in connection therewith; (b) the validity,
sufficiency or genuineness of documents, or of any endorsement thereon, even if such documents
should prove to be in any or all respects invalid, insufficient, fraudulent or forged; (c) payment
by such Issuing Bank against presentation of documents that do not comply with the terms of a
Letter of Credit, including failure of any documents to bear any reference or adequate reference to
the Letter of Credit; or (d) any other circumstances whatsoever in making or failing to make
payment under any Letter of Credit; provided that the Borrower shall have a claim against
such Issuing Bank, and such Issuing Bank shall be liable to the Borrower, to the extent of any
direct, but not special, indirect, consequential or punitive, damages suffered by the Borrower that
the



69









 




Borrower proves were caused by (i) such Issuing Bank’s willful misconduct, gross negligence or
material breach in bad faith of its express contractual obligations hereunder in determining
whether documents presented under any Letter of Credit comply with the terms of the Letter of
Credit or (ii) such Issuing Bank’s willful failure to make lawful payment under a Letter of Credit
after the presentation to it of a draft and certificates strictly complying with the terms and
conditions of the Letter of Credit. In furtherance and not in limitation of the foregoing, such
Issuing Bank may accept documents that appear on their face to be in order, without responsibility
for further investigation.




          SECTION 8.13. Patriot Act Notice. Each Lender and the Agent (for itself and not
on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the
Patriot Act, it is required to obtain, verify and record information that identifies the Borrower,
which information includes the name and address of the Borrower and other information that will
allow such Lender or the Agent, as applicable, to identify the Borrower in accordance with the
Patriot Act. The Borrower shall provide, to the extent commercially reasonable, such information
and take such actions as are reasonably requested by the Agent or any Lenders in order to assist
the Agent and the Lenders in maintaining compliance with the Patriot Act.



          SECTION 8.14. Waiver of Jury Trial. Each of the Borrower, the Agent and the
Lenders hereby irrevocably waives all right to trial by jury in any action, proceeding or
counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this
Agreement or the Notes or the actions of the Agent or any Lender in the negotiation,
administration, performance or enforcement thereof.



          SECTION 8.15. No Fiduciary Duty. The Agent, each Lender and their Affiliates
(collectively, solely for purposes of this Section, the “Lenders”), may have economic interests
that conflict with those of the Borrower, its stockholders and/or its Affiliates. The Borrower
agrees that nothing in the Loan Documents or otherwise will be deemed to create an advisory,
fiduciary or agency relationship or fiduciary or other implied duty between any Lender, on the one
hand, and the Borrower, its stockholders or its Affiliates, on the other. The Borrower
acknowledges and agrees that (a) the transactions contemplated by the Loan Documents (including the
exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions
between the Lenders, on the one hand, and the Borrower, on the other, and (b) in connection
therewith and with the process leading thereto, (i) no Lender has assumed an advisory or fiduciary
responsibility in favor of the Borrower, its stockholders or its Affiliates with respect to the
transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or
the process leading thereto (irrespective of whether any Lender has advised, is currently advising
or will advise the Borrower, its stockholders or its Affiliates on other matters) or any other
obligation to the Borrower except the obligations expressly set forth in the Loan Documents and
(ii) each Lender is acting solely as principal and not as the agent or fiduciary of the Borrower,
its management, stockholders, creditors or any other Person. The Borrower acknowledges and agrees
that it has consulted its own legal and financial advisors to the extent it deemed appropriate and
that it is responsible for making its own independent judgment with respect to such transactions
and the process leading thereto. The Borrower agrees that it will not claim that any Lender has
rendered advisory services of any nature or respect, or owes a



70









 




fiduciary or similar duty, to the Borrower in connection with such transaction or the process
leading thereto.




          SECTION 8.16. 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.



[Remainder of Page Intentionally Left Blank; Signature Pages Follow]





71












 





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




	 	 	 	 	 
	 	COVENTRY HEALTH CARE, INC.,

as Borrower

 	 
	 	By:  	/s/
Randy P. Giles 	 
	 	 	Name: Randy P. Giles	 
	 	 	Title:   Executive Vice
President,

            Chief
Financial Officer and Treasurer	 
	 



[Signature Page to Credit Agreement]








 









 








	 	 	 	 	 
	 	JPMORGAN CHASE BANK, NATIONAL 

ASSOCIATION,

as Agent

 	 
	 	By:  	/s/
Alicia T. Schreibstein 	 
	 	 	Name: Alicia T. Schreibstein	 
	 	 	Title:   Vice President	 
	 



[Signature Page to Credit Agreement]






 









 








	 	 	 	 	 
	 	INITIAL LENDERS:







JPMORGAN CHASE BANK, NATIONAL ASSOCIATION

 	 
	 	By:  	/s/
Alicia T. Schreibstein 	 
	 	 	Name: Alicia T. Schreibstein	 
	 	 	Title:   Vice President	 
	 



[Signature Page to Credit Agreement]





 









 








	 	 	 	 	 
	 	CITIBANK, N.A.

 	 
	 	By:  	/s/
Maureen P. Maroney 	 
	 	 	Name: Maureen P. Maroney	 
	 	 	Title:   Authorized Signatory	 
	 



[Signature Page to Credit Agreement]





 









 








	 	 	 	 	 
	 	BANK OF AMERICA, N.A.

 	 
	 	By:  	/s/
Yinghua Zhang 	 
	 	 	Name: Yinghua Zhang	 
	 	 	Title:   Vice
President	 
	 



[Signature Page to Credit Agreement]





 









 








	 	 	 	 	 
	 	BARCLAYS BANK PLC

 	 
	 	By:  	/s/
Alicia Borys 	 
	 	 	Name: Alicia Borys	 
	 	 	Title:   Vice President	 
	 



[Signature Page to Credit Agreement]





 









 








	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION

 	 
	 	By:  	/s/
Andrea S. Chen 	 
	 	 	Name: Andrea S. Chen	 
	 	 	Title:   Director	 
	 



[Signature Page to Credit Agreement]




 









 








	 	 	 	 	 
	 	GOLDMAN SACHS BANK USA

 	 
	 	By:  	/s/
Mark Walton 	 
	 	 	Name: Mark Walton	 
	 	 	Title:   Authorized
Signatory	 
	 



[Signature Page to Credit Agreement]




 









 








	 	 	 	 	 	 
	 	UBS LOAN FINANCE LLC

 	 
	 	By:  	/s/
Irja R. Otsa 	 	/s/
April Varner-Nanton 
	 	 	Name: Irja R. Otsa	 	April Varner-Nanton
	 	 	Title:   Associate Director

            Banking
Products Services, US	 	Director

Banking
Products Services, US
	 



[Signature Page to Credit Agreement]




 









 








	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION

 	 
	 	By:  	/s/
John M. Langenderfer 	 
	 	 	Name: John M. Langenderfer	 
	 	 	Title:   Senior Vice President	 
	 



[Signature Page to Credit Agreement]




 









 








	 	 	 	 	 
	 	UNION BANK, N.A.

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



[Signature Page to Credit Agreement]




 









 








	 	 	 	 	 
	 	FIFTH THIRD BANK

 	 
	 	By:  	/s/
Michelle J. Bahner 	 
	 	 	Name: Michelle J. Bahner	 
	 	 	Title:   Vice
President	 
	 



[Signature Page to Credit Agreement]




 









 








	 	 	 	 	 
	 	BB&T BANK

 	 
	 	By:  	/s/
Glenn A. Page 	 
	 	 	Name: Glenn A. Page	 
	 	 	Title:   Senior Vice President	 
	 



[Signature Page to Credit Agreement]




 









 








	 	 	 	 	 	 
	 	CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH

 	 
	 	By:  	/s/
Ari Bruger 	 	/s/
Rahul Parmer
	 	 	Name: Ari Bruger	 	Rahul Parmer
	 	 	Title:   Vice
President	 	Associate
	 



[Signature Page to Credit Agreement]




 









 








	 	 	 	 	 
	 	UMB BANK, N.A.

 	 
	 	By:  	/s/
Kurt Kastendick 	 
	 	 	Name: Kurt Kastendick	 
	 	 	Title:   Sr. Vice
President	 
	 



[Signature Page to Credit Agreement]




 









 







	 	 	 	 	 
	 	CHANG HWA COMMERCIAL BANK LTD.,
 NEW YORK BRANCH

 	 
	 	By:  	/s/
Eric Y.S. Tsai 	 
	 	 	Name: Eric Y.S. Tsai	 
	 	 	Title:   V.P. &
General Manager	 
	 



[Signature Page to Credit Agreement]




 









 








	 	 	 	 	 
	 	E. SUN COMMERCIAL BANK, LTD., LOS ANGELES BRANCH

 	 
	 	By:  	/s/
Edward Chen 	 
	 	 	Name: Edward Chen	 
	 	 	Title:   VP &
General Manager	 
	 



[Signature Page to Credit Agreement]




 









 








	 	 	 	 	 
	 	INITIAL ISSUING BANKS:



JPMORGAN CHASE BANK, NATIONAL ASSOCIATION

 	 
	 	By:  	/s/
Alicia T. Schreibstein 	 
	 	 	Name: Alicia T. Schreibstein	 
	 	 	Title:   Vice
President	 
	 



[Signature Page to Credit Agreement]




 









 








	 	 	 	 	 
	 	CITIBANK, N.A.

 	 
	 	By:  	/s/
Maureen P. Maroney 	 
	 	 	Name: Maureen P. Maroney	 
	 	 	Title:   Authorized
Signatory	 
	 



[Signature Page to Credit Agreement]




 









 








	 	 	 	 	 
	 	BANK OF AMERICA, N.A.

 	 
	 	By:  	/s/
Yinghua Zhang 	 
	 	 	Name: Yinghua Zhang	 
	 	 	Title:   Vice
President	 
	 



[Signature Page to Credit Agreement]