exv10w2





Exhibit 10.2


 





Published CUSIP Number:                    




CREDIT AGREEMENT



Dated as of April 1, 2011



among



ACADIA HEALTHCARE COMPANY, LLC,

as the Borrower,



ACADIA HEALTHCARE HOLDINGS, LLC AND ITS SUBSIDIARIES IDENTIFIED HEREIN,

as the Guarantors,



BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender and L/C Issuer,



FIFTH THIRD BANK,

as Syndication Agent,



GENERAL ELECTRIC CAPITAL CORPORATION,

as Documentation Agent



and



THE OTHER LENDERS PARTY HERETO



Arranged By:



MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

as Sole Lead Arranger and Book Manager



 






 









 








TABLE OF CONTENTS




	 	 	 	 	 

	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	1.01 Defined Terms
	 	 	1	 
	1.02 Other Interpretive Provisions
	 	 	30	 
	1.03 Accounting Terms; Calculation of Financial Covenants on a Pro Forma Basis
	 	 	31	 
	1.04 Rounding
	 	 	32	 
	1.05 Times of Day
	 	 	32	 
	1.06 Letter of Credit Amounts
	 	 	32	 
	 
	 	 	 	 
	ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	32	 
	2.01 Revolving Loans and Term Loan
	 	 	32	 
	2.02 Borrowings, Conversions and Continuations of Loans
	 	 	33	 
	2.03 Letters of Credit
	 	 	34	 
	2.04 Swing Line Loans
	 	 	41	 
	2.05 Prepayments
	 	 	44	 
	2.06 Optional Termination or Reduction of Aggregate Revolving Commitments
	 	 	46	 
	2.07 Repayment of Loans
	 	 	47	 
	2.08 Interest
	 	 	48	 
	2.09 Fees
	 	 	48	 
	2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate
	 	 	49	 
	2.11 Evidence of Debt
	 	 	49	 
	2.12 Payments Generally; Administrative Agent’s Clawback
	 	 	50	 
	2.13 Sharing of Payments by Lenders
	 	 	51	 
	2.14 Cash Collateral
	 	 	52	 
	2.15 Defaulting Lenders
	 	 	53	 
	 
	 	 	 	 
	ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	54	 
	3.01 Taxes
	 	 	54	 
	3.02 Illegality
	 	 	57	 
	3.03 Inability to Determine Rates
	 	 	58	 
	3.04 Increased Costs
	 	 	58	 
	3.05 Compensation for Losses
	 	 	59	 
	3.06 Mitigation of Obligations; Replacement of Lenders
	 	 	60	 
	3.07 Survival
	 	 	60	 
	 
	 	 	 	 
	ARTICLE IV GUARANTY
	 	 	61	 
	4.01 The Guaranty
	 	 	61	 
	4.02 Obligations Unconditional
	 	 	61	 
	4.03 Reinstatement
	 	 	62	 
	4.04 Certain Additional Waivers
	 	 	62	 
	4.05 Remedies
	 	 	62	 
	4.06 Rights of Contribution
	 	 	62	 
	4.07 Guarantee of Payment; Continuing Guarantee
	 	 	63	 
	 
	 	 	 	 
	ARTICLE V CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	63	 
	5.01 Conditions of Effectiveness
	 	 	63	 
	5.02 Conditions to all Credit Extensions on the Closing Date
	 	 	66	 
	5.03 Conditions to all Credit Extensions after the Closing Date
	 	 	67	 
	 
	 	 	 	 
	ARTICLE VI REPRESENTATIONS AND WARRANTIES
	 	 	67	 
	6.01 Existence, Qualification and Power
	 	 	68	 
	6.02 Authorization; No Contravention
	 	 	68	 






i









 






	 	 	 	 	 

	6.03 Governmental Authorization; Other Consents
	 	 	68	 
	6.04 Binding Effect
	 	 	68	 
	6.05 Financial Statements; No Material Adverse Effect
	 	 	68	 
	6.06 Litigation
	 	 	69	 
	6.07 No Default
	 	 	69	 
	6.08 Ownership of Property; Liens
	 	 	69	 
	6.09 Environmental Compliance
	 	 	70	 
	6.10 Insurance
	 	 	70	 
	6.11 Taxes
	 	 	71	 
	6.12 ERISA Compliance
	 	 	71	 
	6.13 Subsidiaries
	 	 	71	 
	6.14 Margin Regulations; Investment Company Act
	 	 	72	 
	6.15 Disclosure
	 	 	72	 
	6.16 Compliance with Laws
	 	 	72	 
	6.17
Intellectual Property; Licenses, Etc.
	 	 	73	 
	6.18 Solvency
	 	 	73	 
	6.19 Perfection of Security Interests in the Collateral
	 	 	74	 
	6.20 Business Locations; Taxpayer Identification Number
	 	 	74	 
	6.21 Labor Matters
	 	 	74	 
	6.22 Reimbursement from Payors
	 	 	74	 
	6.23 Licensing and Accreditation
	 	 	74	 
	6.24 Use of Proceeds
	 	 	75	 
	 
	 	 	 	 
	ARTICLE VII AFFIRMATIVE COVENANTS
	 	 	75	 
	7.01 Financial Statements
	 	 	75	 
	7.02 Certificates; Other Information
	 	 	77	 
	7.03 Notices
	 	 	78	 
	7.04 Payment of Taxes
	 	 	79	 
	7.05
Preservation of Existence, Etc.
	 	 	79	 
	7.06 Maintenance of Properties
	 	 	79	 
	7.07 Maintenance of Insurance
	 	 	80	 
	7.08 Compliance with Laws
	 	 	80	 
	7.09 Books and Records
	 	 	80	 
	7.10 Inspection Rights
	 	 	81	 
	7.11 Use of Proceeds
	 	 	81	 
	7.12 Additional Subsidiaries
	 	 	82	 
	7.13 Pledged Assets
	 	 	82	 
	7.14 Post-Closing Requirements
	 	 	82	 
	 
	 	 	 	 
	ARTICLE VIII NEGATIVE COVENANTS
	 	 	83	 
	8.01 Liens
	 	 	83	 
	8.02 Investments
	 	 	85	 
	8.03 Indebtedness
	 	 	86	 
	8.04 Fundamental Changes
	 	 	87	 
	8.05 Dispositions
	 	 	88	 
	8.06 Restricted Payments
	 	 	88	 
	8.07 Change in Nature of Business
	 	 	89	 
	8.08 Transactions with Affiliates and Insiders; Management Fees
	 	 	89	 
	8.09 Burdensome Agreements
	 	 	89	 
	8.10 Use of Proceeds
	 	 	90	 
	8.11 Financial Covenants
	 	 	90	 






ii









 






	 	 	 	 	 

	8.12 Organization Documents; Fiscal Year; Legal Name, State of Formation and Form of
Entity
	 	 	90	 
	8.13 Ownership of Subsidiaries
	 	 	90	 
	8.14 Sale Leasebacks
	 	 	91	 
	8.15 Capital Expenditures
	 	 	91	 
	8.16 Amendment of Material Documents
	 	 	91	 
	 
	 	 	 	 
	ARTICLE IX EVENTS OF DEFAULT AND REMEDIES
	 	 	91	 
	9.01 Events of Default
	 	 	91	 
	9.02 Remedies Upon Event of Default
	 	 	93	 
	9.03 Application of Funds
	 	 	94	 
	 
	 	 	 	 
	ARTICLE X ADMINISTRATIVE AGENT
	 	 	95	 
	10.01 Appointment and Authority
	 	 	95	 
	10.02 Rights as a Lender
	 	 	96	 
	10.03 Exculpatory Provisions
	 	 	96	 
	10.04 Reliance by Administrative Agent
	 	 	97	 
	10.05 Delegation of Duties
	 	 	97	 
	10.06 Resignation of Administrative Agent
	 	 	97	 
	10.07 Non-Reliance on Administrative Agent and Other Lenders
	 	 	98	 
	10.08 No Other Duties; Etc.
	 	 	98	 
	10.09 Administrative Agent May File Proofs of Claim
	 	 	98	 
	10.10 Collateral and Guaranty Matters
	 	 	99	 
	 
	 	 	 	 
	ARTICLE XI MISCELLANEOUS
	 	 	100	 
	11.01 Amendments, Etc.
	 	 	100	 
	11.02 Notices; Effectiveness; Electronic Communications
	 	 	104	 
	11.03 No Waiver; Cumulative Remedies; Enforcement
	 	 	106	 
	11.04 Expenses; Indemnity; and Damage Waiver
	 	 	107	 
	11.05 Payments Set Aside
	 	 	108	 
	11.06 Successors and Assigns
	 	 	109	 
	11.07 Treatment of Certain Information; Confidentiality
	 	 	113	 
	11.08 Set-off
	 	 	113	 
	11.09 Interest Rate Limitation
	 	 	114	 
	11.10 Counterparts; Integration; Effectiveness
	 	 	114	 
	11.11 Survival of Representations and Warranties
	 	 	114	 
	11.12 Severability
	 	 	115	 
	11.13 Replacement of Lenders
	 	 	115	 
	11.14
Governing Law; Jurisdiction; Etc.
	 	 	116	 
	11.15 Waiver of Jury Trial
	 	 	116	 
	11.16 No Advisory or Fiduciary Responsibility
	 	 	117	 
	11.17 Electronic Execution of Assignments and Certain Other Documents
	 	 	117	 
	11.18 Subordination of Intercompany Indebtedness
	 	 	117	 
	11.19 USA PATRIOT Act
	 	 	119	 






iii









 






	 	 	 	 	 

	SCHEDULES
	 	 	 	 
	 
	 	 	 	 
	2.01 Commitments and Applicable Percentages
	 	 	 	 
	6.13 Subsidiaries
	 	 	 	 
	6.17 IP Rights
	 	 	 	 
	6.20-1 Locations of Real Property
	 	 	 	 
	6.20-2 Location of Chief Executive Office, Taxpayer Identification Number, Etc.
	 	 	 	 
	6.20-3 Changes in Legal Name, State of Formation and Structure
	 	 	 	 
	8.01 Liens Existing on the Closing Date
	 	 	 	 
	8.02 Investments Existing on the Closing Date
	 	 	 	 
	8.03 Indebtedness Existing on the Closing Date
	 	 	 	 
	11.02 Certain Addresses for Notices
	 	 	 	 
	 
	 	 	 	 
	EXHIBITS
	 	 	 	 
	 
	 	 	 	 
	2.02 Form of Loan Notice
	 	 	 	 
	2.04 Form of Swing Line Loan Notice
	 	 	 	 
	2.11 Form of Note
	 	 	 	 
	7.02 Form of Compliance Certificate
	 	 	 	 
	7.12 Form of Joinder Agreement
	 	 	 	 
	11.06 Form of Assignment and Assumption
	 	 	 	 






iv









 






CREDIT AGREEMENT




     This CREDIT AGREEMENT is entered into as of April 1, 2011 among ACADIA HEALTHCARE COMPANY,
LLC, a Delaware limited liability company (the “Borrower”), the Guarantors (defined
herein), the Lenders (defined herein) and BANK OF AMERICA, N.A., as Administrative Agent, Swing
Line Lender and L/C Issuer.



     The Borrower has requested that the Lenders provide $165 million in credit facilities for the
purposes set forth herein, and the Lenders are willing to do so on the terms and conditions set
forth herein.



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



ARTICLE I



DEFINITIONS AND ACCOUNTING TERMS




	1.01	 	Defined Terms.





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



     “Acadia Audited Financial Statements” means the audited consolidated balance sheet of
the Parent and its Subsidiaries for the fiscal year ended December 31, 2009, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows of the Parent
and its Subsidiaries for such fiscal year, including the notes thereto.



     “Acadia Interim Financial Statements” means the unaudited consolidated balance sheet
of the Parent and its Subsidiaries for the month ended December 31, 2010 and the related statements
of income or operations, shareholders’ equity and cash flows of the Parent and its Subsidiaries for
such month.



     “Acquisition” means, with respect to any Person, the acquisition by such Person, in a
single transaction or in a series of related transactions, of either (a) all or any substantial
portion of the property of, or a line of business, division or operating group of, another Person
or (b) at least a majority of the Equity Interests of another Person entitled to vote for members
of the board of directors or equivalent governing body of such Person, in each case whether or not
involving a merger or consolidation with such other Person.



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



     “Administrative Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 11.02 or such other address or account as the
Administrative Agent may from time to time notify the Borrower and the Lenders.



     “Administrative Questionnaire” means an Administrative Questionnaire in a form
provided by the Administrative Agent.



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



 









 





     “Aggregate Revolving Commitments” means the Revolving Commitments of all the Lenders.
The amount of the Aggregate Revolving Commitments in effect on the Closing Date is THIRTY MILLION
DOLLARS ($30,000,000).



     “Agreement” means this Credit Agreement.



     “Applicable Percentage” means with respect to any Lender at any time, (a) with respect
to such Lender’s Revolving Commitment at any time, the percentage (carried out to the ninth decimal
place) of the Aggregate Revolving Commitments represented by such Lender’s Revolving Commitment at
such time, subject to adjustment as provided in Section 2.15; provided that if the
commitment of each Lender to make Revolving Loans and the obligation of the L/C Issuer to make L/C
Credit Extensions have been terminated pursuant to Section 9.02 or if the Aggregate
Revolving Commitments have expired, then the Applicable Percentage of each Lender shall be
determined based on the Applicable Percentage of such Lender most recently in effect, giving effect
to any subsequent assignments and (b) with respect to such Lender’s portion of the outstanding Term
Loan at any time, the percentage (carried out to the ninth decimal place) of the outstanding
principal amount of the Term Loan held by such Lender at such time subject to adjustment as
provided in Section 2.15. The initial Applicable Percentage of each Lender is set forth
opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption
pursuant to which such Lender becomes a party hereto or in any documentation executed by such
Lender pursuant to clause (v) of the final proviso of Section 11.01, as applicable.



     “Applicable Rate” means the following percentages per annum, based upon the
Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate received by the
Administrative Agent pursuant to Section 7.02(b):




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Pricing	 	 	 	 	 	Eurodollar Rate	 	Base Rate	 	Commitment
	Tier	 	Consolidated Leverage Ratio	 	Loans	 	Loans	 	Fee
	1    
	 	 	< 2.75:1.0	 	 	 	3.50	%	 	 	2.50	%	 	 	0.45	%
	2    
	 	≥ 2.75:1.0 but < 3.25:1.0	 	 	3.75	%	 	 	2.75	%	 	 	0.50	%
	3    
	 	≥ 3.25:1.0 but < 3.75:1.0	 	 	4.00	%	 	 	3.00	%	 	 	0.50	%
	4    
	 	 	≥ 3.75:1.0	 	 	 	4.25	%	 	 	3.25	%	 	 	0.55	%





Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated
Leverage Ratio shall become effective as of the first Business Day immediately following the date a
Compliance Certificate is required to be delivered pursuant to Section 7.02(b);
provided, however, that if a Compliance Certificate is not delivered when due in
accordance with such Section, then, upon the request of the Required Lenders, Pricing Tier 4 shall
apply as of the first Business Day after the date on which such Compliance Certificate was required
to have been delivered and shall remain in effect until the first Business Day immediately
following the date on which such Compliance Certificate is delivered. The Applicable Rate in effect
from the Closing Date through the first Business Day immediately following the date a Compliance
Certificate is required to be delivered pursuant to Section 7.02(b) for the fiscal quarter
ending June 30, 2011 shall be determined based upon Pricing Tier 3. Notwithstanding anything to the
contrary contained in this definition, the determination of the Applicable Rate for any period
shall be subject to the provisions of Section 2.10(b).




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



     “Arranger” means Merrill Lynch, Pierce, Fenner & Smith Incorporated, in its capacity
as sole lead arranger and book manager.



2









 





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



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



     “Attributable Indebtedness” means, with respect to any Person on any date, (a) in
respect of any Capital Lease, the capitalized amount thereof that would appear on a balance sheet
of such Person prepared as of such date in accordance with GAAP, (b) in respect of any Synthetic
Lease, the capitalized amount of the remaining lease payments under the relevant lease that would
appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such
lease were accounted for as a Capital Lease, (c) in respect of any Securitization Transaction, the
outstanding principal amount of such financing, after taking into account reserve accounts and
making appropriate adjustments, determined by the Administrative Agent in its reasonable judgment
and (d) in respect of any Sale and Leaseback Transaction, the present value (discounted in
accordance with GAAP at the debt rate implied in the applicable lease) of the obligations of the
lessee for rental payments during the term of such lease).



     “Availability Period” means, with respect to the Revolving Commitments, the period
from and including the Closing Date to the earliest of (a) the Maturity Date, (b) the date of
termination of the Aggregate Revolving Commitments pursuant to Section 2.06, and (c) the
date of termination of the commitment of each Lender to make Loans and of the obligation of the L/C
Issuer to make L/C Credit Extensions pursuant to Section 9.02.



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



     “Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a)
the Federal Funds Rate plus 1/2 of 1.0%, (b) the Prime Rate and (c) the Eurodollar Rate plus 1.0%.



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



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



     “Borrower Materials” has the meaning specified in Section 7.02.



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



     “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the state
where the Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate
Loan or any Base Rate Loan bearing interest at a rate based on the Eurodollar Rate, means any such
day that is also a London Banking Day; and, if such day relates to any payment by the Borrower
required hereunder, means any such day other than a day on which commercial banks are authorized to
close under the Laws of, or are in fact closed in, the state where the principal office of the
Borrower is located.



     “Businesses” has the meaning specified in Section 6.09(a).



3









 





     “Capital Lease” means, as applied to any Person, any lease of any property by that
Person as lessee that is required to be accounted for as a capital lease on the balance sheet of
that Person.



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



     “Cash Collateral” shall have a meaning correlative to the foregoing and shall include
the proceeds of such cash collateral and other credit support.



     “Cash Equivalents” means, as at any date, (a) securities issued or directly and fully
guaranteed or insured by the United States or any agency or instrumentality thereof (provided that
the full faith and credit of the United States is pledged in support thereof) having maturities of
not more than twelve months from the date of acquisition, (b) Dollar denominated time deposits and
certificates of deposit of (i) any Lender, (ii) any domestic commercial bank of recognized standing
having capital and surplus in excess of $500 million or (iii) any bank whose short-term commercial
paper rating from S&P is at least A-1 or the equivalent thereof or from Moody’s is at least P-1 or
the equivalent thereof (any such bank being an “Approved Bank”), in each case with
maturities of not more than 270 days from the date of acquisition, (c) commercial paper and
variable or fixed rate notes issued by any Approved Bank (or by the parent company thereof) or any
variable rate notes issued by, or guaranteed by, any domestic corporation rated A-1 (or the
equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or better by Moody’s and
maturing within six months of the date of acquisition, (d) repurchase agreements entered into by
any Person with a bank or trust company (including any of the Lenders) or recognized securities
dealer having capital and surplus in excess of $500 million for direct obligations issued by or
fully guaranteed by the United States in which such Person shall have a perfected first priority
security interest (subject to no other Liens) and having, on the date of purchase thereof, a fair
market value of at least 100% of the amount of the repurchase obligations and (e) investments,
classified in accordance with GAAP as current assets, in money market investment programs
registered under the Investment Company Act of 1940 which are administered by reputable financial
institutions having capital of at least $500 million and the portfolios of which are limited to
Investments of the character described in the foregoing subdivisions (a) through (d).



     “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, (b) any change in any Law or in the
administration, interpretation, implementation or application thereof by any Governmental Authority
or (c) the making or issuance of any rule, guideline or directive (having the force of law) by any
Governmental Authority; provided that notwithstanding anything herein to the contrary, (i) the Dodd
Frank Wall Street Reform and Consumer Protection Act and all requests, guidelines and directives
thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives
promulgated by the Bank for International settlements, the Basel Committee on Banking
Supervision (or any successor or similar authority) or the United States regulatory authorities, in
each case pursuant to Basel III, shall in each case shall be deemed to be a “Change in Law”,
regardless of the date enacted, adopted or issued.



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



4









 





     (a) the Sponsor and its Controlled Investment Affiliates shall cease to own and control,
legally and beneficially, directly or indirectly, outstanding Equity Interests of the Parent
representing more than 50% of the combined voting power of all Equity Interests entitled to vote
for members of the board of directors or equivalent governing body of the Parent on a fully diluted
basis;



     (b) the Sponsor and its Controlled Investment Affiliates shall cease to have the ability to
elect (either through share ownership or contractual voting or proxy rights) a majority of the
board of directors or equivalent governing body of the Parent; or



     (c) the Parent shall cease to (i) own and control, of record and beneficially, directly 100%
of the outstanding Equity Interests of the Borrower or (ii) have the ability to elect all of the
board of directors or equivalent governing body of the Borrower.



     “Closing Date” means the date hereof.



     “Closing Date Material Adverse Effect” means any result, occurrence, fact, change,
event or effect that is or could reasonably be expected to have a materially adverse effect on (a)
the business, assets, liabilities, capitalization, condition (financial or otherwise) or results of
operations of the Relevant Entities, taken as a whole, or (b) the ability of the Relevant Entities
to consummate the transactions contemplated by the Merger Agreement or this Agreement, except to
the extent resulting from (i) changes in general local, domestic, foreign or international economic
conditions, (ii) changes affecting generally the industries or markets in which the Relevant
Entities operate, (iii) acts of war, sabotage or terrorism, military actions or the escalation
thereof, (iv) changes in applicable laws, rules, regulations, ordinances or other requirements of
Governmental Authorities or accounting rules or principles, including changes in GAAP, (v) any
action required by the Merger Agreement, or (vi) the announcement of the Merger and the
transactions contemplated by the Merger Agreement; provided, however, that no event, change or
action described in clause (i), (ii) and (iv) affects or could reasonably be expected to affect the
subject Person in a substantially disproportionate manner.



     “CMS” means the Centers for Medicare & Medicaid Services, the federal agency
responsible for administering Medicare, Medicaid, SCHIP (State Children’s Health Insurance) and
other federal health-related programs.



     “Collateral” means a collective reference to all property (other than Excluded
Property) with respect to which Liens in favor of the Administrative Agent, for the benefit of
itself and the other holders of the Obligations, are purported to be granted pursuant to and in
accordance with the terms of the Collateral Documents.



     “Collateral Documents” means a collective reference to the Security Agreement, the
Mortgages and other security documents as may be executed and delivered by any Loan Party pursuant
to the terms of Section 7.13.



     “Commitment” means, as to each Lender, the Revolving Commitment of such Lender and/or
the Term Loan Commitment of such Lender.



     “Commitment Fee” has the meaning specified in Section 2.09(a).



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



     “Consolidated Capital Expenditures” means, for any period, for the Parent and its
Subsidiaries on a consolidated basis, all capital expenditures excluding (a) Permitted Acquistions,
(b) capital expenditures



5









 




made with the Net Cash Proceeds of any Disposition or Recovery Event to the extent such capital
expenditure is made within the reinvestment period provided in Section 2.05(b)(ii) and (c)
capital expenditures made with the Net Cash Proceeds of any Equity Issuance to the extent such
capital expenditure is made within 180 days of receipt by the Parent or any Subsidiary of such Net
Cash Proceeds.




     “Consolidated Cash Flow” means, for any period, for the Parent and its Subsidiaries on
a consolidated basis, an amount equal to the sum of (a) Consolidated EBITDA for such period minus
(b) Consolidated Maintenance Capital Expenditures for such period minus (c) income taxes paid in
cash during such period minus (d) Tax Distributions for such period.



     “Consolidated EBITDA” means, for any period, for the Parent and its Subsidiaries on a
consolidated basis, an amount equal to the sum of (a) Consolidated Net Income for such period;
plus (b) the following, without duplication, to the extent deducted in calculating such
Consolidated Net Income: (i) Consolidated Interest Charges for such period; (ii) the provision for
federal, state, local and foreign income, franchise, value added, sales or other taxes payable for
such period; (iii) the amount of depreciation and amortization expense for such period; (iv)
non-cash charges, losses and expenses relating to the impairment of goodwill for such period to the
extent incurred prior to the Closing Date; (v) non-cash charges, losses and expenses relating to
the impairment of goodwill for such period incurred after the Closing Date in an aggregate amount
not to exceed $30 million during the term of this Agreement; (vi) unrealized losses (which are
non-cash) on financial derivatives recognized in accordance with Financial Accounting Standard 133
(including embedded derivatives); (vii) non-cash compensation expense and other non-cash expenses
or charges arising from the granting of stock options, stock appreciation rights or similar
arrangements; (viii) any non-cash purchase accounting adjustments (including deferred revenue write
down) and any adjustments as required or permitted by the application of FASB 141 (requiring the
use of purchase method of accounting for acquisitions and consolidations), FASB 142 (relating to
changes in accounting for the amortization of good will and certain other intangibles) and FASB 144
(relating to the write downs of long-lived assets); (ix) any non-cash negative revenue adjustments;
(x) any financial advisory fees, accounting fees, legal fees and other similar advisory and
consulting fees and related out-of-pocket expenses incurred as a result of the Transaction
(including the write-off of previous debt and equity issuance costs) in aggregate amount not to
exceed $8,797,834 provided that such fees and expenses are incurred within 120 days after the
Closing Date; (xi) any amounts paid pursuant to net working capital adjustment, earn-out or other
deferred purchase payment pursuant to the Merger Agreement or a Permitted Acquisition; (xii) any
expense to the extent that a corresponding amount is received during such period in cash by the
Parent or any Subsidiary under any agreement providing for indemnification or reimbursement of such
expense; (xiii) any expenses with respect to liability or casualty events or business interruption
to the extent reimbursed or advanced to the Parent or any Subsidiary during such period by third
party insurance; (xiv) Management Fees in an aggregate amount not to exceed $2 million; (xv)
expenses and loss incurred during the period from January 1, 2011 through December 31, 2012 with
respect to the Loan Parties’ facility in Tampa Bay, Florida in an aggregate amount not to exceed
$1.25 million during such two year period; (xvi) costs and expenses relating to closing YFCS
offices and severance incurred within the first 18 months following the Closing Date in an
aggregate amount not to exceed $400,000 during such 18 month period; and (xvii) unrealized losses
(which are non-cash) resulting from foreign exchange translations; minus (c) the following, without
duplication, to the extent included in calculating such Consolidated Net Income: (i) unrealized
gains (which are non-cash) on financial derivatives recognized in accordance with Financial
Accounting Standard 133 (including embedded derivatives); and (ii) unrealized gains (which are
non-cash) resulting from foreign exchange translations.
Notwithstanding the foregoing, Consolidated EBITDA shall be deemed to be the following amounts
for the following fiscal quarters (in each case subject to Section 1.03(c) for any
Acquisition (other than the Merger), Disposition or Recovery Event



6









 




occurring after the Closing Date): (1) fiscal quarter ending June 30, 2010, $11,666,000; (2) fiscal
quarter ending September 30, 2010, $9,311,000; and (3) fiscal quarter ending December 31, 2010,
$10,296,000.




     “Consolidated Excess Cash Flow” means, for any period for the Parent and its
Subsidiaries on a consolidated basis, an amount equal to the sum of (a) Consolidated Net Income for
such period plus (b) the following, without duplication, to the extent deducted in
calculating such Consolidated Net Income: (i) Consolidated Interest Charges for such period; (ii)
the provision for federal, state, local and foreign income, franchise, value added, sales or other
taxes payable for such period; (iii) the amount of depreciation and amortization expense for such
period; minus (c) the Consolidated Capital Expenditures for such period (other than
Consolidated Capital Expenditures financed with Indebtedness (other than Loans)) minus (d)
the cash portion of Consolidated Interest Charges for such period minus (e) cash taxes and
Tax Distributions paid during such period minus (e) Consolidated Scheduled Funded Debt
Payments for such period minus (f) if (and only if) the Consolidated Leverage as of the end
of such period is less than 3.0:1.0, the amount of cash consideration (other than cash
consideration funded with the cash proceeds of an Equity Issuance or Debt Issuance) paid for any
Permitted Acquisition during such period.



     “Consolidated Fixed Charge Coverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated Cash Flow for the period of the four fiscal quarters most recently ended
to (b) Consolidated Fixed Charges for the period of the four fiscal quarters most recently ended;
provided that for purposes of calculating the Consolidated Fixed Charge Coverage Ratio:




     (i) as of the end of the fiscal quarter ending June 30, 2011, Consolidated Fixed
Charges and Consolidated Cash Flow (other than Consolidated EBITDA) shall be the actual
amount of Consolidated Fixed Charges and the actual amount of Consolidated Cash Flow (other
than Consolidated EBITDA) for the period of one fiscal quarter then ended multiplied by four
(4);




     (ii) as of the end of the fiscal quarter ending September 30, 2011, Consolidated Fixed
Charges and Consolidated Cash Flow (other than Consolidated EBITDA) shall be the actual
amount of Consolidated Fixed Charges and the actual amount of Consolidated Cash Flow (other
than Consolidated EBITDA) for the period of two fiscal quarters then ended multiplied by two
(2); and




     (iii) as of the end of the fiscal quarter ending December 31, 2011, Consolidated Fixed
Charges and Consolidated Cash Flow (other than Consolidated EBITDA) shall be the actual
amount of Consolidated Fixed Charges and the actual amount of Consolidated Cash Flow (other
than Consolidated EBITDA) for the period of three fiscal quarters then ended multiplied by
one and one-third (1 1/3).



     “Consolidated Fixed Charges” means, for any period, for the Parent and its
Subsidiaries on a consolidated basis, an amount equal to the sum of (a) the cash portion of
Consolidated Interest Charges for such period plus (b) Consolidated Scheduled Funded Debt Payments
for such period plus (c) Restricted Payments paid in cash (other than Tax Distributions) for such
period.



     “Consolidated Funded Indebtedness” means Funded Indebtedness of the Parent and its
Subsidiaries on a consolidated basis.



     “Consolidated Interest Charges” means, for any period, for the Parent and its
Subsidiaries on a consolidated basis, an amount equal to the sum of (a) all interest, premium
payments, debt discount, fees, charges and related expenses in connection with borrowed money
(including capitalized interest) or in connection with the deferred purchase price of assets, in
each case to the extent treated as interest in



7









 




accordance with GAAP, plus (b) the portion of rent expense with respect to such period
under Capital Leases that is treated as interest in accordance with GAAP plus (c) the
implied interest component of Synthetic Leases with respect to such period.




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



     “Consolidated Maintenance Capital Expenditures” means, for any period, an amount equal
to two percent (2.0%) of total revenues of the Parent and its Subsidiaries on a consolidated basis
for such period.



     “Consolidated Net Income” means, for any period, for the Parent and its Subsidiaries
on a consolidated basis, net income (including extraordinary losses but excluding extraordinary
gains) for such period.



     “Consolidated Scheduled Funded Debt Payments” means for any period for the Parent and
its Subsidiaries on a consolidated basis, the sum of all scheduled payments of principal on
Consolidated Funded Indebtedness. For purposes of this definition, “scheduled payments of
principal” (a) shall be determined without giving effect to any reduction of such scheduled
payments resulting from the application of any voluntary or mandatory prepayments made during the
applicable period, (b) shall be deemed to include the Attributable Indebtedness and (c) shall not
include any voluntary or mandatory prepayments.



     “Contract Provider” means, any Person or any employee, agent or subcontractor of such
Person who provides professional health care services under or pursuant to any contract or other
arrangement with the Parent or any Subsidiary.



     “Contractual Obligation” means, as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or other undertaking to which such Person is a party
or by which it or any of its property is bound.



     “Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management of a Person, whether through the ability to exercise voting
power, by contract or otherwise. “Controlling” and “Controlled” have meanings
correlative thereto. Without limiting the generality of the foregoing, a Person shall be deemed to
be Controlled by another Person if such other Person possesses, directly or indirectly, power to
vote 5% or more of the securities having ordinary voting power for the election of directors,
managing general partners or the equivalent.



     “Controlled Investment Affiliate” means, with respect to the Sponsor, any other Person
that is (a) controlled by, or under common control with, the Sponsor and (b) engaged solely in the
business of making equity or debt investments in the ordinary course of business. For purposes of
this definition “control” means the power to direct or cause the direction of management of a
Person, whether by contract or otherwise.



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



     “Debt Issuance” means the issuance by the Parent or any Subsidiary of any Indebtedness
other than Permitted Indebtedness.



8









 





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



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



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



     “Defaulting Lender” means, subject to Section 2.15(b), any Lender that, as
determined by the Administrative Agent, (a) has failed to perform any of its funding obligations
hereunder, including in respect of its Loans or participations in respect of Letters of Credit or
Swing Line Loans, within three Business Days of the date required to be funded by it hereunder, (b)
has notified the Borrower or the Administrative Agent that it does not intend to comply with its
funding obligations or has made a public statement to that effect with respect to its funding
obligations hereunder or under other agreements in which it commits to extend credit, (c) has
failed, within three Business Days after request by the Administrative Agent, to confirm in a
manner satisfactory to the Administrative Agent that it will comply with its funding obligations,
or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a
proceeding under any Debtor Relief Law, (ii) had a receiver, conservator, trustee, administrator,
assignee for the benefit of creditors or similar Person charged with reorganization or liquidation
of its business or a custodian appointed for it, or (iii) taken any action in furtherance of, or
indicated its consent to, approval of or acquiescence in any such proceeding or appointment;
provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or
acquisition of any equity interest in that Lender or any direct or indirect parent company thereof
by a Governmental Authority.



     “Disposition” or “Dispose” means the sale, transfer, license, lease or other
disposition of any property by the Parent or any Subsidiary, including any Sale and Leaseback
Transaction and any sale, assignment, transfer or other disposal, with or without recourse, of any
notes or accounts receivable or any rights and claims associated therewith, but excluding (a) the
disposition of inventory in the ordinary course of business; (b) the disposition of machinery and
equipment no longer used or useful in the conduct of business of the Parent and its Subsidiaries in
the ordinary course of business; (c) the disposition of property to the Parent or any Subsidiary;
provided, that if the transferor of such property is a Loan Party then the transferee
thereof must be a Loan Party; (d) the disposition of accounts receivable in connection with the
collection or compromise thereof; (e) licenses, sublicenses, leases or subleases granted to others
not interfering in any material respect with the business of the Parent and its Subsidiaries; (f)
the sale or disposition of Cash Equivalents for fair market value; (g) any Recovery Event; and (h)
the surrender of leases, subleases, licenses and sublicenses upon expiration or otherwise in the
ordinary course of business.



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



     “Domestic Subsidiary” means any Subsidiary that (a) is organized under the laws of any
state of the United States or the District of Columbia and (b) is not owned by a Subsidiary that is
not organized under the laws of any state of the United States or the District of Columbia.



9









 





     “Eligible Assignee” means any Person that meets the requirements to be an assignee
under Sections 11.06(b) (subject to such consents, if any, as may be required under Section
11.06(b)(iii)).



     “Environmental Laws” means any and all federal, state, local, foreign and other
applicable statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits,
concessions, grants, franchises, licenses, agreements or governmental restrictions relating to
pollution and the protection of the environment or the release of any materials into the
environment, including those related to hazardous substances or wastes, air emissions and
discharges to waste or public systems.



     “Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Parent or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or (e) any contract, agreement
or other consensual arrangement pursuant to which liability is assumed or imposed with respect to
any of the foregoing.



     “Equity Contribution” has the meaning specified in Section 5.01.



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



     “Equity Issuance” means any issuance by the Parent or any Subsidiary of its Equity
Interests to any Person, other than (a) any issuance of its Equity Interests pursuant to the
exercise of options or warrants, (b) any issuance of its Equity Interests pursuant to the
conversion of any debt securities to equity or the conversion of any class of equity securities to
any other class of equity securities, (c) any issuance of options or warrants relating to its
Equity Interests, (d) any issuance of its Equity Interests as consideration for a Permitted
Acquisition and (e) any issuance of Equity Interests from a Subsidiary to the Parent or another
Subsidiary. The term “Equity Issuance” shall not be deemed to include any Disposition.



     “Equity Repurchase” means the repurchase of Equity Interests from directors, officers
and employees pursuant to the Redemption Agreement dated as of April 1, 2011 among Parent and the
individuals identified as “Executives” therein.




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





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



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the
withdrawal of a Loan Party or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which such entity was a substantial employer (as defined in Section
4001(a)(2) of ERISA) or



10









 




a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c)
a complete or partial withdrawal by a Loan Party or any ERISA Affiliate from a Multiemployer Plan
or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of
intent to terminate, the treatment of a Pension Plan amendment as a termination under Section 4041
or 4041A of ERISA, or the institution by the PBGC of proceedings to terminate a Pension Plan; (e)
the determination that any Pension Plan is considered an at-risk plan under Section 430 of the
Internal Revenue Code or Section 303 of ERISA or a Multiemployer Plan is in endangered or critical
status within the meaning of Sections 430, 431 and 432 of the Internal Revenue Code or Section 305
of ERISA; or (f) the imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon any Loan Party or any ERISA
Affiliate.




     “Eurodollar Base Rate” means:




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




     (b) for any interest calculation with respect to a Base Rate Loan on any date, the rate
per annum equal to (i) BBA LIBOR, at approximately 11:00 a.m., London time determined two
London Banking Days prior to such date for Dollar deposits being delivered in the London
interbank market for a term of one month commencing that day or (ii) if such published rate
is not available at such time for any reason, the rate per annum determined by the
Administrative Agent to be the rate at which deposits in Dollars for delivery on the date of
determination in same day funds in the approximate amount of the Base Rate Loan being made
or maintained and with a term equal to one month would be offered by Bank of America’s
London Branch to major banks in the London interbank Eurodollar market at their request at
the date and time of determination.



     “Eurodollar Rate” means (a) for any Interest Period with respect to any Eurodollar
Rate Loan, a rate per annum determined by the Administrative Agent to be equal to the quotient
obtained by dividing (i) the Eurodollar Base Rate for such Eurodollar Rate Loan for such Interest
Period by (ii) one minus the Eurodollar Reserve Percentage for such Eurodollar Rate Loan for such
Interest Period and (b) for any day with respect to any Base Rate Loan bearing interest at a rate
based on the Eurodollar Rate, a rate per annum determined by the Administrative Agent to be equal
to the quotient obtained by dividing (i) the Eurodollar Base Rate for such Base Rate Loan for such
day by (ii) one minus the Eurodollar Reserve Percentage for such Base Rate Loan for such day.



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



     “Eurodollar Reserve Percentage” means, for any day, the reserve percentage (expressed
as a decimal, carried out to five decimal places) in effect on such day, whether or not applicable
to any



11









 




Lender, under regulations issued from time to time by the FRB for determining the maximum reserve
requirement (including any emergency, supplemental or other marginal reserve requirement) with
respect to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”). The
Eurodollar Rate for each outstanding Eurodollar Rate Loan and for each outstanding Base Rate Loan
bearing interest at a rate based on the Eurodollar Rate shall be adjusted automatically as of the
effective date of any change in the Eurodollar Reserve Percentage.




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



     “Excluded Account” means any deposit account or securities account that (a) has a
balance of less than $250,000, (b) contains solely funds for accrued payroll, taxes or employee
benefits, (c) contains solely funds held in trust for third parties or (d) is a Government
Receivables Account.



     “Excluded Equity Issuance” means any Equity Issuance by the Parent (a) to the Sponsor,
its Controlled Investment Affiliates and any other Person that owns Equity Interests in the Parent
on the Closing Date; (b) to any director, officer, member of management or employee of the Parent
or any Subsidiary pursuant to any employment agreement, compensation, bonus plan or employee stock
option plan of the Parent or any Subsidiary; (c) the Net Cash Proceeds of which are used by the
Parent or any Subsidiary to finance Permitted Acquisitions or capital expenditures so long as such
Net Cash Proceeds are expended to finance such Permitted Acquisition or capital expenditure within
180 days of the receipt of such Net Cash Proceeds by the Parent or any Subsidiary; and (d) pursuant
to preemptive rights arising from each of the foregoing issuances.



     “Excluded Property” means, with respect to any Loan Party, (a) any owned real property
which has a fair market value of less than $500,000, (b) any leased real property, (c) any Excluded
Account, (d) any vehicles or rolling stock, (e) any IP Rights for which a perfected Lien thereon is
not effected either by filing of a Uniform Commercial Code financing statement or by appropriate
evidence of such Lien being filed in either the United States Copyright Office or the United States
Patent and Trademark Office, (f) any personal property (other than personal property described in
clause (e) above) for which the attachment or perfection of a Lien thereon is not governed by the
Uniform Commercial Code, unless requested by the Administrative Agent or the Required Lenders, (g)
the Equity Interests of any Foreign Subsidiary to the extent not required to be pledged to secure
the Obligations pursuant to Section 7.14(a), (h) any property which, subject to the terms
of Section 8.09, is subject to a Lien of the type
described in Section 8.01(i) pursuant to
documents which prohibit such Loan Party from granting any other Liens in such property, (i) any
rights or interest in any lease, license, contract or other agreement of any Loan Party if the
grant of a security interest in such lease, license, contract or other agreement in the manner
contemplated by the Loan Documents is prohibited under the terms of such lease, license, contract
or other agreement or under applicable Law or would result in default thereunder, the termination
thereof or give the other parties thereto the right to terminate, accelerate or otherwise alter
such Loan Party’s rights, titles and interests thereunder (including upon the giving of notice or
the lapse of time or both), in each case except to the extent that (x) such prohibition could not
be rendered ineffective pursuant to the applicable Uniform Commercial Code or any other applicable
Law (including Debtor Relief Laws) or principles of equity and (y) such prohibition has not been
waived, terminated or eliminated (after such Loan Party has used commercially reasonable efforts to
obtain such consent upon the request of the Administrative Agent) and (j) any other property that
the Administrative Agent determines, in its sole discretion, that the expense of attaching and/or
perfecting a Lien therein under applicable Law is excessive in relation to the value of such
property.



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the L/C
Issuer or any other recipient of any payment to be made by or on account of any obligation of the
Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and



12









 




franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political
subdivision thereof) under the Laws of which such recipient is organized or in which its principal
office is located or, in the case of any Lender, in which its applicable Lending Office is located,
(b) any branch profits taxes imposed by the United States or any similar tax imposed by any other
jurisdiction in which the Borrower is located, (c) any backup withholding tax that is required by
the Internal Revenue Code to be withheld from amounts payable to a Lender that has failed to comply
with clause (A) of Section 3.01(e)(ii), (d) in the case of a Foreign Lender (other than an
assignee pursuant to a request by the Borrower under Section 11.13), any United States
withholding tax that (i) is required to be imposed on amounts payable to such Foreign Lender
pursuant to the Laws in force at the time such Foreign Lender becomes a party hereto (or designates
a new Lending Office) or (ii) is attributable to such Foreign Lender’s failure or inability (other
than as a result of a Change in Law) to comply with clause (B) of Section 3.01(e)(ii),
except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time
of designation of a new Lending Office (or assignment), to receive additional amounts from the
Borrower with respect to such withholding tax pursuant to Section 3.01(a)(ii) or (c), and
(e) any Taxes imposed on any “withholdable payment” payable to such recipient as a result of the
failure of such recipient to satisfy the applicable requirements as set forth in FATCA after
December 31, 2012.




     “Exclusion Event” means an event or related events resulting in the exclusion of the Parent
or any Subsidiary from participation in any Medical Reimbursement Programs.



     “Existing Indebtedness” has the meaning specified in Section 5.01.



     “Extraordinary Receipts” means any Net Cash Proceeds received by or paid to or for the
account of the Parent or any Subsidiary not in the ordinary course of business, including tax
refunds, pension plan reversions and indemnity payments (but excluding any purchase price
adjustment, working capital adjustment or indemnity payment, in each case relating to the Merger or
any Permitted Acquisition).



     “Facilities” has the meaning specified in Section 6.09(a).



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



     “FATCA” means Sections 1471 through 1474 of the Code and any regulations promulgated
thereunder or official interpretations thereof.



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



     “Fee Letter” means the letter agreement dated February 17, 2011 among the Borrower,
the Administrative Agent and the Arranger.



     “Foreign Lender” means any Lender that is organized under the Laws of a jurisdiction
other than that in which the Borrower is resident for tax purposes (including such a Lender when
acting in the



13









 




capacity of the L/C Issuer). For purposes of this definition, the United States, each State thereof
and the District of Columbia shall be deemed to constitute a single jurisdiction.




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



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



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



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



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




     (a) all obligations, whether current or long-term, for borrowed money (including the
Obligations (other than obligations under Swap Contracts)) and all obligations evidenced by
bonds, debentures, notes, loan agreements or other similar instruments;




     (b) all purchase money indebtedness;




     (c) the principal portion of all obligations under conditional sale or other title
retention agreements relating to property purchased by such Person (other than customary
reservations or retentions of title under agreements with suppliers entered into in the
ordinary course of business);




     (d) the maximum amount available to be drawn under letters of credit (including standby
and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar
instruments;




     (e) all obligations in respect of the deferred purchase price of property or services
(other than trade accounts payable in the ordinary course of business and, in each case, not
past due for more than 60 days after the date on which such trade account payable was
created);




     (f) the Attributable Indebtedness of Capital Leases, Sale and Leaseback Transactions,
Synthetic Leases and Securitization Transactions;




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




     (h) all Funded Indebtedness of others secured by (or for which the holder of such
Funded Indebtedness has an existing right, contingent or otherwise, to be secured by) any
Lien



14









 






on, or payable out of the proceeds of production from, property owned or acquired by such
Person, whether or not the obligations secured thereby have been assumed;




     (i) all Guarantees with respect to Funded Indebtedness of the types specified in
clauses (a) through (h) above of another Person; and




     (j) all Funded Indebtedness of the types referred to in clauses (a) through (i) above
of any partnership or joint venture (other than a joint venture that is itself a corporation
or limited liability company) in which such Person is a general partner or joint venturer,
except to the extent that Funded Indebtedness is expressly made non-recourse to such Person.



     “GAAP” means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board, or such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the circumstances as of the date
of determination, consistently applied.



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



     “Government Receivable” means any Receivable that, consistent with the past accounting
practices of the Parent and its Subsidiaries, is initially classified as a Medicare Receivable,
Medicaid Receivable or other government Receivable.



     “Government Receivables Account” means an account established by a Loan Party and used
solely for receipt of Government Receivables.



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



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



15









 




reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in
good faith. The term “Guarantee” as a verb has a corresponding meaning.




     “Guarantors” means, collectively, (a) the Parent, (b) each Domestic Subsidiary
identified as a “Guarantor” on the signature pages hereto, (c) each Person that joins as a
Guarantor pursuant to Section 7.12 or otherwise, (d) with respect to obligations under any
Swap Contract between the Parent or any Subsidiary and any Secured Swap Provider that is permitted
to be incurred pursuant to Section 8.03(d) and obligations under any Treasury Management
Agreement between the Parent or any Subsidiary and any Lender or Affiliate of a Lender, the
Borrower, and (e) the successors and permitted assigns of the foregoing.



     “Guaranty” means the Guaranty made by the Guarantors in favor of the Administrative
Agent and the Lenders pursuant to Article IV.



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



     “HIPAA” means the Health Insurance Portability and Accountability Act of 1996 and the
related regulations promulgated thereunder from time to time, including 45 CFR Parts 160, 162 and
164.



     “HITECH Act” means the Health Information Technology for Economic and Clinical Health
Act, which is part of the American Recovery and Reinvestment Act of 2009, and the related
regulations promulgated from time to time thereunder.



     “Honor Date” has the meaning set forth in Section 2.03(c).



     “Incremental Term Facility” has the meaning specified in Section 11.01.



     “Incremental Term Facility Commitment” means a commitment to an Incremental Term
Facility.



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




     (a) all Funded Indebtedness;




     (b) the Swap Termination Value of any Swap Contract;




     (c) all Guarantees with respect to outstanding Indebtedness of the types specified in
clauses (a) and (b) above of any other Person; and




     (d) all Indebtedness of the types referred to in clauses (a) through (c) above of any
partnership or joint venture (other than a joint venture that is itself a corporation or
limited liability company) in which such Person is a general partner or joint venturer,
unless such Indebtedness is expressly made non-recourse to such Person.



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



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



16









 





     “Information” has the meaning specified in Section 11.07.



     “Intercompany Indebtedness” means Indebtedness owing by a Loan Party to another Loan
Party.



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



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




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




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




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



     “Internal Revenue Code” means the Internal Revenue Code of 1986.



     “Investment” means, as to any Person, any direct or indirect acquisition or investment
by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests of
another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of,
or purchase or other acquisition of any other debt or equity participation or interest in, another
Person, or (c) an Acquisition. For purposes of covenant compliance, the amount of any Investment
shall be the amount actually invested, without adjustment for subsequent increases or decreases in
the value of such Investment.



     “IP Rights” has the meaning specified in Section 6.17.



     “IRS” means the United States Internal Revenue Service.



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



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



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



17









 





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



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



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



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



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



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



     “Lenders” means each of the Persons identified as a “Lender” on the signature pages
hereto, each other Person that becomes a “Lender” in accordance with this Agreement and their
successors and assigns and, as the context requires, includes the Swing Line Lender.



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



     “Letter of Credit” means any standby letter of credit issued hereunder.



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



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



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



     “Letter of Credit Sublimit” means an amount equal to the lesser of (a) the Aggregate
Revolving Commitments and (b) $5,000,000. The Letter of Credit Sublimit is part of, and not in
addition to, the Aggregate Revolving Commitments.



18









 





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



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



     “Loan Documents” means this Agreement, each Note, each Issuer Document, each Joinder
Agreement, the Collateral Documents, any agreement creating or perfecting rights in Cash Collateral
pursuant to the provisions of Section 2.14 of this Agreement and the Fee Letter.



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



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



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



     “Management Agreement” means that certain Professional Services Agreement made and
entered into as of the Closing Date by and between Sponsor and Parent.



     “Management Expenses” means amounts paid by the Parent to the Sponsor to reimburse the
Sponsor for out-of-pocket expenses pursuant to the Section 5 of the Management Agreement.



     “Management Fees” means the fees payable by the Parent to the Sponsor pursuant to
Section 4 of the Management Agreement.



     “Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties, liabilities (actual or contingent),
condition (financial or otherwise) or prospects of the Parent and its Subsidiaries taken as a
whole; (b) a material impairment of the rights and remedies of the Administrative Agent or any
Lender under any Loan Document to which it is a party; (c) a material impairment of the ability of
any Loan Party to perform its obligations under any Loan Document to which it is a party; or (d) a
material adverse effect upon the legality, validity, binding effect or enforceability against any
Loan Party of any Loan Document to which it is a party; provided, that for the purposes of
Sections 5.01 and 5.02 or any other provision of any Loan Document on the Closing
Date, Material Adverse Effect shall mean the “Closing Date Material Adverse Effect”.



     “Material Indebtedness” means any Indebtedness (other than Indebtedness arising under
the Loan Documents and Indebtedness arising under Swap Contracts) having an aggregate principal
amount (including undrawn committed or available amounts and including amounts owing to all
creditors under any combined or syndicated credit arrangement) of more than the Threshold Amount.



     “Maturity
Date” means April 1, 2016; provided, however, that if such
date is not a Business Day, the Maturity Date shall be the next preceding Business Day.



19









 





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



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



     “Medicaid Receivable” means any Receivable with respect to which the obligor is a
state or, to the extent provided by Law, the United States acting through a state’s Medicaid agency
that arises out of charges reimbursable to the Parent or any Subsidiary under Medicaid.



     “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 Title XIX of the Social Security Act; (b) all applicable provisions of all
publically available federal rules, regulations, manuals and orders of all Governmental Authorities
promulgated pursuant to or in connection with the statutes described in clause (a) above
and all publically available 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 publically available 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 publically available 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.



     “Medical Reimbursement Programs” means a collective reference to the Medicare,
Medicaid and TRICARE programs and any other health care program operated by or financed in whole or
in part by any foreign or domestic federal, state or local government.



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



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



     “Medicare Receivable” means any Receivable with respect to which the obligor is the
United States that arises out of charges reimbursable to the Parent or any Subsidiary under
Medicare.



     “Medicare Regulations” means, collectively, all federal statutes (whether set forth in
Title XVIII of the Social Security Act or elsewhere) affecting the health insurance program for the
aged and disabled established by Title XVIII of the Social Security Act and any successor statutes
thereto;
together with all applicable provisions of all publically available rules, regulations,
manuals and orders promulgated thereunder and all publically available administrative,
reimbursement and other guidelines having the force of law of all Governmental Authorities
(including CMS, the OIG, the United States Department of Health and Human Services, or any person
succeeding to the functions of any of the foregoing) promulgated pursuant to or in connection with
any of the foregoing having the force of law.



20









 





     “Merger” means the merger of YFCS into Acadia — YFCS Acquisition Company, Inc., a
Delaware corporation and a Wholly Owned Subsidiary of the Borrower, pursuant to the Merger
Agreement. Immediately after the consummation of such merger, YFCS will be a Wholly Owned
Subsidiary of the Borrower.



     “Merger Agreement” means the Agreement and Plan of Merger dated as of February 17,
2011 by and among the Borrower, Acadia — YFCS Acquisition Company, Inc., YFCS, the principal
stockholders named therein and TA Associates, Inc., as the stockholders representative.



     “Merger Documents” means the Merger Agreement (including the disclosure schedules
thereto) and all other documents associated with the Merger.



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



     “Mortgaged Property” means any real property that is owned or leased by a Loan Party
and is subject to a Mortgage.



     “Mortgages” means the mortgages, deeds of trust or deeds to secure debt that purport
to grant to the Administrative Agent, for the benefit of the holders of the Obligations, a security
interest in the fee interests and/or leasehold interests of any Loan Party in any real property.



     “Multiemployer Plan” means any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which any Loan Party makes or is obligated to make contributions, or has
any liability (including on account of any ERISA Affiliate).



     “Net Cash Proceeds” means the aggregate cash or Cash Equivalents proceeds received by
the Parent or any Subsidiary in respect of any Extraordinary Receipts, Disposition, Recovery Event,
Debt Issuance or Equity Issuance net of (a) direct costs incurred in connection therewith
(including legal, accounting and investment banking fees, and sales commissions), (b) taxes paid or
payable as a result thereof and (c) in the case of any Disposition or any Recovery Event, the
amount necessary to retire any Indebtedness secured by a Permitted Lien (ranking senior to any Lien
of the Administrative Agent) on the related property; it being understood that “Net Cash Proceeds”
shall include any cash or Cash Equivalents received upon the sale or other disposition of any
non-cash consideration received by the Parent or any Subsidiary in any Extraordinary Receipts,
Disposition, Recovery Event, Debt Issuance or Equity Issuance.



     “Note” has the meaning specified in Section 2.11(a).



     “Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, any Loan Party arising under any Loan Document with respect to any Loan or Letter of
Credit, whether direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising and including interest and fees
that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any
proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding,
regardless of whether such interest and fees are allowed claims in such proceeding. The foregoing
shall also include (a) all obligations under any Swap Contract between the Parent or any Subsidiary
and any Secured Swap Provider that is permitted to be incurred pursuant to Section 8.03(d)
and (b) all obligations under any Treasury Management Agreement between the Parent or any
Subsidiary and any Lender or Affiliate of a Lender.



21









 





     “OIG” means the Office of Inspector General of the United States Department of Health
and Human Services or any other regulatory body which succeeds to the functions thereof.



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



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



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



     “Parent” means Acadia Healthcare Holdings, LLC, a Delaware limited liability
company.



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



     “Patient” means, on any date, any natural person for whom any health care items or services
have been provided or performed prior to such date by the Parent or any Subsidiary (other than any
such person with respect to whom the applicable obligor on the Receivable originated in connection
therewith would not reasonably be expected to approve payment thereunder).



     “Payor” means any third party liable for payment for health care items or services
provided or performed by the Parent or any Subsidiary, including all Medical Reimbursement
Programs, private insurance companies, Blue Cross/Blue Shield, health maintenance organizations,
preferred provider organizations, managed care systems and alternative delivery systems.



     “PBGC” means the Pension Benefit Guaranty Corporation.



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



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



22









 





     “Pension Plan” means any employee pension benefit plan (excluding a Multiemployer
Plan) that is maintained or is contributed to by any Loan Party or with respect to which a Loan
Party has any liability (including on account of any ERISA Affiliate) and is either covered by
Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Internal
Revenue Code.



     “Permitted Acquisition” means an Investment consisting of an Acquisition by the Parent
or any Subsidiary, provided that (a) no Default shall have occurred and be continuing or
would result from such Acquisition, (b) the property acquired (or the property of the Person
acquired) in such Acquisition is used or useful in a line of business that the Parent and its
Subsidiaries are permitted to engage in pursuant to Section 8.07, (c) in the case of an
Acquisition of the Equity Interests of another Person, the board of directors (or other comparable
governing body) of such other Person shall have duly approved such Acquisition, (d) the Borrower
shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating
that after giving effect to such Acquistion on a Pro Forma Basis (i) the Loan Parties would be in
compliance with the financial covenants set forth in
Section 8.11 recomputed as of the end of the
period of the four fiscal quarters most recently ended for which the Parent has delivered financial
statements pursuant to Section 7.01(a) or (b) and (ii) the Consolidated Leverage
Ratio recomputed as of the end of the period of the four fiscal quarters most recently ended for
which the Parent has delivered financial statements pursuant to
Section 7.01(a) or (b)
would be 0.25 less than the maximum Consolidated Leverage Ratio permitted under Section 8.11(a) as
of the end of the period of the four fiscal quarters most recently ended for which the Parent has
delivered financial statements pursuant to Section 7.01(a) or (b), (e) the
representations and warranties made by the Loan Parties in each Loan Document shall be true and
correct in all material respects at and as if made as of the date of such Acquisition (after giving
effect thereto), (f) if such transaction involves the purchase of an interest in a partnership
between any Loan Party as a general partner and entities unaffiliated with the Parent as the other
partners, such transaction shall be effected by having such equity interest acquired by a corporate
holding company directly or indirectly wholly-owned by such Loan Party newly formed for the sole
purpose of effecting such transaction, (g) immediately after giving effect to such Acquisition,
there shall be an aggregate of at least $5 million consisting of any combination of availability
existing under the Aggregate Revolving Commitments and Qualified Cash and (h) the aggregate amount
of Indebtedness incurred to finance all such Acquisitions and Indebtedness assumed in all such
Acquisitions occurring during any fiscal year shall not exceed $25 million.



     “Permitted Liens” means, at any time, Liens in respect of property of the Parent or
any Subsidiary permitted to exist at such time pursuant to the terms of Section 8.01.



     “Permitted Indebtedness” means, at any time, Indebtedness permitted under
Section 8.03.



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



     “Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA
(including a Pension Plan), maintained for employees of any Loan Party or any such Plan to which
any Loan Party is required to contribute on behalf of any of its employees.



     “Platform” has the meaning specified in Section 7.02.



     “Prime Rate” means the rate of interest in effect for such day as publicly announced
from time to time by Bank of America as its “prime rate.” The “prime rate” is a rate set by Bank of
America based upon various factors including Bank of America’s costs and desired return, general
economic conditions and other factors, and is used as a reference point for pricing some loans,
which may be priced at, above,



23









 




or below such announced rate. Any change in the “prime rate” announced by Bank of America shall
take effect at the opening of business on the day specified in the public announcement of such
change.




     “Pro Forma Basis” means, with respect to any transaction, that for purposes of
calculating the financial covenants set forth in Section 8.11, such transaction shall be
deemed to have occurred as of the first day of the most recent four fiscal quarter period preceding
the date of such transaction for which the Parent was required to deliver financial statements
pursuant to Section 7.01(a) or (b). In connection with the foregoing, (a) with respect to
any Disposition or Recovery Event, (i) income statement and cash flow statement items (whether
positive or negative) attributable to the property disposed of shall be excluded to the extent
relating to any period occurring prior to the date of such transaction and (ii) Indebtedness which
is retired shall be excluded and deemed to have been retired as of the first day of the applicable
period and (b) with respect to any Acquisition, (i) income statement and cash flow statement items
attributable to the Person or property acquired shall be included to the extent relating to any
period applicable in such calculations to the extent (A) such items are not otherwise included in
such income statement and cash flow statement items for the Parent and its Subsidiaries in
accordance with GAAP or in accordance with any defined terms set forth in Section 1.01 and
(B) such items are supported by financial statements or other information reasonably satisfactory
to the Administrative Agent and (ii) any Indebtedness incurred or assumed by the Parent or any
Subsidiary (including the Person or property acquired) in connection with such transaction and any
Indebtedness of the Person or property acquired which is not retired in connection with such
transaction (A) shall be deemed to have been incurred as of the first day of the applicable period
and (B) if such Indebtedness has a floating or formula rate, shall have an implied rate of interest
for the applicable period for purposes of this definition determined by utilizing the rate which is
or would be in effect with respect to such Indebtedness as at the relevant date of determination.



     “Pro Forma Compliance Certificate” means a certificate of a Responsible Officer of the
Borrower containing reasonably detailed calculations of the financial covenants set forth in
Section 8.11 recomputed as of the end of the period of the four fiscal quarters most
recently ended for which the Parent has delivered financial statements pursuant to Section
7.01(a) or (b) after giving effect to the applicable transaction on a Pro Forma Basis.



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



     “Qualified Cash” means cash or Cash Equivalents of the Loan Parties that (a) are
maintained in a deposit account with the Administrative Agent or in a deposit account that is
subject to an
account control agreement in form and substance reasonably satisfactory to the Administrative
Agent, (b) do not appear (or would not be required to appear) as “restricted” on a consolidated
balance sheet of the Parent and (c) are not subject to a Lien (other than Liens of the type
described in Sections 8.01(a), (m) and (n)).



     “Real Property Security Documents” means with respect to any real property owned by a
Loan Party:




     (a) fully executed and notarized Mortgages encumbering the fee interest of any Loan
Party in such real property;




     (b) if requested by the Administrative Agent in its sole discretion, maps or plats of
an as-built survey of the sites of such real property certified to the Administrative Agent
and the title insurance company issuing the policies referred to in clause (c) of this
definition in a manner reasonably satisfactory to each of the Administrative Agent and such
title insurance company, dated a date reasonably satisfactory to each of the Administrative
Agent and such title insurance company by an independent professional licensed land
surveyor, which maps or plats and the



24









 






surveys on which they are based shall be sufficient to delete any standard printed survey
exception contained in the applicable title policy and be made in accordance with the
Minimum Standard Detail Requirements for Land Title Surveys jointly established and adopted
by the American Land Title Association and the American Congress on Surveying and Mapping in
2005 with all items from Table A thereof completed, except for Nos. 5 and 12;




     (c) ALTA mortgagee title insurance policies issued by a title insurance company
reasonably acceptable to the Administrative Agent with respect to such real property,
assuring the Administrative Agent that the Mortgage covering such real property creates a
valid and enforceable first priority mortgage lien on such real property, free and clear of
all defects and encumbrances except Permitted Liens, which title insurance policies shall
otherwise be in form and substance reasonably satisfactory to the Administrative Agent and
shall include such endorsements as are reasonably requested by the Administrative Agent;




     (d) evidence as to (i) whether such real property is in an area designated by the
Federal Emergency Management Agency as having special flood or mud slide hazards (a
“Flood Hazard Property”) and (ii) if such real property is a Flood Hazard Property,
(A) whether the community in which such real property is located is participating in the
National Flood Insurance Program, (B) the applicable Loan Party’s written acknowledgment of
receipt of written notification from the Administrative Agent (1) as to the fact that such
real property is a Flood Hazard Property and (2) as to whether the community in which each
such Flood Hazard Property is located is participating in the National Flood Insurance
Program and (C) copies of insurance policies or certificates of insurance of the Parent and
its Subsidiaries evidencing flood insurance satisfactory to the Administrative Agent and
naming the
Administrative Agent and its successors and/or assigns as sole loss payee on behalf of
the Lenders;




     (e) if requested by the Administrative Agent in its sole discretion, an environmental
assessment report, as to such real property, in form and substance and from professional
firms acceptable to the Administrative Agent;




     (f) if requested by the Administrative Agent in its sole discretion, evidence
reasonably satisfactory to the Administrative Agent that such real property, and the uses of
such real property, are in compliance in all material respects with all applicable zoning
laws (the evidence submitted as to which should include the zoning designation made for such
real property, the permitted uses of such real property under such zoning designation and,
if available, zoning requirements as to parking, lot size, ingress, egress and building
setbacks); and




     (g) if requested by the Administrative Agent in its sole discretion, an opinion of
legal counsel to the Loan Party granting the Mortgage on such real property, addressed to
the Administrative Agent and each Lender, in form and substance reasonably acceptable to the
Administrative Agent.



     “Receivables” means all Patient accounts existing or hereafter created, any and all
rights to receive payments due on such accounts from any Patient or Payor under or in respect of
such account to the extent not evidenced by an instrument or chattel paper, and all proceeds of, or
in any way derived from, any of the foregoing, whether directly or indirectly (including all
interest, finance charges and other amounts payable by the obligor in respect thereof).



     “Recovery Event” means any loss of, damage to or destruction of, or any condemnation
or other taking for public use of, any property of the Parent or any Subsidiary.



25









 





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



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



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



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



     “Required Lenders” means, as of any date of determination, Lenders holding in the
aggregate more than 50% of (a) the unfunded Commitments and the outstanding Loans (with the
aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations
and Swing Line Loans being deemed “held” by such Lender for purposes of this definition) or (b) if
the Commitments have been terminated, the outstanding Loans (with the aggregate amount of each
Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans
being deemed “held” by such Lender for purposes of this definition). The unfunded Commitments of,
and the outstanding Loans, L/C Obligations and participations therein held or deemed held by, any
Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.



     “Required Revolving Lenders” means, as of any date of determination, Lenders holding
in the aggregate more than 50% of (a) the unfunded Revolving Commitments and the outstanding
Revolving Loans (with the aggregate amount of each Lender’s risk participation and funded
participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for
purposes of this definition) or (b) if the Revolving Commitments have been terminated, the
outstanding Revolving Loans (with the aggregate amount of each Lender’s risk participation and
funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for
purposes of this definition). The unfunded Revolving Commitments of, and the outstanding Revolving
Loans, L/C Obligations and participations therein held or deemed held by, any Defaulting Lender
shall be excluded for purposes of making a determination of Required Revolving Lenders.



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



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



26









 





     “Retained Rights” means, with respect to any Government Receivable, the rights of the
Parent or any Subsidiary granted by applicable law and regulations over such Government Receivable,
including, without limitation, and as applicable, the collection thereof and discretion over the
transfer thereof to any party (including the Administrative Agent) and to enforce the claim giving
rise to such Government Receivable against such Governmental Authority, in the absence of a court
order in the manner expressly contemplated by applicable state and federal law.



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



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



     “S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of The McGraw-Hill
Companies, Inc. and any successor thereto.



     “Sale and Leaseback Transaction” means, with respect to any Person, any arrangement,
directly or indirectly, whereby such Person shall sell or transfer any property used or useful in
its business, whether now owned or hereafter acquired, and thereafter rent or lease such property
or other property that it intends to use for substantially the same purpose or purposes as the
property being sold or transferred.



     “Satisfaction in Full” or “Satisfied in Full” means, with respect to the
Obligations, as of any date, that, as of such date, (a) all principal and interest accrued to such
date which constitute Obligations arising under the Loan Documents shall have been paid in full in
cash, (b) all fees, expenses and other amounts then due and payable which constitute Obligations
arising under the Loan Documents shall have been paid in full in cash, (c) all outstanding Letters
of Credit shall have been (i) terminated, (ii) Cash Collateralized or (iii) secured by one or more
letters of credit on terms and conditions, and with one or more financial institutions, reasonably
satisfactory to the L/C Issuer, (d) if a Secured Swap Provider has provided prior written notice to
the Administartive Agent thereof, all amounts then due and payable (or which will be due and
payable following notice or expiration of any grace period) which constitute Obligations arising
under Swap Contracts shall have been paid in full in cash or cash collateralized in an amount and
manner satisfactory to the counterparty to such Swap Contract (or, in the case of such a Swap
Contract provided or arranged by GE Capital, GE Capital), (e) if the Administrative Agent has
commenced exercising remedies under Section 9.02, all amounts then due and payable which constitute
Obligations arising under Treasury Management Agreements shall have been paid in full in and (f)
the Commitments shall have expired or been terminated in full.



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



     “Secured Swap Provider” means (a) a Lender or an Affiliate of a Lender (or any Person
that was a Lender or Affiliate of a Lender at the time such Person entered into the applicable Swap
Contract) and (b) any other Person that entered into the applicable Swap Contract with the
Parent or any Subsidiary if the applicable Swap Contract was provided or arranged by GE Capital or
an Affiliate of GE Capital and any assignee of such Person.



27









 





     “Securitization Transaction” means, with respect to any Person, any financing
transaction or series of financing transactions (including factoring arrangements) pursuant to
which such Person or any Subsidiary of such Person may sell, convey or otherwise transfer, or grant
a security interest in, accounts, payments, receivables, rights to future lease payments or
residuals or similar rights to payment to a special purpose subsidiary or affiliate of such Person.



     “Security Agreement” means the security and pledge agreement dated as of the Closing
Date executed in favor of the Administrative Agent, for the benefit of the holders of the
Obligations, by each of the Loan Parties.



     “Solvent” or “Solvency” means, with respect to any Person as of a particular
date, that on such date (a) such Person is able to pay its debts and other liabilities, contingent
obligations and other commitments as they mature in the ordinary course of business, (b) such
Person does not intend to, and does not believe that it will, incur debts or liabilities beyond
such Person’s ability to pay such debts and liabilities as they mature in the ordinary course of
business, (c) such Person is not engaged in a business or a transaction, and is not about to engage
in a business or a transaction, for which such Person’s property would constitute unreasonably
small capital, (d) the fair value of the property of such Person is greater than the total amount
of liabilities, including contingent liabilities, of such Person, (e) the present fair salable
value of the property of such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and matured and (f) such
Person does not intend, in any transaction, to hinder, delay or defraud either present or future
creditors or any other person to which such Person is or will become, through such transaction,
indebted. The amount of contingent liabilities at any time shall be computed as the amount that, in
the light of all the facts and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.



     “Sponsor” means Waud Capital Partners, L.L.C., a Delaware limited liability company.



     “Subsidiary” of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the shares of Equity Interests
entitled to vote for members of the board of directors or equivalent governing body at the time
beneficially owned, or the management of which is otherwise controlled, directly, or indirectly
through one or more intermediaries, or both, by such Person. Unless otherwise specified, all
references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or
Subsidiaries of the Parent.



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



     “Swap Termination Value” means, in respect of any one or more Swap Contracts, after
taking into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a)



28









 




for any date on or after the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s) and (b) for any date prior to the
date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such
Swap Contracts, as determined based upon one or more mid-market or other readily available
quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or
any Affiliate of a Lender).




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



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



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



     “Swing Line Sublimit” means an amount equal to the lesser of (a) $5,000,000 and (b)
the Aggregate Revolving Commitments. The Swing Line Sublimit is part of, and not in addition to,
the Aggregate Revolving Commitments.



     “Synthetic Lease” means any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing arrangement whereby the arrangement
is considered borrowed money indebtedness for tax purposes but is classified as an operating lease
or does not otherwise appear on a balance sheet under GAAP.



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



     “Tax Distributions” means cash distributions to the owners of Equity Interests of the
Parent to provide such owners with funds to pay any federal, state or local income taxes
attributable to such owner’s ownership of Equity Interests in the Parent.



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



     “Term Loan Commitment” means, as to each Lender, its obligation to make its portion of
the Term Loan to the Borrower pursuant to Section 2.01(b), in the principal amount set
forth opposite such Lender’s name on Schedule 2.01. The aggregate principal amount of the
Term Loan Commitments of all of the Lenders as in effect on the Closing Date is ONE HUNDRED THIRTY
FIVE MILLION DOLLARS ($135,000,000).



     “Threshold Amount” means $1 million.



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



     “Transaction” means, collectively, the Equity Repurchase, the Merger, the Equity
Contribution and the entering into and funding of the Term Loan and Revolving Loans on the Closing
Date.



     “Treasury Management Agreement” means any agreement governing the provision of
treasury or cash management services, including deposit accounts, overnight draft, credit cards,
debit cards, p-cards (including purchasing cards and commercial cards), funds transfer, automated
clearinghouse, zero balance



29









 




accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation
and reporting and trade finance services and other cash management services.




     “TRICARE” means the health care program of the United States Department of Defense
Military Health System.



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



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



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



     “Wholly Owned Subsidiary” means any Person 100% of whose Equity Interests are at the
time owned by the Parent directly or indirectly through other Persons 100% of whose Equity
Interests are at the time owned, directly or indirectly, by the Parent.



     “YFCS” means Youth and Family Centered Services, Inc., a Georgia corporation.



     “YFCS Audited Financial Statements” means the audited consolidated balance sheet of
YFCS and its Subsidiaries for the fiscal year ended December 31, 2009, and the related consolidated
statements of income or operations, shareholders’ equity and cash flows of YFCS and its
Subsidiaries for such fiscal year, including the notes thereto.



     “YFCS Interim Financial Statements” means the unaudited consolidated balance sheet of
YFCS and its Subsidiaries for the month ended December 31, 2010 and the related statements of
income or operations, shareholders’ equity and cash flows of YFCS and its Subsidiaries for such
month.


1.02 Other Interpretive Provisions.




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




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



30














 






such law or regulation as amended, modified or supplemented from time to time, and
(vi) the words “asset” and “property” shall be construed to have the same
meaning and effect and to refer to any and all assets and properties, tangible and
intangible, real and personal, including cash, securities, accounts and contract rights.




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




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




     (d) If any item is required to be delivered, or any action is required to be
taken, on a day other than a Business Day, such item shall be required to be
delivered, and such action shall be required to be taken, on the next following
Business Day.


1.03 Accounting Terms; Calculation of Financial Covenants on a Pro Forma Basis.




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



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



     (c) Calculation of Financial Covenants on a Pro Forma Basis. Notwithstanding
the above, the parties hereto acknowledge and agree that all calculations of the financial
covenants in Section 8.11 (including for purposes of determining the Applicable
Rate) shall be made on a Pro Forma Basis with respect to
any Acquisition (other than the Merger), Disposition or Recovery Event occurring
during the applicable period. All references herein to consolidated financial statements of
the Parent and its Subsidiaries or to the determination of any amount for the Parent and
its Subsidiaries on a consolidated basis or any similar reference shall, in each case, be
deemed to include each variable interest entity that the Parent is required to consolidate
pursuant to FASB ASC 810 as if such variable interest entity were a Subsidiary as defined
herein.



31









 




1.04 Rounding.



Any financial ratios required to be maintained by the Loan Parties pursuant to this Agreement shall
be calculated by dividing the appropriate component by the other component, carrying the result to
one place more than the number of places by which such ratio is expressed herein and rounding the
result up or down to the nearest number (with a rounding-up if there is no nearest number).



1.05 Times of Day.




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


1.06 Letter of Credit Amounts.




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



ARTICLE II




THE COMMITMENTS AND CREDIT EXTENSIONS



2.01 Revolving Loans and Term Loan.




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



     (b) Term Loan. Subject to the terms and conditions set forth herein, each
Lender severally agrees to make its portion of a term loan (the “Term Loan”) to the
Borrower in Dollars on the Closing Date in an amount not to exceed such Lender’s Term Loan
Commitment. Amounts repaid on the Term Loan may not be reborrowed. The Term Loan may
consist of Base Rate Loans or Eurodollar Rate Loans, or a combination thereof, as further
provided herein, provided, however, all Borrowings made on the Closing Date
shall be made as Base Rate Loans.



32









 




2.02 Borrowings, Conversions and Continuations of Loans.




     (a) Each Borrowing, each conversion of Loans from one Type to the other, and each
continuation of Eurodollar Rate Loans shall be made upon the Borrower’s irrevocable notice
to the Administrative Agent, which may be given by telephone. Each such notice must be
received by the Administrative Agent not later than 11:00 a.m. (i) three Business Days
prior to the requested date of any Borrowing of, conversion to or continuation of,
Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate Loans, and
(ii) on the requested date of any Borrowing of Base Rate Loans. Each telephonic notice by
the Borrower pursuant to this Section 2.02(a) must be confirmed promptly by
delivery to the Administrative Agent of a written Loan Notice, appropriately completed and
signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion to or
continuation of Eurodollar Rate Loans shall be in a principal amount of $1,000,000 or a
whole multiple of $100,000 in excess thereof. Except as provided in Sections
2.03(c) and 2.04(c), each Borrowing of or conversion to Base Rate Loans shall
be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof.
Each Loan Notice (whether telephonic or written) shall specify (i) whether the Borrower is
requesting a Borrowing, a conversion of Loans from one Type to the other, or a continuation
of Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or
continuation, as the case may be (which shall be a Business Day), (iii) the principal
amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be
borrowed or to which existing Loans are to be converted, and (v) if applicable, the
duration of the Interest Period with respect thereto. If the Borrower fails to specify a
Type of a Loan in a Loan Notice or if the Borrower fails to give a timely notice requesting
a conversion or continuation, then the applicable Loans shall be made as, or converted to,
Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of
the last day of the Interest Period then in effect with respect to the applicable
Eurodollar Rate Loans. If the Borrower requests a Borrowing of, conversion to, or
continuation of Eurodollar Rate Loans in any Loan Notice, but fails to specify an Interest
Period, it will be deemed to have specified an Interest Period of one month.
Notwithstanding anything to the contrary herein, a Swing Line Loan may not be converted to
a Eurodollar Rate Loan.



     (b) Following receipt of a Loan Notice, the Administrative Agent shall promptly notify
each Lender of the amount of its Applicable Percentage of the applicable Loans, and if no
timely notice of a conversion or continuation is provided by the Borrower, the
Administrative Agent shall notify each Lender of the details of any automatic conversion to
Base Rate Loans as described in the preceding subsection. In the case of a Borrowing, each
Lender shall make the amount of its Loan available to the Administrative Agent in
immediately available funds at the Administrative Agent’s Office not later than 3:00 p.m.
on the Business Day specified in the applicable Loan Notice. Upon satisfaction of the
applicable conditions set forth in Section 5.03 (or, if such Borrowing is the initial
Credit Extension, Sections 5.01 and 5.02), the Administrative Agent shall
make all funds so received available to the Borrower in like funds as received by the
Administrative Agent either by (i) crediting the account of the Borrower on the books of
Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each
case in accordance with instructions provided to (and reasonably acceptable to) the
Administrative Agent by
the Borrower; provided, however, that if, on the date the Loan Notice
with respect to a Borrowing of Revolving Loans is given by the Borrower, there are L/C
Borrowings outstanding, then the proceeds of such Borrowing, first, shall be applied to the
payment in full of any such L/C Borrowings and second, shall be made available to
the Borrower as provided above.



     (c) During the existence of a Default, the Required Lenders may demand that any or all
of the then outstanding Eurodollar Rate Loans be converted immediately to Base Rate Loans.



     (d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Interest Period for Eurodollar Rate Loans upon
determination of such interest rate. At any time that Base Rate Loans are outstanding, the
Administrative Agent shall notify the



33









 




Borrower and the Lenders of any change in the Prime Rate used in determining the Base Rate promptly
following the public announcement of such change.




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


2.03 Letters of Credit.





(a) The Letter of Credit Commitment.




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




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




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




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




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




     (A) any order, judgment or decree of any Governmental Authority or
arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer
from issuing such Letter of Credit, or any Law applicable to the L/C
Issuer or any request or directive (whether or not having the force of
law) from any Governmental Authority with jurisdiction over the L/C Issuer
shall prohibit, or request that the L/C Issuer refrain from, the issuance
of letters of credit generally or such Letter of Credit in particular or
shall



34









 






impose upon the L/C Issuer with respect to such Letter of Credit any restriction,
reserve or capital requirement (for which the L/C Issuer is not otherwise
compensated hereunder) not in effect on the Closing Date, or shall impose upon the
L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the
Closing Date and which the L/C Issuer in good faith deems material to it;




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




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




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




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




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




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




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




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



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




     (i) Each Letter of Credit shall be issued or amended, as the case may be,
upon the request of the Borrower delivered to the L/C Issuer (with a copy to the
Administrative Agent) in the form of a Letter of Credit Application, appropriately
completed and signed by a Responsible



35









 






Officer of the Borrower. Such Letter of Credit Application must be received by the L/C Issuer and
the Administrative Agent not later than 11:00 a.m. at least two (2) Business Days (or such later
date and time as the Administrative Agent and the L/C Issuer may agree in a particular instance in
their sole discretion) prior to the proposed issuance date or date of amendment, as the case may
be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the L/C Issuer: (A) the proposed
issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount
thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the
documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text
of any certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the
purpose and nature of the requested Letter of Credit; and (H) such other matters as the L/C Issuer
may require. In the case of a request for an amendment of any outstanding Letter of Credit, such
Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer (A)
the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a
Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the L/C
Issuer may require. Additionally, the Borrower shall furnish to the L/C Issuer and the
Administrative Agent such other documents and information pertaining to such requested Letter of
Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or the
Administrative Agent may require.




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




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



36









 






seven Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that the
Required Lenders have elected not to permit such extension or (2) from the Administrative Agent,
any Lender or any Loan Party that one or more of the applicable conditions specified in Section
5.03 is not then satisfied, and in each such case directing the L/C Issuer not to permit such
extension.




     (iv) If the Borrower so requests in any applicable Letter of Credit Application, the
L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that permits the
automatic reinstatement of all or a portion of the stated amount thereof after any drawing
thereunder (each, an “Auto-Reinstatement Letter of Credit”). Unless otherwise
directed by the L/C Issuer, the Borrower shall not be required to make a specific request
to the L/C Issuer to permit such reinstatement. Once an Auto-Reinstatement Letter of Credit
has been issued, except as provided in the following sentence, the Lenders shall be deemed
to have authorized (but may not require) the L/C Issuer to reinstate all or a portion of
the stated amount thereof in accordance with the provisions of such Letter of Credit.
Notwithstanding the foregoing, if such Auto-Reinstatement Letter of Credit permits the L/C
Issuer to decline to reinstate all or any portion of the stated amount thereof after a
drawing thereunder by giving notice of such non-reinstatement within a specified number of
days after such drawing (the “Non-Reinstatement Deadline”), the L/C Issuer shall
not permit such reinstatement if it has received a notice (which may be by telephone or in
writing) on or before the day that is seven Business Days before the Non-Reinstatement
Deadline (A) from the Administrative Agent that the Required Lenders have elected not to
permit such reinstatement or (B) from the Administrative Agent, any Lender or any Loan
Party that one or more of the applicable conditions specified in Section 5.03 is
not then satisfied (treating such reinstatement as an L/C Credit Extension for purposes of
this clause) and, in each case, directing the L/C Issuer not to permit such reinstatement.




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




(c) Drawings and Reimbursements; Funding of Participations.




     (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of drawing
under such Letter of Credit, the L/C Issuer shall notify the Borrower and the
Administrative Agent thereof. Not later than 11:00 a.m. on the date of any payment by the
L/C Issuer under a Letter of Credit (each such date, an “Honor Date”), the Borrower shall
reimburse the L/C Issuer through the Administrative Agent in an amount equal to the amount
of such drawing. If the Borrower fails to so reimburse the L/C Issuer by such time, the
Administrative Agent shall promptly notify each Lender of the Honor Date, the amount of the
unreimbursed drawing (the “Unreimbursed Amount”), and the amount of such Lender’s
Applicable Percentage thereof. In such event, the Borrower shall be deemed to have
requested a Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount
equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in
Section 2.02 for the principal amount of Base Rate Loans, but subject to the
unutilized portion of the Aggregate Revolving Commitments and the conditions set forth
in Section 5.03 (other than the delivery of a Loan Notice). Any notice given by the
L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be
given by telephone if immediately confirmed in writing; provided that the lack of
such an immediate confirmation shall not affect the conclusiveness or binding effect of
such notice.



37









 






     (ii) Each Lender shall upon any notice pursuant to Section 2.03(c)(i) make
funds available (and the Administrative Agent may apply Cash Collateral provided for this
purpose) for the account of the L/C Issuer at the Administrative Agent’s Office in an
amount equal to its Applicable Percentage of the Unreimbursed Amount not later than 3:00
p.m. on the Business Day specified in such notice by the Administrative Agent, whereupon,
subject to the provisions of Section 2.03(c)(iii), each Lender that so makes funds
available shall be deemed to have made a Revolving Loan that is a Base Rate Loan to the
Borrower in such amount. The Administrative Agent shall remit the funds so received to the
L/C Issuer.




     (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Borrowing of Base Rate Loans because the conditions set forth in Section 5.03
cannot be satisfied or for any other reason, the Borrower shall be deemed to have incurred
from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not
so refinanced, which L/C Borrowing shall be due and payable on demand (together with
interest) and shall bear interest at the Default Rate. In such event, each Lender’s payment
to the Administrative Agent for the account of the L/C Issuer pursuant to Section
2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C
Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section 2.03.




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




     (v) Each Lender’s obligation to make Revolving Loans or L/C Advances to reimburse the
L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section
2.03(c), shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right
which such Lender may have against the L/C Issuer, the Parent, any Subsidiary or any other
Person for any reason whatsoever; (B) the occurrence or continuance of a Default; or (C)
any other occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Lender’s obligation to make Revolving Loans
pursuant to this Section 2.03(c) is subject to the conditions set forth in
Section 5.03 (other than delivery by the Borrower of a Loan Notice). No such making
of an L/C Advance shall relieve or otherwise impair the obligation of the Borrower to
reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under any
Letter of Credit, together with interest as provided herein.




     (vi) If any Lender fails to make available to the Administrative Agent for the account
of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.03(c) by the time specified in Section
2.03(c)(ii), then, without limiting the other provisions of this Agreement, the L/C
Issuer shall be entitled to recover from such Lender (acting through the Administrative
Agent), on demand, such amount with interest thereon for the period from the date such
payment is required to the date on which such payment is immediately available to the L/C
Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate
determined by the L/C Issuer in accordance with
banking industry rules on interbank compensation, plus any administrative, processing
or similar fees customarily charged by the L/C Issuer in connection with the foregoing. If
such Lender pays such amount (with interest and fees as aforesaid), the amount so paid
shall constitute such Lender’s Revolving Loan included in the relevant Borrowing or L/C
Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate of the
L/C Issuer submitted to any Lender (through the



38









 






Administrative Agent) with respect to any amounts owing under this clause (vi) shall be
conclusive absent demonstrable error.




(d) Repayment of Participations.




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




     (ii) If any payment received by the Administrative Agent for the account of
the L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned
under any of the circumstances described in Section 11.05 (including
pursuant to any settlement entered into by the L/C Issuer in its discretion), each
Lender shall pay to the Administrative Agent for the account of the L/C Issuer its
Applicable Percentage thereof on demand of the Administrative Agent, plus interest
thereon from the date of such demand to the date such amount is returned by such
Lender, at a rate per annum equal to the Federal Funds Rate from time to time in
effect. The obligations of the Lenders under this clause shall survive the payment
in full of the Obligations and the termination of this Agreement.



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




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




     (ii) the existence of any claim, counterclaim, setoff, defense or other right
that the Parent or any Subsidiary may have at any time against any beneficiary or
any transferee of such Letter of Credit (or any Person for whom any such
beneficiary or any such transferee may be acting), the L/C Issuer or any other
Person, whether in connection with this Agreement, the transactions contemplated
hereby or by such Letter of Credit or any agreement or instrument relating
thereto, or any unrelated transaction;




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




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



39









 






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


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




     (f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying any
drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to
obtain any document (other than any sight draft, certificates and documents expressly
required by such Letter of Credit) or to ascertain or inquire as to the validity or
accuracy of any such document or the authority of the Person executing or delivering any
such document. None of the L/C Issuer, the Administrative Agent, any of their respective
Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be
liable to any Lender for (i) any action taken or omitted in connection herewith at the
request or with the approval of the Lenders or the Required Lenders, as applicable; (ii)
any action taken or omitted in the absence of gross negligence or willful misconduct; or
(iii) the due execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Issuer Document. The Borrower hereby assumes
all risks of the acts or omissions of any beneficiary or transferee with respect to its use
of any Letter of Credit; provided, however, that this assumption is not
intended to, and shall not, preclude the Borrower from pursuing such rights and remedies as
it may have against the beneficiary or transferee at law or under any other agreement. None
of the L/C Issuer, the Administrative Agent, any of their respective Related Parties nor
any correspondent, participant or assignee of the L/C Issuer shall be liable or responsible
for any of the matters described in clauses (i) through (v) of Section 2.03(e);
provided, however, that anything in such clauses to the contrary
notwithstanding, the Borrower may have a claim against the L/C Issuer, and the L/C Issuer
may be liable to the Borrower, to the extent, but only to the extent, of any direct, as
opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower
proves were caused by the L/C Issuer’s willful misconduct or gross negligence or the L/C
Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by
the beneficiary of a sight draft and certificate(s) strictly complying with the terms and
conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing,
the L/C Issuer may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or information to the
contrary, and the L/C Issuer shall not be responsible for the validity or sufficiency of
any instrument transferring or assigning or purporting to transfer or assign a Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which
may prove to be invalid or ineffective for any reason.



     (g) Applicability of ISP. Unless otherwise expressly agreed by the L/C Issuer
and the Borrower when a Letter of Credit is issued, the rules of the ISP shall apply to
each Letter of Credit.



     (h) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent
for the account of each Lender in accordance with its Applicable Percentage a Letter of
Credit fee (the “Letter of Credit Fee”) for each Letter of Credit equal to the
Applicable Rate for Revolving Loans that are Eurodollar Rate Loans times the daily
amount available to be drawn under such Letter of Credit; provided, however, any Letter of
Credit Fees otherwise payable for the account of a Defaulting Lender with respect to any
Letter of Credit as to which such Defaulting Lender has not provided Cash Collateral
satisfactory to the L/C Issuer pursuant to this Section 2.03 shall be payable, to
the maximum extent permitted by applicable Law, to the other Lenders in accordance with the
upward adjustments in their respective Applicable Percentages allocable to such Letter of
Credit pursuant to Section 2.15(a)(iv), with



40









 




the balance of such fee, if any, payable to the L/C Issuer for its own account. For purposes of
computing the daily amount available to be drawn under any Letter of Credit, the amount of such
Letter of Credit shall be determined in accordance with Section 1.06. Letter of Credit Fees shall
be (i) due and payable on the first Business Day after the end of each March, June, September and
December, commencing with the first such date to occur after the issuance of such Letter of Credit
and on the Maturity Date; and (ii) computed on a quarterly basis in arrears. If there is any change
in the Applicable Rate during any quarter, the daily amount available to be drawn under each Letter
of Credit shall be computed and multiplied by the Applicable Rate separately for each period during
such quarter that such Applicable Rate was in effect. Notwithstanding anything to the contrary
contained herein, upon the request of the Required Lenders (or automatically upon the imposition of
the Default Rate pursuant to Section 2.08), while any Event of Default exists, all Letter of Credit
Fees shall accrue at the Default Rate.




     (i) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer.
The Borrower shall pay directly to the L/C Issuer for its own account a fronting fee with
respect to each Letter of Credit, at the rate per annum specified in the Fee Letter,
computed on the daily amount available to be drawn under such Letter of Credit on a
quarterly basis in arrears. Such fronting fee shall be due and payable on the tenth
Business Day after the end of each March, June, September and December in respect of the
most recently-ended quarterly period (or portion thereof, in the case of the first
payment), commencing with the first such date to occur after the issuance of such Letter of
Credit and on the Maturity Date. For purposes of computing the daily amount available to be
drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined
in accordance with Section 1.06. In addition, the Borrower shall pay directly to
the L/C Issuer for its own account the customary issuance, presentation, amendment and
other processing fees, and other standard costs and charges, of the L/C Issuer relating to
letters of credit as from time to time in effect. Such customary fees and standard costs
and charges are due and payable on demand and are nonrefundable.



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



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


2.04 Swing Line Loans.




     (a) Swing Line Facility. Subject to the terms and conditions set forth herein,
the Swing Line Lender, in reliance upon the agreements of the other Lenders set forth in
this Section 2.04, may in its sole discretion make loans (each such loan, a
“Swing Line Loan”) to the Borrower in Dollars from time to time on any Business Day
during the Availability Period in an aggregate amount not to exceed at any time
outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing
Line Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of
Revolving Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed
the amount of such Lender’s Revolving Commitment; provided, however, that
after giving effect to any Swing Line Loan, (i) the Total Revolving Outstandings shall not
exceed the Aggregate Revolving Commitments, and (ii) the aggregate Outstanding Amount of
the Revolving Loans of any Lender, plus such Lender’s Applicable Percentage of the
Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage
of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving
Commitment,



41









 




and provided further, that the Borrower shall not use the proceeds of any Swing
Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and subject to
the other terms and conditions hereof, the Borrower may borrow under this Section 2.04,
prepay under Section 2.05, and reborrow under this Section 2.04. Each Swing Line
Loan shall be a Base Rate Loan. Immediately upon the making of a Swing Line Loan, each Lender shall
be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line
Lender a risk participation in such Swing Line Loan in an amount equal to the product of such
Lender’s Applicable Percentage times the amount of such Swing Line Loan.




     (b) Borrowing Procedures. Each Borrowing of Swing Line Loans shall be made
upon the Borrower’s irrevocable notice to the Swing Line Lender and the Administrative
Agent, which may be given by telephone. Each such notice must be received by the Swing Line
Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing
date, and shall specify (i) the amount to be borrowed, which shall be a minimum principal
amount of $100,000, and (ii) the requested borrowing date, which shall be a Business Day.
Each such telephonic notice must be confirmed promptly by delivery to the Swing Line Lender
and the Administrative Agent of a written Swing Line Loan Notice, appropriately completed
and signed by a Responsible Officer of the Borrower. Promptly after receipt by the Swing
Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm
with the Administrative Agent (by telephone or in writing) that the Administrative Agent
has also received such Swing Line Loan Notice and, if not, the Swing Line Lender will
notify the Administrative Agent (by telephone or in writing) of the contents thereof.
Unless the Swing Line Lender has received notice (by telephone or in writing) from the
Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. on the
date of the proposed Borrowing of Swing Line Loans (A) directing the Swing Line Lender not
to make such Swing Line Loan as a result of the limitations set forth in the first proviso
to the first sentence of Section 2.04(a), or (B) that one or more of the applicable
conditions specified in Article V is not then satisfied, then, subject to the terms
and conditions hereof, the Swing Line Lender will, not later than 3:00 p.m. on the
borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line
Loan available to the Borrower.



     (c) Refinancing of Swing Line Loans.




     (i) The Swing Line Lender at any time in its sole discretion may request, on
behalf of the Borrower (which hereby irrevocably authorizes the Swing Line Lender
to so request on its behalf), that each Lender make a Base Rate Loan in an amount
equal to such Lender’s Applicable Percentage of the amount of Swing Line Loans
then outstanding. Such request shall be made in writing (which written request
shall be deemed to be a Loan Notice for purposes hereof) and in accordance with
the requirements of Section 2.02, without regard to the minimum and
multiples specified therein for the principal amount of Base Rate Loans, but
subject to the unutilized portion of the Aggregate Revolving Commitments and the
conditions set forth in Section 5.03 (other than the delivery of a Loan
Notice). The Swing Line Lender shall furnish the Borrower with a copy of the
applicable Loan Notice promptly after delivering such notice to the Administrative
Agent. Each
Lender shall make an amount equal to its Applicable Percentage of the amount
specified in such Loan Notice available to the Administrative Agent in immediately
available funds (and the Administrative Agent may apply Cash Collateral available
with respect to the applicable Swing Line Loan) for the account of the Swing Line
Lender at the Administrative Agent’s Office not later than 3:00 p.m. on the day
specified in such Loan Notice, whereupon, subject to Section 2.04(c)(ii),
each Lender that so makes funds available shall be deemed to have made a Revolving
Loan that is a Base Rate Loan to the Borrower in such amount. The Administrative
Agent shall remit the funds so received to the Swing Line Lender.



42









 






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




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




     (iv) Each Lender’s obligation to make Revolving Loans or to purchase and fund risk
participations in Swing Line Loans pursuant to this Section 2.04(c) shall be
absolute and unconditional and shall not be affected by any circumstance, including (A) any
setoff, counterclaim, recoupment, defense or other right that such Lender may have against
the Swing Line Lender, the Parent, any Subsidiary or any other Person for any reason
whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence,
event or condition, whether or not similar to any of the foregoing; provided,
however, that each Lender’s obligation to make Revolving Loans pursuant to this
Section 2.04(c) is subject to the conditions set forth in Section 5.03. No
such funding of risk participations shall relieve or otherwise impair the obligation of the
Borrower to repay Swing Line Loans, together with interest as provided herein.



     (d) Repayment of Participations.




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




     (ii) If any payment received by the Swing Line Lender in respect of principal or
interest on any Swing Line Loan is required to be returned by the Swing Line
Lender under any of the circumstances described in Section 11.05 (including
pursuant to any settlement entered into by the Swing Line Lender in its discretion), each
Lender shall pay to the Swing Line Lender its Applicable Percentage thereof on demand of
the Administrative Agent, plus interest thereon from the date of such demand to the date
such amount is returned, at a rate per annum equal to the Federal Funds Rate. The
Administrative Agent will make such demand upon the request of the Swing Line Lender. The
obligations of the Lenders under this clause shall survive the payment in full of the
Obligations and the termination of this Agreement.



43









 





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



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



     (g) Auto Borrow Arrangement. In order to facilitate the borrowing of Swing
Line Loans, the Borrower and the Swing Line Lender may mutually agree to, and are hereby
authorized to, enter into an auto borrow agreement in form and substance reasonably
satisfactory to the Swing Line Lender, with notice to the Administrative Agent (the
“Auto Borrow Agreement”) providing for the automatic advance by the Swing Line
Lender of Swing Line Loans under the conditions set forth in the Auto Borrow Agreement,
subject to the conditions set forth herein. At any time an Auto Borrow Agreement is in
effect, Borrowings of Swing Line Loans under the Auto Borrow Agreement shall be made in
accordance with the terms of the Auto Borrow Agreement. For purposes of determining the
Total Revolving Outstandings at any time during which an Auto Borrow Agreement is in
effect, the Outstanding Amount of all Swing Line Loans shall be deemed to be the sum of the
Outstanding Amount of Swing Line Loans at such time plus the maximum amount available to be
borrowed under such Auto Borrow Agreement at such time.


2.05 Prepayments.




     (a) Voluntary Prepayments of Loans.




     (i) Revolving Loans and Term Loan. The Borrower may, upon notice from
the Borrower to the Administrative Agent, at any time or from time to time
voluntarily prepay Revolving Loans and the Term Loan in whole or in part without
premium or penalty; provided that (A) such notice must be received by the
Administrative Agent not later than 11:00 a.m. (1) three Business Days prior to
any date of prepayment of Eurodollar Rate Loans and (2) on the date of prepayment
of Base Rate Loans; (B) any such prepayment of Eurodollar Rate Loans shall be in a
principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof
(or, if less, the entire principal amount thereof then outstanding); (C) any
prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a
whole multiple of $100,000 in excess thereof (or, if less, the entire principal
amount thereof then outstanding); and (D) any prepayment of the Term Loan, unless
otherwise directed by the Borrower, shall be applied to the remaining principal
amortization payments in direct order of maturity. Each such notice shall specify
the date and amount of such prepayment and the Type(s) of Loans to be prepaid and,
if Eurodollar Rate Loans are to be prepaid, the Interest Period(s) of such Loans.
The Administrative Agent will promptly notify each Lender of its receipt of each
such notice, and of the amount of such Lender’s
Applicable Percentage of such prepayment. If such notice is given by the
Borrower, the Borrower shall make such prepayment and the payment amount specified
in such notice shall be due and payable on the date specified therein. Any
prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest
on the amount prepaid, together with any additional amounts required pursuant to
Section 3.05. Subject to Section 2.15, each such prepayment shall be applied to
the Loans of the Lenders in accordance with their respective Applicable
Percentages.




     (ii) Swing Line Loans. The Borrower may, upon notice to the Swing
Line Lender (with a copy to the Administrative Agent), at any time or from time to
time, voluntarily prepay



44









 






Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must
be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the
date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of
$100,000 (or, if less, the entire principal thereof then outstanding). Each such notice shall
specify the date and amount of such prepayment. If such notice is given by the Borrower, the
Borrower shall make such prepayment and the payment amount specified in such notice shall be due
and payable on the date specified therein.



     (b) Mandatory Prepayments of Loans.




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




     (ii) Dispositions and Recovery Events. The Borrower shall prepay the Loans
and/or Cash Collateralize the L/C Obligations as hereafter provided in an aggregate amount
equal to 100% of the Net Cash Proceeds of any Dispositions or Recovery Event to the extent
such Net Cash Proceeds are not reinvested in property that is useful in the business of the
Parent and its Subsidiaries within 180 days (or 360 days provided such Net Cash Proceeds
are committed to be reinvested pursuant to a binding contract within 180 days) of such
Disposition or Recovery Event (it being understood that, in each case, such prepayment
shall be due immediately upon the expiration of such reinvestment period to the extent not
reinvested).




     (iii) Extraordinary Receipts. Within one Business Day of receipt by the Parent
or any Subsidiary of the Net Cash Proceeds of any Extraordinary Receipts, the Borrower
shall prepay the Loans and/or Cash Collateralize the L/C Obligations as hereafter provided
in an aggregate amount equal to 100% of such Net Cash Proceeds.




     (iv) Consolidated Excess Cash Flow. Within one hundred ten days after the end
of each fiscal year of the Parent, commencing with the fiscal year ending December 31,
2011, the Borrower shall prepay the Loans and/or Cash Collateralize the L/C Obligations as
hereafter provided in an aggregate amount equal to the sum of (A) 50% (if the Consolidated
Leverage Ratio as of the end of such fiscal year is equal to or greater than 2.5:1.0), 25%
(if the Consolidated Leverage Ratio as of the end of such fiscal year is less than 2.5:1.0
but equal to or greater than 2.0:1.0) and 0% (if the Consolidated Leverage Ratio as of the
end of such fiscal year is less than 2.0:1.0) of Consolidated Excess Cash Flow for such
fiscal year (or, in the case of the fiscal year ending December 31, 2011, for the period
from the Closing Date through December 31, 2011) minus (B) the aggregate amount of optional
prepayments of the Term Loan pursuant to Section 2.05(a)(i) and the aggregate
amount of optional prepayments of Revolving Loans pursuant to Section 2.05(a)(i)
(to the extent accompanied by an optional permant reduction in the Aggregate Revolving
Commitments) in each case
during such fiscal year (or, in the case of the fiscal year ending December 31, 2011,
for the period from the Closing Date through December 31, 2011).




     (v) Debt Issuances. Immediately upon receipt by the Parent or any Subsidiary
of the Net Cash Proceeds of any Debt Issuance, the Borrower shall prepay the Loans and/or
Cash



45









 






Collateralize the L/C Obligations as hereafter provided in an aggregate amount equal to
100% of such Net Cash Proceeds.




     (vi) Equity Issuances. Immediately upon the receipt by the Parent or
any Subsidiary of the Net Cash Proceeds of any Equity Issuance (other than an
Excluded Equity Issuance), the Borrower shall prepay the Loans and/or Cash
Collateralize the L/C Obligations in an aggregate amount equal to 50% of such Net
Cash Proceeds.




     (vii) Application of Mandatory Prepayments. All amounts required to
be paid pursuant to this Section 2.05(b) shall be applied as follows:




     (A) with respect to all amounts prepaid pursuant to Section
2.05(b)(i), first, ratably to the L/C Borrowings and the Swing
Line Loans, second, to the outstanding Revolving Loans, and,
third, to Cash Collateralize the remaining L/C Obligations; and




     (B) with respect to all amounts prepaid pursuant to Sections
2.05(b)(ii), (iii), (iv), (v) and
(vi), first to the Term Loan (ratably to the remaining
principal amortization payments), second, ratably to the L/C
Borrowings and the Swing Line Loans, third, to the outstanding Revolving
Loans, and, fourth, to Cash Collateralize the remaining L/C
Obligations.




     Within the parameters of the applications set forth above, prepayments shall be
applied first to Base Rate Loans and then to Eurodollar Rate Loans in direct order
of Interest Period maturities. All prepayments under this Section 2.05(b)
shall be subject to Section 3.05, but otherwise without premium or
penalty, and shall be accompanied by interest on the principal amount prepaid
through the date of prepayment.




     (viii) Eurodollar Prepayment Account. If the Borrower is required to
make a mandatory prepayment of Eurodollar Rate Loans under this Section
2.05(b) (other than Section 2.05(b)(i)) so long as no Event of Default
exists, the Borrower shall have the right, in lieu of making such prepayment in
full, to deposit an amount equal to such mandatory prepayment with the
Administrative Agent in a cash collateral account maintained (pursuant to
documentation reasonably satisfactory to the Administrative Agent) by and in the
sole dominion and control of the Administrative Agent. Any amounts so deposited
shall be held by the Administrative Agent as collateral for the prepayment of such
Eurodollar Rate Loans and shall be applied to the prepayment of the applicable
Eurodollar Rate Loans at the end of the current Interest Periods applicable
thereto or, sooner, at the election of the Administrative Agent, upon the
occurrence of an Event of Default. At the request of the Borrower, amounts so
deposited shall be invested by the Administrative Agent in Cash Equivalents
maturing on or prior to the date or dates on which it is anticipated that such
amounts will be applied to prepay such Eurodollar Rate Loans; any interest earned
on such Cash Equivalents will be for the account of the Borrower and the Borrower
will deposit with
the Administrative Agent the amount of any loss on any such Cash Equivalents
to the extent necessary in order that the amount of the prepayment to be made with
the deposited amounts may not be reduced.


2.06 Optional Termination or Reduction of Aggregate Revolving Commitments.




     The Borrower may, upon notice to the Administrative Agent, terminate the Aggregate
Revolving Commitments, or from time to time permanently reduce the Aggregate Revolving
Commitments to an amount not less than the Outstanding Amount of Revolving Loans, Swing
Line Loans and L/C Obligations; provided that (a) any such notice shall be received
by the Administrative Agent not later than



46









 




11:00 a.m. five Business Days prior to the date of termination or reduction, (b) any such partial
reduction shall be in an aggregate amount of $5 million or any whole multiple of $1 million in
excess thereof and (c) if, after giving effect to any reduction of the Aggregate Revolving
Commitments, the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of the
Aggregate Revolving Commitments, such sublimit shall be automatically reduced by the amount of such
excess. The Administrative Agent will promptly notify the Lenders of any such notice of termination
or reduction of the Aggregate Revolving Commitments. Any reduction of the Aggregate Revolving
Commitments shall be applied to the Revolving Commitment of each Lender according to its Applicable
Percentage. All fees accrued with respect thereto until the effective date of any termination of
the Aggregate Revolving Commitments shall be paid on the effective date of such termination.



2.07 Repayment of Loans.




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



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



     (c) Term Loan. The Borrower shall repay the outstanding principal amount of
the Term Loan in installments on the dates and in the amounts set forth in the table below
(as such installments may hereafter be adjusted as a result of prepayments made pursuant to
Section 2.05), unless accelerated sooner pursuant to Section 9.02:



	 	 	 	 	 
	 	 	Principal Amortization
	Payment Dates	 	Payment
	June 30, 2011
	 	$	1,687,500	 
	September 30, 2011
	 	$	1,687,500	 
	December 31, 2011
	 	$	1,687,500	 
	March 31, 2012
	 	$	1,687,500	 
	June 30, 2012
	 	$	1,687,500	 
	September 30, 2012
	 	$	1,687,500	 
	December 31, 2012
	 	$	1,687,500	 
	March 31, 2013
	 	$	1,687,500	 
	June 30, 2013
	 	$	3,375,000	 
	September 30, 2013
	 	$	3,375,000	 
	December 31, 2013
	 	$	3,375,000	 
	March 31, 2014
	 	$	3,375,000	 
	June 30, 2014
	 	$	4,218,750	 
	September 30, 2014
	 	$	4,218,750	 
	December 31, 2014
	 	$	4,218,750	 
	March 31, 2015
	 	$	4,218,750	 
	June 30, 2015
	 	$	5,062,500	 
	September 30, 2015
	 	$	5,062,500	 
	December 31, 2015
	 	$	5,062,500	 
	Maturity Date
	 	Outstanding Principal

	 
	 	Balance of the Term Loan






47









 






2.08 Interest.




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




     (b) (i) If any amount of principal of any Loan is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration or otherwise, such
amount shall thereafter bear interest at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable Laws.




     (ii) If any amount (other than principal of any Loan) payable by the Borrower
under any Loan Document is not paid when due (without regard to any applicable
grace periods), whether at stated maturity, by acceleration or otherwise, then
upon the request of the Required Lenders, such amount shall thereafter bear
interest at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws.




     (iii) Upon the request of the Required Lenders, while any Event of Default
exists, the Borrower shall pay interest on the principal amount of all outstanding
Obligations hereunder at a fluctuating interest rate per annum at all times equal
to the Default Rate to the fullest extent permitted by applicable Laws.




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



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



2.09 Fees.





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




     (a) Commitment Fee. The Borrower shall pay to the Administrative
Agent, for the account of each Lender in accordance with its Applicable
Percentage, a commitment fee (the “Commitment Fee”) equal to the product
of (i) the Applicable Rate times (ii) the actual daily amount by which the
Aggregate Revolving Commitments exceed the sum of (A) the Outstanding Amount of
Revolving Loans and (B) the Outstanding Amount of L/C
Obligations, subject to adjustment as provided in Section 2.15. The
Commitment Fee shall accrue at all times during the Availability Period, including
at any time during which one or more of the conditions in Article V is not
met, and shall be due and payable quarterly in arrears on the last Business Day of
each March, June, September and December, commencing with the first such date to
occur after the Closing Date, and on the last day of the Availability Period. The
Commitment Fee shall be calculated quarterly in arrears, and if there is any
change in the Applicable Rate during any quarter, the actual daily amount shall be
computed and multiplied by the Applicable Rate separately for each period during
such quarter that such Applicable Rate was in effect. For



48









 






purposes of clarification, Swing Line Loans shall not be considered outstanding for
purposes of determining the unused portion of the Aggregate Revolving Commitments.




     (b) Fee Letter. The Borrower shall pay to the Arranger and the
Administrative Agent for their own respective accounts fees in the amounts and at
the times specified in the Fee Letter. Such fees shall be fully earned when paid
and shall not be refundable for any reason whatsoever.


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




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



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


2.11 Evidence of Debt.




     (a) The Credit Extensions made by each Lender shall be evidenced by one or more
accounts or records maintained by such Lender and by the Administrative Agent in the
ordinary course of business. The accounts or records maintained by the Administrative Agent
and each Lender shall be conclusive absent demonstrable error of the amount of the Credit
Extensions made by the Lenders to the Borrower and the
interest and payments thereon. Any failure to so record or any error in doing so shall
not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any
amount owing with respect to the Obligations. In the event of any conflict between the
accounts and records maintained by any Lender and the accounts and records of the
Administrative Agent in respect of such matters, the accounts and records of the
Administrative Agent shall control in the absence of demonstrable error. Upon the request
of any Lender made through the Administrative Agent, the Borrower shall execute and deliver
to such Lender (through the Administrative Agent) a promissory note, which shall evidence
such Lender’s Loans in addition to such accounts or records. Each such promissory note
shall be in the form



49









 




of Exhibit 2.11 (a “Note”). Each Lender may attach schedules to its Note and
endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with
respect thereto.




     (b) In addition to the accounts and records referred to in subsection (a), each Lender
and the Administrative Agent shall maintain in accordance with its usual practice accounts
or records evidencing the purchases and sales by such Lender of participations in Letters
of Credit and Swing Line Loans. In the event of any conflict between the accounts and
records maintained by the Administrative Agent and the accounts and records of any Lender
in respect of such matters, the accounts and records of the Administrative Agent shall
control in the absence of demonstrable error.


2.12 Payments Generally; Administrative Agent’s Clawback.




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



     (b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of
any Borrowing of Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate
Loans, prior to 12:00 noon on the date of such Borrowing) that such Lender will not make
available to the Administrative Agent such Lender’s share of such Borrowing, the
Administrative Agent may assume that such Lender has made such share available on such date
in accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate Loans,
that such Lender has made such share available in accordance with and at the time required
by Section 2.02) and may, in reliance upon such assumption, make available to the
Borrower a corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the applicable
Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on
demand such corresponding amount in immediately available funds with interest thereon, for
each day from and including the date such amount is made available to the Borrower to but
excluding the date of payment to the Administrative Agent, at (A) in the case of a payment
to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by
the Administrative Agent in accordance with banking industry rules on interbank
compensation, plus any administrative, processing or similar fees customarily charged
by the Administrative Agent in connection with the foregoing, and (B) in the case of a
payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the
Borrower and such Lender shall pay such interest to the Administrative Agent for the same
or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the
amount of such interest paid by the Borrower for such period. If such Lender pays its share
of the applicable Borrowing to the Administrative Agent, then the amount so paid shall
constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall
be without prejudice to any claim the Borrower may have against a Lender that shall have
failed to make such payment to the Administrative Agent.



50









 






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




     A notice of the Administrative Agent to any Lender or the Borrower with
respect to any amount owing under this subsection (b) shall be conclusive, absent
demonstrable error.



     (c) Failure to Satisfy Conditions Precedent. If any Lender makes available to
the Administrative Agent funds for any Loan to be made by such Lender as provided in the
foregoing provisions of this Article II, and such funds are not made available to
the Borrower by the Administrative Agent because the conditions to the applicable Credit
Extension set forth in Article V are not satisfied or waived in accordance with the
terms hereof, the Administrative Agent shall return such funds (in like funds as received
from such Lender) to such Lender, without interest.



     (d) Obligations of Lenders Several. The obligations of the Lenders hereunder
to make Loans, to fund participations in Letters of Credit and Swing Line Loans and to make
payments pursuant to Section 11.04(c) are several and not joint. The failure of any
Lender to make any Loan, to fund any such participation or to make any payment under
Section 11.04(c) on any date required hereunder shall not relieve any other Lender
of its corresponding obligation to do so on such date, and no Lender shall be responsible
for the failure of any other Lender to so make its Loan, to purchase its participation or
to make its payment under Section 11.04(c).



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


2.13 Sharing of Payments by Lenders.




     If any Lender shall, by exercising any right of setoff or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of the Loans made by it,
or the participations in L/C Obligations or in Swing Line Loans
held by it resulting in such Lender’s receiving payment of a proportion of the
aggregate amount of such Loans or participations and accrued interest thereon greater than
its pro rata share thereof as provided herein, then the Lender receiving
such greater proportion shall (a) notify the Administrative Agent of such fact, and (b)
purchase (for cash at face value) participations in the Loans and subparticipations in L/C
Obligations and Swing Line Loans of the other Lenders, or make such other adjustments as
shall be equitable, so that the benefit of all such payments shall be shared by the Lenders
ratably in accordance with the aggregate amount of principal of and accrued interest on
their respective Loans and other amounts owing them, provided that:




     (i) if any such participations or subparticipations are purchased and all or
any portion of the payment giving rise thereto is recovered, such participations
or subparticipations



51









 






shall be rescinded and the purchase price restored to the extent of such recovery, without
interest; and




     (ii) the provisions of this Section shall not be construed to apply to (A)
any payment made by or on behalf of the Borrower pursuant to and in accordance
with the express terms of this Agreement (including the application of funds
arising from the existence of a Defaulting Lender), (B) the application of Cash
Collateral provided for in Section 2.14 or (C) any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its Loans
or subparticipations in L/C Obligations or Swing Line Loans to any assignee or
participant, other than an assignment to the Parent or any Subsidiary (as to which
the provisions of this Section shall apply).



     Each Loan Party consents to the foregoing and agrees, to the extent it may effectively
do so under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against such Loan Party rights of setoff and
counterclaim with respect to such participation as fully as if such Lender were a direct
creditor of such Loan Party in the amount of such participation.


2.14 Cash Collateral.




     (a) Certain Credit Support Events. Upon the request of the Administrative
Agent or the L/C Issuer (i) if the L/C Issuer has honored any full or partial drawing
request under any Letter of Credit and such drawing has resulted in an L/C Borrowing, or
(ii) if, as of the Maturity Date, any L/C Obligation for any reason remains outstanding,
the Borrower shall, in each case, immediately Cash Collateralize the then Outstanding
Amount of all L/C Obligations. At any time that there shall exist a Defaulting Lender,
immediately upon the request of the Administrative Agent, the L/C Issuer or the Swing Line
Lender, the Borrower shall deliver to the Administrative Agent Cash Collateral in an amount
sufficient to cover all Fronting Exposure (after giving effect to Section
2.15(a)(iv) and any Cash Collateral provided by the Defaulting Lender).



     (b) Grant of Security Interest. All Cash Collateral (other than credit support
not constituting funds subject to deposit) shall be maintained in blocked, non-interest
bearing deposit accounts at Bank of America. The Borrower, and to the extent provided by
any Lender, such Lender, hereby grants to (and subjects to the control of) the
Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuer and the
Lenders (including the Swing Line Lender), and agrees to maintain, a first priority
security interest in all such cash, deposit accounts and all balances therein, and all
other property so provided as collateral pursuant hereto, and in all proceeds of the
foregoing, all as security for the obligations to which such Cash Collateral may be applied
pursuant to Section 2.14(c). If at any time the Administrative Agent determines
that Cash Collateral is subject to any right or claim of any Person other than the
Administrative Agent as herein provided, or that the total amount of such Cash Collateral
is less than the applicable Fronting Exposure and other obligations secured thereby, the
Borrower or the relevant Defaulting Lender will, promptly upon demand by the Administrative
Agent, pay or provide to
the Administrative Agent additional Cash Collateral in an amount sufficient to
eliminate such deficiency.



     (c) Application. Notwithstanding anything to the contrary contained in this
Agreement, Cash Collateral provided under any of this Section 2.14 or Sections
2.03, 2.04, 2.05, 2.15 or 9.02 in respect of Letters of
Credit or Swing Line Loans shall be held and applied to the satisfaction of the specific
L/C Obligations, Swing Line Loans, obligations to fund participations therein (including,
as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such
obligation) and other obligations for which the Cash Collateral was so provided, prior to
any other application of such property as may be provided for herein.



52









 





     (d) Release. Cash Collateral (or the appropriate portion thereof) provided to
reduce Fronting Exposure or other obligations shall be released promptly following (i) the
elimination of the applicable Fronting Exposure or other obligations giving rise thereto
(including by the termination of Defaulting Lender status of the applicable Lender (or, as
appropriate, its assignee following compliance with Section 11.06(b)(vi))) or (ii)
the Administrative Agent’s good faith determination that there exists excess Cash
Collateral; provided, however, (x) that Cash Collateral furnished by or on behalf of a Loan
Party shall not be released during the continuance of a Default (and following application
as provided in this Section 2.14 may be otherwise applied in accordance with
Section 9.03), and (y) the Person providing Cash Collateral and the L/C Issuer or
Swing Line Lender, as applicable, may agree that Cash Collateral shall not be released but
instead held to support future anticipated Fronting Exposure or other obligations.


2.15 Defaulting Lenders.




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




     (i) Waivers and Amendments. That Defaulting Lender’s right to approve
or disapprove any amendment, waiver or consent with respect to this Agreement
shall be restricted as set forth in Section 11.01.




     (ii) Reallocation of Payments. Any payment of principal, interest,
fees or other amounts received by the Administrative Agent for the account of that
Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to
Article IX or otherwise, and including any amounts made available to the
Administrative Agent by that Defaulting Lender pursuant to Section 11.08),
shall be applied at such time or times as may be determined by the Administrative
Agent as follows: first, to the payment of any amounts owing by that Defaulting
Lender to the Administrative Agent hereunder; second, to the payment on a pro rata
basis of any amounts owing by that Defaulting Lender to the L/C Issuer or Swing
Line Lender hereunder; third, if so determined by the Administrative Agent or
requested by the L/C Issuer or Swing Line Lender, to be held as Cash Collateral
for future funding obligations of that Defaulting Lender of any participation in
any Swing Line Loan or Letter of Credit; fourth, as the Borrower may request (so
long as no Default exists), to the funding of any Loan in respect of which that
Defaulting Lender has failed to fund its portion thereof as required by this
Agreement, as determined by the Administrative Agent; fifth, if so determined by
the Administrative Agent and the Borrower, to be held in a non-interest bearing
deposit account and released in order to satisfy obligations of that Defaulting
Lender to fund Loans under this Agreement; sixth, to the payment of any amounts
owing to the Lenders, the L/C Issuer or Swing Line Lender as a result of any
judgment of a court of competent jurisdiction obtained by any Lender, the L/C
Issuer or Swing Line Lender against that Defaulting Lender as a result of that
Defaulting Lender’s breach of its obligations under this Agreement; seventh, so
long as no Default exists,
to the payment of any amounts owing to the Borrower as a result of any
judgment of a court of competent jurisdiction obtained by the Borrower against
that Defaulting Lender as a result of that Defaulting Lender’s breach of its
obligations under this Agreement; and eighth, to that Defaulting Lender or as
otherwise directed by a court of competent jurisdiction; provided that if
(x) such payment is a payment of the principal amount of any Loans or L/C
Borrowings in respect of which that Defaulting Lender has not fully funded its
appropriate share and (y) such Loans or L/C Borrowings were made at a time when
the conditions set forth in Section 5.02 or Section 5.03, as
applicable, were satisfied or waived, such payment shall be applied solely to pay
the Loans of, and L/C Borrowings owed to, all non-Defaulting Lenders on a pro rata
basis prior to being applied to the payment of any Loans of, or L/C Borrowings
owed to, that Defaulting Lender. Any payments, prepayments or other



53









 






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 2.15(a)(ii)
shall be deemed paid to and redirected by that Defaulting Lender, and each Lender
irrevocably consents hereto.




     (iii) Certain Fees. That Defaulting Lender (A) shall not be entitled
to receive any Commitment Fee for any period during which that Lender is a
Defaulting Lender (and the Borrower shall not be required to pay any such fee that
otherwise would have been required to have been paid to that Defaulting Lender)
and (B) shall be limited in its right to receive Letter of Credit Fees as provided
in Section 2.03(h).




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



     (b) Defaulting Lender Cure. If the Borrower, the Administrative Agent, Swing
Line Lender and the L/C Issuer agree in writing in their sole discretion that a Defaulting
Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will
so notify the parties hereto, whereupon as of the effective date specified in such notice
and subject to any conditions set forth therein (which may include arrangements with
respect to any Cash Collateral), that Lender will, to the extent applicable, purchase that
portion of outstanding Loans of the other Lenders or take such other actions as the
Administrative Agent may determine to be necessary to cause the Loans and funded and
unfunded participations in Letters of Credit and Swing Line Loans to be held on a pro rata
basis by the Lenders in accordance with their Applicable Percentages (without giving effect
to Section 2.15(a)(iv)), whereupon that Lender will cease to be a Defaulting
Lender; provided that no adjustments will be made retroactively with respect to
fees accrued or payments made by or on behalf of the Borrower while that Lender was a
Defaulting Lender; and provided; further, that except to the extent
otherwise expressly agreed by the affected parties, no change hereunder from Defaulting
Lender to Lender will constitute a waiver or release of any claim of any party hereunder
arising from that Lender’s having been a Defaulting Lender.



ARTICLE III




TAXES, YIELD PROTECTION AND ILLEGALITY


3.01 Taxes.





(a) Payments Free of Taxes — Obligation to Withhold: Payments on Account of Taxes.




     (i) Any and all payments by or on account of any obligation of the Loan
Parties hereunder or under any other Loan Document shall to the extent permitted
by applicable Laws be made free and clear of and without reduction or withholding
for any Taxes. If, however, applicable Laws require any Loan Party or the
Administrative Agent to withhold or deduct any Tax, such Tax shall be withheld or
deducted in accordance with such Laws as determined by such




54












 






Loan Party or the Administrative Agent, as the case may be, upon the basis of the
information and documentation to be delivered pursuant to subsection (e) below.




     (ii) If the Loan Parties or the Administrative Agent shall be required by the Internal
Revenue Code to withhold or deduct any Taxes, including both United States Federal backup
withholding and withholding taxes, from any payment, then (A) the Administrative Agent
shall withhold or make such deductions as are determined by the Administrative Agent to be
required based upon the information and documentation it has received pursuant to
subsection (e) below, (B) the Administrative Agent shall timely pay the full amount
withheld or deducted to the relevant Governmental Authority in accordance with the Internal
Revenue Code, and (C) to the extent that the withholding or deduction is made on account of
Indemnified Taxes or Other Taxes, the sum payable by the Loan Parties shall be increased as
necessary so that after any required withholding or the making of all required deductions
(including deductions applicable to additional sums payable under this Section) the
Administrative Agent, any Lender or the L/C Issuer, as the case may be, receives an amount
equal to the sum it would have received had no such withholding or deduction been made.



     (b) Payment of Other Taxes by the Loan Parties. Without limiting the provisions of subsection
(a) above, the Loan Parties shall timely pay any Other Taxes to the relevant Governmental Authority
in accordance with applicable Laws.



     (c) Tax Indemnification.




     (i) Without limiting the provisions of subsection (a) or (b) above, the Loan Parties
shall, and do hereby indemnify the Administrative Agent, each Lender and the L/C Issuer,
and shall make payment in respect thereof within ten days after demand therefor, for the
full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this Section)
withheld or deducted by the Loan Parties or the Administrative Agent or paid by the
Administrative Agent, such Lender or the L/C Issuer, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto, whether or not
such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. The Loan Parties shall also, and do hereby, indemnify the
Administrative Agent, and shall make payment in respect thereof within ten days after
demand therefor, for any amount which a Lender or the L/C Issuer for any reason fails to
pay to the Administrative Agent as required by clause (ii) of this subsection; provided
that, for avoidance of doubt, any amounts paid by the Loan Parties to the Administrative
Agent pursuant to clause (i) of this Section shall be subject to the indemnification
obligations of such Lender or L/C Issuer pursuant to clause (ii) of this Section. A
certificate as to the amount of any such payment or liability delivered to the Borrower by
a Lender or the L/C Issuer (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender or the L/C Issuer, shall be
conclusive absent demonstrable error.




     (ii) Without limiting the provisions of subsection (a) or (b) above, each Lender and
the L/C Issuer shall, and does hereby, indemnify each Loan Party and the
Administrative Agent, and shall make payment in respect thereof within ten days after
demand therefor, against any and all Taxes and any and all related losses, claims,
liabilities, penalties, interest and expenses (including the fees, charges and
disbursements of any counsel for such Loan Party or the Administrative Agent) incurred by
or asserted against such Loan Party or the Administrative Agent by any Governmental
Authority as a result of the failure by such Lender or the L/C Issuer, as the case may be,
to deliver, or as a result of the inaccuracy, inadequacy or deficiency of, any
documentation required to be delivered by such Lender or the L/C Issuer, as the case may
be, to



55









 







such Loan Party or the Administrative Agent pursuant to subsection (e). Each Lender and the
L/C Issuer hereby authorizes the Administrative Agent to set off and apply any and all
amounts at any time owing to such Lender or the L/C Issuer, as the case may be, under this
Agreement or any other Loan Document against any amount due to the Administrative Agent
under this clause (ii). The agreements in this clause (ii) shall survive the resignation
and/or replacement of the Administrative Agent, any assignment of rights by, or the
replacement of, a Lender or the L/C Issuer, the termination of the Commitments and the
repayment, satisfaction or discharge of all other Obligations.



     (d) Evidence of Payments. Upon request by the Borrower or the Administrative Agent, as the
case may be, after any payment of Taxes by any Loan Party or by the Administrative Agent to a
Governmental Authority, as provided in this Section 3.01, the Borrower shall deliver (or cause the
applicable Loan Party to deliver) to the Administrative Agent or the Administrative Agent shall
deliver to the Borrower, as the case may be, the original or a certified copy of a receipt issued
by such Governmental Authority evidencing such payment, a copy of any return required by Law to
report such payment or other evidence of such payment reasonably satisfactory to the Borrower or
the Administrative Agent, as the case may be.



     (e) Status of Lenders: Tax Documentation.




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




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




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




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



56









 






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




     (II) executed originals of IRS Form W-8ECI,




     (III) executed originals of IRS Form W-8IMY and all required
supporting documentation,




     (IV) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Internal
Revenue Code, (x) a certificate to the effect that such Foreign Lender is
not (A) a “bank” within the meaning of section 881(c)(3)(A) of the
Internal Revenue Code, (B) a “10 percent shareholder” of the Borrower
within the meaning of section 881(c)(3)(B) of the Internal Revenue Code,
or (C) a “controlled foreign corporation” described in section
881(c)(3)(C) of the Internal Revenue Code and (y) executed originals of
IRS Form W-8BEN, or




     (V) executed originals of any other form prescribed by applicable
Laws as a basis for claiming exemption from or a reduction in United
States Federal withholding tax together with such supplementary
documentation as may be prescribed by applicable Laws to permit the
Borrower or the Administrative Agent to determine the withholding or
deduction required to be made.




     (iii) Each Lender shall promptly (A) notify the Borrower and the Administrative Agent
of any change in circumstances which would modify or render invalid any claimed exemption
or reduction, and (B) take such steps as shall not be materially disadvantageous to it, in
the reasonable judgment of such Lender, and as may be reasonably necessary (including the
redesignation of its Lending Office) to avoid any requirement of applicable Laws of any
jurisdiction that the Borrower or the Administrative Agent make any withholding or
deduction for taxes from amounts payable to such Lender.


3.02 Illegality.




     If any Lender determines that any Law has made it unlawful, or that any Governmental Authority
has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain
or fund Loans whose interest is determined by reference to the Eurodollar Rate, or to determine or
charge interest rates based upon the Eurodollar Rate, or any Governmental Authority has imposed
material restrictions on the authority of such Lender to purchase or sell, or to take deposits of,
Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower
through the Administrative Agent, (a) any obligation of such Lender to make or continue Eurodollar
Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended and (b) if
such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the
interest rate on which is determined by reference to the Eurodollar Rate component of the Base
Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such
illegality, be
determined by the Administrative Agent without reference to the Eurodollar Rate component of
the Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrower
that the circumstances giving rise to such determination no longer exist. Upon receipt of such
notice, (x) the Borrower shall, upon demand from such Lender (with a copy to the Administrative
Agent), prepay or, if applicable, convert all of such Lender’s Eurodollar Rate Loans to Base Rate
Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such
illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate



57









 




component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender
may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such
Lender may not lawfully continue to maintain such Eurodollar Rate Loans and (y) if such notice
asserts the illegality of such Lender determining or charging interest rates based upon the
Eurodollar Rate, the Administrative Agent shall during the period of such suspension compute the
Base Rate applicable to such Lender without reference to the Eurodollar Rate component thereof
until the Administrative Agent is advised in writing by such Lender that it is no longer illegal
for such Lender to determine or charge interest rates based upon the Eurodollar Rate. Upon any such
prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or
converted.



3.03 Inability to Determine Rates.




     If the Required Lenders determine that for any reason in connection with any request for a
Eurodollar Rate Loan or a conversion to or continuation thereof that (a) Dollar deposits are not
being offered to banks in the London interbank eurodollar market for the applicable amount and
Interest Period of such Eurodollar Rate Loan, (b) adequate and reasonable means do not exist for
determining the Eurodollar Base Rate for any requested Interest Period with respect to a proposed
Eurodollar Rate Loan, or (c) the Eurodollar Base Rate for any requested Interest Period with
respect to a proposed Eurodollar Rate Loan or in connection with an existing or proposed Base Rate
Loan or in connection with a Eurodollar Rate Loan does not adequately and fairly reflect the cost
to such Lenders of funding such Loan, the Administrative Agent will promptly notify the Borrower
and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain Eurodollar Rate
Loans shall be suspended and (y) in the event of a determination described in the preceding
sentence with respect to the Eurodollar Rate component of the Base Rate, the utilization of the
Eurodollar Rate component in determining the Base Rate shall be suspended, in each case until the
Administrative Agent (upon the instruction of the Required Lenders) revokes such notice. Upon
receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion
to or continuation of Eurodollar Rate Loans or, failing that, will be deemed to have converted such
request into a request for a Borrowing of Base Rate Loans in the amount specified therein.


3.04 Increased Costs.




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




     (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender (except any reserve requirement
reflected in the Eurodollar Rate) or the L/C Issuer;




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




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



58









 






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



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



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



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


3.05 Compensation for Losses.




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




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



59









 






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




     (c) any assignment of a Eurodollar Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Borrower pursuant to Section
11.13;


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




     For purposes of calculating amounts payable by the Borrower to the Lenders under this Section
3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the
Eurodollar Base Rate used in determining the Eurodollar Rate for such Loan by a matching deposit or
other borrowing in the London interbank eurodollar market for a comparable amount and for a
comparable period, whether or not such Eurodollar Rate Loan was in fact so funded.


3.06 Mitigation of Obligations; Replacement of Lenders.




     (a) Designation of a Different Lending Office. If any Lender requests compensation under
Section 3.04, or the Borrower is required to pay any additional amount to any Lender, the L/C
Issuer, or any Governmental Authority for the account of any Lender or the L/C Issuer pursuant to
Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then such Lender or the L/C
Issuer, as applicable, shall use reasonable efforts to designate a different Lending Office for
funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another
of its offices, branches or affiliates, if, in the judgment of such Lender or the L/C Issuer, as
applicable, such designation or assignment (i) would eliminate or reduce amounts payable pursuant
to Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need for the notice
pursuant to Section 3.02, as applicable, and (ii) in each case, would not subject such Lender or
the L/C Issuer, as the case may be, to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender or the L/C Issuer, as the case may be. The Borrower hereby agrees to
pay all reasonable costs and expenses incurred by any Lender or the L/C Issuer in connection with
any such designation or assignment.



     (b) Replacement of Lenders. If any Lender requests compensation under Section 3.04, or if the
Borrower is required to pay any additional amount to any Lender or any Governmental Authority for
the account of any Lender pursuant to Section 3.01, the Borrower may replace such Lender in
accordance with Section 11.13.


3.07 Survival.




     All of the Loan Parties’ obligations under this Article III shall survive termination of the
Aggregate Revolving Commitments, repayment of all other Obligations hereunder and resignation of
the Administrative Agent.





60









 




ARTICLE IV




GUARANTY


4.01 The Guaranty.




     Each of the Guarantors hereby jointly and severally guarantees to the Administrative Agent,
each Lender, each Affiliate of a Lender that enters into a Treasury Management Agreement with the
Parent or any Subsidiary, each Secured Swap Provider that enters into a Swap Contract with the
Parent or any Subsidiary and each other holder of the Obligations as hereinafter provided, as
primary obligor and not as surety, the prompt payment of the Obligations in full when due (whether
at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise) strictly in accordance with the terms thereof. The Guarantors
hereby further agree that if any of the Obligations is not paid in full when due (whether at stated
maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or
otherwise), the Guarantors will, jointly and severally, promptly pay the same, without any demand
or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of
the Obligations, the same will be promptly paid in full when due (whether at extended maturity, as
a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) in
accordance with the terms of such extension or renewal.



     Notwithstanding any provision to the contrary contained herein or in any other of the Loan
Documents or the other documents relating to the Obligations, the obligations of each Guarantor
under this Agreement and the other Loan Documents shall not exceed an aggregate amount equal to the
largest amount that would not render such obligations subject to avoidance under applicable Debtor
Relief Laws.


4.02 Obligations Unconditional.




     The obligations of the Guarantors under Section 4.01 are joint and several, absolute and
unconditional, irrespective of the value, genuineness, validity, regularity or enforceability of
any of the Loan Documents or other documents relating to the Obligations, or any substitution,
release, impairment or exchange of any other guarantee of or security for any of the Obligations,
and, to the fullest extent permitted by applicable law, irrespective of any other circumstance
whatsoever which might otherwise constitute a legal or equitable discharge or defense of a surety
or guarantor (other than Satisfaction in Full), it being the intent of this Section 4.02 that the
obligations of the Guarantors hereunder shall be absolute and unconditional under any and all
circumstances. Each Guarantor agrees that such Guarantor shall have no right of subrogation,
indemnity, reimbursement or contribution against the Borrower or any other Guarantor for amounts
paid under this Article IV until Satisfaction in Full. Without limiting the generality of the
foregoing, it is agreed that, to the fullest extent permitted by Law, the occurrence of any one or
more of the following shall not alter or impair the liability of any Guarantor hereunder, which
shall remain absolute and unconditional as described above:




     (a) at any time or from time to time, without notice to any Guarantor, the time for
any performance of or compliance with any of the Obligations shall be extended, or such
performance or compliance shall be waived;




     (b) any of the acts mentioned in any of the provisions of any of the Loan Documents or
any other document relating to the Obligations shall be done or omitted;




     (c) the maturity of any of the Obligations shall be accelerated, or any of the
Obligations shall be modified, supplemented or amended in any respect, or any right under
any of the Loan Documents or any other document relating to the Obligations shall be waived
or any other guarantee of any of the Obligations or any security therefor shall be
released, impaired or exchanged in whole or in part or otherwise dealt with;



61









 






     (d) any Lien granted to, or in favor of, the Administrative Agent or any other holder
of the Obligations as security for any of the Obligations shall fail to attach or be
perfected; or




     (e) any of the Obligations shall be determined to be void or voidable (including for
the benefit of any creditor of any Guarantor) or shall be subordinated to the claims of any
Person (including any creditor of any Guarantor).



     With respect to its obligations hereunder, each Guarantor hereby expressly waives to the
extent permitted by Law diligence, presentment, demand of payment, protest and all notices
whatsoever and any requirement that the Administrative Agent or any other holder of the Obligations
exhaust any right, power or remedy or proceed against any Person under any of the Loan Documents or
any other document relating to the Obligations or against any other Person under any other
guarantee of, or security for, any of the Obligations.


4.03 Reinstatement.




     The obligations of each Guarantor under this Article IV shall be automatically reinstated if
and to the extent that for any reason any payment by or on behalf of any Person in respect of the
Obligations is rescinded or must be otherwise restored by any holder of any of the Obligations,
whether as a result of any Debtor Relief Law or otherwise, and each Guarantor agrees that it will
indemnify the Administrative Agent and each other holder of the Obligations in accordance with
Section 11.04 for all reasonable costs and expenses (including the fees, charges and disbursements
of counsel) incurred by the Administrative Agent or such holder of the Obligations in connection
with such rescission or restoration, including any such costs and expenses incurred in defending
against any claim alleging that such payment constituted a preference, fraudulent transfer or
similar payment under any Debtor Relief Law.


4.04 Certain Additional Waivers.




     Each Guarantor agrees that such Guarantor shall have no right of recourse to security for the
Obligations, except through the exercise of rights of subrogation pursuant to Section 4.02 and
through the exercise of rights of contribution pursuant to Section 4.06.


4.05 Remedies.




     The Guarantors agree that, to the fullest extent permitted by Law, as between the Guarantors,
on the one hand, and the Administrative Agent and the other holders of the Obligations, on the
other hand, the Obligations may be declared to be forthwith due and
payable as specified in Section 9.02 (and shall be deemed to have become automatically due and payable in the circumstances
specified in Section 9.02) for purposes of Section 4.01 notwithstanding any stay, injunction or
other prohibition preventing such declaration (or preventing the Obligations from becoming
automatically due and payable) as against any other Person and that, in the event of such
declaration (or the Obligations being deemed to have become automatically due and payable), the
Obligations (whether or not due and payable by any other Person) shall forthwith become due and
payable by the Guarantors for purposes of Section 4.01. The Guarantors acknowledge and agree that
their obligations hereunder are secured in accordance with the terms of the Collateral Documents
and that the holders of the Obligations may exercise their remedies thereunder in accordance with
the terms thereof.


4.06 Rights of Contribution.




     The Guarantors agree among themselves that, in connection with payments made hereunder, each
Guarantor shall have contribution rights against the other Guarantors as permitted under applicable
law.



62









 







Such contribution rights shall be subordinate and subject in right of payment to the obligations of
such Guarantors under the Loan Documents and no Guarantor shall exercise such rights of
contribution until Satisfaction in Full.


4.07 Guarantee of Payment; Continuing Guarantee.




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



ARTICLE V




CONDITIONS PRECEDENT TO CREDIT EXTENSIONS


5.01 Conditions of Effectiveness.




     This Agreement shall be effective upon satisfaction of the following conditions precedent in
each case in a manner reasonably satisfactory to the Administrative Agent and each Lender:




     (a) Loan Documents. Receipt by the Administrative Agent of executed counterparts of
this Agreement and the other Loan Documents, each properly executed by a Responsible
Officer of the signing Loan Party and, in the case of this Agreement, by each Lender.




     (b) Evidence of Insurance. Receipt by the Administrative Agent of copies of insurance
policies or certificates of insurance of the Loan Parties evidencing liability and casualty
insurance meeting the requirements set forth in the Loan Documents.




     (c) Landlord Lien Waivers; Account Control Agreements.




     (A) The Loan Parties shall have used commercially reasonable efforts to
obtain landlord waivers in form and substance reasonably satisfactory to the
Administrative Agent on each real property leased by any Loan Party if (x) such
leased real property is a Loan Party’s headquarters location or (y) personal
property Collateral having a value in excess of $250,000 is located on such leased
real property; and




     (B) The Loan Parties shall have used commercially reasonable efforts to
obtain account control agreements in form and substance reasonably satisfactory to
the Administrative Agent on each deposit account and securities account owned by
any Loan Party other than Excluded Accounts and deposit accounts maintained with
the Administrative Agent.




     (d) Personal Property Collateral.




     (i) Receipt by the Administrative Agent of the searches of Uniform Commerical
Code filings in the jurisdiction of formation of each
Loan Party and each other jurisdiction deemed appropriate by the
Administrative Agent;




     (ii) Receipt by the Administrative Agent of Uniform Commercial Code financing
statements for each jurisdiction as is necessary to perfect the Administrative
Agent’s security interest in the Collateral;



63









 






     (iii) Receipt by the Administrative Agent of all certificates evidencing any
certificated Equity Interests pledged to the Administrative Agent pursuant to the Security
Agreement, together with duly executed in blank, undated stock powers attached thereto
(unless, with respect to the pledged Equity Interests of any Foreign Subsidiary, such stock
powers are deemed unnecessary by the Administrative Agent in its discretion under the law
of the jurisdiction of organization of such Person);




     (iv) Receipt by the Administrative Agent of searches of ownership of, and Liens on,
United States registered intellectual property of each Loan Party in the appropriate
governmental offices; and




     (v) Receipt by the Administrative Agent of duly executed notices of grant of security
interest in the form required by the Security Agreement as are necessary to perfect the
Administrative Agent’s security interest in the United States registered intellectual
property of the Loan Parties.




     (e) Opinions of Counsel. Receipt by the Administrative Agent of opinions of legal counsel to
the Loan Parties, local counsel in each jurisdiction where real property Collateral is located and
any other local counsel reasonably required by the Administrative Agent, in each case, addressed to
the Administrative Agent and each Lender, dated as of the Closing Date.




     (f) Preferred Equity Interests. The Administrative Agent shall be reasonably satisfied with
the terms of any preferred Equity Interests of the Parent (including any preferred Equity Interests
issued in connection with the Equity Contribution). Without limiting the generality of the
foregoing, no preferred Equity Interests of the Parent shall require any cash payments prior to the
date that is 181 days after the Maturity Date other than cash payments occurring based on
contingent events (provided that the terms of such preferred Equity Interests provide that the
Obligations shall have been terminated and paid in full prior to any such cash payment being due).




     (g) Ratio of Consolidated Funded Indebtedness to Consolidated EBITDA. The Administrative Agent
shall have received reasonably satisfactory evidence (including detailed calculations)
demonstrating that after giving effect to the Transaction on a Pro Forma Basis the ratio of (i)
Consolidated Funded Indebtedness as of the Closing Date to (ii) Consolidated EBITDA for the period
of 12 consecutive months ended December 31, 2010 is less than 3.60:1.0.




     (h) Closing Date Material Adverse Effect. A Closing Date Material Adverse Effect shall not
have occurred since February 17, 2011.




     (i) No Litigation. There shall not be (i) any order or injunction or pending litigation which
would reasonably be expected to have a Closing Date Material Adverse Effect or (ii) any pending
litigation seeking to enjoin or prevent the transactions contemplated hereby.




     (j) Organization Documents, Resolutions, Etc. Receipt by the Administrative Agent of the
following:




     (i) copies of the Organization Documents of each Loan Party certified to be true and
complete as of a recent date by the appropriate Governmental Authority of the state or
other jurisdiction of its incorporation or organization, where applicable, and certified by
a secretary or assistant secretary of such Loan Party to be true and correct as of the
Closing Date;



64









 






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




     (iii) such documents and certifications as the Administrative Agent may reasonably
require to evidence that each Loan Party is duly organized or formed, and is validly
existing, in good standing and qualified to engage in business in its state of organization
or formation.



     (k) Refinance of Existing Indebtedness. The Parent and its Subsidiaries shall have repaid all
outstanding Indebtedness (other than Permitted Indebtedness) (the “Existing Indebtedness”) and
terminated all commitments to extend credit with respect to the Existing Indebtedness, and all
Liens securing the Existing Indebtedness shall have been released.



     (l) Solvency Certificate. The Administrative Agent shall have received certification from the
chief or senior financial officer of the Borrower as to the Solvency after giving effect to the
Transaction of (i) the Borrower and (ii) the Loan Parties taken as a whole on a consolidated basis.



     (m) Management Agreement; Subordination of Management Fees. The Management Agreement shall be
in form and substance reasonably acceptable to the Administrative Agent. The payment of the
Management Fee shall be subordinated to the Obligations in a manner and to an extent reasonably
acceptable to the Administrative Agent.



     (n) Equity Contribution. The Administrative Agent shall have received satisfactory evidence
that (A) the Parent for the further credit to the Borrower shall have received at least $45 million
in Net Cash Proceeds from the issuance of Equity Interests to the Sponsor, its Controlled
Investment Affiliates and certain members of senior management of the Parent on the Closing Date
(the “Equity Contribution”) and (B) the Equity Contribution together with the Loans to be made on
the Closing Date (subject to Section 5.01(q) (Availability under the Aggregate Revolving
Commitments)) shall be in an aggregate amount sufficient to consummate the Merger and pay all fees,
costs and expenses incurred in connection with the Transaction.



     (o) Merger.




     (i) The Merger Documents shall not have been altered, amended, supplemented or
otherwise changed in a manner materially adverse to the Lenders or the Loan Parties without
the consent of the Administrative Agent (such consent not to be unreasonably withheld).




     (ii) The Merger shall have been consummated substantially in accordance with the
Merger Documents and in compliance in all material respects with applicable Law and the
merger certificate shall have been filed and become effective.




     (iii) All governmental (including Hart-Scott-Rodino clearance and other necessary
governmental consents), shareholder and material third party approvals necessary in
connection with the Merger which shall have been obtained; all such consents and approvals
shall be in full force and effect; and all applicable waiting



65









 






periods, if any, shall have expired without any action being taken or threatened
by any competent authority that could restrain, prevent or otherwise impose any
material adverse condition on the Merger.




     (p) Availability under Aggregate Revolving Commitments. After giving effect to the
Transation the unused amount of the Aggregate Revolving Commitments shall be at least
$20,000,000.




     (q) Closing Certificate. Receipt by the Administrative Agent of a certificate signed
by a Responsible Officer of the Borrower as of the Closing Date certifying that (i) after
giving effect to the Transaction the conditions specified in Sections 5.01(g), 5.01(h),
5.01(i), 5.01(o), 5.01(p), 5.01(r), 5.02(a), 5.02(b) and 5.02(c) have been satisfied as of
the Closing Date.




     (r) Certified Copies. The Administrative Agent shall have received copies, certified
by a Responsible Officer of the Borrower as true and complete as of the Closing Date, of
the Merger Documents, the Management Agreement and all documents, agreements and
instruments relating to the Equity Contribution.




     (s) Fees. Receipt by the Administrative Agent, the Arranger and the Lenders of any
fees required to be paid on or before the Closing Date.




     (t) Attorney Costs. Unless waived by the Administrative Agent, the Borrower shall have
paid in accordance with Section 11.04 all reasonable and documented fees, charges and
disbursements of one primary outside counsel to the Administrative Agent and of special or
local counsel to the Administrative Agent to the extent such special or local counsel is
reasonably necessary (directly to such counsel if requested by the Administrative Agent) to
the extent invoiced prior to or on the Closing Date, plus such additional amounts of such
fees, charges and disbursements as shall constitute its reasonable estimate of such fees,
charges and disbursements incurred or to be incurred by it through the closing proceedings
(provided that such estimate shall not thereafter preclude a final settling of accounts
between the Borrowers and the Administrative Agent).



     Without limiting the generality of the provisions of the last paragraph of Section 10.03, for
purposes of determining compliance with the conditions specified in this Section 5.01, each Lender
that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its objection thereto.


5.02 Conditions to all Credit Extensions on the Closing Date.




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




     (a)
The representations and warranties of each Loan Party contained in Sections 6.01(a) (as to valid existence), 6.01(b)(ii), 6.02 (other than 6.02(b)(i)), 6.03,
6.04, 6.14, 6.18, 6.19 and 6.24 shall be true and correct in all material respects on and as of
the date of the Closing Date.



66









 






     (b) The representations and warranties made by YFCS and its Subsidiaries in the Merger
Agreement that are material to the interests of the Lenders shall be true and correct in
all material respects on and as of the date of the Closing Date but only to the extent the
Borrower (or any affiliate of the Borrower) has the right (determined without regard to any
notice requirement) to terminate its obligations (or to refuse to consummate the Merger)
under the Merger Agreement as a result of a breach of such representations.




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




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



     Each Request for Credit Extension (other than a Loan Notice requesting only a conversion of
Loans to the other Type or a continuation of Eurodollar Rate Loans) submitted by the Borrower shall
be deemed to be a representation and warranty that the conditions specified in Sections 5.02(a),
(b) and (c) have been satisfied on and as of the date of the applicable Credit Extension.


5.03 Conditions to all Credit Extensions after the Closing Date.




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




     (a) The representations and warranties of each Loan Party contained in Article VI or
any other Loan Document, or which are contained in any document furnished at any time under
or in connection herewith or therewith, shall be true and correct in all material respects
on and as of the date of such Credit Extension, except to the extent that such
representations and warranties specifically refer to an earlier date, in which case they
shall be true and correct in all material respects as of such earlier date.




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




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



     Each Request for Credit Extension (other than a Loan Notice requesting only a conversion of
Loans to the other Type or a continuation of Eurodollar Rate Loans) submitted by the Borrower shall
be deemed to be a representation and warranty that the conditions specified in Sections 5.03(a) and
(b) have been satisfied on and as of the date of the applicable Credit Extension.



ARTICLE VI




REPRESENTATIONS AND WARRANTIES



     The Loan Parties represent and warrant to the Administrative Agent and the Lenders that on the
Closing Date, on each date that is required pursuant to Article V and on each date that is required
by any



67









 







other provision of this Agreement or any other Loan Document:


6.01 Existence, Qualification and Power.




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


6.02 Authorization; No Contravention.




     The execution, delivery and performance by each Loan Party of each Loan Document to which such
Person is party have been duly authorized by all necessary corporate or other organizational
action, and do not (a) contravene the terms of any of such Person’s Organization Documents; (b)
conflict with or result in any material breach or contravention of, or the creation of any Lien
under, or require any payment to be made under (i) any Contractual Obligation (other than the Loan
Documents) to which such Person is a party or affecting such Person or the properties of such
Person or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental
Authority or any arbitral award to which such Person or its property is subject; or (c) violate any
Law.


6.03 Governmental Authorization; Other Consents.




     No approval, consent, exemption, authorization, or other action by, or notice to, or filing
with, any Governmental Authority or any other Person is necessary or required in connection with
the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement
or any other Loan Document other than (i) those that have already been obtained and are in full
force and effect and (ii) filings to perfect the Liens created by the Collateral Documents.


6.04 Binding Effect.




     Each Loan Document has been duly executed and delivered by each Loan Party that is party
thereto. Each Loan Document constitutes a legal, valid and binding obligation of each Loan Party
party thereto, enforceable against such Loan Party that is party thereto in accordance with its
terms; except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally
at law or by equitable principles.


6.05 Financial Statements; No Material Adverse Effect.




     (a) The Acadia Audited Financial Statements and the YFCS Audited Financial Statements (i) were
prepared in accordance with GAAP consistently applied throughout the period covered thereby, except
as otherwise expressly noted therein; (ii) fairly present in all material respects the financial
condition of the Persons covered thereby as of the date thereof and their results of operations for
the period covered thereby in accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein.



68









 





     (b) The Acadia Interim Financial Statements and the YFCS Interim Financial Statements (i) were
prepared in accordance with GAAP consistently applied throughout the period covered thereby, except
as otherwise expressly noted therein; and (ii) fairly present in all material respects the
financial condition of the Persons covered thereby as of the date thereof and their results of
operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the
absence of footnotes and to normal year-end audit adjustments.



     (c) From the date of the Acadia Audited Financial Statements, in the case of the Persons
covered thereby, and the YFCS Audited Financial Statements, in the case of the Persons covered
thereby, to and including the Closing Date, there has been no Disposition or any Recovery Event of
any material part of the business or property of the Parent and its Subsidiaries (including YFCS
and its Subsidiaries), taken as a whole, and no purchase or other acquisition by any of them of any
business or property (including any Equity Interests of any other Person) material in relation to
the consolidated financial condition of the Parent and its Subsidiaries (including YFCS and its
Subsidiaries), taken as a whole, in each case, which is not reflected in the Acadia Interim
Financial Statements or the YFCS Interim Financial Statements, as applicable, and has not otherwise
been disclosed in writing to the Lenders on or prior to the Closing Date.



     (d) The financial statements delivered pursuant to Section 7.01(a) and (b) have been prepared
in accordance with GAAP (except as may otherwise be permitted under Section 7.01(a) and (b)) and
present fairly in all material respects (on the basis disclosed in the footnotes to such financial
statements) the consolidated and consolidating financial condition, results of operations and cash
flows of the Parent and its Subsidiaries as of the dates thereof and for the periods covered
thereby.



     (e) Since December 31, 2009, there has been no event or circumstance that has had or could
reasonably be expected to have a Material Adverse Effect.


6.06 Litigation.




     There are no actions, suits, investigations, criminal prosecutions, civil investigative
demands, impositions of criminal or civil penalties, proceedings, claims or disputes pending or, to
the knowledge of the Responsible Officers of the Loan Parties after due and diligent investigation,
threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority,
against the Parent or any Subsidiary or against any of their properties or revenues that (a)
purport to affect or pertain to this Agreement or any other Loan Document or any of the
transactions contemplated hereby or (b) could reasonably be expected to have a Material Adverse
Effect.


6.07 No Default.




     (a) Neither the Parent nor any Subsidiary is in default under or with respect to any
Contractual Obligation that could reasonably be expected to have a Material Adverse Effect.



     (b) No Default has occurred and is continuing.


6.08 Ownership of Property; Liens.




     Each of the Parent and its Subsidiaries has good record and marketable title in fee simple to,
or valid leasehold interests in, all real property necessary or used in the ordinary conduct of its
business, except for such defects in title as could not reasonably be expected to have a Material
Adverse Effect. The property of the Parent and its Subsidiaries is not subject to any Liens other
than Permitted Liens.



69









 




6.09 Environmental Compliance.




     Except as could not reasonably be expected to have a Material Adverse Effect:




     (a) Each of the facilities and real properties owned, leased or operated by the Parent
or any Subsidiary (the “Facilities”) and all operations at the Facilities are in compliance
with all applicable Environmental Laws, and there is no violation of any Environmental Law
with respect to the Facilities or the businesses operated by the Parent and its
Subsidiaries at such time (the “Businesses”), and there are no conditions relating to the
Facilities or the Businesses that would reasonably be expected to give rise to liability
under any applicable Environmental Laws.




     (b) None of the Facilities contains, and, in the case of owned property, has
previously contained, and, in the case of leased property, to the knowledge of a
Responsible Officer, has previously contained, any Hazardous Materials at, on or under the
Facilities in amounts or concentrations that constitute or constituted a violation of, or
could give rise to liability under, Environmental Laws.




     (c) Neither the Parent nor any Subsidiary has received any written or verbal notice
of, or inquiry from any Governmental Authority regarding, any violation, alleged violation,
non-compliance, liability or potential liability regarding environmental matters or
compliance with Environmental Laws with regard to any of the Facilities or the Businesses,
nor does any Responsible Officer of any Loan Party have knowledge or reason to believe that
any such notice will be received or is being threatened.




     (d) Hazardous Materials have not been transported or disposed of from the Facilities,
or generated, treated, stored or disposed of at, on or under any of the Facilities or any
other location, in each case by or on behalf of the Parent or any Subsidiary in violation
of, or in a manner that would be reasonably likely to give rise to liability under, any
applicable Environmental Law.




     (e) No judicial proceeding or governmental or administrative action is pending or, to
the knowledge of the Responsible Officers of the Loan Parties, threatened, under any
Environmental Law to which the Parent or any Subsidiary is or will be named as a party, nor
are there any consent decrees or other decrees, consent orders, administrative orders or
other orders, or other administrative or judicial requirements outstanding under any
Environmental Law with respect to the Parent, any Subsidiary, the Facilities or the
Businesses.




     (f) There has been no release or threat of release of Hazardous Materials at or from
the Facilities, or arising from or related to the operations (including disposal) of the
Parent or any Subsidiary in connection with the Facilities or otherwise in connection with
the Businesses, in violation of or in amounts or in a manner that could give rise to
liability under Environmental Laws.


6.10 Insurance.




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



70









 





     (b) All real property that constitutes Collateral and that is a Flood Hazard Property is
covered by flood insurance with financially sound and reputable insurance companies not Affiliates
of the Parent, in such amounts and with such deductibles as the Administrative Agent may reasonably
request upon at least thirty (30) days prior written notice to the Parent.


6.11 Taxes.




     The Parent and its Subsidiaries have filed all federal and state income and other material tax
returns and reports required to be filed, and have paid all federal, state and other material
taxes, assessments, fees and other governmental charges levied or imposed upon them or their
properties, income or assets otherwise due and payable, except those which are being contested in
good faith by appropriate proceedings and for which reserves have been provided in accordance with
GAAP. There is no proposed tax assessment against the Parent or any Subsidiary that would, if made,
have a Material Adverse Effect. Neither the Parent nor any Subsidiary is party to any tax sharing
agreement.


6.12 ERISA Compliance.




     (a) Except as would not reasonably be expected to result in a Material Adverse Effect, (i)
each Plan is in compliance in all respects with the applicable provisions of ERISA, the Internal
Revenue Code and other Federal or state laws and (ii) each Pension Plan that is intended to be a
qualified plan under Section 401(a) of the Internal Revenue Code has received a favorable
determination letter from the IRS, or an application for such a letter is currently being processed
by the IRS or such Plan is in the form of a prototype document which is the subject of a favorable
opinion letter, and to the knowledge of the Responsible Officers of the Loan Parties, nothing has
occurred that would reasonably be expected to prevent or cause the loss of such tax-qualified
status.



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



     (c) (i) No ERISA Event has occurred, and neither any Loan Party nor any ERISA Affiliate is
aware of any fact, event or circumstance that would reasonably be expected to constitute or result
in an ERISA Event with respect to any Pension Plan; (ii) each Loan Party and each ERISA Affiliate
has met all applicable requirements under the Pension Funding Rules in respect of each Pension
Plan, and no waiver of the minimum funding standards under the Pension Funding Rules has been
applied for or obtained except where such waiver would not reasonably be expected to result in a
Material Adverse Effect; (iii) neither any Loan Party nor any ERISA Affiliate has incurred any
material liability to the PBGC other than for the payment of premiums, and there are no premium
payments which have become due that remain unpaid; (iv) neither any Loan Party nor any ERISA
Affiliate has engaged in a transaction that would be subject to Section 4069 or Section 4212(c) of
ERISA; and (v) no Pension Plan has been terminated by the plan administrator thereof nor by the
PBGC, and to the knowledge of the Responsible Officers of the Loan Parties, no event or
circumstance has occurred or exists that could reasonably be expected to cause the PBGC to
institute proceedings under Title IV of ERISA to terminate any Pension Plan.


6.13 Subsidiaries.




     Set forth on Schedule 6.13 is a complete and accurate list as of the Closing Date of each
Subsidiary of the Parent, together with (a) jurisdiction of incorporation or organization, (b)
number of



71









 




shares of each class of Equity Interests outstanding, and (c) number and percentage of outstanding
shares of each class owned (directly or indirectly) by the Parent or any Subsidiary. The
outstanding Equity Interests of each Subsidiary are validly issued, fully paid and, if a
corporation, non-assessable.



6.14 Margin Regulations; Investment Company Act.




     (a) The Borrower is not engaged and will not engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying
margin stock. Following the application of the proceeds of each Borrowing or drawing under each
Letter of Credit, not more than 25% of the value of the assets (either of the Borrower only or of
the Parent and its Subsidiaries on a consolidated basis) subject to the provisions of Section 8.01
or Section 8.05 or subject to any restriction contained in any agreement or instrument between the
Borrower and any Lender or any Affiliate of any Lender relating to Indebtedness and within the
scope of Section 9.01(e) will be margin stock.



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


6.15 Disclosure.




     Each Loan Party has disclosed to the Administrative Agent and the Lenders all agreements,
instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject,
and all other matters known to it, that could reasonably be expected to result in a Material
Adverse Effect. No report, financial statement, certificate or other written factual information
furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender in connection
with the transactions contemplated hereby and the negotiation of this Agreement or delivered
hereunder or under any other Loan Document (in each case, as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits to state any material
fact necessary to make the statements therein, in the light of the circumstances under and the time
at which they were made, not materially misleading; provided that, with respect to projected
financial information and other forward looking information, the Loan Parties represent only that
such information was prepared in good faith based upon assumptions believed by the Responsible
Officers of the
Loan Parties to be reasonable at the time (it being understood that projected financial
information and other forward looking information is subject to significant uncertainties and
contingencies, which may be beyond the Loan Parties’ control, no representation is made by the Loan
Parties that such projections or other forward looking information will be realized, the actual
results may differ from the projetions or other forward looking information and such differences
may be material).


6.16 Compliance with Laws.




     Each of the Parent and its Subsidiaries and, to the knowledge of the Responsible Officers of
any Loan Party, each Contract Provider is in compliance with all Laws (including, without
limitation, Medicare Regulations, Medicaid Regulations, HIPAA, HITECH Act, 42 U.S.C. Section
1320a-7b and 42 U.S.C. Section 1395nn) except in such instances in which (x) such Law is being
contested in good faith by appropriate proceedings diligently conducted or (y) the failure to
comply with such Law would not reasonably be expected to have a Material Adverse Effect. Without
limiting the generality of the foregoing:




     (a) none of the Parent, any Subsidiary and, to the knowledge of the Responsible
Officers of any Loan Party, any Contract Provider or any individual employed by the Parent
or



72









 







any Subsidiary would reasonably be expected to have criminal culpability or to be excluded
from participation in any Medical Reimbursement Program for corporate or individual actions
or failures to act known to the Responsible Officers of any Loan Party where such
culpability or exclusion has resulted or would reasonably be expected to result in a
Material Adverse Effect;




     (b) no officer or other member of management of the Parent or any Subsidiary who may
reasonably be expected to have individual culpability for matters under investigation by
the OIG or other Governmental Authority continues to be employed by the Parent or any
Subsidiary unless such officer or other member of management has been either suspended or
removed from positions of responsibility related to those activities under challenge by the
OIG or other Governmental Authority promptly after discovery of such actual or potential
culpability;




     (c) current coding and billing policies, arrangements, protocols and instructions of
the Parent and each Subsidiary comply with requirements of Payors and are administered by
properly trained personnel, except where any such failure to comply could not reasonably be
expected to result in a Material Adverse Effect; and




     (d) current medical director compensation arrangements of the Parent and each
Subsidiary comply with all Laws (including state and federal anti-kickback, fraud and
abuse, and self-referral laws, 42 U.S.C. Section 1320a-7b and 42 U.S.C. Section 1395nn) and
all regulations promulgated under such Laws, except where any such failure to comply could
not reasonably be expected to result in a Material Adverse Effect.


6.17 Intellectual Property; Licenses, Etc.




     The Parent and its Subsidiaries own, or possess the legal right to use, all of the trademarks,
service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other
intellectual property rights (collectively, “IP Rights”) that are necessary for the operation of
their respective businesses. Set forth on Schedule 6.17 is a list of (i) all IP Rights registered
or pending registration with the United States Copyright Office or the United States Patent and
Trademark Office that as of the Closing Date a Loan Party owns and (ii) all licenses of IP Rights
registered with the United States Copyright Office or the United States Patent and Trademark Office
as of the Closing Date. Except for such claims and infringements that could not reasonably be
expected to have a Material Adverse Effect, no claim has been asserted and is pending by any Person
challenging or questioning the use of any IP Rights or the validity or effectiveness of any IP
Rights, nor does any Responsible Officer of any Loan Party know of any such claim, and, to the
knowledge of the Responsible Officers of the Loan Parties, the use of any IP Rights by the Parent
or any Subsidiary, the granting of a right or a license in respect of any IP Rights from the Parent
or any Subsidiary or any slogan or other advertising device, product, process, method, substance,
part or other material now employed, or now contemplated to be employed, by the Parent or any
Subsidiary does not infringe on any rights of any other Person. As of the Closing Date, none of the
IP Rights owned by any Loan Party is subject to any licensing agreement or similar arrangement
except as set forth on Schedule 6.17.


6.18 Solvency.




     (a) The Borrower is Solvent.



     (b) The Loan Parties taken as a whole on a consolidated basis are Solvent.



73









 




6.19 Perfection of Security Interests in the Collateral.




     The Collateral Documents create valid security interests in, and Liens on, the Collateral
purported to be covered thereby, which security interests and Liens to the extent all necessary
action has been timely and properly taken by the Administrative Agent as contemplated by such
Collateral Documents are or will be perfected security interests and Liens, prior to all other
Liens other than Permitted Liens.


6.20 Business Locations; Taxpayer Identification Number.




     Set forth on Schedule 6.20-1 is a list of all real property located in the United States that
is owned or leased by any Loan Party as of the Closing Date (identifying whether such real property
is owned or leased and which Loan Party owns or leases such real property). Set forth on Schedule
6.20-2 is the chief executive office, U.S. tax payer identification number and organizational
identification number of each Loan Party as of the Closing Date. The exact legal name and state of
organization of each Loan Party as of the Closing Date is as set forth on the signature pages
hereto. Except as set forth on Schedule 6.20-3, no Loan Party has during the five years preceding
the Closing Date (i) changed its legal name, (ii) changed its state of formation, or (iii) been
party to a merger, consolidation or other change in structure.


6.21 Labor Matters.




     (a) There are no collective bargaining agreements or Multiemployer Plans covering the
employees of the Parent or any Subsidiary as of the Closing Date.



     (b) Neither the Parent nor any Subsidiary has suffered any strikes, walkouts, work stoppages
or other material labor difficulty in the five years preceding the Closing Date.


6.22 Reimbursement from Payors.




     The Receivables of the Parent and each Subsidiary have been, and will continue to be, adjusted
to reflect the requirements of all Laws and reimbursement policies (both those most recently
published in writing as well as those not in writing that have been verbally communicated) of any
applicable Payor, except where the failure to comply would not, individually or in the aggregate,
be reasonably likely to result in a Material Adverse Effect. Without limiting the generality of the
foregoing, Receivables of the the Parent and each Subsidiary relating to any Payor not exceed
amounts the Parent or any Subsidiary is entitled to receive under any capitation arrangement, fee
schedule, discount formula, cost-based reimbursement or other adjustment or limitation to its usual
charges, in each case to the extent it would not reasonably be expected to have in a Material
Adverse Effect.


6.23 Licensing and Accreditation.




     Except to the extent it would not reasonably be expected to have a Material Adverse Effect,
each of the Parent and its Subsidiaries and, to the knowledge of the Responsible Officers of any
Loan Party, each Contract Provider has, to the extent applicable: (a) obtained (or been duly
assigned) all required certificates of need or determinations of need as required by the relevant
state Governmental Authority for the acquisition, construction, expansion of, investment in or
operation of its businesses as currently operated, (b) obtained and maintains
in good standing all required licenses, permits, authorizations, registrations and approvals
of each Governmental Authority necessary to the conduct of its business, including without
limitation a license to provide the professional services provided by such Person; (c) to the
extent prudent and customary in the industry in which it is engaged, obtained and maintains
accreditation from all generally recognized accrediting agencies; (d) entered into and maintains in
good standing its Medicare Provider Agreements and Medicaid Provider Agreements; and (e) ensured
that all



74









 







such required licenses or restricted certifications and accreditations are in full force and effect
on the date hereof and have not been revoked or suspended or otherwise limited.


6.24 Use of Proceeds.




     The proceeds of the Credit Extensions shall be used for a purpose permitted by Section
7.11.



ARTICLE VII




AFFIRMATIVE COVENANTS



     So long as Satisfaction in Full has not occurred, the Loan Parties shall and shall cause each
Subsidiary to:


7.01 Financial Statements.




     Deliver to the Administrative Agent and each Lender, in form and detail satisfactory to the
Administrative Agent:




(a) (i) as soon as available, but in any event by April 30, 2011, a consolidated
balance sheet of the Parent and its Subsidiaries as at the end of the fiscal year
of the Parent ended December 31, 2010, and the related consolidated statements of
income or operations, changes in shareholders’ equity and cash flows for such
fiscal year, setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail and prepared in accordance with
GAAP, and audited and accompanied by a report and opinion of Ernst and Young or an
independent certified public accountant of nationally recognized standing or any
other independent certified public accountant reasonably acceptable to the
Administrative Agent, which report and opinion shall be prepared in accordance
with generally accepted auditing standards and shall not be subject to any “going
concern” or like qualification or exception, except to the extent such
qualification is solely attributable to the maturity of the Obligations in the
year in which the Maturity Date occurs, or any qualification or exception as to
the scope of such audit;




     (ii) as soon as available, but in any event by April 30, 2011, a consolidated
balance sheet of YFCS and its Subsidiaries as at the end of the fiscal year of
YFCS ended December 31, 2010, and the related consolidated statements of income or
operations, changes in shareholders’ equity and cash flows for such fiscal year,
setting forth in each case in comparative form the figures for the previous fiscal
year, all in reasonable detail and prepared in accordance with GAAP, and audited
and accompanied by a report and opinion of Ernst and Young or an independent
certified public accountant of nationally recognized standing or any other
independent certified public accountant reasonably acceptable to the
Administrative Agent, which report and opinion shall be prepared in accordance
with generally accepted auditing standards and shall not be subject to any “going
concern” or like qualification
or exception, except to the extent such qualification is solely attributable
to the maturity of the Obligations in the year in which the Maturity Date occurs,
or any qualification or exception as to the scope of such audit; and




     (iii) as soon as available, but in any event within one hundred five days
after the end of each fiscal year of the Parent, commencing with the fiscal year
ending December 31, 2011, a consolidated balance sheet of the Parent and its
Subsidiaries as at



75









 







the end of such fiscal year, and the related consolidated statements of income or
operations, changes in shareholders’ equity and cash flows for such fiscal year, setting
forth in each case in comparative form the figures for the previous fiscal year, all in
reasonable detail and prepared in accordance with GAAP, and audited and accompanied by a
report and opinion of Ernst and Young or an independent certified public accountant of
nationally recognized standing or any other independent certified public accountant
reasonably acceptable to the Administrative Agent, which report and opinion shall be
prepared in accordance with generally accepted auditing standards and shall not be subject
to any “going concern” or like qualification or exception, except to the extent such
qualification is solely attributable to the maturity of the Obligations in the year in which
the Maturity Date occurs, or any qualification or exception as to the scope of such audit.




(b) (i) as soon as available, but in any event within forty-five days after the end of the
fiscal quarter of the Parent ending March 31, 2011, a consolidated balance sheet of the
Parent and its Subsidiaries as at the end of such fiscal quarter, the related consolidated
statements of income or operations for for the portion of the Parent’s fiscal year then
ended, and the related consolidated statements of changes in shareholders’ equity and cash
flows for such fiscal quarter and for the portion of the Parent’s fiscal year then ended,
setting forth in comparative form, as applicable, the figures for the corresponding fiscal
quarter of the previous fiscal year and the corresponding portion of the previous fiscal
year, all in reasonable detail and certified by the chief executive officer, president or
chief financial officer of the Borrower as fairly presenting in all material respects the
financial condition, results of operations, shareholders’ equity and cash flows of the
Parent and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit
adjustments and the absence of footnotes;




     (ii) as soon as available, but in any event within forty-five days after the end of the
fiscal quarter of YFCS ending March 31, 2011, a consolidated balance sheet of YFCS and its
Subsidiaries as at the end of such fiscal quarter, the related consolidated statements of
income or operations for for the portion of YFCS’ fiscal year then ended, and the related
consolidated statements of changes in shareholders’ equity and cash flows for such fiscal
quarter and for the portion of YFCS’ fiscal year then ended, setting forth in comparative
form, as applicable, the figures for the
corresponding fiscal quarter of the previous fiscal year and the corresponding portion
of the previous fiscal year, all in reasonable detail and certified by the chief executive
officer, president or chief financial officer of the Borrower as fairly presenting in all
material respects the financial condition, results of operations, shareholders’ equity and
cash flows of YFCS and its Subsidiaries in accordance with GAAP, subject only to normal
year-end audit adjustments and the absence of footnotes; and




     (iii) as soon as available, but in any event within forty-five days after the end of
each fiscal quarter of each fiscal year of the Parent, commencing with the fiscal quarter
ending June 30, 2011, a consolidated balance sheet of the Parent and its Subsidiaries as at
the end of such fiscal quarter, the related consolidated statements of income or operations
for for the portion of the Parent’s fiscal year then ended, and the related consolidated
statements of changes in shareholders’ equity and cash flows for such fiscal quarter and for
the portion of the Parent’s fiscal year then ended, setting forth in comparative form, as
applicable, the figures for the corresponding fiscal quarter of the previous fiscal year and
the corresponding portion of the previous fiscal year, all in reasonable detail and
certified by the chief executive officer, president or chief financial officer of the
Borrower as



76









 







fairly presenting in all material respects the financial condition, results of
operations, shareholders’ equity and cash flows of the Parent and its Subsidiaries
in accordance with GAAP, subject only to normal year-end audit adjustments and the
absence of footnotes.


7.02 Certificates; Other Information.




     Deliver to the Administrative Agent and each Lender, in form and detail reasonably
satisfactory to the Administrative Agent:




     (a) concurrently with the delivery of the financial statements referred to in Section
7.01(a), a certificate of its independent certified public accountants certifying such
financial statements and stating that in making the examination necessary therefor no
knowledge was obtained of any Default under the financial covenants set forth herein in
Section 8.11 or, if any such Default shall exist, stating the nature and status of such
event;




     (b) concurrently with the delivery of the financial statements referred to in Sections
7.01(a) and (b), a duly completed Compliance Certificate signed by the chief executive
officer, president or chief financial officer of the Borrower;




     (c) within 30 days after the end of each fiscal year of the Parent, commencing with
the fiscal year ending December 31, 2011, (i) an annual business plan and budget of the
Parent and its Subsidiaries and (ii) forecasts prepared by management of the Parent, in
form reasonably satisfactory to the Administrative Agent, of consolidated balance sheets
and statements of income or operations and cash flows of the Parent and its Subsidiaries on
a monthly basis for the immediately following fiscal year (including the fiscal year in
which the Maturity Date occurs);




     (d) concurrently with the delivery of the financial statements referred to in Sections
7.01(a) and (b), a report signed by a Responsible Officer of the Borrower that supplements
Schedule 6.17 such that, as supplemented, such Schedule would be to be accurate and
complete as of such date (if no supplement is required to cause such Schedule to be
accurate and complete as of such date, then the Parent shall not be required to deliver
such a report);




     (e) promptly after any request by the Administrative Agent or any Lender, copies of
any detailed audit reports, management letters or recommendations submitted to the board of
directors (or the audit committee of the board of directors) of the Parent by independent
accountants in connection with the accounts or books of the Parent or any Subsidiary, or
any audit of any of them;




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




     (g) promptly, such additional information regarding the business, financial or
corporate affairs of the Parent or any Subsidiary, or compliance with the terms of the Loan
Documents, as the Administrative Agent may from time to time reasonably request (including
unaudited consolidating financial statements for the Parent or any Subsidiary).



     Documents required to be delivered pursuant to Section 7.01(a) or (b) may be delivered
electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which
the



77









 







Parent posts such documents, or provides a link thereto on the Parent’s website on the Internet at
the website address listed on Schedule 11.02; or (ii) on which such documents are posted on the
Parent’s behalf on an Internet or intranet website, if any, to which each Lender and the
Administrative Agent have access (whether a commercial, third-party website or whether sponsored by
the Administrative Agent); provided that: (i) the Parent shall deliver paper copies of such
documents to the Administrative Agent or any Lender upon its request the Parent to deliver such
paper copies until a written request to cease delivering paper copies is given by the
Administrative Agent or such Lender and (ii) the Parent shall notify the Administrative Agent and
each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to
the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such
documents. The Administrative Agent shall have no obligation to request the delivery of or to
maintain paper copies of the documents referred to above, and in any event shall have no
responsibility to monitor compliance by the Parent with any such request by a Lender for delivery,
and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies
of such documents.



     Each Loan Party hereby acknowledges that (a) the Administrative Agent and/or the Arranger will
make available to the Lenders and the L/C Issuer materials and/or information provided by or on
behalf of such Loan Party hereunder (collectively, “Borrower Materials”) by posting the Borrower
Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of
the Lenders (each a “Public Lender”) may have personnel who do not wish to receive material
non-public information with respect to such Loan Party or its Affiliates, or the respective
securities of any of the foregoing, and who may be engaged in investment and other market-related
activities with respect to such Persons’ securities. Each Loan Party hereby agrees that so long as
such Loan Party is the issuer of any outstanding debt or equity securities that are registered or
issued pursuant to a private offering or is actively contemplating issuing any such securities (w)
all Borrower Materials that are to be made available to Public Lenders shall be clearly and
conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear
prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” such Loan Party
shall be deemed to have authorized the Administrative Agent, the Arranger, the L/C Issuer and the
Lenders to treat such Borrower Materials as not containing any material non-public information with
respect to such Loan Party or its securities for purposes of United States federal and state
securities laws (provided, however, that to the extent such Borrower Materials constitute
Information, they shall be treated as set forth in Section 11.07); (y) all Borrower Materials
marked “PUBLIC” are permitted to be made available through a portion
of the Platform designated as “Public Side Information;” and (z) the Administrative Agent and
the Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as
being suitable only for posting on a portion of the Platform not designated “Public Side
Information”. Notwithstanding the foregoing, the Loan Parties shall be under no obligation to mark
any Borrower Materials “PUBLIC.”


7.03 Notices.




     Promptly and in any event within five Business Days notify the Administrative Agent and each
Lender of:



     (a) the occurrence of any Default; and



     (b) any matter that has resulted or could reasonably be expected to result in a Material
Adverse Effect.



     (c) the occurrence of any ERISA Event.



78









 





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



     (e) (i) the institution of any investigation, review or proceeding against the Parent or any
Subsidiary to suspend, revoke or terminate (or that could reasonably be expect to result in the
suspension, revocation or termination of) any Medicare Provider Agreement, Medicaid Provider
Agreement or agreement or participation with a Payor, (ii) the institution of any investigation,
review or proceeding against the Parent or any Subsidiary that could reasonably be expected to
result in an Exclusion Event or (iii) any notice of loss or threatened loss of material
accreditation, participation under any Payor or Medical Reimbursement Program, or any license.



     Each notice pursuant to this Section 7.03 shall be accompanied by a statement of a Responsible
Officer of the Borrower setting forth details of the occurrence referred to therein and stating
what action the Parent has taken and proposes to take with respect thereto. Each notice pursuant to
Section 7.03(a) shall describe with particularity any and all provisions of this Agreement and any
other Loan Document that have been breached.


7.04 Payment of Taxes.




     Pay and discharge as the same shall become due and payable all tax liabilities, assessments
and governmental charges or levies upon it or its properties or assets, unless the same are being
contested in good faith by appropriate proceedings and reserves in accordance with GAAP are being
maintained by the Parent or such Subsidiary.


7.05 Preservation of Existence, Etc.




     (a) Preserve, renew and maintain in full force and effect its legal existence under the Laws
of the jurisdiction of its organization except in a transaction permitted by Section 8.04 or 8.05.



     (b) Preserve, renew and maintain in full force and effect its good standing or comparable
status under the Laws of the jurisdiction of its organization except in a transaction permitted by
Section 8.04 or 8.05.



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



     (d) Preserve or renew all of its IP Rights, the non-preservation of which could reasonably be
expected to have a Material Adverse Effect.


7.06 Maintenance of Properties.




     (a) Use commercially reasonable efforts to maintain, preserve and protect all of its material
properties and equipment necessary in the operation of its business in good working order and
condition, ordinary wear and tear, casualty losses and Recovery Events excepted.



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



79









 





     (c) Use the standard of care typical in the industry in the operation and maintenance of its
facilities, except where the failure to do so could not reasonably be expected to have a Material
Adverse Effect.


7.07 Maintenance of Insurance.




     (a) Maintain in full force and effect insurance with financially sound and reputable insurance
companies not Affiliates of the Parent, in such amounts, with such deductibles and covering such
risks as are customarily carried by companies of similar size engaged in similar businesses and
owning similar properties in localities where the Parent or the applicable Subsidiary operates.



     (b) Cause all real property that constitutes Collateral and that is a Flood Hazard Property to
be covered by flood insurance with financially sound and reputable insurance companies not
Affiliates of the Parent, in such amounts and with such deductibles as the Administrative Agent may
reasonably request upon at least thirty (30) days prior written notice to the Parent.



     (c) Cause the Administrative Agent and its successors and/or assigns to be named as lender’s
loss payee or mortgagee as its interest may appear, and/or additional insured with respect to any
such insurance providing liability coverage or coverage in respect of any Collateral, and cause
each provider of any such insurance to agree, by endorsement upon the policy or policies issued by
it or by independent instruments furnished to the Administrative Agent, that it will give the
Administrative Agent thirty days (or such lesser amount as the Administrative Agent may agree)
prior written notice before any such policy or policies shall be altered or canceled.


7.08 Compliance with Laws.




     Except to the extent the failure to do so has not had or would not reasonably be expected to
have a Material Adverse Effect, (i) comply with all Laws (including Titles XVIII and XIX of the
Social Security Act, Medicare Regulations and Medicaid Regulations) and all restrictions and
requirements imposed by any Governmental Authority and take all reasonable action to cause each
Contract Provider to comply with all Laws, including all laws, rules and regulations of
Governmental Authorities pertaining to the licensing and conduct of professionals and other health
care providers; (ii) obtain and maintain, and take all reasonable action to cause each Contract
Provider to obtain and maintain, all licenses, permits, certifications, registrations and approvals
of all applicable Governmental Authorities as are required for the conduct of its business as
currently conducted and herein contemplated (including professional licenses, certificates or
determinations of need, Medicare Provider Agreements and Medicaid Provider Agreements); (iii)
ensure, and take all reasonable action to cause each Contract Provider to ensure, that coding and
billing policies, arrangements, protocols and instructions will comply with all Laws and all
reimbursement requirements under Medicare and Medicaid and of other Payors and will be administered
by properly trained personnel; (iv) ensure that medical director compensation arrangements and
other arrangements with referring physicians will comply with all Laws including applicable state
and federal self-referral and antikickback laws, including 42 U.S.C. Section 1320a-7b(1)- (b)(2),
42 U.S.C. Section 1395nn; and (v) implement, and take all reasonable action to cause each Contract
Provider to implement, policies that are consistent with the regulations
implementing the requirements of HIPAA and the HITECH Act on or before the date on which such
regulations become applicable to such Person.


7.09 Books and Records.




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



80









 





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


7.10 Inspection Rights.




     (a) Permit representatives and independent contractors of the Administrative Agent to visit
and inspect any of its properties, to examine its corporate, financial and operating records, and
make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with
its directors, officers, and independent public accountants, all at the expense of the Borrower and
at such reasonable times during normal business hours and as often as may be reasonably desired,
upon reasonable advance notice to the Borrower; provided, however, that (i) absent an Event of
Default, the Borrower shall be required to pay for only one such visit and/or inspection per fiscal
year and (ii) when an Event of Default exists the Administrative Agent or any of its
representatives or independent contractors may do any of the foregoing at the expense of the
Borrower at any time during normal business hours and without advance notice and as often as may be
reasonably desired; provided that not withstanding any provision of the Loan Documents, neither the
Parent nor any Subsidiary shall be required to provide access to the Administrative Agent or any of
its representatives or independent contractors to any record to the extent such inspection or
access by such Person would (x) be prohibited by Laws, (y) constitute a violation of any
confidentiality agreement with any Person not an Affiliate of the Parent or any Subsidiary or (z)
constitute a breach of attorney-client privilege.



     (b) If requested by the Administrative Agent in its reasonable discretion, permit the
Administrative Agent, and its representatives, upon reasonable advance notice to the Borrower, to
conduct an annual audit of the Collateral at the expense of the Borrower.



     (c) If requested by the Administrative Agent in its reasonable discretion (exercise not more
than once per fiscal year), promptly deliver to the Administrative Agent (a) asset appraisal
reports with respect to all of the real and personal property owned by the Parent and its
Subsidiaries, and (b) a written audit of the accounts receivable, inventory, payables, controls and
systems of the Parent and its Subsidiaries.



     (d) Cause an appraisal or reappraisal (in form and substance reasonably satisfactory to the
Administrative Agent and from an appraiser selected by or otherwise acceptable to the
Administrative Agent) to be delivered to the Administrative Agent with respect to each real
property subject to a Mortgage as requested by the Administrative Agent from time to time (i) as
necessary to satisfy any regulatory requirements imposed on the Administrative Agent or any Lender
or (ii) during the continuation of an Event of Default.


7.11 Use of Proceeds.




     Use the proceeds of the Credit Extensions (a) to finance in part the Merger, (b) to refinance
Existing Indebtedness, (c) to pay fees and expenses related to the Transaction and (d) to finance
working capital and for general corporate purposes of the Parent and its Subsidiaries (including
capital expenditures and Permitted Acquisitions) in each case not in contravention of any Law or of
any Loan Document.




81











 





7.12 Additional Subsidiaries.




     Within thirty (30) days (or such later date as the Administrative Agent may agree in its sole
discretion) after any Person becomes a Domestic Subsidiary, cause such Person to (i) become a
Guarantor by executing and delivering to the Administrative Agent a Joinder Agreement or such other
documents as the Administrative Agent shall reasonably deem appropriate for such purpose, and (ii)
deliver to the Administrative Agent documents of the types referred
to in Sections 5.01(d) and (k)
and opinions of counsel to such Person (which shall cover, among other things, the legality,
validity, binding effect and enforceability of the documentation referred to in clause (a)), all in
form, content and scope reasonably satisfactory to the Administrative Agent.



7.13 Pledged Assets.




     (a) Equity Interests. Cause (i) 100% of the issued and outstanding Equity Interests of
each Domestic Subsidiary and (ii) 65% (or such greater percentage that, due to a change in an
applicable Law after the date hereof, (A) could not reasonably be expected to cause the
undistributed earnings of such Foreign Subsidiary as determined for United States federal income
tax purposes to be treated as a deemed dividend to such Foreign Subsidiary’s United States parent
and (B) could not reasonably be expected to cause any material adverse tax consequences) of the
issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section
1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within
the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by any
Loan Party to be subject at all times to a first priority, perfected Lien in favor of the
Administrative Agent, for the benefit of the holders of the Obligations, to secure the Obligations
pursuant to the Collateral Documents (subject to Permitted Liens), and, in connection with the
foregoing, deliver to the Administrative Agent such other documentation as the Administrative Agent
may reasonably request including, any filings and deliveries to perfect such Liens, Organization
Documents, resolutions and opinions of counsel all in form, content and scope reasonably
satisfactory to the Administrative Agent.



     (b) Other Property. Subject to Section 7.14, cause all property (other than Excluded
Property) of each Loan Party to be subject at all times to first priority, perfected Liens in favor
of the Administrative Agent, for the benefit of the holders of the Obligations, to secure the
Obligations pursuant to the Collateral Documents (subject to Permitted Liens) and, in connection
with the foregoing, deliver to the Administrative Agent such other documentation as the
Administrative Agent may reasonably request including filings and deliveries necessary to perfect
such Liens, Organization Documents, resolutions, Real Property Security Documents and favorable
opinions of counsel to such Person, all in form, content and scope reasonably satisfactory to the
Administrative Agent.



7.14 Post-Closing Requirements.




     (a) Deposit Accounts.




     (i) Within sixty days after the Closing Date (or such later date as the Administrative
Agent may agree in its sole discretion) maintain each Loan Party’s primary deposit
relationship, including operating, cash management and collection/lockbox services with the Administrative Agent or any Lender approved by
the Administrative Agent (such approval not to be unreasonably withheld).




     (ii) Within sixty days after the Closing Date, obtain account control agreements in
form and substance reasonably satisfactory to the Administrative Agent on each deposit
account



82









 






and securities account owned by any Loan Party other than Excluded Accounts and deposit
accounts maintained with the Administrative Agent.




(iii) (A) Within sixty days after the Closing Date, instruct each obligor in
respect of Government Receivables to make payment directly to a Government
Receivables Account and if any such obligor makes payment in any other manner,
immediately (and in any event within three Business Days) transfer such payment to
a Government Receivables Account.




     (B) Upon the request of the Administrative Agent, with respect to each
Government Receivables Account, obtain an agreement, in form and substance
reasonably satisfactory to the Administrative Agent, between the financial
institution maintaining such Government Receivables Account, the Administrative
Agent and the applicable Loan Party in which such parties agree (A) such financial
institution will not enter into any agreement in which it agrees to comply with
instructions originated by any Person (other than the applicable Loan Party)
directing disposition of funds in such Government Receivables Account and (B) such
financial institution will wire transfer on a daily basis in immediately available
funds all funds received or deposited into such Government Receivables Account to
a deposit account maintained with the Administrative Agent.



     (b) Interest Rate Protection Agreements. Within one hundred twenty days after the
Closing Date (or such later date as the Administrative Agent may agree in its sole discretion) the
Borrower shall cause at least 50% of the outstanding principal amount of all term debt (including
the Term Loan) of the Borrower and its Subsidiaries to be either (x) fixed rate debt or (y) subject
to interest rate protection agreements (protecting against fluctuations in interest rates) for a
duration of at least three years in form and with parties reasonably acceptable to the
Administrative Agent.



     (c) Landlord Lien Waivers. Use commercially reasonable efforts to obtain landlord
waivers in form and substance reasonably satisfactory to the Administrative Agent on each real
property leased by any Loan Party if (x) such leased real property is a Loan Party’s headquarters
location or (y) personal property Collateral having a value in excess of $250,000 is located on
such leased real property.



     (d) Real Property Collateral. Within sixty days after the Closing Date (or such later
date as the Administrative Agent may agree in its sole discretion) deliver to the Administrative
Agent Real Property Security Documents for each real property owned by a Loan Party on the Closing
Date other than Excluded Property.



ARTICLE VIII




NEGATIVE COVENANTS



     Until Satisfaction in Full, no Loan Party shall, nor shall it permit any Subsidiary to,
directly or indirectly:



8.01 Liens.




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




     (a) Liens pursuant to any Loan Document;



83









 






     (b) Liens existing on the date hereof and listed on Schedule 8.01 and any renewals or
extensions thereof, provided that the property covered thereby is not increased;




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




     (d) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen
and suppliers and other Liens imposed by law or pursuant to customary reservations or retentions of
title arising in the ordinary course of business, provided that such Liens secure only
amounts not overdue for more than sixty days or, if overdue for more than sixty days, are being
contested in good faith by appropriate proceedings for which adequate reserves determined in
accordance with GAAP have been established;




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




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




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




     (h) Liens securing judgments for the payment of money (or appeal or other surety bonds
relating to such judgments) not constituting an Event of Default under Section 9.01(h);




     (i) Liens securing Indebtedness permitted under Section 8.03(e); provided that (i)
such Liens do not at any time encumber any property other than the property financed by such
Indebtedness and (ii) such Liens attach to such property concurrently with or within ninety days
after the acquisition thereof;




     (j) leases or subleases granted to others not interfering in any material respect with the
business of the Parent or any Subsidiary;




     (k) any interest of title of a lessor under, and Liens arising from UCC financing statements
(or equivalent filings, registrations or agreements in foreign jurisdictions) relating to, leases
permitted by this Agreement;




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




     (m) normal and customary rights of setoff upon deposits of cash in favor of banks or other
depository institutions;



84









 






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




     (o) Liens arising on any real property as a result of any eminent domain, condemnation
or similar proceeding being commenced with respect to such real property;




     (p) Liens on an insurance policy of the Parent or any Subsidiary and the identifiable
cash proceeds thereof in favor of the issuer of such policy and securing Indebtedness
permitted to finance the premiums of such policies;




     (q) Liens of sellers of goods to the Parent or any of its Subsidiaries arising under
Article 2 of the UCC in effect in the relevant jurisdiction in the ordinary course of
business, covering only the goods sold and covering only the unpaid purchase price for such
goods and related expenses;




     (r) Liens for the benefit of a seller deemed to attach solely to cash earnest money
deposits in connection with a letter of intent or acquisition agreement with respect to a
Permitted Acquisition;




     (s) Liens constituting the filing of UCC financing statements solely as a
precautionary measure in connection with operating leases or consignment of goods;




     (t) Liens arising from payment obligations being contested in good faith by
appropriate proceedings; and




     (u) Liens securing obligations in an aggregate amount not to exceed $500,000
outstanding at any one time.



8.02 Investments.




     Make any Investments, except:




     (a) Investments in the form of cash or Cash Equivalents;




     (b) Investments existing as of the Closing Date and set forth in Schedule 8.02;




     (c) Investments in any Loan Party;




     (d) Investments by any Foreign Subsidiary in any other Foreign Subsidiary;




     (e) Investments consisting of extensions of credit in the nature of accounts
receivable or notes receivable arising from the grant of trade credit in the ordinary
course of business, and Investments received in satisfaction or partial satisfaction
thereof from financially troubled account debtors to the extent reasonably necessary in
order to prevent or limit loss;




     (f) Guarantees permitted by Section 8.03;




     (g) Permitted Acquisitions;




     (h) Swap Contracts permitted by Section 8.03;



85









 






     (i) Investments consisting of promissory notes issued by officers, directors and
employees of the Parent or any Subsidiary as consideration for the purchase of Equity
Interests of the Parent;




     (j) Investments consisting of securities or instruments received pursuant to a
disposition of assets not prohibited by this Agreement; and




     (k) Investments of a nature not contemplated in the foregoing clauses in an amount not
to exceed $5,000,000 in the aggregate at any time outstanding.



8.03 Indebtedness.




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




     (a) Indebtedness under the Loan Documents;




     (b) Indebtedness set forth in Schedule 8.03 and renewals, refinancings and
extensions thereof; provided that (i) the amount of such Indebtedness is not
increased at the time of such renewal, refinancing or extension except by an amount equal
to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably
incurred, in connection with such refinancing and by an amount equal to any existing
commitments unutilized thereunder and (ii) the material terms taken as a whole of such
renewal, refinancing or extension are not materially less favorable to the Parent and its
Subsidiaries than the terms of the Indebtedness being renewed, refinanced or extended;




     (c) intercompany Indebtedness permitted under Section 8.02;




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




     (e) purchase money Indebtedness (including obligations in respect of Capital Leases or
Synthetic Leases) hereafter incurred to finance the purchase of fixed assets, and renewals,
refinancings and extensions thereof, provided that (i) the aggregate outstanding
principal amount of all such Indebtedness shall not exceed $1,000,000 at any one time
outstanding; and (ii) such Indebtedness when incurred shall not exceed the purchase price
of the asset(s) financed;




     (f) Guarantees with respect to Indebtedness permitted under this Section
8.03;




     (g) Contingent obligations to financial institutions, in each case, to the extent in
the ordinary course of business and on terms and conditions which are within the general
parameters customary in the banking industry, entered into to obtain cash management
services or deposit account overdraft protection services or other services in connection
with the management or opening of deposit accounts or incurred as a result of endorsement
of negotiable instruments for deposit or collection purposes;



86









 






     (h) Indebtedness arising in connection with endorsement of instruments for deposit in
the ordinary course of business or arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument inadvertently (except in the case of
daylight overdrafts) drawn against insufficient funds in the ordinary course of business;
provided, however, that such Indebtedness is extinguished within ten days of incurrence;




     (i) Indebtedness consisting of deferred purchase price obligations (including earnout
obligations), indemnification obligations, adjustment of purchase price or similar
obligations and guarantee obligations, in each case in connection with Acquisitions,
dispositions of property and Investments and indemnification obligations arising under
Contract Obligations incurred in the ordinary course of business; provided that all
Indebtedness consisting of deferred purchase price obligations (including earnout
obligations) incurred in connection with a Permitted Acquisition consummated after the
Closing Date shall be subordinated to the Obligations in a manner and to an extent
reasonably acceptable to the Administrative Agent;




     (j) Indebtedness incurred in connection with the financing of insurance premiums in an
aggregate amount at any time outstanding not to exceed the premiums owed under such policy;




     (k) Indebtedness in respect of appeal, bid, performance or surety or similar bonds,
workers’ compensation claims and self-insurance obligations issued for the account of the
Parent or any Subsidiary in the ordinary course of business;




     (l) Indebtedness consisting of promissory notes subordinated to the Obligations in a
manner and to an extent reasonably acceptable to the Administrative Agent for the
repurchase of Equity Interests held in the Parent from directors, officers and employees of
the Parent or any Subsidiary, or their respective spouse, heirs, or estate planning
vehicles, family trusts or comparable entities or persons, upon the death, disability or
termination of employment by the Parent or such Subsidiary of such director, officer or
employee; provided that the aggregate outstanding principal amount of all such
Indebtedness shall not exceed $1,500,000 at any one time outstanding; and




     (m) Indebtedness in an aggregate amount not to exceed $500,000 outstanding at any one
time.



8.04 Fundamental Changes.




     Merge, dissolve, liquidate or consolidate with or into another Person, except that so long as
no Default exists or would result therefrom, (a) the Parent may merge or consolidate with any
Subsidiary other than the Borrower, provided that the Parent shall be the continuing or
surviving Person, (b) any Subsidiary may merge or consolidate with any other Subsidiary,
provided that (i) if the Borrower is a party thereto, then the Borrower shall be the
continuing or surviving Person, (ii) if the Borrower is not a party thereto and a Guarantor is a
party thereto, then a Guarantor shall be the continuing or surviving Person and (iii) if neither
the Borrower nor a Guarantor is a party thereto and a Domestic Subsidiary is a party thereto, then
a Domestic Subsidiary shall be the continuing or surviving Person, (c) the Parent or any
Subsidiary may merge with any other Person in connection with a Permitted Acquisition
provided that (i) if the Parent is a party thereto, then the Parent shall be the continuing
or surviving Person and (ii) if the Parent is not a party thereto and the Borrower is a party
thereto, then the Borrower shall be the continuing or surviving Person and (d) any Subsidiary other
than the Borrower may dissolve, liquidate or wind up its affairs at any time provided that such
dissolution, liquidation or winding up, as applicable, could not have a Material Adverse Effect.



87









 





8.05 Dispositions.




     Make any Disposition unless (i) the consideration paid in connection therewith shall be cash
or Cash Equivalents paid contemporaneous with consummation of the transaction and shall be in an
amount not less than the fair market value (as determined by the board of directors or comparable
governing body in its good faith business judgment) of the property disposed of, (ii) if such
transaction is a Sale and Leaseback Transaction, such transaction is not prohibited by the terms of
Section 8.14, (iii) such transaction does not involve the sale or other disposition of a
minority equity interest in any Subsidiary, (iv) such transaction does not involve a sale or other
disposition of receivables other than receivables owned by or attributable to other property
concurrently being disposed of in a transaction otherwise permitted under this Section
8.05, and (v) the aggregate net book value of all of the assets sold or otherwise disposed of
by the Parent and its Subsidiaries in all such transactions in any fiscal year of the Parent shall
not exceed an amount equal to 7.5% of the net book value of the plant, property and equipment of
the Parent and its Subsidiaries on a consolidated basis as of the end of the immediately preceding
fiscal year of the Parent.



8.06 Restricted Payments.




     Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation
(contingent or otherwise) to do so, except that:




     (a) each Subsidiary may declare and make Restricted Payments in cash to Persons that
own Equity Interests in such Subsidiary, ratably according to their respective holdings of
the type of Equity Interest in respect of which such Restricted Payment is being made;




     (b) the Parent and each Subsidiary may declare and make dividend payments or other
distributions payable solely in Equity Interests of such Person;




     (c) the Parent may declare and make Tax Distributions with respect to any period for
which the Parent is a partnership, limited liability company or S corporation;




     (d) the Parent or any Subsidiary may make scheduled payments of deferred purchase
price, working capital adjustments or other similar payments pursuant to the Merger
Agreement or any Permitted Acquisition except to the extent such payments violate any
subordination provisions applicable thereto; and




     (e) the Parent may repurchase Equity Interests held in the Parent from directors,
officers and employees of the Parent or any Subsidiary, or their respective spouse, heirs,
or estate planning vehicles, family trusts or comparable entities or persons, upon the
death, disability or termination of employment by the Parent or any Subsidiary of such
director, officer or employee; provided that (i) no Event of Default shall have
occurred and be continuing at the time of such payment; (ii) after giving effect to such
payment on a Pro Forma Basis the Loan Parties would be in compliance with the financial
covenants set forth in Section 8.11 recomputed as of the end of the period of the
four fiscal quarters most recently ended for which the Parent has delivered financial
statements pursuant to Section 7.01(a) or (b); and (iii)
the aggregate amount of payments made by the Parent for such repurchases (including
payments of principal on any promissory note issued in connection with such repurchases)
shall not exceed $500,000 in any fiscal year.



88









 





8.07 Change in Nature of Business.




     Engage in any material line of business substantially different from those lines of business
conducted by the Parent and its Subsidiaries on the Closing Date or any business reasonably
complementary, related or incidental thereto.



8.08 Transactions with Affiliates and Insiders; Management Fees.




     (a) Enter into or permit to exist any transaction or series of transactions with any officer,
director or Affiliate of such Person other than (i) transactions among Loan Parties, (ii)
intercompany transactions expressly permitted by Section 8.02, Section 8.03,
Section 8.04, Section 8.05 or Section 8.06, (iii) normal and reasonable
compensation and reimbursement of expenses of officers and directors in the ordinary course of
business, (iv) payment of the Management Fee to the extent permitted by Section 8.08(b) and
payment of Management Expenses and (v) except as otherwise specifically limited in this Agreement,
other transactions which are entered into in the ordinary course of such Person’s business on terms
and conditions substantially as favorable to such Person as would be obtainable by it in a
comparable arms-length transaction with a Person other than an officer, director or Affiliate.



     (b) Pay any management, consulting or similar fees to any Affiliate or to any manager,
director, officer or employee of the Parent or any Subsidiary other than:




     (i) salary and compensation pursuant to employment agreements entered into in the
ordinary course of business or in connection with the Transaction;




     (ii) Management Fees on the dates and in the amounts set forth in the Management
Agreement and any accrued but unpaid Management Fees relating to any prior period, in each
case provided that (A) no Event of Default shall have occurred and be continuing at the
time of such payment and (B) after giving effect to such payment on a Pro Forma Basis the
Loan Parties would be in compliance with the financial covenants set forth in Section 8.11
recomputed as of the end of the period of the four fiscal quarters most recently ended for
which the Parent has delivered financial statements pursuant to Section 7.01(a) or (b).



8.09 Burdensome Agreements.




     Enter into, or permit to exist, any Contractual Obligation that (a) encumbers or restricts the
ability of any such Person to (i) make Restricted Payments to any Loan Party, (ii) pay any
Indebtedness or other obligation owed to any Loan Party, (iii) make loans or advances to any Loan
Party, (iv) transfer any of its property to any Loan Party, (v) pledge its property pursuant to the
Loan Documents or any renewals, refinancings, exchanges, refundings or extension thereof or (vi)
act as a Loan Party pursuant to the Loan Documents or any renewals, refinancings, exchanges,
refundings or extension thereof, except (in respect of any of the matters referred to in clauses
(i)-(v) above) for (1) this Agreement and the other Loan Documents, (2) any document or instrument
governing Indebtedness incurred pursuant to Section 8.03(e), provided that any such restriction
contained therein relates only to the asset or assets constructed or acquired in connection
therewith, (3) any Permitted Lien or any document or instrument governing any Permitted Lien,
provided that any such restriction contained therein relates only to the asset or assets subject to such Permitted Lien, (4)
customary restrictions and conditions on assignments contained in agreements entered into in the
ordinary course of business after using commercially reasonable efforts to eliminate such
prohibition on assignments or (5) customary restrictions and conditions contained in any agreement
relating to the sale of any property permitted under Section 8.05 pending the consummation of such
sale, or (b) requires the grant of any security for any obligation if such property is given as
security for the Obligations.



89









 





8.10 Use of Proceeds.




     Use the proceeds of any Credit Extension, whether directly or indirectly, and whether
immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of
Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying
margin stock or to refund indebtedness originally incurred for such purpose.



8.11 Financial Covenants.




     (a) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio determined as
of the end of any fiscal quarter of the Parent set forth below to be greater than the ratio
corresponding to such fiscal quarter:



	 	 	 	 	 
	 	 	Maximum Consolidated
	Fiscal Quarter of the Parent	 	Leverage Ratio
	June 30, 2011
	 	 	4.25:1.0	 
	September 30, 2011
	 	 	4.25:1.0	 
	December 31, 2011
	 	 	4.25:1.0	 
	March 31, 2012
	 	 	4.25:1.0	 
	June 30, 2012
	 	 	4.00:1.0	 
	September 30, 2012
	 	 	4.00:1.0	 
	December 31, 2012
	 	 	3.75:1.0	 
	March 31, 2013
	 	 	3.75:1.0	 
	June 30, 2013
	 	 	3.75:1.0	 
	September 30, 2013
	 	 	3.75:1.0	 
	December 31, 2013 and each fiscal
quarter ending thereafter
	 	 	3.00:1.0	 






     (b) Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated Fixed Charge
Coverage Ratio determined as of the end of any fiscal quarter of the Parent, commencing with the
fiscal quarter ending June 30, 2011, to be less than 1.25:1.0.



8.12 Organization Documents; Fiscal Year; Legal Name, State of Formation and Form of
Entity.




     (a) Amend, modify or change its Organization Documents in a manner adverse to the Lenders.



     (b) Change its fiscal year.



     (c) Without providing ten (10) days prior written notice to the Administrative Agent (or such
lesser period as the Administrative Agent may agree), change its name, state of formation or form
of organization.



8.13 Ownership of Subsidiaries.




     Notwithstanding any other provisions of this Agreement to the contrary, (a) permit any Person
(other than the Parent or any Wholly Owned Subsidiary) to own any Equity Interests of any
Subsidiary, except to qualify directors where required by applicable Law or to satisfy other
requirements of



90









 





applicable Law with respect to the ownership of Equity Interests of Foreign Subsidiaries, or (b)
permit any Subsidiary to issue or have outstanding any shares of preferred Equity Interests.




8.14 Sale Leasebacks.




     Enter into any Sale and Leaseback Transaction.



8.15 Capital Expenditures.




     Permit Consolidated Capital Expenditures for any fiscal year, commencing with the fiscal year
ending December 31, 2011, to exceed an amount equal to four percent (4.0%) of total revenues of the
Parent and its Subsidiaries on a consolidated basis for the immediately preceding fiscal year of
the Parent; provided, however, that any amount not expended in any fiscal year
shall be carried forward to the next succeeding fiscal year (but not any subsequent year) and shall
be the first amounts expended in such succeeding fiscal year (i.e., capital expenditures made
during such fiscal year shall be deemed to be made first with respect to any carry-forward from the
immediately preceding year and then from the applicable limitation for such fiscal year).



8.16 Amendment of Material Documents.




     Amend, modify, waive or extend, or permit the amendment, modification, waiver or extension of
any term or provision of any Merger Document or the Management Agreement in a manner materially
adverse to the Parent or any Subsidiary or to the Lenders (it being understood that any increase in
the amount of any of the Management Fees or acceleration of the payment dates of any of the
Management Fees shall be deemed materially adverse to the Parent).



8.17 Restrictions on the Parent.




     Notwithstanding anything to the contrary in this Agreement, the Parent shall not (a) hold any
material property other than cash and Cash Equivalents and Equity Interests of its Subsidiaries,
(b) have any material liabilities other than (i) obligations under the Loan Documents, its
Organization Documents and contracts and agreements (including with respect to indemnities) with
officers, directors, consultants and employees of the Parent relating to their employment, services
or directorships, (ii) tax liabilities in the ordinary course of business or incurred as a member
of the consolidated group of the Parent and its Subsidiaries, and (iii) corporate, administrative
and operating expenses incurred in the ordinary course of business, or (c) engage in any business
other than (i) maintaining its existence and activities related thereto, (ii) owning the Equity
Interests of its Subsidiaries and activities incidental or related thereto, (iii) performing its
obligations under the Loan Documents, documents evidencing Permitted Acquisitions and contracts and
agreements (including with respect to indemnities) with officers, directors, consultants and
employees of the Parent relating to their employment, services or directorships and (iv) activities
in the ordinary course reasonably related to the foregoing.



ARTICLE IX




EVENTS OF DEFAULT AND REMEDIES




9.01 Events of Default.





91









 








     Any of the following shall constitute an Event of Default:




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




     (b) Specific Covenants.




     (i) Any Loan Party fails to perform or observe any term, covenant or agreement
contained in any of Section 7.01 or 7.02 and such failure continues for
five days; or




     (ii) Any Loan Party fails to perform or observe any term, covenant or agreement
contained in any of Section 7.03(a), 7.05(a), 7.10 or 7.11
or Article VIII; or




     (c) Other Defaults. Any Loan Party fails to perform or observe any other covenant or
agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on its part
to be performed or observed and such failure continues for thirty days; or




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




     (e) Cross-Default. (i) The Parent or any Subsidiary fails to make any payment when due
(whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect
of any Material Indebtedness; (ii) the Parent or any Subsidiary fails to observe or perform any
other agreement or condition relating to any Material Indebtedness or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of
which default or other event is to cause, or to permit the holder or holders of such Material
Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, with the giving
of notice if required, such Material Indebtedness to be demanded or to become due or to be
repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Material Indebtedness to be made, prior to its stated maturity; or
(iii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap
Contract) resulting from (A) any event of default under such Swap Contract as to which the Parent
or any Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination
Event (as so defined) under such Swap Contract as to which the Parent or any Subsidiary is an
Affected Party (as so defined) and, in either event, the Swap Termination Value owed by the Parent
or such Subsidiary as a result thereof is greater than the Threshold Amount; or




     (f) Insolvency Proceedings, Etc. The Parent or any Subsidiary institutes or consents
to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the
benefit of creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it
or for all or any material part of its property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the application or consent of
such Person and the appointment



92









 






continues undischarged or unstayed for sixty calendar days; or any proceeding under any
Debtor Relief Law relating to any such Person or to all or any material part of its
property is instituted without the consent of such Person and continues undismissed or
unstayed for sixty calendar days, or an order for relief is entered in any such proceeding;
or




     (g) Inability to Pay Debts; Attachment. (i) The Parent or any Subsidiary
admits in writing its general inability or fails generally to pay its debts as they become
due, or (ii) any writ or warrant of attachment or execution or similar process is issued or
levied against all or any material part of the property of any such Person and is not
released, vacated or fully bonded within thirty days after its issue or levy; or




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




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




     (j) Invalidity of Loan Documents. Any Loan Document, at any time after its
execution and delivery and for any reason other than as expressly permitted hereunder or
thereunder or Satisfaction in Full, ceases to be in full force and effect or ceases to give
the Administrative Agent any material part of the Liens purported to be created thereby; or
any Loan Party contests in any manner the validity or enforceability of any Loan Document;
or any Loan Party denies that it has any or further liability or obligation under any Loan
Document, or purports to revoke, terminate or rescind any Loan Document except, in each
case, as expressly permitted or contemplated by the Loan Documents or after Satisfaction in
Full; or




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




     (l) Exclusion Event. There occurs an Exclusion Event which has had or could
reasonably be expected to result in non-compliance with any of the financial covenants set
forth in Section 8.11.



9.02 Remedies Upon Event of Default.




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



93









 






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




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




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




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



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




9.03 Application of Funds.




     After the exercise of remedies provided for in Section 9.02 (or after the Loans have
automatically become immediately due and payable and the L/C Obligations have automatically been
required to be Cash Collateralized as set forth in the proviso to Section 9.02), any
amounts received on account of the Obligations, subject to the provisions of Sections 2.14
and 2.15, shall be applied by the Administrative Agent in the following order:




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




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




     Third, to payment of that portion of the Obligations constituting accrued and
unpaid Letter of Credit Fees and interest on the Loans and L/C Borrowings and fees,
premiums and scheduled periodic payments, and any interest accrued thereon, due
under any Swap Contract between the Parent or any Subsidiary and any Secured Swap
Provider to the extent such Swap Contract is permitted by Section 8.03(d), ratably
among the Lenders (and, in the case of such Swap Contracts, Secured Swap Providers) and the
L/C Issuer in proportion to the respective amounts described in this clause Third
held by them;



94









 






     Fourth, to (a) payment of that portion of the Obligations constituting unpaid
principal of the Loans and L/C Borrowings, (b) payment of breakage, termination or other
payments, and any interest accrued thereon, due under any Swap Contract between the Parent
or any Subsidiary and any Secured Swap Provider to the extent such Swap Contract is
permitted by Section 8.03(d), (c) payments of amounts due under any Treasury
Management Agreement between the Parent or any Subsidiary and any Lender or any Affiliate
of a Lender and (d) Cash Collateralize that portion of L/C Obligations comprised of the
aggregate undrawn amount of Letters of Credit to the extent not otherwise Cash
Collateralized by the Borrower pursuant to Sections 2.03 and 2.14, ratably
among the Lenders (and, in the case of such Swap Contracts, Secured Swap Providers, and in
the case of such Treasury Management Agreements, Affiliates of Lenders) and the L/C Issuer
in proportion to the respective amounts described in this clause Fourth held by
them; and




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



     Subject to Section 2.03(c) and 2.14, amounts used to Cash Collateralize the
aggregate undrawn amount of Letters of Credit pursuant to clause Fourth above shall be applied to
satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as
Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining
amount shall be applied to the other Obligations, if any, in the order set forth above.



ARTICLE X




ADMINISTRATIVE AGENT



10.01 Appointment and Authority.




     Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America to act on
its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes
the Administrative Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms hereof or thereof, together with such actions
and powers as are reasonably incidental thereto. The provisions of this Article are solely for the
benefit of the Administrative Agent, the Lenders and the L/C Issuer, and no Loan Party shall have
rights as a third party beneficiary of any of such provisions.



     The Administrative Agent shall also act as the “collateral agent” under the Loan
Documents, and each of the Lenders (in its capacities as a Lender, Swing Line Lender (if
applicable), potential Swap Contract provider and potential Treasury Management Agreement provider)
and the L/C Issuer hereby irrevocably appoints and authorizes the Administrative Agent to act as
the agent of such Lender and the L/C Issuer for purposes of acquiring, holding and enforcing any
and all Liens on Collateral, together with such powers and discretion as are reasonably incidental
thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents,
sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section
10.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof)
granted under the Collateral Documents, or for
exercising any rights and remedies thereunder at the direction of the Administrative Agent),
shall be entitled to the benefits of all provisions of this Article X and Article
XI (including Section 11.04(c), as though such co-agents, subagents and
attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set forth in full
herein with respect thereto.



95









 





10.02 Rights as a Lender.




     The Person serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated
or unless the context otherwise requires, include the Person serving as the Administrative Agent
hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend
money to, act as the financial advisor or in any other advisory capacity for and generally engage
in any kind of business with the Parent or any Subsidiary or other Affiliate thereof as if such
Person were not the Administrative Agent hereunder and without any duty to account therefor to the
Lenders.



10.03 Exculpatory Provisions.




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




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




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




     (c) shall not, except as expressly set forth herein and in the other Loan Documents,
have any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to any Loan Party or any of its Affiliates that is communicated to or
obtained by the Person serving as the Administrative Agent or any of its Affiliates in any
capacity.



     The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 11.01 and 9.02) or (ii)
in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be
deemed not to have knowledge of any Default unless and until notice describing such Default is
given to the Administrative Agent by a Loan Party, a Lender or the L/C Issuer.



     The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection with this Agreement or
any other Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document, or the creation,
perfection or priority of any Lien purported to be created by the Collateral Documents, (v) the
value or the sufficiency of any



96









 





Collateral, or (vi) the satisfaction of any condition set forth in Article V or elsewhere herein,
other than to confirm receipt of items expressly required to be delivered to the Administrative
Agent.




10.04 Reliance by Administrative Agent.




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



10.05 Delegation of Duties.




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



10.06 Resignation of Administrative Agent.




     The Administrative Agent may at any time give notice of its resignation to the Lenders, the
L/C Issuer and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders
shall have the right, subject to the approval of the Borrower unless an Event of Default has
occurred and is continuing (such approval not to be unreasonably withheld or delayed), to appoint a
successor, which shall be a bank with an office in the United States, or an Affiliate of any such
bank with an office in the United States. If no such successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may on
behalf of the Lenders and the L/C Issuer, appoint a successor Administrative Agent meeting the
qualifications set forth above; provided that if the Administrative Agent shall notify the
Borrower and the Lenders that no qualifying Person has accepted such appointment, then such
resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder and under the other Loan Documents
(except that in the case of any collateral security held by the Administrative Agent on behalf of
the Lenders or the L/C Issuer under any of the Loan Documents, the retiring Administrative Agent
shall continue to hold such collateral security until such time as a successor Administrative Agent
is appointed) and (b) all payments, communications and determinations provided to be made by, to or
through the Administrative Agent shall instead be made by or to each Lender and the L/C Issuer
directly, until such time as the Required Lenders appoint a successor



97









 





Administrative Agent as provided for above in this Section. Upon the acceptance of a successor’s
appointment as Administrative Agent hereunder, such successor shall succeed to and become vested
with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative
Agent, and the retiring Administrative Agent shall be discharged from all of its duties and
obligations hereunder or under the other Loan Documents (if not already discharged therefrom as
provided above in this Section). The fees payable by the Borrower to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise agreed between the
Borrower and such successor. After the retiring Administrative Agent’s resignation hereunder and
under the other Loan Documents, the provisions of this Article and Section 11.04 shall
continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be taken by any of them
while the retiring Administrative Agent was acting as Administrative Agent.




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



10.07 Non-Reliance on Administrative Agent and Other Lenders.




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



10.08 No Other Duties; Etc.




     Anything herein to the contrary notwithstanding, none of the bookrunners, arrangers,
syndication agents, documentation agents or co-agents shall have any powers, duties or
responsibilities under this Agreement or any of the other Loan Documents, except in its capacity,
as applicable, as the Administrative Agent, a Lender or the L/C Issuer hereunder.



10.09 Administrative Agent May File Proofs of Claim.




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




     (a) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations arising under
the Loan Documents that are owing and unpaid and to file such other documents as may be
necessary



98









 






or advisable in order to have the claims of the Lenders, the L/C Issuer and the
Administrative Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders, the L/C Issuer and the Administrative Agent and
their respective agents and counsel and all other amounts due the Lenders, the L/C Issuer
and the Administrative Agent under Sections 2.03(h) and
(i), 2.09 and 11.04) allowed in
such judicial proceeding; and




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



and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such
payments to the Administrative Agent and, in the event that the Administrative Agent shall consent
to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09 and 11.04.




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



10.10 Collateral and Guaranty Matters.




     The Lenders and the L/C Issuer irrevocably authorize the Administrative Agent, at its option
and in its discretion,




     (a) to release any Lien on any property granted to or held by the Administrative Agent
under any Loan Document (i) upon Satisfaction in Full, (ii) that is transferred or to be
transferred as part of or in connection with any Disposition permitted hereunder or under
any other Loan Document or any Recovery Event, or (iii) as approved in accordance with
Section 11.01;




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




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




Upon request by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release or subordinate its interest in
particular types or items of property, or to release any Guarantor from its obligations
under the Guaranty, pursuant to this Section 10.10.



99









 





ARTICLE XI




MISCELLANEOUS



11.01 Amendments, Etc.




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




     (a) no such amendment, waiver or consent shall:




     (i) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 9.02) without the written
consent of such Lender (it being understood and agreed that a waiver of any
condition precedent set forth in Section 5.02 or Section 5.03 or
of any Default is not considered an extension or increase in Commitments of any
Lender);




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




     (iii) reduce the principal of, or the rate of interest specified herein on,
any Loan or L/C Borrowing, or (subject to clause (i) of the final proviso to this
Section 11.01) any fees or other amounts payable hereunder or under any
other Loan Document without the written consent of each Lender entitled to receive
such amount; provided, however, that only the consent of the
Required Lenders shall be necessary to (A) amend the definition of “Default Rate”
or waive any obligation of the Borrower to pay interest or Letter of Credit Fees
at the Default Rate or (B) to amend any financial covenant hereunder (or any
defined term used therein) even if the effect of such amendment would be to reduce
the rate of interest on any Loan or L/C Borrowing or to reduce any fee payable
hereunder;




     (iv) change Section 9.03 in a manner that would alter the pro rata sharing of
payments required thereby without the written consent of each Lender directly
affected thereby;




     (v) change any provision of this Section 11.01(a) or the definition
of “Required Lenders” without the written consent of each Lender directly affected
thereby;




     (vi) release all or substantially all of the Collateral without the written
consent of each Lender whose Obligations are secured by such Collateral;




     (vii) release the Borrower without the consent of each Lender, or, except in
connection with a transaction permitted under Section 8.04 or Section
8.05, all or substantially all of the value of the Guaranty without the
written consent of each Lender whose Obligations are guarantied thereby, except to
the extent such release is permitted



100









 






pursuant to Section 10.10 (in which case such release may be made by the
Administrative Agent acting alone); or




     (b) prior to the termination of the Revolving Commitments, unless also signed by
Required Revolving Lenders, no such amendment, waiver or consent shall, (i) waive any
Default for purposes of Section 5.02(c) or Section 5.03(b), (ii) amend,
change, waive, discharge or terminate any of Sections 5.02, 5.03 or
9.01 in a manner adverse to such Lenders or (iii) amend, change, waive, discharge
or terminate Section 8.11 (or any defined term used therein) or this Section
11.01(b); or




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




     (d) unless also signed by the Swing Line Lender, no amendment, waiver or consent shall
affect the rights or duties of the Swing Line Lender under this Agreement; and




     (e) unless also signed by the Administrative Agent, no amendment, waiver or consent
shall affect the rights or duties of the Administrative Agent under this Agreement or any
other Loan Document;



provided, however, that notwithstanding anything to the contrary herein,





     (i) the Fee Letter may be amended, or rights or privileges thereunder waived, in a
writing executed only by the parties thereto;




     (ii) no Defaulting Lender shall have any right to approve or disapprove any amendment,
waiver or consent hereunder (any amendment, waiver or consent which by its terms requires
the consent of all Lenders or each affected Lender may be effected with the consent of the
applicable Lenders other than Defaulting Lenders), except that (A) the Commitment of such
Lender may not be increased or extended without the consent of such Lender and (B) any
waiver, amendment or modification requiring the consent of all Lenders or each affected
Lender that by its terms affects any Defaulting Lender more adversely than other affected
Lenders shall require the consent of such Defaulting Lender;




     (iii) each Lender is entitled to vote as such Lender sees fit on any bankruptcy
reorganization plan that affects the Loans, and each Lender acknowledges that the
provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the
unanimous consent provisions set forth herein;




     (iv) the Required Lenders shall determine whether or not to allow a Loan Party to use
cash collateral in the context of a bankruptcy or insolvency proceeding and such
determination shall be binding on all of the Lenders; and




     (v) this Agreement and the other Loan Documents may be amended at any time during the
period from and after the Closing Date through but excluding the date that is six months
prior to the Maturity Date to add one or more tranches of term loans (each an “Incremental Term Facility”) at the option of the Borrower by
an agreement in writing entered into by the Borrower, the Guarantors, the Administrative
Agent and each Person (including any existing Lender) that agrees to provide a portion of
such Incremental Term Facility; provided that:



101









 






     (A) the aggregate principal amount of all Incremental Term Facilities shall not exceed
$50 million;




     (B) no Default shall exist on the effective date of such Incremental Term Facility or
would exist after giving effect to such Incremental Term Facility;




     (C) the representations and warranties of each Loan Party contained in Article
VI or any other Loan Document, or which are contained in any document furnished at any
time under or in connection herewith or therewith, shall be true and correct in all material
respects on and as of the effective date of such Incremental Term Facility, except to the
extent that such representations and warranties specifically refer to an earlier date, in
which case they shall be true and correct in all material respects as of such earlier date;




     (D) each Incremental Term Facility shall be in a minimum principal amount of $5 million
and in integral multiples of $5 million in excess thereof (or such lesser amounts as the
Administrative Agent may agree);




     (E) the Borrower may not incur more than three (3) Incremental Term Facilities during
the term of this Agreement;




     (F) no existing Lender shall be under any obligation to provide any Incremental Term
Facility Commitment and any such decision whether to provide an Incremental Term Facility
Commitment shall be in such Lender’s sole and absolute discretion;




     (G) each Person providing an Incremental Term Facility Commitment shall qualify as an
Eligible Assignee;




     (H) the Borrower shall deliver to the Administrative Agent:




     (x) a certificate of each Loan Party dated as of the date of such increase
signed by a Responsible Officer of such Loan Party (1) certifying and attaching
resolutions adopted by the board of directors or equivalent governing body of such
Loan Party approving such Incremental Term Facility and (2) in the case of the
Borrower, certifying that, before and after giving effect to such increase, (I) the
representations and warranties of each Loan Party contained in Article VI or
any other Loan Document, or which are contained in any document furnished at any
time under or in connection herewith or therewith, shall be true and correct in all
material respects on and as of the date of such increase, except to the extent that
such representations and warranties specifically refer to an earlier date, in which
case they shall be true and correct in all material respects as of such earlier
date, and (II) no Default exists; and




     (y) opinions of legal counsel to the Loan Parties, addressed to the
Administrative Agent and each Lender (including each Person providing an Incremental
Term Facility Commitment), dated as of the effective date of such Incremental Term
Facility, in form and substance reasonably satisfactory to the Administrative Agent;



102









 






     (I) the Administrative Agent shall have received documentation from each Person
providing an Incremental Term Facility Commitment evidencing its Incremental Term Facility
Commitment and its obligations under this Agreement in form and substance reasonably
acceptable to the Administrative Agent;




     (J) the Borrower shall have delivered to the Administrative Agent a Pro Forma
Compliance Certificate demonstrating that after giving effect to the incurrence of such
Incremental Term Facility (and the use of proceeds thereof) on a Pro Forma Basis the Loan
Parties would be in compliance with the financial covenants set forth in Section 8.11
recomputed as of the end of the period of the four fiscal quarters most recently ended for
which the Parent has delivered financial statements pursuant to Section 7.01(a) or (b);




     (K) the final maturity date for such Incremental Term Facility shall not be earlier
than the Maturity Date; and




     (L) the weighted average life to maturity for such Incremental Term Facility shall not
be shorter than the then remaining weighted average life of the Term Loan;




     (M) the interest rate margin with respect to such Incremental Term Facility shall be as
agreed by the Loan Parties and the Lenders providing such Incremental Term Facility,
provided that if the all-in-yield on such Incremental Term Facility exceeds the
all-in-yield on the Term Loan and the Revolving Loans by more than fifty basis points
(0.50%), then the Applicable Rate for the Term Loan and the Revolving Loans shall be
increased as to provide an all-in-yield on the Term Loan and the Revolving Loans that is
fifty basis points (0.50%) less than the all-in-yield on such Incremental Term Facility (for
purposes of this clause (M), the calculation of all-in-yield shall include any original
issue discount (with such original issue discount being equated to interest based on an
assumed four-year life to maturity) or upfront fees (wich shall be deemed to constitute like
amounts of original issue discount) but shall exclude customary arrangement or similar
fees);




     (N) subject to the foregoing clauses, the interest rate margins, final maturity date
and weighted average life to maturity applicable to any Incremental Term Facility shall be
determined by the Borrower and the Persons providing such Incremental Term Facility
thereunder.




The Incremental Term Facility Commitments and credit extensions thereunder shall constitute
Commitments and Credit Extensions under, and shall be entitled to all the benefits afforded
by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing,
benefit equally and ratably from the Guarantees and security interests created by the
Collateral Documents. Any such amendment effected pursuant to this clause (v) shall amend
the provisions of this Agreement and the other Loan Documents to set forth the terms of each
Incremental Term Facility established thereby (subject to any applicable restrictions set
forth in this clause (v) and to effect such other changes (including changes to the
provisions of Section 2.05) as the Loan Parties and the Administrative Agent shall
deem necessary or advisable in connection with the establishment of any such Incremental
Term Facility; provided, however, that no such
agreement shall: (A) effect any change described in Section 11.01(a), Section
11.01(b), Section 11.01(c) and Section 11.01(d) without the consent of
each Person required to consent to such change under such clause (it being agreed, however,
that establishment of



103









 






any Incremental Term Facility will not, of itself, be deemed to effect any of the
changes described in Section 11.01(a) and that modifications to the
definitions of “Commitments”, “Term Loan Commitments”,
“Loans” and “Required Lenders” or other provisions relating to
voting provisions to provide the Persons providing the applicable Incremental Term
Facility with the benefit of such provisions will not, by themselves, be deemed to
effect any of the changes described in Section 11.01(a)) or (B) amend
Articles VII, VIII or IX in any manner that by its
terms benefits one or more tranches, but not all tranches, of Loans or Commitments
without the prior written consent of the Required Revolving Lenders to the extent
the Lenders holding Revolving Commitments are not so benefited, and of Lenders
holding more than 50% of the outstanding principal amount of each separate tranche
of term loans then existing and not so benefited (it being agreed that no
provision requiring the Borrower to prepay term loans of one or more Incremental
Term Facilities with the proceeds of Dispositions, Recovery Events, Extraordinary
Receipts, Debt Issuances or Equity Issuances will be deemed to violate this
clause).



Notwithstanding any provision herein to the contrary, this Agreement may be amended with the
written consent of the Required Lenders, the Administrative Agent and the Loan Parties (i) to add
one or more additional revolving credit or term loan facilities to this Agreement and to permit the
extensions of credit and all related obligations and liabilities arising in connection therewith
from time to time outstanding to share ratably (or on a basis subordinated to the existing
facilities hereunder) in the benefits of this Agreement and the other Loan Documents with the
obligations and liabilities from time to time outstanding in respect of the existing facilities
hereunder, and (ii) in connection with the foregoing, to permit, as deemed appropriate by the
Administrative Agent and approved by the Required Lenders, the Lenders providing such additional
credit facilities to participate in any required vote or action required to be approved by the
Required Lenders or by any other number, percentage or class of Lenders hereunder.




11.02 Notices; Effectiveness; Electronic Communications.




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




     (i) if to any Loan Party, the Administrative Agent, the L/C Issuer or the Swing Line
Lender, to the address, telecopier number, electronic mail address or telephone number
specified for such Person on Schedule 11.02; and




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



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




104











 




through electronic communications to the extent provided in subsection (b) below, shall be
effective as provided in such subsection (b).




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



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



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



     (d) Change
of Address, Etc. Each Loan Party, the Administrative Agent, the L/C Issuer
and the Swing Line Lender may change its address, telecopier or telephone number for notices and
other communications hereunder by notice to the other parties hereto. Each other Lender may change
its





105









 







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




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


11.03
No Waiver; Cumulative Remedies; Enforcement.




     No failure by any Lender, the L/C Issuer or the Administrative Agent to exercise, and no
delay by any such Person in exercising, any right, remedy, power or privilege hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power
or privilege hereunder or under any other Loan Document (including the imposition of the Default
Rate) preclude any other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges herein provided, and provided
under each other Loan Document are cumulative and not exclusive of any rights, remedies, powers
and privileges provided by law.



     Notwithstanding anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan Documents against the
Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law
in connection with such enforcement shall be instituted and maintained exclusively by, the
Administrative Agent in accordance with Section 9.02 for the benefit of all the Lenders and
the L/C Issuer; provided, however, that the foregoing shall not prohibit (a) the
Administrative Agent from exercising on its own behalf the rights and remedies that inure to its
benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan
Documents, (b) the L/C Issuer or the Swing Line Lender from exercising the rights and remedies that
inure to its benefit (solely in its capacity as L/C Issuer or Swing Line Lender, as the case may
be) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in
accordance with Section 11.08 (subject to the terms of
Section 2.13), or (d) any
Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the
pendency of a proceeding relative to any Loan Party under any Debtor
Relief Law; and provided further, that if at any time there is no Person acting as Administrative Agent hereunder and
under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise
ascribed to the Administrative Agent







106









 







pursuant to Section 9.02 and (ii) in addition to the matters set forth in clauses (b), (c)
and (d) of the preceding proviso and subject to Section 2.13, any Lender may, with the
consent of the Required Lenders, enforce any rights and remedies available to it and as authorized
by the Required Lenders.



11.04
Expenses; Indemnity; and Damage Waiver.




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



     (b) Indemnification by the Loan Parties. The Loan Parties shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and the L/C Issuer, and each Related
Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and
hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related
expenses (including the reasonable and documented fees, charges and disbursements of any counsel
for any Indemnitee), and shall indemnify and hold harmless each Indemnitee from all fees and time
charges and disbursements for attorneys who may be employees of any Indemnitee, incurred by any
Indemnitee or asserted against any Indemnitee by any third party or by any Loan Party arising out
of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any
other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance
by the parties hereto of their respective obligations hereunder or thereunder, the consummation of
the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and
any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the
other Loan Documents (including in respect of any matters addressed in Section 3.01), (ii)
any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any
refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any
property owned or operated by the Parent or any Subsidiary, or any Environmental Liability related
in any way to the Parent or any Subsidiary, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on contract, tort or
any other theory, whether brought by a third party or by any Loan Party, and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related
expenses (x) are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee, (y)
result from a claim brought by any Loan Party against an Indemnitee for breach in bad faith of such
Indemnitee’s obligations hereunder or under any other Loan Document, if such Loan Party has
obtained a final and nonappealable judgment in its favor on such claim




107









 






	as determined by a court of competent jurisdiction or (z) results from a dispute solely between
Indemnitees and not (1) involving any action or inaction by the Parent or any of its Subsidiaries
or (2) relating to any action of such Indemnitee in its capacity as Administrative Agent or Lead
Arranger.





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



     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, no Loan Party shall assert, and each Loan Party hereby waives, any claim against
any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the
proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended
recipients of any information or other materials distributed to such unintended recipients by such
Indemnitee through telecommunications, electronic or other information transmission systems in
connection with this Agreement or the other Loan Documents or the transactions contemplated hereby
or thereby other than for direct or actual damages resulting from (x) the gross negligence or
willful misconduct of such Indemnitee as determined by a final and nonappealable judgment of a
court of competent jurisdiction or (y) a claim brought by any Loan Party against such Indemnitee
for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan
Document, if such Loan Party has obtained a final and nonappealable judgment in its favor on such
claim as determined by a court of competent jurisdiction.



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



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


11.05 Payments Set Aside.




     To the extent that any payment by or on behalf of any Loan Party is made to the Administrative
Agent, the L/C Issuer or any Lender, or the Administrative Agent, the L/C Issuer or any Lender
exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof
is subsequently invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Administrative Agent, the L/C Issuer or
such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of
such recovery, the obligation or part thereof originally intended to be satisfied shall be revived
and continued in full force and effect as if such payment had not been made or such setoff had not
occurred, and (b) each Lender and the L/C Issuer severally agrees to pay to the Administrative
Agent upon demand its applicable share (without duplication) of any amount so



108









 




recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such
demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from
time to time in effect. The obligations of the Lenders and the L/C Issuer under clause (b) of the
preceding sentence shall survive the payment in full of the Obligations and the termination of
this Agreement.



11.06 Successors and Assigns.




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



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




     (i) Minimum Amounts.




     (A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment and the related Loans at the time owing to it or in
the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund,
no minimum amount need be assigned; and




     (B) in any case not described in subsection (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent or, if “Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date, shall not be less
than $5 million in the case of an assignment of a Revolving Commitment (and the
related Revolving Loans thereunder) and $5 million in the case of an assignment of
the Term Loan unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Borrower otherwise consents (each such
consent not to be unreasonably withheld or delayed); provided,
however, that
concurrent assignments to members of an Assignee Group and concurrent assignments
from members of an Assignee Group to a single Eligible Assignee (or to an Eligible
Assignee and members of its Assignee Group) will be treated as a single assignment
for purposes of determining whether such minimum amount has been met.



109









 






     (ii) Proportionate Amounts. Each partial assignment shall be made as an assignment of
a proportionate part of all the assigning Lender’s rights and obligations under this Agreement
with respect to the Loans or the Commitment assigned, except that this clause (ii) shall not (A)
apply to the Swing Line Lender’s rights and obligations in respect of Swing Line Loans or (B)
prohibit any Lender from assigning all or a portion of its rights and obligations in respect of
its Revolving Commitment (and the related Revolving Loans thereunder) and its outstanding Term
Loan on a non-pro rata basis;




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




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




     (B) the consent of the Administrative Agent (such consent not to be unreasonably
withheld or delayed) shall be required for assignments in respect of (1) any Term Loan
Commitment or Revolving Commitment if such assignment is to a Person that is not a Lender
with a Commitment in respect of the Commitment subject to such assignment, an Affiliate of
such Lender or an Approved Fund with respect to such Lender and (2) any Term Loan to a
Person that is not a Lender, an Affiliate of a Lender or an Approved Fund; and




     (C) the consent of the L/C Issuer (such consent not to be unreasonably withheld or
delayed) shall be required for any assignment that increases the obligation of the assignee
to participate in exposure under one or more Letters of Credit (whether or not then
outstanding); and




     (D) the consent of the Swing Line Lender (such consent not to be unreasonably withheld
or delayed) shall be required for any assignment in respect of Revolving Loans and
Revolving Commitments.




     (iv) Assignment and Assumption. The parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Assumption, together with a processing and
recordation fee in the amount of $3,500; provided,
however, that the Administrative Agent
may, in its sole discretion, elect to waive such processing and recordation fee in the case of any
assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire.




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




     (vi) Certain Additional Payments. In connection with any assignment of rights and
obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and



110









 






until, in addition to the other conditions thereto set forth herein, the parties to the
assignment shall make such additional payments to the Administrative Agent in an aggregate
amount sufficient, upon distribution thereof as appropriate (which may be outright payment,
purchases by the assignee of participations or subparticipations, or other compensating
actions, including funding, with the consent of the Borrower and the Administrative Agent,
the applicable pro rata share of Loans previously requested but not funded by the Defaulting
Lender, to each of which the applicable assignee and assignor hereby irrevocably consent),
to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender
to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y)
acquire (and fund as appropriate) its full pro rata share of all Loans and participations in
Letters of Credit and Swing Line Loans in accordance with its Applicable Percentage.
Notwithstanding the foregoing, in the event that any assignment of rights and obligations of
any Defaulting Lender hereunder shall become effective under applicable Law without
compliance with the provisions of this paragraph, then the assignee of such interest shall
be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance
occurs.


Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c)
of this Section, from and after the effective date specified in each Assignment and Assumption,
the assignee thereunder shall be a party to this Agreement and, to the extent of the interest
assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 3.01. 3.04, 3.05 and 11.04 with respect to
facts and circumstances occurring prior to the effective date of such assignment). Upon request,
the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any
assignment or transfer by a Lender of rights or obligations under this Agreement that does not
comply with this subsection shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with subsection (d) of this
Section.




     (c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrower (and such agency being solely for tax purposes), shall maintain at the Administrative
Agent’s Office a copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of, and principal
amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from
time to time (the “Register”). The entries in the Register shall be conclusive, and the Borrower,
the Administrative Agent and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. In addition, the Administrative Agent shall maintain on the
Register information regarding the designation, and revocation of designation, of any Lender as a
Defaulting Lender. The Register shall be available for inspection by the Borrower and any Lender at
any reasonable time and from time to time upon reasonable prior notice.



     (d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person, Defaulting Lender or the Parent or any of the Parent’s Affiliates or Subsidiaries) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans (including such Lender’s
participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i)
such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of such obligations and
(iii) the Borrower, the Administrative Agent, the Lenders and the




111









 







L/C Issuer shall continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of any provision of
this Agreement; provided that such agreement or instrument may provide that such Lender
will not, without the consent of the Participant, agree to any amendment, waiver or other
modification described in Section 11.01(a) that affects such Participant. Subject to
subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 3.01. 3.04 and 3.05 to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the
extent permitted by Law, each Participant also shall be entitled to the benefits of Section 11.08
as though it were a Lender, provided such Participant agrees to be subject to Section
2.13 as though it were a Lender.




     (e) Limitations on Participant Rights. A Participant shall not be entitled to receive
any greater payment under Section 3.01 or 3.04 than the applicable Lender would
have been entitled to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower’s prior written consent
and the Borrower expressly consents to such increased payments. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.01
unless the Borrower is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with
Section 3.0l(e) as though it were a
Lender.



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



     (g) Resignation as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding
anything to the contrary contained herein, if at any time Bank of America assigns all of its
Revolving Commitment and Revolving Loans pursuant to subsection (b) above, Bank of America may, (i)
upon thirty days’ notice to the Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon
thirty days’ notice to the Borrower, resign as Swing Line Lender. In the event of any such
resignation as L/C Issuer or Swing Line Lender, the Borrower shall be entitled to appoint from
among the Lenders a successor L/C Issuer or Swing Line Lender
hereunder; provided, however,
that no failure by the Borrower to appoint any such successor shall affect the resignation of Bank
of America as L/C Issuer or Swing Line Lender, as the case may be. If Bank of America resigns as
L/C Issuer, it shall retain all the rights, powers, privileges and duties of the L/C Issuer
hereunder with respect to all Letters of Credit outstanding as of the effective date of its
resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to
require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts
pursuant to Section 2.03(c)). If Bank of America resigns as Swing Line Lender, it shall
retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line
Loans made by it and outstanding as of the effective date of such resignation, including the right
to require the Lenders to make Base Rate Loans or fund risk participations in outstanding Swing
Line Loans pursuant to Section 2.04(c). Upon the appointment of a successor L/C Issuer
and/or Swing Line Lender, (1) such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the case
may be, and (2) the successor L/C Issuer shall issue letters of credit in substitution for the
Letters of Credit, if any, outstanding at the time of such succession or make other arrangements
satisfactory to Bank of America to effectively assume the obligations of Bank of America with
respect to such Letters of Credit.



112









 




11.07 Treatment of Certain Information; Confidentiality.




     Each of the Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the
confidentiality of the Information (as defined below), except that Information may be disclosed (a)
to its Affiliates and to its and its Affiliates’ respective partners, directors, officers,
employees, agents, trustees, advisors and representatives (it being understood that the Persons to
whom such disclosure is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested by any regulatory
authority purporting to have jurisdiction over it (including any self-regulatory authority, such as
the National Association of Insurance Commissioners),
(c) to the extent required by applicable laws or regulations or by any subpoena or similar legal
process,
(d) to any other party hereto, (e) solely to the extent necessary in connection with the exercise
of any remedies hereunder or under any other Loan Document or any action or proceeding relating to
this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f)
subject to an agreement containing provisions substantially the same as those of this Section, to
(i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or any Eligible Assignee invited to become a Lender
pursuant to clause (v) of the final proviso of Section 11.01 or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction relating to a Loan
Party and its obligations, (g) with the consent of the Parent or (h) to the extent such Information
(x) becomes publicly available other than as a result of a breach of this Section or (y) becomes
available to the Administrative Agent, any Lender, the L/C Issuer or any of their respective
Affiliates on a nonconfidential basis from a source other than the Parent.



     For purposes of this Section, “Information” means all information received from the Parent or
any Subsidiary relating to the Parent or any Subsidiary or any of their respective businesses,
other than any such information that is available to the Administrative Agent, any Lender or the
L/C Issuer on a nonconfidential basis prior to disclosure by the Parent or any Subsidiary. Any
Person required to maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such Person would accord to
its own confidential information.



     Each of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a) the
Information may include material non-public information concerning the Parent or a Subsidiary, as
the case may be, (b) it has developed compliance procedures regarding the use of material
non-public information and (c) it will handle such material non-public information in accordance
with applicable Law, including United States federal and state securities Laws.


11.08 Set-off.




     If an Event of Default shall have occurred and be continuing, each Lender, the L/C Issuer and
each of their respective Affiliates is hereby authorized at any time and from time to time, after
obtaining the prior written consent of the Administrative Agent, to the fullest extent permitted by
applicable law, to set off and apply any and all deposits (general or special, time or demand,
provisional or final, in whatever currency) at any time held and other obligations (in whatever
currency) at any time owing by such Lender, the L/C Issuer or any such Affiliate to or for the
credit or the account of any Loan Party against any and all of the obligations of such Loan Party
now or hereafter existing under this Agreement or any other Loan Document to such Lender or the L/C
Issuer, irrespective of whether or not such Lender or the L/C Issuer shall have made any demand
under this Agreement or any other Loan Document and although such obligations of such Loan Party
may be contingent or unmatured or are owed to a branch or office of such Lender or the L/C Issuer
different from the branch or office holding such deposit or obligated on such indebtedness;
provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (x)
all amounts so set off shall be paid over immediately to the Administrative Agent







113









 







for further application in accordance with the provisions of Section 2.15 and, pending such
payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in
trust for the benefit of the Administrative Agent and the Lenders, and (y) the Defaulting Lender
shall provide promptly to the Administrative Agent a statement describing in reasonable detail the
Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The
rights of each Lender, the L/C Issuer and their respective Affiliates under this Section are in
addition to other rights and remedies (including other rights of setoff) that such Lender, the L/C
Issuer or their respective Affiliates may have. Each Lender and the L/C Issuer agrees to notify
the Borrower and the Administrative Agent promptly after any such setoff and application,
provided that the failure to give such notice shall not affect the validity of such setoff
and application. Notwithstanding the provisions of this Section 11.08, if at any time any
Lender, the L/C Issuer or any of their respective Affiliates maintains (a) one or more deposit
accounts for the Borrower or any other Loan Party into which Medicare and/or Medicaid receivables
are deposited or (b) any deposit account of the type described in clauses (b), (c) or (d) of the
definition of Excluded Account, then, in each case, such Person shall waive the right of setoff
set forth herein.



11.09 Interest Rate Limitation.




     Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or
agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious
interest permitted by applicable Law (the “Maximum Rate”). If the Administrative Agent or any
Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest
shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded
to the Borrower. In determining whether the interest contracted for, charged, or received by the
Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent
permitted by applicable Law, (a) characterize any payment that is not principal as an expense,
fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof,
and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of
interest throughout the contemplated term of the Obligations hereunder.


11.10
Counterparts; Integration; Effectiveness.




     This Agreement may be executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Agreement and the other Loan Documents constitute the
entire contract among the parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the subject matter hereof.
Except as provided in Section 5.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent shall have
received counterparts hereof that, when taken together, bear the signatures of each of the other
parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by
telecopy or other electronic imaging means shall be effective as delivery of a manually executed
counterpart of this Agreement.


11.11 Survival of Representations and Warranties.




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



114









 




11.12
Severability.




     If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid
or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the
parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable
provisions with valid provisions the economic effect of which comes as close as possible to that of
the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
Without limiting the foregoing provisions of this
Section 11.12, if and to the extent that
the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be
limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent, the L/C
Issuer or the Swing Line Lender, as applicable, then such provisions shall be deemed to be in
effect only to the extent not so limited.


11.13 Replacement of Lenders.




     If
(i) any Lender requests compensation under
Section 3.04, (ii) the Borrower is
required to pay any additional amount to any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 3.01, (iii) a Lender (a “Non-Consenting Lender”)
does not consent to a proposed change, waiver, discharge or termination with respect to any Loan
Document that has been approved by the Required Lenders as provided in Section 11.01 but
requires unanimous consent of all Lenders or all Lenders directly affected thereby (as applicable)
or (iv) any Lender is a Defaulting Lender, then the Borrower may, at its sole expense and effort,
upon notice to such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions contained in, and
consents required by, Section 11.06), all of its interests, rights and obligations under
this Agreement and the related Loan Documents to an assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such assignment), provided that:




     (a) the Borrower or Lender accepting such assignment shall have paid to the
Administrative Agent the assignment fee specified in
Section 11.06(b);




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




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




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




     (e) in the case of any such assignment resulting from a Non-Consenting Lender’s failure
to consent to a proposed change, waiver, discharge or termination with respect to any Loan
Document, the applicable assignee consents to the proposed change, waiver, discharge or
termination; provided that the failure by such Non-Consenting Lender to execute and
deliver an Assignment and Assumption shall not impair the validity of the removal of such
Non-Consenting Lender and the mandatory assignment of such Non-Consenting Lender’s
Commitments and outstanding Loans and participations in L/C Obligations and Swing Line Loans
pursuant to this



115









 






Section 11.13 shall nevertheless be effective without the execution by such
Non-Consenting Lender of an Assignment and Assumption.



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


11.14
Governing Law; Jurisdiction; Etc.




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



     (b) SUBMISSION TO JURISDICTION. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN
DISTRICT OF SUCH STATE, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR
ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES
THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW
YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH
OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY
RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY LOAN PARTY
OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.



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



     (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02. NOTHING IN THIS AGREEMENT WILL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.


11.15 Waiver of Jury Trial.




     EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN



116









 




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



11.16 No Advisory or Fiduciary Responsibility.




     In connection with all aspects of each transaction contemplated hereby (including in
connection with any amendment, waiver or other modification hereof or of any other Loan Document),
each of the Loan Parties acknowledges and agrees that: (i) (A) the arranging and other services
regarding this Agreement provided by the Administrative Agent and the Arranger are arm’s-length
commercial transactions between the Loan Parties, on the one hand, and the Administrative Agent and
the Arranger, on the other hand, (B) each of the Loan Parties has consulted its own legal,
accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) each of
the Loan Parties is capable of evaluating, and understands and accepts, the terms, risks and
conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) the
Administrative Agent and the Arranger each is and has been acting solely as a principal and, except
as expressly agreed in writing by the relevant parties, has not been, is not, and will not be
acting as an advisor, agent or fiduciary for the Loan Parties, or any other Person and (B) neither
the Administrative Agent nor the Arranger has any obligation to the Loan Parties with respect to
the transactions contemplated hereby except those obligations expressly set forth herein and in the
other Loan Documents; and (iii) the Administrative Agent and the Arranger and their respective
Affiliates may be engaged in a broad range of transactions that involve interests that differ from
those of the Loan Parties and their respective Affiliates, and neither the Administrative Agent nor
the Arranger has any obligation to disclose any of such interests to the Loan Parties. To the
fullest extent permitted by Law, each of the Loan Parties hereby waives and releases any claims
that it may have against the Administrative Agent and the Arranger with respect to any breach or
alleged breach of agency or fiduciary duty in connection with any aspect of any transaction
contemplated hereby.


11.17 Electronic Execution of Assignments and Certain Other Documents.




     The words “execution,” “signed,” “signature,” and words of like import in any Assignment and
Assumption or in any amendment or other modification hereof (including waivers and consents) shall
be deemed to include electronic signatures or the keeping of records in electronic form, each of
which shall be of the same legal effect, validity or enforceability as a manually executed
signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and
as provided for in any applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records Act, or any other
similar state laws based on the Uniform Electronic Transactions Act.


11.18 Subordination of Intercompany Indebtedness.




     Each holder of Intercompany Indebtedness (each a “Holder”) and each issuer of Intercompany
Indebtedness (each a “Maker”) agrees with the Administrative Agent and the other holders of the
Obligations as follows:



117









 





     (a) Subordination. The payment of principal, interest, fees and other amounts with
respect to Intercompany Indebtedness is expressly subordinated to the Obligations.



     (b) Payments. If an Event of Default has occurred and is continuing and the Required
Lenders have terminated the Commitments and caused the Loans to be immediately due and payable
pursuant to Section 9.02, no Maker may make, and no Holder may take, demand, receive or
accept, any payment with respect to Intercompany Indebtedness.



     (c) Payments Held in Trust. In the event any payment of principal or interest or
distribution of property of any Maker on or in respect of Intercompany Indebtedness shall be
received by any Holder in violation of Section 11.18(b), such payment or distribution shall be held
in trust for the Administrative Agent, for the benefit of the holders of the Obligations, and such
Holder will forthwith turn over any such payments in the form received, properly endorsed or
assigned, to the Administrative Agent, for the benefit of the holders of the Obligations.



     (d) Enforcement. If an Event of Default has occurred and is continuing and the
Required Lenders have terminated the Commitments and caused the Loans to be immediately due and
payable pursuant to Section 9.02, then no Holder shall be entitled to demand payment of or
accelerate any Intercompany Indebtedness or to exercise any remedies or take any actions against
any Maker to enforce any of such Holder’s rights with respect to Intercompany Indebtedness.



     (e) Collateral. No Holder will ask, demand, accept, or receive any collateral security
from any Loan Party for the payment of Intercompany Indebtedness, and any collateral security for
the payment of Intercompany Indebtedness that any Holder may now or hereafter have on any property
of any Loan Party is expressly subordinated to the Liens of the Administrative Agent, for the
benefit of the holders of the Obligations, securing the Obligations.



     (f) Attorney in Fact. Each Holder irrevocably authorizes and directs the
Administrative Agent and any trustee in bankruptcy, receiver, custodian or assignee for the benefit
of creditors of any Maker, whether in voluntary or involuntary liquidation, dissolution or
reorganization, in its behalf to take such action as may be necessary or appropriate to effectuate
the subordination provided for in this Section 11.18 and irrevocably appoints, which
appointment is coupled with an interest, upon the occurrence and during the continuation of any
Event of Default, the Administrative Agent, or any such trustee, receiver, custodian or assignee,
its attorneys in fact for such purpose with full powers of substitution and revocation; provided
that all such irrevocable appointments shall terminate upon Satisfaction in Full.



     (g) Proof and Vote of Claims. Each Holder irrevocably appoints, which appointment is
irrevocable and coupled with an interest, the Administrative Agent as such Holder’s true and lawful
attorney, with full power of substitution, in the name of such Holder, the Administrative Agent,
the holders of the Obligations or otherwise, for the sole use and benefit of the Administrative
Agent, to the extent permitted by Law, to prove and vote all claims relating to Intercompany
Indebtedness, and to receive and collect all distributions and payments to which such Holder would
be otherwise entitled on any liquidation of any Maker or any of its property or in any proceeding
affecting any Maker or its property under any Debtor Relief Laws; provided that all such
irrevocable appointments shall terminate upon Satisfaction in Full.



     (h) No Interference. Each Holder agrees (i) not to take any action as the holder of
Intercompany Indebtedness that will impede, interfere with or restrict or restrain the exercise by
the Administrative Agent of its rights and remedies under the Loan Documents and (ii) upon the
commencement of any proceeding under Debtor Relief Laws, to take such actions as the holder of
Intercompany Indebtedness as may be reasonably necessary or appropriate to effectuate the
subordination



118









 




provided hereby. In furtherance thereof, each Holder, in its capacity as a holder of Intercompany
Indebtedness, agrees not to oppose any motion filed or supported by the Administrative Agent or
any other holder of the Obligations for relief from stay or for adequate protection in respect of
the Obligations and not to oppose any motions supported by the Administrative Agent or any other
holder of the Obligations for any Loan Party’s use of cash collateral or post petition borrowing
from any of the Lenders or the Administrative Agent.



11.19 USA PATRIOT Act.




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



[SIGNATURE PAGES FOLLOW]




119









 






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





	 	 	 	 	 	 	 

	     BORROWER:	 	ACADIA HEALTHCARE COMPANY, LLC,	 	 
	 	 	a Delaware limited liability company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Joey A. Jacobs
 

Joey A. Jacobs
	 	 
	 

	 	Title:
	 	Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	     GUARANTORS:	 	ACADIA HEALTHCARE HOLDINGS, LLC,	 	 
	 	 	a Delaware limited liability company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Joey A. Jacobs
 

Joey A. Jacobs
	 	 
	 

	 	Title:
	 	Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	ACADIA MANAGEMENT COMPANY, INC., a Delaware corporation
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Joey A. Jacobs
 

Joey A. Jacobs
	 	 
	 

	 	Title:
	 	Chief Executive Officer	 	 






[SIGNATURE PAGES CONTINUE]




 









 





	 	 	 	 	 
	 	ACADIA-YFCS HOLDINGS, INC., a Delaware corporation 

YOUTH & FAMILY CENTERED SERVICES, INC., a Georgia corporation 

ACADIA HOSPITAL OF LONGVIEW, LLC, 

a Delaware limited liability company 

KIDS BEHAVIORAL HEALTH OF MONTANA, INC., a Montana corporation 

ACADIA VILLAGE, LLC, a Delaware limited liability company 

LAKEVIEW BEHAVIORAL HEALTH SYSTEM LLC, 

a Delaware limited liability company 

ACADIA RIVERWOODS, LLC, a Delaware limited liability company 

ACADIA LOUISIANA, LLC, a Delaware limited liability company 

ACADIA ABILENE, LLC, a Delaware limited liability company 

ACADIA HOSPITAL OF LAFAYETTE, LLC, 

a Delaware limited liability company 

YFCS MANAGEMENT, INC., a Georgia corporation 

YFCS HOLDINGS-GEORGIA, INC., a Georgia corporation 

OPTIONS COMMUNITY BASED SERVICES, INC., an Indiana corporation 

OPTIONS TREATMENT CENTER ACQUISITION CORPORATION, 

an Indiana corporation 

RESOLUTE ACQUISITION CORPORATION, an Indiana corporation 

RESOURCE COMMUNITY BASED SERVICES, INC., an Indiana corporation 

RTC RESOURCE ACQUISITION CORPORATION, an Indiana corporation 

SUCCESS ACQUISITION CORPORATION, an Indiana corporation 

ASCENT ACQUISITION CORPORATION, an Arkansas corporation 

SOUTHWOOD PSYCHIATRIC HOSPITAL, INC., a Pennsylvania corporation

MEMORIAL HOSPITAL ACQUISITION CORPORATION, 

a New Mexico corporation 

MILLCREEK MANAGEMENT CORPORATION, a Georgia corporation 

REHABILITATION CENTERS, INC., a Mississippi corporation 

LAKELAND HOSPITAL ACQUISITION CORPORATION, 

a Georgia corporation 

PSYCHSOLUTIONS ACQUISITION CORPORATION, a Florida corporation

 	 
	 	By:  	/s/ Joey A. Jacobs
 	 
	 	Name:  	Joey A. Jacobs  	 
	 	Title:  	President 	 
	 



[SIGNATURE PAGES CONTINUE]



[Signature Page to Credit Agreement]




 









 





	 	 	 	 	 
	 	YOUTH AND FAMILY CENTERED SERVICES OF NEW MEXICO, INC., a

New Mexico corporation

SOUTHWESTERN CHILDREN’S HEALTH SERVICES, INC.,

an Arizona corporation

YOUTH AND FAMILY CENTERED SERVICES OF FLORIDA, INC.,

a Florida corporation

PEDIATRIC SPECIALTY CARE, INC., an Arkansas corporation

CHILD & YOUTH PEDIATRIC DAY CLINICS, INC, an Arkansas corporation

MED PROPERTIES, INC., an Arkansas corporation

ASCENT ACQUISITION CORPORATION-CYPDC, an Arkansas corporation

ASCENT ACQUISITION CORPORATION-PSC, an Arkansas corporation

MEDUCARE TRANSPORT, L.L.C., an Arkansas limited liability company

PEDIATRIC SPECIALTY CARE PROPERTIES, LLC,

an Arkansas limited liability company

CHILDRENS MEDICAL TRANSPORTATION SERVICES, LLC,

an Arkansas limited liability company

MELLCREEK SCHOOLS INC., a Mississippi corporation

HABILITATION CENTER, INC., an Arkansas corporation

MILLCREEK SCHOOL OF ARKANSAS, INC., an Arkansas corporation

PSYCHSOLUTIONS, INC., a Florida corporation

 	 
	 	By:  	/s/ Joey A. Jacobs
 	 
	 	Name:  	Joey A. Jacobs 	 
	 	Title:  	President 	 
	 



[SIGNATURE PAGES CONTINUE]




[Signature Page to Credit Agreement]




 









 





	 	 	 	 	 
	ADMINISTRATIVE AGENT: 	BANK OF AMERICA, N.A, as Administrative Agent

 	 
	 	By:  	/s/ Roberto Salazar
 	 
	 	Name:  	Roberto Salazar 	 
	 	Title:  	Vice President 	 
	 
	LENDERS: 	BANK OF AMERICA, N.A.,

as a Lender, L/C Issuer and Swing Line Lender

 	 
	 	By:  	/s/ Suzanne B. Smith
 	 
	 	Name:  	Suzanne B. Smith 	 
	 	Title:  	Senior Vice President 	 
	 
	 	FIFTH THIRD BANK

 	 
	 	By:  	/s/ William D. Priester
 	 
	 	Name:  	William D. Priester 	 
	 	Title:  	Vice President 	 
	 
	 	GENERAL ELECTRIC CAPITAL CORPORATION

 	 
	 	By:  	/s/ Keith Bird
 	 
	 	Name:  	Keith Bird 	 
	 	Title:  	Duly Authorized Signatory 	 
	 
	 	CITIBANK, N.A.

 	 
	 	By:  	/s/ Dina Garthwaite
 	 
	 	Name:  	Dina Garthwaite 	 
	 	Title:  	Vice President 	 
	 
	 	REGIONS BANK

 	 
	 	By:  	/s/ Gregory M. Ratliff
 	 
	 	Name:  	Gregory M. Ratliff 	 
	 	Title:  	Senior Vice President 	 
	 
	 	RAYMOND JAMES BANK

 	 
	 	By:  	/s/ Alexander L. Rody
 	 
	 	Name:  	Alexander L. Rody 	 
	 	Title:  	Senior Vice President 	 
	 
	 	ROYAL BANK OF CANADA

 	 
	 	By:  	/s/ William J. Caggiano
 	 
	 	Name:  	William J. Caggiano 	 
	 	Title:  	Authorized Signatory 	 
	 



[SIGNATURE PAGES CONTINUE]





 









 








	 	 	 	 	 
	 	FIRST TENNESSEE BANK

 	 
	 	By:  	/s/ Brian C. Wille
 	 
	 	Name:  	Brian C. Wille 	 
	 	Title:  	Vice President 	 
	 
	 	CAPSTAR BANK

 	 
	 	By:  	/s/ Timothy B. Fouts
 	 
	 	Name:  	Timothy B. Fouts 	 
	 	Title:  	Senior Vice President 	 
	 
	 	GE CAPITAL FINANCIAL INC

 	 
	 	By:  	/s/
Jeffrey Thomos
 	 
	 	Name:  	Jeffrey Thomos 	 
	 	Title:  	Duly Authorized Signatory 	 
	 




 











 




All SCHEDULES




	 	 	 

	2.01

	 	Commitments and Applicable Percentages
	6.13

	 	Subsidiaries
	6.17

	 	IP Rights
	6.20-1

	 	Locations of Real Property
	6.20-2

	 	Location of Chief Executive Office, Taxpayer Identification Number, Etc.
	6.20-3

	 	Changes in Legal Name, State of Formation and Structure
	8.01

	 	Liens Existing on the Closing Date
	8.02

	 	Investments Existing on the Closing Date
	8.03

	 	Indebtedness Existing on the Closing Date
	11.02

	 	Certain Addresses for Notices







 









 








Schedule 2.01




Commitments and Applicable Percentages



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Revolving	 	Applicable	 	Term Loan	 	Applicable
	Lender     	 	Commitment	 	Percentage	 	Commitment	 	Percentage
	Bank of America, N.A.
	 	$	6,363,636.36	 	 	 	21.212121212	%	 	$	28,636,363.64	 	 	 	21.212121212	%
	Fifth Third Bank
	 	$	5,000,000.00	 	 	 	16.666666667	%	 	$	22,500,000.00	 	 	 	16.666666667	%
	General Electric
Capital Corporation
	 	$	3,818,181.82	 	 	 	12.727272727	%	 	$	17,181,818.18	 	 	 	12.727272727	%
	Citigroup Global
Markets, Inc.
	 	$	3,818,181.82	 	 	 	12.727272727	%	 	$	17,181,818.18	 	 	 	12.727272727	%
	Regions Bank
	 	$	3,818,181.82	 	 	 	12.727272727	%	 	$	17,181,818.18	 	 	 	12.727272727	%
	Raymond James Bank
	 	$	2,454,545.45	 	 	 	8.181818182	%	 	$	11,045,454.55	 	 	 	8.181818182	%
	Royal Bank of Canada
	 	$	1,818,181.82	 	 	 	6.060606061	%	 	$	8,181,818.18	 	 	 	6.060606061	%
	First Tennessee Bank
	 	$	1,818,181.82	 	 	 	6.060606061	%	 	$	8,181,818.18	 	 	 	6.060606061	%
	CapStar Bank
	 	$	1,090,909.09	 	 	 	3.636363636	%	 	$	4,909,090.91	 	 	 	3.636363636	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Total:
	 	$	135,000,000.00	 	 	 	100.000000000	%	 	$	30,000,000.00	 	 	 	100.000000000	%











 









 








Schedule 6.13




Subsidiaries



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Number and
	 	 	 	 	 	 	 	 	Percentage
	 	 	 	 	 	 	 	 	Outstanding Shares
	 	 	Jurisdiction of	 	Number of Shares	 	owned by Parent or
	Loan Party	 	Formation	 	Outstanding	 	Subsidiary
	Acadia-YFCS Holdings, Inc.

	 	DE
	 	 	100	 	 	100% owned by
Borrower
	Acadia Healthcare Company, LLC

	 	DE
	 	 	N/A	 	 	100% owned by
Holdings
	Youth & Family Centered
Services, Inc.

	 	GA
	 	 	83,609,009	 	 	100% owned by
Acadia-YFCS
Holdings, Inc.
	Acadia Management Company,
Inc.

	 	DE
	 	 	1,000	 	 	100% owned by
Borrower
	Acadia Hospital of Longview,
LLC

	 	DE
	 	 	N/A	 	 	100% owned by
Borrower
	Kids Behavioral Health of
Montana, Inc.

	 	MT
	 	 	1,000	 	 	100% owned by
Borrower
	Acadia Village, LLC

	 	DE
	 	 	N/A	 	 	100% owned by
Borrower
	Lakeview Behavioral Health
System LLC

	 	GA
	 	 	N/A	 	 	100% owned by
Borrower
	Acadia Riverwoods, LLC

	 	DE
	 	 	N/A	 	 	100% owned by
Borrower
	Acadia Louisiana, LLC

	 	DE
	 	 	N/A	 	 	100% owned by
Borrower
	Acadia Abilene, LLC

	 	DE
	 	 	N/A	 	 	100% owned by
Borrower
	Acadia Hospital of Lafayette,
LLC

	 	DE
	 	 	N/A	 	 	100% owned by
Borrower
	YFCS Management, Inc.

	 	GA
	 	 	1,000	 	 	100% owned by Youth
& Family Centered
Services, Inc.
	YFCS Holdings-Georgia, Inc.

	 	GA
	 	 	1,000	 	 	100% owned by Youth
& Family Centered
Services, Inc.






 









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Number and
	 	 	 	 	 	 	 	 	Percentage
	 	 	 	 	 	 	 	 	Outstanding Shares
	 	 	Jurisdiction of	 	Number of Shares	 	owned by Parent or
	Loan Party	 	Formation	 	Outstanding	 	Subsidiary
	Options Community Based
Services, Inc.

	 	IN
	 	 	100	 	 	100% owned by Youth
& Family Centered
Services, Inc.
	Options Treatment Center 

Acquisition Corporation

	 	IN
	 	 	100	 	 	100% owned by Youth
& Family Centered
Services, Inc.
	Resolute Acquisition
Corporation

	 	IN
	 	 	100	 	 	100% owned by Youth
& Family Centered
Services, Inc.
	Resource Community Based
Services, Inc.

	 	IN
	 	 	100	 	 	100% owned by Youth
& Family Centered
Services, Inc.
	RTC Resource Acquisition
Corporation

	 	IN
	 	 	100	 	 	100% owned by Youth
& Family Centered
Services, Inc.
	Success Acquisition
Corporation

	 	IN
	 	 	100	 	 	100% owned by Youth
& Family Centered
Services, Inc.
	Ascent Acquisition Corporation

	 	AR
	 	 	100	 	 	100% owned by Youth
& Family Centered
Services, Inc.
	Southwood Psychiatric
Hospital, Inc.

	 	PA
	 	 	100	 	 	100% owned by Youth
& Family Centered
Services, Inc.
	Memorial Hospital Acquisition
Corporation

	 	NM
	 	 	1,000	 	 	100% owned by Youth
& Family Centered
Services, Inc.
	Millcreek Management
Corporation

	 	GA
	 	 	2,900	 	 	100% owned by Youth
& Family Centered
Services, Inc.
	Rehabilitation Centers, Inc.

	 	MS
	 	 	10	 	 	100% owned by Youth
& Family Centered
Services, Inc.
	Lakeland Hospital Acquisition
Corporation

	 	GA
	 	 	1,000	 	 	100% owned by Youth
& Family Centered
Services, Inc.
	PsychSolutions Acquisition
Corporation

	 	FL
	 	 	100	 	 	100% owned by Youth
& Family Centered
Services, Inc.
	Youth And Family Centered
Services of New Mexico, Inc.

	 	NM
	 	 	1,000	 	 	100% owned by YFCS
Management, Inc.
	Southwestern Children’s
Health Services, Inc.

	 	AZ
	 	 	100	 	 	100% owned by YFCS
Management, Inc.
	Youth And Family Centered
Services Of Florida, Inc.

	 	FL
	 	 	1,000	 	 	100% owned by YFCS
Management, Inc.
	Pediatric Specialty Care, Inc.

	 	AR
	 	 	10,000	 	 	100% owned by
Ascent Acquisition
Corporation
	Child & Youth Pediatric Day
Clinics, Inc.

	 	AR
	 	 	400	 	 	100% owned by
Ascent Acquisition
Corporation






 









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Number and
	 	 	 	 	 	 	 	 	Percentage
	 	 	 	 	 	 	 	 	Outstanding Shares
	 	 	Jurisdiction of	 	Number of Shares	 	owned by Parent or
	Loan Party	 	Formation	 	Outstanding	 	Subsidiary
	Med Properties, Inc.

	 	AR
	 	 	10,000	 	 	100% owned by
Ascent Acquisition
Corporation
	Ascent Acquisition
Corporation-CYPDC

	 	AR
	 	 	100	 	 	100% owned by
Ascent Acquisition
Corporation
	Ascent Acquisition
Corporation-PSC

	 	AR
	 	 	100	 	 	100% owned by
Ascent Acquisition
Corporation
	Meducare Transport, L.L.C.

	 	AR
	 	 	N/A	 	 	100% owned by
Ascent Acquisition
Corporation
	Pediatric Specialty Care
Properties, LLC

	 	AR
	 	 	N/A	 	 	100% owned by
Ascent Acquisition
Corporation
	Childrens Medical
Transportation Services, LLC

	 	AR
	 	 	N/A	 	 	100% owned by
Ascent Acquisition
Corporation
	Millcreek Schools, Inc.

	 	MS
	 	 	1,000	 	 	100% owned by
Rehabilitation
Centers, Inc.
	Habilitation Center, Inc.

	 	AR
	 	 	100	 	 	100% owned by
Rehabilitation
Centers, Inc.
	Millcreek School of Arkansas,
Inc.

	 	AR
	 	 	100	 	 	100% owned by
Rehabilitation
Centers, Inc.
	Psychsolutions, Inc.

	 	FL
	 	 	600	 	 	100% owned by
PsychSolutions
Acquisition
Corporation











 









 








Schedule 6.17




IP Rights



          Trademarks, Service Marks and Copyrights




U.S. Service Mark Registration No.: 2269814

Mark: YFCS YOUTH & FAMILY CENTERED SERVICES AND DESIGN

Registrant: Youth and Family Centered Services, Inc.

Registration Date: August 10, 1999




U.S. Service Mark Registration No.: 3,231,173

Mark: ASCENT

Registrant: Pediatric Specialty Care, Inc.

Registration Date: April 14, 2007




U.S. Service Mark Registration No.: 3,231,174

Mark: ASCENT SUCCESS IS WITHIN REACH & Design

Registrant: Pediatric Specialty Care, Inc.

Registration Date: April 14, 2007




U.S. Service Mark Registration No.: 3,852,349

Mark: MILLCREEK

Registrant: Rehabilitation Centers, Inc.

Registration Date: September 28, 2010



Registered Copyright:




U.S. Copyright Registration No. TXu1020893

Title: Guidelines for provision of occupational, physical and speech therapy

Registrant: Pediatric Specialty Care, Inc.

Registration date: 09/17/01



Proprietary Material with Notice of Copyright:



“Master Treatment Plan Formulation and Implementation Manual: YFCS Model of Care for Psychiatric
RTC Services”



Authors: Richard T. Rowlison, Ph.D., YFCS Chief Clinical Officer and Raphael A. Luccasen, MSW,
MPH, Former YFCS Chief Clinical Officer



Date of Copyright Notice: 2008









 









 








Schedule 6.20-1




Locations of Real Property



(a) Owned Real Property



1. Rehabilitation Centers, Inc. (Millcreek Magee & School)




Pecan Grove Group Home, 1114 1st Ave NE, Magee, MS 39111.

Therapeutic Group Home, 1010 1st Ave NE, Magee, MS 39111.

Cedar Hill Group Home (Therapeutic Group Home II), 1112 1st Ave NE, Magee, MS 39111.



2. Youth and Family Centered Services of New Mexico, Inc.



5310 Sequoia NW, Albuquerque, NM 87120.



3. Southwood Psychiatric Hospital, Inc.




Southwood Psychiatric Hospital Acute and SMB RTF, 2575 Boyce Plaza Road, Pittsburgh, PA 15241.

Promise House, 13 Lemon Hill, Prosperity, PA 15329.

MRDD RTF, 311 Station Street, Bridgeville, PA 15017.

Family Based Program, 443 Chess Street, Bridgeville, PA 15017.



4. Southwestern Children’s Heath Services Company, d/b/a Parc Place, Chandler AZ



2190 N. Grace Blvd., Chandler, AZ 85225.



5. Southwestern Children’s Heath Services Company, d/b/a Parc Place, Casa Grande, AZ



1120 E. 6th Street, Casa Grande, AZ 85222.



6. Millcreek School of Arkansas, Inc.




Haley House Group Home, 1918 North Highway 79, Fordyce, AR 71742.1

Boys Ranch Group Home, 361 State Road 229, Fordyce, AR 71742.2

Oak Creek Group Home, 204 Cadiz Road, Fordyce, AR 71742.3

Willow Creek Group Home, 1212 North Moro Street, Fordyce, AR 71742.4

ICF/MR Campus/Office, 1216 North Moro Street, Fordyce, AR 71742.5

Land, 1828 Industrial Drive, Fordyce, AR 71742.6



7. Lakeland Hospital Acquisition Corporation






 




			
	1	 	Property will be an Excluded Property under
the Credit Agreement.
	 
	2	 	Property will be an Excluded Property under
the Credit Agreement.
	 
	3	 	Property will be an Excluded Property under
the Credit Agreement.
	 
	4	 	Property will be an Excluded Property under
the Credit Agreement.
	 
	5	 	Property will be an Excluded Property under
the Credit Agreement.
	 
	6	 	Property will be an Excluded Property under
the Credit Agreement.




 









 










Land at 440 South Market Avenue, Springfield, MO 65806.

Hospital at 440 South Market Avenue, Springfield, MO 65806.



8. Pediatric Specialty Care Properties, LLC




Benton Day Treatment, 3214 Winchester Drive, Benton, AR 72015.

Arkadelphia Day Treatment, 2410 Pine Street, Arkadelphia, AR 71923.

Blytheville Day Treatment, 1510 Byrum, Blytheville, AR 72315.7

Lot two (2) of Arbor Commercial Park Subdivision, Harrison, AR.8



9. Med Properties, Inc.




North Little Rock Day Treatment, 4107 Richards Road, North Little Rock, AR 72117.

West Memphis Day Treatment, 413 West Tyler Cove, West Memphis, AR 72301.



10. Ascent Acquisition Corporation




Paragould Day Treatment, 1910 Rector Road, Paragould, AR 72450.9

Trumann Day Treatment, 1005 Balcom Lane, Trumann, AR 72472.10

Mountain Home Day Treatment (land and clinic), 18 County Road 458, Mountain Home, AR 72653.11

CYDC Out Patient, 800 S. Church Street, Suite 201, Jonesboro, AR 72401.12

Lots 4 & 5 Gladiolus Dr, Jonesboro, AR 72401.13




Owned Acadia Current




	 	 	 

	Acadia Abilene , LLC

	 	(Main Campus is comprised of these addresses)
	 

	 	4225 Woods Place Abilene, TX 79602
	 

	 	4223 Woods Place Abilene, TX 79602
	 

	 	4210 Spindletop Dr. Abilene, TX 79602
	 

	 	1115 Industrial Blvd, Abilene TX 79602
	Kids Behavioral of Montana, Inc (RTC building and surrounding structures)
	 

	 	55 Basin Creek Butte, MT 59701
	 
	 	 
	Acadia Riverwoods, LLC ( Hospital and surrounding structures)
	 

	 	223 Medical Center Dr, Riverdale, GA 30274






(b) Leases




Youth and Family Centered Services of New Mexico, Inc.



Desert Hills — New Mexico 5200 Sequoia NW (Capital Lease), Albuquerque, NM 87120






 




			
	7	 	Property will be an Excluded Property under
the Credit Agreement.
	 
	8	 	Property will be an Excluded Property under
the Credit Agreement.
	 
	9	 	Property will be an Excluded Property under
the Credit Agreement.
	 
	10	 	Property will be an Excluded Property under
the Credit Agreement.
	 
	11	 	Property will be an Excluded Property under
the Credit Agreement.
	 
	12	 	Property will be an Excluded Property under
the Credit Agreement.
	 
	13	 	Property will be an Excluded Property under
the Credit Agreement.




 









 









Desert Hills — New Mexico 3320 Coors NW, Albuquerque, NM 87120




Youth and Family Centered Services of Florida, Inc.



Tampa Bay Academy 12012 Boyette Rd, Riverview, FL 3356914



Tampa Bay Academy Modular Office Building — 12012 Boyette Rd, Riverview, FL 33569




Southwood Psychiatric Hospital, Inc.



Southwood Master Lease — Concord, Prosperity & Mansion Houses — 110–130, Concord Road,
Prosperity, PA 15329



Administrative Offices — 1035 Boyce Road, Ste. 218 & 260, Upper St. Clair, PA 15241




Resolute Acquisition Corporation



Midwest Administrative Office Regional Office — 9105 East 56th Street, Suite 2200, Indianapolis,
Indiana 46216



Resolute Building and Property — 320 N. Tibbs Avenue, Indianapolis, Indiana 46222



Resolute Parking Lot — 362 N. Tibbs Avenue, Indianapolis, Indiana 46222




Success Acquisition Corporation



Success Parking Lot — 3455 W. Vermont, Indianapolis, Indiana 46222



Success Property & Improvements — 3455 W. Vermont, Indianapolis, Indiana 46222 (Success Group
Home)



Success Group Home A— 1404 S. State Avenue, Indianapolis, Indiana 46203




Resource Community Based Services, Inc.



Building and Property — 1404 S. State Avenue, Indianapolis, Indiana 46203



Resource Mobile Office Lease — 1404 S. State Avenue, Indianapolis, Indiana 46203




Options Community Based Services, Inc.



Building and Property — 5602 Caito Drive, Indianapolis, Indiana 46226



Options Group Home B — 1404 S. State Avenue, Indianapolis, Indiana 46203




Rehabilitation Centers, Inc.



Rehabilitation #203 Building & land — 900 First Ave, Magee, MS 39111



Rehabilitation #203 Building & land — 900 First Ave, Magee, MS 39111






 




			
	14	 	Modular school building and modular office
building structures owned and maintained at this location.




 









 









Rehabilitation #203 Building — 900 First Ave, Magee, MS 39111



Rehabilitation #203 CBS 11,000 sq building — Lot 3 of Block 101, 400 North 4th Street,
Collins, MS 39428



Rehabilitation #203 CBS Building Lease CBS — 1331 South Street, Suite D, Grenada, MS 38901



Rehabilitation #203 CBS Building Lease CBS — 209 Commerce Street, Tupelo, MS 38803



Rehabilitation #203 CBS Building Lease CBS (Moss Point) — 7125 Hwy 613, Escatawpa, MS 39552



Rehabilitation #203 CBS Building Lease CBS — 303 Briarwood Drive, Jackson, MS 39206



Rehabilitation #203 CBS Building Lease — 713 Farmer Street, Port Gibson, MS 39150



Rehabilitation #203 CBS Building Lease — 6121 Beltline Road, Long Beach, MS 39560



Building Lease — 18 Stafford Road, Picayune, MS 39466



Millcreek of Pontotoc #603 Admin Building & Cottages — 1814 Hwy 15 North, Pontotoc, MS 38863



Millcreek School Pontotoc #703 Day Treatment — 171 Buckhorn Road, Batesville, MS 38606



Millcreek School Pontotoc #703 Day Treatment — 708 Taylor Street, Starkville, MS 39759



Millcreek School Pontotoc #703 Day Treatment — 405 County Road 565, Ripley, MS 38663




Milcreek Schools, Inc.



Millcreek School #303 School Building — 900 First Ave. Magee, MS 39111



Millcreek School #303 Day Treatment Building — 33 Hamburg Road, Meadville, MS 39653



Millcreek School #303 Day Treatment Building — 1639 East Pass Road, Gulfport, MS 39507



Millcreek School Pontotoc #703 Day Treatment — 2100 Anita Joyce Lane, Greenville, MS 38701




Milcreek Schools of Arkansas, Inc.



Millcreek School Ark #403 Building & land lease — 1810 Industrial Drive, Fordyce, Arkansas 71742




Habilitation Center, Inc.



Habilitation Center #503 Building & land lease — 1810 Industrial Drive, Fordyce, Arkansas 71742



Habilitation Center #503 Building & land lease — 1810 Industrial Drive, Fordyce, Arkansas 71742




Ascent Acquisition Corporation-PSC



Ascent Acquisition Corporation-PSC- Raben Self Storage — 1400 S. Division, Blytheville, AR 72315



Ascent Acquisition Corporation-PSC — Jonesboro Service Center — 3012 Turman, Jonesboro, AR 72404







 









 







Ascent Acquisition Corporation-PSC — Jonesboro Storage Unit — 2900 Richardson, Jonesboro, AR 72401



Ascent Acquisition Corporation-PSC — Benton Storage Unit 00H03 — 2430 Browning Ave, Benton, AR
72015




Ascent Acquisition Corporation-CYPDC



Ascent Acquisition Corporation-CYPDC — Jonesboro Clinic, Clinic Building — 806 Glendale,
Jonesboro, AR 72401



Ascent Acquisition Corporation-CYPDC — Jonesboro Clinic, Therapy House — 812 Glendale, Jonesboro,
AR 72401



Ascent Acquisition Corporation-CYPDC — Paragould, Northside Mini Storage — 1409B Highway 49B
North, Paragould, AR 72451



Ascent Acquisition Corporation-CYPDC — Trumann, Speedway Storage — 321 W Speedway, Trumann, AR
72472



Ascent Acquisition Corporation-CYPDC — Batesville Clinic, Storage Unit — 3805 Harrison St.,
Batesville, AR 72501



Ascent Acquisition Corporation-CYPDC — Storage Unit — 1804 W. Washington, Jonesboro, AR 72401



Ascent Acquisition Corporation-CYPDC — Mt. Home Clinic, Storage Unit — 919 County Road 710,
Gassville, AR 72635



Ascent Acquisition Corporation-CYPDC — Jonesboro Clinic, Storage Unit — 1804 W. Washington,
Jonesboro, AR 72401



Ascent Acquisition Corporation-CYPDC — Jonesboro Clinic, Storage Unit 269 — 1020 Neil Drive,
Jonesboro, AR 72401



Child & Youth Pediatric Day Clinics, Inc.- Batesville Clinic, Clinic Building — 2040 Fitzhugh St.,
Batesville, AR 72501




Child & Youth Pediatric Day Clinics, Inc.



Child & Youth Pediatric Day Clinics, Inc. — Mt. Home Clinic, Admin. Offices (modular bldg.) — 18
County Road 458, Mt. Home, AR 72653



Child & Youth Pediatric Day Clinics, Inc. — Mt. Home Clinic, Storage Unit — 919 County Road 710,
Gassville, AR 72635




PsychSolutions, Inc.



PsychSolutions Palmetto Bay Medical Building, Clinic — 9765 SW 184th St., Miami, FL 33157



PsychSolutions InterAmerican Plaza, Office/Clinic — 701 SW 27th Ave, #500, Miami, FL
33135



PsychSolutions Palmetto Bay Professional Building, Clinic — 9245 SW 157th St, #105,
Palmetto Bay, FL 33157 (not yet licensed as a health care clinic; unoccupied)







 









 








YFCS Management, Inc.



YFCS Mgmt 1120 S. Capital of Texas Hwy., Bldg. One, Ste. 200, Austin, Texas 78746



YFCS Mgmt Iron Mountain — 15300 Fm 1825, Pflugerville, TX 78660




Southwestern Children’s Heath Services, Inc.



Southwestern Children’s Heath Services Company, d/b/a Parc Place — Chandler, Iron Mountain — P.O.
Box 601002, Pasadena, CA 91189-1002



Southwestern Children’s Heath Services Company, d/b/a Parc Place — Chandler, AAAA Arizona Drivethru
Storage 2060, Units #A3 and #C26 — W. Southern Ave, Mesa, AZ 85202



Southwestern Children’s Heath Services Company, d/b/a Parc Place — Casa Grande, A Storage Place of
Casa Grande L.L.C., Unit 235 — 1688 North Pinal Ave, Casa Grande, AZ 85122




Acadia Current Leases




	 	 	 	 	 

	Acadia Healthcare Holdings, LLC	 	725 Cool Springs Blvd., Suite 600, Franklin, TN 37067
	 
	 	 	 	 
	Acadia Healthcare Company, LLC	 	2849 Paces Ferry Rd, Suite 750 Atlanta, GA 30339
	 
	 	 	 	 
	Acadia Louisiana, LLC	 	 
	 
	 	 	 	 
	 

	 	Residential Bldg
	 	3008 W Pinhook Rd, Lafayette, LA 70508
	 

	 	Admin Bldg
	 	3012 W Pinhook Rd, Lafayette, LA 70508
	 

	 	Belle of the Oaks
	 	2303 Robley, Lafayette, LA 70503
	 
	 	 	 	 
	Acadia Hospital of Lafayette, LLC	 	 
	 
	 

	 	Hospital
	 	2520 N University Ave, Lafayette, LA 70507
	 

	 	Lodge
	 	1300 East Pont Des Mouton Rd, Lafayette, LA 70507
	 
	 	 	 	 
	Acadia Riverwoods, LLC	 	 
	 
	 

	 	Doctor’s Office
	 	29 Upper Riverdale Rd, Riverdale, GA 30274
	 
	 	 	 	 
	Acadia Village, LLC	 	 
	 
	 

	 	Campus
	 	2431 Jones Bend Rd, Louisville, TN 37777











 









 








Schedule 6.20-2




Location of Chief Executive Office, Taxpayer Identification Number, Etc.



	 	 	 	 	 	 	 
	 	 	 	 	U.S. tax payer	 	Organizational
	 	 	Chief Executive	 	identification	 	identification
	Loan Party	 	Office Location	 	number	 	number
	Acadia Healthcare Holdings,
LLC

	 	2849 Paces Ferry
Road, 
Suite 750

Atlanta, Georgia
30339
	 	20-3879793
	 	DE

4050067
	Acadia Healthcare Company, LLC

	 	2849 Paces Ferry
Road, 
Suite 750

Atlanta, Georgia
30339
	 	20-3879757
	 	DE

4050070
	Acadia-YFCS Holdings, Inc.

	 	2849 Paces Ferry
Road,
 Suite 750

Atlanta, Georgia
30339
	 	27-5289083
	 	DE

4934656
	Youth & Family Centered
Services, Inc.

	 	2849 Paces Ferry
Road, 
Suite 750

Atlanta, Georgia
30339
	 	58-2281089
	 	GA

K701151
	Acadia Management Company,
Inc.

	 	2849 Paces Ferry
Road, 
Suite 750

Atlanta, Georgia
30339
	 	20-3879717
	 	DE

4050072
	Acadia Hospital of Longview,
LLC

	 	2849 Paces Ferry
Road,
 Suite 750

Atlanta, Georgia
30339
	 	20-4764998
	 	DE

4104704
	Kids Behavioral Health of
Montana, Inc.

	 	2849 Paces Ferry
Road, 
Suite 750

Atlanta, Georgia
30339
	 	62-1681724
	 	MT

D090029
	Acadia Village, LLC

	 	2849 Paces Ferry
Road, 
Suite 750

Atlanta, Georgia
30339
	 	27-0788813
	 	DE

4722832
	Lakeview Behavioral Health 

System LLC

	 	2849 Paces Ferry
Road, 
Suite 750

Atlanta, Georgia
30339
	 	27-3047619
	 	DE

10050315
	Acadia Riverwoods, LLC

	 	2849 Paces Ferry
Road, 
Suite 750

Atlanta, Georgia
30339
	 	26-2700697
	 	DE

08041743
	Acadia Louisiana, LLC

	 	2849 Paces Ferry
Road, 
Suite 750

Atlanta, Georgia
30339
	 	26-4178782
	 	DE

4650954
	Acadia Abilene, LLC

	 	2849 Paces Ferry
Road, 
Suite 750

Atlanta, Georgia
30339
	 	20-8041863
	 	DE

4266333
	Acadia Hospital of Lafayette,
LLC

	 	2849 Paces Ferry
Road, 
Suite 750

Atlanta, Georgia
30339
	 	20-4765040
	 	DE

4104702






 









 






	 	 	 	 	 	 	 
	 	 	 	 	U.S. tax payer	 	Organizational
	 	 	Chief Executive	 	identification	 	identification
	Loan Party	 	Office Location	 	number	 	number
	YFCS Management, Inc.

	 	2849 Paces Ferry
Road, 
Suite 750

Atlanta, Georgia
30339
	 	58-2281069
	 	GA

K701152
	YFCS Holdings-Georgia, Inc.

	 	2849 Paces Ferry
Road, 
Suite 750

Atlanta, Georgia
30339
	 	52-2052380
	 	GA

K724888
	Options Community Based
Services, Inc.

	 	2849 Paces Ferry
Road, 
Suite 750

Atlanta, Georgia
30339
	 	26-0509223
	 	IN

2007071100161
	Options Treatment Center 

Acquisition Corporation

	 	2849 Paces Ferry
Road, 
Suite 750

Atlanta, Georgia
30339
	 	03-0512678
	 	IN

2003021400180
	Resolute Acquisition 

Corporation

	 	2849 Paces Ferry
Road, 
Suite 750

Atlanta, Georgia
30339
	 	03-0512672
	 	IN

2003021400190
	Resource Community Based
Services, Inc.

	 	2849 Paces Ferry
Road, 
Suite 750

Atlanta, Georgia
30339
	 	26-0508652
	 	IN

2007071100162
	RTC Resource Acquisition 

Corporation

	 	2849 Paces Ferry
Road, 
Suite 750

Atlanta, Georgia
30339
	 	03-0512675
	 	IN

2003021400192
	Success Acquisition 

Corporation

	 	2849 Paces Ferry
Road, 
Suite 750

Atlanta, Georgia
30339
	 	03-0512680
	 	IN

2003021400186
	Ascent Acquisition Corporation

	 	2849 Paces Ferry
Road,
 Suite 750

Atlanta, Georgia
30339
	 	20-5189115
	 	AR

800084981
	Southwood Psychiatric
Hospital, Inc.

	 	2849 Paces Ferry
Road, 
Suite 750

Atlanta, Georgia
30339
	 	25-1414990
	 	PA

753684
	Memorial Hospital Acquisition 

Corporation

	 	2849 Paces Ferry
Road,
 Suite 750

Atlanta, Georgia
30339
	 	03-0439201
	 	NM

2246957
	Millcreek Management 

Corporation

	 	2849 Paces Ferry
Road, 
Suite 750

Atlanta, Georgia
30339
	 	58-2313790
	 	GA

K714798
	Rehabilitation Centers, Inc.

	 	2849 Paces Ferry
Road, 
Suite 750

Atlanta, Georgia
30339
	 	64-0568382
	 	MS

409465
	Lakeland Hospital Acquisition 

Corporation

	 	2849 Paces Ferry
Road, 
Suite 750

Atlanta, Georgia
30339
	 	58-2291915
	 	GA

K706896
	PsychSolutions Acquisition 

Corporation

	 	2849 Paces Ferry
Road, 
Suite 750

Atlanta, Georgia
30339
	 	01-0857190
	 	FL

P06000020262
	Youth And Family Centered
Services of New Mexico, Inc.

	 	2849 Paces Ferry
Road, 
Suite 750

Atlanta, Georgia
30339
	 	74-2753620
	 	NM

1729185






 









 






	 	 	 	 	 	 	 
	 	 	 	 	U.S. tax payer	 	Organizational
	 	 	Chief Executive	 	identification	 	identification
	Loan Party	 	Office Location	 	number	 	number
	Southwestern Children’s
Health Services, Inc.

	 	2849 Paces Ferry
Road, 
Suite 750

Atlanta, Georgia
30339
	 	86-0768811
	 	AZ

0723253-6
	Youth And Family Centered
Services Of Florida, Inc.

	 	2849 Paces Ferry
Road, 
Suite 750

Atlanta, Georgia
30339
	 	52-1955335
	 	FL

P95000096219
	Pediatric Specialty Care, Inc.

	 	2849 Paces Ferry
Road,
 Suite 750

Atlanta, Georgia
30339
	 	71-0773280
	 	AR

100121981
	Child & Youth Pediatric Day
Clinics, Inc.

	 	2849 Paces Ferry
Road,
 Suite 750

Atlanta, Georgia
30339
	 	62-1696477
	 	AR

100148371
	Med Properties, Inc.

	 	2849 Paces Ferry
Road, 
Suite 750

Atlanta, Georgia
30339
	 	71-0773279
	 	AR

100121982
	Ascent Acquisition 

Corporation-CYPDC

	 	2849 Paces Ferry
Road, 
Suite 750

Atlanta, Georgia
30339
	 	20-5099744
	 	AR

800087374
	Ascent Acquisition 

Corporation-PSC

	 	2849 Paces Ferry
Road, 
Suite 750

Atlanta, Georgia
30339
	 	20-5099728
	 	AR

800087375
	Meducare Transport, L.L.C.

	 	2849 Paces Ferry
Road,
 Suite 750

Atlanta, Georgia
30339
	 	71-0820296
	 	AR

100167968
	Pediatric Specialty Care 

Properties, LLC

	 	2849 Paces Ferry
Road, 
Suite 750

Atlanta, Georgia
30339
	 	71-0830663
	 	AR

100176354
	Childrens Medical 

Transportation Services, LLC

	 	2849 Paces Ferry
Road, 
Suite 750

Atlanta, Georgia
30339
	 	40-0002231
	 	AR

100207971
	Millcreek Schools, Inc.

	 	2849 Paces Ferry
Road, 
Suite 750

Atlanta, Georgia
30339
	 	64-0653443
	 	MS

212006
	Habilitation Center, Inc.

	 	2849 Paces Ferry
Road, 
Suite 750

Atlanta, Georgia
30339
	 	74-2474097
	 	AR

100023259
	Millcreek School of Arkansas,
Inc.

	 	2849 Paces Ferry
Road, 
Suite 750

Atlanta, Georgia
30339
	 	74-2474098
	 	AR

100034960
	Psychsolutions, Inc.

	 	2849 Paces Ferry
Road, 
Suite 750

Atlanta, Georgia
30339
	 	65-0428340
	 	FL

P93000056134











 









 








Schedule 6.20-3




Changes in Legal Name, State of Formation and Structure


Kids Behavioral Health of Hawaii, Inc. was changed to Kids Behavioral Health of Hawaii, LLC on
July 1, 2010.



Kids Behavioral Health of Hawaii, LLC was merged into Kids Behavioral Health of Montana on March
18, 2011.



Desert Hills Center for Youth And Family of New Mexico, Inc., merged into Introspect Healthcare,
Corp., which merged into Southwestern Children’s Health Services, Inc.



Developmental Behavioral Consultants, Inc. was dissolved.



Acadia Healthcare of Reading, LLC was dissolved.



Acadia Healthcare Properties, LLC was dissolved.









 









 








Schedule 8.01




Liens Existing on the Closing Date


Liens in favor of Round Table Real Estate Investment CO. L.L.C., (the “Landlord”) on all equipment,
fixtures, furniture and corporeal movable property of Acadia Hospital of Lafayette, LLC (“Tenant”)
located at 252 North University Avenue, Lafayette, Louisiana 70507 to secure the obligations of the
Tenant under that certain lease dated May 10, 2006 between Landlord and Tenant.









 









 








Schedule 8.02




Investments Existing on the Closing Date


Promissory Note, dated as of January 4, 2010, by Norman K. Carter, III in favor of Acadia
Healthcare Holdings, LLC, in the initial principal amount of $120,000, entered into in connection
with that certain Management Agreement, dated January 4, 2010, by and between Norman K. Carter,
III, Acadia Healthcare Holdings, LLC, and certain other parties identified therein.



Promissory Note, dated as of January 4, 2010, by Fred T. Dodd in favor of Acadia Healthcare
Holdings, LLC, in the initial principal amount of $42,000, entered into in connection with that
certain Management Agreement, dated January 4, 2010, by and between Fred T. Dodd, Acadia Healthcare
Holdings, LLC, and certain other parties identified therein.



Promissory Note, dated as of January 4, 2010, by Karen Price in favor of Acadia Healthcare
Holdings, LLC, in the initial principal amount of $96,000, entered into in connection with that
certain Management Agreement, dated January 4, 2010, by and between Karen Price, Acadia Healthcare
Holdings, LLC, and certain other parties identified therein.



Promissory Note, dated as of January 4, 2010, by Robert Swinson in favor of Acadia Healthcare
Holdings, LLC, in the initial principal amount of $42,000, entered into in connection with that
certain Management Agreement, dated January 4, 2010, by and between Robert Swinson, III, Acadia
Healthcare Holdings, LLC, and certain other parties identified therein.




.






 









 








Schedule 8.03




Indebtedness Existing on the Closing Date


None.









 









 








Schedule 11.02




Certain Addresses for Notices


1. If to any Loan Party:




Acadia Healthcare Company, LLC

2849 Paces Ferry Road, Suite 750

Atlanta, Georgia 30339

Attn: President

Phone: (678) 324-5000

Fax: (678) 384-5703



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




Waud Capital Partners, LLC

300 North LaSalle Street, Suite 4900

Chicago, Illinois 60654

Attn: Charles Edwards

Phone: (312) 676-8400

Fax: (312) 676-8444



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




Kirkland & Ellis LLP

300 N LaSalle

Chicago, IL 60654

Attn: Garry W. Jaunal

Phone: (312) 862-2000

Fax: (312) 862-2200




2. If to Administrative Agent:



For payments and Requests for Credit Extensions:



BANK OF AMERICA OPERATIONS CONTACT:




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

101 North Tryon Street

NC1-001-04-39

Charlotte, NC 28255

Name: Kellyn McLamb

Telephone: 980-386-7259

Facsimile #: 704-409-0486



Email: Kellyn.h.mclamb@baml.com



BANK OF AMERICA, N.A. USD PAYMENT INSTRUCTIONS:

Bank of America

New York NY




 









 







ABA 026009593

Acct # 1366212250600

Acct Name: Corporate Credit Services

Ref: ARCADIA HEALTHCARE COMPANY



For all other Notices (Financial Statements, Compliance Certificates):




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

135 S LA SALLE ST

CHICAGO IL 60603

Mail Code: IL4-135-05-41

Attention: Felicia Brinson

Telephone: 1.312.828.7299

Facsimile: 1.877.216.2432

Electronic Mail: felicia.brinson@baml.com



3. L/C ISSUER:




Bank of America, N.A., as L/C Issuer

Trade Operations

1 FLEET WAY

SCRANTON PA 18507

Mail Code: PA6-580-02-30

Attention: Jonathan C. Stull

Facsimile: 212.293.8117

Electronic Mail: jonathan.c.stull@baml.com



4. SWING LINE LENDER:




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

101 North Tryon Street

NC1-001-04-39

Charlotte, NC 28255

Name: Kellyn McLamb

Telephone: 980-386-7259

Facsimile #: 704-409-0486

Email: Kellyn.h.mclamb@baml.com