Exhibit
10.1


 




 





 


US
$195,000,000


AMENDED
AND RESTATED CREDIT AGREEMENT


 


Dated
as of May 6, 2010


 


among


 


UNIVERSAL
HOSPITAL SERVICES, INC.,


 


as
Borrower


 


UHS
HOLDCO, INC.,


 


as
Parent


 


GE
BUSINESS FINANCIAL SERVICES INC.,


 


as
Administrative Agent


 


BANK
OF AMERICA, N.A.,


 


as
Documentation Agent


 


THE
INITIAL L/C ISSUER AND INITIAL SWING LINE LENDER NAMED HEREIN


 


as
Initial L/C Issuer and Initial Swing Line Lender


 


and


 


THE
OTHER LENDERS PARTY HERETO


 






 


GE
CAPITAL MARKETS, INC.


 


and


 


BANC
OF AMERICA SECURITIES, LLC


 


as
Co-Lead Arrangers and Co-Book Runners


 




 





 

















 


Table of Contents


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE 1

  
	
   

  
	
  DEFINITIONS AND ACCOUNTING
  TERMS

  
	
   

  	
   

  
	
  SECTION 1.01. Defined Terms

  	
  1

  
	
  SECTION 1.02. Other Interpretive Provisions

  	
  37

  
	
  SECTION 1.03. Accounting Terms

  	
  38

  
	
  SECTION 1.04. Rounding

  	
  38

  
	
  SECTION 1.05. References to Agreements and Laws

  	
  38

  
	
  SECTION 1.06. Times of Day

  	
  39

  
	
  SECTION 1.07. Timing of Payment or Performance

  	
  39

  
	
   

  	
   

  
	
  ARTICLE 2

  
	
   

  
	
  THE REVOLVING CREDIT
  COMMITMENTS AND CREDIT EXTENSIONS

  
	
   

  	
   

  
	
  SECTION 2.01. The Revolving Credit Loans

  	
  39

  
	
  SECTION 2.02. Borrowings, Conversions and Continuations of Loans

  	
  40

  
	
  SECTION 2.03. Letters of Credit

  	
  41

  
	
  SECTION 2.04. Swing Line Loans

  	
  48

  
	
  SECTION 2.05. Prepayments

  	
  50

  
	
  SECTION 2.06. Termination or Reduction of Revolving Credit
  Commitments

  	
  52

  
	
  SECTION 2.07. Repayment of Loans

  	
  52

  
	
  SECTION 2.08. Interest

  	
  52

  
	
  SECTION 2.09. Fees

  	
  53

  
	
  SECTION 2.10. Computation of Interest and Fees

  	
  54

  
	
  SECTION 2.11. Evidence of Indebtedness

  	
  54

  
	
  SECTION 2.12. Payments Generally

  	
  55

  
	
  SECTION 2.13. Sharing of Payments

  	
  56

  
	
  SECTION 2.14. [Intentionally Omitted]

  	
  57

  
	
  SECTION 2.15. Eligible Accounts and Eligible Unbilled Accounts

  	
  57

  
	
  SECTION 2.16. Eligible Rental Equipment, Eligible Wholesale
  Disposables and Eligible Equipment Disposables

  	
  61

  
	
   

  	
   

  
	
  ARTICLE 3

  
	
   

  
	
  TAXES, INCREASED COSTS
  PROTECTION AND ILLEGALITY

  
	
   

  	
   

  
	
  SECTION 3.01. Taxes

  	
  62

  
	
  SECTION 3.02. Illegality

  	
  65

  
	
  SECTION 3.03. Inability to Determine Rates

  	
  65

  
	
  SECTION 3.04. Increased Cost and Reduced Return; Capital Adequacy;
  Reserves on Eurodollar Rate Loans

  	
  65

  
	
  SECTION 3.05. Funding Losses

  	
  67

  
	
  SECTION 3.06. Matters Applicable to Requests for Compensation

  	
  67

  
	
  SECTION 3.07. Replacement of Lenders Under Certain Circumstances

  	
  68

  



 


i

















 


	
  SECTION 3.08. Survival

  	
  69

  
	
   

  	
   

  
	
  ARTICLE 4

  
	
   

  
	
  CONDITIONS PRECEDENT

  
	
   

  	
   

  
	
  SECTION 4.01. Conditions Precedent to Amendment and Restatement

  	
  69

  
	
  SECTION 4.02. Conditions to All Credit Extensions After the Amendment
  Closing Date

  	
  71

  
	
   

  	
   

  
	
  ARTICLE 5

  
	
   

  
	
  REPRESENTATIONS AND
  WARRANTIES

  
	
   

  
	
  SECTION 5.01. Existence, Qualification and Power; Compliance with
  Laws

  	
  71

  
	
  SECTION 5.02. Authorization; No Contravention

  	
  72

  
	
  SECTION 5.03. Governmental Authorization; Other Consents

  	
  72

  
	
  SECTION 5.04. Binding Effect

  	
  72

  
	
  SECTION 5.05. Financial Statements; No Material Adverse Effect

  	
  72

  
	
  SECTION 5.06. Litigation

  	
  73

  
	
  SECTION 5.07. Ownership of Property; Liens

  	
  73

  
	
  SECTION 5.08. Environmental Compliance

  	
  74

  
	
  SECTION 5.09. Taxes

  	
  75

  
	
  SECTION 5.10. ERISA Compliance

  	
  75

  
	
  SECTION 5.11. Subsidiaries; Equity Interests

  	
  76

  
	
  SECTION 5.12. Margin Regulations; Investment Company Act

  	
  76

  
	
  SECTION 5.13. Disclosure

  	
  76

  
	
  SECTION 5.14. Intellectual Property, Licenses, Etc.

  	
  76

  
	
  SECTION 5.15. Solvency

  	
  77

  
	
  SECTION 5.16. Perfection, Mortgages, Etc.

  	
  77

  
	
  SECTION 5.17. Compliance with Laws Generally

  	
  77

  
	
  SECTION 5.18. Labor Matters

  	
  77

  
	
  SECTION 5.19. Debt

  	
  77

  
	
   

  	
   

  
	
  ARTICLE 6

  
	
   

  
	
  AFFIRMATIVE COVENANTS

  
	
   

  	
   

  
	
  SECTION 6.01. Financial Statements

  	
  78

  
	
  SECTION 6.02. Certificates; Other Information

  	
  79

  
	
  SECTION 6.03. Notices

  	
  81

  
	
  SECTION 6.04. Payment of Obligations

  	
  81

  
	
  SECTION 6.05. Preservation of Existence, Etc.

  	
  81

  
	
  SECTION 6.06. Maintenance of Properties

  	
  81

  
	
  SECTION 6.07. Maintenance of Insurance

  	
  81

  
	
  SECTION 6.08. Compliance with Laws

  	
  82

  
	
  SECTION 6.09. Books and Records

  	
  82

  
	
  SECTION 6.10. Inspection Rights

  	
  82

  
	
  SECTION 6.11. Use of Proceeds

  	
  82

  
	
  SECTION 6.12. Covenant to Guarantee Obligations and Give Security

  	
  82

  
	
  SECTION 6.13. Compliance with Environmental Laws

  	
  84

  
	
  SECTION 6.14. Further Assurances

  	
  85

  



 


ii

















 


	
  SECTION 6.15. Landlord Agreement and Real Estate Purchases

  	
  85

  
	
  SECTION 6.16. Designation of Subsidiaries

  	
  85

  
	
  SECTION 6.17. Maintenance of Separate Existence

  	
  86

  
	
  SECTION 6.18. Junior Financing Documentation

  	
  86

  
	
   

  	
   

  
	
  ARTICLE 7

  
	
  NEGATIVE COVENANTS

  
	
   

  	
   

  
	
  SECTION 7.01. Liens

  	
  87

  
	
  SECTION 7.02. Investments

  	
  90

  
	
  SECTION 7.03. Indebtedness

  	
  92

  
	
  SECTION 7.04. Fundamental Changes

  	
  95

  
	
  SECTION 7.05. Dispositions

  	
  96

  
	
  SECTION 7.06. Restricted Payments

  	
  97

  
	
  SECTION 7.07. Change in Nature of Business

  	
  99

  
	
  SECTION 7.08. Transactions with Affiliates

  	
  99

  
	
  SECTION 7.09. Burdensome Agreements

  	
  100

  
	
  SECTION 7.10. Holding Company

  	
  101

  
	
  SECTION 7.11. Financial Covenant

  	
  101

  
	
  SECTION 7.12. Amendments of Certain Documents

  	
  101

  
	
  SECTION 7.13. Accounting Changes

  	
  101

  
	
  SECTION 7.14. Prepayments, Etc. of Permitted Subordinated
  Indebtedness

  	
  101

  
	
  SECTION 7.15. Designated Senior Debt

  	
  102

  
	
   

  	
   

  
	
  ARTICLE 8

  
	
   

  
	
  EVENTS OF DEFAULT AND
  REMEDIES

  
	
   

  	
   

  
	
  SECTION 8.01. Events of Default

  	
  102

  
	
  SECTION 8.02. Remedies Upon Event of Default

  	
  104

  
	
  SECTION 8.03. Application of Funds

  	
  105

  
	
   

  	
   

  
	
  ARTICLE 9

  
	
   

  
	
  ADMINISTRATIVE AGENT AND
  OTHER AGENTS

  
	
   

  	
   

  
	
  SECTION 9.01. Authorization and Action

  	
  106

  
	
  SECTION 9.02. Agents’ Reliance, Etc.

  	
  107

  
	
  SECTION 9.03. GE Capital and Affiliates

  	
  107

  
	
  SECTION 9.04. Lender Credit Decision

  	
  107

  
	
  SECTION 9.05. Indemnification

  	
  107

  
	
  SECTION 9.06. Successor Agents

  	
  108

  
	
  SECTION 9.07. Other Agents; Arranger

  	
  109

  
	
  SECTION 9.08. Intercreditor Agreement

  	
  109

  
	
   

  	
   

  
	
  ARTICLE 10

  
	
   

  
	
  MISCELLANEOUS

  
	
   

  	
   

  
	
  SECTION 10.01. Amendments, Etc.

  	
  110

  
	
  SECTION 10.02. Notices and Other Communications; Facsimile Copies

  	
  112

  



 


iii

















 


	
  SECTION 10.03. No Waiver; Cumulative Remedies

  	
  112

  
	
  SECTION 10.04. Costs, Expenses and Taxes

  	
  113

  
	
  SECTION 10.05. Indemnification by the Borrowers

  	
  113

  
	
  SECTION 10.06. Payments Set Aside

  	
  114

  
	
  SECTION 10.07. Successors and Assigns

  	
  114

  
	
  SECTION 10.08. Confidentiality

  	
  117

  
	
  SECTION 10.09. Setoff

  	
  118

  
	
  SECTION 10.10. Interest Rate Limitation

  	
  118

  
	
  SECTION 10.11. Counterparts

  	
  119

  
	
  SECTION 10.12. Integration

  	
  119

  
	
  SECTION 10.13. Survival of Representations and Warranties

  	
  119

  
	
  SECTION 10.14. Severability

  	
  119

  
	
  SECTION 10.15. Tax Forms

  	
  119

  
	
  SECTION 10.16. Process Agent

  	
  121

  
	
  SECTION 10.17. Release of Collateral

  	
  121

  
	
  SECTION 10.18. GOVERNING LAW

  	
  121

  
	
  SECTION 10.19. WAIVER OF RIGHT TO TRIAL BY JURY

  	
  122

  
	
  SECTION 10.20. Binding Effect

  	
  122

  
	
  SECTION 10.21. USA Patriot Act Notice

  	
  122

  



 


iv

















 


	
  SCHEDULES

  	
   

  
	
   

  	
   

  
	
   

  	
  2.01

  	
  Revolving Credit
  Commitments

  
	
   

  	
  5.06

  	
  Disclosed Litigation

  
	
   

  	
  5.07(c)

  	
  Real
  Property Pledged as Collateral

  
	
   

  	
  5.08

  	
  Environmental Compliance

  
	
   

  	
  5.10(b)

  	
  Material
  ERISA Claims, Actions, Suits, or Action by Governmental Authority

  
	
   

  	
  5.10(c)

  	
  ERISA Events or Material
  Liabilities

  
	
   

  	
  5.11

  	
  Subsidiaries

  
	
   

  	
  5.14

  	
  IP Rights

  
	
   

  	
  7.01(c)

  	
  Existing Liens

  
	
   

  	
  7.02(f)

  	
  Existing Investments

  
	
   

  	
  7.03(b)(viii)

  	
  Existing Indebtedness

  
	
   

  	
  7.08

  	
  Transactions with
  Affiliates

  
	
   

  	
  7.09

  	
  Existing Restrictions

  
	
   

  	
  10.02

  	
  Administrative Agent’s
  Office, Certain Addresses for Notices

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  
	
   

  	
   

  	
   

  
	
   

  	
  Form of

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  A

  	
  Committed Loan Notice

  
	
   

  	
  B

  	
  Swing Line Loan Notice

  
	
   

  	
  C-1

  	
  Revolving Credit Note

  
	
   

  	
  C-2

  	
  Swing Line Note

  
	
   

  	
  D

  	
  Compliance Certificate

  
	
   

  	
  E

  	
  Assignment and Assumption

  
	
   

  	
  F

  	
  Amended and Restated
  Guaranty

  
	
   

  	
  G

  	
  Amended and Restated
  Security Agreement

  
	
   

  	
  H

  	
  Weil Gotshal & Manges
  LLP Opinion

  
	
   

  	
  I

  	
  Administrative
  Questionnaire

  
	
   

  	
  J

  	
  Intercreditor Agreement

  
	
   

  	
  K

  	
  Borrowing Base Certificate

  
	
   

  	
  L

  	
  Solvency Certificate

  



 


v

















 


AMENDED AND RESTATED CREDIT AGREEMENT


 


This AMENDED AND RESTATED
CREDIT AGREEMENT (this “Agreement”)
is entered into as of May 6, 2010 among UNIVERSAL HOSPITAL SERVICES, INC., a
Delaware corporation (“UHS” or the
“Borrower”), UHS HOLDCO, INC., a
Delaware corporation (the “Parent”),
each lender from time to time party hereto (collectively, the “Lenders” and individually, each a “Lender”), the Initial L/C Issuer, the
Initial Swing Line Lender and GE BUSINESS FINANCIAL SERVICES INC. (formerly
known as Merrill Lynch Business Financial Services Inc.) (“GE Capital”), as Administrative Agent.


 


PRELIMINARY
STATEMENTS


 


The Parent and the Borrower
are parties to a Credit Agreement dated as of May 31, 2007 (the “Existing Credit Agreement”) with the
Lenders from time to time party thereto and the Administrative Agent, as
Administrative Agent.


 


The Borrower desires to
amend and restate the Existing Credit Agreement as hereinafter set forth to
provide for (i) $50,000,000 in Additional Revolving Credit Commitments in
accordance with, and as defined in, Section 2.14 of the Existing Credit
Agreement, (ii) an additional increase in Revolving Credit Commitments of
$10,000,000 and (iii) certain other amendments to the Existing Credit
Agreement, and the Lenders have indicated their willingness to agree thereto,
on the terms and subject to the conditions set forth herein.


 


In consideration of the
mutual covenants and agreements herein contained, the parties hereto covenant
and agree to amend and restate the Existing Credit Agreement as follows:


 


ARTICLE 1


 


DEFINITIONS
AND ACCOUNTING TERMS


 


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


 


“Account Debtor” means any Person who may become obligated to
any Loan Party under, with respect to, or on account of, an Account, Chattel
Paper or General Intangibles (including a payment intangible).


 


“Accounts” means all “accounts,” as such term is defined in the
Uniform Commercial Code, now owned or hereafter acquired by any Loan Party,
including (a) all accounts receivable, other receivables, book debts and other
forms of obligations (other than forms of obligations evidenced by Chattel
Paper or Instruments), (including any such obligations that may be
characterized as an account or contract right under the Uniform Commercial
Code), (b) all of each Loan Party’s rights in, to and under all purchase orders
or receipts for goods or services, (c) all of each Loan Party’s rights to any
goods represented by any of the foregoing (including unpaid sellers’ rights of
rescission, replevin, reclamation and stoppage in transit and rights to
returned, reclaimed or repossessed goods), (d) all rights to payment due to any
Loan Party for property sold, leased, licensed, assigned or otherwise disposed
of, for a policy of insurance issued or to be issued, for a secondary
obligation incurred or to be incurred, for energy provided or to be provided,
for the use or hire of a vessel under a charter or other contract, arising out
of the use of a credit card or charge card, or for services rendered or to be
rendered by such Loan Party or in connection with any other transaction
(whether or not yet earned by performance on the part of such Loan Party), (e) all
health care insurance receivables and (f) all collateral security and
guaranties of any kind, given by any Account Debtor or any other Person with
respect to any of the foregoing.


 

















 


“Acquired EBITDA” means, with respect to any entity or business
acquired in a Permitted Acquisition for any period, the amount for such period
of Consolidated EBITDA of such entity or business (determined as if references
to the Borrowers and the Restricted Subsidiaries in the definition of
Consolidated EBITDA were references to such entity or business and its
Subsidiaries), all as determined on a consolidated basis for such entity or
business.


 


“Acquisition” means the merger between UHS Merger Sub, Inc. and
the Borrower under the Merger Agreement, in which the Borrower was the
surviving corporation.


 


“Adjusted Consolidated Funded Indebtedness” means, on any day,
the sum of (a) with respect to Consolidated Funded Indebtedness consisting of
revolving borrowings, the average daily outstanding amount of such revolving
borrowings for the four fiscal quarters most recently ended on or prior to such
day plus (b) with respect to all
other Consolidated Funded Indebtedness, the outstanding amount thereof on such
day.


 


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


 


“Administrative Agent’s Office” means the Administrative
Agent’s address and, as appropriate, account as set forth on Schedule 10.02,
or such other address or account as the Administrative Agent may from time to
time notify in writing to the Borrowers, the Lenders and the L/C Issuers.


 


“Administrative Questionnaire” means an Administrative
Questionnaire substantially in the form of Exhibit I.


 


“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; provided that portfolio companies of the
Sponsor that are not Subsidiaries of Parent shall be deemed not to be
Affiliates of any Loan Party.  “Control” means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of a Person, whether through the ability to exercise voting power, by
contract or otherwise.  “Controlling” and “Controlled” have meanings correlative
thereto.


 


“Agent-Related Persons” means the Administrative Agent, the
Collateral Agent and, in each case, the officers, directors, employees, agents
and attorneys-in-fact of such Person.


 


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


 


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


 


“Agreement” means this Amended and Restated Credit Agreement.


 


“Alternative Borrowing Base Certificate” has the meaning set
forth in Section 6.01(e).


 


“Amendment  Closing Date”
has the meaning specified in Section 4.01.


 


“Applicable Amount” means, at any time (the “Reference Time”), an amount equal to:


 


(a)                                  50% of the
Consolidated Net Income of UHS for the period from July 1, 2007 until the last
day of the then most recent fiscal quarter for which financial statements have
been delivered; plus


 


2

















 


(b)                                 100% of the
aggregate net cash proceeds and the fair market value of property and
marketable securities received by UHS since the Closing Date as a contribution
to its common equity capital or from the issue or sale of Equity Interests of
UHS (other than Disqualified Equity Interests) or from the issue or sale of
convertible or exchangeable Disqualified Equity Interests or convertible or
exchangeable debt securities of UHS that have been converted into or exchanged
for such Equity Interests (other than Equity Interests (or Disqualified Equity
Interests or debt securities) sold to a Subsidiary of the Borrower); but
excluding cash proceeds received from the sale of Equity Interests of UHS (and,
to the extent actually contributed to UHS, Equity Interests of UHS’s direct or
indirect parent corporations) to members of management, directors or
consultants of UHS, any direct or indirect parent of UHS and the Subsidiaries
of UHS after the Closing Date to the extent such amounts have been applied to
Restricted Payments made in accordance with Section 7.06(d)(iii); plus


 


(c)                                  to the extent
that any Investment that was made after the Closing Date is sold, the return of
capital with respect to such Investment (less the cost of disposition, if any);
plus


 


(d)                                 100% of any
dividends received by UHS or a Restricted Subsidiary of UHS that is a Guarantor
after the Closing Date from an Unrestricted Subsidiary of UHS, to the extent
that such dividends were not otherwise included in Consolidated Net Income of
UHS for such period.


 


minus (b) the sum, without
duplication, of:


 


(i)                                     the aggregate
amount of dividends pursuant to Section 7.06(e) following the Closing
Date and prior to the Reference Time;


 


(ii)                                  the aggregate
amount of prepayments, repurchases and redemptions of Permitted Subordinated
Indebtedness pursuant to Section 7.14(i)(x)(2) following the Closing
Date and prior to the Reference Time; and


 


(iii)                               the aggregate
amount of Investments pursuant to Section 7.02(n)(ii).


 


“Applicable Commitment Fee Rate” means a percentage per annum
equal to (a) 0.50% at any time the Usage Percentage is equal to or less than
50%, and (b) 0.375% at any time the Usage Percentage is greater than 50%.


 


“Applicable Rate” means:


 


(a)                                  a percentage
per annum equal to the following percentages per annum, based upon the Usage
Percentage as of any date of determination:


 


	
  Pricing
  Level

  	
   

  	
  Usage Percentage

  	
   

  	
  Eurodollar Rate and

  Letter of Credit Fees

  	
   

  	
  Base Rate

  	
   

  
	
  1

  	
   

  	
  = 25%

  	
   

  	
  3.00

  	
  %

  	
  2.00

  	
  %

  
	
  2

  	
   

  	
  > 25%
  but = 75%

  	
   

  	
  2.75

  	
  %

  	
  1.75

  	
  %

  
	
  3

  	
   

  	
  > 75%

  	
   

  	
  2.50

  	
  %

  	
  1.50

  	
  %

  



 


Any change in the Applicable Rate will become
effective as of the date the rate interest which is so identified as the
“Applicable Rate” is different from that in effect on the prior Business Day,
based on the Usage Percentage for such prior day; provided that at the option of the Administrative Agent or
the Required Lenders, pricing level 1 shall apply, (x) as of the first Business
Day after the date on which a Borrowing Base Certificate was required to have
been delivered but was not delivered, and shall continue to so apply to and
including the date on which such Borrowing Base Certificate is so delivered
(and


 


3

















 


thereafter the Pricing Level otherwise
determined in accordance with this definition shall apply) and (y) as of the
first Business Day after an Event of Default shall have occurred and be
continuing, and shall continue to so apply to but excluding the date on which
such Event of Default is cured or waived (and thereafter the Pricing Level
otherwise determined in accordance with this definition shall apply); provided  further
that in the event that any Borrowing Base Certificate delivered
pursuant to Section 6.01(e) is shown to be inaccurate (regardless of
whether this Agreement or the Revolving Credit Commitments are in effect when
such inaccuracy is discovered) within one year of delivery thereof, and such
inaccuracy, if corrected, would have led to the application of a higher
Applicable Margin for any period (an “Applicable
Period”) than the Applicable Rate applied for such Applicable
Period, then (i) the Borrowers shall promptly deliver to the Administrative
Agent a correct certificate for such Applicable Period, (ii) the Applicable
Rate shall be determined based upon such corrected certificate for such
Applicable Period, and (iii) the Borrowers shall promptly pay to the
Administrative Agent the accrued additional interest owing as a result of such
increased Applicable Rate for such Applicable Period; provided that the provisions of this
proviso shall terminate unless a claim is made therefor by the Administrative
Agent within 365 days after the date all Revolving Credit Loans are paid in
full and all Revolving Credit Commitments shall have terminated.


 


(b)                                 This definition
shall not limit the rights of the Administrative Agent and Lenders under and
with respect to Sections 2.08(b) and Article 8.


 


“Appropriate Lender” means, at any time, (a) with respect to
the Loans, the Lenders, (b) with respect to the Letter of Credit Sublimit, (i) the
L/C Issuer and (ii) if any Letters of Credit have been issued pursuant to Section
2.03(a), the Lenders and (c) with respect to the Swing Line Facility, (i) the
Swing Line Lender and (ii) if any Swing Line Loans are outstanding pursuant to Section
2.04(a), the Lenders.


 


“Approved Domestic Bank” has the meaning specified in clause
(b) of the definition of “Cash Equivalents”.


 


“Approved Foreign Bank” has the meaning specified in clause (f)
of the definition of “Cash Equivalents”.


 


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


 


“Arrangers” means, collectively, GE Capital Markets, Inc. and
Banc of America Securities, LLC, each in its capacity as co-lead arranger and
co-book runner with respect to this Agreement, and GE Capital Markets, Inc.,
Bear, Stearns & Co. Inc. and Wachovia Capital Markets LLC, each in its
capacity as a joint lead arranger with respect to the Existing Credit
Agreement.


 


“Assignment and Assumption” means an Assignment and Assumption
substantially in the form of Exhibit E.


 


“Attorney Costs” means and includes all reasonable fees,
documented out-of-pocket expenses and documented out-of-pocket disbursements of
any law firm or other external counsel.


 


“Attributable Indebtedness” means, on any date, in respect of
any Capitalized Lease of any Person, the capitalized amount thereof that would
appear on a balance sheet of such Person prepared as of such date in accordance
with GAAP.


 


“Auto-Renewal Letter of Credit” has the meaning specified in Section
2.03(b)(iii).


 


4
















 


“Base Rate” means a variable per annum rate, as of any date of
determination, equal to the greater of (i) the Federal Funds Rate plus one-half
of one percent (0.50%) per annum and (ii) the rate of interest which is
identified and normally published by Bloomberg Professional Service Page Prime
as the “Prime Rate” (or, if more than one rate is published as the Prime Rate,
then the highest of such rates).  Any
change in Base Rate will become effective as of the date the rate of interest
which is so identified as the “Prime Rate” is different from that published on
the preceding Business Day.  If Bloomberg
Professional Service no longer reports the Prime Rate, or if such Page Prime no
longer exists, or Administrative Agent determines in good faith that the rate
so reported no longer accurately reflects an accurate determination of the
prevailing Prime Rate, Administrative Agent may select a reasonably comparable
publicly available index or source to use as the basis for the Base Rate.  The Base Rate is not intended to be nor will
it necessarily be the lowest rate of interest extended by the Lenders to their
customers.


 


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


 


“Billed Accounts” means any Account with respect to which an
invoice has been sent to the applicable Account Debtor.


 


“Borrowers” has the meaning specified in the Preliminary
Statements, and, after giving effect to the Assumption Agreement, shall include
UHS, and any Subsidiary that becomes a Borrower under Section 6.12.


 


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


 


“Borrower Parties” means the collective reference to the
Borrowers and the Restricted Subsidiaries, and “Borrower Party” means any one of them.


 


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


 


“Borrowing Availability” means, as of any date of
determination, the lesser of (a) the Maximum Amount and (b) the Borrowing Base,
in each case, less the sum of (i) the aggregate principal amount of the Revolving
Credit Loans then outstanding plus (ii) the aggregate principal amount of the
Swing Line Loans then outstanding, plus (iii) the L/C Obligations then
outstanding.


 


“Borrowing Base” means, as of any date of determination by the
Administrative Agent, from time to time, an amount equal to the sum at such
time of:


 


(a)                                  eighty-five
percent (85%) of the total face amount of the Borrowers’ Eligible Accounts; and


 


(b)                                 fifty percent
(50%) of the total face amount of the Borrowers’ Eligible Unbilled Accounts,
not to exceed, as of any date of determination, twenty-five percent (25%) of
the sum of (x) the total face amount of the Borrowers’ Eligible Accounts as of
such date plus (y) the total face amount of the Borrowers’ Eligible Unbilled
Accounts as of such date; and


 


(c)                                  the sum of:


 


(i)                                     sixty-five
percent (65%) of the Borrowers’ Eligible Rental Equipment valued on a net book
value basis consistent with the Borrowers’ consolidated month-end balance
sheet;


 


5

















 


(ii)                                  fifty percent
(50%) of the Borrowers’ Eligible Wholesale Disposables valued on a net book
value basis consistent with the Borrowers’ consolidated month-end balance
sheet; and


 


(iii)                               twenty percent
(20%) of the Borrowers’ Eligible Equipment Disposables valued on a net book
value basis consistent with the Borrowers’ consolidated month-end balance
sheet;


 


(x) in each case, less any
Reserves established by the Administrative Agent at such time in accordance
with the provisions of Section 2.15 and/or Section 2.16,  and (y) in the case of clauses (c)(ii) and
(c)(iii), less any Lease Payment Reserves established by the Administrative
Agent at such time in accordance with the provisions of Section 2.16.


 


“Borrowing Base Adjustment Limit” means $25,000,000.


 


“Borrowing Base Certificate” means a certificate to be executed
and delivered from time to time by each Borrower in the form attached to the
Agreement as Exhibit K.


 


“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 (a) when used in relation to any Borrower, the state
where the Administrative Agent’s Office and the L/C Issuer’s Office are located
and (b) if such day relates to any interest rate settings as to a Eurodollar
Rate Loan, any fundings, disbursements, settlements and payments in respect of
any such Eurodollar Rate Loan, or any other dealings to be carried out pursuant
to this Agreement in respect of any such Eurodollar Rate Loan, means any such
day on which dealings in deposits in Dollars are conducted by and between banks
in the London interbank eurodollar market.


 


“Capital Expenditures” means, for any Person for any period,
the sum of, without duplication, (a) all expenditures made, directly or
indirectly, by such Person or any of its Subsidiaries during such period for
equipment, fixed assets, real property or improvements, or for replacements or
substitutions therefor or additions thereto, that have been or should be, in
accordance with GAAP, reflected as additions to property, plant or equipment on
a consolidated balance sheet of such Person or have a useful life of more than
one year plus (b) the aggregate principal amount of all Indebtedness (including
Obligations under Capitalized Leases) assumed or incurred in connection with
any such expenditures.


 


“Capitalized Leases” means all leases that have been or should
be, in accordance with GAAP, recorded as capitalized leases on a balance sheet
of the lessee.


 


“Cash Collateral” has the meaning specified in Section 2.03(g).


 


“Cash Collateral Account” means a deposit account at a
commercial bank selected by the Administrative Agent in the name of the
Administrative Agent and under the sole dominion and control of the
Administrative Agent, and otherwise established in a manner reasonably
satisfactory to the Administrative Agent.


 


“Cash Collateralize” has the meaning specified in Section 2.03(g).


 


“Cash Equivalents” means any of the following types of
Investments, to the extent owned by any Borrower or any of its Restricted
Subsidiaries free and clear of all Liens (other than Liens permitted pursuant
to any Loan Document):


 


6

















 


(a)                                  readily
marketable obligations issued or directly and fully guaranteed or insured by
the United States, any state, commonwealth or territory of the United States or
any agency or instrumentality thereof, having (i) one of the three highest
ratings from either Moody’s or S&P and (ii) maturities of not more than one
year from the date of acquisition thereof; provided
that the full faith and credit of the United States is pledged in support
thereof;


 


(b)                                 time deposits
with, or insured certificates of deposit or bankers’ acceptances of, any
commercial bank that (i) is a Lender or (ii)(A) is organized under the laws of
the United States, any state thereof or the District of Columbia or is the
principal banking subsidiary of a bank holding company organized under the laws
of the United States, any state thereof, the District of Columbia or the
Commonwealth of Puerto Rico and is a member of the Federal Reserve System and (B)
has combined capital and surplus of at least $250,000,000 (any such bank in the
foregoing clauses (i) or (ii) being an “Approved
Domestic Bank”), in each case with maturities of not more than one
year from the date of acquisition thereof;


 


(c)                                  commercial
paper and variable or fixed rate notes issued by an Approved Domestic Bank (or
by the parent company thereof) or any variable rate note issued by, or
guaranteed by a 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, in
each case with maturities of not more than one year from the date of
acquisition thereof;


 


(d)                                 repurchase agreements
entered into by any Person with a bank or trust company or recognized
securities dealer (including any of the Lenders), in each case, having capital
and surplus in excess of $250,000,000 for direct obligations issued by or fully
guaranteed or insured by the government or any agency or instrumentality of the
United States;


 


(e)                                  Investments,
classified in accordance with GAAP as current assets of any Borrower or any of
its Restricted Subsidiaries, in money market investment programs registered
under the Investment Company Act of 1940, which are administered by financial
institutions having capital of at least $250,000,000, and the portfolios of
which are limited such that 95% of such investments are of the character,
quality and maturity described in clauses (a), (b), (c),
and (d) of this definition;


 


(f)                                    solely with
respect to any Foreign Subsidiary, non-Dollar-denominated (i) certificates of
deposit of, bankers acceptances of, or time deposits with, any commercial bank
which is organized and existing under the laws of the country in which such
Person maintains its chief executive office and principal place of business
provided such country is a member of the Organization for Economic Cooperation
and Development, and 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 Foreign Bank”) and
maturing within one year of the date of acquisition and (ii) equivalents of
demand deposit accounts which are maintained with an Approved Foreign Bank; and


 


(g)                                 readily
marketable obligations issued or directly and fully guaranteed or insured by
the government or any agency or instrumentality of any member nation of the
European Union whose legal tender is the Euro and which are denominated in
Euros or any other foreign currency comparable in credit quality and tenor to
those referred to above and customarily used by corporations for cash
management purposes in any jurisdiction outside the United States to the extent
reasonably required in connection with any business conducted by any Restricted
Subsidiary organized in such jurisdiction, having (i) one of the three highest
ratings from either Moody’s or S&P and (ii) maturities of not more than one
year from the date of acquisition


 


7

















 


thereof; provided that the
full faith and credit of any such member nation of the European Union is
pledged in support thereof.


 


“Cash Management Obligations” means obligations owed by any
Loan Party to any Lender or any Affiliate of a Lender in respect of any
overdraft and related liabilities arising from treasury, depository and cash
management services or any automated clearing house transfers of funds or in
respect of any credit card or similar services, which Lender or Affiliate of a
Lender has been designated by a Borrower as incurring Cash Management
Obligations.


 


“Cash on Hand” means, on any date of determination, the sum of
the amount of cash and Cash Equivalents of the Borrower Parties, as set forth
on the balance sheet of UHS and its consolidated Subsidiaries (it being
understood that such amount shall exclude in any event any cash or Cash
Equivalents identified on such balance sheet as “restricted” (other than cash
or Cash Equivalents restricted in favor of the Secured Parties)).


 


“Casualty Event” means any event that gives rise to the receipt
by any Borrower Party of any insurance proceeds or condemnation awards in
respect of any equipment, fixed assets or real property (including any
improvements thereon) to replace or repair such equipment, fixed assets or real
property.


 


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


 


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


 


“Change of Control” means the earliest to occur of (a) the
Permitted Holders ceasing to have the power, directly or indirectly, to vote or
direct the voting of securities having a majority of the ordinary voting power
for the election of directors of UHS; provided
that the occurrence of the foregoing event shall not be deemed a Change of
Control if,


 


(i)             any time prior to the
consummation of a Qualifying IPO, and for any reason whatsoever, (A) the
Permitted Holders otherwise have the right, directly or indirectly, to
designate (and do so designate) a majority of the board of directors of UHS or (B)
the Permitted Holders own, directly or indirectly, of record and beneficially
an amount of common stock or other common Equity Interests having ordinary
voting power of UHS equal to more than fifty percent (50%) of the amount of
common stock or other common Equity Interests having ordinary voting power of
UHS owned, directly or indirectly, by the Permitted Holders of record and
beneficially as of the Closing Date and such ownership by the Permitted Holders
represents the largest single block of voting securities having ordinary voting
power of UHS held by any Person or related group for purposes of Section 13(d)
of the Securities and Exchange Act of 1934, or


 


(ii)          at any time after the
consummation of a Qualifying IPO, and for any reason whatsoever, (A) no
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, but excluding any employee benefit plan of
such person and its subsidiaries, and any person or entity acting in its
capacity as trustee, agent or other fiduciary or administrator of any such
plan, and excluding the Permitted Holders), shall become the “beneficial owner”
(as defined in Rules 13(d)-3 and 13(d)-5 under the Securities Exchange Act of
1934), directly or indirectly, of more than the greater of (x) thirty-five
percent (35%) of the outstanding voting securities having ordinary voting power
of the Qualifying IPO Issuer and (y) the percentage of the then


 


8

















 


outstanding voting
securities having ordinary voting power of the Qualifying IPO Issuer owned,
directly or indirectly, beneficially by the Permitted Holders, and (B) during
any period of twelve (12) consecutive months, the board of directors of the
Qualifying IPO Issuer shall consist of a majority of the Continuing Directors;
or


 


(b)                                 Any “Change of
Control” (or any comparable term) in any document pertaining to the Senior
Notes, the Senior PIK/Toggle Notes or any other financing with an aggregate
outstanding principal amount in excess of the Threshold Amount; or


 


(c)                                  at any time prior
to a Qualifying IPO of UHS, UHS ceasing to be a directly or indirectly wholly
owned Subsidiary of Parent.


 


“Chattel Paper” means any “chattel paper,” as such term is
defined in the Uniform Commercial Code, including electronic chattel paper, now
owned or hereafter acquired by any Loan Party.


 


“Closing Date” means May 31, 2007, the closing date of the
Existing Credit Agreement.


 


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


 


“Collateral” means all of the “Collateral” referred to in the Collateral
Documents and all of the other property and assets that are or are required
under the terms hereof or of the Collateral Documents to be subject to Liens in
favor of the Collateral Agent for the benefit of the Secured Parties.


 


“Collateral Agent” means GE Capital, in its capacity as
collateral agent under any of the Loan Documents, or any successor
administrative agent.


 


“Collateral Documents” means, collectively, the Security
Agreement, each Intellectual Property Security Agreement, the Mortgages, and
each of the other agreements, instruments or documents that creates or purports
to create a Lien in favor of the Collateral Agent for the benefit of the
Secured Parties as security for the Secured Obligations, including collateral
assignments, Security Agreement Supplements, security agreements, pledge
agreements or other similar agreements delivered to the Administrative Agent
and the Lenders pursuant to Section 6.12.


 


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


 


“Compensation Period” has the meaning specified in Section 2.12(c)(ii).


 


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


 


“Confidential Memorandum” means the Confidential Memorandum
dated May 2007 with respect to the syndication of the facilities under the
Existing Credit Agreement.


 


“Consolidated Cash Taxes” means, as of any date for the
applicable period ending on such date with respect to the Borrower Parties on a
consolidated basis, the aggregate of all income, franchise and similar taxes,
as determined in accordance with GAAP, to the extent the same are paid or
payable in cash with respect to such period.


 


9

















 


“Consolidated EBITDA” means, for any period, with respect to
any Person and its Subsidiaries on a consolidated basis, the sum of (a) Consolidated
Net Income, plus (b) an amount
which, in the determination of Consolidated Net Income for such period, has
been deducted for, without duplication,


 


(i)                           total interest
expense, and to the extent not reflected in such total interest expense, any
costs of hedging obligations or other derivative instruments entered into for
the purpose of hedging interest rate risk,


 


(ii)                        income,
withholding, franchise and similar taxes and any tax distributions made
pursuant to Section 7.06(d)(ii) and foreign withholding taxes paid or
accrued during such period,


 


(iii)                     total
depreciation and amortization expense (including non-cash amortization of debt
discount or deferred financing costs),


 


(iv)                    letter of
credit fees,


 


(v)                       cash fees,
costs and expenses incurred in connection with the Transactions or, to the
extent permitted hereunder, any Investment permitted under Section 7.02,
Disposition permitted under Section 7.05, Equity Issuance, Debt Issuance
or any amendment or waiver of any Debt Issuance (in each case, whether or not
consummated),


 


(vi)                    to the extent
actually reimbursed or reimbursable, expenses incurred to the extent covered by
indemnification provisions in any agreement in connection with the Transactions
or a Permitted Acquisition,


 


(vii)                 to the extent
covered by insurance under which the insurer has been properly notified and has
not denied or contested coverage, expenses with respect to liability or
casualty events or business interruption,


 


(viii)              management fees paid under Section
7.08(d) or any other monitoring, consulting or advisory fees and related
expenses paid to Sponsor to the extent permitted under this Agreement,


 


(ix)                      expenses during
such period in respect of salary and out-of-pocket expense reimbursements paid
to David Dovenberg, so long as he remains an employee of any Loan Party, in the
aggregate amount not to exceed $200,000 in any fiscal year,


 


(x)                         to the extent
deducted in calculating Consolidated Net Income for such period, any non-cash
purchase accounting adjustment and any step-ups with respect to re-valuing
assets and liabilities in connection with the Transactions or any Investment
permitted under Section 7.02,


 


(xi)                      non-cash losses
from Joint Ventures and non-cash minority interest reductions,


 


(xii)                   fees and
expenses in connection with exchanges or refinancings permitted by Section 7.14,


 


10

















 


(xiii)            with respect to
the calculation of the financial covenant set forth in Section 7.11 for
any applicable period, the Net Cash Proceeds from any issuance of Equity
Interests (other than Disqualified Equity Interests) by UHS to the Equity
Investors in an amount not greater than the amount necessary to ensure that the
Borrower Parties are in compliance with the financial covenant set forth in Section
7.11 for such period, solely to the extent that the Net Cash Proceeds
therefrom (A) are actually received by UHS (including through capital
contribution of such Net Cash Proceeds by Parent to UHS) no later than ten (10)
Business Days after the date of delivery of the applicable Compliance
Certificate and (B) are Not Otherwise Applied; provided
that any infusion of equity pursuant to a Notice of Intent to Make an Equity
Infusion shall not be made more than twice in any four fiscal quarter period;
it being understood that this clause (xiii) may not be relied on for
purposes of calculating any financial ratios other than as applicable to Section
7.11 (including for purposes of the definition of “Pro Forma Basis”),


 


(xiv)               any other
non-cash charges or expenses to the extent such non-cash charges or expenses do
not result in a cash payment in a future period,


 


(xv)              one-time cash
charges relating to the transition costs associated with becoming a public
company;  minus


 


(c)                                  an amount
which, in the determination of Consolidated Net Income for such period, has
been included for non-cash income during such period (other than with respect
to cash actually received);


 


provided that notwithstanding
any other provision to the contrary contained in this Agreement, for purposes
of any calculation made under the financial covenant set forth in Section 7.11
(including for purposes of the definition of “Pro Forma Basis”, but excluding
for purposes of the definition of “Applicable Rate”), to the extent the receipt
of any Net Cash Proceeds of any issuance of Equity Interests are an effective
addition to Consolidated EBITDA as contemplated by, and in accordance with, the
provisions of clause (b)(xiii) above and, as a result thereof, any Event
of Default of the financial covenant set forth in Section 7.11 shall
have been cured for any applicable period, such cure shall be deemed to be
effective as of the last day of such applicable period; provided further that (a) Consolidated
EBITDA of Parent and its Subsidiaries for the fiscal quarters ended (i) June 30,
2006 shall equal $20,040,000, (ii) September 30, 2006 shall equal $19,422,000, (iii)
December 31, 2006 shall equal $19,983,000, and (iv) March 31, 2007 shall equal
$25,204,000, and (b) for any four fiscal quarter period ending on or prior to June
30, 2008, EBITDA attributable to Stryker Corporation of $3,000,000 and EBITDA
attributable to Intellamed, Inc. of $2,500,000 shall be included.


 


“Consolidated Funded Indebtedness” means, with respect to any
Person and its Subsidiaries on a consolidated basis, without duplication,


 


(a)                                  all obligations
of such Person for borrowed money,


 


(b)                                 all obligations
of such Person evidenced by bonds, debentures, notes or similar instruments,


 


(c)                                  all obligations
of such Person issued or assumed as the deferred purchase price of property or
services purchased by such Person (other than accrued expenses and trade debt
incurred in the ordinary course of business) which would appear in the
liabilities section of the balance sheet of such Person,


 


11

















 


(d)                                 all
Consolidated Funded Indebtedness of others secured by any Lien on property
owned or acquired by such Person, whether or not the obligations secured
thereby have been assumed,


 


(e)                                  all Guarantees
of such Person with respect to Consolidated Funded Indebtedness of another
Person.


 


(f)                                    the implied
principal component of all obligations of such Person under Capitalized Leases,


 


(g)                                 all drafts
drawn (to the extent unreimbursed) under standby letters of credit issued or
bankers’ acceptances facilities created for the account of such Person,


 


(h)                                 unless the
holder thereof is a Loan Party or, if the issuer thereof is a Subsidiary of any
Borrower which is not a Loan Party, any other Subsidiary of any Borrower, all
Disqualified Equity Interests convertible into Indebtedness and issued by such
Person from and after the date on which they are so converted, and


 


(i)                                     the
Consolidated Funded Indebtedness of any partnership or unincorporated joint
venture in which such Person is a general partner or a joint venturer to the
extent such Consolidated Funded Indebtedness is recourse to such Person.


 


Notwithstanding any other provision of this Agreement
to the contrary, (i) the term “Consolidated Funded Indebtedness” shall not be
deemed to include (A) any earn-out obligation until such obligation appears in
the liabilities section of the balance sheet of the applicable Person, (B) any
earn-out obligation that appears in the liabilities section of the balance
sheet of the applicable Person to the extent (1) such Person is indemnified for
the payment thereof by a solvent Person reasonably acceptable to the
Administrative Agent or (2) amounts to be applied to the payment thereof are in
escrow, (C) any deferred compensation arrangements or employee equity plan
related to which there is a liability on the balance sheet or (D) any
non-compete or consulting obligations incurred in connection with Permitted
Acquisitions and (ii) the amount of Consolidated Funded Indebtedness for which
recourse is limited either to a specified amount or to an identified asset of
such Person shall be deemed to be equal to such specified amount or the fair
market value of such identified asset as determined by such Person in good
faith, as the case may be.


 


“Consolidated Interest Charges” means, for any period, with
respect to any Person and its Subsidiaries on a consolidated basis, the amount
by which (a) the sum of interest expense for such period (including the
interest component under Capitalized Leases, but excluding, to the extent
included in interest expense, (i) fees and expenses associated with the
consummation of the Transactions, (ii) annual agency fees paid to the Administrative
Agent, (iii) costs associated with obtaining Swap Contracts, (x) fees and
expenses associated with any Investment permitted under Section 7.02,
Equity Issuance or Debt Issuance or any amendment or waiver of any Debt
Issuance (whether or not consummated), (iv) pay-in-kind interest expense or
other noncash interest expense (including as a result of the effects of
purchase accounting) and (v) amortization or write-down of any deferred
financing fees) exceeds (b) interest income for such period, in each case as
determined in accordance with GAAP, to the extent the same are paid or payable
(or received or receivable) in cash with respect to such period.


 


“Consolidated Net Income” means, for any period, with respect
to any Person and its Subsidiaries on a consolidated basis, net income as
determined in accordance with GAAP; provided
that Consolidated Net Income for any such period shall exclude, without
duplication, (a) any net after-tax extraordinary, unusual or non-recurring
gains, losses or charges (including severance, relocation, transition and other
restructuring costs and litigation settlements or losses), (b) the cumulative
effect of a


 


12

















 


change in accounting principle(s) during such
period, (c) any net after-tax gains or losses realized upon the disposition of
assets outside the ordinary course of business (including any gain or loss
realized upon the sale or other disposition of any Equity Interests of any
Person) or attributable to discontinued operations, (d) (i) the income or loss
of (1) for purposes of calculating cumulative Consolidated Net Income only, any
Subsidiary (other than a Loan Party) to the extent that the declaration or
payment of dividends or similar distributions by such Subsidiary of that income
is not at the time permitted without any prior governmental approval (which has
not been obtained) or, directly or indirectly, by the operation of the terms of
its charter or any agreement, instrument, judgment, decree, statute, rule or governmental
regulation applicable to such Subsidiary or its stockholders (which has not
been legally waived) and (2) any Joint Venture and any Unrestricted Subsidiary,
except in each case to the extent of the amount of dividends or other
distributions actually paid in cash to such Person or one of its Subsidiaries
by such Subsidiary, Joint Venture or Unrestricted Subsidiary during such period
and (ii) the income or loss of any Person accrued prior to the date it becomes
a Subsidiary of such Person or is merged into or consolidated with such Person
or any Subsidiary of such Person or the date that such other Person’s assets
are acquired by such Person or any Subsidiary of such Person, (e) non-cash
compensation charges, including any such charges arising from stock options,
restricted stock grants or other equity-incentive programs, (f) any net
after-tax income or loss (less all fees and expenses or charges relating
thereto) attributable to the early extinguishment of Indebtedness or hedging
obligations, including under Swap Contracts, (g) the effect of any non-cash
items resulting from any amortization, write-up, write-down or write-off or
impairment of assets (including intangible assets, goodwill and deferred
financing costs or liabilities) in connection with the Transactions, any
Permitted Acquisition or any merger, consolidation or similar transaction not
prohibited by this Agreement and non-cash impairment charges incurred
subsequent to the Closing Date resulting from the application of SFAS Nos.
142-144 (other than any such non-cash item to the extent that it represents an
accrual of or reserve for cash expenditures in any future period except to the
extent such item is subsequently reversed), (h) any reductions in respect of
dividends on, or accretion of, preferred Equity Interests; and provided further that Consolidated Net
Income for any such period shall be decreased by the amount of any equity of
any Borrower in a net loss of any Joint Venture for such period to the extent
such Borrower has funded such net loss, and (i) unrealized gains and losses in
respect of Swap Contracts and other “embedded derivatives” or similar contracts
that require the same accounting treatment as Swap Contracts.


 


“Continuing Directors” means the directors of Parent and UHS, respectively,
on the Closing Date, after giving effect to the Acquisition and the other
transactions contemplated hereby, and each other director, if, in each case,
such other directors’ or managers’ nomination for election to the board of
directors of Parent or UHS (or the Qualifying IPO Issuer after a Qualifying
IPO) is recommended by a majority of the then Continuing Directors or such
other director receives the indirect vote of the Permitted Holders in his or
her election by the stockholders of Parent or UHS (or the Qualifying IPO Issuer
after a Qualifying IPO).


 


“Contracts” means all “contracts,” as such term is defined in
the Uniform Commercial Code, now owned or hereafter acquired by any Loan Party,
in any event, including all contracts, undertakings, or agreements (other than
rights evidenced by Chattel Paper, Documents or Instruments) in or under which
any Loan Party may now or hereafter have any right, title or interest,
including any agreement relating to the terms of payment or the terms of performance
of any Account.


 


“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” has the meaning specified in the definition of
“Affiliate.”


 


13

















 


“Copyright License” means rights under any agreement to which
any Loan Party is or becomes a party granting any right to use any copyright.


 


“Copyrights” means all of the following now owned or hereafter
adopted or acquired by any Loan Party: (a) all copyrights and General
Intangibles of like nature (whether registered or unregistered), all
registrations and recordings thereof, and all applications in connection
therewith, including all registrations, recordings and applications in the
United States Copyright Office or in any similar office or agency of the United
States, any state or territory thereof, or any other country or any political
subdivision thereof, and (b) all reissues, extensions or renewals thereof.


 


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


 


“Debt Issuance” means the issuance by any Person and its
Subsidiaries of any Indebtedness for borrowed money.


 


“Debtor Relief Laws” means the Bankruptcy Code of the United
States, and all other liquidation, conservatorship, bankruptcy, general
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 lapse of grace
period, or both, would be an Event of Default.


 


“Default Rate” means an interest rate equal to (a) the Base
Rate plus (b) the Applicable Rate
applicable to Base Rate Loans plus
(c) 2.0% per annum; provided 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 2.0%
per annum, in each case, to the fullest extent permitted by applicable Laws,
and if there is no applicable interest rate, then at the rate applicable to the
Revolving Credit Loans bearing interest at the Base Rate plus the Applicable Rate applicable to
Base Rate Loans plus 2.0% per
annum.


 


“Defaulting Lender” means any Lender that (a) has failed to
fund any portion of the Revolving Credit Loans, participations in L/C
Obligations or participations in Swing Line Loans required to be funded by it
hereunder within one (1) Business Day of the date required to be funded by it
hereunder, unless the subject of a good faith dispute, (b) has otherwise failed
to pay over to the Administrative Agent or any other Lender any other amount
required to be paid by it hereunder within one (1) Business Day of the date
when due, unless the subject of a good faith dispute, or (c) has been deemed or
declared insolvent by any relevant regulatory or judicial authority or become
the subject of a bankruptcy or insolvency proceeding.


 


“Deposit Accounts” means all “deposit accounts” as such term is
defined in the Uniform Commercial Code, now or hereafter held in the name of
any Loan Party.


 


“Disclosed Litigation” has the meaning specified in Section 5.06.


 


“Disposition” or “Dispose”
means the sale, transfer, license, lease or other disposition of any property
by any Person (including any sale and leaseback transaction and any sale of
Equity Interests, but excluding any issuance by such Person of its own Equity
Interests), including any sale, assignment, transfer or other disposal, with or
without recourse, of any notes or accounts receivable or any rights and claims
associated therewith.


 


14
















 


“Disqualified Equity Interests” means any
Equity Interest which, by its terms (or by the terms of any security or other
Equity Interests into which it is convertible or for which it is exchangeable),
or upon the happening of any event or condition (a) matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, (b) is
redeemable at the option of the holder thereof, in whole or in part, (c) provides
for the scheduled payments of dividends in cash, or (d) is or becomes
convertible into or exchangeable for Indebtedness or any other Equity Interests
that would constitute Disqualified Equity Interests, in each case of clauses (a) through
(d) above, prior to the date that is one hundred eighty-one (181) days
after the Maturity Date of the Revolving Credit Facility (except, in each case,
as a result of a change of control or asset sale so long as any rights of the
holders thereof upon the occurrence of a change of control or asset sale event
shall be subject to the prior repayment in full of the Loans and all other
Obligations that are accrued and payable and the termination of the Revolving
Credit Commitments).


 


“Documentation Agent” means Bank of America,
N.A., as documentation agent under this Agreement.


 


“Documents” means all “documents,” as such
term is defined in the Uniform Commercial Code, now owned or hereafter acquired
by any Loan Party, wherever located.


 


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


 


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


 


“Eligible Accounts” has the meaning ascribed
to it in Section 2.15.


 


“Eligible Assignee” means (a) a Lender;
(b) an Affiliate of a Lender; (c) an Approved Fund; and (d) any
other Person (other than a natural person or a Disqualified Institution, as
designated by the Sponsor to the Administrative Agent in the electronic
communication from Sponsor to the Administrative Agent dated May 25, 2007)
approved by (i) the Administrative Agent, the L/C Issuer and the Swing
Line Lender and (ii) unless an Event of Default has occurred and is
continuing under Section 8.01(a), Section 8.01(f) or
Section 8.01(g)(i), the Borrowers (each such approval not to be
unreasonably withheld or delayed).


 


“Eligible Equipment Disposables” means, as
of any date of determination, all Equipment Disposables of Borrowers which
conform to the requirements of Section 2.16 of the Agreement.


 


“Eligible Equity Proceeds” means (a) the
Net Cash Proceeds received by Parent from any sale or issuance of any Equity
Interests (other than Disqualified Equity Interests) of Parent to the extent
such Net Cash Proceeds are directly or indirectly contributed as a common
capital contribution to, and actually received by, UHS (or, if only a portion
thereof is so contributed and received, to the extent of such portion) and (b) after
a Qualifying IPO of UHS, the Net Cash Proceeds received by UHS from any sale or
issuance of any Equity Interests (other than Disqualified Equity Interests) of
UHS.


 


“Eligible Rental Equipment” means, as of any
date of determination, the amount of all Rental Equipment of the Borrowers
which (a) is held by Borrower (other than for sale) or is rented to third
Persons in the ordinary course of business by Borrower or which is the subject
of an equipment rental program or similar equipment outsourcing program, and (b) conforms
to the requirements of Section 2.16 of the Agreement.


 


“Eligible Unbilled Accounts” has the meaning
specified in Section 2.15.


 


15

















 


“Eligible Wholesale Disposables” means, as
of any date of determination, all Wholesale Disposables of the Borrowers which
conform to the requirements of Section 2.16 of the Agreement.


 


“Environmental Laws” means any and all
applicable Federal, state, local, and foreign statutes, laws, regulations,
ordinances, rules, judgments, orders, decrees, legally-binding agreements or
governmental restrictions relating to pollution, the protection of the
environment or the management, disposal or release of any hazardous materials,
substances or wastes into the environment, including those related to 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
Borrowers, any other Loan Party or any of their respective Subsidiaries arising
from, 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.


 


“Environmental Permit” means any permit,
approval, identification number, license or other authorization required under
any Environmental Law.


 


“Equipment” means all “equipment,” as such
term is defined in the Uniform Commercial Code, now owned or hereafter acquired
by any Loan Party, wherever located and, in any event, including all such Loan
Party’s machinery and equipment, including processing equipment, conveyors,
machine tools, data processing and computer equipment, including embedded
Software and peripheral equipment and all engineering, processing and
manufacturing equipment, office machinery, furniture, materials handling
equipment, tools, attachments, accessories, automotive equipment, trailers,
trucks, forklifts, molds, dies, stamps, motor vehicles, rolling stock and other
equipment of every kind and nature, trade fixtures and Fixtures not forming a part
of real property, together with all additions and accessions thereto,
replacements therefor, all parts therefor, all substitutes for any of the
foregoing, fuel therefor, and all manuals, drawings, instructions, warranties
and rights with respect thereto, and all products and proceeds thereof and
condemnation awards and insurance proceeds with respect thereto.


 


“Equipment Disposables” means repair or
replacement parts purchased by the Borrowers or any of its Subsidiaries for
repair of its Rental Equipment or for sale to customers of the Borrowers or any
of its Subsidiaries.


 


“Equity Contribution Agreement” means the
definitive agreement pursuant to which the Sponsor commits to make the Equity
Contribution.


 


“Equity Contributions” means, collectively,
the contribution by the Equity Investors indirectly to UHS (through Parent) of
an aggregate amount of cash equal to not less than (taken together with the
Rollover Equity (on a fully diluted basis)) 25% of the total consolidated
capitalization of UHS on the Closing Date after giving pro forma effect to the
consummation of the Transactions in order to consummate the Acquisition.


 


“Equity Interests” means, with respect to
any Person, all of the shares, interests, rights, participations or other
equivalents (however designated) of capital stock of (or other ownership or
profit interests or units in) such Person and all of the warrants, options or
other rights for the purchase, acquisition or exchange from such Person of any
of the foregoing (including through convertible securities).


 


16

















 


“Equity Investors” means the Sponsor and the
Management Shareholders.


 


“Equity Issuance” means any issuance for
cash by any Person and its Subsidiaries to any other Person of (a) its Equity
Interests, (b) any of its Equity Interests pursuant to the exercise of
options or warrants, (c) any of its Equity Interests pursuant to the
conversion of any debt securities to equity or (d) any options or warrants
relating to its Equity Interests.  A
Disposition shall not be deemed to be an Equity Issuance.


 


“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 the any
Borrower within the meaning of Section 414(b) or (c) of the Code
(and Sections 414(m) and (o) of the Code for purposes of provisions
relating to Section 412 of the Code).


 


“ERISA Event” means (a) a Reportable
Event with respect to a Pension Plan; (b)  a withdrawal by any Borrower or
any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA
during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of
ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by any Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan
is, or is expected to be, in reorganization; (d) the filing of a notice of
intent to terminate, the treatment of a Pension Plan amendment as a termination
under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by
the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event
or condition which constitutes grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Pension Plan
or Multiemployer Plan; or (f) the imposition of any material liability
under Title IV of ERISA, other than for PBGC premiums not yet due or premiums
due but not yet delinquent under Section 4007 of ERISA, upon any Borrower
or any ERISA Affiliate.


 


“Eurodollar Rate” means, for any Interest
Period with respect to any Eurodollar Rate Loan:


 


(a)           the rate per annum
equal to the rate determined by the Administrative Agent to be the offered rate
by reference to a page or other service that displays an average British
Bankers Association Interest Settlement Rate for deposits in Dollars (for
delivery on the first day of such Interest Period) with a term equivalent to
such Interest Period, determined as of approximately 11:00 a.m. (London
time) two (2) Business Days prior to the first day of such Interest
Period, or


 


(b)           if the rate
referenced in the preceding clause (a) is not available, the rate
per annum determined by the Administrative Agent as the rate of interest at
which deposits in Dollars for delivery on the first day of such Interest Period
in immediately available funds in the approximate amount of the Eurodollar Rate
Loan being made, continued or converted by the Administrative Agent and with a
term equivalent to such Interest Period would be offered by the Administrative
Agent’s London Branch to major banks in the London interbank eurodollar market
at their request at approximately 4:00 p.m. (London time) two (2) Business
Days prior to the first day of such Interest Period.


 


“Eurodollar Rate Loan” means a Loan that
bears interest at a rate based on the Eurodollar Rate.


 


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


 


“Existing Credit Agreement” has the meaning
specified in the Preliminary Statements to this Agreement.


 


17

















 


“Existing Indebtedness” means Indebtedness
existing on the Closing Date, as set forth in Schedule 7.03(b)(viii).


 


“Facility” means the Revolving Credit
Facility, the Swing Line Sublimit or the Letter of Credit Sublimit, as the
context may require.


 


“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 immediately 
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
charged to the Administrative Agent on such day on such transactions as
determined by the Administrative Agent.


 


“Fee Letter” means that certain Fee Letter
dated as of April 23, 2007 among the Arrangers, the Administrative Agent
and Parent.


 


“Fixtures” means all “fixtures” as such term
is defined in the Uniform Commercial Code, now owned or hereafter acquired by
any Loan Party.


 


“Foreign Subsidiary” means any direct or
indirect Subsidiary of any Borrower which is not a Domestic Subsidiary.


 


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


 


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


 


“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 Fee Letter” means that certain
Fee Letter dated as of April 23, 2010 among GE Capital, the Arranger and
the Borrower.


 


“General Intangibles” means all “general intangibles,”
as such term is defined in the Uniform Commercial Code, now owned or hereafter
acquired by any Loan Party, including all right, title and interest that such
Loan Party may now or hereafter have in or under any Contract, all payment
intangibles, customer lists, Licenses, Copyrights, Trademarks, Patents, rights
in Intellectual Property, interests in partnerships, joint ventures and other
business associations, licenses, permits, trade secrets, proprietary or
confidential information, inventions (whether or not patented or patentable),
technical information, procedures, designs, knowledge, know-how, Software, data
bases, data, skill, expertise, experience, processes, models, drawings,
materials and records, goodwill, all rights and claims in or under insurance
policies (including insurance for fire, damage, loss and casualty, whether
covering personal property, real property, tangible rights or intangible
rights, all liability, life, key man and business interruption insurance, and
all unearned premiums), uncertificated securities, choses in action, deposit,
checking and


 


18

















 


other
bank accounts, rights to receive tax refunds and other payments, rights to
receive dividends, distributions, cash, Instruments and other property in
respect of or in exchange for pledged Stock and Investment Property, rights of
indemnification, all books and records, correspondence, credit files, invoices
and other papers, including without limitation all tapes, cards, computer runs
and other papers and documents in the possession or under the control of such
Loan Party or any computer bureau or service company from time to time acting
for such Loan Party.


 


“Goods” means all “goods” as defined in the
Uniform Commercial Code, now owned or hereafter acquired by any Loan Party,
wherever located, including embedded Software to the extent included in “goods”
as defined in the Uniform Commercial Code, manufactured homes, standing timber
that is cut and removed for sale and unborn young of animals.


 


“Governmental Authority” means any nation or
government, any state or other political subdivision thereof, any agency,
authority, instrumentality, regulatory body, court, administrative tribunal,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.


 


“Granting Lender” has the meaning specified
in Section 10.07(g).


 


“Guarantee” means, as to any Person, without
duplication, (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); provided, however, if such obligation has
not been assumed, the amount of such Guarantee shall be the lesser of the
primary obligations so secured or the value of the assets to which a Lien has
attached; and provided further
that the term “Guarantee” shall not include endorsements for collection or
deposit, in either case in the ordinary course of business, or customary and
reasonable indemnity obligations, including, but not limited to, those in
effect on the Closing Date or entered into in connection with any acquisition
or disposition of assets permitted under this Agreement (other than such
obligations with respect to Indebtedness). 
The amount of any Guarantee shall be deemed to be an amount equal to the
stated or determinable amount of the related primary obligation, or portion
thereof, in respect of which such Guarantee is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
as determined by the guaranteeing Person in good faith.  The term “Guarantee” as a verb has a
corresponding meaning.


 


“Guarantors” means, collectively, (a) Parent
and (b) each Restricted Subsidiary that is a Subsidiary of the Borrowers
that shall be required to become a Guarantor pursuant to Section 6.12.


 


“Guaranty” means the Amended and Restated
Guaranty made by the Guarantors in favor of the Secured Parties, substantially
in the form of Exhibit F, together with each other guaranty and
guaranty


 


19

















 


supplement
of any Subsidiary in respect of the Obligations of the Borrowers delivered
pursuant to Section 6.12.


 


“Hazardous Materials” means all substances,
materials or wastes classified or regulated pursuant to any Environmental Law
as hazardous, toxic explosive or radioactive or as pollutants, including
petroleum or petroleum distillates, mold, asbestos or asbestos-containing
materials and polychlorinated biphenyls.


 


“Hedge Bank” means any Person that is a
Lender or an Affiliate of a Lender, in its capacity as a party to a Secured
Hedge Agreement.


 


“Historical Financial Statements” means the
audited consolidated balance sheets of UHS as of each of December 31,
2006, December 31, 2005 and December 31, 2004, and the related
audited consolidated statements of income, retained earnings and cash flow for
UHS for the fiscal years ended December 31, 2006, December 31, 2005
and December 31, 2004.


 


“Honor Date” has the meaning specified in Section 2.03(c)(i).


 


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


 


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


 


(b)           the maximum amount
(after giving effect to any prior drawings or reductions which may have been
reimbursed) of all outstanding letters of credit (including standby and
commercial), bankers’ acceptances, bank guaranties, surety bonds, performance
bonds and similar instruments issued or created by or for the account of such
Person;


 


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


 


(d)           all obligations of
such Person to pay the deferred purchase price of property or services (other
than (i) trade accounts payable or accrued expenses in the ordinary course
of business and (ii) any earn-out obligation until such obligation appears
in the liabilities section of the balance sheet of such Person);


 


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


 


(f)            all Attributable
Indebtedness;


 


(g)           all obligations of
such Person in respect of Disqualified Equity Interests;


 


(h)           all Synthetic
Indebtedness of such Person; and


 


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


 


20

















 


For
all purposes hereof, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person.  The
amount of any net obligation under any Swap Contract on any date shall be
deemed to be the Swap Termination Value thereof as of such date.  The amount of Indebtedness of any Person for
purposes of clause (e) shall be deemed to be equal to the lesser of
(x) the aggregate unpaid amount of such Indebtedness and (y) the fair
market value of the property encumbered thereby as determined by such Person in
good faith.


 


“Indemnified Liabilities” has the meaning
set forth in Section 10.05.


 


“Indemnitees” has the meaning set forth in Section 10.05.


 


“Information” has the meaning specified in Section 10.08.


 


“Initial L/C Issuer” means the bank or other
financial institution listed on the signature pages hereof as the Initial
L/C Issuer.


 


“Initial Swing Line Lender” means the bank
or other financial institution listed on the signature pages hereof as the
Initial Swing Line Lender.


 


“Instruments” means all “instruments,” as
such term is defined in the Uniform Commercial Code, now owned or hereafter
acquired by any Loan Party, wherever located, and, in any event, including all
certificated securities, all certificates of deposit, and all promissory notes
and other evidences of indebtedness, other than instruments that constitute, or
are a part of a group of writings that constitute, Chattel Paper.


 


“Intellectual Property” means any and all
Patents, Copyrights and Trademarks.


 


“Intellectual Property Security Agreement”
means, collectively, the Copyright Security Agreement, the Trademark Security
Agreement and the Patent Security Agreement (each as defined in the Security
Agreement), referred to in and substantially in the forms attached to the
Security Agreement together with each other intellectual property security
agreement executed and delivered pursuant to Section 6.12 or the
Security Agreement.


 


“Intercreditor Agreement” means the
intercreditor agreement, in substantially the form of Exhibit J
hereto, dated as of May 31, 2007 among the Administrative Agent, the
Collateral Agent and the Second Lien Collateral Agent and acknowledged and
agreed to by the Borrowers, Parent and each other Loan Party.


 


“Interest Coverage Ratio” means, with
respect to the Borrower Parties on a consolidated basis, as of the end of any
fiscal quarter of UHS for the four (4) fiscal quarter period ending on
such date with respect to the Borrower Parties on a consolidated basis, the
ratio of (a) Consolidated EBITDA of the Borrower Parties for such period
to (b) Consolidated Interest Charges of the Borrower Parties for such
period.


 


“Interest Payment Date” means, (a) as
to any Loan other than a Base Rate Loan, the last day of each Interest Period
applicable to such Loan and the Maturity Date of the Facility under which such
Loan was made; provided 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


 


21

















 


Business
Day of each March, June, September and December and the Maturity Date
of the Facility under which such Loan was made.


 


“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, or if available to
all relevant Lenders, nine or twelve months thereafter, as selected by the
relevant Borrower in its Committed 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 immediately
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 of the Facility under which such Loan was
made.


 


“Inventory” means all “inventory,” as such
term is defined in the Uniform Commercial Code, now owned or hereafter acquired
by any Loan Party, wherever located, and in any event including inventory,
merchandise, goods and other personal property that are held by or on behalf of
any Loan Party for sale or lease or are furnished or are to be furnished under
a contract of service, or that constitute raw materials, work in process,
finished goods, returned goods, or materials or supplies of any kind, nature or
description used or consumed or to be used or consumed in such Loan Party’s
business or in the processing, production, packaging, promotion, delivery or
shipping of the same, including all supplies and embedded Software.


 


“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 or debt or
other securities of another Person, (b) a loan, advance or capital
contribution to, Guarantee or assumption of debt of, or purchase or other
acquisition of any other debt or equity participation or interest in, another
Person, including any partnership or joint venture interest in such other
Person and any arrangement pursuant to which the investor incurs debt of the
type referred to in clause (i) of the definition of “Indebtedness”
set forth in this Section 1.01 in respect of such Person or (c) the
purchase or other acquisition (in one transaction or a series of transactions)
of all or substantially all of the property and assets or business of another
Person or assets constituting a business unit, line of business or division of
such Person.  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, less any amount paid, repaid, returned, distributed or otherwise
received in cash in respect of such Investment.


 


“Investment Property” means all “investment
property” as such term is defined in the Uniform Commercial Code now owned or
hereafter acquired by any Loan Party, wherever located, including (a) all
securities, whether certificated or uncertificated, including stocks, bonds,
interests in limited liability companies, partnership interests, treasuries,
certificates of deposit, and mutual fund shares; (b) all securities
entitlements of any Loan Party, including the rights of any Loan Party to any
securities account and the financial assets held by a securities intermediary
in such securities account and any free credit


 


22

















 


balance
or other money owing by any securities intermediary with respect to that
account; (c) all securities accounts of any Loan Party; (d) all
commodity contracts of any Loan Party; and (e) all commodity accounts held
by any Loan Party.


 


“IP Rights” has the meaning set forth in Section 5.14.


 


“IRS” means the United States Internal
Revenue Service.


 


“Joint Venture” means (a) any Person
which would constitute an “equity method investee” of UHS or any of its
Restricted Subsidiaries and (b) any Person in whom UHS or any of its
Restricted Subsidiaries beneficially owns any Equity Interest that is not a
Subsidiary.


 


“Junior Financing Documentation” means any
documentation governing any Permitted Subordinated Indebtedness.


 


“Jurisdictional Requirements” has the
meaning specified in Section 7.04(a).


 


“Laws” means, collectively, all applicable
international, foreign, Federal, state, commonwealth and local statutes,
treaties, rules, guidelines, regulations, ordinances, codes and administrative
or judicial precedents or authorities, including the interpretation 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 Pro Rata Share.


 


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


 


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


 


“L/C Issuer” means the Initial L/C Issuer in
its capacity as issuer of Letters of Credit hereunder and each other Lender
reasonably acceptable to both the Administrative Agent and the Borrowers that
has entered into a letter of credit issuer agreement in form and substance
reasonably satisfactory to the Administrative Agent, in each case, in its
capacity as an issuer of Letters of Credit hereunder, or any successor issuer
of Letters of Credit hereunder; provided
that no Person shall at any time become an L/C Issuer if after giving effect
thereto there would at such time be more than three (3) L/C Issuers.  Each L/C Issuer may, in its discretion,
arrange for one or more Letters of Credit to be issued by Affiliates of such
L/C Issuer, in which case the term L/C Issuer shall include any such Affiliate
with respect to Letters of Credit issued by such Affiliate.  In the event that there is more than one L/C
Issuer at any time, references herein and in the other Loan Documents to the
L/C Issuer shall be deemed to refer to the L/C Issuer in respect of the
applicable Letter of Credit or to all L/C Issuers, as the context requires.


 


“L/C Issuer’s Office” means the L/C Issuer’s
address and, as appropriate, account as set forth on Schedule 10.02, or
such other address or account as the L/C Issuer may from time to time notify in
writing to the Borrowers, the Lenders and the Administrative Agent.


 


23

















 


“L/C Obligations” means, as at any date of
determination, the aggregate undrawn amount of all outstanding Letters of
Credit plus the aggregate of all Unreimbursed Amounts, including, without
duplication, all L/C Borrowings.


 


“Lease Payment Reserves” means, a reserve
against the Borrowing Base in an amount determined by the Administrative Agent
in its reasonable discretion for rent payable by Borrowers with respect to each
lease of real property where Eligible Rental Equipment, Eligible Wholesale
Disposables and Eligible Equipment Disposables are located and with respect to
which the applicable Borrower has failed to obtain an access agreement, in form
and substance reasonably satisfactory to the Administrative Agent; provided that (a) such reserves shall
be limited to leases of real property where Eligible Rental Equipment, Eligible
Wholesale Disposables and Eligible Equipment Disposables are located in the
States of Iowa, Louisiana, Pennsylvania, Virginia and Washington and the
District of Columbia and any other jurisdiction that, after the Closing Date,
enacts legislation providing landlords with a Lien (i) that is senior in
priority to that of the Collateral Agent, and (ii) which Lien will not
lose its senior priority with respect to that of the Collateral Agent upon a
one time turnover of the Eligible Rental Equipment, Eligible Wholesale
Disposables and Eligible Equipment Disposables, (b) such reserves shall be
limited to: (i) twelve (12) months rent payable by Borrowers with respect
to locations in Iowa and Pennsylvania, (ii) six (6) months rent
payable by Borrowers with respect to locations in Louisiana and Virginia, (iii) three
(3) months rent payable by Borrowers with respect to locations in the
District of Columbia, (iv) two (2) months rent payable by Borrowers
with respect to locations in the State of Washington, and (v) the
applicable number of months rent for which the landlord has priority over the
Lien of the Collateral Agent pursuant to legislation in the applicable
jurisdiction, and (c) the amount of any reserves imposed with respect to
any location shall not exceed the fair market value of the Eligible Rental
Equipment, Eligible Wholesale Disposables and Eligible Equipment Disposables
located at such location.


 


“Lender” has the meaning specified in the
introductory paragraph to this Agreement and, as the context requires, includes
the L/C Issuer and 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 Borrowers and the Administrative Agent.


 


“Letter of Credit” means any letter of
credit issued hereunder.  A Letter of Credit
may be a commercial letter of credit or a standby letter of credit.


 


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


 


“Letter of Credit Expiration Date” means the
day that is the scheduled Maturity Date then in effect for the Revolving Credit
Facility.


 


“Letter of Credit Sublimit” means
$10,000,000.  The Letter of Credit
Sublimit is part of, and not in addition to, the Revolving Credit Facility.


 


“Leverage Ratio” means, with respect to the
Borrower Parties on a consolidated basis, as of the end of any fiscal quarter
of UHS for the four (4) fiscal quarter period ending on such date, the
ratio of (a) Consolidated Funded Indebtedness (net of Cash on Hand) of the
Borrower Parties on the last day of such period to (b) Consolidated EBITDA
of the Borrower Parties for such period.


 


“License” means any Copyright License,
Patent License, Trademark License or other license of rights or interests now
held or hereafter acquired by any Loan Party in any IP Rights.


 


24
















 


“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 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 Capitalized Lease
having substantially the same economic effect as any of the foregoing).  For the avoidance of doubt “Lien” shall not
be deemed to include any license of IP Rights.


 


“Loan” means an extension of credit by a
Lender to a Borrower under Article 2 in the form of a Revolving
Credit Loan or a Swing Line Loan.


 


“Loan Documents” means, collectively, (a) this
Agreement, (b) the Notes, (c) the Guaranty, (d) the Collateral
Documents, (e) the Fee Letter, (f) the GE Capital Fee Letter, (g) each
Letter of Credit Application, (h) the Intercreditor Agreement and (i) solely
for purposes of the Collateral Documents and the Guaranty, each Secured Hedge
Agreement.


 


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


 


“Management Shareholders” means the members
of management of UHS, its direct or indirect parent company or its Subsidiaries
who are investors, directly or indirectly, in Parent.


 


“Master Agreement” has the meaning specified
in the definition of “Swap Contract.”


 


“Material Adverse Effect” means (a) a
material adverse effect on the business, assets, properties, financial
condition or results of operations of UHS and its Restricted Subsidiaries,
taken as a whole, (b) a material adverse effect on the ability of the Loan
Parties (taken as a whole) to perform their obligations under any Loan Document
or (c) a material adverse effect on the rights and remedies of the Lenders
under any Loan Document.


 


“Material Intellectual Property” means any
IP Rights that are material to the operation of the business of the Borrowers
and the Restricted Subsidiaries, taken as a whole.


 


“Material Real Property” means fee owned
real property with a value in excess of $5,000,000.


 


“Maturity Date” means the earlier of November 30,
2014 and the date of termination in whole of the Revolving Credit Commitments
pursuant to Section 2.06 or 8.02.


 


“Maximum Amount” means, as of any date of
determination, an amount equal to the aggregate Revolving Credit Commitments of
all the Lenders as of such date.  The
initial amount thereof as of the Amendment Closing Date is $195,000,000.


 


“Maximum Rate” has the meaning specified in Section 10.10.


 


“Merger Agreement” means the Agreement and
Plan of Merger dated as of April 15, 2007, by and among the Seller, the
Parent, and UHS Merger Sub, Inc.


 


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


 


“Mortgage” means each deed of trust, trust
deed and mortgage covering the fee owned properties identified to be mortgaged
on Schedule 5.07(c) (together with the Assignments of Leases and
Rents referred to therein) executed and delivered in connection with the
Existing Credit Agreement, together


 


25

















 


with
each other mortgage or other comparable instrument in form and substance
reasonably acceptable to the Administrative Agent executed and delivered
pursuant to Section 6.12.


 


“Mortgage Policies” means each fully paid
policy of title insurance with such extended coverage as is available pursuant
to the underwriting requirements of the related title company (to be
substantially similar to that provided under an ALTA Extended form policy).


 


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


 


“Net Cash Proceeds” means:


 


(a)           with respect to any
Casualty Event, the excess, if any, of (i) the sum of cash and Cash
Equivalents received in connection with such Casualty Event (including any
insurance proceeds or condemnation awards in respect of such Casualty Event
actually received by or paid to or for the account of any Borrower or any of
its Restricted Subsidiaries) over (ii) the sum of (A) the principal
amount of any Indebtedness that is secured by the asset subject to such
Casualty Event and that is required to be repaid (and is timely repaid) in
connection with such Casualty Event (other than Indebtedness under the Loan
Documents), (B) the out-of-pocket fees and expenses (including, without
limitation, attorneys’ fees, investment banking fees, survey costs, title
insurance premiums, and related search and recording charges, transfer taxes,
deed or mortgage recording taxes, other customary expenses and brokerage,
consultant and other customary fees) actually incurred by such Borrower or such
Restricted Subsidiary in connection with such Casualty Event, (C) taxes
paid or reasonably estimated to be payable in connection therewith by such
Borrower or such Restricted Subsidiary and attributable to such Casualty Event
(including, in respect of any proceeds received in connection with a Casualty
Event of any asset of any Restricted Subsidiary organized under the laws of a
jurisdiction different from the jurisdiction of organization of the Borrower
that is its most direct parent company, deductions in respect of withholding
taxes that are payable in cash if such funds are repatriated to the jurisdiction
of the relevant Borrower) and (D) any reserve for adjustment in respect of
(1) the sale price of such asset or assets established in accordance with
GAAP and (2) any liabilities associated with such asset or assets and
retained by any Borrower or any of its Restricted Subsidiaries after such sale
or other disposition thereof, including, without limitation, pension and other
post-employment benefit liabilities and liabilities related to environmental
matters or against any indemnification obligations associated with such
transaction and it being understood that “Net Cash Proceeds” shall include,
without limitation, any cash or Cash Equivalents (i) received upon the
Disposition of any non-cash consideration received by any Borrower or any of
its Restricted Subsidiaries in respect of any such Casualty Event and (ii) upon
the reversal (without the satisfaction of any applicable liabilities in cash in
a corresponding amount) of any reserve described in clause (D) above
or, if such liabilities have not been satisfied in cash and such reserve not
reversed within three hundred and sixty-five (365) days after such Casualty
Event, the amount of such reserve.


 


(b)           with respect to the
issuance of any Equity Interest by any Borrower or any of its Restricted
Subsidiaries, the excess of (i) the sum of the cash and Cash Equivalents
received in connection with such issuance over (ii) all taxes (including,
in respect of any proceeds received in connection with the issuance of Equity
Interests of any Restricted Subsidiary organized under the laws of a
jurisdiction different from the jurisdiction of organization of the Borrower
that is its most direct parent company, deductions in respect of withholding
taxes that are payable in cash if


 


26

















 


such
funds are repatriated to the jurisdiction of the relevant Borrower) and fees
(including investment banking fees, underwriting discounts, commissions, costs
and other out-of-pocket expenses (including attorneys’ fees) and other
customary expenses) incurred by such Borrower or such Restricted Subsidiary in
connection with such issuance; and


 


(c)           with respect to the
incurrence or issuance of any Indebtedness by any Borrower or any of its
Restricted Subsidiaries, the excess, if any, of (i) the sum of the cash
received in connection with such incurrence or issuance over (ii) the
investment banking fees, underwriting discounts, commissions, costs and other
out-of-pocket expenses (including attorneys’ fees) and other customary
expenses, incurred by such Borrower or such Restricted Subsidiary in connection
with such incurrence or issuance (including, in the case of Indebtedness of any
Restricted Subsidiary organized under the laws of a jurisdiction different from
the jurisdiction of organization of the Borrower that is its most direct parent
company, deductions in respect of withholding taxes that are payable in cash if
such funds are repatriated to the jurisdiction of the relevant Borrower).


 


“Non-Consenting Lender” has the meaning
specified in Section 3.07(d).


 


“Non-Recourse Debt” means Indebtedness:


 


(a)           as to which neither
Parent nor any of its Restricted Subsidiaries (i) provides credit support
of any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (ii) is directly or indirectly liable as a
guarantor or otherwise, or (ii) constitutes the lender;


 


(b)           no default with respect
to which would permit upon notice, lapse of time or both any holder of any
Indebtedness of Parent or any of its Restricted Subsidiaries to declare a
default on such Indebtedness or cause the payment of the Indebtedness to be
accelerated or payable prior to its Stated Maturity; and


 


(c)           as to which the
lenders have been notified in writing that they will not have any recourse to
the stock or assets of Parent or any of its Restricted Subsidiaries (other than
a pledge of the Equity Interests of an Unrestricted Subsidiary).


 


“Nonrenewal Notice Date” has the meaning
specified in Section 2.03(b)(iii).


 


“Non-US Lender” has the meaning specified in
Section 10.15(a)(i).


 


“Not Otherwise Applied” means, with
reference to any amount of Net Cash Proceeds of any transaction or event, that
such amount (a) was not previously included in a calculation of “Consolidated
EBITDA” pursuant to clause (b)(xiii) of the definition thereof and (c) was
not previously applied in determining the permissibility of a transaction under
the Loan Documents where such permissibility was (or may have been) contingent
on receipt of such amount.


 


“Note” means a Revolving Credit Note.


 


“Notice of Intent to Make An Equity Infusion”
has the meaning specified in Section 6.02(a).


 


“NPL” means the National Priorities List
under CERCLA.


 


27

















 


“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 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. 
Without limiting the generality of the foregoing, the Obligations of the
Loan Parties under the Loan Documents include (a) the obligation to pay
principal, interest, Letter of Credit commissions, charges, expenses, fees,
Attorney Costs, indemnities and other amounts payable by any Loan Party under
any Loan Document and (b) the obligation of any Loan Party to reimburse
any amount in respect of any of the foregoing that any Lender, any Agent or any
L/C Issuer in its sole discretion, may elect to pay or advance on behalf of
such Loan Party.


 


“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-US 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” has the meaning specified in Section 3.01(b).


 


“Outstanding Amount” means (a) with
respect to the Revolving Credit Loans and Swing Line Loans on any date, the
principal amount thereof after giving effect to any borrowings and prepayments
or repayments of Revolving Credit Loans (including any refinancing of
outstanding unpaid drawings under Letters of Credit or L/C Credit Extensions as
a Revolving Credit Borrowing) and Swing Line Loans, as the case may be,
occurring on such date; and (b) with respect to any L/C Obligations on any
date, the amount thereof on such date after giving effect to any L/C Credit
Extension occurring on such date and any other changes thereto as of such date,
including as a result of any reimbursements of outstanding unpaid drawings
under any Letters of Credit (including any refinancing of outstanding unpaid
drawings under Letters of Credit or L/C Credit Extensions as a Revolving Credit
Borrowing) or any reductions in the maximum amount available for drawing under
Letters of Credit taking effect on such date.


 


“Parent” has the meaning specified in the
introductory paragraph to this Agreement.


 


“Participant” has the meaning specified in Section 10.07(d).


 


“Patent License” means rights under written
agreement to which any Loan Party is now or hereafter becomes a party granting
any right of use to any patent.


 


“Patents” means all patents and patent and
patent applications now or hereafter acquired by any Loan Party.


 


“PATRIOT Act” means the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed
into Law October 26, 2001)).


 


28

















 


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


 


“Pension Plan” means any “employee pension
benefit plan” (as such term is defined in Section 3(2) of ERISA),
other than a Multiemployer Plan, that is subject to Title IV of ERISA and is
sponsored or maintained by any Borrower or any ERISA Affiliate or to which any
Borrower or any ERISA Affiliate contributes or has an obligation to contribute,
or in the case of a multiple employer or other plan described in Section 4064(a) of
ERISA, has made contributions at any time during the immediately preceding five
(5) plan years.


 


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


 


“Permitted Encumbrances” has the meaning
specified in the Mortgages.


 


“Permitted Holders” means the Sponsor and
the Management Shareholders.


 


“Permitted Liens” means each of the Liens
permitted pursuant to Section 7.01.


 


“Permitted Refinancing” means, with respect
to any Person, any modification, refinancing, refunding, renewal or extension
of any Indebtedness of such Person; provided
that (a) the principal amount (or accreted value, if applicable) thereof
does not exceed the principal amount (or accreted value, if applicable),
including any amounts paid-in-kind, of the Indebtedness so modified,
refinanced, refunded, renewed or extended except by an amount equal to unpaid
accrued interest and premium thereon plus other reasonable amounts paid, and
fees and expenses reasonably incurred, in connection with such modification,
refinancing, refunding, renewal or extension and by an amount equal to any
existing commitments unutilized thereunder, (b) such modification,
refinancing, refunding, renewal or extension has a final maturity date equal to
or later than the final maturity date of, and has a Weighted Average Life to
Maturity equal to or greater than the Weighted Average Life to Maturity of, the
Indebtedness being modified, refinanced, refunded, renewed or extended, (c) if
the Indebtedness being modified, refinanced, refunded, renewed or extended is
subordinated in right of payment to the Obligations, such modification,
refinancing, refunding, renewal or extension is subordinated in right of
payment to the Obligations on terms at least as favorable to the Lenders as
those contained in the documentation governing the Indebtedness being modified,
refinanced, refunded, renewed or extended, taken as a whole, (d) the terms
and conditions (including, if applicable, as to collateral) of any such
modified, refinanced, refunded, renewed or extended Indebtedness (excluding
interest rate and call protection, which shall be on then market terms for
similar issuances of Indebtedness) are not materially less favorable to the
Loan Parties or the Lenders than the terms and conditions of the Indebtedness
being modified, refinanced, refunded, renewed or extended, (e) such
modification, refinancing, refunding, renewal or extension is incurred by the
Person or Persons who are the obligors on the Indebtedness being modified,
refinanced, refunded, renewed or extended, and such new or additional obligors
as are permitted under Section 7.03 or as are or become Loan
Parties in accordance with Section 6.12 and with respect to
subordinated Indebtedness the obligations of such obligors shall be
subordinated in right of payment to the Obligations on terms at least as
favorable to the Lenders as those contained in documentation governing the
Indebtedness, taken as a whole and (f) at the time thereof, no Event of
Default shall have occurred and be continuing.


 


“Permitted Subordinated Indebtedness” means
any unsecured Indebtedness of a Borrower that (a) is expressly
subordinated to the prior payment in full in cash of the Obligations on terms
and conditions satisfactory to the Administrative Agent, (b) is not
scheduled to mature prior to the date that is one hundred eighty-one (181) days
after the scheduled Maturity Date of the Revolving Credit Facility, (c) has
no scheduled amortization or payments of principal prior to the date that is
one hundred eighty-one (181) days after the Maturity Date of the Revolving
Credit Facility, and (d) has covenant, default and


 


29

















 


remedy
provisions no more restrictive, or mandatory prepayment, repurchase or
redemption provisions no more onerous or expansive in scope, taken as a whole,
than those set forth in the Senior Indenture.


 


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


 


“Platform” has the meaning specified in Section 6.02.


 


“Pledged Debt” has the meaning specified in
the Security Agreement.


 


“Pledged Equity” has the meaning specified
in the Security Agreement.


 


“Post-Acquisition Period” means, with respect to any
Permitted Acquisition, the period beginning on the date such Permitted
Acquisition is consummated and ending on the last day of the fourth full
consecutive fiscal quarter immediately following the date on which such
Permitted Acquisition is consummated.


 


“Pro Forma Adjustment” means, for any period
for which the financial covenant contained in Section 7.11, the
Leverage Ratio or the Interest Coverage Ratio is measured that includes all or
any part of a fiscal quarter included in any Post-Acquisition Period, with
respect to the Acquired EBITDA of the applicable entity or business acquired in
a Permitted Acquisition or the Consolidated EBITDA of the Borrower Parties, the
pro forma increase or decrease in such Acquired EBITDA or such Consolidated
EBITDA, as the case may be, either (a) in an aggregate amount not in
excess of 15% of Consolidated EBITDA after giving effect to any such Permitted
Acquisition, projected by the Borrowers in good faith or (b) reasonably
acceptable to the Administrative Agent, in each case, as a result of (i) any
action taken during such Post-Acquisition Period for the purposes of realizing
reasonable identifiable and factually supportable cost savings or (ii) any
additional costs incurred during such Post-Acquisition Period, in each case in
connection with the combination of the operations of such entity or business
with the operations of the Borrowers and the Restricted Subsidiaries; provided that, so long as such actions are
taken during such Post-Acquisition Period or such costs are incurred during
such Post-Acquisition Period, as applicable, the cost savings related to such
actions or such additional costs, as applicable, it may be assumed, for
purposes of projecting such pro forma increase or decrease to such Acquired
EBITDA or such Consolidated EBITDA, as the case may be, that such cost savings
will be realized during the entirety of such period, or such additional costs,
as applicable, will be incurred during the entirety of such period; provided further that any such pro forma
increase or decrease to such Acquired EBITDA or such Consolidated EBITDA, as
the case may be, shall be without duplication for cost savings or additional
costs already included in such Acquired EBITDA or such Consolidated EBITDA, as
the case may be, for such period.


 


“Pro Forma Basis”, “Pro Forma Compliance” and “Pro Forma Effect” means, for purposes of
calculating compliance with the financial covenant set forth in Section 7.11
and the definitions of Leverage Ratio and Interest Coverage Ratio in respect of
a Specified Transaction, that such Specified Transaction and the following
transactions in connection therewith shall be deemed to have occurred as of the
first day of the applicable period of measurement in such covenant:  (a) income statement items (whether
positive or negative) attributable to the property or Person subject to such
Specified Transaction, (i) in the case of a Permitted Acquisition or
Investment described in the definition of “Specified Transaction”, shall be
included and (ii) in the case of a Disposition of all or substantially all
of the assets of or all of the Equity Interests of any Restricted Subsidiary of
any Borrower or any division or product line of any Borrower or any of its
Restricted Subsidiaries, shall be excluded, (b) any retirement of
Indebtedness, and (c) any Indebtedness incurred or assumed by any Borrower
or any of its Restricted Subsidiaries in connection therewith and if such
Indebtedness has a floating or formula rate, shall have an


 


30

















 


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; provided that the foregoing pro forma
adjustments may be applied to the financial covenant set forth in Section 7.11
the definitions of Leverage Ratio and Interest Coverage Ratio solely to the
extent that such adjustments are consistent with the definition of Consolidated
EBITDA and give effect to events that are (i) (x) directly
attributable to such transaction, (y) expected to have a continuing impact
on the Borrowers and their Restricted Subsidiaries and (z) factually
supportable or based on the reasonable good faith of the Responsible Officer
executing the Compliance Certificate or (ii) otherwise consistent with the
definition of Pro Forma Adjustment.


 


“Pro Rata Share” means, with respect to each
Lender at any time, a fraction (expressed as a percentage, carried out to the
ninth decimal place), the numerator of which is the amount of the Revolving
Credit Commitments of such Lender under the Revolving Credit Facility at such
time and the denominator of which is the amount of the Aggregate Commitments
under the Revolving Credit Facility at such time; provided that if such Revolving Credit Commitments have been
terminated, then the Pro Rata Share of each Lender shall be determined based on
the Pro Rata Share of such Lender immediately prior to such termination and
after giving effect to any subsequent assignments made pursuant to the terms
hereof.


 


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


 


“Purchased Subsidiary” has the meaning
specified in the preliminary statements to this Agreement.


 


“Qualifying IPO” means the issuance by the
Qualifying IPO Issuer of its common Equity Interests resulting in Net Cash
Proceeds to Parent or UHS of at least $75,000,000 in an underwritten primary
public offering (other than a public offering pursuant to a registration
statement on Form S-8) pursuant to an effective registration statement
filed with the SEC in accordance with the Securities Act of 1933 (whether alone
or in connection with a secondary public offering).


 


“Qualifying IPO Issuer” means any of Parent
or UHS or a corporation or other legal entity which owns, directly or
indirectly, 100% of the outstanding equity interests of any of Parent or UHS.


 


“Register” has the meaning set forth in Section 10.07(c).


 


“Related Documents” means the Merger
Agreement, the Equity Contribution Agreement, the Senior Notes Documents and
the Senior PIK/Toggle Notes Documents.


 


“Rental Equipment” means all medical
equipment that does not constitute a fixture, owned by any Borrower or any of
its Subsidiaries including, but not limited to, critical care equipment,
monitoring equipment, newborn care equipment, respiratory therapy equipment,
beds, stretchers and surfaces.


 


“Reportable Event” means any of the events
set forth in Section 4043(c) of ERISA, other than events for which
the thirty (30) day notice period has been waived.


 


“Request for Credit Extension” means (a) with
respect to a Borrowing, conversion or continuation of Revolving Credit Loans, a
Committed 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.


 


31

















 


“Required Lenders” means, as of any date of
determination, Lenders having more than 50% of the sum of the (a) Total
Outstandings (with the aggregate amount of each Lender’s risk participation and
funded participation in L/C Obligations and Swing Line Loans being deemed “held”
by such Lender for purposes of this definition), and (b) aggregate unused
Revolving Credit Commitments; provided
that the unused Revolving Credit Commitment of, and the portion of the Total
Outstandings held or deemed held by, any Defaulting Lender shall be excluded
for purposes of making a determination of Required Lenders.


 


“Reserves” means reserves established
pursuant to either of Sections 2.15 or 2.16 and Lease Payment
Reserves.


 


“Responsible Officer” means the chief
executive officer, president, chief financial officer or controller of a Loan
Party or, in the case of any Borrower, any duly appointed authorized signatory
or any director or managing member of such Person and, as to any document
delivered on the Amendment Closing Date, any secretary or assistant secretary.  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 Interest of any Borrower or any Restricted Subsidiary, or any
payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement,
defeasance, acquisition, cancellation or termination of any such Equity
Interest, or on account of any return of capital to the stockholders, partners
or members (or the equivalent Persons thereof) of any Borrower or any
Restricted Subsidiary.


 


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


 


“Revolving Credit Borrowing” means a
borrowing consisting of simultaneous Revolving Credit 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.


 


“Revolving Credit Commitment Period” means
the period from and including the Closing Date to but not including the
Maturity Date of the Revolving Credit Facility or any earlier date on which the
Revolving Credit Commitments shall terminate as provided herein.


 


“Revolving Credit Commitment” means, as to
each Lender, its obligation to (a) make Revolving Credit Loans to the
Borrowers pursuant to Section 2.01, (b) purchase
participations in L/C Obligations in respect of Letters of Credit and (c) purchase
participations in Swing Line Loans, in an aggregate amount at any one time
outstanding not to exceed the amount set forth, and opposite such Lender’s name
on Schedule 2.01 under the caption “Revolving Credit Commitment” 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.  The
aggregate Revolving Credit Commitments of all Lenders shall be $195,000,000 on
the Amendment Closing Date, as such amount may be adjusted from time to time in
accordance with the terms of this Agreement.


 


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


 


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


 


32

















 


“Revolving Credit Note” means a promissory
note of a Borrower payable to any Lender or its registered assigns, in
substantially the form of Exhibit C-1 hereto, evidencing the
aggregate indebtedness of such Borrower to such Lender resulting from the
Revolving Credit Loans made by such Lender to such Borrower.


 


“Rollover Equity” means the “rollover” by
Management Shareholders, concurrently with the consummation of the Acquisition,
of Equity Interests held in the Seller into Equity Interests in Parent.


 


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


 


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


 


“Second Lien Collateral Agent” means Wells
Fargo Bank, National Association, in its capacity as collateral agent for the
holders of the Senior Notes and the Senior PIK/Toggle Notes.


 


“Second Lien Security Agreement” means the
Second Lien Security Agreement among the Borrowers, the Guarantors, the
Additional Grantors named therein, dated as of the Closing Date, in favor of
the Second Lien Collateral Agent.


 


“Secured Hedge Agreement” means any Swap
Contract required or permitted under Article 6 or Article 7
that is entered into by and between any Loan Party and any Hedge Bank.


 


“Secured Hedge Obligations” means any
Obligation arising under a Secured Hedge Agreement.


 


“Secured Obligations” has the meaning
specified in the Security Agreement.


 


“Secured Parties” means, collectively, the
Administrative Agent, the Collateral Agent, the Lenders, Affiliates of the
Lenders in the case of Cash Management Obligations, the Hedge Banks and each
co-agent or sub-agent appointed by the Administrative Agent or the Collateral
Agent from time to time pursuant to Article 9.


 


“Security Agreement” means the Amended and
Restated First Lien Security Agreement among the Borrowers, the Guarantors, the
Additional Grantors named therein and the Collateral Agent, dated as of the
date hereof and substantially in the form of Exhibit G, together
with each related security agreement supplement executed and delivered pursuant
to Section 6.12.


 


“Security Agreement Supplement” has the meaning
specified in the Security Agreement.


 


“Seller” means J.W. Childs Equity Partners
III, L.P., as representative of the Securityholders (as defined in the Merger
Agreement).


 


“Senior Notes” means the $230,000,000
aggregate principal amount of the Borrower’s Second Lien Senior Secured
Floating Rate Notes due 2015 issued in a public offering or in a Rule 144A
or other private placement pursuant to the Senior Indenture.


 


“Senior Notes Documents” means the Senior
Notes, the Senior Indenture, the Intercreditor Agreement, the Second Lien
Security Agreement and all other documents executed and delivered with respect
to the Senior Notes or the Senior Indenture.


 


33

















 


“Senior Indenture” means the Indenture dated
as of  May 31,  2007, pursuant to which the Senior Notes
and the Senior PIK/Toggle Notes were issued.


 


“Senior PIK/Toggle Notes” means the
$230,000,000 aggregate principal amount of the Borrower’s 8.50%/9.25% Second
Lien Senior Secured PIK Toggle Notes due 2015 issued in a public offering or in
a Rule 144A or other private placement pursuant to the Senior Indenture.


 


“Senior PIK/Toggle Notes Documents” means
the Senior PIK/Toggle Notes, the Senior Indenture, the Intercreditor Agreement,
the Second Lien Security Agreement and all other documents executed and
delivered with respect to the Senior PIK/Toggle Notes or the Senior Indenture.


 


“Solvency Certificate” has the meaning
specified in Section 4.01(a)(ix).


 


“SPC” has the meaning specified in Section 10.07(g).


 


“Specified Officer” means the chief
executive officer, president, chief financial officer or general counsel of a
Loan Party.


 


“Specified Transaction” means any (a) Disposition
of all or substantially all the assets of or all the Equity Interests of any
Restricted Subsidiary or of any division or product line of any Borrower or any
of its Restricted Subsidiaries, (b) Permitted Acquisition, (c) designation
of any Restricted Subsidiary as an Unrestricted Subsidiary, or of any
Unrestricted Subsidiary as a Restricted Subsidiary, in each case in accordance
with Section 6.16 or (d) the proposed incurrence of
Indebtedness or making of a Restricted Payment in respect of which compliance
with the financial covenant set forth in Section 7.11 is by the
terms of this Agreement required to be calculated on a Pro Forma Basis.


 


“Sponsor Management Agreement” means the
Professional Services Agreement dated May 31, 2007 between UHS and IPC
Manager III, L.P. (formerly known as Bear Stearns Merchant Manager III
(Cayman), L.P.).


 


“Sponsor” means, collectively, IPC Manager
III, L.P. (formerly known as Bear Stearns Merchant Manager III (Cayman), L.P.)
and/or its Affiliates (including, as applicable, related funds, general
partners thereof and limited partners thereof, but solely to the extent any
such limited partners are directly or indirectly participating as investors
pursuant to a side-by-side investing arrangement, but not including, however,
any portfolio company of any of the foregoing).


 


“Stated Maturity” means, with respect to any
installment of interest or principal on any series of Indebtedness, the date on
which the payment of interest or principal was scheduled to be paid in the
documentation governing such Indebtedness, and will not include any contingent
obligations to repay, redeem or repurchase any such interest or principal prior
to the date originally scheduled for the payment thereof.


 


“Subsidiary” of a Person means a
corporation, partnership, limited liability company or other business entity of
which a majority of the shares of securities or other interests having ordinary
voting power for the election of directors or other governing body (other than
securities or interests having such power only by reason of the happening of a
contingency) are at the time beneficially owned, or the management of which is
otherwise controlled, directly, or indirectly through one or more
intermediaries, or both, by such Person. 
Unless otherwise specified, all references herein to a “Subsidiary” or
to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of any Borrower.


 


34
















 


“Supermajority Required Lenders” means, as
of any date of determination, Lenders having more than 75% of the sum of the (a) Total
Outstandings (with the aggregate amount of each Lender’s risk participation and
funded participation in L/C Obligations and Swing Line Loans being deemed “held”
by such Lender for purposes of this definition), and (b) aggregate unused
Revolving Credit Commitments; provided
that the unused Revolving Credit Commitment of, and the portion of the Total
Outstandings held or deemed held by, any Defaulting Lender shall be excluded
for purposes of making a determination of Supermajority Required Lenders.


 


“Swap Contract” means (a) any and all
rate swap transactions, basis swaps, credit derivative transactions, forward
rate transactions, commodity swaps, commodity options, forward contracts,
future 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, repurchase agreements, reverse repurchase agreements,
sell buy back and buy sell back agreements, and securities lending and
borrowing agreements or any other similar transactions or any combination of
any of the foregoing (including any options to enter into any of the
foregoing), whether or not any such transaction is governed by or subject to
any master agreement, and (b) any and all transactions of any kind, and
the related confirmations, which are subject to the terms and conditions of, or
governed by, any form of master agreement published by the International Swaps
and Derivatives Association, Inc., any International Foreign Exchange
Master Agreement, or any other master agreement (any such master agreement,
together with any related schedules, a “Master
Agreement”), including any such obligations or liabilities under any
Master Agreement.


 


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


 


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


 


“Swing Line Facility” means the revolving
credit facility made available by the Swing Line Lender pursuant to Section 2.04.


 


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


 


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


 


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


 


“Swing Line Note” means a promissory note of
any Borrower payable to the Swing Line Lender or its registered assigns, in
substantially the form of Exhibit C-2 hereto, evidencing the
aggregate indebtedness of such Borrower to such Swing Line Lender resulting
from the Swing Line Loans made by the Swing Line Lender.


 


35

















 


“Swing Line Sublimit” means $5,000,000.  The Swing Line Sublimit is part of, and not
in addition to, the Revolving Credit Facility.


 


“Syndication Agent” means GE Capital, as
syndication agent under this Agreement.


 


“Synthetic Indebtedness” means, with respect
to any Person as of any date of determination thereof, all Obligations of such
Person in respect of transactions entered into by such Person that are intended
to function primarily as a borrowing of funds (including, without limitation,
any minority interest transactions that function primarily as a borrowing) but
are not otherwise included in the definition of “Indebtedness” or as a
liability on the consolidated balance sheet of such Person and its Subsidiaries
in accordance with GAAP.


 


“Target Material Adverse Effect” means a
material and adverse effect on the business, financial condition or results of
operations of UHS; provided,  however, that none of the following shall
be deemed (either alone or in combination) to constitute, a Target Material
Adverse Effect:  (a) a general
deterioration in the economy in the United States or in any industry in which
UHS operates; (b) the outbreak or escalation of hostilities involving the
United States, the declaration by the United States of a national emergency or
war or the occurrence of any other calamity or crisis, including an act of
terrorism; (c) the disclosure of the fact that UHS Merger Sub, Inc.
is the prospective acquirer of the Borrower; (d) the announcement or
pendency of the transactions contemplated by the Merger Agreement; (e) any
changes in any applicable federal, state, local, municipal, foreign,
international, multinational, or other administrative order, constitution, law,
ordinance, principle of common law, regulation, statute, or treaty; (f) any
changes in GAAP; (g) actions taken by the Borrower or its Affiliates; or (h) compliance
with the terms of, or the taking of any action required by, the Merger
Agreement, in each case, to the extent that any of the items in clauses (a) or
(b) does not have a disproportionate impact on UHS.


 


“Taxes” has the meaning specified in Section 3.01(a).


 


“Threshold Amount” means $15,000,000.


 


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


 


“Trademark License” means rights under any
written agreement now owned or hereafter acquired by any Loan Party granting
any right to use any Trademark.


 


“Trademarks” means all of the following now
owned or hereafter existing or adopted or acquired by any Loan Party: (a) all
trademarks, trade names, corporate names, business names, trade styles, service
marks, logos, other source or business identifiers, designs and general
intangibles of like nature (whether registered or unregistered), all
registrations and recordings thereof, and all applications in connection
therewith, including registrations, recordings and applications in the United
States Patent and Trademark Office or in any similar office or agency of the
United States, any state or territory thereof, or any other country or any
political subdivision thereof; (b) all reissues, extensions or renewals
thereof; and (c) all goodwill associated with or symbolized by any of the
foregoing.


 


“Transactions” means, collectively, (a) the
Equity Contributions, (b) the Acquisition, (c) the execution and
delivery and performance by the Loan Parties of each Loan Document to which
they are a party executed and delivered or to be executed and delivered on or
prior to the Closing Date or the Amendment Closing Date, and, in the case of
each Borrower, the making of the initial Borrowings hereunder, (d) the
execution, delivery and performance by the Loan Parties of the Senior Notes
Documents to which they are a party and, in the case of UHS, the issuance of
the Senior Notes, (e) the


 


36

















 


execution,
delivery and performance by the Loan Parties of the Senior PIK/Toggle Notes
Documents to which they are a party and, in the case of UHS, the issuance of
the Senior PIK/Toggle Notes, (f) the consummation of any other
transactions in connection with the foregoing, including the execution and
delivery of the Intercreditor Agreement by the entities designated as parties
thereto, and (g) the payment of the fees and expenses incurred in
connection with any of the foregoing.


 


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


 


“UHS” has the meaning specified in first
paragraph of this Agreement.


 


“Unbilled Account” means any Account with
respect to which an invoice has not been sent to the applicable Account Debtor.


 


“Unfunded Advances/Participations” means (a) with
respect to the Administrative Agent, the aggregate amount, if any (i) made
available to the Borrowers on the assumption that each Appropriate Lender has
made its Pro Rata Share of the applicable Borrowing available to the Administrative
Agent and (ii) with respect to which a corresponding amount shall not in
fact have been made available to the Administrative Agent by any such Lender, (b) with
respect to the Swing Line Lender, the aggregate amount, if any, of
participations in respect of any outstanding Swing Line Loan that shall not
have been funded by the Appropriate Lenders in accordance with Section 2.04(c) and
(c) with respect to the L/C Issuer, the aggregate amount of L/C
Borrowings.


 


“Uniform Commercial Code” means the Uniform
Commercial Code as the same may from time to time be in effect in the State of
New York or the Uniform Commercial Code (or similar code or statute) of another
jurisdiction, to the extent it may be required to apply to the creation or
perfection of a security interest in any item or items of Collateral.


 


“United States” and “US” mean the United States of America.


 


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


 


“Unrestricted Subsidiary” means any
Subsidiary of any Borrower designated by the board of directors of such
Borrower as an Unrestricted Subsidiary pursuant to Section 6.16
subsequent to the Closing Date.


 


“Usage Percentage” means, as of any date of
determination, the percentage equal to the ratio of (a) Total Outstandings
to (b) the Maximum Amount.


 


“Weighted Average Life to Maturity” means,
when applied to any Indebtedness at any date, the number of years obtained by
dividing:  (a) the sum of the
products obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment; by (b) the then
outstanding principal amount of such Indebtedness.


 


“Wholesale Disposables” means Inventory
purchased by any Borrower or any of its Subsidiaries for sale to customers of
such Borrower or any of its Subsidiaries.


 


SECTION 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:


 


37

















 


(a)           The meanings of defined terms are
equally applicable to the singular and plural forms of the defined terms.


 


(b)           (i)            The
words “herein,” “hereto,” “hereof” and “hereunder” and words of similar import
when used in any Loan Document shall refer to such Loan Document as a whole and
not to any particular provision thereof.


 


(ii)           Article, Section, Exhibit and
Schedule references are to the Loan Document in which such reference appears.


 


(iii)          The term “including” is by way of
example and not limitation.


 


(c)           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.”


 


(d)           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.


 


SECTION 1.03.  Accounting Terms.  (a)  All accounting
terms not specifically or completely defined herein shall be construed in
conformity with, and all financial data required to be submitted pursuant to
this Agreement shall be prepared in conformity with, GAAP, as in effect from
time to time.  The financial ratio
calculated pursuant to Section 7.11 shall be calculated in a manner
consistent with that used in preparing the Historical Financial Statements for
the fiscal year ended December 31, 2006, except as otherwise specifically
prescribed herein.


 


(b)           If at any time any change in GAAP
would affect the computation of any financial ratio set forth in any Loan
Document, and either the Borrowers or the Required Lenders shall so request,
the Administrative Agent and the Borrowers shall negotiate in good faith to
amend such ratio to preserve the original intent thereof in light of such
change in GAAP (subject to the approval of the Required Lenders and Borrowers);
provided that, until so amended, (i) such
ratio shall continue to be computed in accordance with GAAP prior to such
change therein and (ii) the Borrowers shall provide to the Administrative
Agent and the Lenders a written reconciliation in form and substance reasonably
satisfactory to the Administrative Agent, between calculations of such ratio
made before and after giving effect to such change in GAAP.


 


(c)           Notwithstanding anything to the
contrary contained herein, financial ratios and other financial calculations
pursuant to this Agreement shall, following any Specified Transaction, be
calculated on a Pro Forma Basis.


 


SECTION 1.04.  Rounding.  Any financial ratios required
to be maintained by any Borrower pursuant to this Agreement (or required to be
satisfied in order for a specific action to be permitted under 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).


 


SECTION 1.05.  References to Agreements and Laws.  Unless otherwise expressly
provided herein, (a) references to Organization Documents, agreements
(including the Loan Documents) and other contractual instruments shall be
deemed to include all subsequent amendments, restatements, extensions,
supplements and other modifications thereto, but only to the extent that such
amendments,


 


38

















 


restatements,
extensions, supplements and other modifications are not prohibited by any Loan
Document; and (b) references to any Law shall include all statutory and
regulatory provisions consolidating, amending, replacing, supplementing or
interpreting such Law.


 


SECTION 1.06.  Times of Day.  Unless otherwise specified,
all references herein to times of day shall be references to Eastern time
(daylight or standard, as applicable).


 


SECTION 1.07.  Timing of Payment or Performance.  When the payment of any
obligation or the performance of any covenant, duty or obligation is stated to
be due or performance required on a day which is not a Business Day, the date
of such payment (other than as described in the definition of Interest Period)
or performance shall extend to the immediately succeeding Business Day and such
extension of time shall be reflected in computing interest or fees, as the case
may be.


 


ARTICLE
2


 


THE
REVOLVING CREDIT COMMITMENTS AND CREDIT EXTENSIONS


 


SECTION 2.01.  The Revolving Credit Loans.  Subject to the terms and conditions
set forth herein, each Lender severally agrees to make loans denominated in
Dollars to any Borrower as elected by such Borrower pursuant to Section 2.02
(each such loan, a “Revolving Credit Loan”)
from time to time, on any Business Day until the Maturity Date during the
Revolving Credit Commitment Period, in an aggregate principal amount not to exceed
at any time outstanding the amount of such Lender’s Revolving Credit
Commitment; provided that (a) after
giving effect to any Revolving Credit Borrowing, the aggregate Outstanding
Amount of the Revolving Credit Loans of any Lender, plus the amount of such Lender’s Pro Rata Share of the
Outstanding Amount of all L/C Obligations, plus
such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans,
shall not exceed such Lender’s Revolving Credit Commitment, and (b) the
amount of any Revolving Credit Loan to be made at any time shall not exceed
Borrowing Availability at such time. 
Borrowing Availability may be reduced by Reserves and Lease Payment
Reserves imposed by Agent in accordance with the provisions of Sections 2.15
and 2.16, as applicable.  Within
the limits of each Lender’s Revolving Credit Commitment, and subject to the
other terms and conditions hereof (including as to Borrowing Availability), the
Borrowers may borrow under this Section 2.01, prepay under Section 2.05,
and reborrow under this Section 2.01.  Revolving Credit Loans may be Base Rate Loans
or Eurodollar Loans, as further provided herein; provided that all Revolving Credit Loans made by each of the
Lenders pursuant to the same Borrowing shall, unless otherwise specifically
provided herein, consist entirely of Revolving Credit Loans of the same Type.


 


Any
provision of this Agreement to the contrary notwithstanding, at the request of
Borrowers, in its discretion Administrative Agent may (but shall have
absolutely no obligation to), make Revolving Credit Loans to the Borrowers on
behalf of the Lenders, for the purpose of protecting or preserving the
Collateral or any portion thereof, enhancing the likelihood of repayment of the
Obligations or paying any other amount chargeable to the Borrowers pursuant to
the terms of this Agreement (including fees, costs and expenses described in Section 10.04),
in amounts that cause the aggregate Outstanding Amount of the Revolving Credit
Loans to exceed the Borrowing Base (less the Swing Line Loan) (any such excess
aggregate Outstanding Amount of the Revolving Credit Loans are hereby
collectively referred to as “Overadvances”);
provided that (A) no such
event or occurrence shall cause or constitute a waiver of the Administrative
Agent’s, the Swing Line Lender’s or any Lender’s right to refuse to make any
further Overadvances, Swing Line Loans or Revolving Credit Loans, or incur any
L/C Obligations, as the case may be, at any time that an Overadvance exists,
and (B) no Overadvance shall result in a Default or Event of Default due
to Borrowers’ failure to comply with Section 2.05(b) for so
long as the Administrative Agent permits such Overadvance to remain
outstanding, but solely with


 


39

















 


respect
to the amount of such Overadvance.  In
addition, Overadvances may be made even if the conditions to lending set forth
in Article 4 have not been met.  All
Overadvances shall constitute Base Rate Loans, shall bear interest at the
Default Rate and shall be payable on the earlier of demand and the Termination
Date.  The authority of Administrative
Agent to make Overadvances is limited to an aggregate amount of $10,000,000 at
any time, shall not cause the Revolving Loan to exceed the Maximum Amount and
may be revoked prospectively by a written notice to Administrative Agent signed
by Required Lenders.


 


SECTION 2.02.  Borrowings, Conversions and Continuations
of Loans.  (a)  Each
Revolving Credit Borrowing, each conversion of Revolving Credit Loans from one
Type to the other, and each continuation of Eurodollar Rate Loans shall be made
upon any Borrower’s irrevocable (except as provided in Section 3.02,
Section 3.03 and Section 3.04 herein) notice to the
Administrative Agent, which may be given by telephone.  Each such notice must be received by the
Administrative Agent (i) not later than 12:00 p.m. (noon) three (3) Business
Days prior to the requested date of any Borrowing of Eurodollar Rate Loans,
continuation of Eurodollar Rate Loans or any conversion of Base Rate Loans to
Eurodollar Rate Loans, and (ii) not later than 12:00 p.m. (noon) on
the requested date of any Borrowing of Base Rate Loans.  Each telephonic notice by a Borrower pursuant
to this Section 2.02(a) must be confirmed promptly by delivery
to the Administrative Agent of a written Committed Loan Notice, appropriately
completed and signed by a Responsible Officer of such Borrower.  Each Borrowing of, conversion to or
continuation of Eurodollar Rate Loans shall be in a minimum principal amount of
$500,000 or a whole multiple of $250,000 in excess thereof.  Except as provided in Section 2.03(c)(i) and
Section 2.04(c)(i), each Borrowing of or conversion to Base Rate
Loans shall be in a principal amount of $50,000 or a whole multiple of $50,000
in excess thereof.  Each Committed Loan
Notice (whether telephonic or written) shall specify (i) whether the
relevant Borrower is requesting a Revolving Credit Borrowing, a conversion of
Revolving Credit 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 Revolving Credit Loans are to
be converted, (v) if applicable, the duration of the Interest Period with
respect thereto and (vi) the account of the relevant Borrower to be
credited with the proceeds of such Borrowing. 
If, with respect to Loans denominated in Dollars the relevant Borrower
fails to specify a Type of Loan in a Committed Loan Notice or fails to give a
timely notice requesting a conversion or continuation, then the applicable
Revolving Credit 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 relevant Borrower requests a Borrowing
of, conversion to, or continuation of Eurodollar Rate Loans in any such
Committed Loan Notice, but fails to specify an Interest Period, it will be
deemed to have specified an Interest Period of one (1) month.


 


(b)           Following receipt of a Committed Loan
Notice, the Administrative Agent shall promptly notify each Appropriate Lender
of the amount of its Pro Rata Share of the Loans, and if no timely notice of a
conversion or continuation is provided by the relevant Borrower, the
Administrative Agent shall notify each Lender of the details of any automatic
conversion to Base Rate Loans or continuation described in Section 2.02(a).  In the case of each Borrowing, each
Appropriate 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 12:00 p.m. (noon) on the Business Day specified in
the applicable Committed Loan Notice. 
Upon satisfaction of the applicable conditions set forth in Section 4.02
(or, if such Borrowing is the initial Credit Extension, Section 4.01),
the Administrative Agent shall make all funds so received available to the
relevant Borrower in like funds as received by the Administrative Agent by wire
transfer of such funds in accordance with instructions provided to the
Administrative Agent by such Borrower.


 


40

















 


(c)           Except as otherwise provided herein,
a Eurodollar Rate Loan may be continued or converted only on the last day of an
Interest Period for such Eurodollar Rate Loan unless the relevant Borrower pays
the amount due, if any, under Section 3.05 in connection
therewith.  During the continuance of an
Event of Default, the Administrative Agent or the Required Lenders may require
that no Loans may be converted to or continued as Eurodollar Rate Loans.


 


(d)           The Administrative Agent shall
promptly notify the relevant Borrower and the Appropriate Lenders of the
interest rate applicable to any Interest Period for Eurodollar Rate Loans upon
determination of such interest rate.  The
determination of the Eurodollar Rate by the Administrative Agent shall be
conclusive in the absence of manifest error. 
At any time that Base Rate Loans are outstanding, the Administrative
Agent shall notify the relevant Borrower and the Appropriate Lenders of any
change in the Administrative Agent’s prime rate used in determining the Base
Rate promptly following the determination of such change.


 


(e)           After giving effect to all Revolving
Credit Borrowings, all conversions of Revolving Credit Loans from one Type to
the other, and all continuations of Revolving Credit Loans as the same Type,
there shall not be more than fifteen (15) Interest Periods in effect.


 


(f)            The failure of any Lender to make
the Loan to be made by it as part of any Borrowing shall not relieve any other
Lender of its obligation, if any, hereunder to make its Loan on the date of
such Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the Loan to be made by such other Lender on the date of any
Borrowing.


 


SECTION 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 other 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 denominated in Dollars for the account of the Borrowers (or any
Restricted Subsidiary so long as a Borrower is a joint and several
co-applicant, and references to a “Borrower” in this Section 2.03
shall be deemed to include reference to such Restricted Subsidiary) and to
amend or renew Letters of Credit previously issued by it, in accordance with Section 2.03(b),
and (2) to honor drafts under the Letters of Credit; and (B) the
Lenders severally agree to participate in Letters of Credit issued for the
account of the relevant Borrower; provided
that the L/C Issuer shall not be obligated to make any L/C Credit Extension
with respect to any Letter of Credit, and no Lender shall be obligated to
participate in any Letter of Credit if, as of the date of such L/C Credit
Extension, (x) the aggregate Outstanding Amount of the Revolving Credit
Loans of any Lender, plus such Lender’s Amount of Pro Rata Share of the
Outstanding Amount of all L/C Obligations, plus such Lender’s Pro Rata Share of
the Outstanding Amount of all Swing Line Loans, would exceed such Lender’s
Revolving Credit Commitment, or (y) the Outstanding Amount of the L/C
Obligations would exceed the Letter of Credit Sublimit, or (z) the
aggregate Outstanding Amount of the Revolving Credit Loans, plus the
Outstanding Amount of all L/C Obligations, plus the Outstanding Amount of all
Swing Line Loans, would exceed the Borrowing Base; provided further that the Initial L/C Issuer shall not be
obligated to make any L/C Credit Extension with respect to any Letter of
Credit, if, as of the date of such L/C Credit Extension, the Outstanding Amount
of the L/C Obligations issued by the Initial L/C issuer would exceed
$5,000,000.  Within the foregoing limits,
and subject to the terms and conditions hereof, the relevant Borrower’s ability
to obtain Letters of Credit shall be fully revolving, and accordingly such
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 be under no
obligation to issue any Letter of Credit if:


 


41

















 


(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 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, in each case, the L/C Issuer in good faith deems
material to it;


 


(B)           subject to Section 2.03(b)(iii), the expiry
date of such requested Letter of Credit, prior to giving effect to any
automatic renewal, would occur more than twelve months after the date of
issuance or last renewal, unless the Required Lenders have approved such expiry
date;


 


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


 


(D)          the issuance of such Letter of Credit would violate any
Laws or one or more policies of the L/C Issuer.


 


(iii)          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.


 


(b)           Procedures for Issuance and
Amendment of Letters of Credit; Auto-Renewal Letters of Credit.  (i)  Each Letter of Credit shall be
issued or amended, as the case may be, upon the request of the relevant
Borrower delivered to the L/C Issuer (with a copy to the Administrative Agent)
in the form of a Letter of Credit Application, appropriately completed and
signed by a Responsible Officer of such Borrower.  Such Letter of Credit Application must be
received by the L/C Issuer and the Administrative Agent not later than 1:00 p.m.
at least two (2) days, or such shorter period as mutually agreed, prior to
the proposed issuance date or date of amendment, as the case may be (provided
that in each case the applicable Borrower has delivered a Letter of Credit
Application, appropriately completed and signed by a Responsible Officer of
such Borrower and has provided satisfactory language with respect to the
applicable beneficiary of such Letter of Credit), or such later date and time
as the L/C Issuer may agree in a particular instance in its sole
discretion.  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 reasonably 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; and (G) such other matters as the L/C Issuer may reasonably
request.  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 reasonably 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 reasonably request.


 


42

















 


(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 relevant Borrower and, if
not, the L/C Issuer will provide the Administrative Agent with a copy
thereof.  Upon receipt by the L/C Issuer
of confirmation from the Administrative Agent that the requested issuance or
amendment is permitted in accordance with the terms hereof (such confirmation
to be promptly provided by the Administrative Agent), 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 relevant Borrower or enter into the
applicable amendment, as the case may be. 
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 an unfunded risk participation in such Letter of
Credit in an amount equal to the product of such Lender’s Pro Rata Share times
the amount of such Letter of Credit.


 


(iii)          If the relevant Borrower so requests
in any applicable Letter of Credit Application, the L/C Issuer may, in its sole
and absolute discretion, agree to issue a Letter of Credit that has automatic
renewal provisions (each, an “Auto-Renewal
Letter of Credit”); provided
that any such Auto-Renewal Letter of Credit must permit the L/C Issuer to
prevent any such renewal 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 “Nonrenewal 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,
no Borrower shall be required to make a specific request to the L/C Issuer for
any such renewal.  Once an Auto-Renewal
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 renewal of such
Letter of Credit at any time to an expiry date not later than the Letter of
Credit Expiration Date; provided
that the L/C Issuer shall not permit any such renewal if (A) the L/C
Issuer has determined that it would have no obligation at such time to issue
such Letter of Credit in its renewed form under the terms hereof (by reason of
the provisions of Section 2.03(a)(ii) or otherwise), or (B) it
has received notice (which may be by telephone or in writing) on or before the
day that is five (5) Business Days before the Nonrenewal Notice Date (1) from
the Administrative Agent that the Required Lenders have elected not to permit
such renewal or (2) from the Administrative Agent, any Lender or any
Borrower that one or more of the applicable conditions specified in Section 4.02
is not then satisfied.


 


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


 


(c)           Drawings and Reimbursements;
Funding of Participations.  (i) Upon
receipt from the beneficiary of any Letter of Credit of any notice of a drawing
under such Letter of Credit, the L/C Issuer shall notify the relevant Borrower
and the Administrative Agent thereof. 
Not later than 12:00 p.m. (noon) on the Business Day immediately
following any payment by the L/C Issuer under a Letter of Credit (each such
date, an “Honor Date”), the
relevant Borrower shall reimburse the L/C Issuer through the Administrative
Agent in an amount equal to the amount of such drawing (with interest, if not
on the same date).  If any 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 Pro Rata Share thereof.  In such event, the relevant Borrower shall be
deemed to have requested a Revolving Credit Borrowing of Base Rate Loans to be
disbursed on the Honor Date in an amount equal to the Unreimbursed Amount,
without regard to the


 


43

















 


minimum and multiples
specified in Section 2.02(a) for the principal amount of Base
Rate Loans but subject to the amount of the unutilized portion of the Revolving
Credit Commitments and the conditions set forth in Section 4.02
(other than the delivery of a Committed 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 promptly confirmed in writing; provided that the lack of a prompt
confirmation shall not affect the conclusiveness or binding effect of such
notice.


 


(ii)           Each Lender (including the Lender
acting as the L/C Issuer) shall upon any notice pursuant to Section 2.03(c)(i) make
funds available to the Administrative Agent for the account of the L/C Issuer,
in Dollars, at the Administrative Agent’s Office in an amount equal to its Pro
Rata Share of the Unreimbursed Amount not later than 1:00 p.m. on the
Business Day specified in such notice by the Administrative Agent, whereupon,
subject to the provisions of Section 2.03(c)(iii), each Lender that
so makes funds available shall be deemed to have made a Base Rate Loan to the
relevant Borrower in such amount.  The
Administrative Agent shall remit the funds so received to the L/C Issuer.


 


(iii)          With respect to any Unreimbursed
Amount that is not fully refinanced by a Revolving Credit Borrowing of Base
Rate Loans because the conditions set forth in Section 4.02 cannot
be satisfied or for any other reason, or if a reimbursement to the L/C Issuer
shall be required to be returned or disgorged for any reason (including by
reason of the commencement of a proceeding of the type described in Section 8.01(f)),
the relevant 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
Credit 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 Pro Rata Share of such amount shall be
solely for the account of the L/C Issuer.


 


(v)           Each Lender’s obligation to make
Revolving Credit 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, any Borrower
or any other Person for any reason whatsoever, (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; provided that each Lender’s obligation to make Revolving
Credit Loans pursuant to this Section 2.03(c) is subject to
the conditions set forth in Section 4.02 (other than delivery by
the relevant Borrower of a Committed Loan Notice).  No such making of an L/C Advance shall
relieve or otherwise impair the obligation of the relevant 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),
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


 


44

















 


date
on which such payment is immediately available to the L/C Issuer at a rate per
annum equal to the applicable Federal Funds Rate from time to time in
effect.  A certificate of the L/C Issuer
submitted to any Lender (through the Administrative Agent) with respect to any
amounts owing under this Section 2.03(c)(vi) shall be
conclusive absent manifest error.


 


(d)           Repayment of Participations.  (i)  If, 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),
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 relevant Borrower or otherwise, including proceeds of Cash
Collateral applied thereto by the Administrative Agent), the Administrative
Agent will distribute to such Lender its Pro Rata Share thereof (appropriately
adjusted, in the case of interest payments, to reflect the period of time
during which such Lender’s L/C Advance was outstanding) 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(d)(i) is
required to be returned under any of the circumstances described in Section 10.06
(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 Pro Rata Share 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 applicable
Federal Funds Rate from time to time in effect.


 


(e)           Obligations Absolute.  The obligation of each Borrower to reimburse
the L/C Issuer for each drawing under each Letter of Credit issued for its
account and to repay each L/C Borrowing relating to any Letter of Credit issued
for its account 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 agreement
or instrument relating thereto;


 


(ii)           the existence of any claim, counterclaim,
setoff, defense or other right that such Borrower or the applicable other
Borrower or applicable Restricted 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;


 


45
















 


(v)           any exchange, release or
nonperfection of any Collateral, or any release or amendment or waiver of or
consent to departure from the Guaranty or any other guarantee, for all or any
of the Obligations of such Borrower in respect of such Letter of Credit; or


 


(vi)          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, such Borrower;


 


provided that the foregoing shall
not excuse the L/C Issuer from liability to such Borrower to the extent of any
direct damages (as opposed to consequential damages, claims in respect of which
are waived by such Borrower to the extent permitted by applicable Law) suffered
by such Borrower that are determined by a nonappealable judgment of a court of
competent jurisdiction to have been caused by the L/C Issuer’s gross
negligence, bad faith or willful misconduct when determining whether drafts and
other documents presented under a Letter of Credit comply with the terms
thereof.  Each Borrower shall promptly
examine a copy of each Letter of Credit issued for its account and each
amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with such Borrower’s instructions or other irregularity, such
Borrower will promptly notify the L/C Issuer. 
Each 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 each Borrower agree that, in
paying any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document.  None of the L/C Issuer, any Agent-Related
Person nor any of the respective correspondents, participants or assignees 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 Letter of Credit
Application.  Each 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 that this assumption is not intended to, and shall
not, preclude such Borrower’s pursuing such rights and remedies as it may have
against the beneficiary or transferee at Law or under any other agreement.  None of the L/C Issuer, any Agent-Related
Person, nor any of the respective correspondents, participants or assignees of
the L/C Issuer, shall be liable or responsible for any of the matters described
in clauses (i) through (vi) of Section 2.03(e);
provided that anything in such
clauses to the contrary notwithstanding, each relevant Borrower may have a
claim against the L/C Issuer, and the L/C Issuer may be liable to such
Borrower, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by such Borrower which such
Borrower proves were caused by the L/C Issuer’s willful misconduct, bad faith
or gross negligence or the L/C Issuer’s willful or grossly negligent or bad
faith 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)           Cash Collateral.  Upon the request of the Administrative Agent,
(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 


 


46

















 


L/C Borrowing and the conditions set forth in Section 4.02
to a Revolving Credit Borrowing cannot then be met, or (ii) if, as of the
Letter of Credit Expiration Date, any Letter of Credit may for any reason
remain outstanding and partially or wholly undrawn, the relevant Borrower shall
promptly Cash Collateralize (x) in the case of clause (i), 100% and
(y) in the case of clause (ii), 103%, in each case, the then
Outstanding Amount of all L/C Obligations (such Outstanding Amount to be
determined as of the date of such L/C Borrowing or the Letter of Credit
Expiration Date, as the case may be) or, in the case of clause (ii),
provide a back to back letter of credit in a face amount at least equal to 103%
of the then undrawn amount of such Letter of Credit from an issuer and in form
and substance reasonably satisfactory to the L/C Issuer in its reasonable
discretion.  Any Letter of Credit that is
so Cash Collateralized or in respect of which such a back-to-back letter of
credit shall have been issued shall be deemed no longer outstanding for
purposes of this Agreement.  For purposes
hereof, “Cash Collateralize” means
to pledge and deposit with or deliver to the Administrative Agent, for the
benefit of the L/C Issuer and the Lenders, as collateral for the L/C
Obligations, cash or deposit account balances (“Cash Collateral”) pursuant to documentation in form and
substance reasonably satisfactory to the Administrative Agent and the L/C
Issuer (which documents are hereby consented to by the Lenders).  Derivatives of such term have corresponding
meanings.  Cash Collateral shall be
maintained in deposit accounts designated by the Administrative Agent and which
is under the sole dominion and control of the Administrative Agent and shall be
deposited in an interest-bearing account. 
If at any time the Administrative Agent determines that any funds held
as Cash Collateral are subject to any right or claim of any Person other than
the Administrative Agent or claims of the depositary bank arising by operation
of law or that the total amount of such funds is less than the amount required
by the first sentence of this clause (g), the relevant Borrower will,
forthwith upon demand by the Administrative Agent, pay to the Administrative
Agent, as additional funds to be deposited and held in the deposit accounts
designated by the Administrative Agent as aforesaid, an amount equal to the
excess of (x) 100% or 103%, as applicable, of such aggregate Outstanding
Amount over (y) the total amount of funds, if any, then held as Cash
Collateral that the Administrative Agent reasonably determines to be free and
clear of any such right and claim.  Upon
the drawing of any Letter of Credit for which funds are on deposit as Cash
Collateral, such funds shall be applied, to the extent permitted under
applicable Law, to reimburse the L/C Issuer. 
To the extent the amount of any Cash Collateral exceeds 100% or 103%, as
applicable, of the then Outstanding Amount of such L/C Obligations and so long
as no Event of Default has occurred and is continuing, the excess shall be
refunded to the relevant Borrower.


 


(h)           Applicability of ISP98 and
UCP.  Unless otherwise expressly
agreed by the L/C Issuer and the relevant Borrower when a Letter of Credit is
issued, (i) the rules of the “International Standby Practices 1998”
published by the Institute of International Banking Law & Practice (or
such later version thereof as may be in effect at the time of issuance)
(excluding Rule 3.14) shall apply to each standby Letter of Credit, and (ii) the
rules of the Uniform Customs and Practice for Documentary Credits, as most
recently published by the International Chamber of Commerce at the time of
issuance shall apply to each commercial Letter of Credit.


 


(i)            Letter of Credit Fees.  Each Borrower shall pay to the Administrative
Agent for the account of each Lender in accordance with its Pro Rata Share a
Letter of Credit fee for each Letter of Credit issued for the account of such
Borrower equal to the Applicable Rate times the daily maximum amount then
available to be drawn under such Letter of Credit.  Such letter of credit fees shall be computed
on a quarterly basis in arrears.  Such
letter of credit fees shall be due and payable on the last Business Day of each
March, June, September and December, commencing with the first such date
to occur after the issuance of such Letter of Credit, on the Letter of Credit
Expiration Date and thereafter on demand. 
If there is any change in the Applicable Rate during any quarter, the
daily maximum amount of 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.


 


47

















 


(j)            Fronting Fee and Documentary
and Processing Charges Payable to L/C Issuer.  Each Borrower shall pay directly to the L/C
Issuer for its own account a fronting fee with respect to each Letter of Credit
issued for the account of such Borrower equal to 0.25% per annum of the daily
maximum amount then available to be drawn under such Letter of Credit.  Such fronting fees shall be computed on a
quarterly basis in arrears.  Such
fronting fees shall be due and payable on the last Business Day of each March,
June, September and December, commencing with the first such date to occur
after the issuance of such Letter of Credit, on the Letter of Credit Expiration
Date and thereafter on demand.  In
addition, each 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 not related to the
fronting fee and standard costs and charges are due and payable within five (5) Business
Days of written demand by the L/C Issuer setting forth in reasonable detail
such costs and charges and are nonrefundable.


 


(k)           Conflict with Letter of
Credit Application.  In the
event of any conflict between the terms hereof and the terms of any Letter of
Credit Application, the terms of this Agreement shall control.


 


SECTION 2.04.  Swing Line Loans.  (a)  The Swing Line.  Subject to the terms and conditions set forth
herein, the Swing Line Lender agrees to make loans (each such loan, a “Swing Line Loan”) to each Borrower from
time to time on any Business Day (other than the Closing Date) during the
Revolving Credit Commitment Period in an aggregate amount not to exceed at any
time outstanding the least of (i) the amount of the Swing Line Sublimit,
and (ii) the lesser of the Revolving Credit Commitment and the Borrowing
Base, in each case, less the outstanding balance of the Revolving Credit Loans
and outstanding L/C Obligations at such time, notwithstanding the fact that
such Swing Line Loans, when aggregated with the Pro Rata Share of the
Outstanding Amount of Loans and L/C Obligations of the Lender acting as Swing
Line Lender, may exceed the amount of such Lender’s Commitment; provided that after giving effect to any
Swing Line Loan, the aggregate Outstanding Amount of the Revolving Credit Loans
of any Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount of
all L/C Obligations, plus such Lender’s Pro Rata Share of the amount of the Outstanding
Amount of all Swing Line Loans shall not exceed such Lender’s Revolving Credit
Commitment; provided further that
(x) no Borrower shall use the proceeds of any Swing Line Loan to refinance
any outstanding Swing Line Loan, and (y) the aggregate principal amount of
the Swing Line Loans outstanding to the Borrowers shall not exceed at any time
the Borrowing Base less the Revolving Credit Loans and the Outstanding Amount
of all L/C Obligations outstanding to the Borrowers.  Within the foregoing limits, and subject to
the other terms and conditions hereof, the Borrowers 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.  Swing Line Loans shall only be
denominated in Dollars.  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
an unfunded risk participation in such Swing Line Loan in an amount equal to
the product of such Lender’s Pro Rata Share times the amount of such Swing Line
Loan.


 


(b)           Borrowing Procedures.  Each Swing Line Borrowing shall be made upon
the relevant Borrower’s irrevocable notice to the Swing Line Lender and the
Administrative Agent, which may be given by telephone.  Each such notice must be received by the
Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on
the requested borrowing date, and shall specify (i) the amount to be
borrowed, which shall be a minimum of $100,000 (ii) the requested
borrowing date, which shall be a Business Day and (iii) the account of the
relevant Borrower to be credited with the proceeds of such Swing Line
Borrowing.  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 relevant Borrower.  Promptly after receipt by the Swing Line
Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will
confirm with 


 


48

















 


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 such proposed
Swing Line Borrowing (A) directing the Swing Line Lender not to make such
Swing Line Loan as a result of the limitations set forth in the first proviso
to the first sentence of Section 2.04(a), or (B) that one or
more of the applicable conditions specified in Section 4.02 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 relevant Borrower.


 


(c)           Refinancing of Swing Line
Loans.  (i)  The Swing Line
Lender at any time in its sole and absolute discretion may request, but no less
frequently than weekly, on behalf of the relevant Borrower (each of 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 Pro Rata Share of the amount of Swing Line Loans then outstanding.  Each such request shall be made in writing
(which written request shall be deemed to be a Committed Loan Notice for
purposes hereof) and in accordance with the requirements of Section 2.02(a),
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 Credit Commitments and the conditions set forth in Section 4.02.  The Swing Line Lender shall furnish the
relevant Borrower with a copy of the applicable Committed Loan Notice promptly
after delivering such notice to the Administrative Agent.  Each Lender shall make an amount equal to its
Pro Rata Share of the amount specified in such Committed Loan Notice available
to the Administrative Agent in immediately available funds for the account of
the Swing Line Lender at the Administrative Agent’s Office not later than 1:00 p.m.
on the day specified in such Committed Loan Notice, whereupon, subject to Section 2.04(c)(ii),
each Lender that so makes funds available shall be deemed to have made a Base
Rate Loan to the relevant Borrower in such amount.  The Administrative Agent shall remit the
funds so received to the Swing Line Lender.


 


(ii)           If for any reason any Swing
Line Loan cannot be refinanced by such a Revolving Credit Borrowing in
accordance with Section 2.04(c)(i), or if a reimbursement to the
Swing Line Lender shall be required to be returned or disgorged for any reason
(including by reason of the commencement of a proceeding of the type described
in Section 8.01(f)), 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
such Swing Line Loan and each such 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 applicable Federal Funds Rate from time to time in effect.  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
manifest error.


 


49

















 


(iv)          Each Lender’s obligation to
make Revolving Credit Loans or to purchase and fund risk participations in
Swing Line Loans pursuant to this Section 2.04(c) shall be
absolute and unconditional and shall not be affected by any circumstance,
including (A) any setoff, counterclaim, recoupment, defense or other right
which such Lender may have against the Swing Line Lender, any Borrower or any
other Person for any reason whatsoever, (B) the occurrence or continuance
of a Default, or (C) any other occurrence, event or condition, whether or
not similar to any of the foregoing; provided
that each Lender’s obligation to make Revolving Credit Loans pursuant to this Section 2.04(c) is
subject to the conditions set forth in Section 4.02 (other than
delivery by a Borrower of a Committed Loan Notice).  No such funding of risk participations shall
relieve or otherwise impair the obligation of the relevant 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 Pro Rata Share of such payment
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender’s risk participation was funded) in the
same funds as those received by the Swing Line Lender.


 


(ii)           If any payment received by
the Swing Line Lender in respect of principal or interest on any Swing Line
Loan is required to be returned by the Swing Line Lender under any of the
circumstances described in Section 10.06 (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 Pro Rata Share 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
applicable Federal Funds Rate.  The
Administrative Agent will make such demand upon the request of the Swing Line
Lender.


 


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


 


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


 


SECTION 2.05.  Prepayments.  (a)  Optional.  (i)  Any Borrower may, upon notice to
the Administrative Agent, at any time or from time to time voluntarily prepay
Loans made to such Borrower, in each case, in whole or in part without premium
or penalty; provided that (A) such
notice must be received by the Administrative Agent not later than 12:00 p.m.
(noon) (1) three (3) 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 prepayment of Eurodollar Rate Loans shall be in a principal
amount of $500,000 or a whole multiple of $250,000 in excess thereof or, if
less, the entire principal amount thereof then outstanding; and (C) any
prepayment of Base Rate Loans shall be in a principal amount of $50,000 or a
whole multiple of $50,000 in excess thereof or, if less, the entire principal
amount thereof then outstanding.  Each
such notice shall specify the date and amount of such prepayment and the Type(s) of
Loans to be prepaid.  The Administrative
Agent will promptly notify each Appropriate Lender of its receipt of each such
notice, and of the amount of such Lender’s Pro Rata Share of such prepayment.  If such notice is given by a Borrower, such
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 


 


50

















 


be accompanied by all accrued interest
thereon, together with any additional amounts required pursuant to Section 3.05.  Each prepayment made by a Borrower in respect
of a particular Facility shall be paid to the Administrative Agent for the
account of (and to be promptly disbursed to) the Appropriate Lenders in
accordance with their respective Pro Rata Shares.


 


(ii)           Either Borrower may, upon
notice to the Swing Line Lender (with a copy to the Administrative Agent), at
any time or from time to time, voluntarily prepay Swing Line Loans in whole or
in part without premium or penalty; provided
that (1) such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 12:00 p.m. (noon) on the date of the
prepayment, and (2) any such prepayment shall be in a minimum principal
amount of $100,000 or, if less, the entire principal amount thereof then
outstanding.  Each such notice shall
specify the date and amount of such prepayment. 
If such notice is given by either Borrower, such Borrower shall make
such prepayment and the payment amount specified in such notice shall be due
and payable on the date specified therein.


 


(iii)          Notwithstanding anything to
the contrary contained in this Agreement, any relevant Borrower may rescind any
notice of prepayment under Section 2.05(a)(i) or Section 2.05(a)(ii) if
such prepayment would have resulted from a refinancing of all of the
Facilities, which refinancing shall not be consummated or shall otherwise be
delayed.


 


(b)           Mandatory.  (i)  If for any reason the aggregate
Outstanding Amount of the Revolving Credit Loans, the L/C Obligations and Swing
Line Loans at any time exceeds the aggregate Revolving Credit Commitments then
in effect, the Borrowers shall promptly prepay Revolving Credit Loans or Swing
Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount
equal to such excess; provided
that the Borrowers 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 Credit Loans and Swing Line Loans such
aggregate Outstanding Amount exceeds such aggregate Revolving Credit
Commitments then in effect.


 


(ii)           If on any date on which a
Borrowing Base Certificate or a Alternative Borrowing Base Certificate, as the
case may be, is delivered pursuant to Section 6.01(e), the
aggregate outstanding balance of the Revolving Credit Loans, the L/C
Obligations and the Swing Line Loans exceeds the Borrowing Base, as calculated
therein, the Borrowers shall, no later than the Business Day immediately
following the date of delivery of such Borrowing Base Certificate or
Alternative Borrowing Base Certificate, as applicable, prepay the Revolving
Credit Loans or Swing Line Loans and/or Cash Collateralize the L/C Obligations
in an aggregate amount equal to such excess; provided
that the Borrowers shall not be required to Cash Collateralize the L/C
Obligations pursuant to this Section 2.05(b)(ii) unless after
the prepayment in full of the Revolving Credit Loans and Swing Line Loans such
aggregate Outstanding Amount exceeds such aggregate Borrowing Base then in
effect.


 


(iii)          The Borrower shall, on the
date of receipt of any Net Cash Proceeds of the issuance of Indebtedness under Section 7.03(b)(xxiii)
by the Borrower or any of its Subsidiaries, ratably prepay the Loans or Swing
Line Loans and/or Cash Collateralize the L/C Obligations in an amount equal to
the amount of such Net Cash Proceeds; provided
that the Borrowers shall not be required to Cash Collateralize the L/C
Obligations pursuant to this Section 2.05(b)(iii) unless after
the prepayment in full of the Loans and Swing Line Loans such aggregate
Outstanding Amount exceeds the aggregate Borrowing Base then in effect.


 


(iv)          All prepayments under this Section 2.05
shall be made together with, in the case of any such prepayment of a Eurodollar
Rate Loan on a date other than the last day of an Interest 


 


51

















 


Period therefor, any amounts
owing in respect of such Eurodollar Rate Loan, pursuant to Section 3.05.  Notwithstanding any of the other provisions
of Section 2.05(b), so long as no Event of Default shall have
occurred and be continuing, if any prepayment of Eurodollar Rate Loans is
required to be made under this Section 2.05(b), other than on the
last day of the Interest Period therefor, the Borrowers may, in their sole
discretion, deposit the amount of any such prepayment otherwise required to be
made thereunder into a Cash Collateral Account until the last day of such
Interest Period, at which time the Administrative Agent shall be authorized
(without any further action by or notice to or from such Borrowers or any other
Loan Party) to apply such amount to the prepayment of such Loans in accordance
with this Section 2.05(b). 
Upon the occurrence and during the continuance of any Event of Default,
the Administrative Agent shall also be authorized (without any further action
by or notice to or from a Borrower or any other Loan Party) to apply such
amount to the prepayment of the outstanding Loans in accordance with this Section 2.05(b).


 


SECTION 2.06.  Termination or Reduction of Revolving
Credit Commitments.  (a)  Optional.  The Borrowers may, upon written notice to the
Administrative Agent, terminate all or any portion of the unused Revolving
Credit Commitments under the Revolving Credit Facility; provided that (i) any such notice
shall be received by the Administrative Agent three (3) Business Days
prior to the date of termination or reduction, (ii) any such partial
reduction shall be in an aggregate amount (A) of $1,000,000 or any whole
multiple of $100,000 in excess thereof or (B) equal to the entire
remaining amount of the Revolving Credit Commitments and (iii) if, after
giving effect to any reduction of the Revolving Credit Commitments, (1) the
Letter of Credit Sublimit or the Swing Line Sublimit, as the case may be,
exceeds the amount of the Revolving Credit Commitments, such sublimit shall be
automatically reduced by the amount of such excess.  The amount of any such Revolving Credit
Commitment reduction shall not be applied to the Letter of Credit Sublimit or
the Swing Line Sublimit unless otherwise specified by the Borrowers.  Notwithstanding the foregoing, the Borrowers
may rescind or postpone any notice of termination of the Revolving Credit
Commitments if such termination would have resulted from a refinancing of all
of the Facilities, which refinancing shall not be consummated or otherwise
shall be delayed.


 


(b)           Application of Revolving
Credit Commitment Reductions; Payment of Fees.  The Administrative Agent will promptly notify
the Appropriate Lenders of any termination or reduction of unused portions of
the Letter of Credit Sublimit or the Swing Line Sublimit or the unused
Revolving Credit Commitments under this Section 2.06.  Upon any reduction of unused Revolving Credit
Commitments, the Revolving Credit Commitment of each Lender shall be reduced by
such Lender’s Pro Rata Share of the amount by which such Revolving Credit
Commitments are reduced (other than the termination of the Revolving Credit
Commitment of any Lender as provided in Section 3.07).  All commitment fees accrued until the
effective date of any termination of the Aggregate Commitments shall be paid to
the Appropriate Lenders on the effective date of such termination.


 


SECTION 2.07.  Repayment of Loans.  (a)  Revolving
Credit Loans.  Each Borrower shall
repay to the Administrative Agent for the ratable account of the applicable
Lenders on the Maturity Date for the Revolving Credit Facility the aggregate
principal amount of all of its Revolving Credit Loans outstanding on such date.


 


(b)           Swing Line Loans.  Each Borrower shall repay the aggregate
principal amount of all of its Swing Line Loans on the Maturity Date for the
Revolving Credit Facility.


 


SECTION 2.08.  Interest.  (a)  Subject to the
provisions of Section 2.08(b), (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 


 


52

















 


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 for Revolving Credit Loans.


 


(b)           While any Event of Default
set forth in Section 8.01(a) exists, each Borrower shall pay
interest on the overdue principal amount of all of its 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.  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.


 


SECTION 2.09.  Fees. 
In addition to certain fees described in Section 2.03(i) and
Section 2.03(j):


 


(a)           Revolving Credit Commitment
Fee.  The Borrowers shall pay to the
Administrative Agent for the account of each Lender in accordance with its Pro
Rata Share, a commitment fee (each, a “Revolving
Credit Commitment Fee” and, collectively, the “Revolving Credit Commitment Fees”) equal to
the Applicable Commitment Fee Rate times the actual daily amount by which the
aggregate Revolving Credit Commitments exceed the sum of (i) the
Outstanding Amount of Revolving Credit Loans (exclusive of any Swing Line
Loans) and (ii) the Outstanding Amount of L/C Obligations; provided that any Revolving Credit
Commitment Fee accrued with respect to the Revolving Credit Commitment of a
Defaulting Lender during the period prior to the time such Lender became a
Defaulting Lender and unpaid at such time shall not be payable by the Borrowers
so long as such Lender shall be a Defaulting Lender except to the extent that
such Revolving Credit Commitment Fee shall otherwise have been due and payable
by the Borrowers prior to such time; and provided
further that no Revolving Credit Commitment Fee shall accrue on the
Revolving Credit Commitment of a Defaulting Lender so long as such Lender shall
be a Defaulting Lender.  The Revolving
Credit Commitment Fees shall accrue at all times from the Closing Date until
the Maturity Date for the Revolving Credit Facility, including at any time during
which one or more of the conditions in Article 4 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 Maturity Date for the Revolving
Credit Facility.  The Revolving Credit
Commitment Fees shall be calculated quarterly in arrears, and if there is any
change in the Applicable Rate during any quarter, the actual daily amount shall
be computed and multiplied by the Applicable Rate separately for each period
during such quarter that such Applicable Rate was in effect.


 


(b)           Closing Fees.  The Borrowers shall pay to the Administrative
Agent for the account of each Lender in accordance with its Pro Rata Share, on
the Amendment Closing Date, a closing fee equal to 0.50% of the Revolving
Credit Commitments of such Lender after giving effect to the Amendment Closing
Date.


 


(c)           Other Fees.  The Borrowers shall pay or cause to be paid
to the Agents such fees as shall have been separately agreed upon in writing in
the amounts and at the times so specified. 
Such fees shall be fully earned when paid and shall not be refundable
for any reason whatsoever (except as expressly agreed between the Borrowers and
the applicable Agent).


 


53

















 


SECTION 2.10.  Computation of Interest and Fees.  All computations of interest
for Base Rate Loans when the Base Rate is determined by reference to the “Prime
Rate” as published by Bloomberg Professional Service Page Prime shall be
made on the basis of a year of three hundred and sixty-five (365) or three
hundred and sixty-six (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 three hundred and sixty (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 three hundred and
sixty-five (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 (1) day.  Each
determination by the Administrative Agent of an interest rate or fee hereunder
shall be conclusive and binding for all purposes, absent manifest error.


 


SECTION 2.11.  Evidence of Indebtedness.  (a)  The Credit
Extensions made by each Lender shall be evidenced by one or more accounts or
records maintained by such Lender and evidenced by one or more entries in the
Register maintained by the Administrative Agent, acting solely for purposes of
Treasury Regulation Section 5f.103-1(c), as agent for the Borrowers, in
each case in the ordinary course of business. 
The accounts or records maintained by the Administrative Agent and each
Lender shall be prima facie
evidence absent manifest error of the amount of the Credit Extensions made by
the Lenders to the Borrowers 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
Borrowers 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 manifest error.  Upon the
request of any Lender made through the Administrative Agent, the relevant
Borrowers shall execute and deliver to such Lender (through the Administrative
Agent) a Note payable to such Lender, which shall evidence such Lender’s Loans
in addition to such accounts or records. 
Each Lender may attach schedules to its Note and endorse thereon the
date, Type (if applicable), amount and maturity of its Loans and payments with
respect thereto.  Each Borrower and each
Lender agrees from time to time after the occurrence and during the continuance
of an Event of Default under Section 8.01(f) or Section 8.01(g)(i) to
execute and deliver to the Administrative Agent all such Notes or other
promissory notes and other instruments and documents as the Administrative
Agent shall reasonably request to evidence and confirm the respective interests
and obligations of the Lenders after giving effect to any exchange of Lenders’
interests pursuant to arrangements relating thereto among the Lenders, and each
Lender agrees to surrender any Notes or other promissory notes originally
received by it in connection with its Loans hereunder to the Administrative
Agent against delivery of any Notes or other promissory notes so executed and
delivered.


 


(b)           In addition to the accounts
and records referred to in Section 2.11(a), each Lender and the
Administrative Agent shall maintain in accordance with its usual practice
accounts or records and, in the case of the Administrative Agent, entries in
the Register, 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 manifest error.


 


(c)           Entries made in good faith
by the Administrative Agent in the Register pursuant to Section 2.11(a) and
Section 2.11(b), and by each Lender in its account or accounts
pursuant to Section 2.11(a) and Section 2.11(b),
shall be prima facie evidence of
the amount of principal and interest due and payable or to become due and
payable from the Borrowers to, in the case of the Register, each Lender and, in
the case of such account or accounts, such Lender, under this Agreement and the
other 


 


54

















 


Loan Documents, absent manifest error; provided that the failure of the
Administrative Agent or such Lender to make an entry, or any finding that an
entry is incorrect, in the Register or such account or accounts shall not limit
or otherwise affect the obligations of the Borrowers under this Agreement and
the other Loan Documents.


 


SECTION 2.12.  Payments Generally.  (a)  All payments to be
made by the Borrowers shall be made without condition or deduction for any
counterclaim, defense, recoupment or setoff. 
Except as otherwise expressly provided herein, all payments by the
Borrowers 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 Pro
Rata Share (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 4:00 p.m. shall be deemed received on the next succeeding
Business Day in the Administrative Agent’s sole discretion and any applicable
interest or fee shall continue to accrue to the extent applicable.


 


(b)           If any payment to be made by
any Borrower shall come due on a day other than a Business Day in relation to
such Borrower, 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; provided that, if such
extension would cause payment of interest on or principal of Eurodollar Rate
Loans to be made in the next succeeding calendar month, such payment shall be
made on the immediately preceding Business Day.


 


(c)           Unless any Borrower or any
Lender has notified the Administrative Agent, prior to the date any payment is
required to be made by it to the Administrative Agent hereunder, that such
Borrower or such Lender, as the case may be, will not make such payment, the
Administrative Agent may assume that such Borrower or such Lender, as the case
may be, has timely made such payment and may (but shall not be so required to),
in reliance thereon, make available a corresponding amount to the Person
entitled thereto.  If and to the extent
that such payment was not in fact made to the Administrative Agent in
immediately available funds, then:


 


(i)            if any Borrower failed to
make such payment, each Lender shall forthwith on demand repay to the
Administrative Agent the portion of such assumed payment that was made available
to such Lender in immediately available funds, together with interest thereon
in respect of each day from and including the date such amount was made
available by the Administrative Agent to such Lender to the date such amount is
repaid to the Administrative Agent in immediately available funds at the
applicable Federal Funds Rate from time to time in effect; and


 


(ii)           if any Lender failed to make
such payment, such Lender shall forthwith on demand pay to the Administrative
Agent the amount thereof in immediately available funds, together with interest
thereon for the period from the date such amount was made available by the
Administrative Agent to the relevant Borrower to the date such amount is
recovered by the Administrative Agent (the “Compensation
Period”) at a rate per annum equal to the applicable Federal Funds
Rate from time to time in effect.  When
such Lender makes payment to the Administrative Agent (together with all
accrued interest thereon), then such payment amount (excluding the amount of
any interest which may have accrued and been paid in respect of such late
payment) shall constitute such Lender’s Loan included in the applicable
Borrowing.  If such Lender does not pay
such amount forthwith upon the Administrative Agent’s demand therefor, the
Administrative Agent may make a demand therefor upon the relevant Borrower, and
the relevant Borrower shall pay such amount to the Administrative Agent,
together with interest thereon for the Compensation Period at a rate per annum
equal to the rate of interest applicable to 


 


55

















 


the applicable
Borrowing.  Nothing herein shall be
deemed to relieve any Lender from its obligation to fulfill its Revolving
Credit Commitment or to prejudice any rights which the Administrative Agent or
any Borrower may have against any Lender as a result of any default by such
Lender hereunder.


 


A notice of the Administrative Agent to any
Lender or any relevant Borrower with respect to any amount owing under this Section 2.12(c) shall
be conclusive, absent manifest error.


 


(d)           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 2,
and such funds are not made available to the relevant Borrower by the
Administrative Agent because the conditions to the applicable Credit Extension
set forth in Article 4 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.


 


(e)           The obligations of the
Lenders hereunder to make Loans and to fund participations in Letters of Credit
and Swing Line Loans are several and not joint. 
The failure of any Lender to make any Loan or to fund any such
participation 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 or purchase
its participation.


 


(f)            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.


 


(g)           Whenever any payment
received by the Administrative Agent under this Agreement or any of the other
Loan Documents is insufficient to pay in full all amounts due and payable to
the Administrative Agent and the Lenders under or in respect of this Agreement
and the other Loan Documents on any date, such payment shall be distributed by
the Administrative Agent and applied by the Administrative Agent and the
Lenders in the order of priority set forth in Section 8.03.  If the Administrative Agent receives funds
for application to the Obligations of the Loan Parties under or in respect of
the Loan Documents under circumstances for which the Loan Documents do not
specify the manner in which such funds are to be applied, the Administrative
Agent may, but shall not be obligated to, elect to distribute such funds to
each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum
of (i) the Outstanding Amount of all Loans outstanding at such time and (ii) the
Outstanding Amount of all L/C Obligations outstanding at such time, in
repayment or prepayment of such of the outstanding Loans or other Obligations
then owing to such Lender.  In the
absence of a specific determination by the Administrative Agent, payments shall
be applied to amounts then due and payable in the following order: (i) to
fees, expenses of the Agents reimbursable hereunder and Indemnified Liabilities
of the Agents hereunder, (ii) to interest on the Swing Line Loans, (iii) to
principal payments on the Swing Line Loans, (iv) to interest on the
Revolving Credit Loans, (v) to principal payments on the Revolving Credit
Loans and to provide Cash Collateralize L/C Obligations, ratably to the
aggregate combined principal amount of the Revolving Credit Loans and
outstanding L/C Obligations, and (vi) to all other Obligations, including
expenses of Lenders hereunder to the extent reimbursable under Section 10.04
and all Indemnified Liabilities of Lenders.


 


SECTION 2.13.  Sharing of Payments.  If, other than as expressly
provided elsewhere herein, any Lender shall obtain on account of the Loans made
by it, or the participations in L/C Obligations or in Swing Line Loans held by
it, any payment (whether voluntary, involuntary, through the exercise of any right
of setoff, or otherwise) in excess of its ratable share (or other share
contemplated hereunder) thereof, such Lender shall immediately (a) notify
the Administrative Agent of such fact, and 


 


56

















 


(b) purchase from the other Lenders such
participations in the Loans made by them and/or such subparticipations in the
participations in L/C Obligations or Swing Line Loans held by them, as the case
may be, as shall be necessary to cause such purchasing Lender to share the
excess payment in respect of such Loans or such participations, as the case may
be, pro rata with each of them; provided
that if all or any portion of such excess payment is thereafter recovered from
the purchasing Lender under any of the circumstances described in Section 10.06
(including pursuant to any settlement entered into by the purchasing Lender in
its discretion), such purchase shall to that extent be rescinded and each other
Lender shall repay to the purchasing Lender the purchase price paid therefor,
together with an amount equal to such paying Lender’s ratable share (according
to the proportion of (i) the amount of such paying Lender’s required
repayment to (ii) the total amount so recovered from the purchasing
Lender) of any interest or other amount paid or payable by the purchasing
Lender in respect of the total amount so recovered, without further interest
thereon.  Each Borrower agrees that any
Lender so purchasing a participation from another Lender may, to the fullest
extent permitted by Law, exercise all its rights of payment (including the
right of setoff, but subject to Section 10.09) with respect to such
participation as fully as if such Lender were the direct creditor of such
Borrower in the amount of such participation. 
The Administrative Agent will keep records (which shall be conclusive
and binding in the absence of manifest error) of participations purchased under
this Section 2.13 and will in each case notify the Lenders
following any such purchases or repayments. 
Each Lender that purchases a participation pursuant to this Section 2.13
shall from and after such purchase have the right to give all notices,
requests, demands, directions and other communications under this Agreement
with respect to the portion of the Obligations purchased to the same extent as
though the purchasing Lender were the original owner of the Obligations
purchased.


 


SECTION 2.14.  [Intentionally Omitted]


 


SECTION 2.15.  Eligible Accounts and Eligible Unbilled
Accounts.  All of the
Accounts owned by Borrowers and their Subsidiaries and reflected in the most
recent Borrowing Base Certificate (to the extent required to be reflected
pursuant to Section 6.01(e)) delivered by Borrowers to
Administrative Agent shall be “Eligible Accounts” or, as applicable, “Eligible
Unbilled Accounts” for purposes of this Agreement, except any Account to which
any of the exclusionary criteria set forth below applies.  Administrative Agent shall have the right, in
its commercially reasonable judgment that there has been a material and adverse
change from historical performance with respect to the value of Eligible
Accounts and/or Eligible Unbilled Accounts, at any time either (a) an
Event of Default has occurred and is then continuing and/or (b) Borrowing
Availability is less than the Borrowing Base Adjustment Limit, to (i) establish,
modify or eliminate Reserves against Eligible Accounts and/or Eligible Unbilled
Accounts from time to time and/or (ii) adjust from time to time any of the
criteria set forth below, establish new criteria and adjust advance rates with
respect to Eligible Accounts and/or Eligible Unbilled Accounts, in each case
effective on prior written notice delivered by Administrative Agent to the
Borrowers, the effect of which, along with any other changes to Reserves,
eligibility criteria, advance rates and the exercise of other Administrative
Agent rights under this Section 2.15 and/or under Section 2.16,
shall not reduce the Borrowing Base by an aggregate amount in excess of the
Borrowing Base Adjustment Limit.  Any
exercise of rights by Administrative Agent pursuant to the immediately
preceding sentence (x) shall be reversed, automatically and without
further action by Administrative Agent, at such time that no Event of Default
shall have occurred and remain continuing and Borrowing Availability,
calculated without giving effect to any actions taken by Administrative Agent
pursuant to the immediately preceding sentence, is greater than the Borrowing
Base Adjustment Limit and (y) subject to the provisions of the immediately
preceding clause (x), shall be subject to the approval of Supermajority
Required Lenders in the case of adjustments, new criteria, changes in advance
rates or the elimination of Reserves which have the effect of making more
credit available.


 


57

















 


(a)           Eligible Accounts shall not
include any Account of any Borrower or any of its Subsidiaries:


 


(i)            that does not arise from the
sale or rental of goods or the performance of services by any Borrower or any
of its Subsidiaries that are Loan Parties in the ordinary course of its
business and in the amount of the Account;


 


(ii)           (x) upon which any
Borrower’s or any Subsidiary’s right to receive payment is not absolute or is
contingent upon the fulfillment of any condition whatsoever or (y) as to
which any Borrower or any Subsidiary is not legally able to bring suit or
otherwise enforce its remedies against the Account Debtor through judicial
process;


 


(iii)          with respect to which an
invoice, reasonably acceptable to Administrative Agent in form and substance,
has not been sent to the applicable Account Debtor;


 


(iv)          that (x) is not owned
by any Borrower or any Subsidiary or (y) is subject to any right, claim,
security interest or other interest of any other Person, other than Liens in
favor of Administrative Agent, on behalf of itself and Lenders or Permitted
Liens under Section 7.01(b), (c), (h), (j), (k), (n), (p), (q), (u),
(v), (x), (aa) and (bb);


 


(v)           that is the obligation of an
Account Debtor located in a foreign country other than Canada unless payment
thereof is assured by a letter of credit assigned and delivered to
Administrative Agent, reasonably satisfactory to Administrative Agent as to
form, amount and issuer;


 


(vi)          that arises with respect to
goods that are delivered on a bill and hold, cash on delivery basis or placed
on consignment, sale or return, sale on approval, guaranteed sale or other
terms by reason of which the payment by the Account Debtor is or may be
conditional;


 


(vii)         that is in default, as
established upon the occurrence of any of the following:


 


(A)          the Account is
not paid within 90 days following its original invoice date;


 


(B)           the Account
Debtor obligated upon such Account suspends business, makes a general
assignment for the benefit of creditors or fails to pay its debts generally as
they come due; or


 


(C)           a petition is
filed by or against any Account Debtor obligated upon such Account under any
bankruptcy law or any other federal, state or foreign (including any
provincial) receivership, insolvency relief or other law or laws for the relief
of debtors;


 


(viii)        as to which Administrative
Agent’s Lien thereon, on behalf of itself and Lenders, is not a first priority
perfected Lien;


 


(ix)           as to which any of the
representations or warranties in the Loan Documents are untrue;


 


(x)            to the extent such Account
is evidenced by a judgment, Instrument or Chattel Paper (unless such Chattel
Paper has been delivered to the Collateral Agent or bears the legend set forth
in Section 4 of the Security Agreement);


 


58
















 


(xi)           to the extent that both (x) the
Account represents a progress billing consisting of an invoice for goods sold
or used or services rendered pursuant to a contract under which the Account
Debtor’s obligation to pay that invoice is subject to any Borrower’s or any
Subsidiary’s completion of further performance under such contract or is
subject to the equitable lien of a surety bond issuer and (y) the
aggregate face amount of all Accounts described in this clause (xi) exceeds
$500,000;


 


(xii)          to the extent that any
defense, counterclaim, setoff or dispute has been asserted as to such Account,
up to the amount of the defense, counterclaim, setoff or dispute so asserted;


 


(xiii)         that arises from a sale or
rental to any director, officer, other employee or Affiliate of any Loan Party,
or to any entity that has any common officer or director with any Loan Party
(it being understood and agreed that sales to any portfolio companies of
Sponsor shall not be excluded from the category of Eligible Accounts solely by operation
of this clause (xiii));


 


(xiv)        to the extent that both (x) the
Account is the obligation of an Account Debtor that is the United States
government, or any department, agency or instrumentality thereof, unless the
Administrative Agent, in its sole discretion, has agreed to the contrary in
writing and the relevant Borrower or a Subsidiary, if necessary or desirable,
has complied with respect to such obligation with the Federal Assignment of
Claims Act of 1940, and (y) the aggregate face amount of all Accounts
described in this clause (xiv) and in clause (b)(xiv) below with respect to
Unbilled Accounts, exceed $1,000,000;


 


(xv)         unless the aggregate amount
for all Account Debtors would not in the reasonable determination of the
Borrowers exceed $250,000, to the extent any Borrower or any Subsidiary is
liable for goods sold or services rendered by the applicable Account Debtor to
any Borrower or any Subsidiary but only to the extent of the potential offset;


 


(xvi)        that is the obligation of an
Account Debtor if fifty percent (50%) or more of the Dollar amount of all
Accounts owing by that Account Debtor are ineligible under the other criteria
set forth in this Section 2.15; or


 


(xvii)       to the extent that such
Account, together with all other Accounts owing by such Account Debtor and its
Affiliates as of any date of determination exceed ten percent (10%) of all
Eligible Accounts and/or all Eligible Unbilled Accounts.


 


(b)           Eligible Unbilled Accounts
shall not include any Account of any Borrower or any of its Subsidiaries:


 


(i)            that does not arise from the
sale or rental of goods or the performance of services by any Borrower or any
of its Subsidiaries in the ordinary course of its business and in the amount of
the Account ;


 


(ii)           (x) upon which any
Borrower’s or any Subsidiary’s right to receive payment is not absolute or is
contingent upon the fulfillment of any condition whatsoever (other than the
issuance of an invoice) or (y) as to which any Borrower or any Subsidiary
is not legally able to bring suit or otherwise enforce its remedies against the
Account Debtor through judicial process;


 


(iii)          that is not an Unbilled
Account;


 


59

















 


(iv)          that (x) is not owned
by any Borrower or any Subsidiary or (y) is subject to any right, claim,
security interest or other interest of any other Person, other than Liens in
favor of the Collateral Agent, on behalf of itself and Lenders;


 


(v)           that is the obligation of an
Account Debtor located in a foreign country other than Canada unless payment
thereof is assured by a letter of credit assigned and delivered to the
Collateral Agent, reasonably satisfactory to the Collateral Agent as to form,
amount and issuer;


 


(vi)          that arises with respect to
goods that are delivered on a bill and hold, cash on delivery basis or placed
on consignment, sale or return, sale on approval, guaranteed sale or other
terms by reason of which the payment by the Account Debtor is or may be
conditional;


 


(vii)         that is in default, as
established upon the occurrence of any of the following:


 


(A)          the Account
Debtor obligated upon such Account suspends business, makes a general
assignment for the benefit of creditors or fails to pay its debts generally as
they come due; or


 


(B)           a petition is
filed by or against any Account Debtor obligated upon such Account under any
bankruptcy law or any other federal, state or foreign (including any
provincial) receivership, insolvency relief or other law or laws for the relief
of debtors;


 


(C)           as to which the
Collateral Agent’s Lien thereon, on behalf of itself and Lenders, is not a
first priority perfected Lien;


 


(viii)        as to which any of the
representations or warranties in the Loan Documents are untrue;


 


(ix)           to the extent such Account
is evidenced by a judgment, Instrument or Chattel Paper (unless such Chattel
Paper has been delivered to the Collateral Agent or bears the legend set forth
in Section 4 of the Security Agreement);


 


(x)            that has remained an
Unbilled Account for more than seven (7) Business Days following the date
of the Borrowing Base Certificate that includes such Unbilled Accounts as
Eligible Unbilled Accounts.


 


(xi)           to the extent that both (x) the
Account represents a progress billing consisting of an invoice for goods sold
or used or services rendered pursuant to a contact under which the Account
Debtor’s obligation to pay that invoice is subject to any Borrower’s or any
Subsidiary’s completion of further performance under such contract or is
subject to the equitable lien of a surety bond issuer and (y) that aggregate
face amount of all Accounts described in this clause (xi) exceeds $500,000;


 


(xii)          to the extent that any
defense, counterclaim, setoff or dispute has been asserted as to such Account,
up to the amount of the defense, counterclaim, setoff or dispute so asserted;


 


(xiii)         that arises from a sale or
rental to any director, officer, other employee or Affiliate of any Loan Party,
or to any entity that has any common officer or director with any Loan Party
(it being understood and agreed that sales to any portfolio companies of
Sponsor shall not be excluded from the category of Eligible Accounts solely by
operation of this clause (xiii));


 


60

















 


(xiv)        to the extent that both (x) the
Account is the obligation of an Account Debtor that is the United States
government, or any department, agency or instrumentality thereof, unless the
Administrative Agent, in its sole discretion, has agreed to the contrary in
writing and the relevant Borrower or a Subsidiary, if necessary or desirable,
has complied with respect to such obligation with the Federal Assignment of
Claims Act of 1940, and (y) the aggregate face amount of all Accounts
described in this clause (xiv) and in clause (a)(xiv) above with respect to
Billed Accounts, exceed $1,000,000;


 


(xv)         unless the aggregate amount
for all Account Debtors would not in the reasonable determination of the
Borrowers exceed $250,000, to the extent any Borrower or any Subsidiary is
liable for goods sold or services rendered by the applicable Account Debtor to
any Borrower or any Subsidiary but only to the extent of the potential offset;


 


(xvi)        that is the obligation of an
Account Debtor if fifty percent (50%) or more of the Dollar amount of all
Accounts owing by that Account Debtor are ineligible under the other criteria
set forth in this Section 2.15;


 


(xvii)       to the extent that such
Account, together with all other Accounts owing by such Account Debtor and its
Affiliates as of any date of determination exceed ten percent (10%) of all
Eligible Accounts and/or all Eligible Unbilled Accounts.


 


SECTION 2.16.  Eligible Rental Equipment, Eligible
Wholesale Disposables and Eligible Equipment Disposables.  All of the Rental Equipment,
Wholesale Disposables and Equipment Disposables owned by any Borrower or any of
its Subsidiaries and reflected in the most recent Borrowing Base Certificate
(to the extent required to be reflected pursuant to Section 6.01(e))
delivered by Borrowers to Administrative Agent shall be “Eligible Rental
Equipment”, “Eligible Wholesale Disposables” and “Eligible Equipment
Disposables” for purposes of this Agreement, respectively, except any Inventory
or Equipment (as applicable) to which any of the exclusionary criteria set
forth below applies.  Administrative
Agent shall have the right, in its commercially reasonable judgment that there
has been a material and adverse change from historical performance with respect
to the value of Eligible Rental Equipment, Eligible Wholesale Disposables
and/or Eligible Equipment Disposables, at any time either (x) an Event of
Default has occurred and is then continuing and/or (y) Borrowing
Availability is less than the Borrowing Base Adjustment Limit, to (i) establish,
modify or eliminate Reserves against Eligible Rental Equipment, Eligible
Wholesale Disposables and Eligible Equipment Disposables from time to time,
and/or (ii) adjust from time to time any of the criteria set forth below,
establish new criteria and adjust advance rates with respect to Eligible Rental
Equipment, Eligible Wholesale Disposables and Eligible Equipment Disposables,
in each case effective on prior written notice delivered by the Administrative
Agent to Borrowers, the effect of which, along with any other changes to
Reserves, eligibility criteria, advance rates and the exercise of other
Administrative Agent rights under this Section 2.15 and/or under Section 2.16,
shall not reduce the Borrowing Base by an aggregate amount in excess of the
Borrowing Base Adjustment Limit.  Any
exercise of rights by Administrative Agent pursuant to the immediately
preceding sentence (A) shall be reversed, automatically and without
further action by Administrative Agent, at such time that no Event of Default
shall have occurred and remain continuing and Borrowing Availability, calculated
without giving effect to any actions taken by Administrative Agent pursuant to
the immediately preceding sentence, is greater than the Borrowing Base
Adjustment Limit and (B) subject to the provisions of the immediately
preceding clause (A), shall be subject to the approval of (i) Supermajority
Required Lenders in the case of adjustments, new criteria, changes in advance
rates or the elimination of Reserves which have the effect of making more
credit available and (ii) Supermajority Required Lenders in the case of
adjustments, new criteria, changes in advance rates or the elimination of
Reserves, the effect of which is to make credit available to Borrowers in
respect of Rental Equipment, Wholesale Disposables and Equipment Disposables in
excess of eighty five percent 


 


61

















 


(85%) of the orderly liquidation value of
such assets as reflected in the appraisal of such assets most recently
conducted by or at the request of Administrative Agent.  If any Eligible Wholesale Deliverables or
Eligible Equipment Disposables are located at any leased location of Borrowers,
the Administrative Agent shall have the right, in its commercially reasonable
judgment, to establish Lease Payment Reserves against such Eligible Wholesale
Deliverables and/or Eligible Equipment Disposables effective upon five (5) days
prior written notice delivered by the Administrative Agent to the
Borrowers.  Eligible Rental Equipment,
Eligible Wholesale Disposables and Eligible Equipment Disposables shall not
include any Inventory or Equipment of any Borrower or any of its Subsidiaries
that:


 


(a)           is not owned by a Borrower
or a Subsidiary free and clear of all Liens and rights of any other Person
(including the rights of a purchaser that has made progress payments and the
rights of a surety that has issued a bond to assure any Borrower’s or any
Subsidiary’s performance with respect to any Inventory, but excluding the
rights of any customer under a customer contract entered into by any Borrower
in the ordinary course of business and consistent with past practices), except
the Liens in favor of the Collateral Agent, on behalf of itself and Lenders,
and Permitted Liens under Section 7.01(b), (c), (h), (j), (k), (n),
(p), (q), (u), (v), (x), (aa) and (bb), provided
that such Permitted Liens are junior to the Liens in favor of the Collateral
Agent, on behalf of itself and Lenders;


 


(b)           is covered by a negotiable
document of title, unless such document has been delivered to the Collateral
Agent with all necessary endorsements, free and clear of all Liens except those
in favor of the Collateral Agent and Lenders;


 


(c)           is unrentable, obsolete, or
slow moving;


 


(d)           consists of display items or
packing or shipping materials, manufacturing supplies or work in process Inventory;


 


(e)           is not of a type held for
sale or rent in the ordinary course of any Borrower’s or any Subsidiary’s
business;


 


(f)            is not subject to a first
priority lien in favor of the Collateral Agent on behalf of itself and Lenders,
subject to Permitted Liens under Section 7.01(e) in favor of
landlords and bailees;


 


(g)           breaches any of the
representations or warranties pertaining to Inventory set forth in the Loan
Documents;


 


(h)           is not in compliance with
Environmental Laws;


 


(i)            is not covered by casualty
insurance reasonably acceptable to the Administrative Agent;


 


(j)            is not located in the United
States of America or Canada; or


 


(k)           is placed on consignment,
sale or return or sale on approval.


 


ARTICLE 3


 


TAXES,
INCREASED COSTS PROTECTION AND ILLEGALITY


 


SECTION 3.01.  Taxes. 
(a)  Except as provided in this Section 3.01, any and
all payments by any Borrower to or for the account of any Agent or any Lender
under any Loan Document shall be made free and clear of and without deduction
for any and all present or future taxes, duties, 


 


62

















 


levies, imposts, deductions, assessments,
fees, withholdings or similar charges, and all liabilities (including additions
to tax, penalties and interest) with respect thereto, excluding, in the case of each Agent and
each Lender, (i) taxes imposed on or measured by its net income and
franchise (and similar) taxes imposed on it in lieu of net income taxes, by the
United States and the jurisdiction (or any political subdivision thereof) under
the Laws of which such Agent or such Lender, as the case may be, is organized
or in which its principal office is located or in the case of any Lender, in
which its Lending Office is located, and (ii) any branch profits tax
imposed by the United States, and all liabilities (including additions to tax,
penalties and interest) with respect thereto (all such non-excluded taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and liabilities being hereinafter referred to as “Taxes”). 
If any Borrower shall be required by any Laws to deduct any Taxes from
or in respect of any sum payable under any Loan Document to any Agent or any
Lender, (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section 3.01), each of such Agent and such
Lender receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Borrower shall make such deductions, (iii) such
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable Laws, and (iv) within
thirty (30) days after the date of such payment, such Borrower shall furnish to
such Agent or Lender (as the case may be) the original or a certified copy of a
receipt evidencing payment thereof to the extent such a receipt is issued
therefor, or other written proof of payment thereof that is reasonably
satisfactory to the Administrative Agent; provided
that no Borrower shall be obligated to make any such payment to any
Agent or any Lender (as the case may be) in respect of penalties, interest and
other liabilities attributable to Taxes or Other Taxes if and to the extent
that such penalties, interest and other liabilities are attributable to the
gross negligence or willful misconduct of such Agent or such Lender (as the
case may be); provided further
that if any Borrower reasonably believes that such taxes were not correctly or
legally asserted by any Agent or Any Lender, such Agent or such Lender, as the
case may be, will use reasonable efforts to cooperate with the Borrowers to
obtain a refund of such taxes so long as such efforts would not, in the sole
determination of the Agent or such Lender (as the case may be) result in any
additional costs, expenses or risks or be otherwise disadvantageous to it.


 


(b)           In addition, each Borrower
agrees to pay any and all present or future stamp, court or documentary taxes
and any other excise, property, intangible or mortgage recording taxes or
charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as “Other Taxes”).


 


(c)           Each Borrower agrees to
indemnify each Agent and each Lender for (i) the full amount of Taxes and
Other Taxes (including any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section 3.01) paid by
such Agent and such Lender, and (ii) any liability (including additions to
tax, penalties, interest and expenses) arising therefrom or with respect
thereto, in each case whether or not such Taxes or Other Taxes were correctly
or legally imposed or asserted by the relevant Governmental Authority; provided that such Agent or Lender, as the
case may be, provides such Borrower with a written statement thereof setting
forth in reasonable detail the basis and calculation of such amounts.  Payment under this Section 3.01(c) shall
be made within thirty (30) days after the date such Lender or such Agent makes
a written demand therefor. 
Notwithstanding anything contained in this Section 3.01 to
the contrary, the Borrowers shall be under no obligation to any Agent or any
Lender with respect to any additional amounts described in subsections (a), (b) and
(c) of this Section 3.01 to the extent incurred prior to the
one hundred-eightieth (180th) day preceding the date on which the Borrowers
received notice by such Agent or such Lender of such additional amounts, unless
the requirement resulting in such additional amounts becomes effective during
such 180 day period and retroactively applies to a date occurring prior to such
180 day period, in which case the Borrowers shall be responsible 


 


63

















 


for all such additional amounts described in
subsections (a), (b) and (c) of this Section 3.01 from
and after such date of effectiveness.


 


(d)           No Borrower shall be
required pursuant to this Section 3.01 to pay any additional amount
to, or to indemnify, any Lender or Agent, as the case may be, to the extent
that such Lender or such Agent becomes subject to Taxes subsequent to the
Closing Date (or, if later, the date such Lender or Agent becomes a party to
this Agreement) as a result of a change in the place of organization of such
Lender or Agent or a change in the Lending Office of such Lender, except to the
extent that any such change is requested or required in writing by any Borrower
(and provided that nothing in
this clause (d) shall be construed as relieving any Borrower from
any obligation to make such payments or indemnification in the event of a
change in Lending Office or place of organization that precedes a change in Law
to the extent such Taxes result from a change in Law).


 


(e)           If a Lender or an Agent is
subject to United States withholding tax at a rate in excess of zero percent at
the time such Lender or such Agent, as the case may be, first becomes a party
to this Agreement, withholding tax at such rate (or at a lesser rate to which
such Lender or Agent is entitled under an applicable treaty) at such time shall
be considered excluded from Taxes; provided
that, if at the date of the Assignment and Assumption pursuant to which a
Lender becomes a party to this Agreement, the Lender assignor was entitled to
payments under clause (a) of this Section 3.01 in
respect of United States withholding tax with respect to interest paid at such
date, then, to such extent, the term Taxes shall include (in addition to
withholding taxes that may be imposed in the future or other amounts otherwise
includable in Taxes) United States withholding tax, if any, applicable with
respect to the Lender assignee on such date. 
Any Lender that is entitled to an exemption from or reduction of
withholding tax under the law of the jurisdiction in which the Borrower is
located or any treaty to which the Netherlands is a party, with respect to
payments under this Agreement shall deliver to the Borrower (with a copy to the
appropriate Agent), at the reasonable written request of the Borrower, such
properly completed and executed documentation prescribed by applicable law as
will permit such payments to be made without withholding or at a reduced rate; provided that such Lender is legally
entitled to complete, execute and deliver such documentation and in such
Lender’s judgment such completion, execution or delivery would not materially
prejudice the legal position of such Lender; and provided further, that if any form or document referred to
in this Section 3.01 requires the disclosure of information, other
than information necessary to compute the tax payable and information required
on the date hereof by the relevant taxing authority, that the applicable Lender
or Agent considers to be confidential, such Lender or Agent shall give notice
thereof to the Borrower and shall not be obligated to include in such form or
document such confidential information.


 


(f)            If any Lender or Agent shall
become aware that it is entitled to receive a refund in respect of amounts paid
by any Borrower pursuant to this Section 3.01, which refund in the
good faith judgment of such Lender or Agent is allocable to such payment, it
shall promptly notify such Borrower of the availability of such refund and
shall, within thirty (30) days thereafter, apply for such refund; provided that in the sole judgment of the
Lender or Agent, applying for such refund would not cause such Person to suffer
any material economic, legal or regulatory disadvantage.  If any Lender or Agent receives a refund in
respect of any Taxes or Other Taxes as to which indemnification or additional
amounts have been paid to it by any Borrower pursuant to this Section 3.01,
it shall promptly remit such refund (including any interest included in such
refund) to such Borrower (to the extent that it determines that it can do so
without prejudice to the retention of the refund), net of all reasonable
out-of-pocket expenses of the Lender or Agent, as the case may be; provided that such Borrower, upon the
request of the Lender or Agent, as the case may be, agrees promptly to return
such refund to such party in the event such party is required to repay such
refund to the relevant taxing authority. 
Such Lender or Agent, as the case may be, shall, at such Borrower’s
request, provide such Borrower with a copy of any notice of assessment or other
evidence of the requirement to repay such refund received from the relevant
taxing authority (provided  


 


64

















 


that such Lender or Agent may delete any information
therein that such Lender or Agent deems confidential).  Nothing herein contained shall interfere with
the right of a Lender or Agent to arrange its tax affairs in whatever manner it
thinks fit nor oblige any Lender or Agent to claim any tax refund or to
disclose any information relating to its tax affairs or any computations in
respect thereof or require any Lender or Agent to do anything that would
prejudice its ability to benefit from any other refunds, credits, reliefs,
remissions or repayments to which it may be entitled.


 


(g)           Each Lender agrees that,
upon the occurrence of any event giving rise to the operation of Section 3.01(a) or
Section 3.01(c) with respect to such Lender it will, if
requested by the relevant Borrower, use commercially reasonable efforts
(subject to such Lender’s overall internal policies of general application and
legal and regulatory restrictions) to avoid the consequences of such event,
including to designate another Lending Office for any Loan or Letter of Credit
affected by such event; provided
that such efforts are made on terms that, in the reasonable judgment of such
Lender, cause such Lender and its Lending Office(s) to suffer no material
economic, legal or regulatory disadvantage, and provided further that nothing in this Section 3.01(g) shall
affect or postpone any of the Obligations of any Borrower or the rights of the
Lender pursuant to Section 3.01(a) and Section 3.01(c).


 


SECTION 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 Eurodollar Rate Loans or to determine or charge
interest rates based upon the Eurodollar Rate, then, on notice thereof by such
Lender to the Borrowers through the Administrative Agent, any obligation of
such Lender to make Eurodollar Rate Loans or continue Eurodollar Rate Loans or
to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended until
such Lender notifies the Administrative Agent and the Borrowers that the
circumstances giving rise to such determination no longer exist.  Upon receipt of such notice, each such
Borrower (i) may revoke any pending request for a Borrowing of, conversion
to, or continuation of Eurodollar Rate Loans or (ii) shall, upon demand
from such Lender (with a copy to the Administrative Agent), prepay or, if
applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate
Loans, 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.  Upon any such
prepayment or conversion, each such Borrower shall also pay accrued interest on
the amount so prepaid or converted.  Each
Lender agrees to designate a different Lending Office if such designation will
avoid the need for such notice and will not, in the good faith judgment of such
Lender, otherwise be materially disadvantageous to such Lender.


 


SECTION 3.03.  Inability to Determine Rates.  If the Required Lenders
determine that for any reason adequate and reasonable means do not exist for
determining the Eurodollar Rate for any requested Interest Period with respect
to a proposed Eurodollar Rate Loan or that the Eurodollar Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan does
not adequately and fairly reflect the cost to such Lenders of funding such
Loan, or that Dollar deposits are not being offered to banks in the London
interbank eurodollar market for the applicable amount and the Interest Period
of such Eurodollar Rate Loan the Administrative Agent will promptly so notify
each Borrower and each Lender. 
Thereafter, the obligation of the Lenders to make or maintain Eurodollar
Rate Loans shall be suspended until the Administrative Agent (upon the
instruction of the Required Lenders) revokes such notice.  Upon receipt of such notice, each 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.


 


SECTION 3.04.  Increased Cost and Reduced Return; Capital
Adequacy; Reserves on Eurodollar Rate Loans.  (a)  If any Lender
reasonably determines in good faith that as a result of the introduction of or
any change in or in the interpretation of any Law, in each case after the
Closing Date, 


 


65

















 


or such Lender’s compliance therewith, there
shall be any increase in the cost to such Lender of agreeing to make or making,
funding or maintaining Eurodollar Rate Loans or (as the case may be) issuing or
participating in Letters of Credit, or a reduction in the amount received or
receivable by such Lender in connection with any of the foregoing (excluding
for purposes of this Section 3.04(a) any such increased costs
or reduction in amount resulting from (i) taxes (as to which Section 3.01
shall govern), (ii) changes in the basis of taxation of overall net income
or overall gross income (including branch profits), and franchise (and similar)
taxes imposed in lieu of net income taxes, by the United States or any foreign
jurisdiction or any political subdivision of either thereof under the Laws of
which such Lender is organized or maintains a Lending Office and (iii) reserve
requirements contemplated by Section 3.04(c), then from time to
time each such Borrower (A) may revoke any pending request for a Borrowing
of Eurodollar Rate Loans conversion to or continuation of Eurodollar Rate Loans
or (B) within thirty (30) days after written demand by such Lender setting
forth in reasonable detail such increased costs or reduction (with a copy of
such demand to the Administrative Agent given in accordance with Section 3.06),
the relevant Borrower shall pay to such Lender such additional amounts as will
compensate such Lender for such increased cost or reduction.


 


(b)           If any Lender reasonably
determines in good faith that the introduction of any Law regarding capital
adequacy or any change therein or in the interpretation thereof, in each case
after the Closing Date, or compliance by such Lender (or its Lending Office)
therewith, has the effect of reducing the rate of return on the capital of such
Lender or any corporation controlling such Lender as a consequence of such
Lender’s obligations hereunder (taking into consideration its policies with
respect to capital adequacy and such Lender’s desired return on capital), then
from time to time (i) each such Borrower may revoke any pending request
for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans, (ii) within
thirty (30) days after written demand by such Lender setting forth in
reasonable detail the charge and the calculation of such reduced rate of return
(with a copy of such demand to the Administrative Agent given in accordance
with Section 3.06), the relevant Borrower shall pay to such Lender
such additional amounts as will compensate such Lender for such reduction.


 


(c)           Each Borrower shall pay to
each Lender, (i) as long as such Lender shall be required to maintain
reserves with respect to liabilities or assets consisting of or including
Eurocurrency funds or deposits (currently known as “Eurocurrency liabilities”),
additional interest on the unpaid principal amount of each Eurodollar Rate Loan
equal to the actual costs of such reserves allocated to such Loan by such
Lender (as determined by such Lender in good faith, which determination shall
be conclusive in the absence of manifest error), and (ii) as long as such
Lender shall be required to comply with any reserve ratio requirement or
analogous requirement of any other central banking or financial regulatory
authority imposed in respect of the maintenance of the Revolving Credit
Commitments or the funding of the Eurodollar Rate Loans such additional costs
(expressed as a percentage per annum and rounded upwards, if necessary, to the
nearest five decimal places) equal to the actual costs allocated to such
Revolving Credit Commitment or Loan by such Lender (as determined by such Lender
in good faith, which determination shall be conclusive absent manifest error)
which in each case shall be due and payable on each date on which interest is
payable on such Loan; provided
such Borrower shall have received at least thirty (30) days’ prior notice (with
a copy to the Administrative Agent) of such additional interest or cost from
such Lender.  If a Lender fails to give
notice thirty (30) days prior to the relevant Interest Payment Date, such
additional interest or cost shall be due and payable thirty (30) days from
receipt of such notice.


 


(d)           No Borrower shall be
required to compensate a Lender pursuant to Section 3.04(a), Section 3.04(b) or
Section 3.04(c) for any such increased cost or reduction
incurred more than ninety (90) days prior to the date that such Lender demands,
or notifies such Borrower of its intention to demand, compensation therefor; provided that, if the circumstance giving
rise to such increased cost or reduction is retroactive, then such 90-day
period referred to above shall be extended to include the period of retroactive
effect thereof.


 


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(e)           If any Lender requests
compensation under this Section 3.04, then such Lender will, if
requested by the relevant Borrower, use commercially reasonable efforts to
designate another Lending Office for any Loan or Letter of Credit affected by
such event; provided that such
efforts are made on terms that, in the reasonable judgment of such Lender,
cause such Lender and its Lending Office(s) to suffer no material
economic, legal or regulatory disadvantage, and provided further that nothing in this Section 3.04(e) shall
affect or postpone any of the Obligations of any Borrower or the rights of such
Lender pursuant to Section 3.04(a), Section 3.04(b), Section 3.04(c) or
Section 3.04(d).


 


SECTION 3.05.  Funding Losses.  Upon demand of any Lender
from time to time, each 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 Loan other than a Base Rate Loan on a
day other than the last day of the Interest Period for such Loan (whether
voluntary, mandatory, automatic, by reason of acceleration, or otherwise); or


 


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


 


including 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.


 


For purposes of calculating
amounts payable by a 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 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.


 


SECTION 3.06.  Matters Applicable to Requests for
Compensation.  (a)  Any
Agent or any Lender claiming compensation under this Article 3
shall deliver a certificate to the applicable Borrower setting forth in
reasonable detail the additional amount or amounts to be paid to it hereunder,
which shall be conclusive in the absence of manifest error.  In determining such amount, such Agent or
such Lender may use any reasonable averaging and attribution methods.


 


(b)           With respect to any Lender’s
claim for compensation under Section 3.02, Section 3.03
or Section 3.04, no Borrower shall be required to compensate such
Lender for any amount incurred more than ninety (90) days prior to the date
that such Lender notifies the relevant Borrower of the event that gives rise to
such claim; provided that, if the
circumstance giving rise to such increased cost or reduction is retroactive,
then such 90-day period referred to above shall be extended to include the
period of retroactive effect thereof.  If
any Lender requests compensation by a Borrower under Section 3.04,
such Borrower may, by notice to such Lender (with a copy to the Administrative
Agent), suspend the obligation of such Lender to make or continue Eurodollar
Rate Loans from one Interest Period to another, or to convert Base Rate Loans
into Eurodollar Rate Loans, until the event or condition giving rise to such
request ceases to be in effect (in which case the provisions of Section 3.06(c) shall
be applicable); provided that
such suspension shall not affect the right of such Lender to receive the
compensation so requested.


 


(c)           If the obligation of any
Lender to make or continue any Eurodollar Rate Loan from one Interest Period to
another, or to convert Base Rate Loans into Eurodollar Rate Loans shall be
suspended pursuant to Section 3.06(b) hereof, such Lender’s
Eurodollar Rate Loans shall be automatically converted 


 


67

















 


into Base Rate Loans on the last day(s) of the
then current Interest Period(s) for such Eurodollar Rate Loans (or, in the
case of an immediate conversion required by Section 3.02, on such
earlier date as required by Law) and, unless and until such Lender gives notice
as provided below that the circumstances specified in Section 3.01,
Section 3.02, Section 3.03 or Section 3.04
hereof that gave rise to such conversion no longer exist:


 


(i)            to the extent that such
Lender’s Eurodollar Rate Loans have been so converted, all payments and
prepayments of principal that would otherwise be applied to such Lender’s
Eurodollar Rate Loans shall be applied instead to its Base Rate Loans; and


 


(ii)           all Loans that would
otherwise be made or continued as Eurodollar Rate Loans from one Interest
Period to another by such Lender shall be made or continued instead as Base
Rate Loans, and all Base Rate Loans of such Lender that would otherwise be
converted into Eurodollar Rate Loans shall remain as Base Rate Loans.


 


(d)           If any Lender gives notice
to a Borrower (with a copy to the Administrative Agent) that the circumstances
specified in Section 3.01, Section 3.02, Section 3.03
or Section 3.04 hereof that gave rise to the conversion of such
Lender’s Eurodollar Rate Loans pursuant to this Section 3.06 no
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Eurodollar Rate Loans made by other Lenders
are outstanding, such Lender’s Base Rate Loans shall be automatically converted
irrespective of whether such conversion results in greater than fifteen (15)  Interest Periods being outstanding under
this Agreement, on the first day(s) of the next succeeding Interest Period(s) for
such outstanding Eurodollar Rate Loans, to the extent necessary so that, after
giving effect thereto, all Loans held by the Lenders holding Eurodollar Rate
Loans and by such Lender are held pro rata (as to principal amounts, interest
rate basis, and Interest Periods) in accordance with their respective Revolving
Credit Commitments.


 


SECTION 3.07.  Replacement of Lenders Under Certain
Circumstances.  (a)  If at
any time (x) any Borrower becomes obligated to pay additional amounts or
indemnity payments described in Section 3.01 or Section 3.04
as a result of any condition described in such Sections or any Lender ceases to
make Eurodollar Rate Loans as a result of any condition described in Section 3.02
or Section 3.04, (y) any Lender becomes a Defaulting Lender or
(z) any Lender becomes a Non Consenting Lender, then such Borrower may, on
five (5) Business Days’ prior written notice to the Administrative Agent
and such Lender, replace such Lender by causing such Lender to (and such Lender
shall be obligated to) assign pursuant to Section 10.07(b) (with
the assignment fee to be paid by such Borrower in such instance) all of its
rights and obligations under this Agreement to one or more Eligible Assignees; provided that (A) in the case of any
Eligible Assignees in respect of Non-Consenting Lenders, the replacement Lender
shall agree to the consent, waiver or amendment to which the Non-Consenting
Lender did not agree and (B) neither the Administrative Agent nor any
Lender shall have any obligation to any Borrower to find a replacement Lender
or other such Person.


 


(b)           Any Lender being replaced
pursuant to Section 3.07(a) above shall (i) execute and
deliver an Assignment and Assumption with respect to such Lender’s Revolving
Credit Commitment and outstanding Loans and, if applicable, participations in
L/C Obligations and Swing Line Loans, and (ii) deliver any Notes
evidencing such Loans to the relevant Borrower or the Administrative
Agent.  Pursuant to such Assignment and
Assumption, (i) the assignee Lender shall acquire all or a portion, as the
case may be, of the assigning Lender’s Revolving Credit Commitment and
outstanding Loans and, if applicable, participations in L/C Obligations and
Swing Line Loans, (ii) all obligations of the Borrowers owing to the
assigning Lender relating to the Loans and participations so assigned shall be
paid in full by the assignee Lender to such assigning Lender concurrently with
such assignment and assumption and (iii) upon such payment and, if so
requested by the assignee Lender, delivery to the assignee Lender of the
appropriate 


 


68

















 


Note or Notes executed by the relevant Borrower, the
assignee Lender shall become a Lender hereunder and the assigning Lender shall
cease to constitute a Lender hereunder with respect to such assigned Loans, Revolving
Credit Commitments and participations, except with respect to indemnification
provisions under this Agreement, which shall survive as to such assigning
Lender.


 


(c)           Notwithstanding anything to
the contrary contained above, (i) the Lender that acts as the L/C Issuer
may not be replaced hereunder at any time that it has any Letter of Credit
outstanding hereunder unless arrangements reasonably satisfactory to such L/C
Issuer (including the furnishing of a back-up standby letter of credit in form
and substance, and issued by an issuer reasonably satisfactory to such L/C
Issuer or the depositing of cash collateral into a cash collateral account in
amounts and pursuant to arrangements reasonably satisfactory to such L/C
Issuer) have been made with respect to such outstanding Letter of Credit and (ii) the
Lender that acts as the Administrative Agent may not be replaced in such
capacity hereunder except in accordance with the terms of Section 9.06.


 


(d)           In the event that (i) the
Borrowers or the Administrative Agent has requested the Lenders to consent to a
departure or waiver of any provisions of the Loan Documents or to agree to any
amendment thereto, (ii) the consent, waiver or amendment in question
requires the agreement of all affected Lenders in accordance with the terms of Section 10.01
and (iii) the Required Lenders have agreed to such consent, waiver or
amendment, then any Lender who does not agree to such consent, waiver or
amendment shall be deemed a “Non-Consenting
Lender.”


 


SECTION 3.08.  Survival.  All of the Borrowers’
obligations under this Article 3 shall survive termination of the
Aggregate Commitments and repayment of all other Obligations hereunder.


 


ARTICLE 4


 


CONDITIONS
PRECEDENT


 


SECTION 4.01.  Conditions Precedent to Amendment and
Restatement.  The Existing
Credit Agreement shall be amended and restated in full as set forth herein on
the date (the “Amendment Closing Date”)
that the following conditions have been satisfied (or waived in writing):


 


(a)           The Administrative Agent’s
receipt of the following, each of which shall be originals or facsimiles or pdf
electronic copies (followed promptly by originals) unless otherwise specified,
each dated the Amendment Closing Date unless otherwise indicated, properly
executed by a Responsible Officer of the signing Loan Party and in form and
substance reasonably satisfactory to the Administrative Agent:


 


(i)            executed counterparts of
this Agreement;


 


(ii)           executed counterparts of
each Guaranty;


 


(iii)          a Note, or, with respect to
any Note issued prior to the Amendment Closing Date, a replacement Note,
executed by the relevant Borrower in favor of each Lender requesting a Note, if
any;


 


(iv)          the Security Agreement, duly
executed by each of the relevant Loan Parties;


 


(v)           a certificate of the
Borrowers signed by a Responsible Officer of each Borrower certifying that,
before and after giving effect to this Agreement, (i) the representations
and warranties contained in Article 5 and the other Loan Documents
are true and correct in all 


 


69

















 


material respects on and as
of the Amendment Closing Date, except to the extent that such representations
and warranties specifically refer to an earlier date, in which case they shall
have been true and correct in all material respects as of such earlier date, (ii) no
Default or Event of Default exists immediately before or immediately after
giving effect thereto, (iii) UHS and its Restricted Subsidiaries shall be
in Pro Forma Compliance with the financial covenant set forth in Section 7.11
as of (A) the Amendment Closing Date and (B) the last day of the most
recently ended determination period after giving Pro Forma Effect to the
Amendment Closing Date, the making of any Credit Extensions on the Amendment
Closing Date and any Investment or Disposition to be consummated in connection
therewith;


 


(vi)          a Request for Credit
Extension relating to the Credit Extensions to be made on the Amendment Closing
Date in accordance with the requirements hereof;


 


(vii)         an opinion of Weil Gotshal &
Manges LLP, special counsel to the Loan Parties in the form of Exhibit H,
addressed to each Agent and each Lender and in form and substance reasonably
satisfactory to the Administrative Agent;


 


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


 


(ix)           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 of such Loan Party 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


 


(x)            a certificate in the form of
Exhibit L hereto, attesting to the solvency of UHS, before and
after the Amendment Closing Date, from the chief financial officer of UHS on
behalf of UHS (the “Solvency Certificate”).


 


(b)           Since December 31,
2009, there shall not have occurred any event, circumstance or occurrence that,
either separately or together with all other such events, circumstances or
occurrences, that has had or could reasonably be expected to have, a Material
Adverse Effect.


 


(c)           The representations and
warranties contained in Article 5 shall be true and correct in all
material respects on and as of the Amendment Closing Date, except to the extent
that such representations and warranties specifically refer to an earlier date,
in which case they shall have been true and correct in all material respects as
of such earlier date.


 


(d)           No Default shall exist
before or after giving effect to the Amendment Closing Date, or would result
from any Credit Extension to be made on the Amendment Closing Date, or from the
application of the proceeds therefrom.


 


(e)           All fees and expenses
required to be paid hereunder or under the Existing Credit Agreement on or
before the Amendment Closing Date and invoiced (with reasonable supporting
documentation) and delivered to the Borrowers before the Amendment Closing Date
shall have been paid in full in cash.


 


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(f)            The Administrative Agent
shall have received all documentation and other information with respect to
each Loan Party required by regulatory authorities under applicable “know your
customer” and anti-money laundering rules and regulations, including without
limitation, the Patriot Act.


 


SECTION 4.02.  Conditions to All Credit Extensions After
the Amendment Closing Date.  The obligation
of each Lender to honor any Request for Credit Extension (other than in
connection with a Committed Loan Notice requesting only a conversion of Loans
to the other Type, or a continuation of Eurodollar Rate Loans) is subject to
satisfaction (or waiver) of the following conditions precedent:


 


(a)           The representations and
warranties of each Borrower and each other Loan Party contained in Article 5
or any other Loan Document shall be true and correct in all material respects
on and as of the date of such Credit Extension, except (i) 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) that for purposes of this Section 4.02,
the representations and warranties contained in Section 5.05(a) and
Section 5.05(b) shall be deemed to refer to the most recent
financial statements furnished pursuant to Section 6.01(a) and
Section 6.01(b) and, in the case of the financial statements
furnished pursuant to Section 6.01(b), the representations
contained in Section 5.05(a), as modified by this clause (ii),
shall be qualified by the statement that such financial statements are subject
to the absence of footnotes and year-end audit adjustments.


 


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


 


(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.


 


(d)           After giving effect to any
Credit Extension, the aggregate outstanding principal amount of the Revolving
Credit Loans shall not exceed the lesser of the Borrowing Base and the
Revolving Credit Commitments, in each case, less the then outstanding principal
amount of the Swing Line Loan and all L/C Outstandings.


 


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


 


ARTICLE 5


 


REPRESENTATIONS
AND WARRANTIES


 


Each of the Borrowers
represents and warrants to the Agents and the Lenders on the Closing Date, on
the Amendment Closing Date and on each other date required by Section 4.02
that:


 


SECTION 5.01.  Existence, Qualification and Power;
Compliance with Laws.  Each Loan Party
and each of its Restricted Subsidiaries (a) is a Person duly organized or
formed, validly existing and in good standing under the Laws of the
jurisdiction of its incorporation or organization, (b) has all requisite
corporate or other applicable entity power and authority 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, (c) is
duly qualified and 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, (d) is 


 


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in compliance with all Laws, writs,
injunctions and orders and (e) has all requisite governmental licenses, authorizations,
consents and approvals to operate its business as currently conducted; except
in each case referred to in clauses (a) (other than with respect to
any Borrower), (b)(i), (c), (d) or (e), to the
extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect.


 


SECTION 5.02.  Authorization; No Contravention.  The (a) execution,
delivery and performance by each Loan Party of each Loan Document to which such
Person is a party, and (b) as of the Closing Date only, the consummation
of the Transactions (other than the Transactions described in clause (a)),
are within such Loan Party’s corporate or other powers, have been duly
authorized by all necessary corporate or other organizational action, and do
not and will not (i) contravene the terms of any of such Person’s
Organization Documents, (ii) conflict with or result in any breach or
contravention of, or the creation of any Lien under (other than as permitted by
Section 7.01), or constitute a default under or require any payment
(except for Indebtedness to be repaid on or prior to the Closing Date or the
Amendment Closing Date, as applicable, in connection with the Transactions) to
be made under (x) (A) the Senior Notes Documents or the Senior
PIK/Toggle Note Documents or (B) any other Contractual Obligation to which
such Person is a party or affecting such Person or the properties of such
Person or any of its Subsidiaries or (y) any order, injunction, writ or
decree of any Governmental Authority or any arbitral award to which such Person
or its property is subject; or (iii) violate any Law (including, without
limitation, Regulation X issued by the FRB); except with respect to any
conflict, breach, contravention, default, payment (but not creation of Liens)
or violation referred to in clause (ii)(x)(B), clause (ii)(y) or
clause (iii), to the extent that such conflict, breach, contravention,
default, payment or violation could not reasonably be expected to have a
Material Adverse Effect.


 


SECTION 5.03.  Governmental Authorization; Other Consents.  No approval, consent,
exemption, authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is necessary or required in
connection with (a) the execution, delivery or performance by any Loan
Party of this Agreement or any other Loan Document, (b) the grant by any
Loan Party of the Liens granted by it pursuant to the Collateral Documents, (c) the
perfection or maintenance of the Liens created under the Collateral Documents
(including the priority thereof), or (d) the exercise by the
Administrative Agent or any Lender of its rights under the Loan Documents or
the remedies in respect of the Collateral pursuant to the Collateral Documents,
except for (i) filings necessary to perfect the Liens on the Collateral
granted by the Loan Parties in favor of the Secured Parties or to release
existing Liens in connection with the Transaction, (ii) the approvals,
consents, exemptions, authorizations, actions, notices and filings which have
been duly obtained, taken, given or made and are in full force and effect and (iii) those
approvals, consents, exemptions, authorizations or other actions, notices or
filings, the failure of which to obtain or make could not reasonably be
expected to have a Material Adverse Effect.


 


SECTION 5.04.  Binding Effect.  This Agreement and each
other Loan Document has been duly executed and delivered by each Loan Party
that is party thereto.  This Agreement
and each other Loan Document constitutes a legal, valid and binding obligation
of each Loan Party that is a party thereto, enforceable against such Loan Party
in accordance with its terms, except as such enforceability may be limited by
bankruptcy insolvency, reorganization, receivership, moratorium or other Laws
affecting creditors’ rights generally and by general principles of equity
(regardless of whether enforcement is sought in equity or at law).


 


SECTION 5.05.  Financial Statements; No Material Adverse
Effect.  (a)  The most recent
audited annual financial statements delivered to the Administrative Agent
pursuant to Section 6.01(a) fairly present in all material
respects the financial condition of UHS and its Subsidiaries as of the date
thereof and their results of operations for the period covered thereby in
accordance with GAAP or the equivalent accounting principles in the relevant
local jurisdiction consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein.


 


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(b)           In the case of the Amendment
Closing Date, since December 31, 2009 and, in all other cases, since the
date of the most recent audited financial statements delivered to the
Administrative Agent pursuant to Section 6.01(a), there has been no
material adverse change in, or event or condition, either individually or in
the aggregate, that has had or could reasonably be expected to have a material
adverse effect on the business, operations, assets, financial condition or
operating results of the Borrowers and their Restricted Subsidiaries, taken as
a whole.


 


(c)           Except as set forth on
Schedule 3.6 to the Merger Agreement, as of the Closing Date, UHS has no
material liabilities or obligations of any nature (whether known or unknown,
absolute, accrued, contingent, matured or unmatured), except for (i) liabilities
and obligations reflected on the Historical Financial Statements, (ii) liabilities
and obligations that have been incurred in the Ordinary Course of Business (as
defined in the Merger Agreement) since December 31, 2006, (iii) liabilities
and obligations for fees and expenses incurred in connection with the Merger
Agreement and the transactions contemplated thereby, (iv) liabilities and
obligations that would not reasonably be expected to have a Target Material Adverse
Effect.


 


(d)           The forecasts of
consolidated income statement and cash flow statement of UHS and its
Subsidiaries for each fiscal year ending after the Closing Date until the
fourth anniversary of the Closing Date, copies of which have been furnished to
the Administrative Agent and the Lenders prior to the Closing Date, were
prepared in good faith based upon assumptions believed to be reasonable at the
time made in light of the conditions existing at the time of preparation of
such forecasts and represented, at the time of preparation, UHS’s reasonable
estimate of its future financial performance, it being understood that (i) such
forecasts, as to future events, are not to be viewed as facts, that actual
results during the period or periods covered by any such forecasts may differ
significantly from the forecasted results and that such differences may be
material and that such forecasts are not a guarantee of financial performance
and (ii) no representation is made with respect to information of a general
economic or general industry nature.


 


SECTION 5.06.  Litigation.  Except (insofar as clause (b) below
is concerned) as disclosed on Schedule 5.06 (the “Disclosed Litigation”), there are no
actions, suits, proceedings, claims or disputes pending or, to the actual
knowledge of any Specified Officer of the Borrower, threatened in writing, at
law, in equity, in arbitration or before any Governmental Authority, against
any Borrower or any of its Subsidiaries or against any of their properties or
revenues that (a) purport to restrain or contest entry into or performance
under this Agreement or any other Loan Document or the consummation of the
Transactions or (b) either individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect, and there has been no
materially adverse change in the status, or financial effect on any Loan Party
or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule
5.06 hereto.


 


SECTION 5.07.  Ownership of Property; Liens.  (a)  Each Loan Party
and each of its Subsidiaries, as applicable, has good and marketable title in
fee simple to, or valid leasehold interests in, or easements or other limited
property interests in, all real property necessary in the ordinary conduct of
its business, free and clear of all Liens except for Permitted Liens and such
minor defects in title that do not materially interfere with its ability to
conduct its business or to utilize such assets for their intended purposes and
except where the failure to have such title or other property interests
described above could not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect.


 


(b)           Schedule 7.01(b) sets
forth a list of all Liens on the property and assets of each Loan Party and
each of its Subsidiaries that is complete and accurate in all material
respects, showing as of the Amendment Closing Date the lienholder thereof, the
principal amount of the obligations secured thereby and the property or assets
of such Loan Party or such Subsidiary subject thereto.  The property of each 


 


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Loan Party and each of its Subsidiaries is subject
to no Liens, other than Liens set forth on Schedule 7.01(b), and as
otherwise permitted by Section 7.01.


 


(c)           Schedule 5.07(c) sets
forth a complete and accurate list of all real property owned by any Loan Party
or any of its Restricted Subsidiaries, as of the Amendment Closing Date,
showing as of such date the street address (to the extent available), county or
other relevant jurisdiction, state and record owner and book and estimated fair
value thereof.  Each Loan Party has good
and marketable title to the real property owned by such Loan Party, free and
clear of all Liens, other than Liens created or permitted by the Loan
Documents.


 


(d)           Schedule 7.02(f) sets
forth a list of all Investments held by any Loan Party or any Restricted
Subsidiary of a Loan Party that is complete and accurate in all material
respects, as of the Amendment Closing Date, showing as of the date hereof the
amount, obligor or issuer and maturity, if any, thereof.


 


SECTION 5.08.  Environmental Compliance.  Except as set forth on Schedule
5.08 hereof:


 


(a)  There are no
actions, suits, proceedings, demands or claims alleging potential liability or
responsibility for violation of, or liability under, any Environmental Law
received by, and relating to businesses, operations or properties of, any Loan
Party or its Subsidiaries except for matters (x) disclosed on Schedule
5.08 hereto, which are not expected to result in material liability to any
Loan Party, or (y) that could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.


 


(b)           Except for matters (x) disclosed
on Schedule 5.08 hereto, which are not expected to result in material
liability to any Loan Party, or (y) that could not reasonably be expected
to have a Material Adverse Effect, (i) none of the properties currently
or, to the actual knowledge of any Specified Officer of the Borrower, formerly
owned, leased or operated by any Loan Party or any of its Subsidiaries, or, to
the actual knowledge of any Specified Officer of the Borrower, to which any
Loan Party or any of its Subsidiaries sent any Hazardous Materials for
disposal, is listed on the NPL or on the CERCLIS or any analogous foreign,
state or local list; (ii) there are no and, to the actual knowledge of any
Specified Officer of the Borrower, never have been any underground or
aboveground storage tanks or any surface impoundments, septic tanks, pits,
sumps or lagoons in which Hazardous Materials are being or have been
discharged, treated, stored or disposed on, at or under any property currently
owned or operated by any Loan Party or any of its Subsidiaries or, to its
knowledge, on, at or under any property formerly owned, leased or operated by
any Loan Party or any of its Subsidiaries during or prior to the period of such
ownership or operation; (iii) there is no asbestos or asbestos-containing
material on or at any property currently owned or operated by any Loan Party or
any of its Subsidiaries; and (iv) Hazardous Materials have not been
released, discharged or disposed of on, at or under any property currently or
to the actual knowledge of any Specified Officer of the Borrower formerly owned
or operated by any Loan Party or any of its Subsidiaries, except for such
releases, discharges or disposal that were in compliance with Environmental
Laws.


 


(c)           The Loan Parties’ operations
are in compliance with all Environmental Laws and all Environmental Permits,
except for such noncompliance which, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect.


 


(d)           None of the Loan Parties or
any of their respective Subsidiaries is undertaking, and has not completed,
either individually or together with other potentially responsible parties, any
investigation or assessment or remedial or response action relating to any
actual or threatened release, discharge or disposal of Hazardous Materials at any
site, location or operation, either voluntarily or pursuant to the 


 


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order of any Governmental Authority or the
requirements of any Environmental Law except for any such investigation or
assessment or remedial or response action that, (x) is disclosed on Schedule
5.08 hereto, which is not expected to result in material liability to any
Loan Party, or (y) individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect.


 


(e)           No Hazardous Materials
generated, used, treated, handled or stored at, or transported to or from, any
property currently or to the actual knowledge of any Specified Officer of the
Borrower formerly owned or operated by any Loan Party or any of its
Subsidiaries have been disposed of by or on behalf of any Loan Party or any of
its Subsidiaries, except for such disposal (x) that could reasonably be
expected to result in, individually or in the aggregate, a Material Adverse
Effect, or (y) disclosed on Schedule 5.08 hereto, which are not
expected to result in material liability to any Loan Party.


 


This Section 5.08
sets forth the sole and exclusive representations and warranties of the Loan
Parties with respect to environmental, health or safety matters.


 


SECTION 5.09.  Taxes. 
The Loan Parties have filed all Federal and state income and other
material tax returns and reports required to be filed (after giving effect to
permitted extension periods), and have paid all Federal and state income 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 (a) which are not overdue by more than sixty (60)
days or (b) which are being contested in good faith by appropriate
proceedings diligently conducted and for which adequate reserves have been
provided in accordance with GAAP or the equivalent accounting principles in the
relevant local jurisdiction or (c) with respect to which the failure to
make such filing or payment could not reasonably be expected to have a Material
Adverse Effect.


 


SECTION 5.10.  ERISA Compliance.  (a)  Except as could
not reasonably be expected to have a Material Adverse Effect, (i) each
Pension Plan is in compliance in all material respects with the applicable
provisions of ERISA and the Code; and (ii) each Pension Plan that is
intended to qualify under Section 401(a) of the Code has either
received a favorable determination letter from the IRS or an application for such
a letter has been or will be submitted to the IRS within the applicable
required time period with respect thereto and, to the knowledge of any
Specified Officer of the Borrower, nothing has occurred which could reasonably
be expected to prevent, or cause the loss of, such qualification.


 


(b)           Except as set forth on Schedule
5.10(b), as of the Amendment Closing Date there are no pending or, to the
knowledge of any Specified Officer of the Borrower, threatened claims, actions
or lawsuits, or action by any Governmental Authority, with respect to any
Pension Plan that could reasonably be expected to have a Material Adverse
Effect.  To the knowledge of any
Specified Officer of the Borrower, there has been no prohibited transaction or
violation of the fiduciary responsibility rules with respect to any
Pension Plan that has resulted or could reasonably be expected to result in a
Material Adverse Effect.


 


(c)           Except as set forth on Schedule
5.10(c), (i) no ERISA Event has occurred or is reasonably expected to
occur; (ii) no Pension Plan has an “accumulated funding deficiency” (as
defined in Section 412 of the Code), whether or not waived, and no
application for a waiver of the minimum funding standard has been filed with
respect to any Pension Plan; (iii) none of the Borrowers or any ERISA
Affiliate has incurred, or reasonably expects to incur, any liability under
Title IV of ERISA with respect to any Pension Plan (other than premiums not yet
due or premiums due and not yet delinquent under Section 4007 of ERISA); (iv) none
of the Borrowers or any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability (and no event has occurred which, with the giving of
notice under Section 4219 of ERISA, would result in such liability) under
Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v) none
of the Borrowers or any ERISA Affiliate has engaged in a transaction 


 


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that could be subject to Sections 4069 or 4212(c) of
ERISA, except, with respect to each of the foregoing clauses of this Section 5.10(c),
as could not reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect.


 


SECTION 5.11.  Subsidiaries; Equity Interests.  As of the Amendment Closing Date,
no Loan Party has any Subsidiaries other than those specifically disclosed in Schedule
5.11, and all of the outstanding Equity Interests in each Restricted
Subsidiary are fully paid and with respect to corporate shares, nonassessable
and are owned directly by the Person set forth on Schedule 5.11 and are
free and clear of all Liens except (i) those created under the Collateral
Documents and (ii) any nonconsensual Lien that is permitted under Section 7.01.  As of the Amendment Closing Date, Schedule
5.11 (a) sets forth the name and jurisdiction of each Subsidiary, and (b) sets
forth the direct ownership interest of the Borrowers and any other Subsidiary
in each Subsidiary, including the percentage of such ownership.  As of the Amendment Closing Date, the
Subsidiary named on Schedule 5.11 has no material assets.


 


SECTION 5.12.  Margin Regulations; Investment Company Act.  (a)  No proceeds of any
Borrowings or drawings under any Letter of Credit will be used to purchase or
carry any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock in violation of Regulation U issued by
the FRB.


 


(b)           None of the Borrowers, any
Person Controlling the Borrowers, or any Subsidiary is or is required to be
registered as an “investment company” under the Investment Company Act of
1940.  Neither the making of any Loans,
nor the issuance of any Letters of Credit, nor the application of the proceeds
or repayment thereof by the Borrowers, nor the consummation of the other
transactions contemplated by the Related Documents will violate any provision
of the Securities Act or any rule, regulation or order of the SEC thereunder.


 


SECTION 5.13.  Disclosure.  To the actual knowledge of
the Specified Officers of the Borrowers, no report, financial statement,
certificate or other written information furnished by or on behalf of any Loan
Party to any Agent or any Lender in connection with the transactions
contemplated hereby and the negotiation of this Agreement or delivered
hereunder or any other Loan Document (as modified or supplemented by other
information so furnished), including without limitation, the Confidential
Memorandum, when taken as a whole contains any material misstatement of fact or
omits to state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not materially
misleading; provided that, (a) with
respect to financial estimates, projected financial information and other
forward-looking information, each Borrower represents and warrants only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time of preparation; it being understood that such
projections, as to future events, are not to be viewed as facts, that actual
results during the period or periods covered by any such projections may differ
significantly from the projected results and that such differences may be
material and that such projections are not a guarantee of financial performance
and (b) no representation is made with respect to information of a general
economic or general industry nature.


 


SECTION 5.14.  Intellectual Property, Licenses, Etc.  Schedule 5.14 sets forth a
complete and accurate list of all registered, patented or applied for Material
Intellectual Property on the Amendment Closing Date, owned by each Loan Party
and its Subsidiaries, showing as of the Amendment Closing Date the jurisdiction
in which each such Material Intellectual Property is registered, the
registration or application serial number, if applicable, and the date of
registration, if applicable.  Each Loan
Party and its Restricted Subsidiaries own, or possess a license or other right
to use, all of the material trademarks, service marks, trade names, copyrights,
patents, patent rights, database rights and design rights and other
intellectual property rights (collectively, “IP
Rights”) that are reasonably necessary for the operation of their
respective businesses as currently operated by each Loan Party and its 


 


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Restricted Subsidiaries without, to the
knowledge of a Specified Officer of the Borrower, conflict with the rights of
any other Person, except to the extent such failure to own or possess the right
to use or such conflicts, either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.  To the knowledge of the Specified Officers of
the Borrower, no trademarks, servicemarks, copyrights, logos, designs, slogans
or other advertising devices, products, processes, methods, substances, part or
other material, as currently used or employed by any Loan Party or any
Restricted Subsidiary, infringes upon any rights held by any other Person
except for such infringements, individually or in the aggregate, which could
not reasonably be expected to have a Material Adverse Effect.  No claim or litigation regarding any of the
foregoing is pending or, to the actual knowledge of any Specified Officer of
the Borrower, threatened, against any Loan Party which, either individually or
in the aggregate, could reasonably be expected to have a Material Adverse
Effect.


 


SECTION 5.15.  Solvency.  On the Amendment Closing
Date after giving effect to the transactions contemplated by this Agreement, the
Loan Parties have certified, on a consolidated basis, as to solvency in
accordance with the Solvency Certificate.


 


SECTION 5.16.  Perfection, Mortgages, Etc.  All filings and other actions reasonably necessary
to perfect and protect the Liens on the Collateral created under, and in the
manner and to the extent contemplated by, the Collateral Documents have been
duly made or taken or otherwise provided for in a manner reasonably acceptable
to Administrative Agent and are in full force and effect and the Collateral
Documents create in favor of the Administrative Agent for the benefit of the
Secured Parties a valid and, together with such filings and other actions,
perfected first priority Lien in the Collateral, securing the payment of the
Secured Obligations, subject to Liens permitted by Section 7.01.  The Loan Parties are the legal and beneficial
owners of the Collateral free and clear of any Lien, except for the Liens
created or permitted under the Loan Documents or defects in title described on
the schedules to the Loan Documents. 
Each Mortgage (if any) creates, as security for the obligations
purported to be secured thereby, a valid and enforceable first mortgage Lien on
the respective Property in favor of the Administrative Agent (or such other
trustee as may be required under local law) for the benefit of the Secured
Parties, superior and prior to the rights of all third Persons, except for the
Liens created or permitted under the Loan Documents.


 


SECTION 5.17.  Compliance with Laws Generally.  None of the Loan Parties or
any of their respective material properties, or the use of such material
properties, is in violation of any applicable Law, or is in default with
respect to any judgment, writ, injunction, decree or order of any Governmental
Authority, except for such violations or defaults (other than any violations of
the PATRIOT Act and other counter-terrorism laws) that (a) are being
contested in good faith by appropriate proceedings or (b) individually or
in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect.


 


SECTION 5.18.  Labor Matters.  As of the Amendment Closing
Date, except as in the aggregate has not had and could not reasonably be
expected to have a Material Adverse Effect, there are no strikes, lockouts or
slowdowns against any Loan Party pending or, to the knowledge of any
Responsible Officer of the Borrower, threatened.


 


SECTION 5.19.  Debt. 
Schedule 7.03(b)(viii) sets forth a list that
is complete and accurate in all material respects of all Existing Indebtedness
of each Loan Party and its Restricted Subsidiaries existing on the Amendment
Closing Date.


 


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ARTICLE 6


 


AFFIRMATIVE
COVENANTS


 


So long as any Lender shall
have any Revolving Credit Commitment hereunder, any Loan or other Obligation
(other than contingent indemnification obligations not then due and payable)
hereunder which is accrued and payable shall remain unpaid or unsatisfied, or
any Letter of Credit that has not been collateralized on terms reasonably
satisfactory to the applicable L/C Issuer shall remain outstanding, each of the
Borrowers shall, and shall (except in the case of the covenants set forth in Section 6.01,
Section 6.02, Section 6.03, Section 6.16, Section 6.17
and Section 6.18) cause each Restricted Subsidiary to:


 


SECTION 6.01.  Financial Statements.  Deliver to the
Administrative Agent for further distribution to each Lender:


 


(a)           as soon as available, but in
any event within one hundred twenty (120) days after the end of each fiscal
year, a consolidated balance sheet of UHS and its Subsidiaries as at the end of
such fiscal year, and the related consolidated statements of income or
operations, shareholders’ equity and cash flows for such fiscal year, setting
forth in each case in comparative form the figures for the previous fiscal
year, all in reasonable detail and prepared in accordance with GAAP, audited
and accompanied by a report and opinion of PricewaterhouseCoopers LLP or any
other independent certified public accountant of nationally recognized
standing, which report and opinion shall be prepared in accordance with
generally accepted auditing standards and shall not be subject to any “going
concern” or like qualification or exception or any qualification or exception
as to the scope of such audit;


 


(b)           as soon as available, but in
any event within sixty (60) days after the end of each fiscal quarter,
excluding, in each case, the fourth fiscal quarter, a consolidated balance
sheet of UHS and its Subsidiaries as at the end of such fiscal quarter, and the
related consolidated statements of income or operations, shareholders’ equity
and cash flows for such fiscal quarter and for the portion of the fiscal year
then ended, setting forth in each case in comparative form 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
a Responsible Officer of UHS as fairly presenting in all material respects the
financial condition, results of operations, shareholders’ equity and cash flows
of UHS and its Subsidiaries in accordance with GAAP, subject only to normal
year-end audit adjustments and the absence of footnotes; and


 


(c)           as soon as available, but in
any event no later than ninety (90) days after the end of each fiscal year,
forecasts prepared by management of UHS, in form reasonably satisfactory to the
Administrative Agent, of consolidated balance sheets, income statements and
cash flow statements and Borrowing Availability projections of UHS and its
Subsidiaries for the fiscal year following such fiscal year then ended.


 


(d)           simultaneously with the
delivery of each set of consolidated financial statements referred to in Section 6.01(a) and
Section 6.01(b) above, the related consolidating balance sheet
and the related consolidating statements of income or operations reflecting the
adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries
(if any) from such consolidated financial statements.


 


(e)           upon Administrative Agent’s
request at any time Borrowing Availability is less than $3,000,000, and in any
event no less frequently than 5 Business Days after the end of each fiscal
month (together with a copy of all or any part of the following reports requested
by any Lender in writing after the Closing Date), a Borrowing Base Certificate
prepared by the Borrowers as of the last day of the fiscal month immediately
preceding the most recently ended fiscal month or the date 2 days prior to the
date of 


 


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any such request, based on the most recently
available information, accompanied by such supporting detail and documentation
as shall be reasonably requested by Administrative Agent.  Notwithstanding anything to the contrary set
forth herein or Exhibit K hereto, if on the date of delivery of any
Borrowing Base Certificate the Total Outstandings do not exceed the Borrowing
Base without giving effect to clauses (a) and (b) of the definition
thereof, Borrowers may deliver such Borrowing Base Certificate without
calculating the amount of Eligible Accounts, Eligible Unbilled Accounts,
Eligible Wholesale Disposables and Eligible Equipment Disposables (each, a “Alternative Borrowing Base Certificate”).  For the avoidance of doubt, if the Borrowers
elect to deliver an Alternative Borrowing Base Certificate, the Borrowers
acknowledge that the Borrowing Base and Borrowing Availability will be
determined for all purposes under the Loan Documents on the basis of such
Alternative Borrowing Base Certificate, regardless of the amount and existence
of Eligible Accounts and Eligible Unbilled Accounts.


 


(f)            at the time of delivery of
each of the quarterly financial statements delivered pursuant to Section 6.01(b),
a list of any applications for the registration of any Patent, Trademark or
Copyright filed by any Loan Party with the United States Patent and Trademark
Office, the United States Copyright Office or any similar office or agency in
the prior fiscal quarter.


 


(g)           at Borrowers’ expense, the
results of each physical verification, if any, that any Borrower or any of its
Subsidiaries may in their discretion have made, or caused any other Person to
have made on their behalf, of all or any portion of their Inventory (and, each
Borrower shall upon the request of Administrative Agent, up to one time in any
calendar year absent the occurrence and continuance of an Event of Default, and
at any time if an Event of Default has occurred and is continuing, conduct, and
deliver the results of, such physical verifications as Administrative Agent may
require).


 


(h)           at Borrowers’ expense, such
appraisals of its assets as Administrative Agent may request up to one time in
any calendar year absent the occurrence and continuance of an Event of Default,
and at any time after the occurrence and during the continuance of an Event of
Default, such appraisals to be conducted by an appraiser, and in form and
substance reasonably satisfactory to Administrative Agent.


 


(i)            such other reports,
statements and reconciliations with respect to the Borrowing Base, Collateral
or Obligations of any or all Credit Parties as Administrative Agent shall from
time to time reasonably request, including without limitation a monthly trial
balance with respect to Accounts; provided
that Administrative Agent shall not request calculation of a Borrowing Base
Certificate that gives effect to clauses (a) and (b) of the Borrowing
Base for any period for which the Borrowers have delivered an Alternative
Borrowing Base Certificate in compliance with Section 6.01(e).


 


SECTION 6.02.  Certificates; Other Information.  Deliver to the
Administrative Agent for further distribution to each Lender:


 


(a)           (i) concurrently with
the delivery of the financial statements referred to in Section 6.01(a) and
Section 6.01(b) for a quarter during which Borrowing
Availability was less than $15,000,000 for three (3) consecutive days, a
duly completed Compliance Certificate signed by a Responsible Officer of UHS
(which shall set forth reasonably detailed calculations demonstrating
compliance with Section 7.11 and (ii) at any time on or after
the tenth (10th) day prior to the last day of any fiscal quarter, the Equity
Investors may deliver notice of their intent to provide UHS with Net Cash
Proceeds (a “Notice of Intent to Make An
Equity Infusion”) through capital contributions or the purchase of
Equity Interests by one or more Equity Investors as contemplated pursuant to clause
(b)(xiii) and the final proviso of the definition of “Consolidated EBITDA”;
provided that the delivery of a
Notice of Intent to Make An Equity Infusion shall in no way affect or alter the
occurrence, existence or continuation of any such Event of Default or the
rights, benefits, powers and remedies of the Administrative Agent and the Lenders
under any Loan Document; provided
further that from the date of
receipt of such Notice of Intent to Make an 


 


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Equity Infusion by the Administrative Agent until
the 20th Business Day following the delivery of the
Compliance Certificate, neither the Administrative Agent nor any Lender shall
exercise any right to foreclose on or take possession of the Collateral solely
on the basis of an Event of Default having occurred and being continuing under Section 7.11;


 


(b)           promptly after the same are
publicly available, copies of all annual, regular, periodic and special reports
and registration statements which any Borrower or any Restricted Subsidiary
filed with the SEC under Section 13 or 15(d) of the Securities
Exchange Act of 1934, or with any Governmental Authority that may be
substituted therefor, or with any national securities exchange, and in any case
not otherwise required to be delivered to the Administrative Agent pursuant
hereto;


 


(c)           promptly after the
furnishing thereof, copies of any material requests or material notices
received by any Loan Party (other than in the ordinary course of business)
from, or material statement or material report furnished to, any holder of debt
securities of any Loan Party or of any of its Restricted Subsidiaries pursuant
to the terms of any Junior Financing Documentation in a principal amount
greater than the Threshold Amount and not otherwise required to be furnished to
the Lenders pursuant to any other clause of this Section 6.02;


 


(d)           promptly after the receipt
thereof by any Loan Party or any of its Subsidiaries, copies of each notice or
other written correspondence received from the SEC (or comparable agency in any
applicable non-US jurisdiction) concerning any material investigation or other
material inquiry by such agency regarding financial or other operational
results of any Loan Party or any of its Subsidiaries;


 


(e)           promptly after any Borrower
has notified the Administrative Agent of any intention by such Borrower to
treat the Loans and/or Letters of Credit and related transactions as being a
“reportable transaction” (within the meaning of Treasury Regulation Section 1.6011-4),
a duly completed copy of IRS Form 8886 or any successor form; and


 


(f)            promptly, such additional
information regarding the business, legal, financial or corporate affairs of
any Loan Party or any Subsidiary, or compliance with the terms of the Loan
Documents, as the Administrative Agent or any Lender through the Administrative
Agent may from time to time reasonably request. 
No Loan Party shall be required to provide the Administration Agent with
access to patient information of any customer or employee of any Loan Party or
any Subsidiary thereof.


 


Documents required to be
delivered pursuant to Section 6.01(a), Section 6.01(b),
Section 6.02(b) or Section 6.02(c) (to the
extent any such documents are included in materials otherwise filed with the
SEC) may be delivered electronically and if so delivered, shall be deemed to
have been delivered on the date (i) on which any Borrower posts such
documents, or provides a link thereto on such Borrower’s website on the
Internet at the website address listed on Schedule 10.02; or (ii) on
which such documents are posted on the Borrowers’ behalf on IntraLinks/IntraAgency
or another relevant 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: (A) upon the request of the Administrative
Agent, the Borrowers shall deliver paper copies of such documents to the
Administrative Agent for further distribution to each Lender and (B) the
Borrowers shall notify (which may be by facsimile or electronic mail) the
Administrative Agent 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.  Except for Compliance Certificates, the
Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the documents referred to above, and in any event shall have
no responsibility to monitor compliance by the Borrowers with any such request
for delivery, and each Lender shall be solely responsible for requesting
delivery of or maintaining its copies of such documents.


 


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SECTION 6.03.  Notices.  As soon as practicable after
any Specified Officer of the Borrower has knowledge, promptly notify the
Administrative Agent:


 


(a)           of the occurrence of any
Default;


 


(b)           of any matter that has
resulted or could in the reasonable judgment of any Loan Party reasonably be
expected to result in a Material Adverse Effect, including any such matter
arising out of or resulting from (i) breach or non-performance of, or any
default under, a Contractual Obligation of any Loan Party or any Restricted
Subsidiary, (ii) any dispute, litigation, investigation, proceeding or
suspension between any Loan Party or any Subsidiary and any Governmental
Authority, (iii) the commencement of, or any material adverse development
in, any litigation or proceeding affecting any Loan Party or any Subsidiary,
including pursuant to any applicable Environmental Laws or the assertion or
occurrence of any alleged noncompliance by any Loan Party or as any of its
Subsidiaries with any Environmental Law or Environmental Permit, or (iv) the
occurrence of any ERISA Event;


 


(c)           if Borrowing Availability is
less than $15,000,000; and


 


(d)           of any notice provided to or
by any trustee with respect to the Senior Notes Documents or the Senior
PIK/Toggle Notes Documents, attaching thereto a true and correct copy of any
such notice.


 


Each notice pursuant to this
Section 6.03 shall be accompanied by a written statement of a
Responsible Officer of UHS (x) that such notice is being delivered
pursuant to Section 6.03(a), Section 6.03(b) or Section 6.03(c) (as
applicable) and (y) setting forth details of the occurrence referred to
therein and (other than in the case of a notice pursuant to Section 6.03(c),
stating what action the Borrowers or the applicable Loan Party has taken and
proposes to take with respect thereto. 
Each notice pursuant to Section 6.03(a) shall describe
with particularity any and all provisions of this Agreement and any other Loan
Document in respect of which such Default exists.


 


SECTION 6.04.  Payment of Obligations.  Pay, discharge or otherwise
satisfy as the same shall become due and payable, all its obligations and
liabilities except, in each case, to the extent the failure to pay or discharge
the same could not reasonably be expected to have a Material Adverse Effect.


 


SECTION 6.05.  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 7.04 or Section 7.05, and, in the
case of any Restricted Subsidiary (other than a Borrower) to the extent the
failure to do so could not reasonably be expected to have a Material Adverse
Effect, and (b) take all reasonable action to maintain all rights,
privileges (including its good standing), permits, licenses, Material
Intellectual Property Rights and franchises necessary in the normal conduct of
its business, except (i) to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect or (ii) pursuant
to a transaction permitted by Section 7.04 or Section 7.05.


 


SECTION 6.06.  Maintenance of Properties.  Except if the failure to do
so could not reasonably be expected to have a Material Adverse Effect, (a) maintain,
preserve and protect all of its material tangible properties and equipment
necessary in the operation of its business in good working order, repair and
condition, ordinary wear and tear, casualty and condemnation excepted, and (b) make
all necessary renewals, replacements, modifications, improvements, upgrades,
extensions and additions thereof or thereto in accordance with prudent industry
practice or in the reasonable judgment of management.


 


SECTION 6.07.  Maintenance of Insurance.  Maintain with financially
sound and reputable insurance companies, insurance with respect to its
properties and business against loss or 


 


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damage of the kinds customarily insured
against by Persons engaged in the same or similar business, of such types and
in such amounts (after giving effect to any self-insurance reasonable and
customary for similarly situated Persons engaged in the same or similar
businesses as the Borrowers and their Restricted Subsidiaries in the same
geographic locales) as are customarily carried under similar circumstances by
such other Persons, including, without limitation, casualty insurance with
respect to the Collateral in form and substance not materially less than that
in effect on the Closing Date.  If
reasonably requested by the Administrative Agent, each Loan Party shall deliver
to the Administrative Agent from time to time (no more frequently than once in
any calendar year unless an Event of Default has occurred and is continuing) a
report of its insurance broker with respect to its insurance policies.


 


SECTION 6.08.  Compliance with Laws.  Comply in all material
respects with the requirements of all Laws and all orders, writs, injunctions
and decrees applicable to it or to its business or property, except if the
failure to comply therewith (other than the PATRIOT Act, any other
counter-terrorism laws and the Racketeer Influenced and Corrupt Organizations
Chapter of the Organized Crime Control Act of 1970) could not reasonably be
expected to have a Material Adverse Effect.


 


SECTION 6.09.  Books and Records.  Maintain proper books of
record and account (in which full, true and correct, in all material respects,
entries shall be made of all material financial transactions and matters
involving the assets and business of the Borrowers and the Subsidiaries) in a
manner that permits the preparation of financial statements in accordance with
GAAP or the equivalent accounting principles in the relevant local
jurisdiction.


 


SECTION 6.10.  Inspection Rights.  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 (so long as an executed standard access letter of such independent
public accountants is received from the Administrative Agent) and to examine
and make extracts from its books and records, all at such reasonable times and
as often as reasonably requested, all at the expense of the Borrowers as
provided below and at such reasonable times during normal business hours and as
often as may be reasonably desired, upon reasonable advance notice to the
Borrowers and the applicable Loan Party; provided
that, excluding any such visits and inspections during the continuation of an
Event of Default, only the Administrative Agent on behalf of the Lenders may
exercise rights under this Section 6.10 and the Administrative
Agent shall not exercise such rights more often than one (1) time during
any calendar year absent the existence and continuance of an Event of Default
and only at such time shall it be at the Borrowers’ expense; provided further that when an Event of
Default has occurred and is continuing the Administrative Agent or any such
Lender (or any of their respective representatives or independent contractors)
may do any of the foregoing at the expense of the Borrowers at any time during
normal business hours and upon reasonable advance notice.  The Administrative Agent and the Lenders
shall give the Borrowers the opportunity to participate in any discussions with
the Borrowers’ accountants provided that no Loan Party shall be required to
provide the Administration Agent with access to patient information of any
customer or employee of any Loan Party or any Subsidiary thereof.


 


SECTION 6.11.  Use of Proceeds.  Use the proceeds of the
Credit Extensions (i) to finance in part the Acquisition, (ii) to pay
fees and expenses incurred in connection with the Transactions, (iii) to
provide ongoing working capital and for other general corporate purposes of the
Borrowers and their Subsidiaries (including Permitted Acquisitions and Capital
Expenditures), and (iv) to make repayments and/or purchases of
Indebtedness to the extent not prohibited by Section 7.14.


 


SECTION 6.12.  Covenant to Guarantee Obligations and Give
Security.  (a) Upon (A) the
formation or acquisition of any new direct or indirect Restricted Subsidiary by
any Loan Party or the 


 


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designation in accordance with Section 6.16
of any existing direct or indirect Unrestricted Subsidiary as a Restricted
Subsidiary, or (B) any Restricted Subsidiary Guaranteeing any Permitted
Subordinated Indebtedness, the Borrowers shall, in each case at the Borrowers’
expense; provided that,
notwithstanding the foregoing, this Section 6.12 shall not apply to
any Subsidiary to the extent that such Subsidiary is prohibited by applicable
local Laws from taking any such action:


 


(i)            within thirty (30) days
after such formation, acquisition, designation or Guarantee (or such longer
period as the Administrative Agent may agree in its reasonable discretion):


 


(A)          cause each such
Restricted Subsidiary that is a material Domestic Subsidiary to duly execute
and deliver to the Administrative Agent a Guaranty or guaranty supplement, in
form and substance reasonably satisfactory to the Administrative Agent,
Guaranteeing the Obligations of the Borrowers and a joinder agreement, in form
and substance reasonably satisfactory to the Administrative Agent, whereby such
Person acknowledges and agrees to the terms of the Intercreditor Agreement;


 


(B)           cause each such
Restricted Subsidiary that is required to become a Guarantor pursuant to Section 6.12(a)(i)(A) to
furnish to the Administrative Agent a description of any Material Real Property
owned by such Restricted Subsidiary in detail reasonably satisfactory to the
Administrative Agent;


 


(C)           cause each such
Restricted Subsidiary that is required to become a Guarantor pursuant to Section 6.12(a)(i)(A),
to duly execute and deliver to the Administrative Agent Mortgages with respect
to Material Real Property, Security Agreement Supplements, Intellectual
Property Security Agreements and other Collateral Documents, as specified by,
and in form and substance reasonably satisfactory to the Administrative Agent
(consistent with the Mortgages, Security Agreements, Intellectual Property
Security Agreement and other Collateral Documents in effect on the Amendment
Closing Date), granting a Lien in substantially all personal property (other
than Equity Interests in any Subsidiary or a Joint Venture) of such Restricted
Subsidiary and all Material Real Property, in each case securing the
Obligations of such Restricted Subsidiary under its Guaranty; provided that, unless an Event of Default
has occurred and is continuing, if UHS notifies the Administrative Agent that
it intends to sell such Material Real Property within one year of the time such
Mortgage would otherwise be required to be executed and delivered, such
Material Real Property shall not be required to be mortgaged until such period
expires (unless extended by the Administrative Agent in its discretion);


 


(D)          cause each such
Restricted Subsidiary that is required to become a Guarantor pursuant to Section 6.12(a)(i)(A) to
deliver any and all instruments, if any, evidencing the intercompany debt held
by such Restricted Subsidiary, if any, indorsed in blank to the Administrative
Agent or accompanied by other appropriate instruments of transfer;


 


(E)           take and cause
such Restricted Subsidiary to take whatever action (including the recording of
Mortgages with respect to Material Real Property, the filing of Uniform
Commercial Code financing statements, and delivery of certificates evidencing
stock and membership interests) as may be necessary in the reasonable opinion
of the Administrative Agent to vest in the Administrative Agent (or in any
representative of the Administrative Agent designated by it) valid and
subsisting Liens on 


 


83

















 


the
properties purported to be subject to the Mortgages and the other Collateral
Documents delivered pursuant to this Section 6.12, enforceable
against all third parties in accordance with their terms,


 


(ii)           within thirty (30) days
after the reasonable request therefor by the Administrative Agent, deliver to
the Administrative Agent a signed copy of a customary legal opinion, addressed to
the Administrative Agent and the other Secured Parties, of counsel for the Loan
Parties reasonably acceptable to the Administrative Agent as to such matters
set forth in this Section 6.12(a) as the Administrative Agent
may reasonably request, and


 


(iii)          as promptly as practicable
after the request therefor by the Administrative Agent, deliver to the
Administrative Agent with respect to Material Real Property owned by such
Restricted Subsidiary that is the subject of such request, title reports in
scope, form and substance reasonably satisfactory to the Administrative Agent
and, to the extent available, surveys and environmental assessment reports.


 


(b)           Upon the acquisition of (x) any
personal property by any Loan Party or (y) Material Real Property by any
Loan Party, if such property shall not already be subject to a perfected Lien
in favor of the Administrative Agent for the benefit of the Secured Parties,
the relevant Borrower or Loan Party, as the case may be, shall give notice
thereof to the Administrative Agent and shall, if requested by the
Administrative Agent or the Required Lenders, cause such assets to be subjected
to a Lien securing such Loan Party’s Obligations and will take, or cause the
relevant Loan Party to take, such actions as shall be necessary or reasonably
requested by the Administrative Agent to grant and perfect or record such Lien,
including, as the case may be, the applicable actions referred to in Section 6.12(a) and
Section 6.14(b); provided
that if UHS notifies the Administrative Agent that it intends to sell such
Material Real Property within one year of the time such Mortgage would
otherwise be required to be executed and delivered, such Material Real Property
shall not be required to be mortgaged until such period expires (unless
extended by the Administrative Agent in its discretion).


 


(c)           Each Guarantor has duly
executed and delivered (i) a Security Agreement granting a first-priority
perfected security interest (subject to Liens permitted under Section 7.02)
in its assets constituting Collateral thereunder to secure its Obligations
under the Guaranty, (ii) a Guaranty and (iii) if applicable, an
Intellectual Property Security Agreement to secure its Obligations under the
Guaranty.  To the extent reasonably
requested by the Administrative Agent, the Borrowers will cause to be delivered
to the Administrative Agent one or more customary legal opinions in form and
substance reasonably satisfactory to the Administrative Agent with respect to
the granting of such security interests and the making of such Guarantees.


 


(d)           Notwithstanding the
foregoing, (x) the Administrative Agent shall not take a security interest
in or require any title insurance or similar items with respect to those assets
as to which the Administrative Agent shall determine, in its reasonable
discretion, that the cost of obtaining such Lien (including any mortgage,
stamp, intangibles or other tax, title insurance or similar items) is excessive
in relation to the benefit to the Lenders of the security afforded thereby, (y) Liens
required to be granted pursuant to this Section 6.12 shall be
subject to exceptions and limitations consistent with those set forth in the
Collateral Documents as in effect on the Amendment Closing Date (to the extent
appropriate in the applicable jurisdiction) and (z) the Subsidiary named
on Schedule 5.11 shall not be required to comply with paragraphs (a) through
(c) above unless and until it acquires any material assets.


 


SECTION 6.13.  Compliance with Environmental Laws.  Except, in each case, to the
extent that the failure to do so could not reasonably be expected to have a
Material Adverse Effect, (i) comply, and take all reasonable actions to
cause all lessees and other Persons operating or occupying its 


 


84

















 


properties to comply with all applicable
Environmental Laws and Environmental Permits; (ii) obtain and renew all
Environmental Permits as necessary for its operations and properties; and (iii) in
each case to the extent required by Environmental Laws, conduct any
investigation, study, sampling and testing, and undertake any cleanup, removal,
remedial or other action necessary to remove and clean up Hazardous Materials
from any of its properties, in accordance with the requirements of all Environmental
Laws.


 


SECTION 6.14.  Further Assurances.  (a)  Promptly upon
reasonable request by the Administrative Agent, (i) correct any material
defect or error that may be discovered in the execution, acknowledgment, filing
or recordation of any Loan Document or other document or instrument relating to
any Collateral, and (ii) do, execute, acknowledge, deliver, record,
re-record, file, re-file, register and re-register any and all such further
acts, deeds, certificates, assurances and other instruments as the
Administrative Agent may reasonably require from time to time in order to carry
out more effectively the purposes of the Loan Documents (including, without
limitation, the Collateral Documents).


 


(b)           Promptly following the
delivery of each Compliance Certificate pursuant to Section 6.02(b),
execute and deliver to the Administrative Agent an appropriate Intellectual
Property Security Agreement with respect to all After-Acquired Intellectual
Property (as defined in the Security Agreement) that is Material Intellectual
Property owned by it as of the last day of the period for which such Compliance
Certificate is delivered, to the extent that such After-Acquired Intellectual
Property that is Material Intellectual Property is not covered by any previous
Intellectual Property Security Agreement so signed and delivered by it.  In each case, each Borrower will, and will
cause each Guarantor to, promptly cooperate as reasonably necessary to enable
the Administrative Agent to make any reasonably necessary recordations with the
US Copyright Office or the US Patent and Trademark Office or comparable foreign
Governmental Authority, as appropriate, with respect to such Material
Intellectual Property.


 


SECTION 6.15.  Landlord Agreement and Real Estate
Purchases.  UHS shall use
commercially reasonable efforts to obtain a landlord’s agreement with respect
to UHS’s operating headquarters from the lessor of such property, which
agreement shall be reasonably satisfactory in form and substance to the
Administrative Agent.  To the extent
otherwise permitted hereunder, if any Loan Party proposes to acquire a fee
ownership interest in Material Real Property after the Amendment Closing Date,
it shall within sixty (60) days after such acquisition (or such longer period
as the Administrative Agent shall agree in its reasonable discretion) provide
to the Administrative Agent a mortgage or deed of trust granting the
Administrative Agent a first priority Lien on such real estate, together with
environmental audits, mortgage title insurance commitment, real property
survey, local counsel opinion(s), and supplemental casualty insurance and (to
the extent required by law) flood insurance, and such other documents,
instruments or agreements reasonably requested by the Administrative Agent, in
each case, in form and substance reasonably satisfactory to the Administrative
Agent; provided that if such Loan Party notifies the Administrative
Agent that it intends to sell such Material Real Property within one year of
the time such Mortgage would otherwise be required to be executed and
delivered, such Material Real Property shall not be required to be mortgaged
until such period expires (unless extended by the Administrative Agent in its
discretion).


 


SECTION 6.16.  Designation of Subsidiaries.  The board of directors of
any Borrower may at any time designate any Restricted Subsidiary as an
Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted
Subsidiary; provided that (a) immediately
before and after such designation, no Default shall have occurred and be
continuing, (b) immediately before and after giving effect to such
designation, Borrowing Availability shall be no less that $25,000,000, (c) immediately
after giving effect to such designation, UHS and its Subsidiaries shall be in
compliance, on a Pro Forma Basis, with Articles 6 and 7,
including the financial covenant set forth in Section 7.11 as if in
effect on the date thereof (and, as a condition precedent to the effectiveness
of any such designation, the Borrowers shall deliver to the Administrative
Agent a certificate setting forth in reasonable detail the calculations
demonstrating such 


 


85

















 


compliance), (d) no
Borrower may be designated as an Unrestricted Subsidiary and (e) no
Subsidiary may be designated as an Unrestricted Subsidiary if it is a
“Restricted Subsidiary” for the purpose of any Permitted Subordinated
Indebtedness.  The designation of any
Subsidiary as an Unrestricted Subsidiary shall constitute an Investment by such
Borrower or the relevant Restricted Subsidiary (as applicable) therein at the
date of designation in an amount equal to the net book value of such Person’s
(as applicable) investment therein.  The
designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall
constitute the incurrence at the time of designation of any Indebtedness or
Liens of such Subsidiary existing at such time.


 


SECTION 6.17.  Maintenance of Separate Existence.  Each Restricted Subsidiary
shall do all things necessary to maintain its corporate existence separate and
apart from each Unrestricted Subsidiary, including, without limitation:


 


(a)           maintaining its assets,
funds and transactions separately from those of the Unrestricted Subsidiaries,
reflecting such assets and transactions in financial statements separate and
distinct from those of the Unrestricted Subsidiaries, and evidencing such
assets and transactions by appropriate entries in books and records separate
and distinct from those of the Unrestricted Subsidiaries;


 


(b)           holding itself out to the
public under the Restricted Subsidiary’s own name as a legal entity separate
and distinct from the Unrestricted Subsidiaries;


 


(c)           holding regular duly noticed
meetings, or obtaining appropriate consents, of its board of directors, and
making and retaining minutes of such meetings, as are necessary or appropriate
to authorize all of its actions required by law to be authorized by its board
of directors;


 


(d)           ensuring that any
Indebtedness of any Unrestricted Subsidiary is Non-Recourse Debt with respect
to such Restricted Subsidiary;


 


(e)           not becoming a party to any
agreement, contract, arrangement or understanding with any Unrestricted
Subsidiary unless the terms of any such agreement, contract, arrangement or
understanding are no less favorable to such Restricted Subsidiary than those
that might be obtained at the time from Persons who are not Affiliates of such
Restricted Subsidiary;


 


(f)            not having any direct or
indirect obligation (i) to subscribe for additional Equity Interests or (ii) to
maintain or preserve any Unrestricted Subsidiary financial condition or to
cause such Person to achieve any specified levels of operating results; and


 


(g)           not providing any a
Guarantee or otherwise directly or indirectly providing credit support for any
Indebtedness of any Unrestricted Subsidiary.


 


SECTION 6.18.  Junior Financing Documentation.  (a) Cause each Loan
Party to take any and all actions deemed reasonably necessary so that the
Obligations of such Loan Parties under the Loan Documents shall be and at all
times remain “Senior Indebtedness” (or any comparable term), “Designated Senior
Indebtedness” (or any comparable term) or “Senior Secured Financing” (or any
comparable term) under, and as defined in any Junior Financing Documentation
and (b) cause each Loan Party to take any and all actions deemed
reasonably necessary so that the subordination provisions set forth in the
Junior Financing Documentation, shall be and at all times remain (until the
termination of all obligations (other than contingent indemnification
obligations not then due and payable) of such Loan Party thereunder) effective,
legally valid, binding and enforceable against the holders of any Permitted
Subordinated Indebtedness, if applicable, in accordance with the terms thereof,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, receivorship, moratorium or 


 


86

















 


other Laws affecting creditors’ rights
generally and by general principles of equity (regardless of whether
enforcement is sought in equity or at law).


 


ARTICLE 7


NEGATIVE
COVENANTS


 


So long as any Lender shall
have any Revolving Credit Commitment hereunder, any Loan or other Obligation
(other than contingent indemnification obligations not then due and payable)
hereunder which is accrued and payable shall remain unpaid or unsatisfied, or
any Letter of Credit that has not been collateralized in a manner reasonably
satisfactory to the applicable L/C Issuer shall remain outstanding, the Loan
Parties shall not, nor shall the Borrowers permit any of the Restricted
Subsidiaries to, directly or indirectly:


 


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


 


(a)           Liens pursuant to any Loan
Document;


 


(b)           Subject to the Intercreditor
Agreement, Liens created under any Senior Notes Documents and Senior PIK/Toggle
Notes Documents;


 


(c)           Liens existing on the
Closing Date and listed on Schedule 7.01(b) and any modifications,
replacements, renewals or extensions thereof; provided
that (i) the Lien does not extend to any additional property other than (A) after-acquired
property that is affixed or incorporated into the property covered by such Lien
or financed by Indebtedness permitted under Section 7.03(b)(ii),
and (B) proceeds and products thereof, and (ii) the modification,
replacement, renewal, extension or refinancing of the obligations secured or
benefited by such Liens (if such obligations constitute Indebtedness) is
permitted by Section 7.03;


 


(d)           Liens for taxes, assessments
or governmental charges which are not overdue for a period of more than sixty
(60) days or, if more than sixty (60) days overdue (i) which are being
contested in good faith and by appropriate actions diligently conducted, if
adequate reserves with respect thereto are maintained on the books of the
applicable Person in accordance with GAAP or the equivalent accounting
principles in the relevant local jurisdiction or (ii) with respect to
which the failure to make payment could not reasonably be expected to have a
Material Adverse Effect;


 


(e)           statutory Liens of
landlords, carriers, warehousemen, mechanics, materialmen, repairmen, construction
contractors or other like Liens arising in the ordinary course of business
which secure amounts not overdue for a period of more than sixty (60) days or,
if more than sixty (60) days overdue (i) no action has been taken to
enforce such Lien, (ii) such Lien is being contested in good faith and by
appropriate actions diligently conducted, if adequate reserves with respect
thereto are maintained on the books of the applicable Person in accordance with
GAAP or the equivalent accounting principles in the relevant local jurisdiction
or (iii) with respect to which the failure to make payment could not
reasonably be expected to have a Material Adverse Effect;


 


(f)            (i) pledges or deposits
in the ordinary course of business in connection with workers’ compensation,
unemployment insurance and other social security legislation, (ii) pledges
and deposits in the ordinary course of business securing insurance premiums or
reimbursement obligations under insurance policies, in each case payable to
insurance carriers that provide insurance to any Borrower or any of its
Restricted Subsidiaries or (iii) obligations in respect of letters of
credit or bank guarantees that 


 


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have been posted by the Borrower Parties or any of the
Restricted Subsidiaries to support the payments of the items set forth in clauses
(i) and (ii) of this Section 7.01(f).


 


(g)           (i) deposits to secure
the performance of bids, trade contracts, governmental contracts and leases
(other than Indebtedness for borrowed money), statutory obligations, surety,
stay, customs and appeal bonds, performance bonds, performance and completion
guarantees and other obligations of a like nature (including those to secure
health, safety and environmental obligations) incurred in the ordinary course
of business and (ii) obligations in respect of letters of credit or bank
guarantees that have been posted to support payment of the items set forth in clause
(i) of this Section 7.01(g);


 


(h)           easements, rights-of-way,
covenants, conditions, restrictions, encroachments, protrusions and other
similar encumbrances and minor title defects or matters that would be disclosed
in an accurate survey affecting real property which, in the aggregate, do not
in any case materially and adversely interfere with the ordinary conduct of the
business of the applicable Person;


 


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


 


(j)            Liens securing Indebtedness
permitted under Section 7.03(b)(ii); provided that (i) such Liens attach concurrently with
or within two hundred and seventy (270) days after the acquisition, repair,
replacement, construction or improvement (as applicable) of the property
subject to such Liens and (ii) such Liens do not at any time encumber any
property except for accessions to such property other than the property
financed by such Indebtedness and the proceeds and the products thereof; provided that individual financings of
equipment provided by one lender may be cross collateralized to other
financings of equipment provided by such lender;


 


(k)           (i) leases, licenses,
subleases or sublicenses granted to other Persons in the ordinary course of
business which do not (A) interfere in any material respect with the
business of any Borrower or any other Loan Party or (B) secure any
Indebtedness for borrowed money or (ii) the rights reserved or vested in
any Person by the terms of any lease, license, franchise, grant or permit held
by any Borrower or any of the Restricted Subsidiaries or by a statutory
provision, to terminate any such lease, license, franchise, grant or permit, or
to require annual or periodic payments as a condition to the continuance
thereof;


 


(l)            Liens in favor of customs
and revenue authorities arising as a matter of law to secure payment of customs
duties in connection with the importation of goods in the ordinary course of
business;


 


(m)          Liens (i) of a
collection bank arising under Section 4-210 of the Uniform Commercial Code
on items in the course of collection, (ii) attaching to commodity trading
accounts or other commodities brokerage accounts incurred in the ordinary
course of business or (iii) in favor of a banking institution arising as a
matter of law encumbering deposits (including the right of set-off) and which
are within the general parameters customary in the banking industry;


 


(n)           Liens (i) (A) on
advances of cash or Cash Equivalents in favor of the seller of any property to
be acquired in an Investment permitted pursuant to Section 7.02(f),
Section 7.02(i) or Section 7.02(n) to be
applied against the purchase price for such Investment and (B) consisting
of an agreement to Dispose of any property in a Disposition permitted under Section 7.05,
in each case under this clause (i), solely to the extent such Investment
or Disposition, as the case may be, would have been permitted on the date of
the creation of such Lien and (ii) on earnest money deposits of cash or
Cash Equivalents made by any Borrower or any of the Restricted Subsidiaries in
connection with any letter of intent or purchase agreement permitted hereunder;


 


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(o)           Liens in favor of a
Borrower, a Loan Party or a Restricted Subsidiary securing Indebtedness
permitted under Section 7.03(b)(v), Section 7.03(b)(xi)
and Section 7.03(b)(xii);


 


(p)           Liens existing on property
at the time of its acquisition or existing on the property of any Person at the
time such Person becomes a Restricted Subsidiary, in each case after the
Closing Date (other than Liens on the Equity Interests of any Person that
becomes a Restricted Subsidiary) and any modifications, replacements, renewals
or extensions thereof; provided
that (i) such Lien was not created in contemplation of such acquisition or
such Person becoming a Restricted Subsidiary, (ii) such Lien does not
extend to or cover any other assets or property (other than the proceeds or
products thereof and after-acquired property subjected to a Lien pursuant to
terms existing at the time of such acquisition, it being understood that such
requirement shall not be permitted to apply to any property to which such
requirement would not have applied but for such acquisition), and (iii) the
Indebtedness secured thereby (or, as applicable, any modifications,
replacements, renewals or extension thereof) is permitted under Section 7.03;


 


(q)           Liens arising from
precautionary Uniform Commercial Code financing statement filings (or similar
filings under other applicable Law) regarding leases entered into by any
Borrower or any of the Restricted Subsidiaries in the ordinary course of
business;


 


(r)            Liens arising out of
conditional sale, title retention, consignment or similar arrangements for sale
of goods entered into by any Borrower or any of the Restricted Subsidiaries in
the ordinary course of business and not prohibited by this Agreement;


 


(s)           Permitted Encumbrances;


 


(t)            other Liens securing
Indebtedness or other obligations permitted under this Agreement and
outstanding in an aggregate principal amount not to exceed $10,000,000;


 


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


 


(v)           any interest or title of a
licensor, sublicensor, lessor or sublessor under any license or operating or
true lease agreement;


 


(w)          Liens on securities which
are the subject of repurchase agreements incurred in the ordinary course of
business;


 


(x)            ground leases in respect of
real property on which facilities owned or leased by any Borrower or any of its
Subsidiaries are located;


 


(y)           Liens arising by operation
of law under Article 2 of the Uniform Commercial Code in favor of a
reclaiming seller of goods or buyer of goods;


 


(z)            security given to a public
or private utility or any Governmental Authority as required in the ordinary
course of business;


 


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(aa)         Liens in the nature of the
right of setoff in favor of counterparties to contractual agreements with the
Loan Parties in the ordinary course of business; and


 


(bb)         any exclusive or
non-exclusive licenses granted under any IP Rights that do not secure or is not
granted in connection with incurrence of Indebtedness.


 


SECTION 7.02.  Investments.  Make or hold any
Investments, except:


 


(a)           Investments by Parent, any
Borrower or any Restricted Subsidiary in assets that were Cash Equivalents when
such Investment was made;


 


(b)           loans or advances to
officers, directors, members of management, and employees of Parent, any
Borrower or any Restricted Subsidiary (i) in an aggregate amount not to
exceed $2,500,000 at any time outstanding, for business-related travel,
entertainment, relocation and analogous ordinary business purposes, or (ii) in
connection with such Person’s purchase of Equity Interests of Parent (or after
the occurrence of a Qualifying IPO of UHS, UHS) in an aggregate amount not to
exceed $2,500,000 at any time outstanding (determined without regard to any
write-downs or write-offs of such loans or advances);


 


(c)           Investments (i) by any
Loan Party in any other Loan Party, (ii) by any Restricted Subsidiary that
is not a Loan Party in any Loan Party or in any other Restricted Subsidiary
that is not also a Loan Party, or (iii) by Loan Parties in any
Subsidiaries that are not Loan Parties (including Unrestricted Subsidiaries) in
an aggregate amount not to exceed $5,000,000 at any time outstanding, plus, to
the extent that any Unrestricted Subsidiary of any Loan Party designated as
such after the Closing Date is redesignated as a Restricted Subsidiary after
the Closing Date, the lesser of (x) the fair market value of such Loan
Party’s Investment in such Subsidiary as of the date of such redesignation or (y) such
fair market value as of the date on which such Subsidiary was originally
designated as an Unrestricted Subsidiary after the Closing Date (in the case of
clause (ii), determined without regard to any write-downs or write-offs
of such Investments);


 


(d)           Investments consisting of
extensions of credit in the nature of accounts receivable or notes receivable
arising from the grant of trade credit in the ordinary course of business, and
Investments received in satisfaction or partial satisfaction thereof from
financially troubled account debtors and other credits to suppliers in the
ordinary course of business;


 


(e)           Investments consisting of
Liens, Indebtedness, fundamental changes, Dispositions and Restricted Payments
permitted by Section 7.01, Section 7.03, Section 7.04,
Section 7.05 and Section 7.06, respectively;


 


(f)            Investments existing or
contemplated on the Closing Date and set forth on Schedule 7.02(f) and
any modification, replacement, renewal or extension thereof; provided that the amount of the original
Investment is not increased except by the terms of such Investment or as
otherwise permitted by this Section 7.02;


 


(g)           Investments in Swap
Contracts permitted by Section 7.03;


 


(h)           promissory notes and other
non-cash consideration received in connection with Dispositions permitted by Section 7.05;


 


(i)            the purchase or other
acquisition of all or substantially all of the assets or business of, any
Person, or of assets constituting a business unit, a line of business or
division of, such Person, or of all of 


 


90

















 


the Equity Interests (other than directors’
qualifying shares) in a Person that, upon the consummation thereof, will be
owned directly by a Borrower or one or more of their respective wholly owned
Subsidiaries (including, without limitation, as a result of a merger or
consolidation); provided that,
with respect to each such purchase or other acquisition made pursuant to this Section 7.02(i) (each
of the foregoing, a “Permitted Acquisition”):


 


(A)          each applicable
Loan Party and any such newly created or acquired Subsidiary shall, or will
within the times specified therein, have complied with the applicable
requirements of Section 6.12;


 


(B)           (1) immediately
before and immediately after giving Pro Forma Effect to any such purchase or
other acquisition, no Event of Default shall have occurred and be continuing, (2) Borrowing
Availability both before and after giving effect to such purchase or other
acquisition shall not be less than $20,000,000, and (3) immediately after
giving effect to such purchase or other acquisition, the Borrower Parties shall
be in Pro Forma Compliance with the financial covenant set forth in Section 7.11
(assuming for purposes of making such determination that such financial
covenant was then applicable), such compliance to be determined on the basis of
the financial information most recently delivered to the Administrative Agent
and the Lenders pursuant to Section 6.01(a) or Section 6.01(b) as
though such purchase or other acquisition had been consummated as of the first
day of the fiscal period covered thereby and evidenced by a certificate from
the Chief Financial Officer or Treasurer (or other equivalent officer) of UHS
demonstrating such compliance calculation in reasonable detail; and


 


(C)           the Borrowers
shall have delivered to the Administrative Agent, on behalf of the Lenders, no
later than five (5) Business Days after the date on which any such
purchase or other acquisition is consummated, (1) a certificate of a
Responsible Officer, in form and substance reasonably satisfactory to the
Administrative Agent, certifying that all of the requirements set forth in this
Section 7.02(i) have been satisfied or will be satisfied on or
prior to the consummation of such purchase or other acquisition and (2) solely
with respect to any such purchase or other acquisition the total cash and
noncash consideration paid by or on behalf of the Borrowers and their Subsidiaries
in connection with which is equal to or greater than $50,000,000, and to the
extent permitted under the Loan Parties’ agreements with the seller(s) thereof,
true, correct and complete copies of the relevant acquisition agreement and the
resolutions of the Loan Parties and (to the extent provided by the seller(s) to
such Loan Parties) the seller(s) party thereto authorizing the execution,
delivery and performance thereof and of the transactions contemplated thereby.


 


(j)            Investments in connection
with the Acquisition;


 


(k)           Investments in the ordinary
course of business consisting of (i) indorsements for collection or
deposit or (ii) customary trade arrangements with customers;


 


(l)            Investments (including debt
obligations and Equity Interests) received in connection with the bankruptcy or
reorganization of any Person and in settlement of obligations of, or disputes
with, any Person arising in the ordinary course of business and upon
foreclosure with respect to any secured Investment or other transfer of title
with respect to any secured Investment;


 


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(m)          loans and advances to Parent
in lieu of, and not in excess of the amount of (after giving effect to any
other loans, advances or Restricted Payments in respect thereof), Restricted
Payments permitted to be made to Parent in accordance with Section 7.06;


 


(n)           so long as immediately after
giving effect to any such Investment, no Event of Default has occurred and is
continuing, other Investments (including in Unrestricted Subsidiaries) that do
not exceed (i) $25,000,000 plus (ii) the Applicable Amount at any one
time outstanding;


 


(o)           advances of payroll payments
to employees in the ordinary course of business;


 


(p)           Guarantees by Parent, any
Borrower or any Restricted Subsidiary of leases (other than Capitalized
Leases), contracts, or of other obligations that do not constitute
Indebtedness, in each case entered into in the ordinary course of business;


 


(q)           at any time after the
consummation of a Qualifying IPO of UHS, Investments to the extent the
consideration paid therefor consists solely of Equity Interests of UHS;


 


(s)           Investments consisting of
promissory notes issued by any Loan Party to future, present or former
officers, directors and employees, members of management, or consultants of UHS
or any of its Subsidiaries or their respective estates, spouses or former
spouses to finance the purchase or redemption of Equity Interests of Parent
(or, after the occurrence of a Qualifying IPO of UHS, UHS), to the extent the
applicable Restricted Payment is permitted by Section 7.06;


 


(t)            earnest money required in
connection with Permitted Acquisitions;


 


(u)           Investments consisting of
loans and advances to Parent and its Subsidiaries in connection with the
reimbursement of expenses incurred on behalf of the Loan Parties in the
ordinary course of business;


 


(v)           capitalization or
forgiveness of any Indebtedness owed to any Loan Parties by any other Loan
Parties; and


 


(w)          Investments to the extent
the consideration paid therefor consists solely of Equity Interests of Parent.


 


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


 


(a)           Indebtedness evidenced by
the Senior Notes, the Senior PIK/Toggle Notes and any Permitted Refinancing
thereof;


 


(b)           In the case of any Loan
Party and any Restricted Subsidiary:


 


(i)            Indebtedness of the Loan
Parties under the Loan Documents;


 


(ii)           Attributable Indebtedness
and purchase money obligations (including obligations in respect of mortgage,
industrial revenue bond, industrial development bond, and similar financings)
to finance the purchase, repair or improvement of fixed or capital assets
within the limitations set forth in Section 7.01(j) and any
Permitted Refinancing thereof; provided
that the aggregate amount of all such Indebtedness at any one time outstanding
shall not exceed $20,000,000;


 


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(iii)          Permitted Subordinated Indebtedness
for all Loan Parties in an aggregate amount such that after giving effect to
the incurrence of such Indebtedness the Interest Coverage Ratio on a Pro Forma
Basis is not less than 1.50:1.00;


 


(iv)          (A) Indebtedness assumed in
connection with any Permitted Acquisition; provided
that such Indebtedness is not incurred in contemplation of such Permitted
Acquisition, or (B) Indebtedness owed to the seller of any property
acquired in a Permitted Acquisition on an unsecured subordinated basis, which
subordination shall be on terms reasonably satisfactory to the Administrative
Agent, in each case under this clause (iv), so long as both immediately prior
and after giving effect thereto (x) no Event of Default shall exist or result
therefrom, (y) the Borrower Parties shall be in Pro Forma Compliance with
the financial covenant set forth in Section 7.11, after giving
effect to such Permitted Acquisition and the assumption, incurrence or issuance
of such Indebtedness, and, in each case, any Permitted Refinancing thereof, and
(z) the  amount of Indebtedness
incurred under this clause (iv) shall not exceed $20,000,000 in the
aggregate at any time outstanding;


 


(v)           Indebtedness of any Loan Party or any
Subsidiary that is not a Loan Party owing to any other Loan Party or any
Subsidiary that is not a Loan Party in respect of an Investment permitted by Section 7.02;
provided that all such
Indebtedness of any Loan Party owed to any Subsidiary that is not a Loan Party
must be expressly subordinated to the Obligations of such Loan Party, it being
understood that such Loan Party may make payments thereon prior to the
occurrence (but not during the continuance) of an Event of Default;


 


(vi)          Indebtedness consisting of promissory
notes issued by any Loan Party to future, present or former officers, directors
and employees, members of management, or consultants of UHS or any of its
Subsidiaries or their respective estates, spouses or former spouses to finance
the purchase or redemption of Equity Interests of Parent (or, after the
occurrence of a Qualifying IPO of UHS, UHS), to the extent the applicable
Restricted Payment is permitted by Section 7.06;


 


(vii)         Guarantees by Parent of Indebtedness of
UHS and its Restricted Subsidiaries to the extent the primary obligation is
expressly permitted or not prohibited hereunder.


 


(viii)        Existing Indebtedness outstanding on the
Closing Date and listed on Schedule 7.03(b)(viii) and any Permitted
Refinancing thereof;


 


(ix)           Indebtedness in respect of Swap
Contracts incurred in the ordinary course of business and not for speculative
purposes;


 


(x)            Guarantees by any Borrower or any
Restricted Subsidiary in respect of Indebtedness of any Borrower or such
Restricted Subsidiary otherwise permitted hereunder; provided that if the Indebtedness being Guaranteed is
subordinated to the Obligations, such Guarantee shall be subordinated to the
Guarantee of the Obligations on terms at least as favorable to the Lenders as
those contained in the subordination provisions of such Indebtedness;


 


(xi)           Indebtedness of Loan Parties and
Restricted Subsidiaries in an aggregate principal amount at any time
outstanding for all such Persons taken together not exceeding $10,000,000;


 


(xii)          Indebtedness (other than for borrowed
money) subject to Liens permitted under Section 7.01;


 


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(xiii)         Indebtedness representing deferred
compensation to employees of any Borrower or any Restricted Subsidiary incurred
in the ordinary course of business;


 


(xiv)        Indebtedness incurred in a Permitted
Acquisition or Disposition under agreements providing for indemnification, the
adjustment of the purchase price or similar adjustments;


 


(xv)         Indebtedness consisting of obligations
of any Borrower or any Restricted Subsidiary under deferred compensation or
other similar arrangements incurred by such Person in connection with the
Transactions and Permitted Acquisitions;


 


(xvi)        Cash Management Obligations and other
Indebtedness in respect of netting services, overdraft protections and similar
arrangements in each case in connection with cash management and deposit
accounts;


 


(xvii)       Indebtedness consisting of (A) the
financing of insurance premiums or (B) take-or-pay obligations contained
in supply arrangements, in each case, in the ordinary course of business;


 


(xviii)      Indebtedness incurred by any Borrower or
any Restricted Subsidiary constituting reimbursement obligations with respect
to letters of credit issued in the ordinary course of business, including in
respect of workers compensation claims, health, disability or other employee
benefits or property, casualty or liability insurance or self-insurance or
other Indebtedness with respect to reimbursement-type obligations regarding
workers compensation claims; provided
that upon the drawing of such letters of credit or the incurrence of such
Indebtedness, such obligations are reimbursed within 30 days following such
drawing or incurrence;


 


(xix)         obligations in respect of surety, stay,
customs and appeal bonds, performance bonds and performance and completion
guarantees provided by any Borrower or any Restricted Subsidiary or obligations
in respect of letters of credit related thereto, in each case in the ordinary
course of business or consistent with past practice;


 


(xx)          Indebtedness in respect of any
bankers’ acceptance, letter of credit, warehouse receipt or similar facilities
entered into in the ordinary course of business;


 


(xxi)         Attributable Indebtedness and
Indebtedness incurred in connection with sale-leaseback transactions permitted
under Section 7.05(j);


 


(xxii)        without duplication of any other
Indebtedness, non-cash accruals of interest, accretion or amortization of
original issue discount and/or pay-in-kind interest to the extent such Debt is
permitted hereunder;


 


(xxiii)       Indebtedness that is unsecured or that is
secured by a second or lower priority Lien on the Collateral in an outstanding
principal amount not to exceed $185,000,000; provided
that (A) such Indebtedness shall be in form and substance reasonably acceptable
to the Required Lenders (it being understood and agreed that (x) the terms
and conditions of the existing Senior Notes are acceptable, (y) a maturity
date that is at least 181 days after the Maturity Date is acceptable and (z) rate,
fee and other components of yield that are consistent with the then current
market are also acceptable), (B) the Net Cash Proceeds thereof shall be
applied as a mandatory prepayment in accordance with Section 2.05(b)(iii) and
(C) the Lien on the Collateral securing 


 


94

















 


such Indebtedness, if any,
shall be subordinated to the Lien of the Collateral Agent with respect thereto
pursuant to an intercreditor agreement entered into by the holder(s) of
such Indebtedness with the Administrative Agent in form and substance
substantially similar to the Intercreditor Agreement or otherwise reasonably
acceptable to the Administrative Agent; and


 


(xxiv)       all premiums (if any), interest
(including post-petition interest), fees, expenses, charges and additional or
contingent interest on obligations described in clause (a), clauses
(b)(i) through (xvi) and clause (b)(xxiii) above.


 


SECTION 7.04.  Fundamental Changes.  Merge, dissolve, liquidate,
consolidate with or into another Person, except that:


 


(a)           any Restricted Subsidiary may merge with or liquidate into
(i) any Borrower (including a merger, the purpose of which is to
reorganize any Borrower into a new jurisdiction so long as such Borrower
remains organized under the laws of the United States, any state thereof or the
District of Columbia (the requirements set forth in this clause (i), and
the last proviso of this Section 7.04(a), the “Jurisdictional Requirement”)); provided that such Borrower shall be the
continuing or surviving Person or the continuing or surviving Person shall
expressly assume the obligations of such Borrower in a manner reasonably
acceptable to the Administrative Agent, or (ii) any one or more other
Restricted Subsidiaries; provided
that when any Restricted Subsidiary that is a Loan Party is merging with
another Restricted Subsidiary, (A) a Loan Party shall be the continuing or
surviving Person or (B) to the extent constituting an Investment, such
Investment must be an Investment permitted by Section 7.02 and any
Indebtedness corresponding to such Investment must be permitted by Section 7.03;
provided further that, if any
such merger results in a new jurisdiction of organization of such Borrower or
other Loan Party, the Borrowers shall have provided the Administrative Agent
with prior written notice of such change in jurisdiction and proper financing
statements, duly prepared for filing under the Uniform Commercial Code in such
jurisdiction with respect to such Borrower or such Loan Party.


 


(b)           (i) any Subsidiary that is not a Loan Party may merge
or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) any
Subsidiary (other than any Borrower) may liquidate or dissolve or change its
legal form if the Borrowers determine in good faith that such action is in the
best interests of the business of the Borrowers;


 


(c)           so long as no Event of Default exists or would result
therefrom, any Borrower or any Restricted Subsidiary may merge with any other
Person in order to (i) effect an Investment permitted pursuant to Section 7.02
(provided that (A) the
continuing or surviving Person shall be a Restricted Subsidiary, which together
with each of its Restricted Subsidiaries, shall have complied with the
requirements of Section 6.12 and (B) to the extent constituting
an Investment, such Investment must be a permitted Investment in accordance
with Section 7.02) or (ii) to effect the designation of a
Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted
Subsidiary as a Restricted Subsidiary in accordance with Section 6.16;
provided that if any Borrower is
a party to any transaction effected pursuant to this Section 7.04(c),
(1) such Borrower shall be the continuing and surviving Person or the
continuing or surviving Person shall expressly assume the obligations of such
Borrower in a manner reasonably acceptable to the Administrative Agent and (2) the
Jurisdictional Requirement shall be satisfied;


 


(d)           UHS and its Restricted Subsidiaries may consummate the
Acquisition and the transactions contemplated thereby; and


 


(e)           so long as no Event of Default exists or would result
therefrom, a merger, dissolution, liquidation or consolidation, the purpose of
which is to effect a Disposition permitted pursuant to 


 


95

















 


Section 7.05, may be effected; provided that if any Borrower is a party
to any transaction effected pursuant to this Section 7.04(e), (i) such
Borrower shall be the continuing or surviving Person or the continuing or
surviving Person shall expressly assume the obligations of such Borrower in a
manner reasonably acceptable to the Administrative Agent and (ii) the
Jurisdictional Requirement shall be satisfied.


 


SECTION 7.05.  Dispositions.  Make any Disposition except:


 


(a)           Dispositions of obsolete, used, surplus or worn out
property, whether now owned or hereafter acquired, in the ordinary course of
business, Dispositions of equipment in the ordinary course of business in
according with past practice and Dispositions of property no longer used or useful
in the conduct of the business of the Borrowers and the Restricted
Subsidiaries;


 


(b)           Sale or discount without recourse of accounts receivable
arising in the ordinary course of business in connection with the compromise or
collection thereof;


 


(c)           Dispositions of inventory, cash and immaterial assets in
the ordinary course of business;


 


(d)           Dispositions of property to the extent that (i) such
property is exchanged for credit against the purchase price of similar
replacement property or (ii) the proceeds of such Disposition are promptly
applied to the purchase price of such replacement property;


 


(e)           Dispositions of property by any Borrower or any Restricted
Subsidiary to any Borrower or any other Restricted Subsidiary (including any
such Disposition effected pursuant to a merger, liquidation or dissolution); provided that if the transferor of such
property is a Guarantor or a Borrower (i) the transferee thereof must
either be a Borrower or a Guarantor or (ii) to the extent such transaction
constitutes an Investment, such transaction is permitted under Section 7.02;


 


(f)            Dispositions permitted by Section 7.02, Section 7.04
and Section 7.06 and Liens permitted by Section 7.01;


 


(g)           Dispositions of Cash Equivalents;


 


(h)           Dispositions of past due accounts receivable in connection
with the collection, write down or compromise thereof;


 


(i)            leases, subleases, licenses, or sublicenses of property,
and Dispositions of IP Rights in the ordinary course of business, in each case
that do not materially interfere with the business of the Borrowers and the
Restricted Subsidiaries, and Dispositions of IP Rights under a research or
development agreement in which the other party receives a license to IP Rights
that result from such agreement;


 


(j)            transfers of property subject to Casualty Events upon
receipt of the Net Cash Proceeds of such Casualty Event;


 


(k)           Dispositions of property by any Borrower or any Restricted
Subsidiary not otherwise permitted under this Section 7.05
(including pursuant to sale-leaseback transactions) with aggregate fair market
value not to exceed $10,000,000 in any fiscal year;


 


(l)            Dispositions of Investments in Joint Ventures;


 


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(m)          Dispositions in the ordinary course of business consisting
of the abandonment of IP Rights which, in the reasonable good faith
determination of any Borrower or any Restricted Subsidiary, are uneconomical,
negligible, obsolete or otherwise not material in the conduct of its business;


 


(n)           Dispositions of all or substantially all of its assets
(upon voluntary liquidation or otherwise) to any Borrower or to another
Restricted Subsidiary; provided
that if the transferor in such a transaction is a Guarantor or a Borrower, then
(i) the transferee must either be a Borrower or a Guarantor or (ii) to
the extent constituting an Investment, such Investment must be an Investment
permitted by Section 7.02 and any Indebtedness corresponding to
such Investment must be permitted by Section 7.03;


 


(o)           sales of non-core assets acquired in connection with
Permitted Acquisitions which are not used in the business of the Loan Parties;


 


(p)           any disposition of real property to a Governmental
Authority as a result of a condemnation of such real property; and


 


(q)           exclusive or non-exclusive licenses or similar agreements
in respect of IP Rights;


 


provided that any
Disposition of any property pursuant to this Section 7.05 (except
pursuant to Sections 7.05(a), (e), (f), (g), (h),
(i), (j) and (m)), shall be for not less than the
fair market value of such property at the time of such Disposition.  To the extent any Collateral is Disposed of
as expressly permitted by this Section 7.05 to any Person other
than a Loan Party, such Collateral shall be sold free and clear of the Liens
created by the Loan Documents, and the Administrative Agent is hereby
authorized by the Lenders to take any actions deemed appropriate in order to
effect the foregoing.


 


SECTION 7.06.  Restricted Payments.  Declare or make, directly or
indirectly, any Restricted Payment, except:


 


(a)           each Restricted Subsidiary may make Restricted Payments to
any Borrower and to other Restricted Subsidiaries (and, in the case of a
Restricted Payment by a non-wholly owned Restricted Subsidiary, to (i) a
Borrower or such Restricted Subsidiary and (ii) to each other owner of
Equity Interests of such Restricted Subsidiary based on their relative
ownership interests);


 


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


 


(c)           to the extent constituting Restricted Payments, the
Borrowers and the Restricted Subsidiaries may enter into transactions expressly
permitted by Section 7.04, Section 7.05 or Section 7.08;


 


(d)           the Borrowers and the Restricted Subsidiaries may make
Restricted Payments to Parent:


 


(i)            the proceeds of which shall be used
by Parent to pay its operating expenses incurred in the ordinary course of
business and other corporate overhead costs and expenses (including, without
limitation, administrative, legal, accounting and similar expenses provided by
third parties), which are reasonable and customary and incurred in the ordinary
course of business, in an aggregate amount not to exceed $1,000,000 in any
fiscal year plus any reasonable and customary indemnification claims made by
directors or officers of Parent attributable to the ownership or operations of
the Borrowers and the Restricted Subsidiaries;


 


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(ii)           the proceeds of which shall be used
by Parent to pay franchise taxes and other fees, taxes and expenses required to
maintain Parent’s corporate existence;


 


(iii)          so long as no Default or Event of
Default shall have occurred and be continuing or would result therefrom, the
proceeds of which will be used by Parent to pay for the repurchase, retirement
or other acquisition or retirement for value of Equity Interests of Parent (or,
after a Qualifying IPO of UHS, UHS) held by any future, present or former
employee, director, officer, member of management or consultant of Parent or
any of its Subsidiaries (or the estate, family members, spouse or former spouse
of any of the foregoing); provided
that the aggregate amount of Restricted Payments made under this clause (e)(iv) does
not exceed in any calendar year $2,500,000 (with unused amounts in any calendar
year being carried over to succeeding calendar years); and provided further that such amount in any
calendar year may be increased by an amount not to exceed (1) the cash
proceeds from the sale of Equity Interests to employees, directors, officers,
members of management or consultants of Parent or of its Subsidiaries that
occurs after the Closing Date to the extent such proceeds constitute Eligible
Equity Proceeds plus (2) the
amount of any cash bonuses otherwise payable to employees, directors, officers,
members of management or consultants of Parent or any of its Subsidiaries (or
the estate, family members, spouse or former spouse of any of the foregoing) in
connection with the Transactions that are foregone in return for the receipt of
Equity Interests of Parent pursuant to a deferred compensation plan of such
Person plus (3) the cash
proceeds of key man life insurance policies received by Parent (to the extent
such proceeds are contributed to UHS) or any Borrower or any Restricted
Subsidiary after the Closing Date (provided
that the Borrowers may elect to apply all or any portion of the aggregate
increase contemplated by clauses (1), (2) and (3) above
in any calendar year) less (4) the amount of any Restricted Payments
previously made pursuant to clauses (1), (2) and (3) of
this clause (d)(iv);


 


(iv)          to finance any Investment permitted to
be made pursuant to Section 7.02; provided
that (A) such Restricted Payment shall be made substantially concurrently
with the closing or consummation of such Investment or at future times as may
be scheduled at the time of such closing or consummation to be made thereafter
in connection therewith and (B) Parent shall, immediately following the
closing or consummation thereof, cause or have caused (1) all property
acquired (whether assets or Equity Interests) to be contributed to a Borrower
or a Loan Party (or a Person that will become a Loan Party upon receipt of such
contribution) or (2) the merger (to the extent permitted in Section 7.04)
of the Person formed or acquired into a Borrower or a Loan Party in order to
consummate such Permitted Acquisition, in each case, in accordance with the
requirements of Section 6.12;


 


(v)           the proceeds of which shall be used
by Parent to make cash payments in lieu of the issuance of fractional shares in
connection with the exercise of warrants, options or other securities
convertible into or exchangeable for Equity Interests of Parent (or, after a
Qualifying IPO of UHS, of UHS); provided
that any such cash payment shall not be for the purpose of evading the
limitations set forth in this Section 7.06 (as determined in good
faith by the board of directors or the managing board, as the case may be, of
UHS (or any authorized committee thereof));


 


(vi)          the proceeds of which shall be used by
Parent for distribution to Parent to pay fees and expenses (other than to
Affiliates) related to any unsuccessful equity or debt offering permitted by
this Agreement;


 


(vii)         the proceeds of which shall be used by
Parent to pay customary salary, bonus and other benefits payable to officers
and employees of Parent to the extent such salaries, bonuses and 


 


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other benefits are directly
attributable to the ownership or operations of the Borrowers and the Restricted
Subsidiaries; and


 


(viii)        the proceeds of which shall be used by
Parent to pay amounts owing pursuant to the Sponsor Management Agreement, or
other amounts of the type described in Section 7.08(d) or Section 7.08(k),
in each case to the extent the applicable payment would be permitted under the
applicable clause in Section 7.08 if such payment were to be made
by a Loan Party; and


 


(e)           so long as (i) no Default or Event of Default shall
have occurred and be continuing or would result therefrom and (ii) the
Leverage Ratio as of the last day of the immediately preceding four fiscal
quarters was less than 6.5:1 (determined on a Pro Forma Basis after giving
effect to any Restricted Payment to be made pursuant to this Section 7.06(e)),
in addition to the foregoing Restricted Payments, Parent, the Borrowers and the
Restricted Subsidiaries may make additional Restricted Payments to their
respective shareholders in an amount not to exceed the Applicable Amount as in
effect immediately prior to the time of the making of such Restricted Payment;


 


(f)            from and after a Qualifying IPO of UHS, UHS may make
Restricted Payments, in each case in accordance with the provision thereof,
deemed to occur upon exercise of stock options or warrants if such Equity
Interests represent a portion of the exercise price of such options or
warrants; and


 


(g)           so long as no Default or Event of Default shall have
occurred and be continuing or would result therefrom, other Restricted Payments
in an aggregate amount not to exceed $30,000,000 since the Closing Date.


 


SECTION 7.07.  Change in Nature of Business.  Engage in any material line
of business substantially different from those lines of business conducted by
the Borrowers and the Restricted Subsidiaries on the Closing Date or any
business reasonably related, supportive, complementary or ancillary thereto.


 


SECTION 7.08.  Transactions with Affiliates.  Enter into any transaction
of any kind with any Affiliate of the Borrowers, whether or not in the ordinary
course of business, other than (a) transactions among Loan Parties or any
entity that becomes a Loan Party as a result of such transaction, (b) on
fair and reasonable terms substantially as favorable to the relevant Borrower
or such Restricted Subsidiary as would be obtainable by such Borrower or such
Restricted Subsidiary in a comparable arm’s-length transaction with a Person
other than an Affiliate, (c) the payment of fees, costs and expenses in
connection with the consummation of the Transactions, (d) so long as no
Event of Default shall have occurred and be continuing under Section 8.01(a),
Section 8.01(f) or Section 8.01(g)(i), the payment
of fees, expenses or other payments to the Sponsor pursuant to the Sponsor
Management Agreement as such fee provisions are set forth in the Sponsor
Management Agreement as in effect on the Closing Date, (e) loans and other
transactions by the Borrowers and the Subsidiaries to the extent not prohibited
by this Agreement, (f) entering into employment and severance arrangements
between Parent, the Borrowers and the Restricted Subsidiaries and their
respective officers and employees, as determined in good faith by the board of
directors or senior management of the relevant Person, (g) payments by the
Borrowers and the Restricted Subsidiaries pursuant to the tax sharing
agreements among the Borrowers and the Restricted Subsidiaries on customary
terms to the extent attributable to the ownership or operations of the
Borrowers and the Subsidiaries, (h) the payment of customary fees and
reimbursement of reasonable out-of-pocket costs of, and customary indemnities
provided to or on behalf of, directors, officers and employees of Parent, the
Borrowers and the Restricted Subsidiaries in the ordinary course of business or
the Sponsor or to its Affiliates, to the extent attributable to the ownership
or operations of the Borrowers and the Restricted Subsidiaries, as determined
in good faith by the board of directors or senior management of the relevant
Person, (i) transactions pursuant to the other permitted agreements in
existence on the 


 


99

















 


Amendment Closing Date and set forth on Schedule
7.08 or any amendment thereto to the extent such an amendment is not
adverse to the Lenders in any material respect, (j) Restricted Payments
permitted under Section 7.06, (k) payments by the Borrowers
and the Restricted Subsidiaries to the Sponsor made for any customary financial
advisory, financing, underwriting or placement services or in respect of other
investment banking activities, including in connection with acquisitions,
financings or divestitures, which payments are approved by the board of
directors of the applicable Borrower in good faith, (l) the issuance of
Equity Interests to the management of UHS or any of its Subsidiaries in
connection with the Transactions, (m) payment of reasonable compensation
to officers and employees for services actually rendered to any Loan Party or
any of its Subsidiaries, (n) stock option and compensation plans of the
Loan Parties and their Subsidiaries, (o) advances and loans to officers,
directors, members of management and employees of Parent, any Borrower or any
Restricted Subsidiary to the extent specifically permitted under Section 7.02(b),
(p) Investments consisting of promissory notes issued by any Loan Party to
future, present or former officers, directors and employees, members of
management, or consultants of UHS or any of its Subsidiaries or their
respective estates, spouses or former spouses to finance the purchase or
redemption of Equity Interests of Parent (or, after the occurrence of a
Qualifying IPO of UHS, UHS), to the extent the applicable Restricted Payment is
permitted by Section 7.06, (q) any issuance of Equity
Interests (other than Disqualified Equity Interests), (r) Investments by
the Equity Investors in securities of Parent or any of its Restricted
Subsidiaries so long as the investments is being offered generally to other
investors on the same or more favorable terms and any other transaction
involving Parent or any Restricted Subsidiary, on the one hand, and Irving
Place Capital or any of its Affiliates, on the other hand, which transactions,
in the reasonable determination of the Board of Directors, are on commercially
reasonable terms, and (s) other transactions specifically permitted under
this Agreement (including, without limitation, sale/leaseback transactions,
Dispositions, Investments and Indebtedness).


 


SECTION 7.09.  Burdensome Agreements.  Enter into or permit to
exist any Contractual Obligation (other than this Agreement or any other Loan
Document, the Senior Indenture or customary terms in any documentation
providing for any Permitted Refinancing thereof) that limits the ability of (a) any
Restricted Subsidiary to make Restricted Payments to any Borrower or any
Guarantor or to otherwise transfer property to or invest in any Borrower or any
Guarantor, or (b) any Borrower or any Loan Party to create, incur, assume
or suffer to exist Liens on property of such Person for the benefit of the
Secured Parties with respect to the Facilities and the Obligations or under the
Loan Documents; provided that the
foregoing shall not apply to Contractual Obligations which (i) (x) arise
under applicable law, (y) existed on the Closing Date and (to the extent
not otherwise permitted by this Section 7.09) are listed on Schedule
7.09 hereto or (z) to the extent Contractual Obligations permitted by clause
(y) are set forth in an agreement evidencing Indebtedness, are set
forth in any agreement evidencing any permitted renewal, extension or
refinancing of such Indebtedness so long as such renewal, extension or
refinancing does not expand the scope of the restrictions described in clause
(a) or (b) that are contained in such Contractual
Obligation, (ii) are binding on a Restricted Subsidiary at the time such
Restricted Subsidiary first becomes a Restricted Subsidiary of a Borrower, so
long as such Contractual Obligations were not entered into in contemplation of
such Person becoming a Restricted Subsidiary of a Borrower, (iii) represent
Indebtedness of a Restricted Subsidiary which is permitted by Section 7.03,
(iv) arise in connection with any Disposition permitted by Section 7.05,
(v) are customary provisions in joint venture agreements and other similar
agreements applicable to joint ventures permitted under Section 7.02
and applicable solely to such joint venture, (vi) are negative pledges and
restrictions on Liens in favor of any holder of Indebtedness permitted under Section 7.03
but solely to the extent any negative pledge relates to the property financed
by or the subject of such Indebtedness (and excluding in any event any
Permitted Subordinated Indebtedness) or that expressly permits Liens for the
benefit of the Agents and the Lenders with respect to the credit facilities
established hereunder and the Obligations under the Loan Documents on a senior
basis without the requirement that such holders of such Indebtedness be secured
by such Liens on an equal and ratable, or junior, basis, (vii) are
customary restrictions on leases, subleases, licenses or asset sale agreements
otherwise permitted hereby so long as such restrictions may relate to the
assets 


 


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subject thereto, (viii) comprise
restrictions imposed by any agreement relating to secured Indebtedness
permitted pursuant to Section 7.03 to the extent that such
restrictions apply only to the property or assets securing such Indebtedness, (ix) are
customary provisions restricting subletting or assignment of any lease
governing a leasehold interest or (x) are customary provisions restricting
assignment or transfer of any agreement entered into in the ordinary course of
business.


 


SECTION 7.10.  Holding Company.  Parent shall not (a) engage
in any business or activity other than (i) the ownership of all the
outstanding Equity Interests in UHS (or other Equity Interests in accordance
with clause (b) below) and activities incidental thereto, (ii) activities
necessary to consummate the Acquisition and the Transactions and (iii) corporate
maintenance activities (including the payment of taxes and expenses associated
with being a holding company), (b) own or acquire any assets (other than
Equity Interests in UHS or other Subsidiaries of UHS and cash and Cash
Equivalents in amounts reasonably required in connection with its permitted
business activities or representing proceeds of a Restricted Payment permitted
hereunder temporarily held pending further distribution to the Permitted
Holders), (c) create, incur, assume or permit to exist any Lien on any
property or asset owned by it, other than Liens under the Loan Documents or
non-consensual Liens permitted under Section 7.01, (d) incur
Indebtedness (other than Indebtedness permitted hereunder, liabilities under
the Loan Documents, unsecured Guarantees permitted hereunder, liabilities
relating to the performance of its obligations under such documents and other
liabilities (not including Indebtedness) incidental to its existence and
permitted business activities), (e) make any public offering of its common
stock or any other issuance of its Equity Interests not prohibited by Article 7,
and (f) engage in any transaction that Parent is permitted to enter into
or consummate under this Article 7.


 


SECTION 7.11.  Financial Covenant.  Interest Coverage Ratio.  Permit the Interest Coverage Ratio to be less
than 1.50:1.00 as of the end of any fiscal quarter of UHS during which
Borrowing Availability has been less than $15,000,000 for three (3) consecutive
days during such quarter (beginning with the fiscal quarter ending September 30,
2007, if applicable).


 


SECTION 7.12.  Amendments of Certain Documents.  Amend or otherwise modify (a) any
of its Organization Documents in a manner that would reasonably be expected to
have a Material Adverse Effect, (b) the Merger Agreement with respect to
any economic provisions or in a manner materially adverse to the Administrative
Agent or the Lenders or (c) any other Related Document, including any
Senior Notes Document or Senior PIK/Toggle Notes Document, except as permitted
by the Intercreditor Agreement, or (d) any term or condition of any Junior
Financing Documentation in any manner materially adverse to the interests of
the Administrative Agent or the Lenders, in each case without the consent of
the Administrative Agent.


 


SECTION 7.13.  Accounting Changes.  Make any change in (a) fiscal
year or (b) accounting policies or reporting policies except as required
or permitted by generally accepted accounting principles; provided, however, that the Borrowers may,
upon written notice to the Administrative Agent, change their fiscal year to
any other fiscal year reasonably acceptable to the Administrative Agent, in
which case, the Borrowers and the Administrative Agent will, and are hereby
authorized by the Lenders to, make any adjustments to this Agreement and to the
covenants contained herein that are deemed reasonably necessary by the
Administrative Agent, and not objected to by the Required Lenders, to reflect
such change in fiscal year.


 


SECTION 7.14.  Prepayments, Etc. of Permitted
Subordinated Indebtedness.  Prepay, redeem,
purchase, defease or otherwise satisfy prior to the scheduled maturity thereof
in any manner (it being understood that payments of regularly scheduled
interest shall be permitted) any Permitted Subordinated Indebtedness, except (a) so
long as no Event of Default shall have occurred and be continuing or would
result therefrom, (i) for an aggregate purchase price not to exceed
$5,000,000; 


 


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provided that, if the
Leverage Ratio as of the last day of the immediately preceding four fiscal
quarters was less than 5.0:1, such amount may be increased by an amount equal
to the sum of (x) $5,000,000 and (y) an amount equal to 100% of the
Applicable Amount that is Not Otherwise Applied or (ii) the refinancing
thereof with the Net Cash Proceeds of any Permitted Subordinated Indebtedness
or Eligible Equity Proceeds that are Not Otherwise Applied and (b) the
conversion of any Permitted Subordinated Indebtedness to Equity Interests
(other than Disqualified Equity Interests).


 


SECTION 7.15.  Designated Senior Debt.  Designate any Indebtedness
(other than under this Agreement and the other Loan Documents) of the Borrowers
or the Restricted Subsidiaries as “Designated Senior Indebtedness” or “Senior
Secured Financing” (or any comparable term) under, and as defined in, any
Junior Financing Documentation.


 


ARTICLE
8


 


EVENTS
OF DEFAULT AND REMEDIES


 


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


 


(a)           Non-Payment. 
Any Borrower or any other Loan Party fails to pay (i) when due
(whether by scheduled maturity, required prepayment, acceleration, demand, or
otherwise), any amount of principal of any Loan or any L/C Borrowing, or (ii) within
five (5) Business Days after the same becomes due, any interest or any fee
payable pursuant to Section 2.09 or any other amount payable hereunder
or with respect to any other Loan Document; or


 


(b)           Specific Covenants. 
Any Loan Party fails to perform or observe any term, covenant or
agreement contained in (i) any of Section 6.03(a), Section 6.05(a) (solely
with respect to the Borrowers) or Section 6.11 or Article 7
(provided that any Event of Default under Section 7.11 is subject
to cure as contemplated by the last proviso set forth in the definition of
“Consolidated EBITDA”), (ii) any of Section 6.01(e), Section 6.03(c) and
Section 6.07 and such failure continues for ten (10) days
(provided that with respect to Section 6.07, if such Loan Party is
making good faith efforts to cure such failure, such cure period shall be
thirty (30) days), or (iii) any of Section 6.10 and Section 5
of the Security Agreement and such failure continues for five (5) Business
Days; or


 


(c)           Other Defaults. 
Any Loan Party fails to perform or observe any other covenant or
agreement (not specified in Section 8.01(a) or (b) above)
contained in any Loan Document on its part to be performed or observed and such
failure continues for thirty (30) days after knowledge of a Responsible Officer
or notice thereof by the Administrative Agent to the Borrowers; or


 


(d)           Representations and Warranties.  Any representation, warranty, certification
or statement of fact made or deemed made by or on behalf of any Borrower or any
other Loan Party herein, in any other Loan Document, or in any document
required to be delivered in connection herewith or therewith shall be incorrect
or misleading in any material respect when made or, as provided in Section 4.02,
deemed made; or


 


(e)           Cross-Default. 
Any Loan Party or any Restricted Subsidiary (i) fails to make any
payment beyond the applicable grace period with respect thereto, if any
(whether by scheduled maturity, required prepayment, acceleration, demand, or
otherwise) in respect of any Indebtedness (other than Indebtedness hereunder
and determined, in the case of any Swap Contract, by reference to the Swap
Termination Value of such Swap Contract) having an aggregate outstanding
principal amount of not less than the Threshold Amount, or (ii) fails to
observe or perform any other agreement or condition relating 


 


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to any such Indebtedness, or any other event occurs,
the effect of which default or other event is to cause, or to permit the holder
or holders of such Indebtedness (or a trustee or agent on behalf of such holder
or holders or beneficiary or beneficiaries) to cause, with the giving of notice
if required, such Indebtedness to become due or to be repurchased, prepaid,
defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its stated
maturity; provided that this clause
(e)(ii) shall not apply to secured Indebtedness that becomes due as a
result of the voluntary sale or transfer of the property or assets securing
such Indebtedness, if such sale or transfer is permitted hereunder and under
the documents providing for such Indebtedness; or


 


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


 


(g)           Inability to Pay Debts; Attachment.  (i) Any Loan Party or any Restricted
Subsidiary becomes unable or admits in writing its inability or fails generally
to pay its debts as they become due, or (ii) any writ or warrant of
attachment or execution or similar process is issued or levied against all or
any material part of the property of any such Person and is not released,
vacated or fully bonded within sixty (60) days after its issue or levy; or


 


(h)           Judgments. 
There is entered against any Loan Party or any Restricted Subsidiary one
or more final judgments or orders for the payment of money in an aggregate
amount exceeding the Threshold Amount (to the extent not covered by independent
third-party insurance as to which such insurer has been notified of such
judgment or order and has not denied coverage) and there is a period of sixty
(60) 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.  An
ERISA Event shall have occurred that, when taken together with all other ERISA
Events that have occurred, could reasonably be expected to result in a Material
Adverse Effect; or


 


(j)            Invalidity of Loan Documents.  Any material provision of any Loan Document,
at any time after its execution and delivery and for any reason other than as
expressly permitted hereunder or thereunder (including as a result of a
transaction permitted under Section 7.04 or Section 7.05)
or satisfaction in full of all the Obligations (other than contingent
indemnification obligations not then due and payable or Letters of Credit that
are collateralized in a manner reasonably satisfactory to the applicable L/C
Issuer), ceases to be in full force and effect; or any Loan Party contests in
writing the validity or enforceability of any provision of any Loan Document;
or any Loan Party denies in writing that it has any or further liability or
obligation under any Loan Document (other than as a result of repayment in full
of the Obligations (other than contingent indemnification obligations not then
due and payable or Letters of Credit that are collateralized in a manner
reasonably satisfactory to the applicable L/C Issuer) and termination of the
Aggregate Commitments or as a result of a transaction permitted hereunder or
thereunder (including under Section 7.04 or Section 7.05)),
or purports in writing to revoke or rescind any Loan Document; or


 


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


 


(l)            Collateral Documents.  Any Collateral Document after delivery
thereof, whether pursuant to Section 4.01 or Section 6.12
or otherwise, shall for any reason (other than pursuant to the terms thereof
including as a result of a transaction permitted under Section 7.04
or Section 7.05) cease to create a valid and perfected, subject to
limitations set forth in the Loan Documents, first priority Lien on and
security interest in any Collateral covered thereby, subject to Permitted
Liens, or any Loan Party shall assert in writing such invalidity or lack of
perfection or priority (other than in an informational notice to the
Administrative Agent), except (i) to the extent that any such loss of perfection
or priority results from the failure of the Administrative Agent to maintain
possession of certificates actually delivered to it representing securities
pledged under the Collateral Documents or to file Uniform Commercial Code
continuation statements, (ii) as to Collateral consisting of real
property, to the extent that such losses are covered by a lender’s title
insurance policy and the related insurer shall not have ultimately denied or
disclaimed in writing that such losses are covered by such title insurance,
notwithstanding any initial denial or disclaimer of coverage by the related
title company under lender’s title insurance policy, (iii) as a result of
the sale, release or other Disposition of the applicable Collateral in a
transaction permitted under the Loan Documents and (iv) relating to an
immaterial amount of the Collateral; or


 


(m)          Any information contained in any Borrowing Base Certificate
or Alternative Borrowing Base Certificate is untrue or incorrect in any respect
(other than inadvertent errors not exceeding $1,000,000 in the aggregate in any
Borrowing Base Certificate or Alternative Borrowing Base Certificate, as the
case may be) and, after giving effect to the correction of such errors and as a
result thereof (i) Borrowing Availability is less than $15,000,000 and (ii) the
Interest Coverage Ratio as of the last day of the next ending fiscal quarter of
UHS is less than 1.50:1.00.


 


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


 


(a)           declare the Revolving Credit 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 Revolving Credit 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 Borrowers;


 


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


 


(d)           exercise on behalf of itself and the Lenders all rights
and remedies available to it and the Lenders under the Loan Documents or
applicable Law;


 


provided that upon the
occurrence of an actual or deemed entry of an order for relief with respect to
any 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 Borrowers 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.


 


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SECTION 8.03.  Application of Funds.  After the exercise of
remedies provided for in Section 8.02 (or after the Loans have
automatically become immediately due and payable and the L/C Obligations have
automatically been required to be Cash Collateralized as set forth in the
proviso to Section 8.02), any amounts received on account of the
Obligations shall 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 Attorney Costs payable under Section 10.04 and amounts
payable under Article 3, but not including principal of or interest
on any Loan) payable to the Administrative Agent in its capacity as such;


 


Second, to the payment in full of the Unfunded
Advances/Participations (the amounts so applied to be distributed between or
among the Administrative Agent, the Swing Line Lender and any L/C Issuer pro rata in accordance with the amounts of
Unfunded Advances/Participations owed to them on the date of any distribution);


 


Third, to payment of that portion of the
Obligations constituting fees, indemnities and other amounts (other than
principal and interest) payable to the Lenders and any L/C Issuer (including
Attorney Costs payable under Section 10.05 and amounts payable
under Article 3), ratably among them in proportion to the amounts
described in this clause Third payable to them;


 


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


 


Fifth, ratably to (a) the Administrative
Agent for the account of the L/C Issuer, to Cash Collateralize that portion of
L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit
and (b) to payment of that portion of the Obligations constituting unpaid
principal of the Loans, ratably among the Secured Parties in proportion to the
respective amounts described in this clause Fifth held by them;


 


Sixth, to the payment of the Secured Hedge
Obligations, the Cash Management Obligations and all other Obligations of the
Loan Parties that are due and payable to the Administrative Agent and the other
Secured Parties on such date, ratably based upon the respective aggregate
amounts of all such Obligations owing to the Administrative Agent and the other
Secured Parties on such date; and


 


Last, the balance, if any, after all of the
Obligations (other than contingent indemnification obligations not then due and
payable and Letters of Credit that are cash collateralized on terms reasonably
satisfactory to the applicable L/C Issuer) have been paid in full, to the
Borrowers or as otherwise required by Law.


 


Subject to Section 2.03(c),
amounts used to Cash Collateralize the aggregate undrawn amount of Letters of
Credit pursuant to clause Fifth (b) 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 and, if no Obligations remain outstanding, delivered to
the Borrowers.


 


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ARTICLE
9


 


ADMINISTRATIVE
AGENT AND OTHER AGENTS


 


SECTION 9.01.  Authorization and Action.  (a)  Each Lender (in
its capacities as a Lender, a Swing Line Lender (if applicable), an Issuing
Bank (if applicable) and on behalf of itself and its Affiliates as potential
Hedge Banks) hereby appoints and authorizes each Agent to take such action as
agent on its behalf and to exercise such powers and discretion under this
Agreement and the other Loan Documents as are delegated to such Agent by the
terms hereof and thereof, together with such powers and discretion as are
reasonably incidental thereto.  As to any
matters not expressly provided for by the Loan Documents (including, without
limitation, enforcement or collection of the Loans), no Agent shall be required
to exercise any discretion or take any action, but shall be required to act or
to refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all Lenders, all Hedge Banks and all holders
of Notes; provided, however, that, whether or not expressly
provided for in this Agreement or the other Loan Documents, no Agent shall be
required to take any action that exposes or which such Agent reasonably
believes exposes such Agent to personal liability or that is contrary to this
Agreement or applicable law.  Each Agent
agrees to give to each Lender prompt notice of each notice given to it by the
Borrowers pursuant to the terms of this Agreement.


 


(b)           In furtherance of the foregoing, each Lender (in its
capacities as a Lender, a Swing Line Lender (if applicable), an Issuing Bank
(if applicable) and on behalf of itself and its Affiliates as potential Hedge
Banks) hereby appoints and authorizes the Collateral Agent to act as the agent
of such Lender for purposes of acquiring, holding and enforcing any and all
Liens on Collateral granted by any of the Loan Parties to secure any of the
Secured Obligations, together with such powers and discretion as are reasonably
incidental thereto.  In this connection,
the Collateral Agent (and any Supplemental Collateral Agents appointed by the
Collateral Agent pursuant to Section 9.01(c) 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 or
remedies thereunder at the direction of the Collateral Agent), shall be
entitled to the benefits of this Article 9 (including, without limitation,
Section 9.05 as though any such Supplemental Collateral Agents were
an “Agent” under the Loan Documents) as if set forth in full herein with
respect thereto.


 


(c)           Any Agent may execute any of its duties under this
Agreement or any other Loan Document (including for purposes of holding or
enforcing any Lien on the Collateral (or any portion thereof) granted under the
Collateral Documents or of exercising any rights and remedies thereunder at the
direction of the Collateral Agent) by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties.  The Collateral Agent may also from time to
time, when the Collateral Agent deems it to be necessary or desirable, appoint
one or more trustees, co-trustees, collateral co-agents, collateral subagents
or attorneys-in-fact (each, a “Supplemental
Collateral Agent”) with respect to all or any part of the
Collateral; provided, however, that no such Supplemental
Collateral Agent shall be authorized to take any action with respect to any
Collateral unless and except to the extent expressly authorized in writing by
the Collateral Agent.  Should any instrument
in writing from the Borrowers or any other Loan Party be required by any
Supplemental Collateral Agent so appointed by the Collateral Agent to more
fully or certainly vest in and confirm to such Supplemental Collateral Agent
such rights, powers, privileges and duties, the Borrowers shall, or shall cause
such Loan Party to, execute, acknowledge and deliver any and all such
instruments promptly upon request by the Collateral Agent.  If any Supplemental Collateral Agent, or
successor thereto, shall die, become incapable of acting, resign or be removed,
all rights, powers, privileges and duties of such Supplemental Collateral
Agent, to the extent permitted by law, shall automatically vest in and be
exercised by the Collateral Agent until the appointment of a new 


 


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Supplemental Collateral Agent.  No Agent shall be responsible for the
negligence or misconduct of any agent, attorney-in-fact or Supplemental
Collateral Agent that it selects in accordance with the foregoing provisions of
this Section 9.01(c) in the absence of such Agent’s gross
negligence, bad faith or willful misconduct.


 


SECTION 9.02.  Agents’ Reliance, Etc.  Neither any Agent nor any of
their respective directors, officers, agents or employees shall be liable for
any action taken or omitted to be taken by it or them under or in connection
with the Loan Documents, except for its or their own gross negligence, bad
faith or willful misconduct.  Without
limitation of the generality of the foregoing, each Agent:  (a) may consult with legal counsel
(including counsel for any Loan Party), independent public accountants and
other experts selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts; (b) makes no warranty or representation
to any Lender and shall not be responsible to any Lender for any statements,
warranties or representations (whether written or oral) made in or in
connection with the Loan Documents; (c) shall not have any duty to
ascertain or to inquire as to the performance, observance or satisfaction of
any of the terms, covenants or conditions of any Loan Document on the part of
any Loan Party or the existence at any time of any Default under the Loan Documents
or to inspect the property (including the books and records) of any Loan Party;
(d) shall not be responsible to any Lender for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of, or
the perfection or priority of any lien or security interest created or
purported to be created under or in connection with, any Loan Document or any
other instrument or document furnished pursuant thereto; and (e) shall
incur no liability under or in respect of any Loan Document by acting upon any
notice, consent, certificate or other instrument or writing (which may be by
telegram or telecopy) believed by it to be genuine and signed or sent by the
proper party or parties.


 


SECTION 9.03.  GE Capital and Affiliates.  With respect to its
Revolving Credit Commitments, the Loans made by it and any Notes issued to it,
GE Capital shall have the same rights and powers under the Loan Documents as
any other Lender and may exercise the same as though it was not an Agent; and
the term “Lender” or “Lenders” shall, unless otherwise expressly indicated,
include GE Capital in its individual capacities.  GE Capital and its affiliates may accept
deposits from, lend money to, act as trustee under indentures of, accept
investment banking engagements from and generally engage in any kind of
business with, any Loan Party, any of its Subsidiaries and any Person that may
do business with or own securities of any Loan Party or any such Subsidiary,
all as if GE Capital was not an Agent and without any duty to account therefor
to the Lenders.  No Agent shall have any
duty to disclose any information obtained or received by it or any of its
Affiliates relating to any Loan Party or any of its Subsidiaries to the extent
such information was obtained or received in any capacity other than as such
Agent.


 


SECTION 9.04.  Lender Credit Decision.  Each Lender acknowledges
that it has, independently and without reliance upon any Agent or any other
Lender and based on the financial statements referred to in Section 5.01
and such other documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement.  Each Lender also acknowledges that it will,
independently and without reliance upon any Agent or any other Lender and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement.


 


SECTION 9.05.  Indemnification.  (a)  Each Lender
severally agrees to indemnify each Agent (to the extent not promptly reimbursed
by the Borrowers) from and against such Lender’s ratable share (determined as
provided below) of any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever that may be imposed on, incurred by, or asserted
against such Agent in any way relating to or arising out of the Loan 


 


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Documents or any action taken or omitted by
such Agent under the Loan Documents (collectively, the “Indemnified Costs”); provided, however,
that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses
or disbursements resulting from such Agent’s gross negligence or willful
misconduct as found in a final, non-appealable judgment by a court of competent
jurisdiction.  Without limitation of the
foregoing, each Lender agrees to reimburse each Agent promptly upon demand for
its ratable share of any costs and expenses (including, without limitation,
reasonable fees and expenses of counsel) payable by the Borrowers under Section 10.04,
to the extent that such Agent is not promptly reimbursed for such costs and
expenses by the Borrowers.  In the case
of any investigation, litigation or proceeding giving rise to any Indemnified
Costs, this Section 9.05 applies whether any such investigation,
litigation or proceeding is brought by any Lender or any other Person.


 


(b)           Each Lender severally agrees to indemnify the Issuing Bank
(to the extent not promptly reimbursed by the Borrowers) from and against such
Lender’s ratable share (determined as provided below) of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever that
may be imposed on, incurred by, or asserted against the Issuing Bank in any way
relating to or arising out of the Letters of Credit or the Loan Documents or
any action taken or omitted by the Issuing Bank under the Letters of Credit or
the Loan Documents; provided, however, that no Lender shall be liable
for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
Issuing Bank’s gross negligence or willful misconduct as found in a final,
non-appealable judgment by a court of competent jurisdiction.  Without limitation of the foregoing, each
Lender agrees to reimburse the Issuing Bank promptly upon demand for its
ratable share of any costs and expenses (including, without limitation,
reasonable fees and expenses of counsel) payable by the Borrowers under Section 9.04,
to the extent that the Issuing Bank is not promptly reimbursed for such costs
and expenses by the Borrowers.


 


(c)           For purposes of this Section 9.05, each
Lender’s respective ratable share of any amount shall be determined, at any
time, according to the sum of (i) the aggregate principal amount of the
Loans outstanding at such time and owing to such Lender, (ii) such
Lender’s Pro Rata Share of the aggregate available amount of all Letters of
Credit outstanding at such time, and (iii) such Lender’s unused Revolving
Credit Commitments at such time; provided
that the aggregate principal amount of Swing Line Loans owing to the Swing Line
Lender and of Letter of Credit Loans owing to the Issuing Bank shall be
considered to be owed to the Lenders ratably in accordance with their
respective Revolving Credit Commitments. 
The failure of any Lender to reimburse any Agent or the Issuing Bank, as
the case may be, promptly upon demand for its ratable share of any amount
required to be paid by the Lenders to such Agent or the Issuing Bank, as the
case may be, as provided herein shall not relieve any other Lender of its
obligation hereunder to reimburse such Agent or the Issuing Bank, as the case
may be, for its ratable share of such amount, but no Lender shall be
responsible for the failure of any other Lender to reimburse such Agent or the
Issuing Bank, as the case may be, for such other Lender’s ratable share of such
amount.  Without prejudice to the
survival of any other agreement of any Lender hereunder, the agreement and
obligations of each Lender contained in this Section 9.05 shall
survive the payment in full of principal, interest and all other amounts
payable hereunder and under the other Loan Documents.


 


SECTION 9.06.  Successor Agents.  Any Agent may resign as to
any or all of the Facilities at any time by giving written notice thereof to
the Lenders and the Borrowers and may be removed as to all of the Facilities at
any time with or without cause by the Required Lenders; provided, however,
that any removal of the Administrative Agent will not be effective until it or
its Affiliate has also been replaced as Collateral Agent, Swing Line Lender and
Issuing Bank and discharged from all of its obligations in respect
thereof.  Upon any such resignation or
removal, the Required Lenders shall have the right (with the consent of the
Borrowers, so long as no Event of Default under Section 8.01(a) or
(f)  


 


108

















 


has occurred or is continuing) to appoint a
successor Agent as to such of the Facilities as to which such Agent has
resigned or been removed.  If no
successor Agent shall have been so appointed by the Required Lenders (or, so
long as no Event of Default Section 8.01(a) or (f) has
occurred or is continuing, consented to by the Borrowers), and shall have
accepted such appointment, within 30 days after the retiring Agent’s giving of
notice of resignation or the Required Lenders’ removal of the retiring Agent,
then the retiring Agent may, on behalf of the Lenders, appoint a successor
Agent, which shall be a commercial bank organized under the laws of the United
States or of any State thereof and having a combined capital and surplus of at
least $250,000,000.  Upon the acceptance
of any appointment as Agent hereunder by a successor Agent as to all of the
Facilities and, in the case of a successor Collateral Agent, upon the execution
and filing or recording of such financing statements, or amendments thereto,
and such amendments or supplements to the Mortgages, and such other instruments
or notices, as may be necessary or desirable, or as the Required Lenders may
reasonably request, in order to continue the perfection of the Liens granted or
purported to be granted by the Collateral Documents, such successor Agent shall
succeed to and become vested with all the rights, powers, discretion,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations under the Loan Documents.  Upon the acceptance of any appointment as
Agent hereunder by a successor Agent as to less than all of the Facilities and,
in the case of a successor Collateral Agent, upon the execution and filing or
recording of such financing statements, or amendments thereto, and such
amendments or supplements to the Mortgages, and such other instruments or
notices, as may be reasonably necessary or desirable, or as the Required
Lenders may request, in order to continue the perfection of the Liens granted
or purported to be granted by the Collateral Documents, such successor Agent
shall succeed to and become vested with all the rights, powers, discretion,
privileges and duties of the retiring Agent as to such Facilities, other than
with respect to funds transfers and other similar aspects of the administration
of Borrowings under such Facilities, issuances of Letters of Credit
(notwithstanding any resignation as Agent with respect to the Letter of Credit
Facility) and payments by the Borrowers in respect of such Facilities, and the
retiring Administrative Agent shall be discharged from its duties and obligations
under this Agreement as to such Facilities, other than as aforesaid.  If within 45 days after written notice is
given of the retiring Agent’s resignation or removal under this Section 9.06
no successor Agent shall have been appointed and shall have accepted such
appointment, then on such 45th day (a) the retiring Agent’s resignation or
removal shall become effective, (b) the retiring Agent shall thereupon be
discharged from its duties and obligations under the Loan Documents and (c) the
Required Lenders shall thereafter perform all duties of the retiring Agent
under the Loan Documents until such time, if any, as the Required Lenders
appoint a successor Agent as provided above. 
After any retiring Agent’s resignation or removal hereunder as Agent as
to any of the Facilities shall have become effective, the provisions of this Article 9
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent as to such Facilities under this Agreement.


 


SECTION 9.07.  Other Agents; Arrangers.  None of the Lenders or other
Persons identified on the facing page or signature pages of this
Agreement as a “documentation agent”, “book runner,” or “lead arranger” shall
have any right, power, obligation, liability, responsibility or duty under this
Agreement other than to the extent expressly set forth herein and, in the case
of such Lenders, those applicable to all Lenders as such.  Without limiting the foregoing, none of the
Lenders or other Persons so identified shall have or be deemed to have any
fiduciary relationship with any Lender. 
Each Lender acknowledges that it has not relied, and will not rely, on
any of the Lenders or other Persons so identified in deciding to enter into
this Agreement or in taking or not taking action hereunder.


 


SECTION 9.08.  Intercreditor Agreement.  Each of the Lenders and each
L/C Issuer hereby acknowledges that it has received and reviewed the
Intercreditor Agreement and agrees to be bound by the terms thereof.  Each Lender and L/C Issuer (and each Person
that becomes a Lender or L/C Issuer hereunder pursuant to Section 10.07)
hereby (a) acknowledges that GE Capital is acting under the Intercreditor
Agreement in its capacity as the Collateral Agent and Wells Fargo Bank,
National 


 


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Association is acting under the Intercreditor
Agreement in its capacity as the Second Lien Collateral Agent and (b) waives
any conflict of interest, now contemplated or arising hereafter, in connection
therewith and agrees not to assert against GE Capital any claims, causes of
action, damages or liabilities of whatever kind or nature relating
thereto.  Each Lender and each L/C Issuer
(and each Person that becomes a Lender or L/C Issuer hereunder pursuant to Section 10.07)
hereby authorizes and directs GE Capital to enter into the Intercreditor
Agreement on behalf of such Lender or L/C Issuer and agrees that GE Capital, in
its capacity thereunder, may take such actions on its behalf as is contemplated
by the terms of the Intercreditor Agreement.


 


ARTICLE 10


 


MISCELLANEOUS


 


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


 


(a)           extend or increase the Revolving Credit Commitment of any
Lender without the written consent of such Lender (it being understood that a
waiver of any condition precedent set forth in Section 4.01 or Section 4.02,
or the waiver of any Default, Event of Default, mandatory prepayment or
mandatory reduction of the Revolving Credit Commitments shall not constitute an
extension or increase of any Revolving Credit Commitment of any Lender);


 


(b)           postpone any date scheduled for any payment of principal
or interest under Section 2.07 or Section 2.08 or fees
under Section 2.03(i) or Section 2.09(a), without
the written consent of each Lender directly affected thereby;


 


(c)           reduce or forgive the principal of, or the rate of
interest specified herein on, any Loan or L/C Borrowing, or (subject to clause
(iii) of the second proviso to this Section 10.01) any
fees or other amounts payable hereunder or under any other Loan Document
without the written consent of each Lender directly affected thereby, it being
understood that any change to the definition of Leverage Ratio or in the
component definitions thereof shall not constitute a reduction in any rate of
interest; provided that only the
consent of the Required Lenders shall be necessary to amend the definition of
“Default Rate” or to waive any obligation of the Borrowers to pay interest at
the Default Rate;


 


(d)           change any provision of this Section 10.01,
the definition of “Required Lenders” or the definition of “Supermajority
Required Lenders”;


 


(e)           change the definition of “Pro Rata Share”, Section 2.12(a),
Section 2.13 or Section 8.03 in any manner that would
alter the pro rata sharing of payments or other amounts required thereby
without the written consent of each Lender affected thereby;


 


(f)            release all or substantially all of the Collateral in any
transaction or series of related transactions (it being understood that a transaction
permitted under Section 7.05 shall not constitute the release of
all or substantially all of the Collateral), without the written consent of
each Lender; or


 


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(g)           other than in connection with a transaction permitted
under Section 7.04 or Section 7.05, release any
material Guarantor from its obligations under the Guaranty, without the written
consent of each Lender;


 


provided  further that no such amendment, waiver or
consent shall increase the percentage advance rates set forth in the definition
of the Borrowing Base, or make less restrictive the nondiscretionary criteria
for exclusion from Eligible Accounts, Eligible Unbilled Accounts, Eligible
Rental Equipment, Eligible Wholesale Disposables and Eligible Equipment
Disposables set forth in Sections 2.15 and 2.16 without the
written consent of Supermajority Required Lenders, and provided still further that (i) no
amendment, waiver or consent shall, unless in writing and signed by the L/C
Issuer in addition to the Lenders required above, affect the rights or duties
of the L/C Issuer under this Agreement or any Letter of Credit Application
relating to any Letter of Credit issued or to be issued by it; (ii) no
amendment, waiver or consent shall, unless in writing and signed by the Swing
Line Lender in addition to the Lenders required above, affect the rights or
duties of the Swing Line Lender under this Agreement; (iii) no amendment,
waiver or consent shall, unless in writing and signed by the Administrative
Agent in addition to the Lenders required above, affect the rights or duties
of, or any fees or other amounts payable to, the Administrative Agent under
this Agreement or any other Loan Document; and (iv) Section 10.07(g) may
not be amended, waived or otherwise modified without the consent of each
Granting Lender all or any part of whose Loans are being funded by an SPC at
the time of such amendment, waiver or other modification.  Notwithstanding anything to the contrary
herein, no Defaulting Lender shall have any right to approve or disapprove any
amendment, waiver or consent hereunder, except that the Revolving Credit
Commitment of such Lender may not be increased or extended without the consent
of such Lender (it being understood that any Revolving Credit Commitments or
Loans held or deemed held by any Defaulting Lender shall be excluded from a
vote of the Lenders hereunder requiring any consent of the Lenders).


 


Notwithstanding anything to
the contrary contained in Section 10.01, in the event that the
Borrowers request that this Agreement be modified or amended in a manner that
would require the unanimous consent of all of the Lenders and such modification
or amendment is agreed to by the Required Lenders, then with the consent of the
Borrowers and the Required Lenders, the Borrowers and the Required Lenders
shall be permitted to amend the Agreement without the consent of the
Non-Consenting Lenders to provide for (a) the termination of the Revolving
Credit Commitment of each Non-Consenting Lender at the election of the
Borrowers and the Required Lenders, (b) the addition to this Agreement of
one or more other financial institutions (each of which shall be an Eligible
Assignee), or an increase in the Revolving Credit Commitment of one or more of
the Required Lenders (with the written consent thereof), so that the total
Revolving Credit Commitment after giving effect to such amendment shall be in
the same amount as the total Revolving Credit Commitment immediately before
giving effect to such amendment, (c) if any Loans are outstanding at the
time of such amendment, the making of such additional Loans by such new
financial institutions or Required Lender or Lenders, as the case may be, as
may be necessary to repay in full with accrued interest and fees, at par, the
outstanding Loans of the Non-Consenting Lenders immediately before giving
effect to such amendment and (d) such other modifications to this
Agreement as may be appropriate to effect the foregoing clauses (a), (b) and
(c).


 


Further, notwithstanding
anything to the contrary contained in Section 10.01, if within
thirty (30) days following the Amendment Closing Date, the Administrative Agent
and the Borrowers shall have jointly identified an obvious error or any error
or omission of a technical or immaterial nature, in each case, in any provision
of the Loan Documents, then the Administrative Agent and the Borrowers shall be
permitted to amend such provision and such amendment shall become effective
without any further action or consent of any other party to any Loan Document
if the same is not objected to in writing by the Required Lenders within five (5) Business
Days following receipt of notice thereof.


 


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SECTION 10.02.  Notices and Other Communications;
Facsimile Copies.  (a)  General.  Unless otherwise expressly provided herein,
all notices and other communications provided for hereunder or any other Loan
Document shall be in writing (including by facsimile transmission).  All such written notices shall be mailed,
faxed or delivered to the applicable address, facsimile number or (subject to Section 10.02(c))
electronic mail address, 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 Borrower, any Guarantor,
the Administrative Agent, the L/C Issuer or the Swing Line Lender, to the
address, facsimile number, electronic mail address or telephone number
specified for such Person on Schedule 10.02 or to such other address,
facsimile number, electronic mail address or telephone number as shall be
designated by such party in a notice to the other parties; and


 


(ii)           if to any other Lender, to the
address, facsimile number, electronic mail address or telephone number
specified in its Administrative Questionnaire or to such other address,
facsimile number, electronic mail address or telephone number as shall be
designated by such party in a notice to the relevant Borrower, the
Administrative Agent, the L/C Issuer and the Swing Line Lender.


 


All such notices and other communications
shall be deemed to be given or made upon the earlier to occur of (i) actual
receipt by the relevant party hereto and (ii) (A) if delivered by
hand or by courier, when signed for by or on behalf of the relevant party
hereto; (B) if delivered by mail, four (4) Business Days after
deposit in the mails, postage prepaid; (C) if delivered by facsimile, when
sent and receipt has been confirmed; and (D) if delivered by electronic
mail (which form of delivery is subject to the provisions of Section 10.02(c)),
when delivered; provided that
notices and other communications to the Administrative Agent, the L/C Issuer
and the Swing Line Lender pursuant to Article 2 shall not be effective
until actually received by such Person. 
In no event shall a voice mail message be effective as a notice,
communication or confirmation hereunder.


 


(b)           Effectiveness of Facsimile Documents and Signatures.  Loan Documents may be transmitted and/or signed
by facsimile.  The effectiveness of any
such documents and signatures shall, subject to applicable Law, have the same
force and effect as manually signed originals and shall be binding on all Loan
Parties, the Agents and the Lenders.  The
Administrative Agent may also require that any such documents and signatures be
confirmed by a manually signed original thereof; provided that the failure to request or deliver the same
shall not limit the effectiveness of any facsimile document or signature.


 


(c)           Reliance by Agents and Lenders.  The Administrative Agent and the Lenders
shall be entitled to rely and act upon any notices (including telephonic
Committed Loan Notices and Swing Line Loan Notices) purportedly given by or on
behalf of any Borrower even if (i) such notices were not made in a manner
specified herein, were incomplete or were not preceded or followed by any other
form of notice specified herein, or (ii) the terms thereof, as understood
by the recipient, varied from any confirmation thereof.  The Borrowers shall indemnify each
Agent-Related Person and each Lender from all actual losses, costs, expenses
and liabilities resulting from the reliance by such Person on each notice
purportedly given by or on behalf of any Borrower in the absence of gross negligence,
bad faith or willful misconduct.


 


SECTION 10.03.  No Waiver; Cumulative Remedies.  No failure by any Lender or
the Administrative Agent to exercise, and no delay by any such Person in
exercising, any right, remedy, power or privilege hereunder or under any other
Loan Document shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude
any other 


 


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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.


 


SECTION 10.04.  Costs, Expenses and Taxes.  The Borrowers agree upon and
following the Closing Date (a) to pay or reimburse the Administrative
Agent for all reasonable out-of-pocket costs and expenses incurred in
connection with the preparation, negotiation, syndication and execution of this
Agreement and the other Loan Documents, and any amendment, waiver, consent or
other modification of the provisions hereof and thereof, and the consummation
and administration of the transactions contemplated hereby and thereby,
including all Attorney Costs of one attorney for all Lenders and the
Administrative Agent (which shall be Shearman & Sterling LLP) and such
other local counsel in each foreign jurisdiction as agreed between the
Administrative Agent and the Borrowers, and (b) to pay or reimburse the
Administrative Agent and each Lender for all reasonable out-of-pocket costs and
expenses incurred in connection with the enforcement of any rights or remedies
under this Agreement or the other Loan Documents (including all such costs and
expenses incurred during any legal proceeding, including any proceeding under
any Debtor Relief Law), including all Attorney Costs of counsel (which counsel
shall be limited as provided in Section 10.05).  The foregoing costs and expenses shall
include all reasonable search, filing, recording, title insurance and appraisal
charges and fees and taxes related thereto, and other reasonable out-of-pocket
expenses incurred by any Agent.  All
amounts due under this Section 10.04 shall be paid promptly (but in
any event within 30 days) following receipt by the Borrowers of an invoice
relating thereto setting forth such expenses in reasonable detail.  The agreements in this Section 10.04
shall survive the termination of the Aggregate Commitments and repayment of all
of the Obligations.  If any Loan Party
fails to pay when due any costs, expenses or other amounts payable by it
hereunder or under any Loan Document, such amount may be paid on behalf of such
Loan Party by the Administrative Agent or any Lender, in its sole discretion.


 


SECTION 10.05.  Indemnification by the Borrowers.  The Borrowers shall
indemnify and hold harmless each Agent-Related Person, each Lender, each L/C
Issuer and their respective Affiliates, directors, officers, employees,
counsel, agents, attorneys-in-fact, trustees and advisors (collectively the “Indemnitees”) from and against any and all
liabilities, obligations, actual losses, actual damages, penalties, claims,
demands, actions, judgments, suits, reasonable costs, reasonable expenses and
reasonable disbursements (including Attorney Costs (which shall be limited to
one (1) counsel to the Administrative Agent and the Lenders (exclusive of
one local counsel to the Administrative Agent and the Lenders in each
appropriate jurisdiction), unless (x) the interests of the Administrative
Agent and the Lenders are sufficiently divergent, in which case one (1) additional
counsel may be appointed and (y) if the interests of any Lender or group
of Lenders (other than all of the Lenders) are distinctly or disproportionately
affected, one (1) additional counsel for such Lender or group of Lenders
in the case of clause (a) below)) of any kind or nature whatsoever
which may at any time be imposed on, incurred by or asserted against any such
Indemnitee in any way relating to or arising out of or in connection with (a) the
execution, delivery, enforcement, performance or administration of any Loan
Document or any other agreement, letter or instrument delivered in connection
with the transactions contemplated thereby or the consummation of the
transactions contemplated thereby, (b) any Revolving Credit Commitment,
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), or (c) any
actual or alleged presence or release of Hazardous Materials on or from any
property currently or formerly owned or operated by any Borrower, any
Subsidiary or any other Loan Party, or any Environmental Liability related in
any way to any Borrower, any Subsidiary or any other Loan Party, or (d) any
actual or prospective claim, litigation, investigation or proceeding relating
to any of the foregoing, whether based on contract, tort or any other theory
(including any investigation of, preparation for, or defense of any pending or
threatened claim, investigation, litigation or proceeding) and regardless of
whether any 


 


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Indemnitee is a party thereto (and regardless
of whether such matter is instituted by a third party or by any Borrower or any
other Loan Party) (all the foregoing, collectively, the “Indemnified Liabilities”), in all cases,
whether or not caused by or arising, in whole or in part, out of the negligence
of the Indemnitee; provided that
such indemnity shall not, as to any Indemnitee, be available to the extent that
such liabilities, obligations, losses, damages, penalties, claims, demands,
actions, judgments, suits, costs, expenses or disbursements (x) have been
determined in the final judgment of a court of competent jurisdiction to have
resulted from the gross negligence, bad faith or willful misconduct of any
Indemnitee or any of its directors, officers or employees or a material breach
of the Loan Documents by any Indemnitee or (y) arise from claims of any of
the Lenders solely against one or more Lenders (and not by one or more Lenders
against the Administrative Agent or one or more of the other Agents) that have
not resulted from the action, inaction, participation or contribution of any
Borrower or their respective Subsidiaries or other Affiliates or any of their
respective officers, directors, stockholders, partners, members, employees,
agents, representatives or advisors.  No
Indemnitee shall be liable for any damages arising from the use by others of
any information or other materials obtained through IntraLinks or other similar
information transmission systems in connection with this Agreement, nor shall
any Indemnitee or any Loan Party have any liability for any special, punitive,
indirect or consequential damages relating to this Agreement or any other Loan
Document or arising out of its activities in connection herewith or therewith
(whether before or after the Closing Date). 
In the case of an investigation, litigation or other proceeding to which
the indemnity in this Section 10.05 applies, such indemnity shall
be effective whether or not such investigation, litigation or proceeding is
brought by any Loan Party, its directors, shareholders or creditors or an
Indemnitee or any other Person, whether or not any Indemnitee is otherwise a
party thereto and whether or not any of the transactions contemplated hereunder
or under any of the other Loan Documents is consummated.  All amounts due under this Section 10.05
shall be paid promptly (but in any event within thirty (30) days) after written
demand therefor; provided, however,
that such Indemnitee shall promptly refund such amount to the extent that there
is a final judicial or arbitral determination that such Indemnitee was not
entitled to indemnification or contribution rights with respect to such payment
pursuant to the express terms of this Section 10.05.  The agreements in this Section 10.05
shall survive the resignation of the Administrative Agent, the replacement of
any Lender, the termination of the Aggregate Commitments and the repayment,
satisfaction or discharge of all the other Obligations.


 


SECTION 10.06.  Payments Set Aside.  To the extent that any
payment by or on behalf of any Borrower is made to any Agent or any Lender, or
any Agent 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 such Agent 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 severally agrees to pay to the Administrative Agent upon demand its
applicable share of any amount so recovered from or repaid by any 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 applicable Federal Funds Rate from time to
time in effect.


 


SECTION 10.07.  Successors and Assigns.  (a)  The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby, except
that no Borrower may assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender and no
Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an Eligible Assignee in accordance with the
provisions of Section 10.07(b), (ii) by way of participation
in accordance with the provisions of Section 10.07(d), (iii) by
way of pledge or assignment of a security interest subject to the restrictions
of


 


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Section 10.07(f) or Section 10.07(h),
as the case may be, or (iv) to an SPC in accordance with the provisions of
Section 10.07(g) (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 Section 10.07(d) and, to the extent
expressly contemplated hereby, the Indemnitees) any legal or equitable right,
remedy or claim under or by reason of this Agreement.


 


(b)                                 Any Lender may
at any time assign to one or more Eligible Assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Revolving Credit Commitment and the Loans (including for purposes of this Section 10.07(b),
participations in L/C Obligations and in Swing Line Loans) at the time owing to
it); provided that (i) except
in the case of an assignment of the entire remaining amount of the assigning
Lender’s Revolving Credit Commitment and the Loans at the time owing to it or
in the case of an assignment to a Lender or an Affiliate of a Lender or an
Approved Fund with respect to a Lender, the aggregate amount of the Revolving
Credit Commitment (which for this purpose includes Loans outstanding
thereunder) or, if the applicable Revolving Credit Commitment is not then in
effect, the outstanding principal 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, shall not be less than $1,000,000, in the case of any assignment in
respect of the Revolving Credit Facility; (ii) except in the case of an
assignment to a Lender, an Affiliate of a Lender or an Approved Fund, each of
the Administrative Agent and, so long as no Event of Default in respect of Section 8.01(a),
Section 8.01(f) or Section 8.01(g)(i) has
occurred and is continuing and except for assignments in connection with the
exchange of Lenders’ interests pursuant to arrangements relating thereto among
the Lenders following the date on which either any Event of Default referred to
in Section 8.01(f) or Section 8.01(g)(i) shall
have occurred and be continuing in respect of any Borrower or the Loans shall
have been declared immediately due and payable pursuant to Section 8.02,
each Borrower consents to such assignment (each such consent not to be
unreasonably withheld or delayed); (iii) any assignment must be approved
by the Administrative Agent, the L/C Issuer and the Swing Line Lender (each
such consent not to be unreasonably withheld or delayed); (iv) the parties
(other than the relevant Borrower unless its consent to such assignment is
required hereunder) to each assignment shall (A) execute and deliver to
the Administrative Agent an Assignment and Assumption via an electronic
settlement system acceptable to the Administrative Agent (which initially may
be ClearPar, LLC) or (B) manually execute and deliver to the
Administrative Agent an Assignment and Assumption; and (v) the assigning
Lender shall deliver any Notes evidencing such Loans to the relevant Borrower
or the Administrative Agent.  Subject to
acceptance and recording thereof by the Administrative Agent pursuant to Section 10.07(c),
from and after the effective date specified in each Assignment and Assumption,
the Eligible 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 Section 3.01, Section 3.04, Section 3.05,
Section 10.04 and Section 10.05 with respect to facts
and circumstances occurring prior to the effective date of such
assignment).  Upon request, and the
surrender by the assigning Lender of its Note, the relevant 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 clause
(b) shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with Section 10.07(d).


 


(c)                                  The
Administrative Agent, acting solely for this purpose as an agent of the
Borrowers, 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 Revolving 


 


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Credit Commitments of, and principal amounts (and
related interest amounts) of the Loans, L/C Obligations (specifying the
Unreimbursed Amounts), L/C Borrowings and amounts due under Section 2.03,
owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). 
The entries in the Register shall be conclusive, absent manifest error,
and the Borrowers, the Agents and the Lenders shall 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.  The Register shall be
available for inspection by any Borrower, any Agent and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.


 


(d)                                 Any Lender may
at any time, without the consent of, or notice to, any Borrower or the
Administrative Agent, sell participations to any Person (other than a natural
person) (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 Revolving Credit 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
Borrowers, the Agents and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement.  Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this Agreement
and the other Loan Documents and to approve any amendment, modification or
waiver of any provision of this Agreement or the other Loan Documents; 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 the first
proviso to Section 10.01 that directly affects such
Participant.  Subject to Section 10.07(e),
the Borrowers agree that each Participant shall be entitled to the benefits of Section 3.01,
Section 3.04 and Section 3.05 to the same extent as if
it were a Lender and had acquired its interest by assignment pursuant to Section 10.07(b) and
such Participant agrees to be bound by such Sections and Section 3.06.  To the extent permitted by Law, each Participant
also shall be entitled to the benefits of Section 10.09 as though
it were a Lender; provided that
such Participant agrees to be subject to Section 2.13 as though it
were a Lender.


 


(e)                                  A Participant
shall not be entitled to receive any greater payment under Section 3.01,
Section 3.04 or Section 3.05 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 relevant Borrower’s prior written consent and such Participant
complies with Section 3.01, Section 3.06 and Section 10.15
as if such Participant were a Lender under Section 10.15.  A Participant shall not be entitled to the
benefits of Section 3.01 unless the relevant Borrower is notified
of the participation sold to such Participant and such Participant agrees, for
the benefit of the relevant Borrower, to comply with Section 3.01, Section 3.06
and Section 10.15 as though it were a Lender.


 


(f)                                    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)                                 Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special
purpose funding vehicle identified as such in writing from time to time by the
Granting Lender to the Administrative Agent and the relevant Borrower (an “SPC”) the option to provide all or any part
of any Loan that such Granting Lender would otherwise be obligated to make
pursuant to this Agreement; provided
that (i) nothing herein shall constitute a commitment by any SPC to fund
any Loan, and (ii) if an SPC elects not to exercise such option or
otherwise fails to make all or any 


 


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part of such Loan, the Granting Lender shall be
obligated to make such Loan pursuant to the terms hereof.  Each party hereto hereby agrees that (i) neither
the grant to any SPC nor the exercise by any SPC of such option shall increase
the costs or expenses or otherwise increase or change the obligations of the
relevant Borrower under this Agreement (including its obligations under Section 3.01,
Section 3.04 or Section 3.05), (ii) no SPC shall
be liable for any indemnity or similar payment obligation under this Agreement
for which a Lender would be liable, and (iii) the Granting Lender shall
for all purposes, including the approval of any amendment, waiver or other
modification of any provision of any Loan Document, remain the lender of record
hereunder.  The making of a Loan by an
SPC hereunder shall utilize the Revolving Credit Commitment of the Granting
Lender to the same extent, and as if, such Loan were made by such Granting Lender.  Notwithstanding anything to the contrary
contained herein, any SPC may (i) with notice to, but without prior
consent of the relevant Borrower and the Administrative Agent, assign all or
any portion of its right to receive payment with respect to any Loan to the
Granting Lender and (ii) disclose on a confidential basis any non-public
information relating to its funding of Loans to any rating agency, commercial
paper dealer or provider of any surety or Guarantee or credit or liquidity
enhancement to such SPC.


 


(h)                                 Notwithstanding
anything to the contrary contained herein, any Lender that is a Fund may,
without the consent of or notice to the Administrative Agent or any Borrower,
create a security interest in all or any portion of the Loans owing to it and
the Note, if any, held by it to the trustee for holders of obligations owed, or
securities issued, by such Fund as security for such obligations or securities;
provided that unless and until
such trustee actually becomes a Lender in compliance with the other provisions
of this Section 10.07, (i) no such pledge shall release the
pledging Lender from any of its obligations under the Loan Documents and (ii) such
trustee shall not be entitled to exercise any of the rights of a Lender under
the Loan Documents even though such trustee may have acquired ownership rights
with respect to the pledged interest through foreclosure or otherwise (unless
such trustee is an Eligible Assignee which has complied with the requirements
of Section 10.07(b)).


 


(i)                                     Notwithstanding
anything to the contrary contained herein, any L/C Issuer or the Swing Line
Lender may, upon thirty (30) days’ notice to the Borrowers and the Lenders,
resign as a L/C Issuer and/or the Swing Line Lender; provided that on or prior to the expiration of such 30-day
period with respect to such L/C Issuer’s resignation as a L/C Issuer, such L/C
Issuer shall have identified a successor L/C Issuer reasonably acceptable to
the Borrowers willing to accept its appointment as a successor L/C Issuer.  In the event of any such resignation as a L/C
Issuer or the Swing Line Lender, the Borrowers shall be entitled to appoint
from among the Lenders willing to accept such appointment a successor L/C
Issuer or Swing Line Lender hereunder; provided
that no failure by the Borrowers to appoint any such successor shall affect the
resignation of such L/C Issuer as a L/C Issuer or the Swing Line Lender, as the
case may be, except as expressly provided above.  If any L/C Issuer resigns as a L/C Issuer, it
shall retain all the rights and obligations of a L/C Issuer hereunder with
respect to all Letters of Credit outstanding as of the effective date of its
resignation as a 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 the Swing Line Lender 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).


 


SECTION 10.08.  Confidentiality.  Each of the Agents and the
Lenders agrees to maintain the confidentiality of the Information, except that
Information may be disclosed (a) to its and its Affiliates’ directors,
officers, employees, trustees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential in 


 


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accordance with this Section 10.08);
(b) to the extent requested by any regulatory authority; (c) to the
extent required by applicable Laws or regulations or by any subpoena or similar
legal process; (provided that the
Agent or Lender that discloses any Information pursuant to this clause (c) shall
provide the Loan Parties prompt notice of such disclosure to the extent
permitted by applicable Law so that such Loan Parties may seek an appropriate
protective order or other appropriate remedy); (d) to any other party to
this Agreement; (e) subject to an agreement containing provisions no less
restrictive than those of this Section 10.08 (or as may otherwise
be reasonably acceptable to the Loan Parties), to any Eligible Assignee of or
Participant in, or any prospective Eligible Assignee of or Participant in, any
of its rights or obligations under this Agreement; (f) with the specific
prior written consent of the Responsible Officers of the applicable Loan Party;
(g) to the extent such Information becomes publicly available other than
as a result of a breach of this Section 10.08; (h) to any
state, Federal or foreign authority or examiner (including the National
Association of Insurance Commissioners or any other similar organization)
regulating any Lender; (i) to any rating agency when required by it (it
being understood that, prior to any such disclosure, such rating agency shall
undertake to preserve the confidentiality of any Information relating to the
Loan Parties received by it from such Lender in accordance herewith); (j) 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 to the
extent reasonably necessary in connection with such enforcement or (k) to
any direct or indirect contractual counterparty in swap agreements or such
contractual counterparty’s professional advisor (so long as such contractual
counterparty or professional advisor to such contractual counterparty agrees to
be bound by the provisions of this Section 10.08).  In addition, the Agents and the Lenders may
disclose the existence of this Agreement and information about this Agreement
to market data collectors, similar service providers to the lending industry,
and service providers to the Agents and the Lenders in connection with the
administration and management of this Agreement, the other Loan Documents, the
Revolving Credit Commitments, and the Credit Extensions.  For the purposes of this Section 10.08,
“Information” means all
information received from any Loan Party relating to any Loan Party or its
business, other than any such information that is publicly available to any
Agent or any Lender on a non-confidential basis prior to disclosure by any Loan
Party other than as a result of a breach of this Section 10.08.


 


SECTION 10.09.  Setoff.  In addition to any rights
and remedies of the Lenders provided by Law, upon the occurrence and during the
continuance of any Event of Default, after obtaining the prior written consent
of the Administrative Agent, each Lender is authorized at any time and from
time to time, without prior notice to the Borrowers or any other Loan Party,
any such notice being waived by each of the Borrowers (on its own behalf and on
behalf of each Loan Party) to the fullest extent permitted by Law, to set off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held by, and other Indebtedness at any time owing by,
such Lender to or for the credit or the account of the respective Loan Parties
against any and all Obligations owing to such Lender hereunder or under any
other Loan Document, now or hereafter existing, irrespective of whether or not
such Agent or such Lender shall have made demand under this Agreement or any
other Loan Document and although such Obligations may be contingent or
unmatured.  Each Lender agrees promptly
to notify the Borrowers and the Administrative Agent after any such set off and
application made by such Lender; provided
that the failure to give such notice shall not affect the validity of such
setoff and application.  The rights of
the Administrative Agent and each Lender under this Section 10.09
are in addition to other rights and remedies (including, without limitation,
other rights of setoff) that the Administrative Agent and such Lender may have.


 


SECTION 10.10.  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 any Agent or any
Lender shall receive interest in an amount that exceeds the Maximum Rate, 


 


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the excess interest shall be applied to the
principal of the Loans or, if it exceeds such unpaid principal, refunded to the
Borrowers.  In determining whether the
interest contracted for, charged, or received by an 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.


 


SECTION 10.11.  Counterparts.  This Agreement and each
other Loan Document may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.  Delivery by
telecopier or “pdf” of an executed counterpart of a signature page to this
Agreement and each other Loan Document shall be effective as delivery of an
original executed counterpart of this Agreement and such other Loan
Document.  The Agents may also require
that any such documents and signatures delivered by telecopier or “pdf” be
confirmed by a manually signed original thereof; provided that the failure to request or deliver the same
shall not limit the effectiveness of any document or signature delivered by
telecopier or “pdf”.


 


SECTION 10.12.  Integration.  This Agreement, together
with the other Loan Documents, comprises the complete and integrated agreement
of the parties on the subject matter hereof and thereof and supersedes all
prior agreements, written or oral, on such subject matter.  In the event of any conflict between the
provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; provided
that the inclusion of supplemental rights or remedies in favor of the Agents or
the Lenders in any other Loan Document shall not be deemed a conflict with this
Agreement.  Each Loan Document was
drafted with the joint participation of the respective parties thereto and
shall be construed neither against nor in favor of any party, but rather in
accordance with the fair meaning thereof.


 


SECTION 10.13.  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 each Agent and each Lender, regardless of any
investigation made by any Agent or any Lender or on their behalf and notwithstanding
that any Agent or any Lender may have had notice or knowledge of any Default at
the time of any Credit Extension, and shall continue in full force and effect
as long as any Loan or any other Obligation (other than contingent
indemnification obligations to the extent not then due and payable or Letters
of Credit that have been cash collateralized in a manner satisfactory to the
applicable L/C Issuer) hereunder shall remain unpaid or unsatisfied or any
Letter of Credit shall remain outstanding except as set forth in Section 2.03(g).


 


SECTION 10.14.  Severability.  If any provision of this
Agreement or the other Loan Documents is held to be illegal, invalid or
unenforceable, the legality, validity and enforceability of the remaining
provisions of this Agreement and the other Loan Documents shall not be affected
or impaired thereby.  The invalidity of a
provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.


 


SECTION 10.15.  Tax Forms.  (a)  (i)  Each
Lender and Agent that is not a “United States person” within the meaning of Section 7701(a)(30)
of the Code that lends to the Borrowers (each, a “Non-US Lender”) shall deliver to the Borrowers and the
Administrative Agent, on or prior to the date which is ten (10) Business
Days after the Amendment Closing Date (or upon accepting an assignment of an
interest herein), two duly signed, properly completed copies of either IRS Form W-8BEN
or any successor thereto (relating to such Non-US Lender and entitling it to an
exemption from, or reduction of, 


 


119

















 


United States withholding tax on all payments
to be made to such Non-US Lender by the Borrowers pursuant to this Agreement or
any other Loan Document) or IRS Form W-8ECI or any successor thereto
(relating to all payments to be made to such Non-US Lender by the Borrowers
pursuant to this Agreement or any other Loan Document) or such other evidence
reasonably satisfactory to the Borrowers and the Administrative Agent that such
Non-US Lender is entitled to an exemption from, or reduction of, United States
withholding tax, including any exemption pursuant to Section 881(c) of
the Code, and in the case of a Non-US Lender claiming such an exemption under Section 881(c) of
the Code, a certificate that establishes in writing to the Borrowers and the
Administrative Agent that such Non-US Lender is not (i) a “bank” as
defined in Section 881(c)(3)(A) of the Code, (ii) a 10 percent
shareholder within the meaning of Section 871(h)(3)(B) of the Code,
or (iii) a controlled foreign corporation related to the Borrowers with
the meaning of Section 864(d) of the Code.  Thereafter and from time to time, each such
Non-US Lender shall (A) promptly submit to the Borrowers and the
Administrative Agent such additional duly and properly completed and signed
copies of one or more of such forms or certificates (or such successor forms or
certificates as shall be adopted from time to time by the relevant United
States taxing authorities) as may then be available under then current United
States laws and regulations to avoid, or such evidence as is reasonably
satisfactory to the Borrowers and the Administrative Agent of any available
exemption from, or reduction of, United States withholding taxes in respect of
all payments to be made to such Non-US Lender by the Borrowers pursuant to this
Agreement, or any other Loan Document, in each case, (1) on or before the
date that any such form, certificate or other evidence expires or becomes
obsolete, (2) after the occurrence of any event requiring a change in the
most recent form, certificate or evidence previously delivered by it to the
Borrowers and the Administrative Agent and (3) from time to time
thereafter if reasonably requested by the Borrowers or the Administrative
Agent, and (B) promptly notify the Borrowers and the Administrative Agent
of any change in circumstances which would modify or render invalid any claimed
exemption or reduction.


 


(ii)                                  Each Non-US
Lender, to the extent it does not act or ceases to act for its own account with
respect to any portion of any sums paid or payable to such Non-US Lender under
any of the Loan Documents (for example, in the case of a typical participation
by such Non-US Lender), shall deliver to the Borrowers and the Administrative
Agent on the date when such Non-US Lender ceases to act for its own account
with respect to any portion of any such sums paid or payable, and at such other
times as may be necessary in the determination of the Borrowers or the
Administrative Agent (in either case, in the reasonable exercise of its
discretion), (A) two duly signed, properly completed copies of the forms
or statements required to be provided by such Non-US Lender as set forth above,
to establish the portion of any such sums paid or payable with respect to which
such Non-US Lender acts for its own account that is not subject to United
States withholding tax, and (B) two duly signed, properly completed copies
of IRS Form W-8IMY (or any successor thereto), together with any
information such Non-US Lender chooses to transmit with such form, and any
other certificate or statement of exemption required under the Code, to
establish that such Non-US Lender is not acting for its own account with
respect to a portion of any such sums payable to such Non-US Lender.


 


(iii)                               If any form or
document referred to in this Section 10.15 requires the disclosure
of information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service, that the
applicable Non-US Lender reasonably considers to be confidential, such Lender
shall give notice thereof to the Borrowers and shall not be obligated to
include in such form or document such confidential information.


 


(iv)                              The Borrowers
shall not be required to pay any additional amount or any indemnity payment
under Section 3.01 to (A) any Non-US Lender with respect to
any Taxes required to be deducted or withheld on the basis of the information,
certificates or statements of exemption such Lender transmits pursuant to this Section 10.15(a),
or (B) any Non-US Lender with respect to any Taxes required to the
deducted or withheld by reason of such Non-US Lender’s failure to satisfy the
foregoing provisions of 


 


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this Section 10.15(a), with respect to
Taxes required to be deducted or withheld by reason of such US Lender’s
failure; provided that if such
Lender shall have satisfied the requirement of this Section 10.15(a) on
the date such Lender became a Lender to the Borrowers or ceased to act for its
own account with respect to any payment under any of the Loan Documents,
nothing in this Section 10.15(a) shall relieve the Borrowers
of their obligation to pay any amounts pursuant to Section 3.01 if
such Lender’s failure to satisfy the provisions of Section 10.15(a) is
reasonably the result of any change in any applicable Law, treaty or
governmental rule, regulation or order, or any change in the interpretation,
administration or application thereof.


 


(v)                                 The
Administrative Agent may deduct and withhold any taxes required by any Laws to
be deducted and withheld from any payment under any of the Loan Documents.


 


SECTION 10.16.  Process Agent.  Each party to this Agreement
irrevocably consents to service of process in the manner provided for notices
in Section 10.02.  In
addition, each Loan Party not organized in the United States of America or a
state thereof hereby irrevocably appoints National Registered Agents, Inc.
(the “Process Agent”) with an
office on the date hereof at 111 Eighth Avenue, New York, New York 10011 in the
United States, as its agent to receive on behalf of such Loan Party and its
property service of copies of the summons and complaint and any other process
that may be served in any such action or proceeding.  Such service may be made by mailing or
delivering a copy of such process to such Loan Party in care of the Process
Agent at the Process Agent’s above address, and such Loan Party hereby
irrevocably authorizes and directs the Process Agent to accept such service on
its behalf.  As an alternative method of
service, each Loan Party not organized in the United States of America or a
state thereof also irrevocably consents to the service of any and all process in
any such action or proceeding by the mailing of copies of such process to such
Loan Party at its address specified in Section 10.02 (such service
to be effective seven days after mailing thereof).  Each Loan Party not organized in the United
States of America or a state thereof covenants and agrees that it shall take
any and all reasonable action, including the execution and filing of any and
all documents, that may be necessary to continue the designation of the Process
Agent above in full force and effect, and to cause the Process Agent to
continue to act as such.  Nothing in this
Section 10.16 shall affect the right of any Lender or the
Administrative Agent to serve legal process in any other manner permitted by
applicable law or affect the right of any Lender or the Administrative Agent to
bring any suit, action or proceeding against each Loan Party or its property in
the courts of other jurisdictions.


 


SECTION 10.17.  Release of Collateral.  Upon the sale, lease,
transfer or other disposition of any item of Collateral of or by any Loan Party
(including, without limitation, as a result of the sale, in accordance with the
terms of the Loan Documents, of the Loan Party that owns such Collateral) in
accordance with the terms of the Loan Documents, the security interest granted
under the Collateral Documents in such Collateral shall automatically terminate
and the Collateral Agent will, promptly and at the Borrowers’ expense, promptly
execute and deliver to such Loan Party such documents as such Loan Party may
reasonably request to evidence the release of such item of Collateral from the
Liens granted under the Collateral Documents in accordance with the terms of
the Loan Documents.


 


SECTION 10.18.  GOVERNING LAW.  (a)  THIS AGREEMENT AND
EACH OTHER LOAN DOCUMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.


 


(b)                                 ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK CITY OR OF
THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, 


 


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EACH BORROWER, EACH AGENT AND EACH LENDER CONSENTS,
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF
THOSE COURTS.  EACH BORROWER, EACH AGENT
AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO
THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM
NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY
LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO.


 


SECTION 10.19.  WAIVER OF RIGHT TO TRIAL BY JURY.  EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT
OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION 10.19 WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF
THEIR RIGHT TO TRIAL BY JURY.


 


SECTION 10.20.  Binding Effect.  This Agreement shall become
effective when it shall have been executed by each Borrower and the
Administrative Agent shall have been notified by each Lender, Swing Line Lender
and the L/C Issuer that each such Lender, Swing Line Lender and the L/C Issuer
has executed it and the conditions set forth in Section 4.01 shall
have been satisfied or waived, and thereafter shall be binding upon and inure
to the benefit of each Borrower, each Agent and each Lender and their respective
successors and assigns, except that no Borrower shall have the right to assign
its rights hereunder or any interest herein without the prior written consent
of the Lenders except as permitted by Section 7.04.


 


SECTION 10.21.  USA Patriot Act Notice.  Each Lender that is subject
to the Patriot Act and the Administrative Agent (for itself and not on behalf
of any Lender) hereby notifies the Borrowers that pursuant to the requirements
of the Patriot Act, it is required to obtain, verify and record information
that identifies each Borrower, which information includes the name and address
of each Borrower and other information that will allow such Lender or the
Administrative Agent, as applicable, to identify each Borrower in accordance
with the Act.


 


[THE REMAINDER OF THIS PAGE IS
INTENTIONALLY LEFT BLANK.]


 


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


 


	
   

  	
  UNIVERSAL
  HOSPITAL SERVICES, INC.,

  
	
   

  	
  as Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Rex T. Clevenger

  
	
   

  	
   

  	
  Name: Rex T. Clevenger

  
	
   

  	
   

  	
  Title: CFO &
  Executive Vice President

  



 

















 


	
   

  	
  UHS
  HOLDCO, INC.,

  
	
   

  	
  as Parent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Rex T. Clevenger

  
	
   

  	
   

  	
  Name: Rex T. Clevenger

  
	
   

  	
   

  	
  Title: CFO &
  Executive Vice President

  



 

















 


	
   

  	
  GE
  BUSINESS FINANCIAL SERVICES INC.,

  
	
   

  	
  individually
  as a Lender and as Administrative

  Agent, Initial L/C Issuer and Initial Swing

  Line Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  WACHOVIA
  BANK, N.A.,

  
	
   

  	
  individually
  as a Lender and as Initial L/C

  Issuer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
   

  
	
   

  	
  ,

  
	
   

  	
  [INSERT LENDER NAME]

  
	
   

  	
  individually as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title: