EXHIBIT 10.1


 




 





CREDIT AGREEMENT

among



NMH HOLDINGS, LLC,



NATIONAL MENTOR HOLDINGS, INC.,



as Borrower,



The Several Lenders from Time to Time Parties Hereto,



and



JPMORGAN CHASE BANK, N.A.,

as Administrative Agent



Dated as of June 29, 2006



J.P. MORGAN SECURITIES INC.

and

UBS SECURITIES LLC,

as Joint Lead Arrangers


 


J.P. MORGAN SECURITIES INC.,

UBS SECURITIES LLC

and

BANC OF AMERICA SECURITIES LLC,

as Joint Bookrunners


 


BANK OF AMERICA, N.A.,

and

GENERAL ELECTRIC CAPITAL CORPORATION

as Co-Documentation Agents


 


UBS SECURITIES LLC,

as Syndication Agent




 





 


[6701-602]


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 1. DEFINITIONS

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.1  Defined Terms

  	
   

  	
  1

  
	
   

  	
  1.2  Other Definitional
  Provisions

  	
   

  	
  35

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2. AMOUNT AND TERMS OF COMMITMENTS

  	
   

  	
  36

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.1  Tranche B Term Commitments
  and Institutional L/C Commitments

  	
   

  	
  36

  
	
   

  	
  2.2  Procedure for Tranche B
  Term Loan Borrowings and Credit-Linked Deposits

  	
   

  	
  36

  
	
   

  	
  2.3  Repayment of Tranche B
  Term Loans

  	
   

  	
  36

  
	
   

  	
  2.4  Revolving Commitments

  	
   

  	
  37

  
	
   

  	
  2.5  Procedure for Revolving
  Loan Borrowing

  	
   

  	
  37

  
	
   

  	
  2.6  Swingline Commitment

  	
   

  	
  38

  
	
   

  	
  2.7  Procedure for Swingline
  Borrowing; Refunding of Swingline Loans

  	
   

  	
  38

  
	
   

  	
  2.8  Commitment Fees, etc.

  	
   

  	
  40

  
	
   

  	
  2.9  Termination or Reduction
  of Commitments

  	
   

  	
  40

  
	
   

  	
  2.10  Optional Prepayments

  	
   

  	
  40

  
	
   

  	
  2.11  Mandatory Prepayments

  	
   

  	
  41

  
	
   

  	
  2.12  Conversion and
  Continuation Options

  	
   

  	
  42

  
	
   

  	
  2.13  Limitations on Eurodollar
  Tranches

  	
   

  	
  43

  
	
   

  	
  2.14  Interest Rates and
  Payment Dates

  	
   

  	
  43

  
	
   

  	
  2.15  Computation of Interest
  and Fees

  	
   

  	
  43

  
	
   

  	
  2.16  Inability to Determine
  Interest Rate

  	
   

  	
  44

  
	
   

  	
  2.17  Pro Rata Treatment and
  Payments

  	
   

  	
  44

  
	
   

  	
  2.18  Requirements of Law

  	
   

  	
  46

  
	
   

  	
  2.19  Taxes

  	
   

  	
  47

  
	
   

  	
  2.20  Indemnity

  	
   

  	
  49

  
	
   

  	
  2.21  Change of Lending Office

  	
   

  	
  50

  
	
   

  	
  2.22  Replacement of Lenders

  	
   

  	
  50

  
	
   

  	
  2.23  Limitation on Additional
  Amounts, etc.

  	
   

  	
  51

  
	
   

  	
  2.24  Credit-Linked Deposits

  	
   

  	
  51

  
	
   

  	
  2.25  Incremental Credit
  Extensions

  	
   

  	
  53

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3. LETTERS OF CREDIT

  	
   

  	
  55

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.1  Letters of Credit

  	
   

  	
  55

  
	
   

  	
  3.2  Procedure for Issuance of
  Letter of Credit

  	
   

  	
  56

  
	
   

  	
  3.3  Fees and Other Charges

  	
   

  	
  57

  
	
   

  	
  3.4  L/C Participations

  	
   

  	
  57

  
	
   

  	
  3.5  Reimbursement Obligation
  of the Borrower

  	
   

  	
  59

  
	
   

  	
  3.6  Obligations Absolute

  	
   

  	
  59

  
	
   

  	
  3.7  Letter of Credit Payments

  	
   

  	
  60

  
	
   

  	
  3.8  Applications

  	
   

  	
  60

  
	
   

  	
  3.9  Obligations of Certain
  Issuing Lenders

  	
   

  	
  60

  



 


i

















 


	
  SECTION 4. REPRESENTATIONS AND WARRANTIES

  	
   

  	
  60

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1  Financial Condition

  	
   

  	
  60

  
	
   

  	
  4.2  No Change

  	
   

  	
  61

  
	
   

  	
  4.3  Existence; Compliance with
  Law

  	
   

  	
  61

  
	
   

  	
  4.4  Power; Authorization;
  Enforceable Obligations

  	
   

  	
  62

  
	
   

  	
  4.5  No Legal Bar

  	
   

  	
  62

  
	
   

  	
  4.6  Litigation

  	
   

  	
  62

  
	
   

  	
  4.7  No Default

  	
   

  	
  62

  
	
   

  	
  4.8  Ownership of Property;
  Liens

  	
   

  	
  62

  
	
   

  	
  4.9  Licenses, Intellectual
  Property

  	
   

  	
  63

  
	
   

  	
  4.10  Taxes

  	
   

  	
  63

  
	
   

  	
  4.11  Federal Regulations

  	
   

  	
  63

  
	
   

  	
  4.12  Labor Matters

  	
   

  	
  63

  
	
   

  	
  4.13  ERISA

  	
   

  	
  63

  
	
   

  	
  4.14  Investment Company Act;
  Other Regulations

  	
   

  	
  64

  
	
   

  	
  4.15  Subsidiaries

  	
   

  	
  64

  
	
   

  	
  4.16  Use of Proceeds

  	
   

  	
  64

  
	
   

  	
  4.17  Environmental Matters

  	
   

  	
  65

  
	
   

  	
  4.18  Accuracy of Information,
  etc

  	
   

  	
  65

  
	
   

  	
  4.19  Security Documents

  	
   

  	
  66

  
	
   

  	
  4.20  Solvency

  	
   

  	
  67

  
	
   

  	
  4.21  Senior Indebtedness

  	
   

  	
  67

  
	
   

  	
  4.22  Regulation H

  	
   

  	
  67

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5. CONDITIONS PRECEDENT

  	
   

  	
  67

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.1  Conditions to Initial
  Extension of Credit

  	
   

  	
  67

  
	
   

  	
  5.2  Conditions to Each
  Extension of Credit

  	
   

  	
  70

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6. AFFIRMATIVE COVENANTS

  	
   

  	
  70

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.1  Financial Statements

  	
   

  	
  71

  
	
   

  	
  6.2  Certificates; Other
  Information

  	
   

  	
  72

  
	
   

  	
  6.3  Payment of Taxes

  	
   

  	
  73

  
	
   

  	
  6.4  Maintenance of Existence;
  Compliance

  	
   

  	
  73

  
	
   

  	
  6.5  Maintenance of Property;
  Insurance

  	
   

  	
  73

  
	
   

  	
  6.6  Inspection of Property;
  Books and Records; Discussions

  	
   

  	
  74

  
	
   

  	
  6.7  Notices

  	
   

  	
  74

  
	
   

  	
  6.8  Environmental Laws

  	
   

  	
  75

  
	
   

  	
  6.9  Additional Collateral, etc

  	
   

  	
  75

  
	
   

  	
  6.10  Initial
  Mortgages/Deferred Mortgages

  	
   

  	
  77

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.  NEGATIVE COVENANTS

  	
   

  	
  77

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.1  Financial Condition
  Covenants

  	
   

  	
  77

  
	
   

  	
  7.2  Indebtedness

  	
   

  	
  78

  



 


ii

















 


	
   

  	
  7.3  Liens

  	
   

  	
  81

  
	
   

  	
  7.4  Fundamental Changes

  	
   

  	
  84

  
	
   

  	
  7.5  Disposition of Property

  	
   

  	
  85

  
	
   

  	
  7.6  Restricted Payments

  	
   

  	
  86

  
	
   

  	
  7.7  Capital Expenditures

  	
   

  	
  88

  
	
   

  	
  7.8  Investments

  	
   

  	
  88

  
	
   

  	
  7.9  Optional Prepayments and
  Modifications of Certain Debt Instruments and Material Agreements

  	
   

  	
  91

  
	
   

  	
  7.10  Transactions with Affiliates

  	
   

  	
  91

  
	
   

  	
  7.11  Sales and Leasebacks

  	
   

  	
  92

  
	
   

  	
  7.12  Swap Agreements

  	
   

  	
  92

  
	
   

  	
  7.13  Changes in Fiscal Periods

  	
   

  	
  92

  
	
   

  	
  7.14  Negative Pledge Clauses

  	
   

  	
  92

  
	
   

  	
  7.15  Clauses Restricting
  Subsidiary Distributions

  	
   

  	
  93

  
	
   

  	
  7.16  Lines of Business

  	
   

  	
  93

  
	
   

  	
  7.17  Insurance Subsidiary
  Investments

  	
   

  	
  94

  
	
   

  	
  7.18  Insurance Subsidiary

  	
   

  	
  94

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8. EVENTS OF DEFAULT

  	
   

  	
  94

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9. THE AGENTS

  	
   

  	
  98

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.1  Appointment

  	
   

  	
  98

  
	
   

  	
  9.2  Delegation of Duties

  	
   

  	
  98

  
	
   

  	
  9.3  Exculpatory Provisions

  	
   

  	
  98

  
	
   

  	
  9.4  Reliance by Administrative
  Agent

  	
   

  	
  99

  
	
   

  	
  9.5  Notice of Default

  	
   

  	
  99

  
	
   

  	
  9.6  Non-Reliance on Agents and
  Other Lenders

  	
   

  	
  99

  
	
   

  	
  9.7  Indemnification

  	
   

  	
  100

  
	
   

  	
  9.8  Agent in Its Individual
  Capacity

  	
   

  	
  100

  
	
   

  	
  9.9  Successor Administrative
  Agent

  	
   

  	
  101

  
	
   

  	
  9.10  Joint Lead Arrangers,
  Joint Bookrunners, Co-Documentation Agents and Syndication Agent

  	
   

  	
  101

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 10. MISCELLANEOUS

  	
   

  	
  101

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.1  Amendments and Waivers

  	
   

  	
  101

  
	
   

  	
  10.2  Notices

  	
   

  	
  104

  
	
   

  	
  10.3  No Waiver; Cumulative
  Remedies

  	
   

  	
  104

  
	
   

  	
  10.4  Survival of
  Representations and Warranties

  	
   

  	
  105

  
	
   

  	
  10.5  Payment of Expenses and
  Taxes

  	
   

  	
  105

  
	
   

  	
  10.6  Successors and Assigns;
  Participations and Assignments

  	
   

  	
  106

  
	
   

  	
  10.7  Adjustments; Set-off

  	
   

  	
  109

  
	
   

  	
  10.8  Counterparts

  	
   

  	
  110

  
	
   

  	
  10.9  Severability

  	
   

  	
  110

  
	
   

  	
  10.10  Integration

  	
   

  	
  110

  
	
   

  	
  10.11  Governing Law

  	
   

  	
  111

  



 


iii

















 


	
   

  	
  10.12  Submission To
  Jurisdiction; Waivers

  	
   

  	
  111

  
	
   

  	
  10.13  Acknowledgements

  	
   

  	
  111

  
	
   

  	
  10.14  Releases of Guarantees
  and Liens

  	
   

  	
  112

  
	
   

  	
  10.15  Confidentiality

  	
   

  	
  112

  
	
   

  	
  10.16  WAIVERS OF JURY TRIAL

  	
   

  	
  113

  
	
   

  	
  10.17  USA PATRIOT Act

  	
   

  	
  113

  
	
   

  	
  10.18  Replacement of Holdings

  	
   

  	
  113

  



 


iv

















 


	
  SCHEDULES:

  
	
   

  
	
  1.1A

  	
   

  	
  Commitments

  
	
  1.1B

  	
   

  	
  Initial Mortgaged Properties

  
	
  1.1C

  	
   

  	
  Liquidating Subsidiaries

  
	
  1.1D

  	
   

  	
  Deferred Mortgaged Properties

  
	
  4.4

  	
   

  	
  Consents, Authorizations, Filings and Notices

  
	
  4.6

  	
   

  	
  Litigation

  
	
  4.7

  	
   

  	
  No Default

  
	
  4.8

  	
   

  	
  Real Property

  
	
  4.9

  	
   

  	
  Licenses

  
	
  4.15(a)

  	
   

  	
  Organizational Structure

  
	
  4.15(b)

  	
   

  	
  Subsidiaries

  
	
  4.19(a)

  	
   

  	
  UCC Filing Jurisdictions

  
	
  7.2(d)

  	
   

  	
  Existing Indebtedness

  
	
  7.3(f)

  	
   

  	
  Existing Liens

  
	
  7.8(g)

  	
   

  	
  Existing Investments

  
	
  7.10

  	
   

  	
  Transactions with Affiliates

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS:

  
	
   

  
	
  A

  	
   

  	
  Form of Assignment and Assumption

  
	
  B

  	
   

  	
  Form of Guarantee and Security Agreement

  
	
  C

  	
   

  	
  Form of Exemption Certificate

  
	
  D

  	
   

  	
  Form of Legal Opinion of Simpson Thacher & Bartlett LLP

  
	
  E

  	
   

  	
  Form of Reinvestment Notice

  
	
  F

  	
   

  	
  Form of Compliance Certificate

  



 


v

















 


CREDIT AGREEMENT dated as of June 29,
2006, among NMH Holdings, LLC, a Delaware limited liability company (“Holdings”),
National MENTOR Holdings, Inc., a Delaware corporation (the “Borrower”),
the several banks and other financial institutions or entities from time to
time parties to this Agreement (the “Lenders”) and JPMorgan Chase Bank,
N.A., as administrative agent.


 


RECITALS


 


WHEREAS, Holdings and NMH Mergersub, Inc., a Delaware corporation that
is a wholly owned subsidiary of Holdings (“Mergersub”), are parties to
the Transaction Agreement (such term, and other capitalized terms used but not
defined in these recitals, having the meanings hereinafter specified), pursuant
to which Mergersub is merging with and into the Borrower (the “Merger”),
with the Borrower being the surviving corporation of the Merger and a wholly
owned subsidiary of Holdings;


 


WHEREAS, in connection with the Merger, the Borrower will pay the
Merger Consideration and cause the Debt Discharge to be consummated; and


 


WHEREAS, in order to finance the Merger Consideration, the Debt
Discharge and the payment of Closing Costs, the parties are consummating the
Financing Transactions, including the execution and delivery of this Agreement;


 


NOW, THEREFORE, in consideration of the premises and the agreements
hereinafter set forth, the parties hereto hereby agree as follows:


 


SECTION 1. DEFINITIONS


 


1.1           Defined Terms. As used in this
Agreement, the terms listed in this Section 1.1 shall have the respective
meanings set forth in this Section 1.1.


 


“ABR”:  for any day, a
rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to
the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1⁄2 of 1%. For purposes
hereof:  “Prime Rate” shall mean
the rate of interest per annum publicly announced from time to time by JPMorgan
Chase Bank, N.A., as its prime rate in effect at its principal office in New
York City (the Prime Rate not being intended to be the lowest rate of interest
charged by JPMorgan Chase Bank, N.A., in connection with extensions of credit
to debtors). Any change in the ABR due to a change in the Prime Rate or the
Federal Funds Effective Rate shall be effective as of the opening of business
on the effective day of such change in the Prime Rate or the Federal Funds
Effective Rate, respectively.


 


“ABR Loans”:  Loans the
rate of interest applicable to which is based upon the ABR.


 


“Acquired EBITDA” means, with respect to any Acquired Entity or
Business for any period, the amount for such period of Consolidated EBITDA of
such Acquired Entity or Business (determined as if references to the Borrower and
the Subsidiaries in the definition of


 

















 


Consolidated EBITDA were references to such Acquired Entity or Business
and its Subsidiaries (except to the extent such Subsidiaries will not
constitute Restricted Subsidiaries immediately after giving effect to such
acquisition)), all as determined on a consolidated basis for such Acquired
Entity or Business.


 


“Acquired Entity or Business”: as set forth in the definition of
the term “Consolidated EBITDA”.


 


“Acquisition”:  any
acquisition of all or substantially all of the assets or more than 80% of the
equity interests of any Person or division thereof.


 


“Additional Lender”:  as
defined in Section 2.25.


 


“Adjustment Date”:  as
defined in the Pricing Grid.


 


“Administrative Agent”: 
JPMorgan Chase Bank, N.A., as the administrative agent for the Lenders
under this Agreement and the other Loan Documents, together with any of its
successors.


 


“Affiliate”:  as to any
Person, any other Person that, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person. For purposes of
this definition, “control” of a Person means the power, directly or indirectly
to direct or cause the direction of the management and policies of such Person,
whether through the ability to exercise voting power, by contract or otherwise.


 


“Agents”:  the collective
reference to the Joint Lead Arrangers, the Joint Bookrunners, the Syndication
Agent, the Co-Documentation Agents and the Administrative Agent.


 


“Aggregate Exposure”: 
with respect to any Lender at any time, an amount equal to
(a) until the Closing Date, the aggregate amount of such Lender’s
Commitments at such time and (b) thereafter, the sum of (i) the
aggregate then unpaid principal amount of such Lender’s Tranche B Term Loans,
(ii) the amount of such Lender’s Revolving Commitment then in effect or,
if the Revolving Commitments have been terminated, the amount of such Lender’s
Revolving Extensions of Credit then outstanding and (iii) such Lender’s
Institutional L/C Percentage of the sum of the Institutional L/C Exposure at
such time plus the excess, if any, of the Total Credit-Linked Deposit over the
Institutional L/C Exposure (excluding any portion thereof represented by
Institutional L/C Disbursements in respect of which the applicable Issuing Lender
has been reimbursed from Credit-Linked Deposits) at such time.


 


“Aggregate Exposure Percentage”: 
with respect to any Lender at any time, the ratio (expressed as a
percentage) of such Lender’s Aggregate Exposure at such time to the Aggregate
Exposure of all Lenders at such time.


 


“Applicable Margin”:  for
each Type of Loan, the rate per annum set forth under the relevant column
heading below:


 


2

















 




	
   

  	
   

  	
  ABR Loans

  	
   

  	
  Eurodollar Loans

  	
   

  
	
  Revolving
  Loans and Swingline Loans

  	
   

  	
  1.50

  	
  %

  	
  2.50

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Tranche B
  Term Loans

  	
   

  	
  1.50

  	
  %

  	
  2.50

  	
  %

  






 


; provided, that on and after the first Adjustment Date after
the Closing Date, the Applicable Margin will be determined pursuant to the
Pricing Grid.


 


“Application”:  an
application, in such form as the Issuing Lender may specify from time to time,
requesting such Issuing Lender to open a Letter of Credit.


 


“Approved Fund”:  as
defined in Section 10.6(b).


 


“Asset Sale”:  any
Disposition of property or series of related Dispositions of property,
excluding (i) any such Disposition permitted by clause (a), (b), (c),
(d), (f) or (g) of Section 7.5, (ii) any Sale Leaseback Transaction
and (iii) other Dispositions to the extent that the Net Cash Proceeds to
the Loan Parties of all such other Dispositions do not exceed $3,000,000 in the
aggregate in any fiscal year.


 


“Assignee”:  as defined in
Section 10.6(b).


 


“Assignment and Assumption”: 
an Assignment and Assumption, substantially in the form of
Exhibit A.


 


“Available Revolving Commitment”:  as to any Revolving Lender at any time, an
amount equal to the excess, if any, of (a) such Lender’s Revolving
Commitment then in effect over (b) such Lender’s Revolving
Extensions of Credit then outstanding.


 


“Bank of America”: Bank of America, N.A., in its individual
capacity.


 


“Benchmark LIBOR Rate”: 
as defined in Section 2.24(b).


 


“Benefitted Lender”:  as
defined in Section 10.7(a).


 


“Board”:  the Board of
Governors of the Federal Reserve System of the United States (or any
successor).


 


“Borrower”:  as defined in
the preamble hereto.


 


“Borrowing Date”:  any
Business Day specified by the Borrower as a date on which the Borrower requests
the relevant Lenders to make Loans hereunder.


 


“Business”:  as defined in
Section 4.17(b).


 


“Business Day”:  a day other
than a Saturday, Sunday or other day on which commercial banks in New York City
are authorized or required by law to close, provided, that


 


3

















 


with respect to notices and determinations in connection with, and
payments of principal and interest on, Eurodollar Loans, such day is also a day
for trading by and between banks in Dollar deposits in the interbank eurodollar
market.


 


“Capital Expenditures”: 
for any period, with respect to any Person, the aggregate of all
expenditures by such Person and its Subsidiaries during such period for the
acquisition, rental, lease, purchase, construction, replacement, repair or use
of any property, the value of which should be capitalized under GAAP on a
consolidated balance sheet of such Person and its Subsidiaries (including,
without limitation, the aggregate principal amount of Capital Lease Obligations
incurred during such period).


 


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


 


“Capital Stock”:  any and
all shares, interests, participations or other equivalents (however designated)
of capital stock of a corporation, any and all equivalent ownership interests
in a Person (other than a corporation) and any and all warrants, rights or
options to purchase any of the foregoing.


 


“Cash Equivalents”:  (a)
marketable direct obligations issued by, or unconditionally guaranteed by, the
United States Government or issued by any agency thereof and backed by the full
faith and credit of the United States, in each case maturing within one year from
the date of acquisition; (b) certificates of deposit, time deposits, eurodollar
time deposits or overnight bank deposits having maturities of one year or less
from the date of acquisition issued by any Lender or by any commercial bank
organized under the laws of the United States or any state thereof having
combined capital and surplus of not less than $500,000,000; (c) commercial
paper of an issuer rated at least A-1 by Standard & Poor’s Ratings Services
(“S&P”) or P-1 by Moody’s Investors Service, Inc. (“Moody’s”),
or carrying an equivalent rating by a nationally recognized rating agency, if
both of the two named rating agencies cease publishing ratings of commercial
paper issuers generally, and maturing within one year from the date of
acquisition; (d) repurchase obligations of any Lender or of any commercial bank
satisfying the requirements of clause (b) of this definition, having a term of
not more than 30 days, with respect to securities issued or fully guaranteed or
insured by the United States government; (e) securities with maturities of one
year or less from the date of acquisition issued or fully guaranteed by any
state, commonwealth or territory of the United States, by any political
subdivision or taxing authority of any such state, commonwealth or territory or
by any foreign government, the securities of which state, commonwealth,
territory, political subdivision, taxing authority or foreign government (as
the case may be) are rated at least A by S&P or A by Moody’s; (f)
securities with maturities of one year or less from the date of acquisition
backed by standby letters of credit issued by any Lender or any commercial bank
satisfying the requirements of clause (b) of this definition; (g) money market
mutual or similar funds that invest substantially in assets satisfying the
requirements of clauses (a) through (f) of this


 


4

















 


definition; (h) money market funds that (i) comply with the criteria
set forth in SEC Rule 2a-7 under the Investment Company Act of 1940, as
amended, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have
portfolio assets of at least $5,000,000,000; or (i) other short-term
investments utilized by Foreign Subsidiaries in accordance with the normal
investment practices for cash management in investments of a type analogous to
the foregoing.


 


“Cash Management Obligations”: 
any obligations owed by Holdings, the Borrower or any of its
Subsidiaries to any Lender or any Affiliate of a Lender in respect of any
overdraft and other liabilities arising from treasury, depository and cash
management services or any automated clearing house transfers of funds and
designated by Holdings or the Borrower as being secured under the Security
Documents.


 


“Change of Control”:  (a)
prior to an Initial Public Offering, for any reason (i) the Permitted Holders
shall fail to have the right to appoint, directly or indirectly, a majority of
the board of managers of Holdings and thereby control the management of
Holdings, the Borrower and its Subsidiaries; (ii) Holdings shall cease to
own, directly or indirectly, 100% of the outstanding voting power of all
Capital Stock of the Borrower on a fully diluted basis; or (iii) the Permitted
Holders shall cease to own and control of record and beneficially, directly or
indirectly, on a fully diluted basis, at least 51% of the issued and
outstanding voting power of all Capital Stock of Holdings; and (b) after
any Initial Public Offering, (i) any “person” or “group” (as such terms are
used in Sections 13(d) and 14(d) of the Exchange Act), other than the Permitted
Holders is or becomes the beneficial owner, directly or indirectly, of more
than 40% of the total voting power of all Capital Stock of Holdings; (ii) the
event in subclause (a)(ii) of this definition shall occur; or
(iii)  a majority of the seats (other than vacant seats) on the board
of managers of Holdings is or becomes occupied by individuals who were neither
(A) nominated by the board of managers of Holdings nor (B) appointed by
managers so nominated.


 


“CLD Increase”:  as
defined in Section 2.25.


 


“Closing Costs”: 
non-recurring out-of-pocket costs, fees and expenses, including
attorneys’ fees, investment banking fees, sponsor fees and non-recurring fees
payable under the Fee Letter, in each case incurred and paid by the Sponsor or
any of the Loan Parties in connection with the Transactions.


 


“Closing Date”:  the date
on which the conditions precedent set forth in Section 5.1 shall have been
satisfied (or waived by the Agents and the Lenders in accordance herewith).


 


“Code”:  the Internal
Revenue Code of 1986, as amended from time to time.


 


“Co-Documentation Agents”: 
Bank of America and General Electric Capital Corporations, in their
capacity as Co-Documentation Agents hereunder.


 


“Collateral”:  all property
of the Loan Parties, now owned or hereafter acquired, upon which a Lien is
purported to be created by any Security Document.


 


5

















 


“Commitment”:  as to any
Lender, the sum of the Tranche B Term Commitment, the Revolving Commitment and
the Institutional L/C Commitment of such Lender.


 


“Commitment Fee Rate”:  a
rate per annum equal to 1⁄2 of 1%; provided, that on and after the first
Adjustment Date after the Closing Date, the Commitment Fee Rate will be
determined pursuant to the Pricing Grid.


 


“Commitment Increase”:  as
defined in Section 2.25.


 


“Commonly Controlled Entity”: 
an entity, whether or not incorporated, that is under common control
with the Borrower within the meaning of Section 4001 of ERISA or is part
of a group of entities that includes the Borrower and that is treated as a
single employer under Section 414 of the Code.


 


“Compliance Certificate”: 
a certificate duly executed by a Responsible Officer substantially in
the form of Exhibit F.


 


“Conduit Lender”:  any
special purpose corporation organized and administered by any Lender for the
purpose of making Loans or Credit-Linked Deposits otherwise required to be made
by such Lender and designated by such Lender in a written instrument; provided,
that the designation by any Lender of a Conduit Lender shall not relieve the
designating Lender of any of its obligations to fund a Loan or a Credit-Linked
Deposit under this Agreement if, for any reason, its Conduit Lender fails to
fund any such Loan or Credit-Linked Deposit, and the designating Lender (and
not the Conduit Lender) shall have the sole right and responsibility to deliver
all consents and waivers required or requested under this Agreement with
respect to its Conduit Lender, and provided, further, that no
Conduit Lender shall (a) be entitled to receive any greater amount pursuant to
Section 2.18, 2.19, 2.20 or 10.5 than the designating Lender would have
been entitled to receive in respect of the extensions of credit made by such
Conduit Lender or (b) be deemed to have any Commitment.


 


“Confidential Information Memorandum”:  the Confidential Information Memorandum dated
June 2006 and furnished to certain Lenders.


 


“Consolidated Current Assets”: 
at any date, all amounts (other than cash and Cash Equivalents, deferred
income taxes and debts due from Affiliates) that would, in conformity with
GAAP, be set forth opposite the caption “total current assets” (or any like
caption) on a consolidated balance sheet of the Borrower and its Subsidiaries
at such date.


 


“Consolidated Current Liabilities”:  at any date, all amounts that would, in
conformity with GAAP, be set forth opposite the caption “total current
liabilities” (or any like caption) on a consolidated balance sheet of the
Borrower and its Subsidiaries at such date, but excluding (a) the current
portion of any Funded Debt (including accrued but unpaid interest) of the
Borrower and its Subsidiaries, (b) the current portion of current and deferred
income taxes and (c) without duplication of clause (a) above, all Indebtedness
consisting of Revolving Loans or Swingline Loans or Revolving L/C Exposure to
the extent otherwise included therein.


 


6

















 


“Consolidated EBITDA”: 
for any period, Consolidated Net Income for such period plus,
without duplication and to the extent already deducted (and not added back) in
arriving at such Consolidated Net Income (other than with respect to
clause (g) below), the sum of (a) income tax expense (and franchise taxes
in the nature of income taxes) and foreign withholding tax expense for such
period and any state single business unitary or similar tax, (b) consolidated
interest expense and, to the extent not reflected in consolidated interest
expense, amortization or writeoff of debt discount and debt issuance costs and
commissions, discounts and other fees and charges associated with Indebtedness
(including the Loans) and any losses on hedging obligations or other derivative
instruments entered into for the purpose of hedging interest rate risk, (c)
depreciation and amortization expense, (d) amortization of intangibles
(including, but not limited to, goodwill) and organization costs, (e) Non-Cash
Charges, (f) Management Fees paid in cash or accrued during such period to
the extent permitted to be paid hereunder, (g) proceeds of business
interruption insurance received during such period, (h) expenses incurred
to the extent covered by indemnification or refunding provisions in any
Permitted Acquisition document, any document pertaining to any acquisition
consummated prior to the Closing Date, or any insurance to the extent
reimbursed (or reasonably expected to be reimbursed within 120 days of the
incurrence thereof), (i) Permitted Start-Up Losses, (j) non-cash expenses
incurred in connection with the issuance of stock options, warrants or other
Permitted Capital Stock by Holdings to employees of Holdings and its
Subsidiaries and any costs or expenses incurred by the Borrower and its
Subsidiaries pursuant to any management equity plan or stock option plan or any
management or employee benefit plan or agreement or any stock subscription or
shareholder agreement, to the extent such costs or expenses are funded with
cash proceeds contributed to the capital of Holdings or Net Cash Proceeds of an
issuance of Capital Stock of Holdings Not Otherwise Applied, (k) any
Transaction Bonuses, (l) unusual or non-recurring losses, charges, severance
costs and relocation costs and (m) any deductions attributable to minority
interests (excluding dividends and other distributions paid or payable in cash
to the holders of such minority interests), and minus, (a) without
duplication and to the extent included in the statement of such Consolidated
Net Income for such period, the sum of (i) any unusual or non-recurring income
or gains, (ii) income tax credits (to the extent not netted from income tax
expense), (iii) any other non-cash income and (iv) any interest income and
gains on hedging or other derivative instruments entered into for the purpose
of hedging interest rate risk and (b) (i) any cash payments made during such
period in respect of Non-Cash Charges described in clause (e) which cash
payments are made subsequent to the fiscal quarter in which the relevant
Non-Cash Charges were reflected as a charge in the statement of Consolidated
Net Income, but only to the extent that such cash payments do not exceed such
Non-Cash Charges, all as determined on a consolidated basis and (ii) any
Restricted Payments (or loans or advances) made to Holdings during such period
pursuant to clause (c) or (h) of Section 7.6. In addition,
Consolidated EBITDA shall be calculated without giving effect to (w) any gains
or losses from Asset Sales, (x) any gain or loss recognized in determining
Consolidated Net Income for such period in respect of post-retirement benefits
as a result of the application of FASB 106 and (y) any gain or loss recognized
in determining Consolidated Net Income for such period resulting from the
payment of earnout obligations. Furthermore, (A) there shall be included in
determining Consolidated EBITDA for any period, without duplication, Acquired
EBITDA of any Person, property, business or asset acquired (other than in the
ordinary course of business) by the Borrower or any Subsidiary during such
period (but not the Acquired EBITDA of any


 


7

















 


related Person, property, business or assets to the extent not so
acquired), to the extent not subsequently sold, transferred or otherwise
disposed of by the Borrower or such Subsidiary (each such Person, property,
business or asset acquired and not subsequently so disposed of, an “Acquired
Entity or Business”), based on the actual Acquired EBITDA of such Acquired
Entity or Business for such period (including the portion thereof occurring
prior to such acquisition) and the Pro Forma Adjustments, if any, applicable
thereto and (B) there shall be excluded in determining Consolidated EBITDA for
any period the Disposed EBITDA of any Person, property, business or asset sold,
transferred or otherwise disposed of, closed or classified as discontinued
operations (in each case, other than in the ordinary course of business) by the
Borrower or any Subsidiary during such period (each such Person, property,
business or asset so sold or disposed of, a “Sold Entity or Business”),
based on the actual Disposed EBITDA of such Sold Entity or Business for such
period (including the portion thereof occurring prior to such sale, transfer or
disposition).


 


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


 


“Consolidated Interest Coverage Ratio”:  for any period, the ratio of (a) Consolidated
EBITDA for such period to (b) Consolidated Interest Expense for such period.


 


“Consolidated Interest Expense”: 
for any period, total cash interest expense (including that attributable
to Capital Lease Obligations), net of cash interest income, of the Borrower and
its Subsidiaries for such period with respect to all outstanding Indebtedness
of the Borrower and its Subsidiaries (including all commissions, discounts and
other fees and charges owed with respect to letters of credit and bankers’
acceptance financing and net costs under Swap Agreements in respect of interest
rates to the extent such net costs are allocable to such period in accordance
with GAAP); provided, however, that (a) Consolidated Interest
Expense shall be determined excluding (to the extent otherwise included
therein) all non-recurring cash interest expense consisting of liquidated
damages for failure to timely comply with registration rights obligations and
financing fees, as calculated on a consolidated basis in accordance with GAAP,
(b) for purposes of determining the Consolidated Interest Coverage Ratio (but
subject to clause (c) below), Consolidated Interest Expense for the period
of four consecutive fiscal quarters ending (i) on September 30, 2006, shall be
deemed to be equal to Consolidated Interest Expense for the fiscal quarter then
ended multiplied by four, (ii) on December 31, 2006, shall be deemed to be
equal to Consolidated Interest Expense for the two consecutive fiscal quarters
then ended multiplied by two and (iii) on March 31, 2007, shall be deemed to be
equal to Consolidated Interest Expense for the three consecutive fiscal
quarters then ended multiplied by 4/3 and (c) for purposes of determining
the Consolidated Interest Coverage Ratio, if any


 


8

















 


Indebtedness is incurred (including pre-existing Indebtedness of any
Person that becomes a Subsidiary) or repaid in connection with the acquisition
of an Acquired Entity or Business or sale or disposition of a Sold Entity or
Business, in each case subsequent to the commencement of the period for which
the Consolidated Interest Coverage Ratio is being determined, then the
Consolidated Interest Expense for such period shall be determined giving pro
forma effect to such incurrence or repayment of Indebtedness as if such
incurrence or repayment had occurred at the beginning of such period. For
purposes of clause (c) of the foregoing (i) if any Indebtedness bears
a floating rate of interest and is being given pro forma effect, the interest
on such Indebtedness shall be calculated as if the rate in effect on the date
of incurrence had been the applicable rate for the entire period,
(ii) interest on any Indebtedness under a revolving credit facility
computed on a pro forma basis shall be computed based upon the average daily
balance of such Indebtedness during the applicable period, and (iii) interest
on Indebtedness that may optionally be determined at an interest rate based
upon a factor of a prime or similar rate, a eurocurrency interbank offered
rate, or other rate, shall be deemed to have been based upon the rate
(including any applicable margin) actually chosen, or, if none, then based upon
such optional rate chosen as the Borrower may designate.


 


“Consolidated Leverage Ratio”: 
as at the end of any fiscal quarter, the ratio of (a) Consolidated
Total Debt of Holdings and its Subsidiaries on such day to (b) Consolidated
EBITDA for the most recently completed four fiscal quarters of the Borrower and
its Subsidiaries.


 


“Consolidated Net Income”: 
for any period, the consolidated net income (or loss) of the Borrower
and its Subsidiaries, determined on a consolidated basis in accordance with
GAAP excluding, without duplication, (a) extraordinary items for such
period, (b) the cumulative effect of a change in accounting principles
during such period, to the extent included in such net income (loss), (c) Closing
Costs, to the extent incurred on or prior to December 31, 2006, and any
amortization thereof thereafter, (d) any non-recurring fees and expenses
incurred during such period, or any amortization thereof for such period, in
connection with any acquisition, investment, asset disposition, issuance or
repayment of Indebtedness, issuance of equity interests, refinancing
transaction or amendment or modification of any debt instrument (in each case,
including any such transaction consummated prior to the Closing Date and any
such transaction undertaken but not completed) and any charges or non-recurring
merger costs incurred during such period as a result of any such transaction,
(e) the after-tax effect of any income (or loss) for such period
attributable to the early extinguishment of Indebtedness, (f) the income
(or deficit) of any Person accrued prior to the date it becomes a Subsidiary of
Holdings or is merged into or consolidated with Holdings or any of its
Subsidiaries, (g) the income (or deficit) of any Person (other than a
Subsidiary of the Borrower) in which the Borrower or any of its Subsidiaries
has an ownership interest, except to the extent that any such income is
actually received by the Borrower or such Subsidiary in the form of dividends
or similar distributions, and (h) the undistributed earnings of any Subsidiary
of the Borrower to the extent that the declaration or payment of dividends or
similar distributions by such Subsidiary is not at the time permitted by the
terms of any Contractual Obligation (other than under any Loan Document) or
Requirement of Law applicable to such Subsidiary. There also shall be excluded
from Consolidated Net Income for any period (without duplication of the
foregoing) the purchase accounting effects of adjustments to property and
equipment, other intangible assets, deferred


 


9

















 


revenue, lease contracts and debt line items required or permitted by
GAAP and related authoritative pronouncements (including the effects of such
adjustments pushed down to the Borrower and its Subsidiaries), as a result of
the Transaction, any acquisition consummated prior to the Closing Date, any
Permitted Acquisitions, or the amortization or write-off of any amounts
thereof.


 


“Consolidated Total Debt”: 
at any date, the excess of (a) the aggregate principal amount of
all Indebtedness of the Borrower and its Subsidiaries at such date, determined
on a consolidated basis, required to be reflected on a consolidated balance
sheet of the Borrower in accordance with GAAP minus (b) the aggregate
amount of unrestricted cash and Cash Equivalents of the Borrower and the
Subsidiary Guarantors (in each case, free and clear of all Liens, other than
nonconsensual Liens permitted by Section 7.3) at such date required to be
reflected on a consolidated balance sheet of the Borrower in accordance with
GAAP; provided that, if a Defeasance is consummated on the Closing Date,
the Existing Notes shall not be included in determining Consolidated Total
Debt.


 


“Consolidated Working Capital”: 
at any date, the excess of Consolidated Current Assets on such date over
Consolidated Current Liabilities on such date.


 


“Contractual Obligation”: 
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.


 


“Credit-Linked Deposit”: 
as to each Institutional L/C Lender, the cash deposit made by such
Lender to the Credit-Linked Deposit Account pursuant to Section 2.1, as
such deposit may be reduced or increased from time to time pursuant to the
terms of this Agreement.


 


“Credit-Linked Deposit Account”: 
the account established by the Administrative Agent under its sole and
exclusive control maintained at the office of JPMorgan Chase Bank, N.A., 270
Park Avenue, New York, NY 10017, designated as the “Credit-Linked Deposit
Account” that shall be used solely to hold the Credit-Linked Deposits.


 


“Credit-Linked Deposit Fee Rate”:  a rate per annum equal to the sum of (a) the
Applicable Margin in respect of Tranche B Term Loans that are Eurodollar Loans
plus (b) 0.15%.


 


“Cumulative Excess Cash Flow”: 
as of any date, an amount equal to the excess, if any, of (a) the
sum of Excess Cash Flow for each fiscal year of the Borrower ended on or after
September 30, 2007, and prior to such date for which audited financial
statements have been delivered pursuant to Section 6.1(a), over (b) the sum,
with respect to each such fiscal year for which Excess Cash Flow is included in
clause (a), of (i) the aggregate principal amount of all prepayments of
Revolving Loans and Swingline Loans made during such fiscal year to the extent
accompanying permitted optional reductions of the Revolving Commitments and
(ii) the aggregate principal amount of all optional prepayments of Tranche B
Term Loans made during such fiscal year; provided that such excess of
(a) over (b) shall not be less than zero for any such fiscal year.


 


10

















 


“Debt Discharge”: 
(a)  the payment in full of all
loans outstanding under the Existing Credit Agreement and all accrued and
unpaid interest, fees and other amounts owing thereunder, the termination of
all commitments to extend credit thereunder and the release of all Liens
securing obligations thereunder, (b) the consummation of a Successful Debt
Tender or a Defeasance and (c) the payment in full of all other Indebtedness of
Holdings and its Subsidiaries outstanding on the Closing Date and all accrued
and unpaid interest, fees and other amounts owing in respect of such
Indebtedness or under any agreements relating thereto, the termination of all
commitments to extend credit in respect of any such Indebtedness and the
release of all Liens securing obligations thereunder; provided that
clause (c) above shall not apply to (i) any Existing Notes that are not
purchased pursuant to a Successful Debt Tender, if consummated, or to any
Existing Notes if a Defeasance is consummated, (ii) Indebtedness in
respect of the Facilities or the Senior Subordinated Notes or (iii)
Indebtedness permitted by clauses (b), (c), (d), (j), (k), (n), (o) and
(t) of Section 7.2.


 


“Debt Tender”:  a cash
tender offer and related consent solicitation for the Existing Notes.


 


“Default”:  any of the events
specified in Section 8, whether or not any requirement for the giving of
notice, the lapse of time, or both, has been satisfied.


 


“Defeasance”:  a covenant
defeasance in respect of the Existing Notes pursuant to Article 8 of the
Existing Notes Indenture.


 


“Deferred Mortgaged Properties”: 
the real properties identified on Schedule 1.1D.


 


“Designated Sale Leaseback Transaction”:  a Specified Sale Leaseback Transaction with
respect to any one or more of the Deferred Mortgaged Properties that is
consummated within 12 months after the Closing Date.


 


“Disposed EBITDA” means, with respect to any Sold Entity or
Business for any period, the amount for such period of Consolidated EBITDA of
such Sold Entity or Business (determined as if references to the Borrower and
the Subsidiaries in the definition of Consolidated EBITDA were references to
such Sold Entity or Business and its Subsidiaries), all as determined on a
consolidated basis for such Sold Entity or Business.


 


“Disposition”:  with
respect to any property, any sale, lease, sale and leaseback, assignment,
conveyance, transfer or other disposition thereof. The terms “Dispose”
and “Disposed of” shall have correlative meanings.


 


“Dollars” and “$”: 
dollars in lawful currency of the United States.


 


“Domestic Subsidiary”: 
any Subsidiary of the Borrower organized under the laws of any
jurisdiction within the United States.


 


“Earnout Obligations”: 
those payment obligations of Holdings and its Subsidiaries to former
owners of businesses which were acquired by Holdings or one of its


 


11

















 


Subsidiaries pursuant to an acquisition which are in the nature of
deferred purchase price to the extent such payment obligations are required to
be set forth on a balance sheet prepared in accordance with GAAP.


 


“ECF Percentage”:  50%; provided,
that, with respect to each fiscal year of the Borrower ending on or after
September 30, 2007, the ECF Percentage shall be 25% in respect of such
fiscal year if the Consolidated Leverage Ratio as of the last day of such
fiscal year is less than or equal to 4.75:1.00 but greater than 3.50:1.00 on
the last day thereof; provided further that the ECF Percentage shall be
0% in respect of such fiscal year if the Consolidated Leverage Ratio as of the
last day of such fiscal year is less than or equal to 3.50:1.00.


 


“Environmental Laws”:  any
and all foreign, Federal, state, local or municipal laws, rules, orders,
regulations, statutes, ordinances, codes, decrees, requirements of any
Governmental Authority or other Requirements of Law (including common law)
regulating, relating to or imposing liability or standards of conduct
concerning protection of the environment or of human health as affected by
exposure to harmful or deleterious substances, as now or may at any time
hereafter be in effect.


 


“Equity Financing”:  the
contribution by the Sponsor of cash equity contributions to Holdings (through
the Parent) in an aggregate amount equal to at least 25% of the total
capitalization of Holdings (after giving effect to the Transactions); provided
that any “rollover” equity in the Parent or Holdings issued to members of
management of the Parent or Holdings or any of its Subsidiaries shall not be
treated as cash equity contributions for purposes of determining the minimum
cash equity contributions referred to above.


 


“ERISA”:  the Employee
Retirement Income Security Act of 1974, as amended from time to time.


 


“Eurocurrency Reserve Requirements”:  for any day as applied to a Eurodollar Loan,
the aggregate (without duplication) of the maximum rates (expressed as a
decimal fraction) of reserve requirements in effect on such day (including
basic, supplemental, marginal and emergency reserves) under any regulations of
the Board or other Governmental Authority having jurisdiction with respect
thereto dealing with reserve requirements prescribed for eurocurrency funding
(currently referred to as “Eurocurrency Liabilities” in Regulation D of the
Board) maintained by a member bank of the Federal Reserve System.


 


“Eurodollar Base Rate”: 
with respect to each day during each Interest Period pertaining to a
Eurodollar Loan, the rate per annum determined on the basis of the rate for
deposits in Dollars for a period equal to such Interest Period commencing on
the first day of such Interest Period appearing on Page 3750 of the Telerate
screen as of 11:00 A.M., London time, two Business Days prior to the beginning
of such Interest Period. In the event that such rate does not appear on Page
3750 of the Telerate screen (or otherwise on such screen), the “Eurodollar
Base Rate” shall be determined by reference to such other comparable
publicly available service for displaying eurodollar rates as may be selected
by the Administrative Agent or, in the absence of such availability, by
reference to the rate at which the Administrative Agent is offered Dollar
deposits at or about 11:00 A.M., New York City time, two Business Days prior to
the beginning


 


12

















 


of such Interest Period in the interbank eurodollar market where its
eurodollar and foreign currency and exchange operations are then being
conducted for delivery on the first day of such Interest Period for the number
of days comprised therein.


 


“Eurodollar Loans”:  Loans
the rate of interest applicable to which is based upon the Eurodollar Rate.


 


“Eurodollar Rate”:  with
respect to each day during each Interest Period pertaining to a Eurodollar
Loan, a rate per annum determined for such day in accordance with the following
formula (rounded upward to the nearest 1/100th of 1%):


 




	
  Eurodollar Base Rate

  
	
  1.00 - Eurocurrency Reserve Requirements

  






 


“Eurodollar Tranche”:  the
collective reference to Eurodollar Loans under a particular Facility the then
current Interest Periods with respect to all of which begin on the same date
and end on the same later date (whether or not such Loans shall originally have
been made on the same day).


 


“Event of Default”:  any
of the events specified in Section 8, provided that any requirement
for the giving of notice, the lapse of time, or both, has been satisfied.


 


“Excess Cash Flow”:  for
any period, (a) Consolidated Net Income for such period, plus (b) if
there was a net decrease in Consolidated Working Capital during such period,
the amount of such net decrease, plus (c) an amount equal to the amount
of non-cash charges to the extent deducted in arriving at such Consolidated Net
Income, plus (d) non-cash losses from asset sales for such period (other
than from sales in the ordinary course of business) to the extent deducted in
arriving at such Consolidated Net Income, minus (e) regularly scheduled
payments and mandatory prepayments of the principal of any Indebtedness during
such period (other than any such payments and prepayments of principal of
Indebtedness made with the proceeds of any issuance of Capital Stock or other
Indebtedness incurred by Holdings or any of its Subsidiaries), but only to the
extent (other than with respect to the Mortgage Facility) that any such prepaid
amounts cannot by their terms be reborrowed or redrawn and do not occur in
connection with a refinancing of all or any portion of such Indebtedness for
such period, minus (f) without duplication of amounts deducted pursuant
to clause (o) below in prior fiscal years, Capital Expenditures (other than Capital
Expenditures financed with Indebtedness permitted hereunder (other than
Revolving Loans) and other Excluded Capital Expenditures then, minus (g)
without duplication of amounts deducted pursuant to clause (o) below in prior
fiscal years, the cash portion of consideration for Permitted Acquisitions and
other Investments permitted hereunder (other than consideration for Permitted
Acquisitions and other Investments financed with Indebtedness (other than
Revolving Loans) or issuances of Capital Stock permitted hereunder) for such
period or payable within 30 days of the end of such period (provided that
amounts so deducted shall not be deducted in any subsequent period), minus
(h) non-cash gains from asset sales for such period (other than from sales in
the ordinary course of business) to the extent included in arriving at such
Consolidated Net Income, minus (i) if there was a net increase in
Consolidated Working Capital during such period the amount of such net
increase, minus (j) an


 


13

















 


amount equal to the amount of all non-cash credits included in arriving
at such Consolidated Net Income and cash charges included in clauses (a)
through (e) of the definition of Consolidated Net Income, minus (k) cash
payments by the Borrower and its Subsidiaries during such period in respect of
long-term liabilities of the Borrower and its Subsidiaries other than
Indebtedness (other than cash payments in respect of claims offset by
receivables from insurance companies), minus (l) the amount of
Restricted Payments paid during such period pursuant to Section 7.6(j)(i) and
(iii) to the extent such Restricted Payments were financed with internally
generated cash flow of the Borrower and its Subsidiaries or with the proceeds
of Revolving Loans, minus (m) the aggregate amount of expenditures
actually made by the Borrower and its Subsidiaries in cash during such period
(including expenditures for the payment of financing fees) to the extent that
such expenditures are not expensed during such period, except to the extent
financed with the proceeds of Indebtedness (other than Revolving Loans) or
Capital Stock of Holdings, the Borrower or its Subsidiaries, minus (n)
the aggregate amount of any premium, make-whole or penalty payments actually
paid in cash by the Borrower and its Subsidiaries during such period that are
required to be made in connection with any prepayment of Indebtedness, minus
(o) without duplication of amounts deducted from Excess Cash Flow in prior
periods, the aggregate consideration (excluding any such consideration intended
to be financed with Indebtedness (other than Revolving Loans) or issuances of
Capital Stock) required to be paid in cash by the Borrower or any of its
Subsidiaries pursuant to binding contracts (the “Contract Consideration”)
entered into prior to or during such period relating to Permitted Acquisitions
or Capital Expenditures to be consummated or made during the period of two
consecutive fiscal quarters of the Borrower following the end of such period, provided
that to the extent the aggregate amount of internally generated cash and
proceeds of Revolving Loans actually utilized to finance such Permitted
Acquisitions during such period of two consecutive fiscal quarters is less than
the Contract Consideration, the amount of such shortfall shall be added to the
calculation of Excess Cash Flow at the end of such period of two consecutive
fiscal quarters, plus (p) an amount equal to all cash amounts received
during such period but excluded in arriving at such Consolidated Net Income
pursuant to any of clauses (a) through (e) of the definition of Consolidated
Net Income, minus (q) cash payments made during such period in
respect of Earnout Obligations, to the extent such Earnout Obligations were not
deducted in calculating Excess Cash Flow for such period or any prior period.


 


“Excess Cash Flow Application Date”:  as defined in Section 2.11(c).


 


“Excluded Capital Expenditures”: 
all Capital Expenditures:


 


(i)            made
to restore, replace or rebuild property to the condition of such property
immediately prior to any damage, loss, destruction or condemnation of such
property, to the extent such expenditure is made with, or subsequently
reimbursed out of, insurance proceeds, indemnity payments, condemnation awards
(or payments in lieu of) or damage recovery proceeds relating to any such
damage, loss, destruction or condemnation;


 


(ii)           constituting
reinvestment of proceeds (to the extent permitted herein) from Asset Sales,
Designated Sale Leaseback
Transactions, and Recovery Events;


 


14

















 


(iii)          made
by Holdings or any of its Subsidiaries as a tenant in leasehold improvements,
to the extent reimbursed by the landlords; or


 


(iv)          made
with the Net Cash Proceeds (Not Otherwise Applied) of an issuance after the
Closing Date of Capital Stock of Holdings.


 


“Existing Credit Agreement”: 
the Amended and Restated Credit Agreement dated as of November 4,
2004, as amended, among the Borrower, National MENTOR, Inc., the lenders party
thereto, JPMorgan Chase Bank, N.A., as administrative agent, and the
documentation agents and syndication agent referred to therein.


 


“Existing Notes”:  the
Borrower’s existing 95⁄8% Senior Subordinated Notes due 2012.


 


“Existing Notes Indenture”: 
the Indenture entered into by the Borrower and certain of its
Subsidiaries in connection with the issuance of the Existing Notes, together
with all instruments and other agreements entered into by the Borrower or such
Subsidiaries in connection therewith.


 


“Existing Letters of Credit”: 
the letters of credit issued under the Existing Credit Agreement that
are outstanding on the Closing Date, as identified by the Borrower to the
Administrative Agent in writing on or prior to the Closing Date.


 


“Facility”:  each of (a)
the Tranche B Term Commitments and the Tranche B Term Loans made thereunder
(the “Tranche B Term Facility”), (b) the Revolving Commitments and
the extensions of credit made thereunder (the “Revolving Facility”), and
(c) the Institutional L/C Commitments and the extensions of credit made
thereunder (the “Institutional L/C Facility”).


 


“Federal Funds Effective Rate”: 
for any day, the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day
that is a Business Day, the average of the quotations for the day of such
transactions received by JPMorgan Chase Bank, N.A., from three federal funds
brokers of recognized standing selected by it.


 


“Fee Letter”:  the fee
letter dated March 22, 2006, among Holdings, the Borrower (as successor to
Mergersub) and the Agents.


 


“Fee Payment Date”: 
(a) the third Business Day following the last day of each March,
June, September and December, (b) the last day of the Revolving Commitment
Period or any earlier date on which the Revolving Commitments are terminated
and there is no remaining Revolving Extension of Credit (in the case of fees
payable in respect of the Revolving Facility or any Revolving Extension of
Credit) and (c) the Tranche B Maturity Date and any other date on which
the Credit-Linked Deposits are returned to the Institutional L/C Lenders and there
is no remaining Institutional L/C Exposure (in the case of fees payable in
respect of the Institutional L/C Facility or any Credit-Linked Deposit or
Institutional Letter of Credit).


 


15

















 


“Financing Transactions”: 
(a) the execution, delivery and performance by each Loan Party of
the Loan Documents to which it is to be a party, the borrowing of Loans, the
use of proceeds thereof and the issuance of Letters of Credit, (b) the
execution, delivery and performance by each Loan Party that is to be a party
thereto of the Senior Subordinated Note Indenture, the issuance of the Senior
Subordinated Notes and the use of the proceeds thereof and (c) the Equity
Financing.


 


“Foreign Subsidiary”:  any
Subsidiary of the Borrower that is not a Domestic Subsidiary.


 


“Funded Debt”:  as to any
Person, all Indebtedness of such Person that matures more than one year from
the date of its creation or matures within one year from such date but is
renewable or extendible, at the option of such Person, to a date more than one
year from such date or arises under a revolving credit or similar agreement
that obligates the lender or lenders to extend credit during a period of more
than one year from such date, including all current maturities and current
sinking fund payments in respect of such Indebtedness whether or not required
to be paid within one year from the date of its creation and, in the case of
the Borrower, Indebtedness in respect of the Loans.


 


“Funding Office”:  the
office of the Administrative Agent specified in Section 10.2 or such other
office as may be specified from time to time by the Administrative Agent as its
funding office by written notice to the Borrower and the Lenders.


 


“GAAP”:  generally
accepted accounting principles in the United States as in effect from time to
time, except that for purposes of Section 7.1, GAAP shall be determined on
the basis of such principles in effect on the date hereof and consistent with
those used in the preparation of the most recent audited financial statements
referred to in Section 4.1(b). In the event that any “Accounting Change”
(as defined below) shall occur and such change results in a change in the
method of calculation of financial covenants, standards or terms in this Agreement,
then Holdings, the Borrower, the Required Lenders and the Administrative Agent
agree to enter into negotiations in order to amend such provisions of this
Agreement so as to reflect equitably such Accounting Changes with the desired
result that the criteria for evaluating the financial condition of Holdings and
its Subsidiaries shall be the same after such Accounting Changes as if such
Accounting Changes had not been made. Until such time as such an amendment
shall have been executed and delivered by the Holdings, Borrower, the
Administrative Agent and the Required Lenders, all financial covenants,
standards and terms in this Agreement shall continue to be calculated or
construed as if such Accounting Changes had not occurred. “Accounting Changes”
refers to changes in accounting principles required by the promulgation of any
rule, regulation, pronouncement or opinion by the Financial Accounting
Standards Board of the American Institute of Certified Public Accountants or,
if applicable, the SEC.


 


“Governmental Authority”: 
any nation or government, any state or other political subdivision
thereof, any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative functions of or pertaining to government,
any securities exchange and any self-regulatory organization (including the
National Association of Insurance Commissioners).


 


16

















 


“Group Members”:  the collective
reference to Holdings, the Borrower and their respective Subsidiaries.


 


“Guarantee and Security Agreement”:  the Guarantee and Security Agreement to be
entered into by the Borrower, the Guarantors and the Administrative Agent,
substantially in the form of Exhibit B.


 


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


 


“Guarantors”:  the
collective reference to Holdings and the Subsidiary Guarantors.


 


“Holdings”:  as defined in
the preamble hereto, subject to Section 10.18.


 


“Incremental Amendment”: 
as defined in Section 2.25.


 


“Incremental Facility Closing Date”: as defined in
Section 2.25.


 


“Incremental Term Loans”: 
as defined in Section 2.25.


 


“Indebtedness”:  of any
Person at any date, without duplication, (a) all indebtedness of such
Person for borrowed money, (b) all obligations of such Person for the
deferred purchase price of property or services (other than current trade
payables and accrued expenses incurred in the ordinary course of such Person’s
business), (c) all obligations of such


 


17

















 


Person evidenced by notes, bonds, debentures or other similar
instruments, (d) all indebtedness created or arising under any conditional
sale or other title retention agreement with respect to property acquired by
such Person (even though the
rights and remedies of the seller or lender under such agreement in the event
of default are limited to repossession or sale of such property), (e) the
principal portion of all Capital Lease Obligations of such Person, (f) all
obligations of such Person, contingent or otherwise, as an account party or
applicant under or in respect of acceptances, letters of credit, surety bonds
or similar arrangements, (g) the liquidation value of all mandatorily
redeemable preferred Capital Stock of such Person issued to parties other than
Holdings or its Subsidiaries, if the scheduled redemption date is prior to the
scheduled maturity date of the Tranche B Term Loans, (h) all
Guarantee Obligations of such Person in respect of obligations of the kind
referred to in clauses (a) through (g) above, (i) all obligations of the
kind referred to in clauses (a) through (h) above secured by (or for which the
holder of such obligation has an existing right, contingent or otherwise, to be
secured by) any Lien on property (including accounts and contract rights) owned
by such Person, whether or not such Person has assumed or become liable for the
payment of such obligation, (j) all Earnout Obligations; and (k) for
the purposes of Section 8(e) only, the amount of all obligations of such
Person in respect of Swap Agreements (determined, for this purpose, in respect
of any Swap Agreement, based on the maximum aggregate amount, giving effect to
any netting agreements, that such Person would be required to pay if such Swap
Agreement were terminated at the time); provided that (i) the
amount of Indebtedness which is limited or non-recourse to such Person or for
which recourse is limited to an identified asset shall be equal to the lesser
of (1) the amount of such Indebtedness and (2) the fair market value of
such asset as at the date of determination, (ii) amounts which are
reserved by such Person for payment of insurance premiums due within twelve
months of such date shall not constitute Indebtedness and
(iii) Indebtedness shall not include obligations with respect to deferred
compensation. The Indebtedness of any Person shall include the Indebtedness of
any other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person’s ownership interest in or other relationship with such entity, except
to the extent the terms of such Indebtedness expressly provide that such Person
is not liable therefor.


 


“Initial Mortgaged Properties”: 
the real properties identified on Schedule 1.1B.


 


“Initial Public Offering”: the initial public offering of the
common stock of Holdings.


 


“Insolvency”:  with
respect to any Multiemployer Plan, the condition that such Plan is insolvent
within the meaning of Section 4245 of ERISA.


 


“Insolvent”:  pertaining
to a condition of Insolvency.


 


“Institutional L/C Commitment”: 
as to any Lender, the obligation of such Lender, if any, to make a
Credit-Linked Deposit in an amount not to exceed the amount set forth under the
heading “Institutional L/C Commitment” opposite such Lender’s name on Schedule
1.1A. The original aggregate amount of the Institutional L/C Commitments is
$20,000,000.


 


18

















 


“Institutional L/C Disbursement”:  any payment made by an Issuing Lender
pursuant to an Institutional Letter of Credit.


 


“Institutional L/C Exposure”: 
at any time an amount equal to the sum of (a) the aggregate then undrawn
and unexpired amount of the then outstanding Institutional Letters of Credit
and (b) the aggregate amount of Institutional L/C Disbursements that have not
then been reimbursed by or on behalf of the Borrower.


 


“Institutional L/C Lender”: 
each Lender that has an Institutional L/C Commitment or a Credit-Linked
Deposit or interests in any unreimbursed Institutional L/C Disbursements.


 


“Institutional L/C Percentage”: 
as to any Institutional L/C Lender at any time, the percentage which
such Lender’s Credit-Linked Deposit then constitutes of the Total Credit-Linked
Deposit; provided that, at any time that there are no Credit-Linked
Deposits, the Institutional L/C Percentages shall be determined in a manner
designed to ensure that the interests of the Institutional L/C Lenders in the
unreimbursed Institutional L/C Disbursements and rights in respect thereof
shall be held by the Institutional L/C Lenders on a comparable basis.


 


“Institutional L/C Period”: 
the period from the Closing Date to the Tranche B Maturity Date.


 


“Institutional Letters of Credit”:  at any time, Letters of Credit in an amount
equal to the lesser of (a) the Total Credit-Linked Deposit at such time and (b)
the aggregate then undrawn and unexpired amount of the then outstanding Letters
of Credit at such time. Letters of Credit will from time to time be deemed to
be Institutional Letters of Credit or Revolving Letters of Credit in accordance
with Section 3.1(c).


 


“Insurance Subsidiary”: 
any Subsidiary of the Borrower engaged solely in the general liability,
professional liability, health and benefits and workers compensation and such
other insurance business as may be approved by the Administrative Agent in its
reasonable discretion, for the underwriting of insurance policies for the
Borrower and its Subsidiaries and the respective employees, officers or
directors thereof. Notwithstanding anything else herein to the contrary, no
Insurance Subsidiary shall be required to become a Subsidiary Guarantor
hereunder.


 


“Intellectual Property”: 
the collective reference to all rights, priorities and privileges
relating to intellectual property, whether arising under United States,
multinational or foreign laws or otherwise, including copyrights, copyright
licenses, patents, patent licenses, trademarks, trademark licenses, technology,
know-how and processes, and all rights to sue at law or in equity for any
infringement or other impairment thereof, including the right to receive all proceeds
and damages therefrom.


 


“Interest Payment Date”: 
(a) as to any ABR Loan (other than any Swingline Loan), the last
day of each March, June, September and December to occur while such Loan is
outstanding and the final maturity date of such Loan, (b) as to any
Eurodollar Loan having an Interest Period of three months or less, the last day
of such Interest Period, (c) as to any


 


19

















 


Eurodollar Loan having an Interest Period longer than three months,
each day that is three months, or a whole multiple thereof, after the first day
of such Interest Period and the last day of such Interest Period, (d) as
to any Loan (other than any Revolving Loan that is an ABR Loan and any
Swingline Loan), the date of any repayment or prepayment made in respect
thereof and (e) as to any Swingline Loan, the day that such Loan is
required to be repaid.


 


“Interest Period”:  as to
any Eurodollar Loan, (a) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar Loan and
ending one, two, three or six (or, if agreed to by all Lenders under the
relevant Facility, nine or twelve) months thereafter, as selected by the
Borrower in its notice of borrowing or notice of conversion, as the case may
be, given with respect thereto; and (b) thereafter, each period commencing on
the last day of the next preceding Interest Period applicable to such
Eurodollar Loan and ending one, two, three or six (or, if agreed to by all
Lenders under the relevant Facility, nine or twelve) months thereafter, as
selected by the Borrower by irrevocable notice to the Administrative Agent not
later than 12:00 Noon, New York City time, on the date that is three Business
Days prior to the last day of the then current Interest Period with respect
thereto; provided that, all of the foregoing provisions relating to
Interest Periods are subject to the following:


 


(i)            if
any Interest Period would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the next succeeding Business Day
unless the result of such extension would be to carry such Interest Period into
another calendar month in which event such Interest Period shall end on the
immediately preceding Business Day;


 


(ii)           the
Borrower may not select an Interest Period under a particular Facility that
would extend beyond the Revolving Termination Date or beyond the date final
payment is due on the Tranche B Term Loans, as applicable;


 


(iii)          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 a
calendar month; and


 


(iv)          the
Borrower shall select Interest Periods so as not to require a payment or
prepayment of any Eurodollar Loan during an Interest Period for such Loan.


 


“Investments”:  as defined
in Section 7.8.


 


“Issuing Lender”: JPMorgan Chase Bank, N.A., or any affiliate
thereof or, in the case of a Revolving Letter of Credit, any other Lender
approved by the Administrative Agent.


 


“Joint Bookrunners”: J.P. Morgan Securities Inc., UBS Securities
LLC and Banc of America Securities LLC.


 


“Joint Lead Arrangers”: 
J.P. Morgan Securities Inc. and UBS Securities LLC.


 


20

















 


“Lenders”:  as defined in
the preamble hereto; provided, that unless the context otherwise
requires, each reference herein to the Lenders shall be deemed to include the
Swingline Lender, any Conduit Lender and any Issuing Lender.


 


“Letters of Credit”:  as
defined in Section 3.1(a).


 


“Lien”:  any mortgage,
pledge, hypothecation, collateral assignment, security deposit arrangement,
encumbrance, lien (statutory or other), charge or other security interest or
any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any conditional sale or
other title retention agreement and any capital lease having substantially the
same economic effect as any of the foregoing).


 


“Liquidating Subsidiary”: 
any Subsidiary identified on Schedule 1.1C, provided, however,
any such Subsidiary that is not liquidated or dissolved within 120 days after
the Closing Date will cease to constitute a “Liquidating Subsidiary”, will
become a Subsidiary Guarantor and Section 6.9 shall apply to such
Subsidiary.


 


“Loan”:  any loan made by
any Lender pursuant to this Agreement.


 


“Loan Documents”:  this
Agreement, the Security Documents, the Notes and any amendment, waiver,
supplement or other modification to any of the foregoing.


 


“Loan Parties”:  each
Group Member that is a party to a Loan Document.


 


“Majority Facility Lenders”: 
(a) with respect to the Tranche B Term Facility, the holders of
more than 50% of the aggregate unpaid principal amount of the Tranche B Term
Loans, (b) with respect to the Revolving Facility, the holders of more
than 50% of the Total Revolving Commitments (or, if the Revolving Commitments
have terminated, the holders of more than 50% of the Total Revolving Extensions
of Credit) and (c) with respect to the Institutional L/C Facility, the holders
of more than 50% of the Credit-Linked Deposits (or, if there are no Credit-Linked
Deposits at the time, the holders of more than 50% of the Institutional L/C
Exposure).


 


“Managed Care Plans”:  all
health maintenance organizations, preferred provider organizations, individual
practice associations, competitive medical plans and similar arrangements.


 


“Management Agreement”: 
the management agreement dated June 29, 2006, between the Sponsor and
the Borrower.


 


“Management Fees”: as defined in Section 7.10.


 


“Management Stockholders”: 
the members of management of the Borrower or its Subsidiaries who are
investors in Holdings or any direct or indirect parent thereof.


 


“Material Adverse Effect”: 
a material adverse effect on (a) the business, property, operations
or financial condition of the Borrower and its Subsidiaries taken as a whole,
(b) the


 


21

















 


ability of any Loan Party to perform its material obligations under the
Loan Documents to which it is a party or (c) the validity or
enforceability of this Agreement, the Notes, Section 2 of the Guarantee
and Security Agreement, or, taken as a whole, any of the other Loan Documents,
or the rights or remedies of the Administrative Agent or the Lenders under this
Agreement, the Notes or, taken as whole, the other Loan Documents.


 


“Materials of Environmental Concern”:  any gasoline or petroleum (including crude
oil or any fraction thereof) or petroleum products or any hazardous or toxic
substances, materials or wastes, defined or regulated as such in or under any
Environmental Law, including asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.


 


“Merger”:  as defined in
the recitals of this Agreement.


 


“Merger Consideration”: 
the aggregate cash consideration payable under the Transaction
Agreement, as a result of the Merger, in respect of the common stock of
Holdings outstanding immediately prior to the effective time of the Merger
(giving effect to any adjustments thereto pursuant to Section 1.04 of the
Transaction Agreement) plus any amounts payable pursuant to Section 1.06
of the Transaction Agreement.


 


“Mergersub”:  as defined
in the recitals of this Agreement.


 


“Moody’s”:  as defined in
the definition of “Cash Equivalents”.


 


“Mortgage Facility”:  the
Term Loan Agreement, dated as of May 20, 2005, by and among the Borrower,
National MENTOR Inc., certain Subsidiaries party thereto as borrowers and Bank
of America, N.A.


 


“Mortgaged Properties”: 
the real properties and leasehold interests, if any, of any Loan Party
as to which the Administrative Agent for the benefit of the Lenders shall be
granted a Lien pursuant to the Mortgages.


 


“Mortgages”:  all fee
mortgages, leasehold mortgages, if any, assignments of leases, mortgage deeds,
deeds of trust, deeds to secure debt, security agreements, and other similar
instruments, executed or to be executed by any Loan Party (i) which provide the
Administrative Agent, for the benefit of the Lenders, a Lien on the Initial
Mortgaged Properties or the Deferred Mortgaged Properties, and (ii) pursuant to
Section 6.9(b), as amended, restated, modified, extended or supplemented
from time to time.


 


“Multiemployer Plan”:  a Plan
that is a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA.


 


“Net Cash Proceeds”:  (a)
in connection with any Asset Sale, Sale Leaseback Transaction or any Recovery
Event, the proceeds thereof in the form of cash and Cash Equivalents (including
any such proceeds received by way of deferred payment of principal pursuant to
a note or installment receivable or purchase price adjustment receivable or
otherwise, but only as and when received), net of attorneys’ fees, accountants’
fees, investment banking fees, amounts required to be applied to the repayment
of Indebtedness (including, without


 


22

















 


limitation, principal, interest, premium and penalties, if any) secured
by a Lien expressly permitted hereunder on any asset that is the subject of
such Asset Sale, Sale Leaseback Transaction or Recovery Event (other than any
Lien pursuant to a Security Document) and other related fees and expenses
actually incurred in connection therewith and net of taxes paid or reasonably
estimated to be payable as a result thereof and net of (i) any reasonable
reserves established in connection therewith, (ii) reasonable holdbacks and
(iii) reasonable indemnity obligations relating thereto, and (b) in connection with any issuance
or sale of Capital Stock or any incurrence of Indebtedness, the cash proceeds
received from such issuance or incurrence, net of attorneys’ fees, investment
banking fees, accountants’ fees, underwriting discounts and commissions and
other related fees and expenses actually incurred in connection therewith.


 


“Non-Excluded Taxes”:  as
defined in Section 2.19(a).


 


“Non-Profit Entities”: 
each of REM New Jersey Properties Inc., a New Jersey corporation, and
any entity duly acquired or formed and organized by Holdings or any Subsidiary
as a not-for-profit entity under applicable state law in furtherance of the
business needs of Holdings and its Subsidiaries.


 


“Non-U.S. Lender”:  as
defined in Section 2.19(d).


 


“Non-Wholly-Owned Subsidiary”: 
any Domestic Subsidiary (other than a Non-Profit Entity or an Insurance
Subsidiary) that is not a Wholly-Owned Subsidiary.


 


“Notes”:  the collective
reference to any promissory note evidencing Loans.


 


“Not Otherwise Applied”: 
means, with reference to any amount of Net Cash Proceeds of any
transaction or event or of Cumulative Excess Cash Flow (or any component
thereof), that such amount (a) was not required to be applied to prepay
the Loans pursuant to Section 2.11, and (b) was not previously applied
in determining the permissibility of a transaction under the Loan Documents
where such permissibility was (or may have been or concurrently will be)
contingent on receipt of such amount or utilization of such amount for a
specified purpose. The Borrower shall promptly notify the Administrative Agent
of any application of such amount as contemplated by (b) above.


 


“Obligations”:  the unpaid
principal of and interest on (including interest accruing after the maturity of
the Loans and Reimbursement Obligations and interest accruing after the filing
of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding)
the Loans and all other obligations and liabilities of the Borrower to the
Administrative Agent or to any Lender (or, in the case of Specified Swap
Agreements and Cash Management Obligations, any affiliate of any Lender),
whether direct or indirect, absolute or contingent, due or to become due, or
now existing or hereafter incurred, which may arise under, out of, or in
connection with, this Agreement, any other Loan Document, the Letters of
Credit, any Specified Swap Agreement, any agreement governing Cash Management
Obligations or any other document made, delivered or given in connection
herewith or therewith, whether on account of principal, interest, reimbursement
obligations, fees,


 


23

















 


indemnities, costs, expenses (including all fees, charges and
disbursements of counsel to the Administrative Agent or to any Lender that are
required to be paid by the Borrower pursuant hereto) or otherwise.


 


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


 


“Parent”:  NMH Investments,
LLC.


 


“Participant”:  as defined
in Section 10.6(c).


 


“PBGC”:  the Pension
Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of
ERISA (or any successor).


 


“Permitted Acquisition”: 
an Acquisition by the Borrower or a Subsidiary Guarantor, subject to the
fulfillment of the following conditions:


 


(a)           all entities in
which the Borrower shall own, directly or indirectly, any Investment as a
result of such Acquisition shall, as a result of such Acquisition, become
Subsidiary Guarantors, except to the extent that the portion of the fair market
value of the consideration for such Acquisition that is attributable to
Investments in such entities (whether or not such entities become Subsidiaries)
that do not become Subsidiary Guarantors as a result of such Acquisition is
treated, at the time of such Acquisition, as Investments in such entities made
pursuant to Section 7.8 and are permitted to be made thereunder at such
time other than pursuant to clause (g) thereof (it being understood that
the foregoing is intended to allow a Foreign Subsidiary, Non-Wholly-Owned
Subsidiary, Non-Profit Entity or Insurance Subsidiary, in each case that
becomes a Subsidiary as a result of such Acquisition, to not become a
Subsidiary Guarantor as otherwise required by this clause, if the conditions of
this clause are satisfied);


 


(b)           the consideration
for such Acquisition consists entirely of Permitted Capital Stock of Holdings
(or cash proceeds of Permitted Capital Stock of Holdings issued after the
Closing Date and Not Otherwise Applied), Capital Stock of any direct or
indirect parent of Holdings, Indebtedness permitted by Section 7.2
(including the assumption of pre-existing Indebtedness of the Target permitted
by Section 7.2(g)), cash (including cash proceeds from any Indebtedness
permitted by this Agreement), or a combination of the foregoing;


 


(c)           the Acquisition must
not be of a hostile nature, the Target’s business must be primarily operated in
the United States and the Target must be engaged primarily in a business
related to the businesses of the Borrower and its Subsidiaries existing on the
date of such Acquisition (to the extent permitted hereunder);


 


(d)           no Event of Default
shall have occurred and be continuing or reasonably be expected to result from
such Acquisition;


 


24
















(e)           without limiting the
generality of the foregoing, after giving effect to such Acquisition (including
any Indebtedness resulting therefrom or incurred in connection therewith), the
Borrower shall be in compliance with the provisions of Section 7.1, calculated
on a pro forma basis as of the end of the quarter most recently ended prior to
the date of such Acquisition for which financial statements have been delivered
pursuant to Section 6.1 (calculated as though all Indebtedness resulting
from or incurred in connection with such Permitted Acquisition had been
incurred at the beginning of the relevant four quarter period, in the case of
Section 7.1(b)) and, unless such Acquisition involves total consideration
(including Indebtedness resulting therefrom pursuant to Section 7.2(g)) of
$10,000,000 or less, prior to the closing of such Acquisition, the Borrower
shall provide to the Administrative Agent a certificate signed by a Responsible
Officer demonstrating such compliance in reasonable detail; and


 


(f)            after giving effect
to such Acquisition, the Available Revolving Commitment plus the amount of
unrestricted cash and Cash Equivalents then owned by Borrower and its
Subsidiaries shall not be less than $25,000,000.


 


“Permitted Acquisition Debt”: 
Indebtedness incurred in reliance upon clause (r) of Section 7.2.


 


“Permitted Additional Subordinated Debt”:  Indebtedness incurred in reliance upon clause
(s) of Section 7.2.


 


“Permitted Capital Stock”: 
(a) common stock of Holdings and (b) any preferred stock of Holdings (or
any equity security of Holdings that is convertible into or exchangeable for
any preferred stock of Holdings), so long as the terms of any such preferred
stock or equity security of Holdings (i) do not provide any collateral
security, (ii) do not provide any guaranty or other support by the Borrower or
any Subsidiaries of the Borrower, (iii) do not contain any mandatory put,
redemption, repayment, sinking fund or other similar provision occurring before
the eighth anniversary of the Closing Date (other than as a result of a change
of control or similar event that, in each case, is no less favorable to the
Loan Parties and the Lenders than the change of control event applicable to the
Senior Subordinated Notes), (iv) do not require the cash payment of dividends
or interest, (v) do not contain any financial maintenance covenants, and (vii)
to the extent any such preferred stock or equity security does not otherwise
comply with clauses (b)(i) through (iv) hereof, such preferred stock or equity
security is otherwise reasonably satisfactory to Administrative Agent.


 


“Permitted Disposition”: 
shall mean (i) any sale or discount of past due isolated accounts
receivable in the ordinary course of business; (ii) (x) any lease as lessor
(under a short term lease) or license as licensor of isolated parcels of real
property or isolated items of personal property (including Intellectual
Property) in the ordinary course of business and (y) any grant of options to
purchase, lease or acquire isolated parcels of real property or isolated items
of personal property (including Intellectual Property) in the ordinary course
of business; and (iii) any sale or exchange of isolated specific items of
equipment, so long as the purpose of each sale or exchange is to acquire (and results
within 180 days of such sale or exchange in the acquisition of) replacement
items of equipment which are, in the reasonable business judgment of the
Borrower and its Subsidiaries, the functional equivalent of the item of
equipment so sold or


 


25

















 


exchanged and provided Administrative Agent has at all times after such
acquisition a perfected Lien in the replacement property with the same priority
or better than the equipment being sold or exchanged.


 


“Permitted Holders”:  each
of (i) the Sponsor and (ii) the Management Stockholders; provided that
if the Management Stockholders own, directly or indirectly, beneficially or of
record more than 10% of the outstanding voting Capital Stock of Holdings (or,
after any Initial Public Offering, of the Borrower) in the aggregate, the
Management Stockholders shall be treated as Permitted Holders of only 10% of
the outstanding voting Capital Stock of Holdings (or, after any Initial Public
Offering, of the Borrower) at such time.


 


“Permitted Refinancing Indebtedness:  Indebtedness of the Borrower or any
Subsidiary issued or incurred (including by means of the extension or renewal
of existing Indebtedness) to refinance, refund, extend or renew existing
Indebtedness (“Refinanced Indebtedness”); provided, that (a) the
principal amount (or accreted value, if applicable) of such refinancing,
refunding, extending or renewing Indebtedness is not greater than the sum of
(i) the principal amount (or accreted value, if applicable) of such
Refinanced Indebtedness plus (ii) an amount equal to unpaid accrued
interest and premium thereon and fees and expenses reasonably incurred in
connection with such refinancing, refunding, extension or renewal, plus
(iii) if the Refinanced Indebtedness was extended under a committed
financing arrangement and any such commitments remain unutilized at the time,
the amount of such unutilized commitments, but only to the extent that
Indebtedness could be incurred thereunder at the time in compliance with the
terms thereof and of this Agreement, (b) such refinancing, refunding, extending
or renewing Indebtedness has a final maturity that is no sooner than the final
maturity of, and a weighted average life to maturity that is no shorter than
the remaining weighted average life of, such Refinanced Indebtedness, (c) if
such Refinanced Indebtedness or any Guarantees thereof are subordinated to the
Obligations, such refinancing, refunding, extending or renewing Indebtedness
and any Guarantees thereof remain so subordinated on terms no less favorable to
the Lenders, (d) the obligors in respect of such Refinanced Indebtedness
immediately prior to such refinancing, refunding, extending or renewing are the
only obligors on such refinancing, refunding, extending or renewing
Indebtedness and (e) such refinancing, refunding, extending or renewing
Indebtedness contains mandatory redemption (or similar provisions), covenants
and events of default and is benefited by Guarantees, if any, which, taken as a
whole, are no less favorable in any material respect to Holdings, the Borrower
or the applicable Subsidiary and the Lenders than the mandatory redemption (or
similar provisions), covenants and events of default or Guarantees, if any, in
respect of such Refinanced Indebtedness, excluding as to redemption provisions,
interest rate and subordination (it being understood that Permitted Refinancing
Indebtedness incurred under clause (r) or (s) of Section 7.2 must satisfy the
requirements set forth therein); provided, further, however,
that Permitted Refinancing Indebtedness shall not include (i) Indebtedness of a
Subsidiary that refinances Indebtedness of the Borrower or (ii) Indebtedness of
the Borrower or a Subsidiary Guarantor that refinances Indebtedness of a
Subsidiary that is not a Subsidiary Guarantor.


 


“Permitted Start-Up Losses”: 
in respect of any period, any loss for such period directly attributable
to the operations of a separately identifiable business unit of a Loan Party
which business unit commenced operations within 18 months prior to the last day
of such period;


 


26

















 


provided that the aggregate amount of all such
losses (for all such business units) that are treated as Permitted Start-Up
Losses for any period of four consecutive fiscal quarters shall not exceed
$4,000,000.


 


“Person”:  an individual,
partnership, corporation, limited liability company, business trust, joint
stock company, trust, unincorporated association, joint venture, Governmental
Authority or other entity of whatever nature.


 


“Plan”:  at a particular
time, any employee benefit plan that is covered by ERISA and in respect of
which the Borrower or a Commonly Controlled Entity is (or, if such plan were
terminated at such time, would under Section 4069 of ERISA be deemed to
be) an “employer” as defined in Section 3(5) of ERISA.


 


“Pricing Grid”: the applicable table set forth below:


 


(a) in respect of Revolving Loans, Swingline Loans and the Commitment
Fee Rate for Revolving Commitments:


 


	
  Consolidated

  Leverage Ratio

  	
   

  	
  Applicable Margin

  for Eurodollar Loans

  	
   

  	
  Applicable Margin

  for ABR Loans

  	
   

  	
  Commitment Fee Rate

  for Revolving

  Commitments

  	
   

  
	
  >5.0:1

  	
   

  	
  2.50

  	
  %

  	
  1.50

  	
  %

  	
  0.50

  	
  %

  
	
  <5.0: 1
  and >4.5:1

  	
   

  	
  2.25

  	
  %

  	
  1.25

  	
  %

  	
  0.50

  	
  %

  
	
  <4.5:1
  and >4.0:1

  	
   

  	
  2.00

  	
  %

  	
  1.00

  	
  %

  	
  0.50

  	
  %

  
	
  <4.0:1

  	
   

  	
  1.75

  	
  %

  	
  0.75

  	
  %

  	
  0.375

  	
  %

  



 


(b) in respect of Term Loans:


 


	
  Consolidated

  Leverage Ratio

  	
   

  	
  Applicable Margin for

  Eurodollar Loans

  	
   

  	
  Applicable Margin

  for ABR Loans

  	
   

  
	
  >4.5:1

  	
   

  	
  2.50

  	
  %

  	
  1.50

  	
  %

  
	
  <4.5:1

  	
   

  	
  2.25

  	
  %

  	
  1.25

  	
  %

  



 


For the purposes of the Pricing Grid, changes in the Applicable Margin
and Commitment Fee Rate for Revolving Commitments resulting from changes in the
Consolidated Leverage Ratio shall become effective on the date (the “Adjustment
Date”) that is three Business Days after the date on which financial
statements are delivered to the Lenders pursuant to Section 6.1
(commencing on the Adjustment Date in respect of the delivery of financial


 


27

















 


statements for the first fiscal quarter ending at least three months
after the Closing Date) and shall remain in effect until the next change to be
effected pursuant to this paragraph. If any financial statements referred to
above are not delivered within the time periods specified in Section 6.1,
then, until the date that is three Business Days after the date on which such
financial statements are delivered, the highest rate set forth in each column
of the Pricing Grid shall apply. In addition, at all times while an Event of
Default shall have occurred and be continuing, the highest rate set forth in
each column of the Pricing Grid shall apply. Each determination of the
Consolidated Leverage Ratio pursuant to the Pricing Grid shall be made in a
manner consistent with the determination thereof pursuant to Section 7.1.


 


“Pro Forma Adjustments”: 
(a) to the extent (i) factually supportable and certified by
the chief financial officer of the Borrower in detail reasonably acceptable to
the Administrative Agent, and (ii) realizable within 90 days after
the applicable Acquisition, cost savings reasonably expected to result from
operational efficiencies expected to be created by employee terminations,
facilities consolidations and closings, standardization of employee benefits
and compensation policies, consolidation of property, casualty and other
insurance coverage and policies, reductions in taxes other than income taxes
and other cost savings reasonably expected to be realized for such period from
all acquisitions of an acquired entity or business or (b) in the case of
any Acquisition of an Acquired Entity or Business for which the actual Acquired
EBITDA cannot be determined due to the absence of reliable financial
statements, an adjustment pursuant to clause (A) of the last sentence of the
definition of Consolidated EBITDA (in lieu of the actual Acquired EBITDA for
such Acquired Entity or Business and any adjustments pursuant to
clause (a) above), equal to the Acquired EBITDA for such Acquired Entity
or Business for the relevant period preceding the date of such Acquisition, as estimated
in good faith by the chief financial officer of the Borrower based upon the
facts applicable to the Acquired Entity or Business as of the date of such
Acquisition (as though such facts applied during the period preceding such
date), and set forth in a schedule, in detail reasonably acceptable to the
Administrative Agent, identifying the facts (and any relevant assumptions) upon
which such estimate is based and the calculation of such estimate, and
certified by such chief financial officer to be prepared in good faith; provided,
however, that clause (b) above shall not apply for any Acquisition
involving an Acquired Entity or Business with Acquired EBITDA that would exceed
$2,000,000 for a period of four consecutive fiscal quarters.


 


“Pro Forma Financial Statements”:  as defined in Section 4.1(a).


 


“Projections”:  as defined
in Section 6.2(c).


 


“Properties”:  as defined
in Section 4.17(a).


 


“Purchase Agreement”:  any
of the asset and/or equity purchase agreements relating to a Permitted
Acquisition between the Borrower or any Subsidiary Guarantor and the seller of
such assets and/or equity.


 


28

















 


“Recovery Event”:  any
settlement of or payment in respect of any property or casualty insurance claim
or any condemnation proceeding relating to any asset of any Loan Party, in
excess of $1,000,000 in the aggregate for all such amounts in any fiscal year.


 


“Refunded Swingline Loans”: 
as defined in Section 2.7.


 


“Register”:  as defined in
Section 10.6(b).


 


“Regulation S-X”: 
Regulation S-X under the Securities Exchange Act of 1934.


 


“Regulation U”: 
Regulation U of the Board as in effect from time to time.


 


“Reimbursement Obligation”: 
the obligation of the Borrower to reimburse the applicable Issuing
Lender pursuant to Section 3.5 for amounts drawn under any Letter of
Credit.


 


“Reinvestment Deferred Amount”: 
with respect to any Reinvestment Event, the aggregate Net Cash Proceeds
received by any Group Member in connection therewith that are not applied to
prepay the Tranche B Term Loans pursuant to Section 2.11(b) as a result of
the delivery of a Reinvestment Notice.


 


“Reinvestment Event”:  any
Asset Sale, Designated Sale Leaseback Transaction or Recovery Event in respect
of which the Borrower has delivered a Reinvestment Notice.


 


“Reinvestment Notice”:  a
written notice executed by a Responsible Officer stating that (a) no Event
of Default has occurred and is continuing and (b) the Borrower (directly
or indirectly through a Subsidiary) intends and expects to use all or a specified
portion of the Net Cash Proceeds of an Asset Sale, Designated Sale Leaseback
Transaction or Recovery Event to acquire or repair assets useful in its
business or in connection with a Permitted Acquisition; provided, however,
that (i) to the extent that any such Net Cash Proceeds are received in
respect of assets constituting Collateral, such Net Cash Proceeds shall be used
to acquire or repair assets that constitute Collateral or to make a Permitted
Acquisition of assets that become Collateral and (ii) the delivery of any
such notice with respect to any Designated Sale Leaseback Transaction shall be
subject to the limitations set forth in Section 2.11(b).


 


“Reinvestment Prepayment Amount”:  with respect to any Reinvestment Event, the
Reinvestment Deferred Amount relating thereto less any amount expended prior to
the relevant Reinvestment Prepayment Date to acquire or repair assets to be
used in the Borrower’s or any Subsidiary’s business (subject to clause (i)
of the proviso to the definition of the term “Reinvestment Notice”).


 


“Reinvestment Prepayment Date”: 
with respect to any Reinvestment Event, the earlier of (a)(i) with
respect to any Designated Sale Leaseback Transaction, the date occurring 450
days after such Designated Sale Leaseback Transaction, and (ii) with
respect to any other Reinvestment Event, the date occurring 365 days after
such Reinvestment Event and (b) the date on which the Borrower shall have
determined not to, or shall have otherwise ceased to, acquire or repair assets
to be used and useful in the Borrower’s or any Subsidiary’s business with all
or any portion of the relevant Reinvestment Deferred Amount.


 


29

















 


“Reorganization”:  with
respect to any Multiemployer Plan, the condition that such plan is in
reorganization within the meaning of Section 4241 of ERISA.


 


“Reportable Event”:  any
of the events set forth in Section 4043(c) of ERISA, other than those
events as to which the thirty day notice period is waived by applicable regulations
under Section 4043 of ERISA.


 


“Required Lenders”:  at
any time, the holders of more than 50% of (a) until the Closing Date, the
Commitments then in effect and (b) thereafter, the sum of (i) the
aggregate unpaid principal amount of the Tranche B Term Loans then outstanding,
(ii) the Total Revolving Commitments then in effect or, if the Revolving
Commitments have been terminated, the Total Revolving Extensions of Credit then
outstanding and (iii) the Institutional L/C Exposure at such time plus the
excess, if any, of the Total Credit-Linked Deposit over the Institutional L/C
Exposure (excluding any portion thereof represented by Institutional L/C
Disbursements in respect of which the applicable Issuing Lender has been
reimbursed from Credit-Linked Deposits) at such time.


 


“Requirement of Law”:  as
to any Person, the Certificate of Incorporation and By-Laws or other
organizational or governing documents of such Person, and any law, treaty, rule
or regulation or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is
subject.


 


“Responsible Officer”: 
the chief executive officer, president, vice president, chief financial
officer, treasurer or the senior vice president of finance of Holdings or the
Borrower, but in any event, with respect to financial matters, the chief
financial officer, treasurer or senior vice president of finance of Holdings or
the Borrower.


 


“Restricted Payments”:  as
defined in Section 7.6.


 


“Revolving Commitment”: 
as to any Lender, the obligation of such Lender, if any, to make
Revolving Loans and participate in Swingline Loans and Revolving Letters of
Credit in an aggregate principal and/or face amount not to exceed the amount
set forth under the heading “Revolving Commitment” opposite such Lender’s name
on Schedule 1.1A or in the Assignment and Assumption pursuant to which such
Lender became a party hereto, as the same may be changed from time to time
pursuant to the terms hereof. The original amount of the Total Revolving
Commitments is $125,000,000.


 


“Revolving Commitment Increase”: 
as defined in Section 2.25.


 


“Revolving Commitment Period”: 
the period from and including the Closing Date to the Revolving
Termination Date.


 


“Revolving Extensions of Credit”:  as to any Revolving Lender at any time, an
amount equal to the sum without duplication of (a) the aggregate principal
amount of all Revolving Loans held by such Lender then outstanding,
(b) such Lender’s Revolving Percentage


 


30

















 


of the Revolving L/C Exposure at such time and (c) such Lender’s
Revolving Percentage of the aggregate principal amount of Swingline Loans then
outstanding.


 


“Revolving Facility”:  as
defined in the definition of “Facility”.


 


“Revolving L/C Commitment”: 
$40,000,000.


 


“Revolving L/C Disbursement”: 
any payment made by an Issuing Lender pursuant to a Revolving Letter of
Credit.


 


“Revolving L/C Exposure”: 
at any time, an amount equal to the sum of (a) the aggregate undrawn and
unexpired amount of the then outstanding Revolving Letters of Credit and (b)
the aggregate amount of Revolving L/C Disbursements that have not then been
reimbursed by or on behalf of the Borrower.


 


“Revolving L/C Participants”: 
in respect of any Revolving Letter of Credit, the collective reference
to all the Revolving Lenders other than the Issuing Lender in respect of such
Revolving Letter of Credit.


 


“Revolving Lender”:  each
Lender that has a Revolving Commitment or that holds Revolving Extensions of
Credit.


 


“Revolving Letter of Credit”: 
at any time, any Letter of Credit that is not an Institutional Letter of
Credit.


 


“Revolving Loans”:  as
defined in Section 2.4(a).


 


“Revolving Percentage”: 
as to any Revolving Lender at any time, the percentage which such
Lender’s Revolving Commitment then constitutes of the Total Revolving
Commitments or, at any time after the Revolving Commitments shall have expired
or terminated, the percentage which the aggregate principal amount of such
Lender’s Revolving Loans then outstanding constitutes of the aggregate
principal amount of the Revolving Loans then outstanding, provided,
that, in the event that the Revolving Loans are paid in full prior to the
reduction to zero of the Total Revolving Extensions of Credit, the Revolving
Percentages shall be determined in a manner designed to ensure that the other
outstanding Revolving Extensions of Credit shall be held by the Revolving
Lenders on a comparable basis.


 


“Revolving Termination Date”: 
June 29, 2012.


 


“S&P”:  as defined in
the definition of “Cash Equivalents”.


 


“Sale Leaseback Transaction”: 
as defined in Section 7.11.


 


“SEC”:  the Securities and
Exchange Commission, any successor thereto and any analogous Governmental
Authority.


 


31

















 


“Security Documents”:  the
collective reference to the Guarantee and Security Agreement, the Mortgages and
all other security documents hereafter delivered to the Administrative Agent
granting a Lien on any property of any Person to secure the obligations and
liabilities of any Loan Party under any Loan Document.


 


“Senior Subordinated Note Indenture”:  the Indenture entered into by the Borrower
and certain of its Subsidiaries in connection with the issuance of the Senior
Subordinated Notes, together with all instruments and other agreements entered
into by the Borrower or such Subsidiaries in connection therewith.


 


“Senior Subordinated Notes”: 
the $180,000,000 aggregate principal amount of senior subordinated notes
of the Borrower issued on the Closing Date pursuant to the Senior Subordinated
Note Indenture.


 


“Single Employer Plan”: 
any Plan that is covered by Title IV of ERISA, but that is not a
Multiemployer Plan.


 


“Sold Entity or Business”: as set forth in the definition of the
term “Consolidated EBITDA”.


 


“Solvent”:  when used with
respect to any Person, means that, as of any date of determination, (a) the
amount of the “fair value” of the assets of such Person will, as of such date,
exceed the amount of all “liabilities of such Person, contingent or otherwise”,
as of such date, as such quoted terms are determined in accordance with
applicable federal and state laws governing determinations of the insolvency of
debtors, (b) the present fair saleable value of the assets of such Person will,
as of such date, be greater than the amount that will be required to pay the
probable liability of such Person on its debts as such debts become absolute
and matured, (c) such Person will not have, as of such date, an unreasonably
small amount of capital with which to conduct its business, and (d) such Person
will be able to pay its debts as they mature. The amount of contingent
liabilities at any time shall be computed as the amount that can reasonably be
expected to become an actual or matured liability. For purposes of this
definition, (i) “debt” means liability on a “claim”, and (ii) “claim” means any
(x) right to payment, whether or not such a right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or unsecured or (y) right to an equitable
remedy for breach of performance if such breach gives rise to a right to
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured or unmatured, disputed, undisputed,
secured or unsecured.


 


“Specified Change of Control”: 
a “Change of Control” (or any other defined term having a similar
purpose) as defined in the Senior Subordinated Note Indenture.


 


“Specified Sale Leaseback Transaction”:  any Sale Leaseback Transaction permitted by
this Agreement other than a Sale Leaseback Transaction permitted by clause (a)
of Section 7.11.


 


“Specified Swap Agreement”: 
any Swap Agreement entered into by the Borrower and any Lender or
affiliate thereof.


 


32

















 


“Sponsor”:  Vestar Capital
Partners V, L.P. and its Affiliates.


 


“Subsidiary”:  as to any
Person, a corporation, partnership, limited liability company or other entity
of which shares of stock or other ownership interests having ordinary voting
power (other than stock or such other ownership interests having such power
only by reason of the happening of a contingency) to elect a majority of the
board of directors or other managers of such corporation, partnership or other
entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise qualified, all references to a “Subsidiary” or
to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries
of the Borrower. Notwithstanding anything else herein to the contrary, the
definition of Subsidiary shall not include Non-Profit Entities.


 


“Subsidiary Guarantor”: 
each direct or indirect Subsidiary of the Borrower other than any
Foreign Subsidiary, Non-Wholly-Owned Subsidiary (unless such Subsidiary
actually complies with all applicable provisions of the Loan Documents, including
Section 6.9, that are applicable to Subsidiary Guarantors), Non-Profit
Entity, Insurance Subsidiary or Liquidating Subsidiary.


 


“Successful Debt Tender”: a Debt Tender that results in the
tender and purchase of, and receipt of consents in respect of, an aggregate
amount of Existing Notes necessary to modify the Existing Notes Indenture to
remove certain restrictive provisions thereof, as provided in
Schedule 4.05 to the Transaction Agreement with changes thereto not
materially adverse to the Lenders unless consented to by the Joint Bookrunners.


 


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


 


“Swingline Commitment”: 
the obligation of the Swingline Lender to make Swingline Loans pursuant
to Section 2.6 in an aggregate principal amount at any one time
outstanding not to exceed $20,000,000.


 


“Swingline Lender”: 
JPMorgan Chase Bank, N.A., in its capacity as the lender of Swingline
Loans.


 


“Swingline Loans”:  as
defined in Section 2.6.


 


“Swingline Participation Amount”:  as defined in Section 2.7.


 


“Syndication Agent”:  UBS
Securities LLC, in its capacity as Syndication Agent hereunder.


 


33

















 


“Target”:  any Person or
any division of a Person, more than 80% of the outstanding Capital Stock or all
or substantially all of the assets of which, are proposed to be acquired by the
Borrower or any of the Subsidiary Guarantors in connection with a Permitted
Acquisition.


 


“Third Party Payor Programs”: 
all third party payor programs in which the Borrower and its
Subsidiaries currently or in the future may participate, including, without
limitation, Medicare, Medicaid, Blue Cross and/or Blue Shield, Managed Care
Plans, other private insurance programs and employee assistance programs.


 


“Total Credit-Linked Deposit”: at any time, the sum of all
Credit-Linked Deposits at such time.


 


“Total Revolving Commitments”: 
at any time, the aggregate amount of the Revolving Commitments then in
effect.


 


“Total Revolving Extensions of Credit”:  at any time, the aggregate amount of the
Revolving Extensions of Credit of the Revolving Lenders outstanding at such
time.


 


“Tranche B Initial Term Loan”: 
a Tranche B Term Loan made pursuant to a Tranche B Term Commitment.


 


“Tranche B Maturity Date”: 
June 29, 2013.


 


“Tranche B Term Commitment”: 
as to any Lender, the obligation of such Lender, if any, to make a
Tranche B Term Loan to the Borrower on the Closing Date in a principal amount
not to exceed the amount set forth under the heading “Tranche B Term
Commitment” opposite such Lender’s name on Schedule 1.1A, as the same may be
reduced pursuant to the terms hereof. The original aggregate amount of the
Tranche B Term Commitments is $335,000,000.


 


“Tranche B Term Facility”: 
as defined in the definition of “Facility”.


 


“Tranche B Term Lender”: 
each Lender that has a Tranche B Term Commitment or holds a
Tranche B Term Loan.


 


“Tranche B Term Loan”:  a
Loan made pursuant to a Tranche B Term Commitment.


 


“Tranche B Term Percentage”: 
as to any Tranche B Term Lender at any time, the percentage which such
Lender’s Tranche B Term Commitment then constitutes of the aggregate
Tranche B Term Commitments (or, at any time after the Closing Date, the
percentage which the aggregate principal amount of such Lender’s Tranche B
Term Loans then outstanding constitutes of the aggregate principal amount of
the Tranche B Term Loans then outstanding).


 


“Transaction Agreement”: the Agreement and Plan of Merger dated
as of March 22, 2006, by and among Holdings, the Borrower and Mergersub.


 


34

















 


“Transaction Bonuses”: 
any bonuses payable to any officer or employee of Holdings or any of its
Subsidiaries (including any Person who becomes an officer or employee of any
Group Member in connection with a Permitted Acquisition) in connection with any
Permitted Acquisition in an aggregate amount not exceeding $1,000,000; provided
that the amount of all such bonuses payable in connection with all Permitted
Acquisitions shall not exceed $3,000,000 in the aggregate.


 


“Transactions”:  the
Merger, the payment of the Merger Consideration and the Closing Costs, the Debt
Discharge, the Financing Transactions and the other transactions contemplated
by the Transaction Agreement.


 


“Transferee”:  any
Assignee or Participant.


 


“Type”:  as to any Loan,
its nature as an ABR Loan or a Eurodollar Loan.


 


“United States”:  the
United States of America.


 


“Wholly-Owned Subsidiary”: 
as to any Person, any other Person all of the Capital Stock of which
(other than directors’ qualifying shares required by law) is owned by such
Person directly and/or through other Wholly Owned Subsidiaries.


 


“Wholly-Owned Subsidiary Guarantor”:  any Subsidiary Guarantor that is a Wholly
Owned Subsidiary of the Borrower.


 


1.2           Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms defined in this Agreement
shall have the defined meanings when used in the other Loan Documents or any
certificate or other document made or delivered pursuant hereto or thereto.


 


(b) As used
herein and in the other Loan Documents, and any certificate or other document
made or delivered pursuant hereto or thereto, (i) accounting terms
relating to any Group Member not defined in Section 1.1 and accounting
terms partly defined in Section 1.1, to the extent not defined, shall have
the respective meanings given to them under GAAP, (ii) the words
“include”, “includes” and “including” shall be deemed to be followed by the phrase
“without limitation”, (iii) the word “incur” shall be construed to mean
incur, create, issue, assume, become liable in respect of or suffer to exist
(and the words “incurred” and “incurrence” shall have correlative meanings),
(iv) the words “asset” and “property” shall be construed to have the same
meaning and effect and to refer to any and all tangible and intangible assets
and properties, including cash, Capital Stock, securities, revenues, accounts,
leasehold interests and contract rights, (v) references to agreements or
other Contractual Obligations shall, unless otherwise specified, be deemed to
refer to such agreements or Contractual Obligations as amended, supplemented,
restated or otherwise modified from time to time and (vi) the word “knowledge”
when used with respect to any Loan Party shall be deemed to be a reference to
the knowledge of any Responsible Officer.


 


(c) The words
“hereof”, “herein” and “hereunder” and words of similar import, when used in
this Agreement, shall refer to this Agreement as a whole and not to any
particular


 


35

















 


provision of this Agreement, and Section, Schedule and Exhibit
references are to this Agreement unless otherwise specified.


 


(d) The
meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.


 


SECTION 2. AMOUNT AND TERMS OF COMMITMENTS


 


2.1           Tranche B Term Commitments and
Institutional L/C Commitments. (a)Subject to the terms and conditions
hereof, each Tranche B Term Lender with a Tranche B Term Commitment
severally agrees to make a Tranche B Term Loan to the Borrower on the
Closing Date in a principal amount equal to its Tranche B Term Commitment.


 


(b) Subject to
the terms and conditions hereof, each Institutional L/C Lender severally agrees
to make a Credit-Linked Deposit on the Closing Date in an amount equal to its
Institutional L/C Commitment.


 


(c) Tranche B
Term Loans may from time to time be Eurodollar Loans or ABR Loans, as
determined by the Borrower and notified to the Administrative Agent in
accordance with Sections 2.2 and 2.12.


 


2.2           Procedure for Tranche B Term Loan
Borrowings and Credit-Linked Deposits. The Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 4:00 P.M., New York City time, one Business Day
prior to the anticipated Closing Date or, in the case of Tranche B Term Loans
to be made as Eurodollar Loans, three Business Days prior to the Closing Date)
requesting that (i) the Tranche B Term Lenders make the Tranche B Term
Loans to be made on the Closing Date and (ii) the Institutional L/C
Lenders make the Credit-Linked Deposits on the Closing Date. Upon receipt of
any such notice the Administrative Agent shall promptly notify each applicable
Lender thereof. Not later than 12:00 Noon, New York City time, on the Closing
Date (A) each Tranche B Term Lender shall make available to the
Administrative Agent at the Funding Office an amount in immediately available
funds equal to its new term loan being made as a Tranche B Term Loan on
the Closing Date and (B) each Institutional L/C Lender shall make
available to the Administrative Agent at the Funding Office an amount in
immediately available funds equal to its Credit-Linked Deposit to be made on
the Closing Date. The Administrative Agent shall credit the account of the
Borrower on the books of such office of the Administrative Agent with the
aggregate of the amounts of Tranche B Term Loans made available on the Closing
Date to the Administrative Agent by the Tranche B Term Lenders in
immediately available funds, and shall credit the Credit-Linked Deposit Account
with the aggregate of the amounts made available to the Administrative Agent as
Credit-Linked Deposits


 


2.3           Repayment of Tranche B Term Loans.
The Borrower shall repay the Tranche B Term Loans in installments on each
March 31, June 30, September 30 and December 31 of each
year, commencing with September 30, 2006, and ending with the
Tranche B Maturity Date, in an aggregate principal amount equal to
(i) in the case of each such installment due prior to the Tranche B
Maturity Date, 0.25% of the aggregate principal amount


 


36

















 


of Tranche B Term Loans made prior to such scheduled payment date
and (ii) in the case of the installment due on the Tranche B Maturity
Date, the entire remaining balance of the Tranche B Term Loans; provided
that any such installment may be reduced as a result of a prepayment in
accordance with Section 2.17(b).


 


2.4           Revolving Commitments. (a)
Subject to the terms and conditions hereof, each Revolving Lender severally
agrees to make revolving credit loans (“Revolving Loans”) to the
Borrower from time to time during the Revolving Commitment Period in an
aggregate principal amount at any one time outstanding which, when added to
such Lender’s Revolving Percentage of the sum of (i) the Revolving L/C
Exposure at such time and, (ii) the aggregate principal amount of the
Swingline Loans then outstanding, does not exceed the amount of such Lender’s
Revolving Commitment. During the Revolving Commitment Period the Borrower may
use the Revolving Commitments by borrowing, prepaying the Revolving Loans in
whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof. The Revolving Loans may from time to time be Eurodollar
Loans or ABR Loans, as determined by the Borrower and notified to the
Administrative Agent in accordance with Sections 2.5 and 2.12.


 


(b) The
Borrower shall repay all outstanding Revolving Loans on the Revolving
Termination Date.


 


2.5           Procedure for Revolving Loan
Borrowing. The Borrower may borrow under the Revolving Commitments during
the Revolving Commitment Period on any Business Day, provided that the
Borrower shall give the Administrative Agent irrevocable notice (which notice
must be received by the Administrative Agent prior to 12:00 Noon, New York City
time, (a) three Business Days prior to the requested Borrowing Date, in
the case of Eurodollar Loans, or (b) one Business Day prior to the
requested Borrowing Date, in the case of ABR Loans) (provided that any
such notice of a borrowing of ABR Loans under the Revolving Facility to finance
payments required by Section 3.5 may be given not later than 10:00 A.M.,
New York City time, on the date of the proposed borrowing), specifying
(i) the amount and Type of Revolving Loans to be borrowed, (ii) the
requested Borrowing Date and (iii) in the case of Eurodollar Loans, the
respective amounts of each such Type of Loan and the respective lengths of the
initial Interest Period therefor. No Revolving Loans will be made on the
Closing Date in excess of $10,000,000, unless otherwise agreed by the Joint
Bookrunners. Each borrowing under the Revolving Commitments shall be in an amount
equal to (x) in the case of ABR Loans, $500,000 or a whole multiple of
$100,000 over such amount (or, if the then aggregate Available Revolving
Commitments are less than $500,000, such lesser amount) and (y) in the
case of Eurodollar Loans, $1,000,000 or a whole multiple of $100,000 in excess
thereof; provided, that the Swingline Lender may request, on behalf of
the Borrower, borrowings under the Revolving Commitments that are ABR Loans in
other amounts pursuant to Section 2.7. Upon receipt of any such notice
from the Borrower, the Administrative Agent shall promptly notify each
Revolving Lender thereof. Each Revolving Lender will make the amount of its pro
rata share of each borrowing available to the Administrative Agent for the
account of the Borrower at the Funding Office prior to 12:00 Noon, New York
City time, on the Borrowing Date requested by the Borrower in funds immediately
available to the Administrative Agent. Such borrowing will then be made
available to the Borrower by the Administrative Agent crediting the account of
the Borrower on the books of such office with the aggregate of the amounts made
available to the


 


37

















 


Administrative Agent by the
Revolving Lenders and in like funds as received by the Administrative Agent.


 


2.6           Swingline Commitment. (a)
Subject to the terms and conditions hereof, the Swingline Lender agrees to make
a portion of the credit otherwise available to the Borrower under the Revolving
Commitments from time to time during the Revolving Commitment Period by making
swing line loans (“Swingline Loans”) to the Borrower; provided
that (i) the aggregate principal amount of Swingline Loans outstanding at
any time shall not exceed the Swingline Commitment then in effect (notwithstanding
that the Swingline Loans outstanding at any time, when aggregated with the
Swingline Lender’s other outstanding Revolving Loans, may exceed the Swingline
Commitment then in effect) and (ii) the Borrower shall not request, and
the Swingline Lender shall not make, any Swingline Loan if, after giving effect
to the making of such Swingline Loan, the aggregate amount of the Available
Revolving Commitments would be less than zero. During the Revolving Commitment
Period, the Borrower may use the Swingline Commitment by borrowing, repaying
and reborrowing, all in accordance with the terms and conditions hereof.
Swingline Loans shall be ABR Loans only.


 


(b) The
Borrower shall repay to the Swingline Lender the then unpaid principal amount
of each Swingline Loan on the earlier of the Revolving Termination Date and the
first date after such Swingline Loan is made that is the 15th or last day of a
calendar month and is at least ten (10) days after such Swingline Loan is made;
provided that on each date that a Revolving Loan is borrowed, the
Borrower shall repay all Swingline Loans then outstanding.


 


2.7           Procedure for Swingline Borrowing;
Refunding of Swingline Loans. (a) Whenever the Borrower desires that the
Swingline Lender make Swingline Loans it shall give the Swingline Lender
irrevocable telephonic notice confirmed promptly in writing (which telephonic
notice must be received by the Swingline Lender not later than 1:00 P.M., New
York City time, on the proposed Borrowing Date), specifying (i) the amount to
be borrowed and (ii) the requested Borrowing Date (which shall be a Business
Day during the Revolving Commitment Period). Each borrowing under the Swingline
Commitment shall be in an amount equal to $100,000 or a whole multiple of
$100,000 in excess thereof. Not later than 3:00 P.M., New York City time, on
the Borrowing Date specified in a notice in respect of Swingline Loans, the
Swingline Lender shall make available to the Administrative Agent at the
Funding Office an amount in immediately available funds equal to the amount of
the Swingline Loan to be made by the Swingline Lender. The Administrative Agent
shall make the proceeds of such Swingline Loan available to the Borrower on
such Borrowing Date by depositing such proceeds in the account of the Borrower
with the Administrative Agent on such Borrowing Date in immediately available
funds.


 


(b) The
Swingline Lender, at any time and from time to time in its sole and absolute
discretion may, on behalf of the Borrower (which hereby irrevocably directs the
Swingline Lender to act on its behalf), by written notice given no later than
10:00 A.M., New York City time, on any Business Day request each Revolving
Lender to make, and each Revolving Lender hereby agrees to make, a Revolving
Loan, in an amount equal to such Revolving Lender’s Revolving Percentage of the
aggregate amount of the Swingline Loans (the “Refunded Swingline Loans”)
outstanding on the date of such notice, to repay the Swingline


 


38

















 


Lender. Each Revolving Lender
shall make the amount of such Revolving Loan available to the Administrative
Agent at the Funding Office in immediately available funds, upon receipt of
notice as provided above. The proceeds of such Revolving Loans shall be
immediately made available by the Administrative Agent to the Swingline Lender
for application by the Swingline Lender to the repayment of the Refunded
Swingline Loans. The Borrower irrevocably authorizes the Swingline Lender to
charge the Borrower’s accounts with the Administrative Agent (up to the amount
available in each such account) in order to immediately pay the amount of such
Refunded Swingline Loans to the extent amounts received from the Revolving
Lenders are not sufficient to repay in full such Refunded Swingline Loans.


 


(c) If prior
to the time a Revolving Loan would have otherwise been made pursuant to
Section 2.7(b), one of the events described in Section 8(f) shall
have occurred and be continuing with respect to the Borrower or if for any
other reason, as determined by the Swingline Lender in its sole discretion,
Revolving Loans may not be made as contemplated by Section 2.7(b), each
Revolving Lender shall, on the date such Revolving Loan was to have been made
pursuant to the notice referred to in Section 2.7(b), purchase for cash an
undivided participating interest in the then outstanding Swingline Loans by
paying to the Swingline Lender an amount (the “Swingline Participation
Amount”) equal to (i) such Revolving Lender’s Revolving Percentage times
(ii) the sum of the aggregate principal amount of Swingline Loans then
outstanding that were to have been repaid with such Revolving Loans.


 


(d) Whenever,
at any time after the Swingline Lender has received from any Revolving Lender
such Lender’s Swingline Participation Amount, the Swingline Lender receives any
payment on account of the Swingline Loans, the Swingline Lender will distribute
to such Lender its Swingline Participation Amount (appropriately adjusted, in
the case of interest payments, to reflect the period of time during which such
Lender’s participating interest was outstanding and funded and, in the case of
principal and interest payments, to reflect such Lender’s pro  rata
portion of such payment if such payment is not sufficient to pay the principal
of and interest on all Swingline Loans then due); provided, however,
that in the event that such payment received by the Swingline Lender is
required to be returned, such Revolving Lender will return to the Swingline
Lender any portion thereof previously distributed to it by the Swingline
Lender.


 


(e) Each
Revolving Lender’s obligation to make the Loans referred to in
Section 2.7(b) and to purchase participating interests pursuant to
Section 2.7(c) shall be absolute and unconditional and shall not be
affected by any circumstance, including (i) any setoff, counterclaim,
recoupment, defense or other right that such Revolving Lender or the Borrower
may have against the Swingline Lender, the Borrower or any other Person for any
reason whatsoever, (ii) the occurrence or continuance of a Default or an Event
of Default or the failure to satisfy any of the other conditions specified in
Section 5, (iii) any adverse change in the condition (financial or
otherwise) of the Borrower, (iv) any breach of this Agreement or any other Loan
Document by the Borrower, any other Loan Party or any other Revolving Lender or
(v) any other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing; provided that a Revolving Lender shall
not be required to make a Loan referred to in Section 2.7(b) or to
purchase a participation in a Swingline Loan pursuant to Section 2.7(c) if
(x) a Default shall have occurred and was continuing at the time such Swingline
Loan was made and


 


39

















 


(y) such Revolving Lender shall
have notified the Swingline Lender in writing, not less than one Business Day
before such Swingline Loan was made, that such Default has occurred and that
such Revolving Lender will not refund or participate in any Swingline Loans
made while such Default exists.


 


2.8           Commitment Fees, etc.. (a) The
Borrower agrees to pay to the Administrative Agent for the account of each
Revolving Lender a commitment fee for the period from and including the Closing
Date to but excluding the last day of the Revolving Commitment Period, computed
at the Commitment Fee Rate on the average daily amount of the Available
Revolving Commitment of such Lender; provided, however, solely
for purposes of this calculation, an amount equal to such Lender’s Revolving
Percentage of the Swingline Loans then outstanding shall not be deemed to
reduce such Lender’s Available Revolving Commitment) during the period for
which payment is made, payable quarterly in arrears on each Fee Payment Date,
commencing on the first such date to occur after the date hereof.


 


(b) The
Borrower agrees to pay to the Administrative Agent the fees in the amounts and
on the dates as set forth in the Fee Letter and to perform any other
obligations contained therein.


 


2.9           Termination or Reduction of
Commitments. (a) The Borrower shall have the right, upon not less than
three Business Days’ notice to the Administrative Agent, to terminate the
Revolving Commitments or, from time to time, to reduce the amount of the
Revolving Commitments; provided that no such termination or reduction of
Revolving Commitments shall be permitted if, after giving effect thereto and to
any prepayments of the Revolving Loans and Swingline Loans made on the
effective date thereof, the Total Revolving Extensions of Credit would exceed
the Total Revolving Commitments. Any such reduction shall be in an amount equal
to $1,000,000, or a whole multiple thereof, and shall reduce permanently the
Revolving Commitments.


 


(b) If a
Successful Debt Tender is consummated on or prior to the Closing Date and any
Existing Notes are not purchased as a result thereof, then the Tranche B Term
Commitments shall be reduced (effective prior to the borrowing of Tranche B
Initial Term Loans) by the excess of (i) the amount that would have been used
to purchase such Existing Notes if they had been tendered and purchased in
accordance with the terms of such Successful Debt Tender (including by the
amount of any consent fees that would have been payable in respect thereof)
over (ii) the additional amount, if any, that the Merger Consideration would
have been reduced pursuant to Section 1.04(c) of the Transaction Agreement
if such Existing Notes had been so purchased; provided that no such
reduction shall be required if such excess is equal to or less than $2,000,000.


 


(c) The
Tranche B Term Commitments and Institutional L/C Commitments shall terminate
upon funding thereof on the Closing Date. Unless previously terminated, the
Revolving Commitments shall terminate on the Revolving Termination Date.


 


2.10         Optional Prepayments. The
Borrower may at any time and from time to time prepay the Loans, in whole or in
part, without premium or penalty, upon irrevocable notice


 


40

















 


delivered to the Administrative
Agent no later than 12:00 Noon, New York City time, three Business Days prior
thereto, in the case of Eurodollar Loans, and no later than 12:00 Noon, New
York City time, one Business Day prior thereto, in the case of ABR Loans (or on
the same day in the case of Swingline Loans), which notice shall specify the
date and amount of prepayment and whether the prepayment is of Eurodollar Loans
or ABR Loans; provided, that if a Eurodollar Loan is prepaid on any day
other than the last day of the Interest Period applicable thereto, the Borrower
shall also pay any amounts owing pursuant to Section 2.20. Upon receipt of
any such notice the Administrative Agent shall promptly notify each relevant
Lender thereof. If any such notice is given, the amount specified in such
notice shall be due and payable on the date specified therein, together with
(except in the case of Revolving Loans that are ABR Loans and Swingline Loans)
accrued interest to such date on the amount prepaid. Partial prepayments of
Tranche B Term Loans and Revolving Loans shall be in an aggregate principal
amount of $1,000,000 or a whole multiple thereof. Partial prepayments of
Swingline Loans shall be in an aggregate principal amount of $100,000 or a
whole multiple thereof.


 


2.11         Mandatory Prepayments. (a) If
Indebtedness shall be issued or incurred by any Loan Party (excluding any
Indebtedness incurred in accordance with Section 7.2, other than Permitted
Additional Subordinated Debt) an amount equal to 100% of the Net Cash Proceeds
thereof shall be applied as soon as practicable but in any event within five
Business Days after such issuance or incurrence toward the prepayment of the
Tranche B Term Loans as set forth in Section 2.11(d).


 


(b) If on any
date any Loan Party shall receive Net Cash Proceeds from any Asset Sale,
Specified Sale Leaseback Transaction or Recovery Event, then, unless a
Reinvestment Notice shall be delivered in respect thereof, such Net Cash
Proceeds shall be applied as soon as practicable but in any event within ten
days after the date of receipt thereof toward the prepayment of the Tranche B
Term Loans as set forth in Section 2.11(d); provided, that,
notwithstanding the foregoing, (i) a Reinvestment Notice may not be
delivered with respect to a Specified Sale Leaseback Transaction that is not a
Designated Sale Leaseback Transaction, (ii) no such prepayment shall be
required in respect of the first $1,000,000 of Net Cash Proceeds received
during any fiscal year from Specified Sale Leaseback Transactions that are not
Designated Sale Leaseback Transactions, (iii) a Reinvestment Notice with
respect to a Designated Sale Leaseback Transaction shall not be permitted
unless (A) after giving effect thereto and to any prepayments made
hereunder, the aggregate outstanding principal amount of Tranche B Term Loans
does not exceed $300,000,000 and (B) the Reinvestment Deferred Amount
shall not exceed 662/3 % of the Net Cash Proceeds
therefrom (or of the remaining Net Cash Proceeds therefrom, if a portion of
such Net Cash Proceeds must be applied to prepay Tranche B Term Loans in
order to satisfy the requirements of clause (A) above), so that a minimum of 331/3%
of such Net Cash Proceeds (or remaining Net Cash Proceeds, as the case may be)
are applied to prepay Tranche B Term Loans as provided herein, and (iv) on
each Reinvestment Prepayment Date, an amount equal to the Reinvestment
Prepayment Amount with respect to the relevant Reinvestment Event shall be
applied toward the prepayment of the Tranche B Term Loans as set forth in
Section 2.11(d).


 


(c) If, for
any fiscal year of the Borrower commencing with the fiscal year ending
September 30, 2007, there shall be Excess Cash Flow, the Borrower shall,
on the relevant Excess


 


41

















 


Cash Flow Application Date, apply an amount
equal to (i) the ECF Percentage of such Excess Cash Flow less
(ii) the aggregate principal amount of all prepayments of Revolving Loans
and Swingline Loans made during such fiscal year to the extent accompanying
permitted optional reductions of the Revolving Commitments and the aggregate
principal amount of all optional prepayments of Tranche B Term Loans made
during such fiscal year, toward the prepayment of the Tranche B Term Loans as
set forth in Section 2.11(d). Each such prepayment shall be made on a date
(an “Excess Cash Flow Application Date”) no later than five Business
Days after the earlier of (i) the date on which the financial statements
of the Borrower referred to in Section 6.1(a), for the fiscal year with
respect to which such prepayment is made, are required to be delivered to the
Lenders and (ii) the date such financial statements are actually
delivered.


 


(d) The
application of any prepayment of Tranche B Term Loans pursuant to
Section 2.11 shall be made, first, to ABR Loans and, second,
to Eurodollar Loans; provided that, if such application would be
inconsistent with Section 2.17 (b), then Section 2.17(b) shall apply.
Each prepayment of Tranche B Term Loans under Section 2.11 shall be
accompanied by accrued interest to the date of such prepayment on the amount
prepaid and by any amounts payable pursuant to Section 2.20.


 


2.12         Conversion and Continuation Options.
(a) The Borrower may elect from time to time to convert Eurodollar Loans to ABR
Loans by giving the Administrative Agent prior irrevocable notice of such
election no later than 12:00 Noon, New York City time, on the Business Day
preceding the proposed conversion date, provided that any such
conversion of Eurodollar Loans may only be made on the last day of an Interest
Period with respect thereto. The Borrower may elect from time to time to
convert ABR Loans to Eurodollar Loans by giving the Administrative Agent prior
irrevocable notice of such election no later than 12:00 Noon, New York City
time, on the third Business Day preceding the proposed conversion date (which
notice shall specify the length of the initial Interest Period therefor), provided
that no ABR Loan under a particular Facility may be converted into a Eurodollar
Loan when any Event of Default has occurred and is continuing and the
Administrative Agent or the Majority Facility Lenders in respect of such
Facility have determined in its or their sole discretion not to permit such
conversions. Upon receipt of any such notice the Administrative Agent shall promptly
notify each relevant Lender thereof.


 


(b) Any
Eurodollar Loan may be continued as such upon the expiration of the then
current Interest Period with respect thereto by the Borrower giving irrevocable
notice to the Administrative Agent, in accordance with the applicable
provisions of the term “Interest Period” set forth in Section 1.1, of the
length of the next Interest Period to be applicable to such Loans, provided
that no Eurodollar Loan under a particular Facility may be continued as such
when any Event of Default has occurred and is continuing and the Administrative
Agent has or the Majority Facility Lenders in respect of such Facility have
determined in its or their sole discretion not to permit such continuations,
and provided, further, that (i) if the Borrower shall fail
to give any required notice as described above in this paragraph or
(ii) if such continuation is not permitted pursuant to the preceding
proviso such Loans shall be automatically converted to ABR Loans on the last day
of such then expiring Interest Period. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender thereof.


 


42

















 


2.13         Limitations on Eurodollar Tranches.
Notwithstanding anything to the contrary in this Agreement, all borrowings,
conversions and continuations of Eurodollar Loans and all selections of
Interest Periods shall be in such amounts and be made pursuant to such
elections so that, (a) after giving effect thereto, the aggregate principal
amount of the Eurodollar Loans comprising each Eurodollar Tranche shall be
equal to $1,000,000 or a whole multiple of $100,000 in excess thereof and (b)
no more than eight Eurodollar Tranches shall be outstanding at any one time.


 


2.14         Interest Rates and Payment Dates.
(a) Each Eurodollar Loan shall bear interest for each day during each Interest
Period with respect thereto at a rate per annum equal to the Eurodollar Rate
determined for such day plus the Applicable Margin.


 


(b) Each ABR
Loan shall bear interest at a rate per annum equal to the ABR plus the
Applicable Margin.


 


(c)
(i) If all or a portion of the principal amount of any Loan or
Reimbursement Obligation shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum equal to (x) in the case of the Loans, the
rate that would otherwise be applicable thereto pursuant to the foregoing
provisions of this Section plus 2%, (y) in the case of
Reimbursement Obligations in respect of a Revolving L/C Disbursement, the rate
applicable to ABR Loans under the Revolving Facility plus 2%, or (z) in
the case of Reimbursement Obligations in respect of an Institutional L/C
Disbursement, the rate applicable to ABR Loans under the Tranche B Term
Facility plus 2% and (ii) if all or a portion of any interest
payable on any Loan or Reimbursement Obligation or any fee or other amount
payable hereunder shall not be paid when due (whether at the stated maturity,
by acceleration or otherwise), such overdue amount shall bear interest at a
rate per annum equal to the rate then applicable to ABR Loans under the
relevant Facility plus 2% (or, in the case of any such other amounts
that do not relate to a particular Facility, the rate then applicable to ABR
Loans under the Revolving Facility plus 2%), in each case, with respect
to clauses (i) and (ii) above, from the date of such non-payment until such
amount is paid in full (as well after as before judgment).


 


(d) Interest
shall be payable in arrears on each Interest Payment Date, provided that
interest accruing pursuant to paragraph (c) of this Section shall be
payable from time to time on demand.


 


2.15         Computation of Interest and Fees.
(a) Interest and fees payable pursuant hereto shall be calculated on the basis
of a 360-day year for the actual days elapsed, except that, with respect to ABR
Loans the rate of interest on which is calculated on the basis of the Prime
Rate, the interest thereon shall be calculated on the basis of a 365- (or 366-,
as the case may be) day year for the actual days elapsed. The Administrative
Agent shall as soon as practicable notify the Borrower and the relevant Lenders
of each determination of a Eurodollar Rate. Any change in the interest rate on
a Loan resulting from a change in the ABR or the Eurocurrency Reserve
Requirements shall become effective as of the opening of business on the day on
which such change becomes effective. The Administrative Agent shall as soon as
practicable notify the


 


43

















 


Borrower and the relevant Lenders of the
effective date and the amount of each such change in interest rate.


 


(b) Each
determination of an interest rate by the Administrative Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrower and
the Lenders in the absence of manifest error. The Administrative Agent shall,
at the request of the Borrower, deliver to the Borrower a statement showing the
quotations used by the Administrative Agent in determining any interest rate
pursuant to Section 2.14(a).


 


2.16         Inability to Determine Interest Rate.
If prior to the first day of any Interest Period:


 


(a) the Administrative Agent shall have
determined (which determination shall be conclusive and binding upon the
Borrower) that, by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the Eurodollar Rate
for such Interest Period, or


 


(b) the Administrative Agent shall have
received notice from the Majority Facility Lenders in respect of the relevant
Facility that the Eurodollar Rate determined or to be determined for such
Interest Period will not adequately and fairly reflect the cost to such Lenders
(as conclusively certified by such Lenders) of making or maintaining their
affected Loans during such Interest Period,


 


the Administrative Agent shall give telecopy or telephonic notice
thereof to the Borrower and the relevant Lenders as soon as practicable
thereafter. If such notice is given (x) any Eurodollar Loans under the
relevant Facility requested to be made on the first day of such Interest Period
shall be made as ABR Loans, (y) any Loans under the relevant Facility that
were to have been converted on the first day of such Interest Period to
Eurodollar Loans shall be continued as ABR Loans and (z) any outstanding
Eurodollar Loans under the relevant Facility shall be converted, on the last
day of the then-current Interest Period, to ABR Loans. Until such notice has
been withdrawn by the Administrative Agent, no further Eurodollar Loans under
the relevant Facility shall be made or continued as such, nor shall the
Borrower have the right to convert Loans under the relevant Facility to
Eurodollar Loans.


 


2.17         Pro Rata Treatment and Payments.
(a) Each borrowing by the Borrower from the Lenders hereunder (or funding of
Credit-Linked Deposits, as applicable) and any reduction of the Commitments of
the Lenders shall be made pro  rata according to the respective
Tranche B Term Commitments, Revolving Commitments or Institutional L/C
Commitments, as the case may be, of the relevant Lenders. Each payment by the
Borrower on account of commitment fees hereunder shall be made pro  rata
according to the respective Revolving Commitments of the relevant Lenders.


 


(b) Each
payment (including each prepayment) by the Borrower on account of principal of
and interest on the Tranche B Term Loans shall be made (i) in the case of
principal,  pro  rata
according to the respective outstanding principal amounts of the Tranche B Term
Loans then held by the Tranche B Term Lenders, and (ii) in the case of
interest, pro  rata according to


 


44

















 


the respective amounts of accrued and unpaid
interest on the Tranche B Term Loans then due to the Tranche B Term Lenders.
The amount of each principal prepayment of the Tranche B Term Loans shall be
applied to reduce the then remaining installments of the Tranche B Term Loans
as directed by the Borrower by notice to the Administrative Agent. Amounts
prepaid on account of the Tranche B Term Loans may not be reborrowed.


 


(c) Each
payment (including each prepayment) by the Borrower on account of principal of
and interest on the Revolving Loans shall be made (i) in the case of principal,
pro  rata according to the respective outstanding principal
amounts of the Revolving Loans then held by the Revolving Lenders, and (ii) in
the case of interest, pro  rata according to the respective
amounts of accrued and unpaid interest on the Revolving Loans then due to the
Revolving Lenders.


 


(d) Each
payment by the Borrower or the Administrative Agent on account of interest or
fees payable by it pursuant to Section 2.24(b) shall be made to the
Institutional L/C Lenders pro  rata according to their respective
Institutional L/C Percentages.


 


(e) All
payments (including prepayments) to be made by the Borrower hereunder, whether
on account of principal, interest, fees or otherwise, shall be made without
setoff or counterclaim and shall be made prior to 2:00 P.M., New York City
time, on the due date thereof to the Administrative Agent at the Funding
Office, in Dollars and in immediately available funds. The Administrative Agent
shall distribute such payments to the applicable Lenders (or, in the case of
amounts payable to them, to the Swingline Lender or Issuing Lender, or, in the
case of amounts payable to it, retained by the Administrative Agent) promptly
upon receipt in like funds as received. If any payment hereunder (other than
payments on the Eurodollar Loans) becomes due and payable on a day other than a
Business Day, such payment shall be extended to the next succeeding Business
Day. If any payment on a Eurodollar Loan becomes due and payable on a day other
than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day unless the result of such extension would be to extend
such payment into another calendar month, in which event such payment shall be
made on the immediately preceding Business Day. In the case of any extension of
any payment of principal pursuant to the preceding two sentences, interest
thereon shall be payable at the then applicable rate during such extension.


 


(f) Unless the
Administrative Agent shall have been notified in writing by any Lender prior to
a borrowing that such Lender will not make the amount that would constitute its
share of such borrowing available to the Administrative Agent, the
Administrative Agent may assume that such Lender is making such amount
available to the Administrative Agent, and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower a corresponding
amount. If such amount is not made available to the Administrative Agent by the
required time on the Borrowing Date therefor, such Lender shall pay to the
Administrative Agent, on demand, such amount with interest thereon, at a rate
equal to the greater of (i) the Federal Funds Effective Rate and
(ii) a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation, for the period until such
Lender makes such amount immediately available to the Administrative Agent. A
certificate of the Administrative Agent submitted to any Lender with respect to
any amounts owing under this


 


45

















 


paragraph shall be conclusive in the absence
of manifest error. If such Lender’s share of such borrowing is not made
available to the Administrative Agent by such Lender within three Business Days
after such Borrowing Date, the Administrative Agent shall also be entitled to
recover such amount with interest thereon at the rate per annum applicable to
ABR Loans under the relevant Facility, on demand, from the Borrower. If the
Borrower and such Lender shall pay such interest to the Administrative Agent
for the same or an overlapping period, the Administrative Agent shall promptly
remit to the Borrower the amount of such interest paid by the Borrower for such
period. If such Lender pays its share of the applicable borrowing to the Administrative
Agent, then the amount so paid shall constitute such Lender’s Loan included in
such borrowing. Any payment by the Borrower shall be without prejudice to any
claim the Borrower may have against a Lender that shall have failed to make
such payment to the Administrative Agent.


 


(g) Unless the
Administrative Agent shall have been notified in writing by the Borrower prior
to the date of any payment due to be made by the Borrower hereunder that the
Borrower will not make such payment to the Administrative Agent, the
Administrative Agent may assume that the Borrower is making such payment, and
the Administrative Agent may, but shall not be required to, in reliance upon
such assumption, make available to the applicable Lenders their respective pro
rata shares of a corresponding amount. If such payment is not made to
the Administrative Agent by the Borrower within three Business Days after such
due date, the Administrative Agent shall be entitled to recover, on demand,
from each Lender to which any amount which was made available pursuant to the
preceding sentence, such amount with interest thereon at the rate per annum
equal to the daily average Federal Funds Effective Rate. Nothing herein shall
be deemed to limit the rights of the Administrative Agent or any Lender against
the Borrower.


 


2.18         Requirements of Law. (a) If the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof or compliance by any Lender with any request or directive
(whether or not having the force of law) from any central bank or other
Governmental Authority made subsequent to the date hereof:


 


(i) shall legally impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any office
of such Lender that is not otherwise included in the determination of the
Eurodollar Rate; or


 


(ii) shall impose on such Lender any other condition;


 


and the result of any of the foregoing is to increase the cost to such
Lender, by an amount that such Lender deems to be material, of making,
converting into, continuing or maintaining Eurodollar Loans or issuing or participating
in Letters of Credit or maintaining any Credit-Linked Deposit, or to reduce any
amount receivable by such Lender hereunder in respect thereof, then, in any
such case, the Borrower shall promptly and in any event within five Business
Days pay such Lender, upon its written demand, any additional amounts necessary
to compensate such Lender for such increased cost or reduced amount receivable.
If any Lender


 


46

















 


becomes entitled to claim any additional amounts pursuant to this
paragraph, it shall promptly notify the Borrower (with a copy to the
Administrative Agent) of the event by reason of which it has become so
entitled.


 


(b) If any
Lender shall have determined that the adoption of or any change in any
Requirement of Law regarding capital adequacy or in the interpretation or
application thereof or compliance by such Lender or any corporation controlling
such Lender with any request or directive regarding capital adequacy (whether
or not having the force of law) from any Governmental Authority made subsequent
to the date hereof shall have the effect of reducing the rate of return on such
Lender’s or such corporation’s capital as a consequence of its obligations
hereunder or under or in respect of any Letter of Credit or an account of any
Credit-Linked Deposit to a level below that which such Lender or such
corporation could have achieved but for such adoption, change or compliance
(taking into consideration such Lender’s or such corporation’s policies with
respect to capital adequacy) by an amount reasonably deemed by such Lender to
be material and to the extent reasonably determined such increase in capital to
be allocable to the existence of such Lender’s Commitments or participations in
Letters of Credit hereunder or its Credit-Linked Deposit, then from time to
time, after submission by such Lender to the Borrower (with a copy to the
Administrative Agent) of a written request therefor, the Borrower shall pay to
such Lender such additional amount or amounts as will compensate such Lender or
such corporation for such reduction.


 


(c) A
certificate as to any additional amounts payable pursuant to this
Section submitted by any Lender to the Borrower (with a copy to the
Administrative Agent) with appropriate detail demonstrating how such amounts
were derived shall be conclusive in the absence of manifest error.


 


(d) This
Section shall not apply to taxes, which shall be governed by Section 2.19.


 


2.19         Taxes. (a) All payments made by
the Borrower under this Agreement shall be made free and clear of, and without
deduction or withholding for or on account of, any present or future income,
stamp or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority, excluding net income taxes and franchise taxes
(imposed in lieu of net income taxes) imposed on the Administrative Agent or
any Lender as a result of a present or former connection between the Administrative
Agent or such Lender and the jurisdiction of the Governmental Authority
imposing such tax or any political subdivision or taxing authority thereof or
therein (other than any such connection arising solely from the Administrative
Agent or such Lender having executed, delivered or performed its obligations or
received a payment under, or enforced, this Agreement or any other Loan
Document). If any such non-excluded taxes, levies, imposts, duties, charges,
fees, deductions or withholdings (“Non-Excluded Taxes”) or Other Taxes
are required to be withheld from any amounts payable to the Administrative
Agent or any Lender hereunder, the amounts so payable to the Administrative
Agent or such Lender shall be increased to the extent necessary to yield to the
Administrative Agent or such Lender (after payment of all Non-Excluded Taxes
and Other Taxes) interest or any such other amounts payable hereunder at the
rates or in the amounts specified in this Agreement, provided, however,
that the Borrower shall not be required to increase any such amounts payable to
any


 


47

















 


Lender with respect to any Non-Excluded Taxes
(i) that are attributable to such Lender’s failure to comply with the
requirements of paragraph (d) or (e) of this Section or
(ii) that are United States withholding taxes imposed on amounts payable
to such Lender at the time such Lender becomes a party to this Agreement,
except to the extent that such Lender’s assignor (if any) was entitled, at the
time of assignment, to receive additional amounts from the Borrower with
respect to such Non-Excluded Taxes pursuant to this paragraph. Nothing
contained in this Section 2.19(a) shall require the Administrative Agent
or any Lender to make available its tax returns (or any information relating to
its taxes which it deems confidential) to the Borrower or any other Person.


 


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


 


(c) Whenever
any Non-Excluded Taxes or Other Taxes are payable by the Borrower, as promptly
as possible thereafter the Borrower shall send to the Administrative Agent for
its own account or for the account of the relevant Lender, as the case may be,
a certified copy of an original official receipt received by the Borrower
showing payment thereof. If the Borrower fails to pay any Non-Excluded Taxes or
Other Taxes when due to the appropriate taxing authority or fails to remit to
the Administrative Agent the required receipts or other required documentary
evidence, the Borrower shall indemnify the Administrative Agent and the Lenders
for any incremental taxes, interest or penalties that may become payable by the
Administrative Agent or any Lender as a result of any such failure.


 


(d) Each
Lender (or Transferee) that is not a “U.S. Person” as defined in
Section 7701(a)(30) of the Code (a “Non-U.S. Lender”) shall deliver
to the Borrower and the Administrative Agent (or, in the case of a Participant,
to the Lender from which the related participation shall have been purchased)
two copies of either U.S. Internal Revenue Service Form W-8BEN or Form W-8ECI,
or, in the case of a Non-U.S. Lender claiming exemption from U.S. federal
withholding tax under Section 871(h) or 881(c) of the Code with respect to
payments of “portfolio interest”, a statement substantially in the form of
Exhibit C and a Form W-8BEN, or any subsequent versions thereof or successors
thereto, properly completed and duly executed by such Non-U.S. Lender claiming
complete exemption from, or a reduced rate of, U.S. federal withholding tax on
all payments by the Borrower under this Agreement and the other Loan Documents.
Such forms shall be delivered by each Non-U.S. Lender on or before the date it
becomes a party to this Agreement (or, in the case of any Participant, on or
before the date such Participant purchases the related participation). In
addition, each Non-U.S. Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Non-U.S.
Lender. Each Non-U.S. Lender shall promptly notify the Borrower at any time it
determines that it is no longer in a position to provide any previously
delivered certificate to the Borrower (or any other form of certification adopted
by the U.S. taxing authorities for such purpose). Notwithstanding any other
provision of this paragraph, a Non-U.S. Lender shall not be required to deliver
any form pursuant to this paragraph that such Non-U.S. Lender is not legally
able to deliver.


 


(e) A Lender
that is entitled to an exemption from or reduction of non-U.S. withholding tax
under the law of the jurisdiction in which the Borrower is located, or any
treaty


 


48

















 


to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by
applicable law or reasonably requested by 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
submission would not materially prejudice the legal position of such Lender.


 


(f) If the
Administrative Agent or any Lender determines, in its sole discretion,
exercised in good faith, that it has received a refund of any Non-Excluded
Taxes or Other Taxes as to which it has been indemnified by the Borrower or
with respect to which the Borrower has paid additional amounts pursuant to this
Section 2.19, it shall pay over such refund to the Borrower (but only to
the extent of indemnity payments made, or additional amounts paid, by the
Borrower under this Section 2.19 with respect to the Non-Excluded Taxes or
Other Taxes giving rise to such refund), net of all out-of-pocket expenses of
the Administrative Agent or such Lender and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such
refund); provided, that the Borrower, upon the request of the
Administrative Agent or such Lender, agrees to repay the amount paid over to
the Borrower (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Administrative Agent or such Lender in
the event the Administrative Agent or such Lender is required to repay such
refund to such Governmental Authority but only if such repayment is required
because the initial refund was permitted in error. This paragraph shall not be
construed to require the Administrative Agent or any Lender to make available
its tax returns (or any other information relating to its taxes which it deems
confidential) to the Borrower or any other Person.


 


(g) Upon the
reasonable request of the Borrower or the Administrative Agent, each Lender (or
Transferee) that is a “U.S. Person” within the meaning of
Section 7701(a)(30) of the Code shall deliver, within thirty (30)
days of such request to the Borrower and the Administrative Agent two duly
signed completed copies of IRS Form W-9. If such Lender fails to deliver such
forms, then the Administrative Agent may, notwithstanding Section 2.19(a),
deduct and withhold from any interest payment to such Lender or Transferee an
amount equivalent to the applicable back-up withholding tax imposed by the
Code.


 


(h) The
agreements in this Section shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.


 


2.20         Indemnity. The Borrower agrees
to indemnify each Lender for, and to hold each Lender harmless from, any loss
or expense that such Lender may sustain or incur as a consequence of
(a) default by the Borrower in making a borrowing of, conversion into or
continuation of Eurodollar Loans after the Borrower has given a notice
requesting the same in accordance with the provisions of this Agreement,
(b) default by the Borrower in making any prepayment of or conversion from
Eurodollar Loans after the Borrower has given a notice thereof in accordance
with the provisions of this Agreement or (c) the making of a prepayment of
Eurodollar Loans on a day that is not the last day of an Interest Period with
respect thereto. Such indemnification may include an amount equal to the
excess, if any, of (i) the amount of interest that would have accrued on
the amount so prepaid, or not so borrowed, converted or continued,


 


49

















 


for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans
provided for herein (excluding, however, the Applicable Margin included
therein, if any) over (ii) the amount of interest (as reasonably
determined by such Lender) that would have accrued to such Lender on such
amount by placing such amount on deposit for a comparable period with leading
banks in the interbank eurodollar market. A certificate as to any amounts
payable pursuant to this Section submitted to the Borrower by any Lender
which is submitted within 180 days of the incurrence of any loss or expense
covered by this Section with appropriate detail demonstrating how such
amounts were derived shall be conclusive in the absence of manifest error. This
covenant shall survive the termination of this Agreement and the payment of the
Loans and all other amounts payable hereunder.


 


2.21         Change of Lending Office. Each
Lender agrees that, upon the occurrence of any event giving rise to the
operation of Section 2.18 or 2.19(a) with respect to such Lender, it will,
if requested by the Borrower, use reasonable efforts (subject to overall policy
considerations of such Lender) to file any certificate or document reasonably
requested by the Borrower or designate another lending office for any Loans
affected by such event with the object of eliminating or reducing amounts
payable pursuant to Section 2.18 or 2.19(a); provided, that the
making of such filing or such designation is made on terms that, in the
reasonable judgment of such Lender, cause such Lender and its lending office(s)
to suffer no economic, legal or regulatory disadvantage (except to a de minimis extent), and provided, further, that nothing in
this Section shall affect or postpone any of the obligations of the
Borrower or the rights of any Lender pursuant to Section 2.18 or 2.19(a).


 


2.22         Replacement of Lenders. (a) The
Borrower shall be permitted to replace any Lender that (A) requests
reimbursement for amounts owing pursuant to Section 2.18 or 2.19(a) or
(B) defaults in its obligation to make Loans hereunder, with a replacement
financial institution; provided that (i) such replacement does not
conflict with any Requirement of Law, (ii) prior to any such replacement,
such Lender shall have taken no action under Section 2.21 that has or will
eliminate the continued need for payment of amounts owing pursuant to
Section 2.18 or 2.19(a), (iii) the replacement financial institution
shall purchase, at par, all Credit-Linked Deposits, Loans and other amounts
owing to such replaced Lender on or prior to the date of replacement (whether
or not then due), (iv) the Borrower shall be liable to such replaced
Lender under Section 2.20 if any Eurodollar Loan owing to such replaced
Lender shall be purchased other than on the last day of the Interest Period
relating thereto, (v) the replacement financial institution, if not
already a Lender, shall be reasonably satisfactory to the Administrative Agent,
(vi) the replaced Lender shall be obligated to make such replacement in
accordance with the provisions of Section 10.6 (provided that the Borrower
shall be obligated to pay the registration and processing fee referred to
therein), (vii) until such time as such replacement shall be consummated,
the Borrower shall pay all additional amounts (if any) required pursuant to
Section 2.18 or 2.19(a), as the case may be, (viii) any such
replacement shall not be deemed to be a waiver of any rights that the Borrower,
the Administrative Agent or any other Lender shall have against the replaced Lender,
and (ix) in connection with the replacement of a Lender


 


50

















 


pursuant to clause
(A) above, such replacement results in a reduction of the amounts owing
pursuant to Section 2.18 or 2.19(a).


 


(b) If, in
connection with any proposed amendment, modification, waiver or termination
pursuant to Section 10.1 (a “Proposed Change”) requiring the
consent of all affected Lenders, the consent of the Required Lenders is
obtained, but the consent of other Lenders whose consent is required is not
obtained (any such Lender whose consent is not obtained as described in this
clause (b) being referred to as a “Non-Consenting Lender”), then,
so long as the Administrative Agent is not a Non-Consenting Lender, at the
Borrower’s request the Administrative Agent, or a Person or Persons reasonably
acceptable to the Administrative Agent, shall have the right with the
Administrative Agent’s consent (but shall have no obligation) to purchase from
such Non-Consenting Lenders, and such Non-Consenting Lenders agree that they
shall, upon the Administrative Agent’s request, sell and assign to the
Administrative Agent or such Person, all of the Credit-Linked Deposits, Loans
and Commitments of such Non-Consenting Lenders for an amount equal to the principal
balance of all Credit-Linked Deposits, Loans held by the Non-Consenting Lenders
and all accrued interest and fees with respect thereto through the date of
sale, such purchase and sale to be consummated at par pursuant to an Assignment
and Acceptance Agreement. Any such required sale and assignment shall be
treated as a prepayment for purposes of Section 2.20 and the Borrower
shall be liable for any amounts payable thereunder as a result of such sale and
assignment.


 


2.23         Limitation on Additional Amounts,
etc.. Notwithstanding anything to the contrary contained in
Sections 2.18 and 2.19(a) of this Agreement, unless the
Administrative Agent or a Lender gives notice to the Borrower that it is
obligated to pay an amount under any such Section within 180 days after
the later of (x) the date the Lender incurs the respective increased
costs, Non-Excluded Taxes, Other Taxes, loss, expense or liability, reduction
in amounts received or receivable or reduction in return on capital or
(y) the date such Lender has actual knowledge of its incurrence of the
respective increased costs, Non-Excluded Taxes, Other Taxes, loss, expense or
liability reductions in amounts received or receivable or reduction in return
on capital, then such Lender shall only be entitled to be compensated for such
amount by the Borrower pursuant to Sections 2.18 and 2.19(a), as the case
may be, to the extent the costs, Non-Excluded Taxes, Other Taxes, loss, expense
or liability, reduction in amounts received or receivable or reduction in return
on capital are incurred or suffered on or after the date which occurs 180 days
prior to such Lender giving notice to the Borrower that it is obligated to pay
the respective amounts pursuant to Sections 2.18 and 2.19(a), as the case
may be. This Section 2.23 shall have no applicability to any
Section of this Agreement other than Sections 2.18 and 2.19(a).


 


2.24         Credit-Linked Deposits. (a) The
Credit-Linked Deposits shall be held by the Administrative Agent in the
Credit-Linked Deposit Account, and no party other than the Administrative Agent
shall have a right of withdrawal from the Credit-Linked Deposit Account or any
other right or power with respect to the Credit-Linked Deposits, except as
expressly set forth in Section 3.4 or this Section. Notwithstanding any
provision in this Agreement to the contrary, the sole funding obligation of
each Institutional L/C Lender in respect of its participation in Institutional
Letters of Credit shall be satisfied in full upon the funding of its
Credit-Linked Deposit on the Closing Date.


 


51

















 


(b) Each of
the Borrower, the Administrative Agent, the Issuing Lender and each
Institutional L/C Lender hereby acknowledges and agrees that each Institutional
L/C Lender is funding its Credit-Linked Deposit to the Administrative Agent for
application in the manner contemplated by this Agreement and that the
Administrative Agent has agreed to invest the Credit-Linked Deposits so as to
earn a return (except during periods when, and to the extent to which, such
Credit-Linked Deposits have been withdrawn from the Credit-Linked Deposit
Account pursuant to Section 3.4 to cover unreimbursed Institutional L/C
Disbursements) for the Institutional L/C Lenders equal to a rate per annum
(computed on the basis of a year of 365 days (or 366 days in a leap
year)), reset daily on each Business Day for the period until the next
following Business Day, equal to (i) the one month LIBOR rate as
determined by the Administrative Agent on such day (or if such day was not a
Business Day, the first Business Day immediately preceding such day) based on
rates for deposits in dollars (as set forth by Bloomberg L.P.-page BTMM or any
other comparable publicly available service as may be selected by the
Administrative Agent) (the “Benchmark LIBOR Rate”) minus (ii) 0.15%.
Such interest will be paid to the Institutional L/C Lenders by the
Administrative Agent quarterly in arrears on each Fee Payment Date. In addition
to the foregoing payments by the Administrative Agent, the Borrower agrees to
pay to the Administrative Agent for the account of each Institutional L/C
Lender a fee which shall accrue at the Credit-Linked Deposit Fee Rate on the
average daily amount of such Institutional L/C Lender’s Credit-Linked Deposit
during the period from and including the Closing Date to but excluding the date
on which the entire amount of such Lender’s Credit-Linked Deposit is returned
to it (except during periods when, and to the extent to which, such
Credit-Linked Deposits have been withdrawn from the Credit-Linked Deposit
Account pursuant to Section 3.4 to cover unreimbursed Institutional L/C
Disbursements), payable quarterly in arrears on each Fee Payment Date. All such
fees shall be computed on the basis of a year of 365 days (or 366 days
in a leap year), and in each case shall be payable for the actual number of
days elapsed (including the first day but excluding the last day).


 


(c) The
Borrower shall have no right, title or interest in or to the Credit-Linked
Deposits and no obligations with respect thereto (except for the reimbursement
obligations of the Borrower provided in Section 3.5), it being
acknowledged and agreed by the parties hereto that the making of the
Credit-Linked Deposits by the Institutional L/C Lenders, the provisions of this
Section 2.24 and the application of the Credit-Linked Deposits in the
manner contemplated by Section 3.4 constitute agreements among the
Administrative Agent, the applicable Issuing Lenders and each Institutional L/C
Lender with respect to the funding obligations of each Institutional L/C Lender
in respect of its participation in Institutional Letters of Credit and do not
constitute any loan or extension of credit to the Borrower.


 


(d) The
Borrower may at any time or from time to time direct the Administrative Agent
to reduce the Total Credit-Linked Deposit; provided that (i) each
reduction of the Total Credit-Linked Deposit shall be in an amount that is an
integral multiple of $1,000,000 and not less than $1,000,000 and (ii) the
Borrower shall not direct the Administrative Agent to reduce the Total
Credit-Linked Deposit if, after giving effect to such reduction (and to the
provisions of Section 3.1(c)), (A) the aggregate Institutional L/C
Exposure would exceed the Total Credit-Linked Deposit, (B) the Total Revolving
Extensions of Credit would exceed the Total Revolving Commitments or (C) the
aggregate Revolving L/C Exposure would exceed the Revolving L/C


 


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Commitment. In the event the
Credit-Linked Deposits shall be reduced as provided in the preceding sentence,
the Administrative Agent will return all amounts in the Credit-Linked Deposit
Account in excess of the reduced Total Credit-Linked Deposit to the
Institutional L/C Lenders, ratably in accordance with their Institutional L/C
Percentages.


 


(e) The
Administrative Agent shall return any remaining Credit-Linked Deposits to the
Institutional L/C Lenders, ratably in accordance with their Institutional L/C
Percentages, on the Tranche B Maturity Date; provided that the
Administrative Agent may retain any such Credit-Linked Deposits to the extent
of any pending drawings under any Institutional Letters of Credit for such
period as shall be necessary, in the reasonable judgment of the Administrative
Agent, to determine whether such Credit-Linked Deposits will be needed for
application pursuant to Section 3.4, in which case the obligations of the
Borrower and the Administrative Agent under Section 2.24(b) above shall
continue to apply for so long as such Credit-Linked Deposits are so retained by
the Administrative Agent.


 


2.25         Incremental Credit Extensions.
The Borrower may at any time or from time to time after the Closing Date, by
notice to the Administrative Agent (whereupon the Administrative Agent shall promptly
deliver a copy to each of the Lenders), request (a) one or more additional
tranches of term loans (the “Incremental Term Loans”), (b) one or
more increases in the amount of the Revolving Commitments (each such increase,
a “Revolving Commitment Increase”) or (c) one or more increases in
the amount of the Credit-Linked Deposits (each such increase, a “CLD
Increase” and, together with any Incremental Term Loans or Revolving
Commitment Increase, referred to herein as a “Credit Increase”); provided
that (i) both at the time of any such request and upon the effectiveness
of any Incremental Amendment referred to below, no Default or Event of Default
shall exist and at the time that any such Incremental Term Loan or CLD Increase
is made (and after giving effect thereto) no Default or Event of Default shall
exist and (ii) the Consolidated Leverage Ratio, determined on a pro forma
basis as of the last day of the most recent fiscal quarter for which financial
statements are available (but based on Consolidated Total Debt at the time of
and after giving effect to such Credit Increase) shall not exceed 6.00 to 1.00
(or, if less, the maximum Consolidated Leverage Ratio permitted as of the end
of the most recently ended fiscal quarter pursuant to Section 7.1(a)). Each
Credit Increase shall be in an aggregate principal amount that is not less than
$25,000,000 (provided that such amount may be less than $25,000,000 on
no more than two occasions if such amount is not less than $10,000,000 on each
such occasion, and such amount may be a lesser amount if such amount represents
all remaining availability under the limit set forth in the next sentence).
Notwithstanding anything to the contrary herein, the aggregate amount of the
Credit Increases shall not exceed $100,000,000. The Incremental Term Loans
(A) shall rank pari  passu in right of payment and of
security with the other Facilities, (B) shall not mature earlier than the
Tranche B Maturity Date and shall have a weighted average life to maturity
(pursuant to such amortization schedules as may be determined by the Borrower
and the lenders thereof) that is no shorter than the then-remaining weighted
average life to maturity of the Tranche B Term Loans (as the aggregate amount
thereof may have been reduced and as the scheduled amortization thereof may
have been modified as of such date), (C) except as set forth above, shall
be treated substantially the same as the Tranche B Term Loans (in each case,
including with respect to mandatory and voluntary prepayments), and (D) will
accrue interest at rates determined by the Borrower and the lenders providing
such Incremental Term Loans,


 


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which rates may be higher or
lower than the rates applicable to the Tranche B Term Loans, provided
that if the initial yield on such Incremental Term Loans (as determined by the
Administrative Agent to be equal to the sum of (1) the initial margin above the
Eurodollar Rate on such Incremental Term Loans and (2) if such Incremental Term
Loans are initially made at a discount or the Lenders making the same receive a
fee directly or indirectly from Holdings, the Borrower or any Subsidiary for
doing so (the amount of such discount or fee, expressed as a percentage of the
Incremental Term Loans, being referred to herein as “Incremental OID”),
the amount of such Incremental OID divided by the average life to maturity of
such Incremental Term Loans) exceeds by more than 50 basis points (the
amount of such excess above 50 basis points being referred to herein as the “Yield
Differential”) the sum of (x) the Applicable Margin then in effect for
Tranche B Term Loans that are Eurodollar Loans and (y) if all Tranche B Term
Lenders and/or all Institutional L/C Lenders received upfront or similar fees
directly or indirectly from Holdings, the Borrower or any Subsidiary for making
the Tranche B Term Loans and the Credit- Linked Deposits (the amount of such
fees, expressed as a percentage of the sum of the original aggregate amount of
the Tranche B Term Commitments and the original aggregate amount of the Total
Credit-Linked Deposits, being referred to herein as “Initial OID”), the
amount of such Initial OID divided by the average life to maturity of the
Tranche B Term Loans and the Credit-Linked Deposits as of the Closing Date,
then the Applicable Margin then in effect for Tranche B Term Loans shall
automatically be increased (including for purposes of determining the
Credit-Linked Deposit Fee Rate) by the Yield Differential, effective upon the
making of the Incremental Term Loans. Each notice from the Borrower pursuant to
this Section shall set forth the requested amount and proposed terms of the
relevant Credit Increases. Incremental Term Loans and CLD Increases may be
made, and Revolving Commitment Increases may be provided, by any existing
Lender (and each existing Tranche B Term Lender will have the right to make a
portion of any Incremental Term Loan, each existing Revolving Lender will have
the right to provide a portion of any Revolving Commitment Increase and each existing
Institutional L/C Lender will have the right to provide a portion of any CLD
Increase) or by any other bank or other financial institution (any such other
bank or other financial institution being called an “Additional Lender”),
provided that the Administrative Agent and, in the case of a Revolving
Commitment Increase, each Issuing Lender shall have consented (not to be
unreasonably withheld) to such Lender’s or Additional Lender’s making such
Incremental Term Loans or providing such Revolving Commitment Increases or CLD
Increases, if such consent would be required under Section 10.6 for an
assignment of Tranche B Term Loans or Revolving Credit Commitments or
Credit-Linked Deposits, as applicable, to such Lender or Additional Lender.
Commitments in respect of Credit Increases shall become Commitments (or in the
case of a Revolving Commitment Increase to be provided by an existing Revolving
Lender, an increase in such Lender’s applicable Revolving Commitment) under
this Agreement pursuant to an amendment (an “Incremental Amendment”) to
this Agreement and, as appropriate, the other Loan Documents, executed by
Holdings, the Borrower, each Lender agreeing to provide such Commitment, if
any, each Additional Lender, if any, and the Administrative Agent. An Incremental
Amendment may, without the consent of any other Lenders, effect such amendments
to this Agreement and the other Loan Documents as may be necessary or
appropriate, in the reasonable opinion of the Administrative Agent and the
Borrower, to effect the provisions of this Section. The effectiveness of any
Incremental Amendment shall be subject to the satisfaction on the date thereof
(each, an “Incremental Facility Closing Date”) of each of the conditions
set forth


 


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in Section 5.2. No Lender
shall be obligated to provide any Credit Increases, unless it so agrees. Upon
each increase in the Revolving Commitments pursuant to this Section, the
participations held by the Revolving Lenders in the Revolving L/C Exposure and
Swingline Loans immediately prior to such increase will be reallocated so as to
be held by the Revolving Lenders ratably in accordance with their respective
Revolving Percentages after giving effect to such Revolving Commitment
Increase. If, on the date of a Revolving Commitment Increase, there are any
Revolving Loans outstanding, the Borrower shall prepay such Revolving Loans in
accordance with this Agreement on the date of effectiveness of such Revolving
Commitment Increase (but the Borrower may finance such prepayment with a
concurrent borrowing of Revolving Loans from the Revolving Lenders in
accordance with their Revolving Percentages after giving effect to such
Revolving Commitment Increase). Each of the parties hereto hereby agrees that
the Administrative Agent may take any and all actions as may be reasonably
necessary to ensure that, after giving effect to any CLD Increase, the
outstanding Institutional L/C Exposure is held by the Institutional L/C Lenders
in accordance with their new Institutional L/C Percentages. The Borrower may
use the proceeds of each Credit Increase for any purpose not prohibited by this
Agreement unless otherwise agreed in connection with such Credit Increase.


 


SECTION 3. LETTERS OF CREDIT


 


3.1           Letters of Credit. (a) Subject
to the terms and conditions hereof, (a) each Issuing Lender agrees to issue
letters of credit (“Letters of Credit”) for the account of the Borrower
on any Business Day during the Revolving Commitment Period (in the case of a
Revolving Letter of Credit) or the Institutional L/C Period (in the case of an
Institutional Letter of Credit), in each case in such form as may be reasonably
approved from time to time by such Issuing Lender; provided that such
Issuing Lender shall have no obligation to issue any Letter of Credit if, after
giving effect to such issuance, (i) the Revolving L/C Exposure would
exceed the Revolving L/C Commitment, (ii) the Total Revolving Extensions
of Credit would exceed the Total Revolving Commitments, (iii) the Institutional
L/C Exposure would exceed the Total Credit-Linked Deposit or (iv) any
Institutional Letter of Credit would be issued by an Issuing Lender other than
JPMorgan Chase Bank, N.A. or an affiliate thereof. Each Letter of Credit shall
(A) be denominated in Dollars and (B) expire no later than the
earlier of (x) the first anniversary of its date of issuance and
(y) the date that is five Business Days prior to the Revolving Termination
Date (in the case of a Revolving Letter of Credit) or the Tranche B Maturity
Date (in the case of an Institutional Letter of Credit), provided that any
Letter of Credit with a one-year term may provide for the renewal thereof for
additional one-year periods (which shall in no event extend beyond the date
referred to in clause (y) above).


 


(b) On the
Closing Date, the Existing Letters of Credit will automatically, without any
action on the part of any Person, be deemed to be Letters of Credit issued
hereunder on the Closing Date for the account of the Borrower.


 


(c) For
purposes hereof, (i) Letters of Credit shall at all times and from time to time
be deemed to be Institutional Letters of Credit in the amount specified in the
definition of Institutional Letters of Credit and be deemed to be Revolving
Letters of Credit only to the extent, and in an amount by which, the aggregate
amount of outstanding Letters of Credit exceeds such


 


55

















 


amount specified in the
definition of Institutional Letters of Credit, (ii) drawings under any Letter
of Credit shall be deemed to have been made under the Revolving Letter of
Credit for so long as, and to the extent that, there are any undrawn Revolving
Letters of Credit outstanding (and thereafter shall be deemed to have been made
under Institutional Letters of Credit) and (iii) any Letter of Credit that
expires or terminates will be deemed to be a Revolving Letter of Credit, for so
long as, and to the extent that, there are outstanding Revolving Letters of
Credit immediately prior to such expiration or termination; provided,
that, at any time during which an Event of Default shall have occurred and be
continuing, (A) Letters of Credit shall be deemed to be Revolving Letters of
Credit and Institutional Letters of Credit, (B) drawings under Letters of
Credit shall be deemed to have been made under Revolving Letters of Credit and
Institutional Letters of Credit and (C) any Letter of Credit that expires or
terminates shall be deemed to be a Revolving Letter of Credit and an
Institutional Letter of Credit, in each case pro  rata based upon
(1) the Revolving L/C Exposure at the time such Event of Default occurred and
(2) the Institutional L/C Exposure at the time such Event of Default occurred.
To the extent necessary to implement the foregoing, the identification of a
Letter of Credit as a Revolving Letter of Credit or an Institutional Letter of
Credit may change from time to time and a portion of a Letter of Credit may be
deemed to be an Institutional Letter of Credit and the remainder be deemed to
be a Revolving Letter of Credit. Notwithstanding the foregoing, the entire face
amount of any Letter of Credit with an expiration date after the date that is
five Business Days prior to the Revolving Maturity Date or that is issued by an
Issuing Lender other than JPMorgan Chase Bank, N.A., or an affiliate thereof,
shall at all times be deemed to be an Institutional Letter of Credit.


 


(d) An Issuing
Lender shall not at any time be obligated to issue any Letter of Credit if such
issuance would conflict with, or cause such Issuing Lender or any Revolving
Lender or Institutional L/C Lender to exceed any limits imposed by, any
applicable Requirement of Law.


 


3.2           Procedure for Issuance of Letter
of Credit. The Borrower may from time to time request that an Issuing
Lender issue a Letter of Credit by delivering to such Issuing Lender at its
address for notices specified herein an Application therefor, completed to the
reasonable satisfaction of such Issuing Lender, and such other certificates,
documents and other papers and information as such Issuing Lender may
reasonably request. Upon receipt of any Application, the applicable Issuing
Lender will process such Application and the certificates, documents and other
papers and information delivered to it in connection therewith in accordance
with its customary procedures and shall promptly issue the Letter of Credit
requested thereby (but in no event shall the Issuing Lender be required to
issue any Letter of Credit earlier than three Business Days after its receipt
of the Application therefor and all such other certificates, documents and
other papers and information relating thereto) by issuing the original of such
Letter of Credit to the beneficiary thereof or as otherwise may be agreed to by
the Issuing Lender and the Borrower. The applicable Issuing Lender shall
furnish a copy of such Letter of Credit to the Borrower and the Administrative
Agent promptly following the issuance thereof. The applicable Issuing Lender
shall promptly furnish to the Administrative Agent, which shall in turn
promptly furnish to the Lenders, notice of the issuance of each Letter of
Credit (including the amount thereof).


 


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3.3           Fees and Other Charges. (a)
The Borrower will pay a participation fee on all outstanding Revolving Letters
of Credit at a per annum rate equal to the Applicable Margin then in effect
with respect to Eurodollar Loans under the Revolving Facility, shared ratably
among the Revolving Lenders and payable quarterly in arrears on each Fee
Payment Date after the issuance date. In addition, the Borrower shall pay to
each Issuing Lender for its own account a fronting fee of 0.125% per annum on
the face amount of each Letter of Credit issued by such Issuing Lender, payable
quarterly in arrears on each Fee Payment Date after the issuance date.


 


(b) In
addition to the foregoing fees, the Borrower shall pay each Issuing Lender its
standard fees charged with respect to, and reimburse each Issuing Lender for
its out-of-pocket costs and expenses incurred in connection with, issuing,
negotiating, effecting payment under, amending or otherwise administering any
Letter of Credit issued by such Issuing Lender.


 


3.4           L/C Participations. (a) Each
Issuing Lender irrevocably agrees to grant and hereby grants to each Revolving
L/C Participant, and, to induce each Issuing Lender to issue Revolving Letters
of Credit, each Revolving L/C Participant irrevocably agrees to accept and
purchase and hereby accepts and purchases from such Issuing Lender, on the
terms and conditions set forth below, for such Revolving L/C Participant’s own
account and risk an undivided interest equal to such Revolving L/C
Participant’s Revolving Percentage in such Issuing Lender’s obligations and
rights under and in respect of each Revolving Letter of Credit and the amount
of each draft paid by such Issuing Lender thereunder. Each Revolving L/C
Participant agrees with each Issuing Lender that, if a draft is paid under any
Revolving Letter of Credit issued by such Issuing Lender for which the Issuing
Lender is not reimbursed in full by the Borrower in accordance with the terms
of this Agreement, such Revolving L/C Participant shall pay to such Issuing
Lender upon demand at such Issuing Lender’s address for notices specified
herein an amount equal to such Revolving L/C Participant’s Revolving Percentage
of the amount of such draft, or any part thereof, that is not so reimbursed.
Each Revolving L/C Participant’s obligation to pay such amount shall be
absolute and unconditional and shall not be affected by any circumstance,
including (i) any setoff, counterclaim, recoupment, defense or other right
that such Revolving L/C Participant may have against the Issuing Lender, the
Borrower or any other Person for any reason whatsoever, (ii) the
occurrence or continuance of a Default or an Event of Default or the failure to
satisfy any of the other conditions specified in Section 5, (iii) any
adverse change in the condition (financial or otherwise) of the Borrower,
(iv) any breach of this Agreement or any other Loan Document by the
Borrower, any other Loan Party or any other Revolving L/C Participant or
(v) any other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing. If any amount required to be paid by any
Revolving L/C Participant to an Issuing Lender pursuant to this
Section 3.4(a) in respect of any unreimbursed portion of any payment made
by such Issuing Lender under any Revolving Letter of Credit is paid to such
Issuing Lender within three Business Days after the date such payment is due,
such Revolving L/C Participant shall pay to such Issuing Lender on demand an
amount equal to the product of (A) such amount, times (B) the daily
average Federal Funds Effective Rate during the period from and including the
date such payment is required to the date on which such payment is immediately
available to such Issuing Lender, times (C) a fraction the numerator of
which is the number of days that elapse during such period and the denominator
of which is 360. If any such amount required to be paid by any Revolving L/C
Participant pursuant to this Section 3.4(a) is not made available to the
applicable Issuing Lender by such Revolving


 


57

















 


L/C Participant within three
Business Days after the date such payment is due, such Issuing Lender shall be
entitled to recover from such Revolving L/C Participant, on demand, such amount
with interest thereon calculated from such due date at the rate per annum
applicable to ABR Loans under the Revolving Facility. A certificate of the
applicable Issuing Lender submitted to any Revolving L/C Participant with
respect to any amounts owing under this Section shall be conclusive in the
absence of manifest error. Whenever, at any time after an Issuing Lender has
made payment under any Revolving Letter of Credit and has received from any
Revolving L/C Participant its pro  rata share of such payment in
accordance with this Section 3.4(a), such Issuing Lender receives any
payment related to such Revolving Letter of Credit (whether directly from the
Borrower or otherwise, including proceeds of collateral applied thereto by such
Issuing Lender), or any payment of interest on account thereof, such Issuing
Lender will distribute to such Revolving L/C Participant its pro  rata
share thereof; provided, however, that in the event that any such
payment received by such Issuing Lender shall be required to be returned by
such Issuing Lender, such Revolving L/C Participant shall return to such
Issuing Lender the portion thereof previously distributed by such Issuing
Lender to it.


 


(b) Each
Issuing Lender irrevocably grants to each Institutional L/C Lender, and each
Institutional L/C Lender irrevocably accepts and purchases from such Issuing
Lender, on the terms and conditions set forth below, for such Institutional L/C
Lender’s own account and risk an undivided interest equal to such Institutional
L/C Lender’s Institutional L/C Percentage in such Issuing Lender’s obligations
and rights under and in respect of each Institutional Letter of Credit and the
amount of each draft paid by such Issuing Lender thereunder. The aggregate
purchase price for the participations of each Institutional L/C Lender in all
Institutional Letters of Credit shall equal the amount of such Lender’s
Credit-Linked Deposit. Each Institutional L/C Lender agrees with each Issuing
Lender that, if a draft is paid under any Institutional Letter of Credit issued
by such Issuing Lender for which such Issuing Lender is not reimbursed in full
by the Borrower in accordance with the terms of this Agreement, the
Administrative Agent shall (and is authorized by such Institutional L/C Lender
to) pay to such Issuing Lender upon demand at such Issuing Lender’s address for
notices specified herein an amount equal to such Institutional L/C Lender’s
Institutional L/C Percentage of the amount of such draft, or any part thereof,
that is not so reimbursed, which payment shall be made from such Institutional
L/C Lender’s Credit-Linked Deposit. Each Institutional L/C Lender acknowledges
and agrees that its authorization to the Administrative Agent to make such
payments from its Credit-Linked Deposit shall be absolute and unconditional and
shall not be affected by any circumstance, including (i) any setoff,
counterclaim, recoupment, defense or other right that such Institutional L/C
Lender may have against the Issuing Lender, the Borrower or any other Person
for any reason whatsoever, (ii) the occurrence or continuance of a Default or
an Event of Default or the failure to satisfy any of the other conditions
specified in Section 5, (iii) any adverse change in the condition
(financial or otherwise) of the Borrower, (iv) any breach of this Agreement or
any other Loan Document by the Borrower, any other Loan Party or any other
Institutional L/C Lender or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing. Whenever, at any
time after an Issuing Lender has made payment under any Institutional Letter of
Credit and has received from any Institutional L/C Lender’s Credit-Linked
Deposit its pro  rata share of such payment in accordance with
this Section, such Issuing Lender receives any payment related to such
Institutional Letter of Credit (whether directly from the Borrower or
otherwise, including proceeds of collateral applied thereto by such


 


58

















 


Issuing Lender), or any payment
of interest on account thereof, such Issuing Lender will pay over to the
Administrative Agent such Institutional L/C Lender’s Institutional L/C
Percentage thereof for (A) deposit in the Credit-Linked Deposit Account, to be
added to such Institutional L/C Lender’s Credit-Linked Deposit (in the case of
payments on account of principal in respect of the applicable Reimbursement
Obligation) or (B) distribution to such Institutional L/C Lender (in the case
of any such payment of interest); provided, however, that in the
event any such payment received by such Issuing Lender shall be required to be
returned by such Issuing Lender, such Issuing Lender’s rights under this
paragraph to obtain an amount from such Institutional L/C Lender’s
Credit-Linked Deposit shall apply to the extent of the portion thereof
previously restored to such Credit-Linked Deposit. Any payment made from the
Credit-Linked Deposit Account (or from other funds of the Administrative Agent
on account thereof) pursuant to this paragraph to reimburse an Issuing Lender
for any Institutional L/C Disbursement shall not constitute a Loan and shall
not relieve the Borrower of its Reimbursement Obligation.


 


3.5           Reimbursement Obligation of the
Borrower. If any draft is paid under any Letter of Credit, the Borrower
shall reimburse the applicable Issuing Lender with respect to such draft paid
by the Issuing Lender for the amount of (a) the draft so paid and
(b) any taxes, fees, charges or other costs or expenses incurred by such
Issuing Lender in connection with such payment, not later than 10:00 A.M., New
York City time, on (i) the Business Day that the Borrower receives notice
of such draft, if such notice is received on such day prior to 1:00 P.M., New
York City time, or (ii) if clause (i) above does not apply, the
Business Day immediately following the day that the Borrower receives such
notice. Each such payment shall be made to the applicable Issuing Lender at its
address for notices referred to herein in Dollars and in immediately available
funds. If any draft is paid under any Letter of Credit, then, unless the
Borrower shall reimburse the applicable Issuing Lender in full on the same day
that such draft is paid, the unpaid amount thereof shall bear interest for each
day from and including the date on which such draft is paid to but excluding
the date that the Borrower makes reimbursement in full, at (a) in the case of a
Revolving L/C Disbursement, the rate per annum then applicable to ABR Loans
under the Revolving Facility and (b) in the case of an Institutional L/C
Disbursement, the rate per annum then applicable to ABR Loans under the
Tranche B Term Facility (determined without regard to whether the
Tranche B Term Facility is in effect); provided that, if the
Borrower does not make reimbursement in full on or prior to the second Business
Day following the date of the applicable drawing, then Section 2.14(c)
shall apply.


 


3.6           Obligations Absolute. The
Borrower’s obligations under this Section 3 shall be absolute and
unconditional under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment that the Borrower may have or have had
against any Issuing Lender, any beneficiary of a Letter of Credit or any other
Person. The Borrower also agrees with each Issuing Lender that such Issuing
Lender shall not be responsible for, and the Borrower’s Reimbursement
Obligations under Section 3.5 shall not be affected by, among other
things, the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged, or any dispute between or among the Borrower and any
beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or any claims whatsoever of the Borrower against any
beneficiary of such Letter of Credit or any such transferee. An Issuing Lender
shall not be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any


 


59

















 


message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct
of such Issuing Lender. The Borrower agrees that any action taken or omitted by
an Issuing Lender under or in connection with any Letter of Credit or the
related drafts or documents, if done in the absence of gross negligence, bad
faith or willful misconduct, shall be binding on the Borrower and shall not
result in any liability of such Issuing Lender to the Borrower.


 


3.7           Letter of Credit Payments. If
any draft shall be presented for payment under any Letter of Credit, the
applicable Issuing Lender shall promptly notify the Borrower and the
Administrative Agent of the date and amount thereof. The responsibility of an
Issuing Lender to the Borrower in connection with any draft presented for
payment under any Letter of Credit issued by such Issuing Lender shall, in
addition to any payment obligation expressly provided for in such Letter of
Credit, be limited to determining that the documents (including each draft)
delivered under such Letter of Credit in connection with such presentment are
substantially in conformity with such Letter of Credit.


 


3.8           Applications. To the extent
that any provision of any Application related to any Letter of Credit is
inconsistent with the provisions of this Section 3, the provisions of this
Section 3 shall apply.


 


3.9           Obligations of Certain Issuing
Lenders. Each Issuing Lender that is not the same Person as the Person
serving as the Administrative Agent shall notify the Administrative Agent of
(a) the amount and expiration date of each Letter of Credit issued by such
Issuing lender prior to the date of issuance thereof, (b) any amendment or
modification of any such Letter of Credit prior to the time of such amendment
or modification and (c) any termination, surrender, cancellation or expiry of
any such Letter of Credit promptly upon the occurrence thereof.


 


SECTION 4. REPRESENTATIONS AND WARRANTIES


 


To induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Loans and issue or participate in the Letters of
Credit, Holdings and the Borrower hereby jointly and severally represent and
warrant to the Administrative Agent and each Lender that:


 


4.1           Financial Condition. (a) The
unaudited pro forma consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at March 31, 2006, and unaudited pro forma
statement of operations of the Borrower and its consolidated Subsidiaries for
the twelve-month period then ended (including the notes thereto) (the “Pro
Forma Financial Statements”), copies of which have heretofore been
furnished to each Lender, have been prepared giving effect to the Transactions
and all other transactions that would be required to be given pro forma effect
by Regulation S-X (and such other adjustments as have been agreed to by the
Joint Bookrunners), as if such transactions had occurred on March 31, 2006
(in the case of such unaudited pro forma balance sheet) or at the beginning of
such twelve-month period (in the case of such unaudited statement of
operations). The Pro Forma Financial Statements have been


 


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prepared in good faith by the
Borrower, and present fairly on a pro forma basis the estimated financial
position and results of operations of the Borrower and its consolidated
Subsidiaries as at March 31, 2006, and for such period then ended,
assuming that such transactions had actually occurred at such date or at the
beginning of such period, as the case may be.


 


(b) The
audited consolidated balance sheets of the Borrower and its Subsidiaries as at
September 30, 2005, and September 30, 2004, and the related
consolidated statements of income and of cash flows for the fiscal years ended
on such dates, reported on by and accompanied by an unqualified report from
Ernst & Young LLP, present fairly in all material respects the consolidated
financial condition of the Borrower and its Subsidiaries as at such date, and
the consolidated results of its operations and its consolidated cash flows for
the respective fiscal years then ended. The unaudited consolidated balance
sheet of the Borrower and its Subsidiaries as at March 31, 2006, and the
related unaudited consolidated statements of income and cash flows for the
six-month period ended on such date, present fairly the consolidated financial
condition of the Borrower and its Subsidiaries as at such date, and the
consolidated results of its operations and its consolidated cash flows for the
six-month period then ended (subject to normal year-end audit adjustments). All
such financial statements, including the related schedules and notes thereto,
have been prepared in accordance with GAAP applied consistently throughout the
periods involved (except as approved by the aforementioned firm of accountants
and disclosed therein). Except as set forth on the Pro Forma Financial
Statements, during the period from March 31, 2006, to and including the
date hereof there has been no Disposition by any Group Member of any material
part of its business or property.


 


(c) Except as
set forth on Schedule 7.2(d) and except for Guarantee Obligations in
respect of the Facilities and the Senior Subordinated Notes, as of the Closing
Date (after giving effect to the Transactions), no Group Member has any
material Guarantee Obligations, contingent liabilities and liabilities for
taxes, or any long-term leases or unusual forward or long-term commitments,
including any Swap Agreements or foreign currency swap or exchange transactions
or other obligations in respect of derivatives, that are not reflected in the
audited financial statements described in clause (b) above.


 


4.2           No Change. Since the Closing
Date, there has been no development or event that has had or would reasonably
be expected to have a Material Adverse Effect.


 


4.3           Existence; Compliance with Law.
Each Group Member (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has
the power and authority, and the legal right, to own and operate its property,
to lease the property it operates as lessee and to conduct the business in
which it is currently engaged, (c) is duly qualified as a foreign
corporation or other organization and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification except to the extent that the
failure to comply therewith would not, in the aggregate, reasonably be expected
to have a Material Adverse Effect and (d) is in compliance with all
Requirements of Law except to the extent that the failure to comply therewith
would not, in the aggregate, reasonably be expected to have a Material Adverse
Effect.


 


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4.4           Power; Authorization; Enforceable
Obligations. Each Loan Party has the power and authority, and the legal
right, to make, deliver and perform the Loan Documents to which it is a party
and, in the case of the Borrower, to obtain extensions of credit hereunder.
Each Loan Party has taken all necessary organizational action to authorize the
execution, delivery and performance of the Loan Documents to which it is a
party and, in the case of the Borrower, to authorize the extensions of credit
on the terms and conditions of this Agreement. No material consent or
authorization of, filing with, notice to or other act by or in respect of, any
Governmental Authority or any other Person is required in connection with the
Transactions, except (i) consents, authorizations, filings and notices
described in Schedule 4.4, which consents, authorizations, filings and
notices have been obtained or made and are in full force and effect and
(ii) the filings referred to in Section 4.19. Each Loan Document has
been duly executed and delivered on behalf of each Loan Party thereto. This
Agreement constitutes, and each other Loan Document upon execution will
constitute, a legal, valid and binding obligation of each Loan Party thereto,
enforceable against each such Loan Party in accordance with its terms, subject
to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
the enforcement of creditors’ rights generally and by general equitable
principles (whether enforcement is sought by proceedings in equity or at law)
and an implied covenant of good faith and fair dealing.


 


4.5           No Legal Bar. The Transactions
will not violate any Requirement of Law or any material Contractual Obligation
of any Group Member and will not result in, or require, the creation or imposition
of any Lien on any of their respective properties or revenues pursuant to any
Requirement of Law or any such Contractual Obligation (other than the Liens
created by the Security Documents).


 


4.6           Litigation. Except as set
forth on Schedule 4.6, no litigation, or to the knowledge of Holdings or
Borrower, no investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the best knowledge of Holdings or the
Borrower, threatened by or against any Group Member or against any of their
respective properties or revenues (a) with respect to any of the Loan
Documents or any of the transactions contemplated hereby or thereby, or
(b) that would reasonably be expected to have a Material Adverse Effect.


 


4.7           No Default. Except as set
forth on Schedule 4.7, no Group Member is in default under or with respect
to any of its Contractual Obligations in any respect that would reasonably be
expected to have a Material Adverse Effect. No Default or Event of Default has
occurred and is continuing.


 


4.8           Ownership of Property; Liens.
Each Group Member has marketable title to, or a valid leasehold interest in,
all its real property, and marketable title to, or a valid leasehold interest
in, all its material other property, and none of such property is subject to
any Lien except as permitted by Section 7.3. As of the date hereof and as
of the date of delivery of the financial statements delivered pursuant to
Section 6.1(a) and as of the date of delivery of the statements for the fiscal
quarter ending in March each year delivered pursuant to Section 6.1(b),
set forth on Schedule 4.8 is a complete and correct list of all real property
(including street address) (other than condominiums or co-ops) located in the
United States and owned by any Loan Party or any of its Subsidiaries and all
leases (other than apartment leases) material to the operation of any Loan
Party or any of its Subsidiaries.


 


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4.9           Licenses, Intellectual Property.
Except as in the aggregate would not reasonably be expected to have a Material
Adverse Effect or as set forth in Schedule 4.9 (all of which items set forth in
Schedule 4.9 in the aggregate would not reasonably be expected to have a
Material Adverse Effect), each Group Member has all necessary licenses,
permits, franchises, rights to participate in, or the benefit of valid
agreements to participate in material Third Party Payor Programs and other
rights necessary for the conduct of its business and for the intended use of
its properties and assets to the extent necessary to ensure no material
interruption in cash flow. Each Group Member owns, or is licensed to use, all
Intellectual Property necessary for the conduct of its business as currently
conducted except to the extent that a failure would not reasonably be expected
to have a Material Adverse Effect. No material claim has been asserted and is
pending by any Person challenging or questioning the use of any Intellectual
Property that is material to the business of the Group Members or the validity
or effectiveness of any such Intellectual Property, nor does Holdings or the
Borrower have knowledge of any valid basis for any such claim. Except as would
not reasonably be expected to result in a Material Adverse Effect, the use of
Intellectual Property by each Group Member does not infringe on the rights of
any Person in any material respect.


 


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


 


4.11         Federal Regulations. No part of
the proceeds of any Loans, and no other extensions of credit hereunder, will be
used (a) for “buying” or “carrying” any “margin stock” within the respective
meanings of each of the quoted terms under Regulation U as now and from time to
time hereafter in effect or (b) for any purpose that violates the provisions of
the Regulations of the Board.


 


4.12         Labor Matters. Except as, in the
aggregate, would not reasonably be expected to have a Material Adverse
Effect:  (a) there are no strikes or
other labor disputes against any Group Member pending or, to the knowledge of
Holdings or the Borrower, threatened; (b) hours worked by and payment made to
employees of each Group Member have not been in violation of the Fair Labor
Standards Act or any other applicable Requirement of Law dealing with such matters;
and (c) all payments due from any Group Member on account of employee health
and welfare insurance have been paid or accrued as a liability on the books of
the relevant Group Member.


 


4.13         ERISA. Except as would not
reasonably be expected to have a Material Adverse Effect, (i) neither a
Reportable Event nor an “accumulated funding deficiency” (within the meaning of
Section 412 of the Code or Section 302 of ERISA) has occurred during
the five-year period prior to the date on which this representation is made or
deemed made with


 


63

















 


respect to any Plan, and each
Plan during such five-year period has complied in all material respects with
the applicable provisions of ERISA and the Code, (ii) no termination of a
Single Employer Plan has occurred, and no Lien in favor of the PBGC or a Plan
has arisen, during such five-year period and (iii) the present value of all
accrued benefits under each Single Employer Plan (based on those assumptions
used to fund such Plans) did not, as of the last annual valuation date prior to
the date on which this representation is made or deemed made, exceed the value
of the assets of such Plan allocable to such accrued benefits by a material
amount. To the best of the Borrower’s knowledge, neither the Borrower nor any
Commonly Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan that has resulted or could reasonably be expected to result
in a material liability under ERISA, and to the best of the Borrower’s
knowledge, neither the Borrower nor any Commonly Controlled Entity would become
subject to any material liability under ERISA if the Borrower or any such
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding the date on which this
representation is made or deemed made. No such Multiemployer Plan is in
Reorganization or Insolvent.


 


4.14         Investment Company Act; Other
Regulations. No Loan Party is an “investment company”, or a company
“controlled” by an “investment company”, within the meaning of the Investment
Company Act of 1940, as amended. No Loan Party is subject to regulation under
any Requirement of Law (other than Regulation X of the Board) that limits its
ability to incur Indebtedness.


 


4.15         Subsidiaries. Attached hereto as
Schedule 4.15(a) is an organization chart of each Loan Party and its
Subsidiaries as of the Closing Date. Except as disclosed to the Administrative
Agent by the Borrower in writing from time to time after the Closing Date, (a)
Schedule 4.15(b) sets forth the name and jurisdiction of formation of each
Subsidiary and, as to each such Subsidiary, the percentage of each class of
Capital Stock owned by any Loan Party and (b) there are no outstanding subscriptions,
options, warrants, calls, rights or other agreements or commitments (other than
stock options granted to employees or directors and directors’ qualifying
shares) of any nature relating to any Capital Stock of the Borrower or any
Subsidiary, except as created by the Loan Documents. As of the Closing Date
(i) all of the Subsidiaries which are a part of such consolidated group
are Guarantors except for those that are Insurance Subsidiaries, Liquidating
Subsidiaries or Non-Profit Entities and (ii) there are no Foreign
Subsidiaries or Non-Wholly-Owned Subsidiaries. Each Liquidating Subsidiary is
an inactive Subsidiary with de minimis
assets.


 


4.16         Use of Proceeds. The proceeds of
the Tranche B Initial Term Loans, together with the proceeds of the Equity Financing
and the Senior Subordinated Notes, shall be used only for the payment of the
Merger Consideration, the Debt Discharge and the payment of Closing Costs. The
proceeds of the Revolving Loans and the Swingline Loans, and the Letters of
Credit, shall be used for general corporate purposes of any Group Member
(including Permitted Acquisitions and other lawful purposes).


 


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4.17         Environmental Matters. Except
as, in the aggregate, would not reasonably be expected to have a Material
Adverse Effect:


 


(a) the
facilities and properties owned, leased or operated by any Group Member (the “Properties”)
do not contain, and have not previously contained, any Materials of
Environmental Concern in amounts or concentrations or under circumstances that
constitute or constituted a violation of, or could reasonably be expected to
give rise to liability under, any applicable Environmental Law;


 


(b) no Group
Member has received any notice of any violation, alleged violation,
non-compliance, liability or potential liability regarding environmental
matters or compliance with Environmental Laws with regard to any of the
Properties or the business operated by any Group Member (the “Business”),
nor does Holdings or the Borrower have knowledge or reason to believe that any
such notice will be received or is being threatened;


 


(c) Materials
of Environmental Concern have not been transported or disposed of from the
Properties in violation of, or in a manner or to a location that would
reasonably be expected to give rise to liability under, any Environmental Law,
nor have any Materials of Environmental Concern been generated, treated, stored
or disposed of at, on or under any of the Properties in violation of, or in a
manner that would reasonably be expected to give rise to liability under, any
applicable Environmental Law;


 


(d) with
respect to any liability arising under any Environmental Law, no judicial
proceeding or governmental or administrative action is pending or, to the best
knowledge of Holdings and the Borrower, threatened, to which any Group Member
is or will be named as a party with respect to the Properties or the Business,
nor are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to the
Properties or the Business;


 


(e) there has
been no release or threat of release of Materials of Environmental Concern at
or from the Properties, or arising from or related to the operations of any
Group Member in connection with the Properties or otherwise in connection with
the Business, in violation of or in amounts or in a manner that would
reasonably be expected to give rise to liability under Environmental Laws;


 


(f) the
Properties and all operations at the Properties are in compliance, and within
all applicable statute-of-limitations periods have been in compliance, with all
applicable Environmental Laws, and there is no contamination at, under or about
the Properties or violation of any Environmental Law with respect to the
Properties or the Business; and


 


(g) no Group
Member has assumed, contractually or by operation of law, any liability of any
other Person under Environmental Laws.


 


4.18         Accuracy of Information, etc. No
statement or factual information with respect to any Loan Party or any of its
Subsidiaries contained in this Agreement, any other Loan Document, the
Confidential Information Memorandum or any other factual document, certificate


 


65

















 


or statement (other than any
projections, pro formas or other estimates with respect to any Loan Party or
any of its Subsidiaries) furnished by or by Persons directed on behalf of any
Loan Party to the Administrative Agent or the Lenders, or any of them, for use
in connection with the transactions contemplated by this Agreement or the other
Loan Documents, when taken as a whole, contained as of the date such statement,
information, document or certificate was so furnished (or, in the case of the
Confidential Information Memorandum, as of the date of this Agreement), any
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements contained herein or therein not materially
misleading. The projections and pro forma financial information contained in
the materials referenced above were, and the projections hereafter delivered,
when delivered, will be, based upon good faith estimates and assumptions
believed by management of each Loan Party to be reasonable at the time made and
no Loan Party knows as of the date hereof any fact making such estimates and
assumptions no longer true in any material respects, it being recognized by the
Administrative Agent and the Lenders that such financial information as it
relates to future events is not to be viewed as fact and that actual results
during the period or periods covered by such financial information may differ
from the projected results set forth therein by a material amount.


 


4.19         Security Documents. (a) The
Guarantee and Security Agreement is effective to create in favor of the
Administrative Agent, for the benefit of the Lenders, legal, valid and
enforceable (subject to the effect of bankruptcy, insolvency, reorganization,
receivership, moratorium and other similar laws affecting creditors’ rights)
security interests in the Collateral described therein and proceeds thereof. In
the case of the Pledged Stock described in any of the Security Documents, when
stock certificates representing such Pledged Stock are delivered to the
Administrative Agent together with the necessary endorsements, and in the case
of the other Collateral described in the any of the Security Documents, when
financing statements and other filings specified on Schedule 4.19(a) in
appropriate form are filed in the offices specified on Schedule 4.19(a),
the Guarantee and Security Agreement shall constitute a fully perfected Lien
on, and security interest in, all right, title and interest of the Loan Parties
in such Collateral and the proceeds thereof, as security for their respective
Obligations (as defined in the Guarantee and Security Agreement) to the extent
a Lien on such Collateral (other than the Pledged Stock) can be perfected
pursuant to such financing statements and such other filings, in each case
prior and superior in right to any other Person (except, in the case of
Collateral other than Pledged Stock, Liens permitted by Section 7.3).


 


(b) Each of
the Mortgages is effective to create in favor of the Administrative Agent, for
the benefit of the Lenders, a legal, valid and enforceable (subject to the
effect of bankruptcy, insolvency, reorganization, receivership, moratorium and
other similar laws affecting creditors’ rights) Lien on the Mortgaged
Properties described therein and proceeds thereof, and when the Mortgages are
filed in the appropriate recording offices, each such Mortgage shall constitute
a fully perfected Lien on, and security interest in, all right, title and
interest of the Loan Parties in the Mortgaged Properties and the proceeds
thereof, as security for the Obligations (as defined in the relevant Mortgage),
in each case prior and superior in right to any other Person (except that the
security interest created in such real property and the Mortgaged Property may
be subject to the Permitted Liens related thereto).


 


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4.20         Solvency. On the Closing Date,
the Loan Parties on a consolidated basis are, and after giving effect to the
Transactions and the incurrence of all Indebtedness and obligations being
incurred in connection therewith will be, Solvent.


 


4.21         Senior Indebtedness. The
Obligations constitute “Senior Indebtedness” and “Designated Senior
Indebtedness” of the Borrower under and as defined in the Senior Subordinated
Note Indenture. The obligations of each Subsidiary Guarantor under the
Guarantee and Security Agreement constitute “Senior Indebtedness” and
“Designated Senior Indebtedness” of such Subsidiary Guarantor under and as
defined in the Senior Subordinated Note Indenture.


 


4.22         Regulation H. No Mortgage
encumbers improved real property that is located in an area that has been
identified by the Secretary of Housing and Urban Development as an area having
special flood hazards and in which flood insurance has been made available
under the National Flood Insurance Act of 1968, unless flood insurance has
been obtained to the extent required in order to satisfy all applicable
Requirements of Law in order for a Mortgage to be obtained thereon.


 


SECTION 5. CONDITIONS PRECEDENT


 


5.1           Conditions to Initial Extension of
Credit. The effectiveness of this Agreement and the agreement of each
Lender to make the initial extension of credit requested to be made by it is
subject to the satisfaction or waiver, prior to or concurrently with the making
of such extension of credit on the Closing Date, of the following conditions
precedent:


 


(a) Credit Agreement; Security Documents. The Administrative
Agent shall have received (i) this Agreement executed and delivered by the
Administrative Agent, Holdings, the Borrower and each Lender, (ii) the
Guarantee and Security Agreement, executed and delivered by Holdings, the
Borrower and each Subsidiary Guarantor, and (iii) an Acknowledgement and
Consent in the form attached to the Guarantee and Security Agreement, executed
and delivered by each Issuer (as defined therein), if any, that is not a Loan
Party.


 


(b) Other Financing Transactions. The Equity Financing shall
have been consummated. The Borrower shall have received $180,000,000 in gross
cash proceeds from the issuance of the Senior Subordinated Notes.


 


(c) Merger and Debt Discharge. The Merger shall be consummated
in accordance with applicable law and the Transaction Agreement in all material
respects substantially simultaneously with the initial extensions of credit
hereunder. No material provision of the Transaction Agreement shall have been
waived, amended, supplemented or otherwise modified in any respect materially
adverse to the Lenders without the consent of the Joint Bookrunners. The Debt
Discharge shall be consummated (including consummation of a Successful Debt
Tender or, in the case of a Defeasance, the deposit of sufficient funds with
the trustee and consummation of all other actions as are necessary to satisfy
the covenant defeasance provisions of Article 8 of the Existing Notes
Indenture) prior to or substantially simultaneously with the initial extensions
of credit hereunder. After giving


 


67

















 


effect to the
Transactions, Holdings and its Subsidiaries shall not have any outstanding
Indebtedness or preferred stock, other than (i) the Facilities, (ii) the Senior
Subordinated Notes, (iii) any Existing Notes that are not purchased
pursuant to a Successful Debt Tender, or all the Existing Notes in the event of
a Defeasance, and (iv) other Indebtedness referred to in clause (iii) of
the proviso appearing in the definition of the term “Debt Discharge”. If a
Successful Debt Tender is consummated (A) the terms and conditions of any
Existing Notes not purchased pursuant to the Debt Tender shall be amended or
modified consistent with the terms of Schedule 4.05 to the Transaction
Agreement with changes thereto not materially adverse to the Lenders unless consented
to by the Joint Bookrunners and (B) all Existing Notes purchased shall be
retired and cancelled.


 


(d) Financial Statements. The Joint Bookrunners and the Lenders
shall have received the unaudited consolidated balance sheet and related
statements of income, stockholders’ equity and cash flows of the Borrower for
the fiscal quarter ended March 31, 2006, which financial statements shall
be prepared in accordance with GAAP.


 


(e) Pro Forma Financial Statements. The Joint Bookrunners and
the Lenders shall have received the Pro Forma Financial Statements.


 


(f) Ratings. The Facilities shall have received a rating from
both Moody’s and S&P.


 


(g) Lien Searches, Etc. . The Administrative Agent shall have
received the results of a recent lien search in each of the jurisdictions where
the Loan Parties are organized or where assets of the Loan Parties are located,
and such search shall reveal no Liens on any of the assets of the Loan Parties
except for Liens permitted by Section 7.3 or discharged on or prior to the
Closing Date pursuant to documentation reasonably satisfactory to the
Administrative Agent.


 


(h) Insurance. The Administrative Agent shall have received
insurance certificates satisfying the requirements of Section 5.2 of the
Guarantee and Security Agreement.


 


(i) Fees. The Lenders and the Administrative Agent shall have
received all fees required to be paid, and all expenses for which invoices have
been presented (including the reasonable fees and expenses of legal counsel),
on or before the Closing Date. All such amounts will be paid with proceeds of
Loans made on the Closing Date and will be reflected in the funding
instructions given by the Borrower to the Administrative Agent on or before the
Closing Date.


 


(j) Evidence of Authority. The Administrative Agent shall have
received such documents and certificates as the Administrative Agent or its
counsel may reasonably request relating to the organization, existence and good
standing of each Loan Party, the authorization of the Transactions and any
other legal matters relating to the Loan Parties,


 


68

















 


the Loan
Documents or the Transactions, all in form and substance reasonably
satisfactory to the Administrative Agent and its counsel.


 


(k) Legal Opinions. The Administrative Agent shall have received
the following executed legal opinions:


 


(i) the legal opinion of Simpson Thacher & Bartlett LLP,
counsel to Holdings, the Borrower and its Subsidiaries, substantially in the
form of Exhibit D; and


 


(ii) (ii) the legal opinion of special counsel to Holdings, the
Borrower and its Subsidiaries in each of Minnesota, Illinois, Ohio, Indiana,
Wisconsin, West Virginia and Maryland.


 


Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent may
reasonably require.


 


(l) Pledged Stock; Stock Powers; Pledged Notes. The
Administrative Agent shall have received (i) the certificates representing the
shares of Capital Stock pledged pursuant to the Guarantee and Security
Agreement, together with an undated stock power for each such certificate
executed in blank by a duly authorized officer of the pledgor thereof and (ii)
each promissory note (if any) pledged to the Administrative Agent pursuant to the
Guarantee and Security Agreement endorsed (without recourse) in blank (or
accompanied by an executed transfer form in blank) by the pledgor thereof.


 


(m) Filings, Registrations and Recordings. The Administrative
Agent shall have received each document (including any Uniform Commercial Code
financing statement) required by the Security Documents or under law or
reasonably requested by the Administrative Agent to be filed, registered or
recorded in order to create in favor of the Administrative Agent, for the
benefit of the Lenders, a perfected Lien on the Collateral described therein,
prior and superior in right to any other Person (other than with respect to
Liens expressly permitted by Section 7.3), and each such document shall be
in proper form for filing, registration or recordation.


 


(n) Solvency Certificate. The Administrative Agent and the
Lenders shall have received a solvency certificate signed by the chief
financial officer of the Borrower dated as of the Closing Date with respect to
the Borrower and its consolidated Subsidiaries, taken as a whole, in form and
substance reasonably satisfactory to the Administrative Agent, certifying that
the Borrower and its consolidated Subsidiaries, taken as a whole, are Solvent
as of the Closing Date, both before and after giving effect to the
Transactions.


 


(o) Material Adverse Change. Since December 31, 2005, there
shall not have occurred any change, effect, occurrence or development that is
materially adverse to the business, assets, liabilities, financial condition,
operations or results of operations of the Borrower and its Subsidiaries, taken
as a whole; provided that the following shall be excluded from the
determination of whether any such change, effect, occurrence or development has
occurred:  any change, effect, occurrence
or development resulting from


 


69

















 


or arising in
connection with (a) conditions or events that are generally applicable to
(i) the industries in which the Borrower or its Subsidiaries operate or
(ii) the capital, financial, banking or currency markets generally,
(b) changes in laws (including without limitation, common law, rules and
regulations or the interpretation thereof) or applicable accounting regulations
and principles and (c) any change resulting from the announcement of the
transactions described in the Transaction Agreement, except, in the case of
clauses (a) and (b), to the extent such change, effect, occurrence or
development has a disproportionate adverse effect on the Borrower and its
Subsidiaries as compared to any other Person engaged in the same business. The
Administrative Agent shall have received a certificate signed by a Responsible
Officer of the Borrower to the foregoing effect.


 


(p) Transaction Agreement. The Administrative Agent shall have
received copies of the Transaction Agreement and all material agreements and
other documents delivered in connection therewith, certified by a Responsible
Officer of the Borrower as true, correct and complete copies thereof as in effect
on the Closing Date.


 


5.2           Conditions to Each Extension of
Credit. The agreement of each Lender to make any extension of credit
requested to be made by it on any date (including its initial extension of
credit) is subject to the satisfaction or waiver of the following conditions
precedent:


 


(a) Representations and Warranties. Each of the representations
and warranties made by any Loan Party in or pursuant to the Loan Documents
shall be true and correct in all material respects on and as of such date as if
made on and as of such date (other than representations and warranties which
speak only as of a certain date, which representations and warranties shall be
made only on such date); provided, however, that, solely for
purposes of representations and warranties made on the Closing Date with
respect of the Borrower and its Subsidiaries, such representations and
warranties shall be limited to those contained in Sections 4.3 (clauses
(a) and (b) only), 4.4, 4.11, 4.14 and 4.21.


 


(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
extensions of credit requested to be made on such date.


 


Each borrowing by and issuance of a Letter of Credit on behalf of the
Borrower hereunder shall constitute a representation and warranty by the
Borrower as of the date of such extension of credit that the conditions
contained in this Section 5.2 have been satisfied.


 


SECTION 6. AFFIRMATIVE COVENANTS


 


Holdings and the Borrower hereby jointly and severally agree that, so
long as any of the Commitments remain in effect, any Letter of Credit remains
outstanding, any Credit-Linked Deposit remains available or any Loan or other
amount is owing to any Lender or the Administrative Agent hereunder (other than
contingent indemnification obligations), each of Holdings and the Borrower
shall and shall cause each of its Subsidiaries to:


 


70

















 


6.1           Financial Statements. Furnish
to the Administrative Agent (and the Administrative Agent shall promptly
furnish to the Lenders, by posting to Intralinks or otherwise):


 


(a) as soon as available, but in any event within 90 days after
the end of each fiscal year of the Borrower, a copy of the audited consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at the end
of such year and the related audited consolidated statements of income and of
cash flows for such year, setting forth in each case in comparative form the
figures for the previous year, reported on without a “going concern” or like
qualification or exception, or qualification arising out of the scope of the
audit, by Ernst & Young LLP or other independent certified public
accountants of nationally recognized standing;


 


(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal year
of the Borrower, the unaudited consolidated balance sheet of the Borrower and
its consolidated Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of income and of cash flows for such quarter
and the portion of the fiscal year through the end of such quarter, setting
forth in each case in comparative form the figures for the same quarter in the
previous year, certified by a Responsible Officer as being fairly stated in all
material respects (subject to normal year-end audit adjustments and the absence
of footnotes); and


 


(c) as soon as available, but in any event not later than 45 days
after the end of each month occurring during each fiscal year of the Borrower
(other than the third, sixth, ninth and twelfth such month), the unaudited
consolidated balance sheet of the Borrower and its Subsidiaries as at the end
of such month and the related unaudited consolidated statements of income and
of cash flows for such month and the portion of the fiscal year through the end
of such month, setting forth in each case in comparative form the figures for
the same month in the previous year, certified by a Responsible Officer as
being fairly stated in all material respects (subject to normal year-end audit
adjustments and the absence of footnotes).


 


All such financial statements shall be complete and correct in all
material respects and shall be prepared in reasonable detail and in accordance
with GAAP applied (except as approved by such accountants or a Responsible
Officer, as the case may be, and disclosed in reasonable detail therein)
consistently throughout the periods reflected therein and with prior periods.
With regard to interim financial statements, such interim financial statements
will not include all of the information and footnotes required by GAAP for
complete financial statements. However, all adjustments (consisting of normal,
recurring accrual) considered necessary for a fair presentation will be
included therein.


 


Notwithstanding the foregoing, the obligations in paragraphs (a)
and (b) of this Section 6.1 may be satisfied with respect to financial
information of the Borrower and its consolidated Subsidiaries by furnishing the
Borrower’s Form 10-K or 10-Q, as applicable, filed with the SEC; provided
that such Form 10-K or 10-Q contains or is accompanied by the items required by
such paragraphs.


 


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6.2           Certificates; Other Information.
Furnish to the Administrative Agent (and the Administrative Agent shall
promptly furnish to the Lenders, by posting to Intralinks or otherwise):


 


(a) If reasonably requested by the Administrative Agent, concurrently
with the delivery of the financial statements referred to in
Section 6.1(a), a certificate of the independent certified public
accountants reporting on such financial statements stating that in making the
examination necessary therefor no knowledge was obtained of any Default or
Event of Default, except as specified in such certificate (provided that such
certificate shall not be required if, after exercising commercially reasonable
efforts to do so, Holdings or the Borrower are unable to obtain such
certificate);


 


(b) concurrently with the delivery of any financial statements pursuant
to Section 6.1(a) and (b), (i) a Compliance Certificate containing all
information and calculations required by the form of such certificate attached
as Exhibit F, including those necessary for determining compliance by each
Group Member with the provisions of Section 7.1 (including detail with
respect to any calculation of Consolidated EBITDA) as of the last day of the
fiscal quarter or fiscal year of Holdings, as the case may be, and (ii) to
the extent not previously disclosed to the Administrative Agent, a description
of any change in the jurisdiction of organization of any Loan Party and a list
of any Intellectual Property acquired by any Loan Party since the date of the
most recent report delivered pursuant to this clause (ii) (or, in the case
of the first such report so delivered, since the Closing Date);


 


(c) as soon as available, and in any event no later than 60 days
after the end of each fiscal year of the Borrower and its Subsidiaries, a
consolidated budget for the following fiscal year (and no later than
90 days after the end of each fiscal year of the Borrower, a detailed
projected consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as of the end of the following fiscal year, the related
consolidated statements of projected cash flow, projected changes in financial
position and projected income and a description of the underlying assumptions
applicable thereto), and, as soon as available, significant revisions, if any,
of such budget and projections with respect to such fiscal year (collectively,
the “Projections”);


 


(d) no later than 10 Business Days prior to the effectiveness
thereof, copies of substantially final drafts of any proposed amendment,
supplement, waiver or other modification with respect to any Indebtedness,
agreement or document referred to in Section 7.9 (regardless of whether such
amendment, supplement, waiver or other modification is permitted thereunder);


 


(e) within five Business Days after the same are sent, copies of all
financial statements and reports that Holdings or the Borrower sends to the
holders of any class of its debt securities (other than the Lenders) or public
equity securities and, within five Business Days after the same are filed,
copies of all financial statements and reports that Holdings or the Borrower
may make to, or file with, the SEC;


 


72

















 


(f) at or prior to the date that any prepayment is required to be made
pursuant to Section 2.11 (or any Reinvestment Notice is delivered
thereunder), a certificate of a Responsible Officer setting forth a reasonably
detailed calculation of the amount of such required prepayment (or the relevant
Reinvestment Deferred Amount, as applicable); and


 


(g) promptly, such additional financial and other information
concerning a Group Member as the Administrative Agent on behalf of any Lender
may from time to time reasonably request.


 


6.3           Payment of Taxes. Pay,
discharge or otherwise satisfy at or before maturity or before they become
delinquent, as the case may be, all its material tax obligations of whatever
nature, except where (i) the amount or validity thereof is being contested
in good faith by appropriate proceedings and reserves in conformity with GAAP
with respect thereto have been provided on the books of the relevant Group
Member or (ii) the failure to pay would reasonably be expected to result
in a Material Adverse Effect.


 


6.4           Maintenance of Existence;
Compliance. (a)(i)  Preserve, renew
and keep in full force and effect its organizational existence and
(ii) take all reasonable action to maintain all rights, privileges and
franchises necessary or desirable in the normal conduct of its business,
except, in each case, as otherwise permitted by Section 7.4 and except, in
the case of clause (ii) above, to the extent that failure to do so would
not reasonably be expected to have a Material Adverse Effect; and
(b) comply with all Requirements of Law except to the extent that failure
to comply therewith would not, in the aggregate, reasonably be expected to have
a Material Adverse Effect.


 


6.5           Maintenance of Property; Insurance.
(a)  Keep all material property useful and necessary in its business in
good working order and condition, ordinary wear and tear and ordinary damage by
casualty excepted, (b) maintain with financially sound and reputable
insurance companies insurance (or pursuant to self-insurance to the extent
commercially reasonable) in at least such amounts and against at least such risks
(but including in any event public liability, professional liability, workers’
compensation and business interruption) as are usually insured against in the
same general area by companies engaged in the same or a similar business and of
similar size (and including, in any event, such insurance as may be required by
the Security Documents); provided that the insurance amount for general
liability insurance of the Borrower shall in no event be less than $4,000,000
(which shall be available after any reasonable self-insurance or effective
deductibles, which at the date hereof are $1,000,000 per occurrence and
$2,000,000 for all occurrences); and (c) provide that each insurance
policy maintained or required to be maintained by any Loan Party shall (i) name
the Administrative Agent, on behalf of the Lenders, as loss payee pursuant to a
so-called “standard mortgagee clause” or “Lender’s loss payable endorsement”,
with respect to property coverage of such Loan Party, and shall name the
Administrative Agent on behalf of the Lenders as an additional insured, with
respect to general liability coverage, (ii) provide that no action of any
Loan Party or any Subsidiary or any other Person shall void any such policy as
to the Administrative Agent or the Lenders, (iii) provide that the
insurer(s) shall endeavor to notify the Administrative Agent of any proposed
cancellation of such policy at least 30 days in advance thereof (unless
such proposed cancellation arises by reason of non-payment of insurance
premiums in which case


 


73

















 


such notice shall be given at
least 10 days in advance thereof) and that the Administrative Agent or the
Lenders will have the opportunity to correct any deficiencies justifying such
proposed cancellation and (iv) cause any Insurance Subsidiary to
(A) conduct its insurance business in compliance with all applicable
insurance laws, rules, regulations and orders and using sound actuarial
principles and (B) maintain usual and customary stop-loss coverage and excess
coverage reinsurance for individual claims. The insurance premiums and other
expenses charged by any Insurance Subsidiary to the Borrower and its
Subsidiaries shall be reasonable and customary. The Borrower will provide the
Administrative Agent (A) copies of any outside actuarial reports prepared
with respect to any projection, valuation or appraisal of any Insurance
Subsidiary promptly after receipt thereof and (B) once each year promptly
after receipt thereof, an actuarial opinion with respect to any Insurance
Subsidiary from a recognized actuarial firm reasonably satisfactory to the
Administrative Agent.


 


6.6           Inspection of Property; Books and
Records; Discussions. (a)  Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all material Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities, and
(b) permit representatives of any Lender (coordinated through the
Administrative Agent) to visit and inspect any of its properties and examine
and make abstracts from any of its books and records (other than materials
protected by the attorney-client privilege and materials which such person may
not disclose without violation of a confidentiality obligation binding upon it)
at any reasonable time (and upon reasonable notice unless an Event of Default
exists) and as often as may reasonably be desired and to discuss the business,
operations, properties and financial and other condition of the Group Members with
officers and employees of the Group Members and with their independent
certified public accountants (provided the Borrower is given an opportunity to
be present at such meetings).


 


6.7           Notices. Promptly give notice
to the Administrative Agent and the Administrative Agent shall furnish to the
Lenders by posting to Intralinks or otherwise of:


 


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


 


(b) any (i) default or event of default under any Contractual
Obligation of any Group Member or (ii) litigation, investigation or
proceeding affecting any Group Member that, in either case, if not cured (in
the case of clause (i)) or if adversely determined (in the case of clause (ii))
could reasonably be expected to result in (A) a liability or judgment of
$7,500,000 or more in excess of that fully covered by insurance or (B) a
Material Adverse Effect;


 


(c) the following events, as soon as possible and in any event within
30 days after any Responsible Officer of the Borrower knows or has reason
to know thereof if such event or events could reasonably be expected to result
in a liability of $7,500,000 or more or a Material Adverse Effect:  (i) the occurrence of any Reportable
Event with respect to any Plan, a failure to make any required contribution to
a Single Employer or Multiemployer Plan, the creation of any Lien in favor of
the PBGC or a Plan or any withdrawal from, or the termination, Reorganization
or Insolvency of, any Multiemployer Plan or (ii) the institution of
proceedings or the taking of any other action by the PBGC


 


74

















 


or the
Borrower or any Commonly Controlled Entity or any Multiemployer Plan with
respect to the withdrawal from, or the termination, Reorganization or
Insolvency of, any Single Employer or Multiemployer Plan; and


 


(d) any development or event that has had or would reasonably be
expected to have a Material Adverse Effect.


 


Each notice pursuant to this Section 6.7 shall be accompanied by a
statement of a Responsible Officer setting forth details of the occurrence
referred to therein and stating what action the relevant Group Member proposes
to take with respect thereto.


 


6.8           Environmental Laws. (a) Comply
in all material respects with, and ensure compliance in all material respects
by all tenants and subtenants, if any, at the Properties with, all applicable
Environmental Laws, and obtain and comply in all material respects with and
maintain, and ensure that all tenants and subtenants obtain and comply in all
material respects with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by applicable Environmental
Laws. This clause (a) shall be deemed not breached by a noncompliance with
the foregoing if, upon learning of such noncompliance, any affected Group
Member promptly undertakes reasonable efforts to eliminate such noncompliance,
and such noncompliance and the elimination thereof, in the aggregate with any
other noncompliance with any of the foregoing and the elimination thereof,
could not reasonably be expected to have a Material Adverse Effect or to
materially and adversely affect the value of the property secured by any of the
Mortgages.


 


(b) Conduct
and complete all material investigations, studies, sampling and testing, and
all material remedial, removal and other actions required under Environmental
Laws and promptly comply in all material respects with all lawful orders and
directives of all Governmental Authorities regarding Environmental Laws in each
case. This clause (b) shall be deemed not breached by a failure to comply
with such an order or directive if any affected Group Member timely challenges
in good faith such order or directive in a manner consistent with all
applicable Environmental Laws and pursues such challenge diligently, and the
pendency and pursuit of such challenge, in the aggregate with the pendency and
pursuit of any other such challenges, could not reasonably be expected to have
a Material Adverse Effect or to materially and adversely affect the value of
the property secured by any of the Mortgages.


 


6.9           Additional Collateral, etc. (a)
With respect to any personal property or intellectual property acquired after
the Closing Date by any Loan Party (other than any motor vehicles, or any
tangible personal property evidenced by a title certificate or any other type
of property expressly excluded by the Security Documents) as to which the
Administrative Agent, for the benefit of the Lenders, does not have a perfected
Lien, promptly (i) execute and deliver to the Administrative Agent such
amendments to the Guarantee and Security Agreement or such other documents as
the Administrative Agent reasonably deems necessary or advisable to grant to
the Administrative Agent, for the benefit of the Lenders, a security interest
in such property, subject to Liens permitted under Section 7.3, and
(ii) take all actions necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a perfected first
priority security interest in such property, including the filing of Uniform
Commercial Code financing


 


75

















 


statements in such
jurisdictions as may be reasonably required by the Guarantee and Security
Agreement or by law or as may be reasonably requested by the Administrative
Agent.


 


(b) With
respect to any fee interest in any real property having a value (together with
improvements thereof) of at least $125,000 acquired after the Closing Date by
any Loan Party (other than any such real property subject or to be subject to a
Lien permitted by Section 7.3(g) or (z)), on a quarterly basis reasonably
promptly after delivery of the financial statements delivered pursuant to
Section 6.1(a) or (b) execute and deliver a first priority mortgage or
deed of trust in a form substantially similar to the Mortgages on the Initial
Mortgaged Properties and satisfactory to the Administrative Agent, in favor of
the Administrative Agent, for the benefit of the Lenders, covering such real
property and recorded by a nationally recognized title insurance company.


 


(c) With
respect to any new Subsidiary created or acquired after the Closing Date by any
Loan Party (or any Subsidiary that ceases to be a Liquidating Subsidiary),
promptly (i) execute and deliver to the Administrative Agent such amendments to
the Guarantee and Security Agreement as the Administrative Agent reasonably
deems necessary to grant to the Administrative Agent, for the benefit of the
Lenders, a perfected first priority security interest subject to Liens
permitted pursuant to Section 7.3 in the Capital Stock of such new
Subsidiary that is owned by any Loan Party (provided, such security
interest shall be limited (A) in the case of a Foreign Subsidiary, to 66% of
such Capital Stock in such Foreign Subsidiary, (B) in the case of any Insurance
Subsidiary, to the lesser of the amount of such Insurance Subsidiary’s Capital
Stock which can be pledged pursuant to the applicable law governing such
Insurance Subsidiary or if such Insurance Subsidiary is a Foreign Subsidiary,
the amount which is required to be otherwise pledged hereunder and (C) in the
case of any Non-Profit Entity formed after the Closing Date, to the amount of
such entity’s Capital Stock that can be pledged pursuant to the applicable law
or regulations governing such entity), (ii) deliver to the Administrative Agent
the certificates representing such Capital Stock, together with undated stock
powers, in blank, executed and delivered by a duly authorized officer of the
relevant Loan Party, (iii) cause such new Subsidiary (unless such Subsidiary is
a Foreign Subsidiary, an Insurance Subsidiary, a Non-Wholly-Owned Subsidiary or
a Non-Profit Entity) (A) to become a party to the Guarantee and Security
Agreement, (B) to take such actions necessary or advisable to grant to the Administrative
Agent for the benefit of the Lenders a perfected first priority security
interest subject to the Liens permitted under Section 7.3 in the
Collateral described in the Guarantee and Security Agreement with respect to
such new Subsidiary, including the filing of Uniform Commercial Code financing
statements in such jurisdictions as may be required by the Guarantee and
Security Agreement or by law or as may be requested by the Administrative Agent
and (C) to deliver to the Administrative Agent a certificate of such
Subsidiary, substantially in the form of Exhibit C or in such other form as may
be acceptable to the Administrative Agent, with appropriate insertions and
attachments, and (iv) if reasonably requested by the Administrative Agent,
deliver to the Administrative Agent legal opinions relating to the matters
described above, which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to the Administrative Agent; provided
that (1) Holdings and the Borrower shall not be required to take, or cause
any Subsidiary to take, the actions required by this paragraph (c) with respect
to any such new Subsidiary prior to the delivery of financial statements
delivered pursuant to Section 6.1(a) or (b) for the fiscal quarter of the Borrower


 


76

















 


during which such new Subsidiary was created
or acquired unless (x) the aggregate amount of Investments made by the Group
Members in all such new Subsidiaries exceeds $5,000,000 prior to the end of such
fiscal quarter or (y) a Default has occurred and is continuing and (2) Holdings
and the Borrower shall not be required to provide the legal opinions required
by this paragraph (c) if the applicable new Subsidiary (on a consolidated
basis) accounts for less than 1% of the assets, revenues or Consolidated EBITDA
of the Borrower, in each case on a pro forma basis as of the end of and for the
four fiscal quarters most recently ended for which financial statements have
been delivered under Section 6.1(a) or (b), as though such Subsidiary had
become a Subsidiary at the beginning of such period, unless such new
Subsidiary, together with all other Subsidiary Guarantors organized in the same
jurisdiction with respect to which no opinions have been received by the Administrative
Agent, account for 4% of more of the assets, revenues or Consolidated EBITDA of
the Borrower (determined on the same basis as provided above).


 


6.10         Initial Mortgages/Deferred Mortgages.
Deliver to the Administrative Agent (a) on or before the date which is
60 days after the Closing Date (which period may be extended by the
Administrative Agent from time to time in its discretion), a Mortgage in favor
of (and reasonably satisfactory in form and substance to) the Administrative
Agent in respect of each of the Initial Mortgaged Properties, executed by the
record owner of such Initial Mortgaged Property and recorded by a nationally
recognized title insurance company and (b) on the earlier of (i) the
date occurring six months after the Closing Date (which period may be extended
by the Administrative Agent from time to time in its discretion) and
(ii) the date on which the Borrower shall have determined not to pursue a
Designated Sale Leaseback Transaction with respect thereto, a Mortgage in favor
of (and reasonably satisfactory in form and substance to) the Administrative
Agent in respect of each of the Deferred Mortgaged Properties, executed by the
record owner of such Deferred Mortgaged Property and recorded by a nationally
recognized title insurance company.


 


SECTION 7. NEGATIVE COVENANTS


 


Holdings and the Borrower hereby jointly and severally agree that, so
long as any of the Commitments remain in effect, any Letter of Credit remains
outstanding, any Credit-Linked Deposit remains available or any Loan or other
amount is owing to any Lender or the Administrative Agent (other than
contingent indemnity obligations surviving after the termination of this
Agreement) hereunder, each of Holdings and the Borrower shall not, and shall
not permit any of its Subsidiaries to, directly or indirectly:


 


7.1           Financial Condition Covenants.


 


(a) Consolidated
Leverage Ratio. Permit the Consolidated Leverage Ratio as at the last day
of any fiscal quarter of the Borrower ending during any period set forth below
to exceed the ratio set forth below opposite such fiscal period:


 




	
  Fiscal Quarter

  Ending During Period

  	
   

  	
  Consolidated

  Leverage Ratio

  	
   

  
	
  September
  30, 2006 to September 30, 2007

  	
   

  	
  7.00 to 1.00

  	
   

  
	
  December 31,
  2007 to September 30, 2008

  	
   

  	
  6.50 to 1.00

  	
   

  
	
  December 31,
  2008 to September 30, 2009

  	
   

  	
  6.00 to 1.00

  	
   

  
	
  December 31,
  2009 to September 30, 2010

  	
   

  	
  5.00 to 1.00

  	
   

  
	
  Thereafter

  	
   

  	
  4.50 to 1.00

  	
   

  






 


77

















 


(b) Consolidated
Interest Coverage Ratio. Permit the Consolidated Interest Coverage Ratio
for any period of four consecutive fiscal quarters of the Borrower ending
during any period set forth below to be less than the ratio set forth below
opposite such fiscal period:


 




	
  Fiscal Quarter

  Ending During Period

  	
   

  	
  Consolidated Interest

  Coverage Ratio

  	
   

  
	
  September
  30, 2006 to September 30, 2007

  	
   

  	
  1.50 to 1.00

  	
   

  
	
  December 31,
  2007 to March 31, 2008

  	
   

  	
  1.60 to 1.00

  	
   

  
	
  June 30,
  2008 to December 31, 2008

  	
   

  	
  1.70 to 1.00

  	
   

  
	
  March 31,
  2009

  	
   

  	
  1.80 to 1.00

  	
   

  
	
  June 30,
  2009 to September 30, 2009

  	
   

  	
  1.90 to 1.00

  	
   

  
	
  December 31,
  2009 to September 30, 2010

  	
   

  	
  2.00 to 1.00

  	
   

  
	
  Thereafter

  	
   

  	
  2.25 to 1.00

  	
   

  






 


7.2           Indebtedness. Create, issue,
incur, assume, become liable in respect of or suffer to exist any Indebtedness,
except:


 


(a) Indebtedness of any Loan Party pursuant to any Loan Document;


 


(b) Indebtedness of the Borrower to any Subsidiary and of any
Subsidiary Guarantor to the Borrower or any other Subsidiary and of any
Subsidiary that is not a Guarantor to any other Subsidiary that is not a
Guarantor; provided that any such Indebtedness of a Loan Party shall be
subordinated to the Obligations on terms reasonably satisfactory to the
Administrative Agent;


 


(c) Guarantee Obligations incurred in the ordinary course of business
by Holdings or any of its Subsidiaries of Indebtedness and other obligations of
any Subsidiary Guarantor;


 


78

















 


(d) Indebtedness outstanding on the date hereof and listed on Schedule
7.2(d) and any Permitted Refinancing Indebtedness in respect of any such Indebtedness;


 


(e) Indebtedness (including, without limitation, Capital Lease
Obligations, including those incurred pursuant to Specified Sale Leaseback
Transactions) secured by Liens permitted by Section 7.3(g) (or Section
7.3(w), in the case of a Specified Sale Leaseback Transaction), and any
Permitted Refinancing Indebtedness in respect of such Indebtedness, in an
aggregate principal amount not to exceed the sum of $20,000,000 at any one time
outstanding;


 


(f) Indebtedness of the Borrower in respect of the Senior Subordinated
Notes in an aggregate principal amount not to exceed $180,000,000 (and
Permitted Refinancing Indebtedness in respect of any such Indebtedness) and
Guarantee Obligations of any Subsidiary Guarantor in respect of such
Indebtedness, provided that such Guarantee Obligations are subordinated
to the same extent as the obligations of the Borrower in respect of the Senior
Subordinated Notes;


 


(g) Indebtedness of the Borrower or any of its Subsidiaries acquired or
assumed pursuant to a Permitted Acquisition which Indebtedness was in existence
at the time of such Permitted Acquisition and not incurred in contemplation
thereof (and any Permitted Refinancing Indebtedness in respect of any such
Indebtedness), in an aggregate principal amount not to exceed $25,000,000 at
any time outstanding;


 


(h) any other Indebtedness of the Borrower or any of its Subsidiaries
in an aggregate amount not exceeding $40,000,000 at any one time outstanding; provided,
however, in no event shall any Indebtedness of Subsidiaries which are
not Guarantors, together with Investments made pursuant to Section 7.8(t),
exceed $10,000,000 at any one time outstanding;


 


(i) Indebtedness of Holdings to the Borrower to the extent the related
advance would be permitted to be made as a Restricted Payment hereunder (it
being understood that any such advance shall be deemed to be and shall count as
a Restricted Payment for purposes of Section 7.6);


 


(j) obligations in respect of performance, surety, statutory or appeal
bonds or with respect to worker’s compensation claims or other bonds permitted
under Section 7.3;


 


(k) Indebtedness incurred in the ordinary course of business in respect
of netting services, overdraft protections and otherwise in connection with
deposit accounts;


 


(l) Indebtedness of any Loan Party (other than Holdings) consisting of
(i) promissory notes or similar obligations issued by such Loan Party
relating to licenses to be acquired in connection with a Permitted Acquisition
that cannot be transferred to such Loan Party prior to or concurrently with the
consummation of such Permitted Acquisition and (ii) Earnout Obligations,
in an aggregate amount for (i) and (ii) (valuing Earnout Obligations only to
the extent then required to be included on a consolidated balance sheet of the
Borrower) not exceeding $15,000,000 at any one time outstanding;


 


79

















 


(m) Indebtedness consisting of promissory notes issued by the Borrower
to officers, directors and employees of Holdings, the Borrower or any
Subsidiary of the Borrower to purchase or redeem Capital Stock of Holdings or
the Parent to the extent permitted hereunder, in an aggregate amount not
exceeding $1,000,000 at any time outstanding;


 


(n) Indebtedness under Swap Agreements permitted pursuant to
Section 7.12 and Cash Management Obligations;


 


(o) Indebtedness of the Borrower that may be deemed to exist under any
acquisition agreement pertaining to acquisitions consummated prior to the
Closing Date;


 


(p) Indebtedness that is outstanding on the date hereof but that is
repaid on the Closing Date pursuant to the Debt Discharge;


 


(q) either (i) if a Successful Debt Tender is consummated on the
Closing Date, any Existing Notes that are not purchased pursuant to such
Successful Debt Tender (and Permitted Refinancing Indebtedness in respect of
any such Indebtedness) or (ii) if a Defeasance is consummated on the Closing
Date, the Existing Notes;


 


(r) unsecured Indebtedness of the Borrower incurred to finance a
Permitted Acquisition and any Permitted Refinancing Indebtedness in respect of
any such Indebtedness; provided that
(i) in addition to and without limitation of compliance with clause (e) of the
definition of “Permitted Acquisition”, the Consolidated Leverage Ratio
(determined on a pro forma basis as provided in such clause (e)) shall not
exceed 6.0 to 1.0, (ii) such Indebtedness is subordinated to the Obligations on
terms no less favorable to the Lenders than the subordination terms set forth
in the Senior Subordinated Note Indenture as of the Closing Date (other than
unsecured Indebtedness of the Borrower, the aggregate principal amount of
which, together with any Permitted Refinancing Indebtedness in respect thereof,
does not exceed $70,000,000 at any time outstanding), (iii) such Indebtedness
matures after, and does not require any scheduled amortization or other
scheduled payments of principal prior to, the date that is ninety-one (91) days
after the Tranche B Maturity Date (it being understood that such Indebtedness
may have mandatory prepayment, repurchase or redemption provisions satisfying
the requirement of clause (iv) hereof), (iv) such Indebtedness has terms and
conditions (other than interest rate, redemption premiums and subordination
terms), taken as a whole, that are not materially less favorable to the
Borrower than the terms and conditions of the Senior Subordinated Notes as of
the Closing Date and (v) such Indebtedness is incurred by the Borrower and is
not guaranteed by Holdings or any Subsidiary of the Borrower other than the Subsidiary
Guarantors (which guarantees, if such Indebtedness is subordinated, shall be
expressly subordinated to the Obligations on terms not less favorable to the
Lenders than the subordination terms of such Indebtedness);


 


(s) unsecured Indebtedness of the Borrower that is subordinated to the
Obligations on terms no less favorable to the Lenders than the subordination
terms set forth in the Senior Subordinated Note Indenture as of the Closing
Date and any Permitted


 


80

















 


Refinancing
Indebtedness in respect of any such Indebtedness; provided that (i) both immediately prior to and
after giving effect thereto, no Default shall exist or result therefrom and the
Borrower and its Subsidiaries will be in compliance with the covenants set
forth in Section 7.1, calculated on a pro forma basis as of the end of the
quarter most recently ended prior to the date such Indebtedness is incurred for
which financial statements have been delivered pursuant to Section 6.1 (calculated
as though such Indebtedness has been incurred at the beginning of the relevant
four quarter period, in the case of Section 7.1(b)), (ii) such Indebtedness
matures after, and does not require any scheduled amortization or other
scheduled payments of principal prior to, the date that is ninety-one (91) days
after the Tranche B Maturity Date (it being understood that such Indebtedness
may have mandatory prepayment, repurchase or redemption provisions satisfying
the requirement of clause (iii) hereof), (iii) such Indebtedness has terms and
conditions (other than interest rate, redemption premiums and subordination
terms), that taken as a whole, are not materially less favorable to the
Borrower than the terms and conditions of the Senior Subordinated Notes as of
the Closing Date; and (iv) such Indebtedness is incurred by the Borrower
and is not guaranteed by Holdings or any Subsidiary of the Borrower other than
the Subsidiary Guarantors (which guarantees shall be expressly subordinated to
the Obligations on terms not less favorable to the Lenders than the
subordination terms of such Indebtedness); provided that the Net Cash
Proceeds of any such Indebtedness (other than any such Permitted Refinancing
Indebtedness) shall be concurrently applied to prepay the Tranche B Term Loans
in accordance with Section 2.11(a);


 


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


 


(u) Indebtedness of the Borrower or a Subsidiary Guarantor supported by
a Letter of Credit; provided, however, that (i) the aggregate
principal amount of any such Indebtedness does not at any time exceed the
amount available to be drawn under such Letter of Credit, and (ii) such
Indebtedness matures at least five Business Days prior to the scheduled expiry
date of such Letter of Credit;


 


(v) Indebtedness of Holdings and the Borrower or any Subsidiary
Guarantor under the Mortgage Facility and any Permitted Refinancing
Indebtedness in respect of any such Indebtedness; provided that the
aggregate amount of Indebtedness outstanding and incurred pursuant to this
clause (v) does not at any one time exceed $12,000,000; and


 


(w) Indebtedness consisting of obligations of Holdings, the Borrower or
its Subsidiaries under deferred compensation or other similar arrangements
incurred by such Person in connection with the Transaction and Permitted
Acquisitions or any other Investment expressly permitted hereunder.


 


7.3           Liens. Create, incur, assume
or suffer to exist any Lien upon any of its property, whether now owned or
hereafter acquired, except:


 


81

















 


(a) Liens for taxes, assessments, charges or other governmental levies
not overdue for a period of more than 60 days or that are being contested
in good faith by appropriate proceedings, provided that adequate
reserves with respect thereto are maintained on the books of the Borrower or
its Subsidiaries, as the case may be, in conformity with GAAP;


 


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


 


(c) pledges or deposits in connection with workers’ compensation,
unemployment insurance and other social security legislation and deposits
securing liability insurance carriers under insurance or self insurance
arrangements;


 


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


 


(e) easements, rights-of-way, restrictions and other similar
encumbrances that, in the aggregate, do not in any case materially detract from
the value of the property subject thereto or materially interfere with the
ordinary conduct of the business of the Borrower or any of its Subsidiaries;


 


(f) Liens in existence on the date hereof listed on Schedule 7.3(f),
securing Indebtedness permitted by Section 7.2(d), provided that no
such Lien is spread to cover any additional property after the Closing Date and
that the amount of Indebtedness secured thereby is not increased;


 


(g) Liens securing Indebtedness of the Borrower or any of its
Subsidiaries incurred pursuant to Section 7.2(e) solely to finance the
acquisition or construction of new equipment, fixed assets or real property or
the repair or improvement thereof or the refinancing of real property, provided
that (i) such Liens and the Indebtedness secured thereby shall be created
within 270 days after the acquisition, construction, repair or improvement
of such new equipment, fixed assets or real property or improvements thereto
and (ii) such Liens do not at any time encumber any property other than the
equipment, fixed assets or real property (or the real property improved by such
improvements) financed by such Indebtedness;


 


(h) Liens created pursuant to the Security Documents;


 


(i) contractual or statutory Liens of landlords and Liens of suppliers
(including sellers of goods) and other Liens imposed by law or pursuant to
customary reservations or retentions of title arising in the ordinary course of
business;


 


(j) rights of setoff or bankers’ liens upon deposits of cash in favor
of banks or other depository institutions whether arising by contract or
operation of law, incurred in


 


82

















 


the ordinary
course of business so long as such deposits are not intended to be collateral
for any obligations;


 


(k) Liens attaching solely to cash earnest money deposits in connection
with any letter of intent or purchase agreement in connection with a Permitted
Acquisition;


 


(l) Liens arising from precautionary UCC financing statements regarding
operating leases not constituting Indebtedness or consignments;


 


(m) Liens securing Indebtedness permitted hereunder on property or assets
acquired pursuant to a Permitted Acquisition or permitted Investment, or on
property or assets of a Subsidiary of the Borrower in existence at the time
such Subsidiary is acquired pursuant to a Permitted Acquisition or permitted
Investment, provided that such Liens are not incurred in connection with
or in anticipation of such Permitted Acquisition or permitted Investment and do
not attach to any other asset of the Borrower or any of its Subsidiaries;


 


(n) Liens on insurance policies and the proceeds thereof securing the
financing of the premiums with respect thereto;


 


(o) Liens encumbering customary initial deposits and margin deposits,
and similar Liens and margin deposits, and similar Liens attaching to commodity
trading accounts or other brokerage accounts, in each case incurred in the
ordinary course of business;


 


(p) Liens incurred in connection with the purchase or shipping of goods
or assets on the related goods or assets and proceeds thereof in favor of the
seller or shipper of such goods or assets;


 


(q) Liens in favor of customs and revenues authorities which secure
payment of customs duties in connection with the importation of goods;


 


(r) Liens arising out of judgments or awards not constituting an Event
of Default under Section 8(h);


 


(s) any interest or title of a licensor, sublicensor, lessor or
sublessor under any license or lease agreement in the ordinary course of
business not interfering with the business of the Borrower or any of its
Subsidiaries;


 


(t) licenses, sublicenses, leases or subleases granted to third Persons
in the ordinary course of business not interfering in any material respect with
the business of the Borrower or any of its Subsidiaries;


 


(u) Liens which arise under Article 4 of the UCC on items in collection
and documents and proceeds related thereto;


 


(v) Liens not otherwise permitted by this Section so long as neither
(i) the aggregate outstanding principal amount of the obligations secured
thereby nor (ii) the


 


83

















 


aggregate fair
market value (determined as of the date such Lien is incurred) of the assets
subject thereto exceeds (as to the Borrower and all Subsidiaries) $15,000,000
at any one time;


 


(w) Liens on assets subject to a Specified Sale Leaseback Transaction
securing Capital Lease Obligations incurred pursuant to such Specified Sale
Leaseback Transaction;


 


(x) Liens (i) on cash advances in favor of the seller of any property
to be acquired in an Investment permitted pursuant to Section 7.8(g) or (y) to
be applied against the purchase price for such Investment, or (ii) consisting
of an agreement to Dispose of any property in a Disposition permitted under
Section 7.5, in each case, 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;


 


(y) ground leases in respect of real property on which facilities owned
or leased by the Borrower or any of its Subsidiaries are located; provided,
however, that the Borrower shall exercise commercially reasonable
efforts to require that such ground leases are mortgageable to secure the
Obligations (or any Indebtedness incurred to refinance the Obligations); and


 


(z) Liens on the real estate and related assets financed pursuant to
the Mortgage Facility securing Indebtedness under the Mortgage Facility
permitted to be incurred pursuant to Section 7.2(v).


 


7.4           Fundamental Changes. Enter
into any merger, consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), or Dispose of all
or substantially all of its property or business, except that:


 


(a) any Subsidiary of the Borrower may be merged or consolidated with
or into the Borrower (provided that the Borrower shall be the continuing
or surviving corporation) or with or into any other Subsidiary (provided
that when a Subsidiary that is not a Subsidiary Guarantor is merging or
consolidating with a Subsidiary Guarantor, the Subsidiary Guarantor shall be
the continuing or surviving corporation);


 


(b) any Subsidiary of the Borrower may Dispose of all or substantially
all of its assets (upon voluntary liquidation or otherwise) (i) to the Borrower
or any other Subsidiary (upon voluntary liquidation or otherwise) (provided
that when a Subsidiary that is a Subsidiary Guarantor is so Disposing of all or
substantially of its assets to another Subsidiary, such other Subsidiary must
be a Subsidiary Guarantor) or (ii) pursuant to a Disposition permitted by
Section 7.5;


 


(c) any Subsidiary of the Borrower may liquidate or dissolve or change
its legal form if the Borrower determines in good faith that such action is in
the best interests of the Borrower and its Subsidiaries and is not
disadvantageous to the Lenders in any material respect;


 


84
















 


(d) the Merger shall be permitted;


 


(e) any Investment expressly permitted by Section 7.8 may be
structured as a merger, consolidation or amalgamation; and


 


(f) Holdings may change its legal form to a corporation if
(i) Holdings determines in good faith that such action is in its best
interest and not disadvantageous to the Lenders in any material respect and
(ii) prior notice of such change is given to the Administrative Agent.


 


7.5           Disposition of Property.
Dispose of any of its property, whether now owned or hereafter acquired, or, in
the case of any Subsidiary, issue or sell any shares of such Subsidiary’s
Capital Stock to any Person, except:


 


(a) the Disposition of obsolete or worn out property or of property no
longer used or useful in the conduct of the Borrower and its Subsidiaries, in
each case in the ordinary course of business;


 


(b) the Disposition of Cash Equivalents and sale of inventory in the
ordinary course of business;


 


(c) Dispositions permitted by clause (i) of Section 7.4(b) and
7.4(c);


 


(d) the sale or issuance of any Subsidiary’s Capital Stock to the
Borrower or any Wholly Owned Subsidiary Guarantor;


 


(e) the Disposition for market value of other property in the aggregate
having a book value not exceeding 15% of the consolidated assets of the
Borrower and its Subsidiaries in the aggregate from and after the Closing Date
(with consolidated assets being determined at the time of any such Disposition
by reference to the most recent consolidated financial statements delivered
pursuant to Section 6.1); provided that not less than 75% of the
total consideration for any such Disposition shall be paid to the Borrower in
cash or within 180 days after the consummation of such Disposition is
reasonably expected to and shall be converted into cash; and provided, further,
that any liabilities that, if not assumed by the transferee with respect to the
applicable Disposition, would have been deducted in calculating the Net Cash
Proceeds from such Disposition but that are assumed by the transferee with respect
to the applicable Disposition and for which the Borrower and all of the
Subsidiaries shall have been validly released by all applicable creditors in
writing, shall be treated as cash consideration;


 


(f) any of the Borrower and its Subsidiaries may transfer assets to the
Borrower or any Subsidiary Guarantor;


 


(g) any of the Borrower and its Subsidiaries shall be permitted to make
Permitted Dispositions; and


 


85

















 


(h) any of the Borrower and its Subsidiaries shall be permitted to sell
or otherwise dispose of property and other assets pursuant to Sale Leaseback
Transactions permitted under Section 7.11.


 


Notwithstanding the foregoing, the Disposition of any Capital Stock of
a Subsidiary (other than as permitted by clause (d) above) shall not be
permitted unless all the Capital Stock of such Subsidiary is Disposed of
pursuant to such Disposition (and any other Investments in such Subsidiary, or
any of its Subsidiaries, are also Disposed of or otherwise repaid in connection
with such Disposition, or are treated as Investments under, and permitted by,
clause (y) of Section 7.8).


 


To the extent the Required Lenders waive the provisions of this
Section with respect to the sale or other disposition of any Collateral,
or any Collateral is sold or disposed of as permitted by this Section, such
Collateral in each case (unless sold or disposed of to a Loan Party) shall be
sold or otherwise disposed of free and clear of the Liens created by the Loan
Documents and the Administrative Agent shall take such actions in accordance
with Section 10.14 as are appropriate in connection therewith.


 


7.6           Restricted Payments. Declare
or pay any dividend (other than dividends payable solely in common stock of the
Person making such dividend) on, or make any payment on account of, or set
apart assets for a sinking or other analogous fund for, the purchase,
redemption, defeasance, retirement or other acquisition of, any Capital Stock
of any Group Member, whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or indirectly, whether in cash
or property or in obligations of any Group Member (collectively, “Restricted
Payments”), except that:


 


(a) any Subsidiary may make Restricted Payments to the Borrower or any
Wholly Owned Subsidiary Guarantor;


 


(b) (i) so long as no Default or Event of Default shall have occurred
and be continuing or would result therefrom, the Borrower may pay dividends to
Holdings to permit Holdings to purchase (and Holdings may purchase) or to pay
dividends to the Parent to permit the Parent to purchase Capital Stock of
Holdings or the Parent from present or former officers or employees of any
Group Member, their estates and their heirs upon the death, disability or termination
of employment of such officer or employee, provided, that the aggregate
amount of payments under this clause (i) after the date hereof (net of any
proceeds received by Holdings and contributed to the Borrower after the date
hereof in connection with resales of any such Capital Stock) shall not exceed
either (x) $6,000,000 in cash in the aggregate during any fiscal year plus (A)
the balance of any such $6,000,000 limit not used in any fiscal year (which may
be used in any subsequent fiscal year), (B) the amount of any equity
contribution made to the Borrower (through Holdings) for the purpose of such
repurchase (and Not Otherwise Applied), and (C) the proceeds of any key-man
life insurance with respect to such employee paid to Holdings, the Borrower or
any of its Subsidiaries; or (y) $30,000,000 in cash on a cumulative basis and
(ii) the Borrower may pay dividends to Holdings to


 


86

















 


permit
Holdings to pay, or to pay dividends to the Parent to permit the Parent to Pay,
Management Fees;


 


(c) subject to the proviso to clause (h) below, the Borrower may
pay dividends to Holdings to provide for the payment by Holdings of, or to
permit Holdings to pay dividends to the Parent to provide for the payment by
the Parent of, customary corporate indemnities owing to directors of the
Parent, Holdings, the Borrower, its Subsidiaries or any of their Affiliates in
the ordinary course of business;


 


(d) Holdings may make Restricted Payments in the form of repurchases of
its Capital Stock deemed to occur upon the non cash exercise of stock options
and warrants;


 


(e) Restricted Payments made on the Closing Date to consummate the
Transactions;


 


(f) Holdings and its Subsidiaries may pay dividends through issuance of
Permitted Capital Stock and may redeem any Capital Stock in exchange for other
Permitted Capital Stock;


 


(g) the Borrower may make Restricted Payments to Holdings to enable it
to pay Closing Costs and to make payments required to be made by it pursuant to
any acquisition agreement pertaining to acquisitions by the Borrower and its
Subsidiaries consummated prior to the Closing Date and Permitted Acquisitions
by the Borrower and its Subsidiaries thereafter;


 


(h) the Borrower may directly or indirectly make distributions to Holdings
(and Holdings may make distributions to the Parent) or make payments on behalf
of Holdings (or the Parent), to the extent necessary to pay the taxes and the
operating and administrative expenses of Holdings (or the Parent) incurred in
the ordinary course of its business including, without limitation, reasonable
directors’ fees and expenses; provided that all dividends or other
distributions made directly or indirectly to, or payments made on behalf of,
the Parent pursuant to this clause (h) and clause (c) above shall not
exceed $5,000,000 in the aggregate;


 


(i) [intentionally omitted]; and


 


(j) in addition to the foregoing Restricted Payments and so long as no
Default shall have occurred and be continuing or would result therefrom, the
Borrower may make additional Restricted Payments to Holdings the proceeds of
which may be utilized by Holdings to make additional Restricted Payments, in an
aggregate amount, not to exceed the sum of (i) $15,000,000, (ii) the aggregate
amount of the Net Cash Proceeds from issuances of Permitted Capital Stock of
Holdings after the Closing Date that have been contributed to the Borrower as
common equity within six months prior to the Restricted Payments being made in
reliance upon such Net Cash Proceeds and Not Otherwise Applied and (iii) if the
Consolidated Leverage Ratio as of the last day of the most recent fiscal
quarter for which financial statements have been delivered pursuant to
Section 6.1 (after giving pro forma effect to such additional Restricted
Payments and any


 


87

















 


Indebtedness
incurred in connection therewith) is 4.75:1 or less, the amount of Cumulative
Excess Cash Flow that is Not Otherwise Applied.


 


7.7           Capital Expenditures. Make or
commit to make any Capital Expenditure, except:


 


(a) Capital
Expenditures of the Borrower and its Subsidiaries during any fiscal year not
exceeding the amount set forth below with respect to such fiscal year:


 




	
  Fiscal Year

  Ending

  	
   

  	
  Capital Expenditure

  Limit

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  September
  30, 2006

  	
   

  	
  $

  	
  25,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  September
  30, 2007

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  September
  30, 2008

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  September 30, 2009 and each fiscal year thereafter

  	
   

  	
  $

  	
  35,000,000

  	
   

  






 


; provided, that (i) up to 100% of any such amount referred
to above, if not so expended in the fiscal year for which it is permitted, may
be carried over for expenditure in the next succeeding fiscal year and
(ii) Capital Expenditures made pursuant to this clause (a) during any
fiscal year shall be deemed made, first, in respect of amounts carried over
from the prior fiscal year pursuant to clause (i) above and, second, in
respect of amounts permitted for such fiscal year as provided above; and


 


(b) Excluded
Capital Expenditures.


 


7.8           Investments. Make any advance,
loan, extension of credit (by way of guaranty or otherwise) or capital
contribution to, or purchase any Capital Stock, bonds, notes, debentures or
other debt securities of, or any assets constituting a business unit of, or
make any other investment in, any Person (all of the foregoing, “Investments”),
except in the case of Holdings and any of its Subsidiaries (other than any
Insurance Subsidiary unless otherwise expressly included in this
Section 7.8 or permitted by Section 7.17):


 


(a) accounts
receivable and other extensions of trade credit by the Borrower and its
Subsidiaries in the ordinary course of business and advances made to Alliance
Human Services in the ordinary course of business;


 


(b)
Investments in Cash Equivalents;


 


(c) Guarantee
Obligations permitted by Section 7.2;


 


88

















 


(d)
intercompany Investments by any Group Member in the Borrower or any Person
that, prior to such investment, is a Subsidiary Guarantor and by any Subsidiary
that is not a Guarantor in any other Subsidiary that is not a Guarantor; provided,
however, that any such Investments in any Insurance Subsidiary must be
made in compliance with clause (u) below;


 


(e) existing
Investments as listed on Schedule 7.8(g);


 


(f) Capital
Expenditures to the extent permitted under this Agreement;


 


(g) Permitted
Acquisitions;


 


(h) the
formation of and Investments in new Subsidiaries of the Borrower that are
Subsidiary Guarantors, provided that (i) such Subsidiary is owned by the
Borrower or a Subsidiary Guarantor, (ii) the Borrower shall have notified the
Administrative Agent at least ten Business Days prior to the formation or
acquisition of any such Subsidiary, (iii) such Subsidiary shall be engaged in a
permitted business of the Borrower or its Subsidiaries hereunder and (iv) as of
the date of the formation or acquisition of any such Subsidiary and the
Investment therein, and after giving effect thereto, (A) such new Subsidiary
and its parent shall have entered into any and all agreements (in form and
substance reasonably satisfactory to the Administrative Agent) necessary to
comply with Section 6.9, and the Administrative Agent shall be satisfied
that all Liens required to be granted in the assets and ownership interests of
such new Subsidiary under such Section 6.9 have been granted or pledged
and have been perfected and are subject only to permitted Liens hereunder, and
(B) no Event of Default shall have occurred and be continuing;


 


(i) the
Borrower and its Subsidiaries may receive and own Capital Stock or other
investments acquired as non-cash consideration pursuant to dispositions
permitted under Section 7.5;


 


(j) the
Borrower and its Subsidiaries may make pledges and deposits permitted under
Section 7.3;


 


(k) the
Borrower and its Subsidiaries may make Investments and guarantees expressly
permitted under Sections 7.2, 7.4, 7.5 and 7.6 (subject to clause (t) or (u)
below (as applicable), in the case of Investments by the Borrower and
Subsidiary Guarantors in, or guarantees by the Borrower and Subsidiary
Guarantors of obligations of, Subsidiaries that are not Guarantors);


 


(l) the
Borrower and its Subsidiaries may make an Investment that could otherwise be
made as a Restricted Payment to the extent the related advance or investment
would be permitted under clause (j) of Section 7.6 (it being understood
that any such Investment shall be deemed to be and shall count as a Restricted
Payment for purposes of clause (j) of Section 7.6);


 


(m) the
Borrower and its Subsidiaries may hold Investments to the extent such
Investments reflect an increase in the value of Investments and would otherwise
exceed the limitations herein;


 


89

















 


(n)
Investments consisting of endorsements for collection or deposit in the
ordinary course of business;


 


(o) Investments
in deposit accounts opened and maintained in the ordinary course of business;


 


(p) Holdings
and the Borrower may acquire and hold promissory notes of employees of Holdings
or its Subsidiaries in connection with such Person’s purchase of Permitted Capital
Stock of Holdings;


 


(q)
Investments received in connection with any bankruptcy or reorganization of, or
any good faith settlement of delinquent accounts and disputes with, any
customer or supplier arising in the ordinary course of business;


 


(r) the
Borrower may enter into Swap Agreements that are not speculative in nature to
the extent permitted hereunder;


 


(s) any
Investments consisting of deferred compensation owed to employees of Holdings,
the Borrower and their respective Subsidiaries;


 


(t) Investments
by the Borrower and the Subsidiaries in Subsidiaries (other than Insurance
Subsidiaries) that are not Guarantors, which, together with Indebtedness of
Subsidiaries that are not Guarantors permitted to be outstanding pursuant to
Section 7.2(h), does not exceed $10,000,000 at any time outstanding;


 


(u)
Investments by the Borrower or any Wholly-Owned Subsidiary in any Insurance
Subsidiary (including in respect of the formation thereof) solely to the extent
permitted by Section 7.18(b);


 


(v)
Investments consisting of loans and advances to employees of any Group Member
(including for travel, entertainment and relocation expenses) not exceeding
$2,000,000 in the aggregate at any time outstanding; and


 


(w)
Investments held by a Subsidiary acquired pursuant to a Permitted Acquisition,
which Investments existed at the time of such Permitted Acquisition and were
not made in contemplation of or in connection with such Permitted Acquisition; provided,
however, that the aggregate amount of all such Investments (determined,
with respect to each such Investment, based on the fair market value thereof as
of the date of the relevant Permitted Acquisition) shall not exceed
$10,000,000;


 


(x)
Investments made in connection with the funding of contributions under any
non-qualified retirement plan or similar employee compensation plan in an
amount not to exceed the amount of compensation expense recognized by the
Borrower and its Subsidiaries in connection with such plans; and


 


(y) so long as
immediately after giving effect to any such Investment, no Default has occurred
and is continuing and the Borrower and its Subsidiaries will be in compliance
with


 


90

















 


the covenants set forth in Section 7.1 as of
the last day of the most recent fiscal quarter for which financial statements
have been delivered pursuant to Section 6.1 (after giving pro forma effect to
such Investment and any Indebtedness incurred in connection therewith), other
Investments that do not exceed, in the aggregate, $10,000,000, plus any amount
that could otherwise be made as a Restricted Payment permitted at the time
under clause (j) of Section 7.6 (it being understood that any amounts
so applied shall be deemed to be and count as Restricted Payments for purposes
of clause (j) of Section 7.6).


 


The amount of any Investment shall be the initial amount of such
Investment and any addition thereto, as reduced by any repayment of principal
(in the case of an Investment constituting Indebtedness) or any distribution
constituting a return of capital (in the case of any other Investment).


 


7.9           Optional Prepayments and
Modifications of Certain Debt Instruments and Material Agreements.
(a) Make or offer to make any optional or voluntary payment, prepayment,
repurchase or redemption of or otherwise optionally or voluntarily defease or
segregate funds with respect to the Senior Subordinated Notes or the Existing
Notes, any Permitted Acquisition Debt, any Permitted Additional Subordinated
Debt or any Permitted Refinancing Indebtedness incurred in respect of any of
the foregoing; provided that (i) the Borrower may pay, prepay,
repurchase or redeem any of the foregoing Indebtedness, (A) pursuant to a
refinancing thereof with Permitted Refinancing Indebtedness (to the extent
permitted by Section 7.2), (B) with cash amounts that could otherwise be
made as a Restricted Payment permitted at the time under clause (j) of
Section 7.6 (it being understood that any amounts so applied shall be
deemed to be and count as Restricted Payments for purposes of clause (j)
of Section 7.6) or (C) to the extent that the consideration therefor
consists of Permitted Capital Stock of Holdings or Capital Stock of any direct
or indirect parent of Holdings, and (ii) the foregoing shall not be construed
to prohibit the Debt Discharge; (b) amend, modify, waive or otherwise
change, or consent or agree to any material amendment, modification, waiver or
other change to, any of the terms of any Indebtedness described in clause (a)
above that is materially adverse to the interests of the Lenders (determined by
comparison to such terms in effect on the Closing Date after giving effect to
the Transactions, in the case of those then in effect, or otherwise to such
terms in effect on the date of creation thereof, and disregarding any default
or potential default in respect thereof); or (c) designate any
Indebtedness (other than obligations of the Loan Parties pursuant to the Loan
Documents) as “Designated Senior Indebtedness” (or any other defined term
having a similar purpose) for the purposes of any Indebtedness described in
clause (a) above that is subordinated to the Obligations.


 


7.10         Transactions with Affiliates.
Enter into any transaction, including any purchase, sale, lease or exchange of
property, the rendering of any service or the payment of any management,
advisory or similar fees, with any Affiliate (other than Holdings, the Borrower
or any Subsidiary Guarantor) unless such transaction is (a) otherwise
permitted under this Agreement and (b) upon fair and reasonable terms no
less favorable to the relevant Group Member than it would obtain in a
comparable arm’s length transaction with a Person that is not an Affiliate.
Notwithstanding the foregoing, (i) Holdings and its Subsidiaries may pay
to the Sponsor fees pursuant to and in accordance with the Management Agreement
as in effect


 


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on the Closing Date (and not
prior to the times payable under the Management Agreement as in effect on the
Closing Date) (the “Management Fees”) and expenses and indemnities in
connection therewith (which fees, but not expenses or indemnities, may only be
paid when no Event of Default has occurred and is continuing), (ii) the
Borrower and its Subsidiaries may pay customary fees to, and the out-of-pocket
expenses of, its board of directors, employees and officers and may provide
customary corporate indemnities for the benefit of members of its board of
directors, employees and officers, (iii) the payment of Closing Costs, (iv)
Restricted Payments permitted under Section 7.6, and (v) transactions pursuant
to permitted agreements in existence on the Closing Date and set forth on
Schedule 7.10 or any amendment thereto to the extent such an amendment is not
adverse to the Lenders in any material respect.


 


7.11         Sales and Leasebacks. Enter into
any arrangement with any Person providing for the leasing by any Group Member
of any property or containing an obligation of such Group Member to repurchase
such property from such Person, which property has been or is to be sold or transferred by such Group Member to such Person (or
any Affiliate thereof) or to any other Person (or any Affiliate thereof) to
whom funds have been or are to be advanced by such Person (or any Affiliate
thereof) on the security of such property or rental obligations of such Group
Member (any such transaction a “Sale Leaseback Transaction”) except any
Sale Leaseback Transaction (a) in respect of property consisting of capital
assets so sold pursuant to such Sale Leaseback Transaction solely for cash
consideration in an amount not less than the cost thereof within 180 days after
the date that such property was initially acquired by a Group Member or (b) in
respect of any other property consisting of capital assets so sold pursuant to
such Sale Leaseback Transaction for market value and solely for cash
consideration and in respect of which the Borrower shall comply with Section
2.11(b).


 


7.12         Swap Agreements. Enter into any
Swap Agreement, except (a) Swap Agreements entered into to hedge or
mitigate risks to which the Borrower or any Subsidiary has actual exposure
(other than those in respect of Capital Stock or, except as provided in clause
(b) below, the Senior Subordinated Notes) and (b) Swap Agreements
entered into in order to effectively cap, collar or exchange interest rates
(from fixed to floating rates, from one floating rate to another floating rate
or otherwise) with respect to any interest-bearing liability or investment of
the Borrower or any Subsidiary.


 


7.13         Changes in Fiscal Periods.
Permit the fiscal year of the Borrower or Holdings to end on a day other than
September 30 or change the Borrower’s or Holdings’ method of determining fiscal
quarters; provided, however, that the Borrower may, upon written
notice to the Administrative Agent, change its fiscal year to any other fiscal
year reasonably acceptable to the Administrative Agent, provided that as a
condition to any such change the Borrower and the Administrative Agent shall,
and are hereby authorized by the Lenders to, make any adjustments to this
Agreement that are necessary or appropriate to reflect such change in fiscal
year.


 


7.14         Negative Pledge Clauses. Enter
into or suffer to exist or become effective any agreement that prohibits or
limits the ability of any Group Member to create, incur, assume or suffer to
exist any Lien upon any of its property or revenues, whether now owned or
hereafter acquired, to secure its obligations under the Loan Documents to which
it is a party other than (a) this Agreement and the other Loan Documents,
the Senior Subordinated Note Indenture and


 


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the Mortgage Facility,
(b) any agreements governing any Indebtedness secured by Liens permitted
hereby (in which case, any prohibition or limitation shall only be effective
against the assets subject to such Lien) and (c) agreements which (i) are
binding on a Subsidiary at the time such Subsidiary first becomes a Subsidiary,
so long as such agreements were not entered into in contemplation of such
Person becoming a Subsidiary, (ii) are customary provisions in joint venture
agreements and other similar agreements applicable to joint ventures permitted
under Section 7.8 and applicable solely to such joint venture entered into
in the ordinary course of business, (iii) are customary restrictions on leases,
subleases, licenses or asset sale agreements otherwise permitted hereby so long
as such restrictions relate to the assets subject thereto, (iv) are
customary provisions restricting subletting or assignment of any lease
governing a leasehold interest of the Borrower or any Subsidiary, (v) are
customary provisions restricting assignment of any agreement entered into in
the ordinary course of business, and (vi) are restrictions on cash or other
deposits imposed by customers under contracts entered into in the ordinary
course of business.


 


7.15         Clauses Restricting Subsidiary
Distributions. Enter into or suffer to exist or become effective any
consensual encumbrance or restriction on the ability of any Subsidiary of the
Borrower to (a) make Restricted Payments in respect of any Capital Stock
of such Subsidiary held by, or pay any Indebtedness owed to, the Borrower or
any other Subsidiary of the Borrower, (b) make loans or advances to, or
other Investments in, the Borrower or any other Subsidiary of the Borrower or
(c) transfer any of its assets to the Borrower or any other Subsidiary of
the Borrower, except for (x) agreements which (i) are binding on a
Subsidiary at the time such Subsidiary first becomes a Subsidiary, so long as
such agreements were not entered into in contemplation of such Person becoming
a Subsidiary, (ii) are customary provisions in joint venture agreements and
other similar agreements applicable to joint ventures permitted under Section 7.8
and applicable solely to such joint venture entered into in the ordinary course
of business, (iii) are customary restrictions on leases, subleases, licenses or
asset sale agreements otherwise permitted hereby so long as such restrictions
relate to the assets subject thereto, (iv) are customary provisions restricting
subletting or assignment of any lease governing a leasehold interest of the
Borrower or any Subsidiary, (v) are customary provisions restricting assignment
of any agreement entered into in the ordinary course of business, and (vi) are
restrictions on cash or other deposits imposed by customers under contracts
entered into in the ordinary course of business) and (y) such encumbrances
or restrictions existing under or by reason of (i) any restrictions
existing under the Loan Documents, or the Senior Subordinated Notes Indenture
or the Mortgage Facility or (ii) any restrictions with respect to a
Subsidiary imposed pursuant to an agreement that has been entered into in
connection with the Disposition of all or substantially all of the Capital
Stock or assets of such Subsidiary.


 


7.16         Lines of Business. Enter into
any business, either directly or through any Subsidiary, except for those
businesses in which the Borrower and its Subsidiaries are engaged on the date
of this Agreement or that are reasonably related or ancillary thereto, it being
understood and acknowledged that any Insurance Subsidiary shall be the only
entity conducting insurance business (and business reasonably related thereto)
and that any Insurance Subsidiary shall be engaged for the underwriting of
insurance policies for Holdings, the Borrower and its Subsidiaries and each of
such Person’s respective employees, officers or directors. As to Holdings,
enter into any business except for holding all of the Capital Stock of the
Borrower and


 


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activities incidental thereto
and other transactions specifically permitted hereunder. In connection
therewith, Holdings shall have no liabilities other than its liabilities under
the Loan Documents and other transactions specifically permitted hereunder, tax
liabilities incurred in the ordinary course of business, and administrative
expenses incurred in the ordinary course of business.


 


7.17         Insurance Subsidiary Investments.
Permit any Insurance Subsidiary to make any Investment in any Person except:


 


(a)
Investments in Cash Equivalents;


 


(b)
Investments in deposit accounts opened and maintained in the ordinary course of
business; and


 


(c)
Investments in accounts receivable in the ordinary course of business; and


 


(d)
Investments in notes or bonds (including interest only notes or bonds) in an
aggregate amount (for all Insurance Subsidiaries combined) up to $5,000,000
that are rated at least BBB- by S&P or Baa3 by Moody’s at the time of
purchase; provided that an aggregate amount up to $3,000,000 of such
Investments shall have a rating of at least A by S&P or A2 by Moody’s at
the time of purchase.


 


7.18         Insurance Subsidiary.
(a) Permit any Insurance Subsidiary to enter into any (or renew, extend or
materially modify any existing) reinsurance or stop-loss insurance arrangements
except in the ordinary course of business with reinsurers rated as least “A-”
by A.M. Best & Co. or reinsurers whose obligations to the Insurance
Subsidiary are secured by letters of credit or other collateral reasonably
acceptable to the board of directors of such Insurance Subsidiary or
(b) permit any Investment in any Insurance Subsidiary, except for
Investments in an aggregate amount (for all Insurance Subsidiaries combined)
not in excess of $10,000,000; provided that such amount may be increased
by non-material amounts in the discretion and with the approval of the
Administrative Agent (for the avoidance of doubt, such Investments shall
exclude any expenses and premiums paid to any Insurance Subsidiary by any Group
Member in the ordinary course of such Group Member’s business).


 


SECTION 8. EVENTS OF DEFAULT


 


If any of the following events shall occur and be continuing:


 


(a) the Borrower shall fail to pay any principal of any Loan or
Reimbursement Obligation when due in accordance with the terms hereof; or the
Borrower shall fail to pay any interest on any Loan or Reimbursement
Obligation, or any other amount payable hereunder or under any other Loan
Document, within three Business Days after any such interest or other amount
becomes due in accordance with the terms hereof; or


 


(b) any representation or warranty made or deemed made by any Loan
Party herein or in any other Loan Document or that is contained in any
certificate, document or financial or other statement furnished by it at any
time under or in connection with this


 


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Agreement or
any such other Loan Document shall prove to have been inaccurate in any
materially adverse respect on or as of the date made or deemed made; or


 


(c) any Loan Party shall default in the observance or performance of
any agreement contained in clause (i) or (ii) of Section 6.4(a)
(with respect to Holdings and the Borrower only), Section 6.7(a) or
Section 7 of this Agreement or Sections 5.5 and 5.7(b) of the Guarantee and Security Agreement; or


 


(d) any Loan Party shall default in the observance or performance of
any other agreement contained in this Agreement or any other Loan Document
(other than as provided in paragraphs (a) through (c) of this Section), and
such default shall continue unremedied for a period of 30 days after the
earlier of knowledge thereof by a Responsible Officer of a Loan Party or notice
to the Borrower from the Administrative Agent or the Required Lenders; or


 


(e) any Group Member shall (i) default in making any payment of
any principal of any Indebtedness (including any Guarantee Obligation, but
excluding the Obligations) on the scheduled or original due date with respect
thereto; or (ii) default in making any payment of any interest on any such
Indebtedness (excluding the Obligations), beyond the period of grace, if any,
provided in the instrument or agreement under which such Indebtedness was
created and such default has not been waived; or (iii) default in the
observance or performance of any other agreement or condition relating to any
such Indebtedness or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or condition
exist, the effect of which default or other event or condition is to cause, or
to permit the holder or beneficiary of such Indebtedness (or a trustee or agent
on behalf of such holder or beneficiary) to cause, with the giving of notice if
required, such Indebtedness to become due prior to its stated maturity or (in
the case of any such Indebtedness constituting a Guarantee Obligation) to
become payable and such default has not been waived; provided, that a
default, event or condition described in clause (i), (ii) or (iii) of this
paragraph (e) shall not at any time constitute an Event of Default unless, at
such time, one or more defaults, events or conditions of the type described in
clauses (i), (ii) and (iii) of this paragraph (e) shall have occurred and be
continuing with respect to Indebtedness the outstanding principal amount of
which exceeds in the aggregate $15,000,000; or


 


(f) (i) any Group Member shall commence any case, proceeding or other
action (A) under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition or
other relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other similar official for it or
for all or any substantial part of its assets, or any Group Member shall make a
general assignment for the benefit of its creditors; or (ii) there shall be
commenced against any Group Member any case, proceeding or other action of a
nature referred to in clause (i) above that (A) results in the entry of an
order for relief or any such adjudication or appointment or (B)


 


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remains
undismissed or undischarged for a period of 60 days; or (iii) there shall be
commenced against any Group Member any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar process
against all or any substantial part of its assets that results in the entry of
an order for any such relief that shall not have been vacated, discharged, or
stayed or bonded pending appeal within 60 days from the entry thereof; or (iv)
any Group Member shall take any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth in
clause (i), (ii), or (iii) above; or (v) any Group Member shall generally not,
or shall be unable to, or shall admit in writing its inability to, pay its
debts as they become due; or


 


(g) (i) any Person shall engage in any non-exempt “prohibited
transaction” (as defined in Section 406 of ERISA or Section 4975 of
the Code) involving any Plan, (ii) any “accumulated funding deficiency” (as
defined in Section 302 of ERISA), whether or not waived, shall exist with
respect to any Plan or any Lien in favor of the PBGC or a Plan shall arise on
the assets of the Borrower or any Commonly Controlled Entity, (iii) a
Reportable Event shall occur with respect to, or proceedings shall commence to
have a trustee appointed, or a trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the reasonable opinion of the
Required Lenders, likely to result in the termination of such Plan for purposes
of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, (v) the Borrower or any Commonly Controlled
Entity shall incur any liability in connection with a withdrawal from, or the
Insolvency or Reorganization of, a Multiemployer Plan or (vi) any other similar
event or condition shall occur or exist with respect to a Plan; and in each
case in clauses (i) through (vi) above, such event or condition, together with
all other such events or conditions, if any, would, in the reasonable opinion
of the Required Lenders, reasonably be expected to have a Material Adverse
Effect; or


 


(h) one or more judgments or decrees shall be entered against any Group
Member involving in the aggregate a liability (not paid or fully covered by
insurance as to which the relevant insurance company has acknowledged coverage)
of $15,000,000 or more, and all such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal within 45 days from the
entry thereof; or


 


(i) any of the Security Documents shall cease, for any reason, to be in
full force and effect, or any Loan Party or any Affiliate of any Loan Party
shall so assert, or any Lien created by any of the Security Documents shall cease
to be enforceable and of the same effect and priority purported to be created
thereby; or


 


(j) the guarantee contained in Section 2 of the Guarantee and
Security Agreement shall cease, for any reason, to be in full force and effect
or any Loan Party or any Affiliate of any Loan Party shall so assert; or


 


(k) a Change of Control or a Specified Change of Control shall occur;
or


 


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(l) the Senior Subordinated Notes, any Permitted Acquisition Debt that
is required to be subordinated to the Obligations or any Permitted Additional
Subordinated Debt (or any Permitted Refinancing Indebtedness in respect of any
of the foregoing) or the guarantees thereof shall cease, for any reason, to be
validly subordinated to the Obligations or the obligations of the Subsidiary
Guarantors under the Guarantee and Security Agreement, as the case may be, as
provided in the applicable documentation in respect of such Indebtedness or any
Loan Party, any Affiliate of any Loan Party, the trustee in respect of any such
Indebtedness or the holders of at least 25% in aggregate principal amount of
any such Indebtedness shall so assert;


 


(m) any Governmental Authority shall commence a hearing on the renewal
of any material license, consent, authorization, permit, certificate, franchise
held by the Borrower, any of its Subsidiaries, or professional employee,
officer, director or contractor of any the Borrower or any of its Subsidiaries
if there is a significant probability that the result thereof will be the
termination, revocation, suspension or material adverse amendment of any such
license, consent, authorization, permit, certificate, franchise that would have
a Material Adverse Effect;


 


(n) any Governmental Authority shall commence a formal proceeding
seeking the termination, suspension or revocation of any license, consent,
authorization, permit, certificate, franchise held by the Borrower, any of its
Subsidiaries, or professional employee, officer, director or contractor of the
Borrower or any Subsidiary of the Borrower if the result thereof is reasonably
likely to be the termination, suspension or revocation of any license, consent,
authorization, permit, certificate, franchise that would have a Material
Adverse Effect; or


 


(o) or any Insurance Subsidiary shall become subject to any
conservation, rehabilitation, liquidation order, directive or mandate issued by
any Governmental Authority which could reasonably be expected to have a
Material Adverse Effect;


 


then, and in any such event, (A) if such event is an Event of Default
specified in clause (i) or (ii) of paragraph (f) above with respect to the
Borrower, automatically the Commitments shall immediately terminate and the
Loans (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents (including all amounts of Reimbursement
Obligations, whether or not the beneficiaries of the then outstanding Letters
of Credit shall have presented the documents required thereunder) shall
immediately become due and payable, and (B) if such event is any other Event of
Default, either or both of the following actions may be taken: (i) with the
consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
the Borrower declare the Commitments to be terminated forthwith, whereupon the
Commitments shall immediately terminate; and (ii) with the consent of the
Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice to the Borrower,
declare the Loans (with accrued interest thereon) and all other amounts owing
under this Agreement and the other Loan Documents (including all amounts of
Reimbursement Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) to be due and payable


 


97

















 


forthwith, whereupon the same shall immediately become due and payable.
With respect to all Letters of Credit with respect to which presentment for
honor shall not have occurred at the time of an acceleration pursuant to this
paragraph, the Borrower shall at such time deposit in a cash collateral account
opened by the Administrative Agent an amount equal to the aggregate then
undrawn and unexpired amount of such Letters of Credit. Amounts held in such
cash collateral account shall be applied by the Administrative Agent to the
payment of Reimbursement Obligations in respect of drafts drawn under such
Letters of Credit, and the unused portion thereof after all such Letters of
Credit shall have expired or been fully drawn upon, if any, shall be applied to
repay other Obligations. After all such Letters of Credit shall have expired or
been fully drawn upon, all Reimbursement Obligations shall have been satisfied
and all other Obligations shall have been paid in full, the balance, if any, in
such cash collateral account shall be returned to the Borrower (or such other
Person as may be lawfully entitled thereto). Except as expressly provided above
in this Section, presentment, demand, protest and all other notices of any kind
are hereby expressly waived by the Borrower.


 


SECTION 9. THE AGENTS


 


9.1           Appointment. Each Lender
hereby irrevocably designates and appoints the Administrative Agent as the
agent of such Lender under this Agreement and the other Loan Documents, and
each such Lender irrevocably authorizes the Administrative Agent, in such
capacity, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to the Administrative Agent by the terms
of this Agreement and the other Loan Documents, together with such other powers
as are reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere in this Agreement, the Administrative Agent shall not have
any duties or responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.


 


9.2           Delegation of Duties. The
Administrative Agent may execute any of its duties under this Agreement and the
other Loan Documents by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties.
The Administrative Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys in-fact selected by it with reasonable
care.


 


9.3           Exculpatory Provisions.
Neither any Agent nor any of their respective officers, directors, employees,
agents, attorneys-in-fact or affiliates shall be (i) liable for any action
lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement or any other Loan Document (except to the extent
that any of the foregoing are found by a final and nonappealable decision of a
court of competent jurisdiction to have resulted from its or such Person’s own
gross negligence or willful misconduct) or (ii) responsible in any manner to
any of the Lenders for any recitals, statements, representations or warranties
made by any Loan Party or any officer thereof contained in this Agreement or
any other Loan Document or in any certificate, report, statement or other
document referred to or provided for in, or received by the Agents under or in
connection with, this Agreement or any other Loan Document


 


98

















 


or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document or for any failure of any Loan Party a party thereto to
perform its obligations hereunder or thereunder. The Agents shall not be under
any obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of any Loan Party.


 


9.4           Reliance by Administrative Agent.
The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any instrument, writing, resolution, notice,
consent, certificate, affidavit, letter, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including counsel to
Holdings or the Borrower), independent accountants and other experts selected
by the Administrative Agent. The Administrative Agent may deem and treat the
payee of any Note as the owner thereof for all purposes unless a written notice
of assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Required Lenders (or, if so specified by this Agreement, all Lenders) as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense that may be incurred by it by
reason of taking or continuing to take any such action. The Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement and the other Loan Documents in accordance with a
request of the Required Lenders (or, if so specified by this Agreement, all
Lenders), and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future holders of the
Loans.


 


9.5           Notice of Default. The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default unless the Administrative Agent
has received notice from a Lender, Holdings or the Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a “notice of default”. In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give notice thereof to
the Lenders. The Administrative Agent shall take such action with respect to
such Default or Event of Default as shall be reasonably directed by the
Required Lenders (or, if so specified by this Agreement, all Lenders); provided
that unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default
or Event of Default as it shall deem advisable in the best interests of the
Lenders.


 


9.6           Non-Reliance on Agents and Other
Lenders. Each Lender expressly acknowledges that neither the Agents nor any
of their respective officers, directors, employees, agents, attorneys-in-fact
or affiliates have made any representations or warranties to it and that no act
by any Agent hereafter taken, including any review of the affairs of a Loan
Party or any affiliate of a Loan Party, shall be deemed to constitute any
representation or warranty by any Agent to any Lender. Each Lender represents
to the Agents that it has, independently and


 


99

















 


without reliance upon any Agent
or any other Lender, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their affiliates and made its own
decision to extend credit hereunder and enter into this Agreement. Each Lender
also represents 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 analysis,
appraisals and decisions in taking or not taking action under this Agreement
and the other Loan Documents, and to make such investigation as it deems
necessary to inform itself as to the business, operations, property, financial
and other condition and creditworthiness of the Loan Parties and their
affiliates. Except for notices, reports and other documents expressly required
to be furnished to the Lenders by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business,
operations, property, condition (financial or otherwise), prospects or
creditworthiness of any Loan Party or any affiliate of a Loan Party that may
come into the possession of the Administrative Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates.


 


9.7           Indemnification. The Lenders
agree to indemnify each Agent in its capacity as such (to the extent not
reimbursed by Holdings or the Borrower and without limiting the obligation of
Holdings or the Borrower to do so), ratably according to their respective
Aggregate Exposure Percentages in effect on the date on which indemnification
is sought under this Section (or, if indemnification is sought after the
date upon which the Commitments shall have terminated and the Loans shall have
been paid in full, ratably in accordance with such Aggregate Exposure
Percentages immediately prior to such date), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever that may at any
time (whether before or after the payment of the Loans) be imposed on, incurred
by or asserted against such Agent in any way relating to or arising out of, the
Commitments, this Agreement, any of the other Loan Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by such Agent
under or in connection with any of the foregoing; provided that no Lender shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements that are found by a final and nonappealable decision of a court
of competent jurisdiction to have resulted from such Agent’s gross negligence,
bad faith or willful misconduct. The agreements in this Section shall survive
the payment of the Loans and all other amounts payable hereunder.


 


9.8           Agent in Its Individual Capacity.
Each Agent and its affiliates may make loans to, accept deposits from and
generally engage in any kind of business with any Loan Party as though such
Agent were not an Agent. With respect to its Loans made or renewed by it and
with respect to any Letter of Credit issued or participated in by it, each
Agent shall have the same rights and powers under this Agreement and the other
Loan Documents as any Lender and may exercise the same as though it were not an
Agent, and the terms “Lender” and “Lenders” shall include each Agent in its
individual capacity.


 


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9.9           Successor Administrative Agent.
The Administrative Agent may resign as Administrative Agent upon 30 days’
notice to the Lenders and the Borrower. If the Administrative Agent shall
resign as Administrative Agent under this Agreement and the other Loan
Documents, then the Required Lenders shall appoint from among the Lenders a
successor agent for the Lenders, which successor agent shall (unless an Event
of Default under Section 8(a) or Section 8(f) with respect to the
Borrower shall have occurred and be continuing) be subject to approval by the
Borrower (which approval shall not be unreasonably withheld or delayed),
whereupon such successor agent shall succeed to the rights, powers and duties
of the Administrative Agent, and the term “Administrative Agent” shall mean
such successor agent effective upon such appointment and approval, and the
former Administrative Agent’s rights, powers and duties as Administrative Agent
shall be terminated, without any other or further act or deed on the part of
such former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. If no successor agent has accepted appointment as
Administrative Agent by the date that is 30 days following a retiring
Administrative Agent’s notice of resignation, the retiring Administrative
Agent’s resignation shall nevertheless thereupon become effective, and the
Lenders shall assume and perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders and Borrower, as
applicable, appoint a successor agent as provided for above. After any retiring
Administrative Agent’s resignation as Administrative Agent, the provisions of
this Section 9 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under this Agreement
and the other Loan Documents. Notwithstanding the foregoing, the retiring
Administrative Agent shall continue to hold the Collateral created by the Loan
Documents for the benefit of the Lenders until the successor Administrative
Agent has been effectively appointed pursuant to this paragraph.
Notwithstanding anything to the contrary contained herein, if at any time
JPMorgan Chase Bank, N.A., resigns as Administrative Agent, JPMorgan Chase
Bank, N.A., may, upon 90 days’ notice to the Borrower resign as an Issuing
Lender. In the event of any such resignation as Issuing Lender, the Borrower
shall be entitled to appoint from among the Lenders a successor Issuing Lender
for Institutional L/Cs hereunder; provided, however, that no failure by
the Borrower to appoint any such successor shall affect the resignation of
JPMorgan Chase Bank, N.A., as Issuing Lender. If JPMorgan Chase Bank, N.A.,
resigns as an Issuing Lender, it shall retain all the rights and obligations of
an Issuing Lender hereunder with respect to all Letters of Credit outstanding
as of the effective date of its resignation as Issuing Lender and all
Reimbursement Obligations with respect thereto (including the right to require
the Lenders to fund risk participations in respect of any Letter of Credit
pursuant to Section 3.4).


 


9.10         Joint Lead Arrangers, Joint
Bookrunners, Co-Documentation Agents and Syndication Agent. Neither any of
the Joint Lead Arrangers, Joint Bookrunners, the Co-Documentation Agents nor
the Syndication Agent shall have any duties or responsibilities hereunder in
its capacity as such.


 


SECTION 10. MISCELLANEOUS


 


10.1         Amendments and Waivers. Neither
this Agreement, any other Loan Document, nor any terms hereof or thereof may be
amended, supplemented or modified except in accordance with the provisions of
this Section 10.1 or Sections 7.13 or 2.25. The Required Lenders and each
Loan Party party to the relevant Loan Document may, or, with the written


 


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consent of the Required Lenders,
the Administrative Agent and each Loan Party party to the relevant Loan
Document may, from time to time, (a) enter into written amendments, supplements
or modifications hereto and to the other Loan Documents for the purpose of
adding any provisions to this Agreement or the other Loan Documents or changing
in any manner the rights of the Lenders or of the Loan Parties hereunder or
thereunder or (b) waive, on such terms and conditions as the Required Lenders
or the Administrative Agent, as the case may be, may specify in such
instrument, any of the requirements of this Agreement or the other Loan
Documents or any Default or Event of Default and its consequences; provided,
however, that no such waiver and no such amendment, supplement or
modification shall (i) forgive the principal amount or extend the final
scheduled date of maturity of any Loan, extend the scheduled date of any
amortization payment (but not prepayment) in respect of any Tranche B Term
Loan, extend the date on which the Credit-Linked Deposits are required to be
returned to the Institutional L/C Lenders, reduce the stated rate of any
interest or fee payable hereunder (except (x) in connection with the waiver of
applicability of any post-default increase in interest rates (which waiver shall
be effective with the consent of the Majority Facility Lenders of each
adversely affected Facility) and (y) that any amendment or modification of
defined terms used in the financial covenants in this Agreement shall not
constitute a reduction in the rate of interest or fees for purposes of this
clause (i)) or extend the scheduled date of any payment thereof, or increase
the amount or extend the expiration date of any Lender’s Revolving Commitment,
in each case without the written consent of each Lender (it being understood
that waivers or modifications of conditions precedent, covenants, Defaults or
Events of Default or of any mandatory reductions of Commitments shall not
constitute an increase of Commitment of any Lender and that an increase in the
available portion of any Commitment of any Lender shall not constitute an
increase in the Commitment of any Lender) directly affected thereby; (ii)
eliminate or reduce the voting rights of any Lender under this
Section 10.1 without the written consent of such Lender; (iii) reduce any
percentage specified in the definition of Required Lenders, consent to the
assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement and the other Loan Documents, release all or substantially
all of the Collateral or release all or substantially all of the Loan Parties
(or Loan Parties owning all or substantially all of the Collateral) from their
obligations under the Guarantee and Security Agreement, in each case without
the written consent of all Lenders; (iv) amend, modify or waive any
provision of Section 2.17 without the written consent of the Majority
Facility Lenders in respect of each Facility adversely affected thereby; (v)
reduce the percentage specified in the definition of Majority Facility Lenders
with respect to any Facility without the written consent of all Lenders under
such Facility; (vi) amend, modify or waive any provision of Section 9
without the written consent of the Administrative Agent; (vii) amend, modify or
waive any provision of Section 2.6 or 2.7 without the written consent of
the Swingline Lender; or (viii) amend, modify or waive any provision of
Section 3 without the written consent of each Issuing Lender affected
thereby. Any such waiver and any such amendment, supplement or modification
shall apply equally to each of the Lenders and shall be binding upon the Loan
Parties, the Lenders, the Administrative Agent and all future holders of the
Loans. In the case of any waiver, the Loan Parties, the Lenders and the Administrative
Agent shall be restored to their former position and rights hereunder and under
the other Loan Documents, and any Default or Event of Default waived shall be
deemed to be cured and not continuing; but no such waiver shall extend to any
subsequent or other Default or Event of Default, or impair any right consequent
thereon.


 


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Notwithstanding the foregoing, this Agreement may be amended (or
amended and restated) with the written consent of the then Required Lenders,
the Administrative Agent and the Borrower (a) to add one or more
additional credit facilities to this Agreement and to permit the extensions of
credit from time to time outstanding thereunder and the accrued interest and
fees in respect thereof to share ratably in the benefits of this Agreement and
the other Loan Documents with the extensions of credit under the Facilities and
the accrued interest and fees in respect thereof and (b) to include
appropriately the Lenders holding such credit facilities in any determination
of the Required Lenders and Majority Facility Lenders.


 


In addition, notwithstanding the foregoing, this Agreement may be
amended with the written consent of the Administrative Agent, the Borrower and
the Lenders providing the relevant Replacement Tranche B Term Loans (as defined
below) to permit the refinancing, replacement or modification of all
outstanding Tranche B Term Loans (“Refinanced Tranche B Term Loans”)
with a replacement “B” term loan tranche hereunder (“Replacement Tranche B
Term Loans”), provided that (a) the aggregate principal amount of
such Replacement Tranche B Term Loans (with appropriate adjustments to take
into account any upfront fees or original issue discount) shall not exceed the
aggregate principal amount of such Refinanced Tranche B Term Loans, (b) the
Applicable Margin for such Replacement Tranche B Term Loans shall not be higher
than the Applicable Margin for such Refinanced Tranche B Term Loans, (c) the
weighted average life to maturity of such Replacement Tranche B Term Loans
shall not be shorter than the weighted average life to maturity of such
Refinanced Tranche B Term Loans at the time of such refinancing, and (d) the
Lenders providing the relevant Replacement Tranche B Term Loans shall have the
same relative rights and priorities under the Loan Documents as the Lenders of
the Refinanced Tranche B Term Loans at the time of such refinancing.


 


If the Borrower wishes to replace the Commitments, Loans, Credit-Linked
Deposits and other extensions of credit, as applicable, under any Facility (the
“Facility Interests”) with ones having different terms, it shall have
the option, with the consent of the Administrative Agent and subject to at
least three Business Days’ advance notice to the Lenders under such Facility,
instead of reducing, terminating and repaying such Facility Interests to be
replaced, to (i) require the Lenders under such Facility to assign such
Facility Interests to the Administrative Agent or its designees and
(ii) amend the terms thereof in accordance with this Section 10.1
(with such replacement, if applicable, being deemed to have been made pursuant
to this Section 10.1). Pursuant to any such assignment, all Facility
Interests to be replaced shall be purchased at par (allocated among the Lenders
under such Facility in the same manner as would be required if all Loans
included therein were being optionally prepaid, all Credit-Linked Deposits
included therein were being returned and all Commitments included therein were
being optionally reduced or terminated by the Borrower), accompanied by payment
of any accrued interest and fees thereon and any amounts owing pursuant to
Section 3, 2.20 or 10.6. By receiving such purchase price, the Lenders
under such Facility shall automatically be deemed to have assigned the Facility
Interests under such Facility pursuant to the terms of the form of Assignment
and Assumption attached hereto as Exhibit E, and accordingly no other action by
such Lenders shall be required in connection therewith. The provisions of this
paragraph are intended to facilitate the maintenance of the perfection and
priority of existing security interests in the Collateral during any such
replacement.


 


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10.2         Notices. All notices, requests
and demands to or upon the respective parties hereto to be effective shall be
in writing (including by telecopy), and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made when delivered, or
three Business Days after being deposited in the mail, postage prepaid, or, in
the case of telecopy notice, when received, addressed as follows in the case of
Holdings, the Borrower and the Administrative Agent, and as set forth in an
administrative questionnaire delivered to the Administrative Agent in the case
of the Lenders, or to such other address as may be hereafter notified by the
respective parties hereto:


 


	
   

  	
  Holdings and Borrower:

  	
  National Mentor, Inc.

  313 Congress Street

  Boston, MA 02210

  
	
   

  	
   

  	
  Attention:
  Edward M. Murphy, President

  
	
   

  	
   

  	
  Telecopy:
  (617) 790-4271

  
	
   

  	
   

  	
  Telephone:
  (617) 790-4800

  
	
   

  	
   

  	
   

  
	
   

  	
  Administrative
  Agent:

  	
  JPMorgan
  Chase Bank, N.A.

  1111 Fannin Street 10th Floor

  Houston, TX 77002

  
	
   

  	
   

  	
  Attention:
  Cherry Arnaez, Loan and Agency Services

  
	
   

  	
   

  	
  Telecopy:
  713-750-2789

  
	
   

  	
   

  	
  Telephone:
  713-750-2782

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  JPMorgan
  Chase Bank, N.A.

  270 Park Avenue

  New York, NY 10017
Fax:
  212-270-3279

  Phone: 212-270-2472

  Attention: Dawn Lee Lum

  Email: dawn.leelum@jpmorgan.com

  



 


provided that any notice, request or demand to
or upon the Administrative Agent or the Lenders shall not be effective until
received.


 


Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall
not apply to notices pursuant to Section 2 or 3 unless otherwise agreed by
the Administrative Agent and the applicable Lender. The Administrative Agent or
the Borrower may, in its discretion, agree to accept notices and other communications
to it hereunder by electronic communications pursuant to procedures approved by
it; provided that approval of such procedures may be limited to
particular notices or communications.


 


10.3         No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the part of the
Administrative Agent or any Lender, any right, remedy, power or privilege
hereunder or under the other Loan Documents shall operate as a waiver thereof;
nor


 


104

















 


shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power
or privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.


 


10.4         Survival of Representations and
Warranties. All representations and warranties made hereunder, in the other
Loan Documents and in any document, certificate or statement delivered pursuant
hereto or in connection herewith shall survive the execution and delivery of
this Agreement and the making of the Loans and other extensions of credit
hereunder.


 


10.5         Payment of Expenses and Taxes.
The Borrower agrees (a)  to pay or reimburse each of the Administrative
Agent and the Joint Bookrunners for all its reasonable out-of-pocket costs and
expenses incurred in connection with the development, preparation and execution
of, and any amendment, supplement or modification to, this Agreement and the
other Loan Documents and any other documents prepared in connection herewith or
therewith, and the consummation and administration of the transactions
contemplated hereby and thereby, including the reasonable fees and disbursements
of one counsel to the Administrative Agent and Joint Bookrunners (and one local
counsel to the Administrative Agent and Joint Bookrunners in any applicable
jurisdiction as to which the Administrative Agent reasonably determines local
counsel is appropriate) and such other counsel to the Administrative Agent and
Joint Bookrunners as is retained with the Borrower’s consent, and filing and
recording fees and expenses, with statements with respect to the foregoing to
be submitted to the Borrower prior to the Closing Date (in the case of amounts
to be paid on the Closing Date) and from time to time thereafter on a quarterly
basis or such other periodic basis as the Administrative Agent shall deem
appropriate, (b) to pay or reimburse each Lender and Agent for all its
reasonable costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, the other Loan Documents and
any such other documents, including the fees and disbursements of counsel to
each Lender and of counsel to the Agents, (c) to pay, indemnify, and hold
each Lender and Agent harmless from, any and all recording and filing fees and
any and all liabilities with respect to, or resulting from any delay in paying,
stamp, excise and other taxes, if any, that may be payable or determined to be
payable in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the other Loan Documents and any such other documents, and
(d) to pay, indemnify, and hold each Lender and each Agent and their
respective officers, directors, employees, affiliates, agents and controlling
persons (each, an “Indemnitee”) harmless from and against any and all
other liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance and administration
of this Agreement, the other Loan Documents and any such other documents,
including any of the foregoing relating to the use of proceeds of the Loans or
the violation of, noncompliance with or liability under, any Environmental Law
applicable to the operations of any Group Member or any of the Properties and
the reasonable fees and expenses of legal counsel in connection with claims,
actions or proceedings by any Indemnitee against any Loan Party under any Loan
Document (all the foregoing in this clause (d), collectively, the “Indemnified
Liabilities”), provided, that the Borrower shall have no obligation
hereunder to any Indemnitee with respect to Indemnified


 


105

















 


Liabilities to the extent such
Indemnified Liabilities are found by a final and nonappealable decision of a
court of competent jurisdiction to have resulted from the gross negligence, bad
faith or willful misconduct of or material branch of any Loan Document by such
Indemnitee (or any of such Indemnitee’s affiliates or their respective
officers, directors, employees or agents). Without limiting the foregoing, and
to the extent permitted by applicable law, each of Holdings and the Borrower
agrees not to assert and to cause its Subsidiaries not to assert, and hereby
waives and agrees to cause its Subsidiaries to waive, all rights for
contribution or any other rights of recovery with respect to all claims,
demands, penalties, fines, liabilities, settlements, damages, costs and
expenses of whatever kind or nature, under or related to Environmental Laws,
that any of them might have by statute or otherwise against any Indemnitee,
except to the extent such claims, demands, penalties, fines, liabilities,
settlements, damages, costs, and expenses of whatever kind or nature, under or
related to Environmental Laws, are found by a final and nonappealable decision
of a court of competent jurisdiction to have resulted from the gross
negligence, bad faith or willful misconduct, of or material breach of any Loan
Document by, such Indemnitee. In the case of any investigation, litigation or
other proceeding to which the indemnity in clause (d) of this
Section applies, such indemnity shall be effective whether or not such investigation,
litigation or other proceeding is brought by a third party or any Group Member
or an Indemnified Party, and whether or not an Indemnified Party is otherwise a
party thereto. All amounts due under this Section 10.5 shall be payable
not later than 10 days after written demand therefor. Statements payable by the
Borrower pursuant to this Section 10.5 shall be submitted to the address
of the Borrower set forth in Section 10.2, or to such other Person or
address as may be hereafter designated by the Borrower in a written notice to
the Administrative Agent. The agreements in this Section 10.5 shall
survive termination of the Commitments and repayment of the Loans and all other
amounts payable hereunder.


 


10.6         Successors and Assigns;
Participations and Assignments. (a) The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby (including any affiliate of
an Issuing Lender that issues any Letter of Credit), except that (i) the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and
void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section.


 


(b)
(i)  Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more assignees (each, an “Assignee”)
all or a portion of its rights and obligations under this Agreement (including
all or a portion of its Commitments and the Loans at the time owing to it and
its Credit-Linked Deposit) with the prior written consent of:


 


(A) the Borrower (such consent not to be
unreasonably withheld or delayed), provided that no consent of the
Borrower shall be required for an assignment to a Lender, an Affiliate of a
Lender, an Approved Fund (as defined below) or, if an Event of Default under
Section 8(a) or 8(f) has occurred and is continuing, any other Person;


 


(B) the Administrative Agent (such consent
not to be unreasonably withheld or delayed), provided that no consent of
the Administrative Agent shall be required for an


 


106

















 


assignment of a Tranche B Term Loan or a Credit-Linked Deposit to a
Lender, an Affiliate of a Lender or an Approved Fund; and


 


(C) in the case of an assignment of a
Revolving Commitment or any participation in a Revolving Letter of Credit, each
Issuing Lender.


 


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


 


(A) except in the case of an assignment
to a Lender, an Affiliate of a Lender or an Approved Fund or an assignment of
the entire remaining amount of the assigning Lender’s interests under any
Facility, the amount of the Commitments, Tranche B Term Loans or Credit-Linked
Deposits and interests in unreimbursed Institutional L/C Disbursements, as
applicable, 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 (or,
in the case of the Revolving Facility, $5,000,000) unless each of the Borrower
and the Administrative Agent otherwise consent, provided that no such
consent of the Borrower shall be required if an Event of Default under Section
8(a) or 8(f) has occurred and is continuing;


 


(B) each partial assignment shall be
made as an assignment of a proportionate part of all the assigning Lender’s
rights and obligations under this Agreement, provided that this clause shall
not be construed to prohibit the assignment of a proportionate part of all the
assigning Lender’s rights and obligations in respect of each Facility.
Section 10.6(b)(ii)(B) shall not be construed to prohibit assignment of a
proportionate part of all the assigning Lender’s rights and obligations in
respect of a single Facility.


 


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


 


(D) the Assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire in which the Assignee designates one or more Credit Contacts to
whom all syndicate-level information (which may contain material non-public
information about the Borrower, the Loan Parties and their Related Parties or
their respective securities) will be made available and who may receive such
information in accordance with the Assignee’s compliance procedures and
applicable laws, including Federal and state securities laws.


 


For the purposes of this Section 10.6, “Approved Fund”
means any Person (other than a natural person) that is engaged in making,
purchasing, holding or investing in bank loans and similar extensions of credit
in the ordinary course of its business and that is administered or managed by
(a) a Lender, (b) an Affiliate of a Lender or (c) an entity or
an Affiliate of an entity that administers or manages a Lender.


 


(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) below, from and after the effective date specified in
each Assignment and Assumption the


 


107

















 


Assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender thereunder
shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of
Sections 2.18, 2.19, 2.20 and 10.5). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this Section 10.6 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 paragraph (c) of this Section.


 


(iv) The Administrative Agent, acting for this purpose as an agent
of the Borrower, shall maintain at one of its offices a copy of each Assignment
and Assumption delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitments, Credit-Linked Deposits,
Revolving Extensions of Credit and Institutional L/C Exposure of, and principal
amount of the Loans owing to, each Lender pursuant to the terms hereof from
time to time (the “Register”). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent, the Issuing Lender and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.


 


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


 


(c)
(i) Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other
entities (a “Participant”) in all or a portion of such Lender’s rights
and obligations under this Agreement (including all or a portion of its
Commitments and Credit-Linked Deposit and the Loans owing to it); provided
that (A) such Lender’s obligations under this Agreement shall remain
unchanged, (B) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (C) the
Borrower, the Administrative Agent, the Issuing Lenders 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
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of the Loan Documents; provided
that such agreement may provide that such Lender will not, without the consent
of the Participant, agree to any amendment, modification or waiver that (1)
requires the consent of each Lender directly affected thereby pursuant to the
proviso to the


 


108

















 


second sentence of Section 10.1 and (2)
directly affects such Participant. Subject to paragraph (c)(ii) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.18, 2.19 and 2.20 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section. To the extent permitted by law, each Participant also shall be entitled
to the benefits of Section 10.7(b) as though it were a Lender, provided
such Participant shall be subject to Section 10.7(a) as though it were a
Lender.


 


(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.18 or 2.19 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Borrower’s prior written consent. Any Participant that is a Non-U.S.
Lender shall not be entitled to the benefits of Section 2.19 unless such
Participant complies with Section 2.19(d).


 


(d) Any Lender
may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender (and any
initial or subsequent pledgee or grantee, as the case may be, may in turn at
any time and from time to time pledge or grant a security interest in all or
any portion of such rights as collateral security to secure obligations of such
Person), including any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or Assignee for such
Lender as a party hereto.


 


(e) The
Borrower, upon receipt of written notice from the relevant Lender, agrees to
issue Notes to any Lender requiring Notes to facilitate transactions of the
type described in paragraph (d) above.


 


(f)
Notwithstanding the foregoing, any Conduit Lender may assign any or all of the
Loans or Credit-Linked Deposits it may have funded hereunder to its designating
Lender without the consent of the Borrower or the Administrative Agent and
without regard to the limitations set forth in Section 10.6(b). Each of
Holdings, the Borrower, each Lender and the Administrative Agent hereby
confirms that it will not institute against a Conduit Lender or join any other
Person in instituting against a Conduit Lender any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding under any state bankruptcy or
similar law, for one year and one day after the payment in full of the latest
maturing commercial paper note issued by such Conduit Lender; provided,
however, that each Lender designating any Conduit Lender hereby agrees to
indemnify, save and hold harmless each other party hereto for any loss, cost, damage
or expense arising out of its inability to institute such a proceeding against
such Conduit Lender during such period of forbearance.


 


10.7         Adjustments; Set-off. (a) Except
to the extent that this Agreement expressly provides for payments to be allocated
to a particular Lender or to the Lenders under a particular Facility, if any
Lender (a “Benefitted Lender”) shall receive any payment of all or part
of the Obligations owing to it, or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in


 


109

















 


Section 8(f), or
otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of the Obligations owing to
such other Lender, such Benefitted Lender shall purchase for cash from the
other Lenders a participating interest in such portion of the Obligations owing
to each such other Lender, or shall provide such other Lenders with the
benefits of any such collateral, as shall be necessary to cause such Benefitted
Lender to share the excess payment or benefits of such collateral ratably with
each of the Lenders; provided, however, that if all or any
portion of such excess payment or benefits is thereafter recovered from such
Benefitted Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest.


 


(b) In
addition to any rights and remedies of the Lenders provided by law, each Lender
shall have the right after the occurrence and during the continuance of an
Event of Default, without prior notice to Holdings or the Borrower, any such
notice being expressly waived by Holdings and the Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by
Holdings or the Borrower hereunder (whether at the stated maturity, by
acceleration or otherwise), to set off and appropriate and apply against such
amount any and all deposits (general or special, time or demand, provisional or
final other than payroll or trust accounts), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct
or indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any branch or agency thereof to or for the credit or
the account of Holdings or the Borrower, as the case may be. Each Lender agrees
promptly to notify the Borrower and the Administrative Agent after any such
setoff and application made by such Lender, provided that the failure to
give such notice shall not affect the validity of such setoff and application.


 


10.8         Counterparts. This Agreement may
be executed by one or more of the parties to this Agreement on any number of
separate counterparts (including Lender Addendums), and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed signature page of this Agreement by facsimile
transmission shall be effective as delivery of a manually executed counterpart
hereof. A set of the copies of this Agreement signed by all the parties shall
be lodged with the Borrower and the Administrative Agent.


 


10.9         Severability. Any provision of
this Agreement that is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.


 


10.10       Integration. This Agreement and
the other Loan Documents represent the entire agreement of Holdings, the
Borrower, the Administrative Agent and the Lenders with respect to the subject
matter hereof and thereof, and there are no promises, undertakings,
representations or warranties by the Administrative Agent or any Lender
relative to the subject matter hereof not expressly set forth or referred to
herein or in the other Loan Documents.


 


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10.11       GOVERNING
LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.


 


10.12       Submission To Jurisdiction; Waivers.
Each of Holdings and the Borrower hereby irrevocably and unconditionally:


 


(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the courts of the State
of New York, the courts of the United States for the Southern District of
New York, and appellate courts from any thereof;


 


(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or
claim the same;


 


(c) agrees that service of process in any such action or proceeding may
be effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to Holdings or the
Borrower, as the case may be at its address set forth in Section 10.2 or
at such other address of which the Administrative Agent shall have been
notified pursuant thereto;


 


(d) agrees that nothing herein shall affect the right to effect service
of process in any other manner permitted by law or shall limit the right to sue
in any other jurisdiction; and


 


(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to in
this Section any special, exemplary, punitive or consequential damages.


 


10.13       Acknowledgements. Each of Holdings
and the Borrower hereby acknowledges that:


 


(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;


 


(b) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to Holdings or the Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between Administrative Agent and Lenders, on one hand, and
Holdings and the Borrower, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and


 


111

















 


(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among the
Lenders or among Holdings, the Borrower and the Lenders.


 


10.14       Releases of Guarantees and Liens.
(a) Notwithstanding anything to the contrary contained herein or in any other
Loan Document, the Administrative Agent is hereby irrevocably authorized by
each Lender (without requirement of notice to or consent of any Lender except
as expressly required by Section 10.1) to take any action requested by the
Borrower having the effect of releasing any Collateral or guarantee obligations
(i) to the extent necessary to permit consummation of any transaction not
prohibited by any Loan Document or that has been consented to in accordance
with Section 10.1 or (ii) under the circumstances described in
paragraph (b) below.


 


(b) At such
time as the Loans, the Reimbursement Obligations and the other obligations
under the Loan Documents (other than obligations under or in respect of Swap
Agreements) shall have been paid in full, the Commitments have been terminated,
the Credit-Linked Deposits have been returned and no Letters of Credit shall be
outstanding, the Collateral shall be released from the Liens created by the
Security Documents, and the Security Documents and all obligations (other than
those expressly stated to survive such termination) of the Administrative Agent
and each Loan Party under the Security Documents shall terminate, all without
delivery of any instrument or performance of any act by any Person.


 


10.15       Confidentiality. Each of the
Administrative Agent, the Issuing Lenders and the Lenders agrees to maintain
the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates’ directors,
officers, employees and agents, including accountants, legal counsel and other
advisors (it being understood that the Persons to whom such disclosure is made
will be informed of the confidential nature of such Information and instructed
to keep such Information confidential), (b) to the extent requested by any
regulatory authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other
party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to
(i) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or
(ii) any actual or prospective counterparty (or its advisors) to any swap
or derivative transaction relating to the Borrower and its obligations,
(g) with the consent of the Borrower or (h) to the extent such
Information (i) becomes publicly available other than as a result of a
breach of this Section or (ii) becomes available to the Administrative
Agent, the Issuing Bank or any Lender on a non-confidential basis from a source
other than the Borrower; provided, however, that with respect to
disclosures pursuant to clauses (b) and (c) of this Section (other than
disclosures pursuant to routine regulatory examinations) and clause (e) of
this Section (as such clause relates to suits, actions or proceedings in which
disclosure is being sought by a third party), unless prohibited by applicable
Requirements of Law or court order, each Lender, each Issuing Lender and the
Administrative Agent shall (x) notify the Borrower of any request by any
Governmental Authority or representative thereof or other Person for disclosure
of confidential and non-public information after receipt of such request and
(y) if such


 


112

















 


disclosure of such confidential
or non-public information is legally required, furnish only such portion of
such information as it is legally compelled to disclose and exercise
commercially reasonable efforts to obtain an order or other reliable assurance
that confidential treatment will be accorded to the disclosed information.


 


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


 


EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN
SECTION 10.15 FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE
MATERIAL NON-PUBLIC INFORMATION CONCERNING THE BORROWER AND ITS RELATED PARTIES
OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE
PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT
WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE
PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.


 


10.16       WAIVERS
OF JURY TRIAL. HOLDINGS, THE BORROWER, THE ADMINISTRATIVE AGENT AND
THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
AND FOR ANY COUNTERCLAIM THEREIN.


 


10.17       USA PATRIOT Act. Each Lender that
is subject to the requirements of the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the “Act”) hereby
notifies the Borrower that pursuant to the requirements of the Act, it is
required to obtain, verify and record information that identifies the Borrower,
which information includes the name and address of the Borrower and other
information that will allow such Lender to identify the Borrower in accordance
with the Act.


 


10.18       Replacement of Holdings.
Notwithstanding any contrary provisions of this Agreement, Holdings may, in
order to achieve the effect of substituting a corporation as the immediate
parent company of the Borrower, form a corporation that is a wholly owned
subsidiary of Holdings (such corporation being referred to herein as “New
Holdings”), and transfer (subject to the Lien of the Guarantee and Security
Agreement) all its assets (including all outstanding Capital Stock of the Borrower)
to New Holdings; provided that (a) the arrangements for the formation of
New Holdings and the transfer of assets from Holdings to New Holdings are
reasonably satisfactory to the Administrative Agent, (b) New Holdings shall
become a party to


 


113

















 


this Agreement and each other
Loan Document to which Holdings is a party and shall assume all obligations of
Holdings thereunder pursuant to documentation reasonably satisfactory to the
Administrative Agent and (c) the Administrative Agent shall receive such
documents, certificates and legal opinions as the Administrative Agent or its
counsel may reasonably request with respect to the foregoing, all in form and
substance reasonably satisfactory to the Administrative Agent. If all of the
requirements of the preceding sentence are satisfied, then Holdings shall cease
to be a party to the Loan Documents and shall be released from its obligations
thereunder and thereupon the term “Holdings” shall be deemed to refer to New
Holdings. The Administrative Agent shall notify the Lenders of any replacement
of Holdings effected pursuant to this Section.


 


114

















 


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


 


	
   

  	
  NMH HOLDINGS, LLC,

  
	
   

  	
   

  
	
   

  	
  By:

  	
  NMH Investment, LLC,

  its Sole Member

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Vestar Capital Partners V, L.P.,

  its Sole Member

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Vestar Associates V, L.P.,

  its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Vestar Associates Corporation V,

  its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian Ratzan

  
	
   

  	
   

  	
  Name: Brian Ratzan

  
	
   

  	
   

  	
  Title: President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NATIONAL MENTOR HOLDINGS, INC.,

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Denis Holler

  
	
   

  	
   

  	
  Name: Denis Holler

  
	
   

  	
   

  	
  Title: Senior Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, N.A., as

  Administrative Agent, an Issuing Lender and a

  Lender,

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bruce Borden

  
	
   

  	
   

  	
  Name: Bruce Borden

  
	
   

  	
   

  	
  Title: Vice President

  



 

















 


 


	
   

  	
  UBS SECURITIES LLC,

  
	
   

  	
   

  
	
   

  	
  By:

  	
           /s/ Michael
  Johnson

  	
   

  
	
   

  	
   

  	
    Name: Michael Johnson

  
	
   

  	
   

  	
    Title: Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
           /s/ Ben Lee

  	
   

  
	
   

  	
   

  	
    Name: Ben Lee

  
	
   

  	
   

  	
    Title: Director

  
					



 


 


	
   

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
   

  
	
   

  	
  By:

  	
           /s/ James W
  Ford

  	
   

  
	
   

  	
   

  	
    Name: James W Ford

  
	
   

  	
   

  	
    Title: Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GENERAL ELECTRIC CAPITAL

  CORPORATION,

  
	
   

  	
   

  
	
   

  	
  By:

  	
           /s/ John Dale

  	
   

  
	
   

  	
   

  	
    Name: John Dale

  
	
   

  	
   

  	
    Title: Duly Authorized Signatory