**Exhibit10.1**

 

 

 

US$195,000,000

AMENDEDAND RESTATED CREDIT AGREEMENT

 

Datedas of May 6, 2010

 

among

 

UNIVERSALHOSPITAL SERVICES, INC.,

 

asBorrower

 

UHSHOLDCO, INC.,

 

asParent

 

GEBUSINESS FINANCIAL SERVICES INC.,

 

asAdministrative Agent

 

BANKOF AMERICA, N.A.,

 

asDocumentation Agent

 

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

 

asInitial L/C Issuer and Initial Swing Line Lender

 

and

 

THEOTHER LENDERS PARTY HERETO

 

----

 

GECAPITAL MARKETS, INC.

 

and

 

BANCOF AMERICA SECURITIES, LLC

 

asCo-Lead Arrangers and Co-Book Runners

 

 

 

----

 

**Table of Contents**

 
| ** **                                                                                                  | **Page** |
|-------------------------------------------------------------------------------------------------------------|----------|
|                                                                                                        |     |
| ARTICLE 1                                                                                                   |
|                                                                                                        |
| DEFINITIONS AND ACCOUNTING  TERMS                                                                           |
|                                                                                                        |     |
| SECTION 1.01. Defined Terms                                                                                 | 1        |
| SECTION 1.02. Other Interpretive Provisions                                                                 | 37       |
| SECTION 1.03. Accounting Terms                                                                              | 38       |
| SECTION 1.04. Rounding                                                                                      | 38       |
| SECTION 1.05. References to Agreements and Laws                                                             | 38       |
| SECTION 1.06. Times of Day                                                                                  | 39       |
| SECTION 1.07. Timing of Payment or Performance                                                              | 39       |
|                                                                                                        |     |
| ARTICLE 2                                                                                                   |
|                                                                                                        |
| THE REVOLVING CREDIT  COMMITMENTS AND CREDIT EXTENSIONS                                                     |
|                                                                                                        |     |
| SECTION 2.01. The Revolving Credit Loans                                                                    | 39       |
| SECTION 2.02. Borrowings, Conversions and Continuations of Loans                                            | 40       |
| SECTION 2.03. Letters of Credit                                                                             | 41       |
| SECTION 2.04. Swing Line Loans                                                                              | 48       |
| SECTION 2.05. Prepayments                                                                                   | 50       |
| SECTION 2.06. Termination or Reduction of Revolving Credit  Commitments                                     | 52       |
| SECTION 2.07. Repayment of Loans                                                                            | 52       |
| SECTION 2.08. Interest                                                                                      | 52       |
| SECTION 2.09. Fees                                                                                          | 53       |
| SECTION 2.10. Computation of Interest and Fees                                                              | 54       |
| SECTION 2.11. Evidence of Indebtedness                                                                      | 54       |
| SECTION 2.12. Payments Generally                                                                            | 55       |
| SECTION 2.13. Sharing of Payments                                                                           | 56       |
| SECTION 2.14. [Intentionally Omitted]                                                                       | 57       |
| SECTION 2.15. Eligible Accounts and Eligible Unbilled Accounts                                              | 57       |
| SECTION 2.16. Eligible Rental Equipment, Eligible Wholesale  Disposables and Eligible Equipment Disposables | 61       |
|                                                                                                        |     |
| ARTICLE 3                                                                                                   |
|                                                                                                        |
| TAXES, INCREASED COSTS  PROTECTION AND ILLEGALITY                                                           |
|                                                                                                        |     |
| SECTION 3.01. Taxes                                                                                         | 62       |
| SECTION 3.02. Illegality                                                                                    | 65       |
| SECTION 3.03. Inability to Determine Rates                                                                  | 65       |
| SECTION 3.04. Increased Cost and Reduced Return; Capital Adequacy;  Reserves on Eurodollar Rate Loans       | 65       |
| SECTION 3.05. Funding Losses                                                                                | 67       |
| SECTION 3.06. Matters Applicable to Requests for Compensation                                               | 67       |
| SECTION 3.07. Replacement of Lenders Under Certain Circumstances                                            | 68       |

 

i

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| SECTION 3.08. Survival                                                              | 69     |
|-------------------------------------------------------------------------------------|--------|
|                                                                                |   |
| ARTICLE 4                                                                           |
|                                                                                |
| CONDITIONS PRECEDENT                                                                |
|                                                                                |   |
| SECTION 4.01. Conditions Precedent to Amendment and Restatement                     | 69     |
| SECTION 4.02. Conditions to All Credit Extensions After the Amendment  Closing Date | 71     |
|                                                                                |   |
| ARTICLE 5                                                                           |
|                                                                                |
| REPRESENTATIONS AND  WARRANTIES                                                     |
|                                                                                |
| SECTION 5.01. Existence, Qualification and Power; Compliance with  Laws             | 71     |
| SECTION 5.02. Authorization; No Contravention                                       | 72     |
| SECTION 5.03. Governmental Authorization; Other Consents                            | 72     |
| SECTION 5.04. Binding Effect                                                        | 72     |
| SECTION 5.05. Financial Statements; No Material Adverse Effect                      | 72     |
| SECTION 5.06. Litigation                                                            | 73     |
| SECTION 5.07. Ownership of Property; Liens                                          | 73     |
| SECTION 5.08. Environmental Compliance                                              | 74     |
| SECTION 5.09. Taxes                                                                 | 75     |
| SECTION 5.10. ERISA Compliance                                                      | 75     |
| SECTION 5.11. Subsidiaries; Equity Interests                                        | 76     |
| SECTION 5.12. Margin Regulations; Investment Company Act                            | 76     |
| SECTION 5.13. Disclosure                                                            | 76     |
| SECTION 5.14. Intellectual Property, Licenses, Etc.                                 | 76     |
| SECTION 5.15. Solvency                                                              | 77     |
| SECTION 5.16. Perfection, Mortgages, Etc.                                           | 77     |
| SECTION 5.17. Compliance with Laws Generally                                        | 77     |
| SECTION 5.18. Labor Matters                                                         | 77     |
| SECTION 5.19. Debt                                                                  | 77     |
|                                                                                |   |
| ARTICLE 6                                                                           |
|                                                                                |
| AFFIRMATIVE COVENANTS                                                               |
|                                                                                |   |
| SECTION 6.01. Financial Statements                                                  | 78     |
| SECTION 6.02. Certificates; Other Information                                       | 79     |
| SECTION 6.03. Notices                                                               | 81     |
| SECTION 6.04. Payment of Obligations                                                | 81     |
| SECTION 6.05. Preservation of Existence, Etc.                                       | 81     |
| SECTION 6.06. Maintenance of Properties                                             | 81     |
| SECTION 6.07. Maintenance of Insurance                                              | 81     |
| SECTION 6.08. Compliance with Laws                                                  | 82     |
| SECTION 6.09. Books and Records                                                     | 82     |
| SECTION 6.10. Inspection Rights                                                     | 82     |
| SECTION 6.11. Use of Proceeds                                                       | 82     |
| SECTION 6.12. Covenant to Guarantee Obligations and Give Security                   | 82     |
| SECTION 6.13. Compliance with Environmental Laws                                    | 84     |
| SECTION 6.14. Further Assurances                                                    | 85     |

 

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| SECTION 6.15. Landlord Agreement and Real Estate Purchases              | 85     |
|-------------------------------------------------------------------------|--------|
| SECTION 6.16. Designation of Subsidiaries                               | 85     |
| SECTION 6.17. Maintenance of Separate Existence                         | 86     |
| SECTION 6.18. Junior Financing Documentation                            | 86     |
|                                                                    |   |
| ARTICLE 7                                                               |
| NEGATIVE COVENANTS                                                      |
|                                                                    |   |
| SECTION 7.01. Liens                                                     | 87     |
| SECTION 7.02. Investments                                               | 90     |
| SECTION 7.03. Indebtedness                                              | 92     |
| SECTION 7.04. Fundamental Changes                                       | 95     |
| SECTION 7.05. Dispositions                                              | 96     |
| SECTION 7.06. Restricted Payments                                       | 97     |
| SECTION 7.07. Change in Nature of Business                              | 99     |
| SECTION 7.08. Transactions with Affiliates                              | 99     |
| SECTION 7.09. Burdensome Agreements                                     | 100    |
| SECTION 7.10. Holding Company                                           | 101    |
| SECTION 7.11. Financial Covenant                                        | 101    |
| SECTION 7.12. Amendments of Certain Documents                           | 101    |
| SECTION 7.13. Accounting Changes                                        | 101    |
| SECTION 7.14. Prepayments, Etc. of Permitted Subordinated  Indebtedness | 101    |
| SECTION 7.15. Designated Senior Debt                                    | 102    |
|                                                                    |   |
| ARTICLE 8                                                               |
|                                                                    |
| EVENTS OF DEFAULT AND  REMEDIES                                         |
|                                                                    |   |
| SECTION 8.01. Events of Default                                         | 102    |
| SECTION 8.02. Remedies Upon Event of Default                            | 104    |
| SECTION 8.03. Application of Funds                                      | 105    |
|                                                                    |   |
| ARTICLE 9                                                               |
|                                                                    |
| ADMINISTRATIVE AGENT AND  OTHER AGENTS                                  |
|                                                                    |   |
| SECTION 9.01. Authorization and Action                                  | 106    |
| SECTION 9.02. Agents’ Reliance, Etc.                               | 107    |
| SECTION 9.03. GE Capital and Affiliates                                 | 107    |
| SECTION 9.04. Lender Credit Decision                                    | 107    |
| SECTION 9.05. Indemnification                                           | 107    |
| SECTION 9.06. Successor Agents                                          | 108    |
| SECTION 9.07. Other Agents; Arranger                                    | 109    |
| SECTION 9.08. Intercreditor Agreement                                   | 109    |
|                                                                    |   |
| ARTICLE 10                                                              |
|                                                                    |
| MISCELLANEOUS                                                           |
|                                                                    |   |
| SECTION 10.01. Amendments, Etc.                                         | 110    |
| SECTION 10.02. Notices and Other Communications; Facsimile Copies       | 112    |

 

iii

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| SECTION 10.03. No Waiver; Cumulative Remedies             | 112 |
|-----------------------------------------------------------|-----|
| SECTION 10.04. Costs, Expenses and Taxes                  | 113 |
| SECTION 10.05. Indemnification by the Borrowers           | 113 |
| SECTION 10.06. Payments Set Aside                         | 114 |
| SECTION 10.07. Successors and Assigns                     | 114 |
| SECTION 10.08. Confidentiality                            | 117 |
| SECTION 10.09. Setoff                                     | 118 |
| SECTION 10.10. Interest Rate Limitation                   | 118 |
| SECTION 10.11. Counterparts                               | 119 |
| SECTION 10.12. Integration                                | 119 |
| SECTION 10.13. Survival of Representations and Warranties | 119 |
| SECTION 10.14. Severability                               | 119 |
| SECTION 10.15. Tax Forms                                  | 119 |
| SECTION 10.16. Process Agent                              | 121 |
| SECTION 10.17. Release of Collateral                      | 121 |
| SECTION 10.18. GOVERNING LAW                              | 121 |
| SECTION 10.19. WAIVER OF RIGHT TO TRIAL BY JURY           | 122 |
| SECTION 10.20. Binding Effect                             | 122 |
| SECTION 10.21. USA Patriot Act Notice                     | 122 |

 

iv

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| SCHEDULES |          |
|-----------|---------------|
|      |          |
|      | 2.01          | Revolving Credit  Commitments |
|      | 5.06          | Disclosed Litigation |
|      | 5.07(c)       | Real  Property Pledged as Collateral |
|      | 5.08          | Environmental Compliance |
|      | 5.10(b)       | Material  ERISA Claims, Actions, Suits, or Action by Governmental Authority |
|      | 5.10(c)       | ERISA Events or Material  Liabilities |
|      | 5.11          | Subsidiaries |
|      | 5.14          | IP Rights |
|      | 7.01(c)       | Existing Liens |
|      | 7.02(f)       | Existing Investments |
|      | 7.03(b)(viii) | Existing Indebtedness |
|      | 7.08          | Transactions with  Affiliates |
|      | 7.09          | Existing Restrictions |
|      | 10.02         | Administrative Agent’s  Office, Certain Addresses for Notices |
|      |          |   |
| EXHIBITS  |
|      |          |   |
|      | *Form of*     |   |
|      | * *      |   |
|      | A             | Committed Loan Notice |
|      | B             | Swing Line Loan Notice |
|      | C-1           | Revolving Credit Note |
|      | C-2           | Swing Line Note |
|      | D             | Compliance Certificate |
|      | E             | Assignment and Assumption |
|      | F             | Amended and Restated  Guaranty |
|      | G             | Amended and Restated  Security Agreement |
|      | H             | Weil Gotshal & Manges  LLP Opinion |
|      | I             | Administrative  Questionnaire |
|      | J             | Intercreditor Agreement |
|      | K             | Borrowing Base Certificate |
|      | L             | Solvency Certificate |

 

v

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**AMENDED AND RESTATED CREDIT AGREEMENT**

 

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

 

PRELIMINARYSTATEMENTS

 

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

 

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

 

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

 

# ARTICLE 1

#  

# DEFINITIONSAND ACCOUNTING TERMS

#  

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

 

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

 

“**Accounts**” means all “accounts,” as such term is defined in theUniform Commercial Code, now owned or hereafter acquired by any Loan Party,including (a) all accounts receivable, other receivables, book debts and otherforms of obligations (other than forms of obligations evidenced by ChattelPaper or Instruments), (including any such obligations that may becharacterized as an account or contract right under the Uniform CommercialCode), (b) all of each Loan Party’s rights in, to and under all purchase ordersor receipts for goods or services, (c) all of each Loan Party’s rights to anygoods represented by any of the foregoing (including unpaid sellers’ rights ofrescission, replevin, reclamation and stoppage in transit and rights toreturned, reclaimed or repossessed goods), (d) all rights to payment due to anyLoan Party for property sold, leased, licensed, assigned or otherwise disposedof, for a policy of insurance issued or to be issued, for a secondaryobligation incurred or to be incurred, for energy provided or to be provided,for the use or hire of a vessel under a charter or other contract, arising outof the use of a credit card or charge card, or for services rendered or to berendered by such Loan Party or in connection with any other transaction(whether or not yet earned by performance on the part of such Loan Party), (e) allhealth care insurance receivables and (f) all collateral security andguaranties of any kind, given by any Account Debtor or any other Person withrespect to any of the foregoing.

 

----

 

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

 

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

 

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

 

“**Administrative Agent**” means GE Capital, in its capacity asadministrative agent under any of the Loan Documents, or any successoradministrative agent.

 

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

 

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

 

“**Affiliate**” means, with respect to any Person, another Personthat directly, or indirectly through one or more intermediaries, Controls or isControlled by or is under common Control with the Person specified; *provided* that portfolio companies of theSponsor that are not Subsidiaries of Parent shall be deemed not to beAffiliates of any Loan Party.  “**Control**” means the possession, directly orindirectly, of the power to direct or cause the direction of the management orpolicies of a Person, whether through the ability to exercise voting power, bycontract or otherwise.  “**Controlling**” and “**Controlled**” have meanings correlativethereto.

 

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

 

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

 

“**Aggregate Commitments**” means the Revolving Credit Commitmentsof all the Lenders.

 

“**Agreement**” means this Amended and Restated Credit Agreement.

 

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

 

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

 

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

 

(a)                                  50% of theConsolidated Net Income of UHS for the period from July 1, 2007 until the lastday of the then most recent fiscal quarter for which financial statements havebeen delivered; plus

 

2

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(b)                                 100% of theaggregate net cash proceeds and the fair market value of property andmarketable securities received by UHS since the Closing Date as a contributionto its common equity capital or from the issue or sale of Equity Interests ofUHS (other than Disqualified Equity Interests) or from the issue or sale ofconvertible or exchangeable Disqualified Equity Interests or convertible orexchangeable debt securities of UHS that have been converted into or exchangedfor such Equity Interests (other than Equity Interests (or Disqualified EquityInterests or debt securities) sold to a Subsidiary of the Borrower); butexcluding cash proceeds received from the sale of Equity Interests of UHS (and,to the extent actually contributed to UHS, Equity Interests of UHS’s direct orindirect parent corporations) to members of management, directors orconsultants of UHS, any direct or indirect parent of UHS and the Subsidiariesof UHS after the Closing Date to the extent such amounts have been applied toRestricted Payments made in accordance with Section 7.06(d)(iii); plus

 

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

 

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

 

minus (b) the sum, withoutduplication, of:

 

(i)                                     the aggregateamount of dividends pursuant to Section 7.06(e) following the ClosingDate and prior to the Reference Time;

 

(ii)                                  the aggregateamount of prepayments, repurchases and redemptions of Permitted SubordinatedIndebtedness pursuant to Section 7.14(i)(x)(2) following the ClosingDate and prior to the Reference Time; and

 

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

 

“**Applicable Commitment Fee Rate**” means a percentage per annumequal to (a) 0.50% at any time the Usage Percentage is equal to or less than50%, and (b) 0.375% at any time the Usage Percentage is greater than 50%.

 

“**Applicable Rate**” means:

 

(a)                                  a percentageper annum equal to the following percentages per annum, based upon the UsagePercentage as of any date of determination:

 
| **Pricing  Level** | ** ** | **Usage Percentage**    | ** ** | **Eurodollar Rate and  Letter of Credit Fees** | ** ** | **Base Rate** | ** ** |
|--------------------|------------|-------------------------|------------|------------------------------------------------|------------|---------------|------------|
| **1**              | ** ** | **= 25%**               | ** ** | **3.00**                                       | **%**      | **2.00**      | **%**      |
| **2**              | ** ** | **> 25%  but = 75%** | ** ** | **2.75**                                       | **%**      | **1.75**      | **%**      |
| **3**              | ** ** | **> 75%**            | ** ** | **2.50**                                       | **%**      | **1.50**      | **%**      |

 

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

 

3

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thereafter the Pricing Level otherwisedetermined in accordance with this definition shall apply) and (y) as of thefirst Business Day after an Event of Default shall have occurred and becontinuing, and shall continue to so apply to but excluding the date on whichsuch Event of Default is cured or waived (and thereafter the Pricing Levelotherwise determined in accordance with this definition shall apply); *provided**further*that in the event that any Borrowing Base Certificate deliveredpursuant to Section 6.01(e) is shown to be inaccurate (regardless ofwhether this Agreement or the Revolving Credit Commitments are in effect whensuch inaccuracy is discovered) within one year of delivery thereof, and suchinaccuracy, if corrected, would have led to the application of a higherApplicable Margin for any period (an “**ApplicablePeriod**”) than the Applicable Rate applied for such ApplicablePeriod, then (i) the Borrowers shall promptly deliver to the AdministrativeAgent a correct certificate for such Applicable Period, (ii) the ApplicableRate shall be determined based upon such corrected certificate for suchApplicable Period, and (iii) the Borrowers shall promptly pay to theAdministrative Agent the accrued additional interest owing as a result of suchincreased Applicable Rate for such Applicable Period; *provided* that the provisions of thisproviso shall terminate unless a claim is made therefor by the AdministrativeAgent within 365 days after the date all Revolving Credit Loans are paid infull and all Revolving Credit Commitments shall have terminated.

 

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

 

“**Appropriate Lender**” means, at any time, (a) with respect tothe Loans, the Lenders, (b) with respect to the Letter of Credit Sublimit, (i) theL/C Issuer and (ii) if any Letters of Credit have been issued pursuant to Section2.03(a), the Lenders and (c) with respect to the Swing Line Facility, (i) theSwing Line Lender and (ii) if any Swing Line Loans are outstanding pursuant to Section2.04(a), the Lenders.

 

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

 

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

 

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

 

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

 

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

 

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

 

“**Attributable Indebtedness**” means, on any date, in respect ofany Capitalized Lease of any Person, the capitalized amount thereof that wouldappear on a balance sheet of such Person prepared as of such date in accordancewith GAAP.

 

“**Auto-Renewal Letter of Credit**” has the meaning specified in Section2.03(b)(iii).

 

4

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“**Base Rate**” means a variable per annum rate, as of any date ofdetermination, equal to the greater of (i) the Federal Funds Rate plus one-halfof one percent (0.50%) per annum and (ii) the rate of interest which isidentified and normally published by Bloomberg Professional Service Page Primeas the “Prime Rate” (or, if more than one rate is published as the Prime Rate,then the highest of such rates).  Anychange in Base Rate will become effective as of the date the rate of interestwhich is so identified as the “Prime Rate” is different from that published onthe preceding Business Day.  If BloombergProfessional Service no longer reports the Prime Rate, or if such Page Prime nolonger exists, or Administrative Agent determines in good faith that the rateso reported no longer accurately reflects an accurate determination of theprevailing Prime Rate, Administrative Agent may select a reasonably comparablepublicly available index or source to use as the basis for the Base Rate.  The Base Rate is not intended to be nor willit necessarily be the lowest rate of interest extended by the Lenders to theircustomers.

 

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

 

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

 

“**Borrowers**” has the meaning specified in the PreliminaryStatements, and, after giving effect to the Assumption Agreement, shall includeUHS, and any Subsidiary that becomes a Borrower under Section 6.12.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(c)                                  the sum of:

 

(i)                                     sixty-fivepercent (65%) of the Borrowers’ Eligible Rental Equipment valued on a net bookvalue basis consistent with the Borrowers’ consolidated month-end balancesheet;

 

5

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

 

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

 

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

 

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

 

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

 

“**Business Day**” means any day other than a Saturday, Sunday orother day on which commercial banks are authorized to close under the Laws of,or are in fact closed in (a) when used in relation to any Borrower, the statewhere the Administrative Agent’s Office and the L/C Issuer’s Office are locatedand (b) if such day relates to any interest rate settings as to a EurodollarRate Loan, any fundings, disbursements, settlements and payments in respect ofany such Eurodollar Rate Loan, or any other dealings to be carried out pursuantto this Agreement in respect of any such Eurodollar Rate Loan, means any suchday on which dealings in deposits in Dollars are conducted by and between banksin the London interbank eurodollar market.

 

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

 

“**Capitalized Leases**” means all leases that have been or shouldbe, in accordance with GAAP, recorded as capitalized leases on a balance sheetof the lessee.

 

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

 

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

 

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

 

“**Cash Equivalents**” means any of the following types ofInvestments, to the extent owned by any Borrower or any of its RestrictedSubsidiaries free and clear of all Liens (other than Liens permitted pursuantto any Loan Document):

 

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(a)                                  readilymarketable obligations issued or directly and fully guaranteed or insured bythe United States, any state, commonwealth or territory of the United States orany agency or instrumentality thereof, having (i) one of the three highestratings from either Moody’s or S&P and (ii) maturities of not more than oneyear from the date of acquisition thereof; *provided*that the full faith and credit of the United States is pledged in supportthereof;

 

(b)                                 time depositswith, or insured certificates of deposit or bankers’ acceptances of, anycommercial bank that (i) is a Lender or (ii)(A) is organized under the laws ofthe United States, any state thereof or the District of Columbia or is theprincipal banking subsidiary of a bank holding company organized under the lawsof the United States, any state thereof, the District of Columbia or theCommonwealth of Puerto Rico and is a member of the Federal Reserve System and (B)has combined capital and surplus of at least $250,000,000 (any such bank in theforegoing clauses (i) or (ii) being an “**ApprovedDomestic Bank**”), in each case with maturities of not more than oneyear from the date of acquisition thereof;

 

(c)                                  commercialpaper and variable or fixed rate notes issued by an Approved Domestic Bank (orby the parent company thereof) or any variable rate note issued by, orguaranteed by a domestic corporation rated “A-1” (or the equivalent thereof) orbetter by S&P or “P-1” (or the equivalent thereof) or better by Moody’s, ineach case with maturities of not more than one year from the date ofacquisition thereof;

 

(d)                                 repurchase agreementsentered into by any Person with a bank or trust company or recognizedsecurities dealer (including any of the Lenders), in each case, having capitaland surplus in excess of $250,000,000 for direct obligations issued by or fullyguaranteed or insured by the government or any agency or instrumentality of theUnited States;

 

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

 

(f)                                    solely withrespect to any Foreign Subsidiary, non-Dollar-denominated (i) certificates ofdeposit of, bankers acceptances of, or time deposits with, any commercial bankwhich is organized and existing under the laws of the country in which suchPerson maintains its chief executive office and principal place of businessprovided such country is a member of the Organization for Economic Cooperationand Development, and whose short-term commercial paper rating from S&P isat least “A-1” or the equivalent thereof or from Moody’s is at least “P 1” orthe equivalent thereof (any such bank being an “Approved Foreign Bank”) andmaturing within one year of the date of acquisition and (ii) equivalents ofdemand deposit accounts which are maintained with an Approved Foreign Bank; and

 

(g)                                 readilymarketable obligations issued or directly and fully guaranteed or insured bythe government or any agency or instrumentality of any member nation of theEuropean Union whose legal tender is the Euro and which are denominated inEuros or any other foreign currency comparable in credit quality and tenor tothose referred to above and customarily used by corporations for cashmanagement purposes in any jurisdiction outside the United States to the extentreasonably required in connection with any business conducted by any RestrictedSubsidiary organized in such jurisdiction, having (i) one of the three highestratings from either Moody’s or S&P and (ii) maturities of not more than oneyear from the date of acquisition

 

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thereof; provided that thefull faith and credit of any such member nation of the European Union ispledged in support thereof.

 

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

 

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

 

“**Casualty Event**” means any event that gives rise to the receiptby any Borrower Party of any insurance proceeds or condemnation awards inrespect of any equipment, fixed assets or real property (including anyimprovements thereon) to replace or repair such equipment, fixed assets or realproperty.

 

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

 

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

 

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

 

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

 

(ii)          at any time after theconsummation of a Qualifying IPO, and for any reason whatsoever, (A) no“person” or “group” (as such terms are used in Sections 13(d) and 14(d) ofthe Securities Exchange Act of 1934, but excluding any employee benefit plan ofsuch person and its subsidiaries, and any person or entity acting in itscapacity as trustee, agent or other fiduciary or administrator of any suchplan, and excluding the Permitted Holders), shall become the “beneficial owner”(as defined in Rules 13(d)-3 and 13(d)-5 under the Securities Exchange Act of1934), directly or indirectly, of more than the greater of (x) thirty-fivepercent (35%) of the outstanding voting securities having ordinary voting powerof the Qualifying IPO Issuer and (y) the percentage of the then

 

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

 

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

 

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

 

“**Chattel Paper**” means any “chattel paper,” as such term isdefined in the Uniform Commercial Code, including electronic chattel paper, nowowned or hereafter acquired by any Loan Party.

 

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

 

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

 

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

 

“**Collateral Agent**” means GE Capital, in its capacity ascollateral agent under any of the Loan Documents, or any successoradministrative agent.

 

“**Collateral Documents**” means, collectively, the SecurityAgreement, each Intellectual Property Security Agreement, the Mortgages, andeach of the other agreements, instruments or documents that creates or purportsto create a Lien in favor of the Collateral Agent for the benefit of theSecured Parties as security for the Secured Obligations, including collateralassignments, Security Agreement Supplements, security agreements, pledgeagreements or other similar agreements delivered to the Administrative Agentand the Lenders pursuant to Section 6.12.

 

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

 

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

 

“**Compliance Certificate**” means a certificate substantially inthe form of Exhibit D.

 

“**Confidential Memorandum**” means the Confidential Memorandumdated May 2007 with respect to the syndication of the facilities under theExisting Credit Agreement.

 

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

 

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“**Consolidated EBITDA**” means, for any period, with respect toany Person and its Subsidiaries on a consolidated basis, the sum of (a) ConsolidatedNet Income, *plus* (b) an amountwhich, in the determination of Consolidated Net Income for such period, hasbeen deducted for, without duplication,

 

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

 

(ii)                        income,withholding, franchise and similar taxes and any tax distributions madepursuant to Section 7.06(d)(ii) and foreign withholding taxes paid oraccrued during such period,

 

(iii)                     totaldepreciation and amortization expense (including non-cash amortization of debtdiscount or deferred financing costs),

 

(iv)                    letter ofcredit fees,

 

(v)                       cash fees,costs and expenses incurred in connection with the Transactions or, to theextent permitted hereunder, any Investment permitted under Section 7.02,Disposition permitted under Section 7.05, Equity Issuance, Debt Issuanceor any amendment or waiver of any Debt Issuance (in each case, whether or notconsummated),

 

(vi)                    to the extentactually reimbursed or reimbursable, expenses incurred to the extent covered byindemnification provisions in any agreement in connection with the Transactionsor a Permitted Acquisition,

 

(vii)                 to the extentcovered by insurance under which the insurer has been properly notified and hasnot denied or contested coverage, expenses with respect to liability orcasualty events or business interruption,

 

(viii)              management fees paid under Section7.08(d) or any other monitoring, consulting or advisory fees and relatedexpenses paid to Sponsor to the extent permitted under this Agreement,

 

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

 

(x)                         to the extentdeducted in calculating Consolidated Net Income for such period, any non-cashpurchase accounting adjustment and any step-ups with respect to re-valuingassets and liabilities in connection with the Transactions or any Investmentpermitted under Section 7.02,

 

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

 

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

 

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(xiii)            with respect tothe calculation of the financial covenant set forth in Section 7.11 forany applicable period, the Net Cash Proceeds from any issuance of EquityInterests (other than Disqualified Equity Interests) by UHS to the EquityInvestors in an amount not greater than the amount necessary to ensure that theBorrower Parties are in compliance with the financial covenant set forth in Section7.11 for such period, solely to the extent that the Net Cash Proceedstherefrom (A) are actually received by UHS (including through capitalcontribution of such Net Cash Proceeds by Parent to UHS) no later than ten (10)Business Days after the date of delivery of the applicable ComplianceCertificate and (B) are Not Otherwise Applied; *provided*that any infusion of equity pursuant to a Notice of Intent to Make an EquityInfusion shall not be made more than twice in any four fiscal quarter period;it being understood that this clause (xiii) may not be relied on forpurposes of calculating any financial ratios other than as applicable to Section7.11 (including for purposes of the definition of “Pro Forma Basis”),

 

(xiv)               any othernon-cash charges or expenses to the extent such non-cash charges or expenses donot result in a cash payment in a future period,

 

(xv)              one-time cashcharges relating to the transition costs associated with becoming a publiccompany;  *minus*

 

(c)                                  an amountwhich, in the determination of Consolidated Net Income for such period, hasbeen included for non-cash income during such period (other than with respectto cash actually received);

 

*provided* that notwithstandingany other provision to the contrary contained in this Agreement, for purposesof any calculation made under the financial covenant set forth in Section 7.11(including for purposes of the definition of “Pro Forma Basis”, but excludingfor purposes of the definition of “Applicable Rate”), to the extent the receiptof any Net Cash Proceeds of any issuance of Equity Interests are an effectiveaddition to Consolidated EBITDA as contemplated by, and in accordance with, theprovisions of clause (b)(xiii) above and, as a result thereof, any Eventof Default of the financial covenant set forth in Section 7.11 shallhave been cured for any applicable period, such cure shall be deemed to beeffective as of the last day of such applicable period; *provided further* that (a) ConsolidatedEBITDA of Parent and its Subsidiaries for the fiscal quarters ended (i) June 30,2006 shall equal $20,040,000, (ii) September 30, 2006 shall equal $19,422,000, (iii)December 31, 2006 shall equal $19,983,000, and (iv) March 31, 2007 shall equal$25,204,000, and (b) for any four fiscal quarter period ending on or prior to June30, 2008, EBITDA attributable to Stryker Corporation of $3,000,000 and EBITDAattributable to Intellamed, Inc. of $2,500,000 shall be included.

 

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

 

(a)                                  all obligationsof such Person for borrowed money,

 

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

 

(c)                                  all obligationsof such Person issued or assumed as the deferred purchase price of property orservices purchased by such Person (other than accrued expenses and trade debtincurred in the ordinary course of business) which would appear in theliabilities section of the balance sheet of such Person,

 

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(d)                                 allConsolidated Funded Indebtedness of others secured by any Lien on propertyowned or acquired by such Person, whether or not the obligations securedthereby have been assumed,

 

(e)                                  all Guaranteesof such Person with respect to Consolidated Funded Indebtedness of anotherPerson.

 

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

 

(g)                                 all draftsdrawn (to the extent unreimbursed) under standby letters of credit issued orbankers’ acceptances facilities created for the account of such Person,

 

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

 

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

 

Notwithstanding any other provision of this Agreementto the contrary, (i) the term “Consolidated Funded Indebtedness” shall not bedeemed to include (A) any earn-out obligation until such obligation appears inthe liabilities section of the balance sheet of the applicable Person, (B) anyearn-out obligation that appears in the liabilities section of the balancesheet of the applicable Person to the extent (1) such Person is indemnified forthe payment thereof by a solvent Person reasonably acceptable to theAdministrative Agent or (2) amounts to be applied to the payment thereof are inescrow, (C) any deferred compensation arrangements or employee equity planrelated to which there is a liability on the balance sheet or (D) anynon-compete or consulting obligations incurred in connection with PermittedAcquisitions and (ii) the amount of Consolidated Funded Indebtedness for whichrecourse is limited either to a specified amount or to an identified asset ofsuch Person shall be deemed to be equal to such specified amount or the fairmarket value of such identified asset as determined by such Person in goodfaith, as the case may be.

 

“**Consolidated Interest Charges**” means, for any period, withrespect to any Person and its Subsidiaries on a consolidated basis, the amountby which (a) the sum of interest expense for such period (including theinterest component under Capitalized Leases, but excluding, to the extentincluded in interest expense, (i) fees and expenses associated with theconsummation of the Transactions, (ii) annual agency fees paid to the AdministrativeAgent, (iii) costs associated with obtaining Swap Contracts, (x) fees andexpenses associated with any Investment permitted under Section 7.02,Equity Issuance or Debt Issuance or any amendment or waiver of any DebtIssuance (whether or not consummated), (iv) pay-in-kind interest expense orother noncash interest expense (including as a result of the effects ofpurchase accounting) and (v) amortization or write-down of any deferredfinancing fees) exceeds (b) interest income for such period, in each case asdetermined in accordance with GAAP, to the extent the same are paid or payable(or received or receivable) in cash with respect to such period.

 

“**Consolidated Net Income**” means, for any period, with respectto any Person and its Subsidiaries on a consolidated basis, net income asdetermined in accordance with GAAP; *provided*that Consolidated Net Income for any such period shall exclude, withoutduplication, (a) any net after-tax extraordinary, unusual or non-recurringgains, losses or charges (including severance, relocation, transition and otherrestructuring costs and litigation settlements or losses), (b) the cumulativeeffect of a

 

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change in accounting principle(s) during suchperiod, (c) any net after-tax gains or losses realized upon the disposition ofassets outside the ordinary course of business (including any gain or lossrealized upon the sale or other disposition of any Equity Interests of anyPerson) or attributable to discontinued operations, (d) (i) the income or lossof (1) for purposes of calculating cumulative Consolidated Net Income only, anySubsidiary (other than a Loan Party) to the extent that the declaration orpayment of dividends or similar distributions by such Subsidiary of that incomeis not at the time permitted without any prior governmental approval (which hasnot been obtained) or, directly or indirectly, by the operation of the terms ofits charter or any agreement, instrument, judgment, decree, statute, rule or governmentalregulation applicable to such Subsidiary or its stockholders (which has notbeen legally waived) and (2) any Joint Venture and any Unrestricted Subsidiary,except in each case to the extent of the amount of dividends or otherdistributions actually paid in cash to such Person or one of its Subsidiariesby such Subsidiary, Joint Venture or Unrestricted Subsidiary during such periodand (ii) the income or loss of any Person accrued prior to the date it becomesa Subsidiary of such Person or is merged into or consolidated with such Personor any Subsidiary of such Person or the date that such other Person’s assetsare acquired by such Person or any Subsidiary of such Person, (e) non-cashcompensation charges, including any such charges arising from stock options,restricted stock grants or other equity-incentive programs, (f) any netafter-tax income or loss (less all fees and expenses or charges relatingthereto) attributable to the early extinguishment of Indebtedness or hedgingobligations, including under Swap Contracts, (g) the effect of any non-cashitems resulting from any amortization, write-up, write-down or write-off orimpairment of assets (including intangible assets, goodwill and deferredfinancing costs or liabilities) in connection with the Transactions, anyPermitted Acquisition or any merger, consolidation or similar transaction notprohibited by this Agreement and non-cash impairment charges incurredsubsequent to the Closing Date resulting from the application of SFAS Nos.142-144 (other than any such non-cash item to the extent that it represents anaccrual of or reserve for cash expenditures in any future period except to theextent such item is subsequently reversed), (h) any reductions in respect ofdividends on, or accretion of, preferred Equity Interests; and *provided further* that Consolidated NetIncome for any such period shall be decreased by the amount of any equity ofany Borrower in a net loss of any Joint Venture for such period to the extentsuch Borrower has funded such net loss, and (i) unrealized gains and losses inrespect of Swap Contracts and other “embedded derivatives” or similar contractsthat require the same accounting treatment as Swap Contracts.

 

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

 

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

 

“**Contractual Obligation**” means, as to any Person, any provisionof any security issued by such Person or of any agreement, instrument or otherundertaking to which such Person is a party or by which it or any of itsproperty is bound.

 

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

 

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

 

“**Copyrights**” means all of the following now owned or hereafteradopted or acquired by any Loan Party: (a) all copyrights and GeneralIntangibles of like nature (whether registered or unregistered), allregistrations and recordings thereof, and all applications in connectiontherewith, including all registrations, recordings and applications in theUnited States Copyright Office or in any similar office or agency of the UnitedStates, any state or territory thereof, or any other country or any politicalsubdivision thereof, and (b) all reissues, extensions or renewals thereof.

 

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

 

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

 

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

 

“**Default**” means any event or condition that constitutes anEvent of Default or that, with the giving of any notice, the lapse of graceperiod, or both, would be an Event of Default.

 

“**Default Rate**” means an interest rate equal to (a) the BaseRate *plus* (b) the Applicable Rateapplicable to Base Rate Loans *plus*(c) 2.0% per annum; *provided* thatwith respect to a Eurodollar Rate Loan, the Default Rate shall be an interestrate equal to the interest rate (including any Applicable Rate) otherwiseapplicable to such Loan *plus* 2.0%per annum, in each case, to the fullest extent permitted by applicable Laws,and if there is no applicable interest rate, then at the rate applicable to theRevolving Credit Loans bearing interest at the Base Rate *plus* the Applicable Rate applicable toBase Rate Loans *plus* 2.0% perannum.

 

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

 

“**Deposit Accounts**” means all “deposit accounts” as such term isdefined in the Uniform Commercial Code, now or hereafter held in the name ofany Loan Party.

 

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

 

“**Disposition**” or “**Dispose**”means the sale, transfer, license, lease or other disposition of any propertyby any Person (including any sale and leaseback transaction and any sale ofEquity Interests, but excluding any issuance by such Person of its own EquityInterests), including any sale, assignment, transfer or other disposal, with orwithout recourse, of any notes or accounts receivable or any rights and claimsassociated therewith.

 

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

 

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

 

“**Documents**” means all “documents,” as suchterm is defined in the Uniform Commercial Code, now owned or hereafter acquiredby any Loan Party, wherever located.

 

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

 

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

 

“**Eligible Accounts**” has the meaning ascribedto it in Section 2.15.

 

“**Eligible Assignee**” means (a) a Lender;(b) an Affiliate of a Lender; (c) an Approved Fund; and (d) anyother Person (other than a natural person or a Disqualified Institution, asdesignated by the Sponsor to the Administrative Agent in the electroniccommunication from Sponsor to the Administrative Agent dated May 25, 2007)approved by (i) the Administrative Agent, the L/C Issuer and the SwingLine Lender and (ii) unless an Event of Default has occurred and iscontinuing under Section 8.01(a), Section 8.01(f) orSection 8.01(g)(i), the Borrowers (each such approval not to beunreasonably withheld or delayed).

 

“**Eligible Equipment Disposables**” means, asof any date of determination, all Equipment Disposables of Borrowers whichconform to the requirements of Section 2.16 of the Agreement.

 

“**Eligible Equity Proceeds**” means (a) theNet Cash Proceeds received by Parent from any sale or issuance of any EquityInterests (other than Disqualified Equity Interests) of Parent to the extentsuch Net Cash Proceeds are directly or indirectly contributed as a commoncapital contribution to, and actually received by, UHS (or, if only a portionthereof is so contributed and received, to the extent of such portion) and (b) aftera Qualifying IPO of UHS, the Net Cash Proceeds received by UHS from any sale orissuance of any Equity Interests (other than Disqualified Equity Interests) ofUHS.

 

“**Eligible Rental Equipment**” means, as of anydate of determination, the amount of all Rental Equipment of the Borrowerswhich (a) is held by Borrower (other than for sale) or is rented to thirdPersons in the ordinary course of business by Borrower or which is the subjectof an equipment rental program or similar equipment outsourcing program, and (b) conformsto the requirements of Section 2.16 of the Agreement.

 

“**Eligible Unbilled Accounts**” has the meaningspecified in Section 2.15.

 

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“**Eligible Wholesale Disposables**” means, asof any date of determination, all Wholesale Disposables of the Borrowers whichconform to the requirements of Section 2.16 of the Agreement.

 

“**Environmental Laws**” means any and allapplicable Federal, state, local, and foreign statutes, laws, regulations,ordinances, rules, judgments, orders, decrees, legally-binding agreements orgovernmental restrictions relating to pollution, the protection of theenvironment or the management, disposal or release of any hazardous materials,substances or wastes into the environment, including those related to airemissions and discharges to waste or public systems.

 

“**Environmental Liability**” means anyliability, contingent or otherwise (including any liability for damages, costsof environmental remediation, fines, penalties or indemnities), of theBorrowers, any other Loan Party or any of their respective Subsidiaries arisingfrom, resulting from or based upon (a) violation of any Environmental Law,(b) the generation, use, handling, transportation, storage, treatment ordisposal of any Hazardous Materials, (c) exposure to any HazardousMaterials, (d) the release or threatened release of any HazardousMaterials into the environment or (e) any contract, agreement or otherconsensual arrangement pursuant to which liability is assumed or imposed withrespect to any of the foregoing.

 

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

 

“**Equipment**” means all “equipment,” as suchterm is defined in the Uniform Commercial Code, now owned or hereafter acquiredby any Loan Party, wherever located and, in any event, including all such LoanParty’s machinery and equipment, including processing equipment, conveyors,machine tools, data processing and computer equipment, including embeddedSoftware and peripheral equipment and all engineering, processing andmanufacturing equipment, office machinery, furniture, materials handlingequipment, tools, attachments, accessories, automotive equipment, trailers,trucks, forklifts, molds, dies, stamps, motor vehicles, rolling stock and otherequipment of every kind and nature, trade fixtures and Fixtures not forming a partof real property, together with all additions and accessions thereto,replacements therefor, all parts therefor, all substitutes for any of theforegoing, fuel therefor, and all manuals, drawings, instructions, warrantiesand rights with respect thereto, and all products and proceeds thereof andcondemnation awards and insurance proceeds with respect thereto.

 

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

 

“**Equity Contribution Agreement**” means thedefinitive agreement pursuant to which the Sponsor commits to make the EquityContribution.

 

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

 

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

 

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“**Equity Investors**” means the Sponsor and theManagement Shareholders.

 

“**Equity Issuance**” means any issuance forcash by any Person and its Subsidiaries to any other Person of (a) its EquityInterests, (b) any of its Equity Interests pursuant to the exercise ofoptions or warrants, (c) any of its Equity Interests pursuant to theconversion of any debt securities to equity or (d) any options or warrantsrelating to its Equity Interests.  ADisposition shall not be deemed to be an Equity Issuance.

 

“**ERISA**” means the Employee Retirement IncomeSecurity Act of 1974.

 

“**ERISA Affiliate**” means any trade orbusiness (whether or not incorporated) under common control with the anyBorrower within the meaning of Section 414(b) or (c) of the Code(and Sections 414(m) and (o) of the Code for purposes of provisionsrelating to Section 412 of the Code).

 

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

 

“**Eurodollar Rate**” means, for any InterestPeriod with respect to any Eurodollar Rate Loan:

 

(a)           the rate per annumequal to the rate determined by the Administrative Agent to be the offered rateby reference to a page or other service that displays an average BritishBankers Association Interest Settlement Rate for deposits in Dollars (fordelivery on the first day of such Interest Period) with a term equivalent tosuch Interest Period, determined as of approximately 11:00 a.m. (Londontime) two (2) Business Days prior to the first day of such InterestPeriod, or

 

(b)           if the ratereferenced in the preceding clause (a) is not available, the rateper annum determined by the Administrative Agent as the rate of interest atwhich deposits in Dollars for delivery on the first day of such Interest Periodin immediately available funds in the approximate amount of the Eurodollar RateLoan being made, continued or converted by the Administrative Agent and with aterm equivalent to such Interest Period would be offered by the AdministrativeAgent’s London Branch to major banks in the London interbank eurodollar marketat their request at approximately 4:00 p.m. (London time) two (2) BusinessDays prior to the first day of such Interest Period.

 

“**Eurodollar Rate Loan**” means a Loan thatbears interest at a rate based on the Eurodollar Rate.

 

“**Event of Default**” has the meaning specifiedin Section 8.01.

 

“**Existing Credit Agreement**” has the meaningspecified in the Preliminary Statements to this Agreement.

 

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

 

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

 

“**Federal Funds Rate**” means, for any day, therate per annum equal to the weighted average of the rates on overnight Federalfunds transactions with members of the Federal Reserve System arranged byFederal funds brokers on such day, as published by the Federal Reserve Bank ofNew York on the Business Day next succeeding such day; *provided* that (a) if such day is nota Business Day, the Federal Funds Rate for such day shall be such rate on suchtransactions on the immediately preceding Business Day as so published on the next succeeding BusinessDay, and (b) if no such rate is so published on such next succeedingBusiness Day, the Federal Funds Rate for such day shall be the average ratecharged to the Administrative Agent on such day on such transactions asdetermined by the Administrative Agent.

 

“**Fee Letter**” means that certain Fee Letterdated as of April 23, 2007 among the Arrangers, the Administrative Agentand Parent.

 

“**Fixtures**” means all “fixtures” as such termis defined in the Uniform Commercial Code, now owned or hereafter acquired byany Loan Party.

 

“**Foreign Subsidiary**” means any direct orindirect Subsidiary of any Borrower which is not a Domestic Subsidiary.

 

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

 

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

 

“**GAAP**” means generally accepted accountingprinciples in the United States set forth in the opinions and pronouncements ofthe Accounting Principles Board and the American Institute of Certified PublicAccountants and statements and pronouncements of the Financial AccountingStandards Board or such other principles as may be approved by a significantsegment of the accounting profession in the United States, that are applicableto the circumstances as of the date of determination, consistently applied.

 

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

 

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

 

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otherbank accounts, rights to receive tax refunds and other payments, rights toreceive dividends, distributions, cash, Instruments and other property inrespect of or in exchange for pledged Stock and Investment Property, rights ofindemnification, all books and records, correspondence, credit files, invoicesand other papers, including without limitation all tapes, cards, computer runsand other papers and documents in the possession or under the control of suchLoan Party or any computer bureau or service company from time to time actingfor such Loan Party.

 

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

 

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

 

“**Granting Lender**” has the meaning specifiedin Section 10.07(g).

 

“**Guarantee**” means, as to any Person, withoutduplication, (a) any obligation, contingent or otherwise, of such Personguaranteeing or having the economic effect of guaranteeing any Indebtedness orother obligation payable or performable by another Person (the “**primary obligor**”) in any manner, whetherdirectly or indirectly, and including any obligation of such Person, direct orindirect, (i) to purchase or pay (or advance or supply funds for thepurchase or payment of) such Indebtedness or other obligation, (ii) topurchase or lease property, securities or services for the purpose of assuringthe obligee in respect of such Indebtedness or other obligation of the paymentor performance of such Indebtedness or other obligation, (iii) to maintainworking capital, equity capital or any other financial statement condition orliquidity or level of income or cash flow of the primary obligor so as toenable the primary obligor to pay such Indebtedness or other obligation, or (iv) enteredinto for the purpose of assuring in any other manner the obligee in respect ofsuch Indebtedness or other obligation of the payment or performance thereof orto protect such obligee against loss in respect thereof (in whole or in part),or (b) any Lien on any assets of such Person securing any Indebtedness orother obligation of any other Person, whether or not such Indebtedness or otherobligation is assumed by such Person (or any right, contingent or otherwise, ofany holder of such Indebtedness to obtain any such Lien); *provided, however,*if such obligation hasnot been assumed, the amount of such Guarantee shall be the lesser of theprimary obligations so secured or the value of the assets to which a Lien hasattached; and *provided further*that the term “Guarantee” shall not include endorsements for collection ordeposit, in either case in the ordinary course of business, or customary andreasonable indemnity obligations, including, but not limited to, those ineffect on the Closing Date or entered into in connection with any acquisitionor disposition of assets permitted under this Agreement (other than suchobligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal to thestated or determinable amount of the related primary obligation, or portionthereof, in respect of which such Guarantee is made or, if not stated ordeterminable, the maximum reasonably anticipated liability in respect thereofas determined by the guaranteeing Person in good faith.  The term “Guarantee” as a verb has acorresponding meaning.

 

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

 

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

 

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supplementof any Subsidiary in respect of the Obligations of the Borrowers deliveredpursuant to Section 6.12.

 

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

 

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

 

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

 

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

 

“**Indebtedness**” means, as to any Person at aparticular time, without duplication, all of the following, whether or notincluded as indebtedness or liabilities in accordance with GAAP:

 

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

 

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

 

(c)           net obligations ofsuch Person under any Swap Contract;

 

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

 

(e)           indebtedness(excluding prepaid interest thereon) secured by a Lien on property owned orbeing purchased by such Person (including indebtedness arising underconditional sales or other title retention agreements and mortgage, industrialrevenue bond, industrial development bond and similar financings), whether ornot such indebtedness shall have been assumed by such Person or is limited inrecourse;

 

(f)            all AttributableIndebtedness;

 

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

 

(h)           all SyntheticIndebtedness of such Person; and

 

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

 

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Forall purposes hereof, the Indebtedness of any Person shall include theIndebtedness of any partnership or joint venture (other than a joint venturethat is itself a corporation or limited liability company) in which such Personis a general partner or a joint venturer, unless such Indebtedness is expresslymade non-recourse to such Person.  Theamount of any net obligation under any Swap Contract on any date shall bedeemed to be the Swap Termination Value thereof as of such date.  The amount of Indebtedness of any Person forpurposes of clause (e) shall be deemed to be equal to the lesser of(x) the aggregate unpaid amount of such Indebtedness and (y) the fairmarket value of the property encumbered thereby as determined by such Person ingood faith.

 

“**Indemnified Liabilities**” has the meaningset forth in Section 10.05.

 

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

 

“**Information**” has the meaning specified in Section 10.08.

 

“**Initial L/C Issuer**” means the bank or otherfinancial institution listed on the signature pages hereof as the InitialL/C Issuer.

 

“**Initial Swing Line Lender**” means the bankor other financial institution listed on the signature pages hereof as theInitial Swing Line Lender.

 

“**Instruments**” means all “instruments,” assuch term is defined in the Uniform Commercial Code, now owned or hereafteracquired by any Loan Party, wherever located, and, in any event, including allcertificated securities, all certificates of deposit, and all promissory notesand other evidences of indebtedness, other than instruments that constitute, orare a part of a group of writings that constitute, Chattel Paper.

 

“**Intellectual Property**” means any and allPatents, Copyrights and Trademarks.

 

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

 

“**Intercreditor Agreement**” means theintercreditor agreement, in substantially the form of Exhibit Jhereto, dated as of May 31, 2007 among the Administrative Agent, theCollateral Agent and the Second Lien Collateral Agent and acknowledged andagreed to by the Borrowers, Parent and each other Loan Party.

 

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

 

“**Interest Payment Date**” means, (a) asto any Loan other than a Base Rate Loan, the last day of each Interest Periodapplicable to such Loan and the Maturity Date of the Facility under which suchLoan was made; *provided* that ifany Interest Period for a Eurodollar Rate Loan exceeds three months, therespective dates that fall every three months after the beginning of suchInterest Period shall also be Interest Payment Dates; and (b) as to anyBase Rate Loan (including a Swing Line Loan), the last

 

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BusinessDay of each March, June, September and December and the Maturity Dateof the Facility under which such Loan was made.

 

“**Interest Period**” means, as to eachEurodollar Rate Loan, the period commencing on the date such Eurodollar RateLoan is disbursed or converted to or continued as a Eurodollar Rate Loan andending on the date one, two, three or six months thereafter, or if available toall relevant Lenders, nine or twelve months thereafter, as selected by therelevant Borrower in its Committed Loan Notice; *provided* that:

 

(a)           any Interest Periodthat would otherwise end on a day that is not a Business Day shall be extendedto the next succeeding Business Day unless such Business Day falls in anothercalendar month, in which case such Interest Period shall end on the immediatelypreceding Business Day;

 

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

 

(c)           no Interest Periodshall extend beyond the Maturity Date of the Facility under which such Loan wasmade.

 

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

 

“**Investment**” means, as to any Person, anydirect or indirect acquisition or investment by such Person, whether by meansof (a) the purchase or other acquisition of Equity Interests or debt orother securities of another Person, (b) a loan, advance or capitalcontribution to, Guarantee or assumption of debt of, or purchase or otheracquisition of any other debt or equity participation or interest in, anotherPerson, including any partnership or joint venture interest in such otherPerson and any arrangement pursuant to which the investor incurs debt of thetype referred to in clause (i) of the definition of “Indebtedness”set forth in this Section 1.01 in respect of such Person or (c) thepurchase or other acquisition (in one transaction or a series of transactions)of all or substantially all of the property and assets or business of anotherPerson or assets constituting a business unit, line of business or division ofsuch Person.  For purposes of covenantcompliance, the amount of any Investment shall be the amount actually invested,without adjustment for subsequent increases or decreases in the value of suchInvestment, less any amount paid, repaid, returned, distributed or otherwisereceived in cash in respect of such Investment.

 

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

 

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balanceor other money owing by any securities intermediary with respect to thataccount; (c) all securities accounts of any Loan Party; (d) allcommodity contracts of any Loan Party; and (e) all commodity accounts heldby any Loan Party.

 

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

 

“**IRS**” means the United States InternalRevenue Service.

 

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

 

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

 

“**Jurisdictional Requirements**” has themeaning specified in Section 7.04(a).

 

“**Laws**” means, collectively, all applicableinternational, foreign, Federal, state, commonwealth and local statutes,treaties, rules, guidelines, regulations, ordinances, codes and administrativeor judicial precedents or authorities, including the interpretation thereof byany Governmental Authority charged with the enforcement, interpretation oradministration thereof, and all applicable administrative orders, directedduties, requests, licenses, authorizations and permits of, and agreements with,any Governmental Authority, in each case whether or not having the force oflaw.

 

“**L/C Advance**” means, with respect to eachLender, such Lender’s funding of its participation in any L/C Borrowing in accordancewith its Pro Rata Share.

 

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

 

“**L/C Credit Extension**” means, with respectto any Letter of Credit, the issuance thereof or extension of the expiry datethereof, or the renewal or increase of the amount thereof.

 

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

 

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

 

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“**L/C Obligations**” means, as at any date ofdetermination, the aggregate undrawn amount of all outstanding Letters ofCredit plus the aggregate of all Unreimbursed Amounts, including, withoutduplication, all L/C Borrowings.

 

“**Lease Payment Reserves**” means, a reserveagainst the Borrowing Base in an amount determined by the Administrative Agentin its reasonable discretion for rent payable by Borrowers with respect to eachlease of real property where Eligible Rental Equipment, Eligible WholesaleDisposables and Eligible Equipment Disposables are located and with respect towhich the applicable Borrower has failed to obtain an access agreement, in formand substance reasonably satisfactory to the Administrative Agent; *provided* that (a) such reserves shallbe limited to leases of real property where Eligible Rental Equipment, EligibleWholesale Disposables and Eligible Equipment Disposables are located in theStates of Iowa, Louisiana, Pennsylvania, Virginia and Washington and theDistrict of Columbia and any other jurisdiction that, after the Closing Date,enacts legislation providing landlords with a Lien (i) that is senior inpriority to that of the Collateral Agent, and (ii) which Lien will notlose its senior priority with respect to that of the Collateral Agent upon aone time turnover of the Eligible Rental Equipment, Eligible WholesaleDisposables and Eligible Equipment Disposables, (b) such reserves shall belimited to: (i) twelve (12) months rent payable by Borrowers with respectto locations in Iowa and Pennsylvania, (ii) six (6) months rentpayable by Borrowers with respect to locations in Louisiana and Virginia, (iii) three(3) months rent payable by Borrowers with respect to locations in theDistrict of Columbia, (iv) two (2) months rent payable by Borrowerswith respect to locations in the State of Washington, and (v) theapplicable number of months rent for which the landlord has priority over theLien of the Collateral Agent pursuant to legislation in the applicablejurisdiction, and (c) the amount of any reserves imposed with respect toany location shall not exceed the fair market value of the Eligible RentalEquipment, Eligible Wholesale Disposables and Eligible Equipment Disposableslocated at such location.

 

“**Lender**” has the meaning specified in theintroductory paragraph to this Agreement and, as the context requires, includesthe L/C Issuer and the Swing Line Lender.

 

“**Lending Office**” means, as to any Lender,the office or offices of such Lender described as such in such Lender’sAdministrative Questionnaire, or such other office or offices as a Lender mayfrom time to time notify the Borrowers and the Administrative Agent.

 

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

 

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

 

“**Letter of Credit Expiration Date**” means theday that is the scheduled Maturity Date then in effect for the Revolving CreditFacility.

 

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

 

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

 

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

 

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“**Lien**” means any mortgage, pledge,hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory orother), charge, or preference, priority or other security interest orpreferential arrangement of any kind or nature whatsoever (including anyconditional sale or other title retention agreement, any easement, right of wayor other encumbrance on title to real property, and any Capitalized Leasehaving substantially the same economic effect as any of the foregoing).  For the avoidance of doubt “Lien” shall notbe deemed to include any license of IP Rights.

 

“**Loan**” means an extension of credit by aLender to a Borrower under Article 2 in the form of a RevolvingCredit Loan or a Swing Line Loan.

 

“**Loan Documents**” means, collectively, (a) thisAgreement, (b) the Notes, (c) the Guaranty, (d) the CollateralDocuments, (e) the Fee Letter, (f) the GE Capital Fee Letter, (g) eachLetter of Credit Application, (h) the Intercreditor Agreement and (i) solelyfor purposes of the Collateral Documents and the Guaranty, each Secured HedgeAgreement.

 

“**Loan Parties**” means, collectively, eachBorrower and each Guarantor.

 

“**Management Shareholders**” means the membersof management of UHS, its direct or indirect parent company or its Subsidiarieswho are investors, directly or indirectly, in Parent.

 

“**Master Agreement**” has the meaning specifiedin the definition of “Swap Contract.”

 

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

 

“**Material Intellectual Property**” means anyIP Rights that are material to the operation of the business of the Borrowersand the Restricted Subsidiaries, taken as a whole.

 

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

 

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

 

“**Maximum Amount**” means, as of any date ofdetermination, an amount equal to the aggregate Revolving Credit Commitments ofall the Lenders as of such date.  Theinitial amount thereof as of the Amendment Closing Date is $195,000,000.

 

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

 

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

 

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

 

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

 

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witheach other mortgage or other comparable instrument in form and substancereasonably acceptable to the Administrative Agent executed and deliveredpursuant to Section 6.12.

 

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

 

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

 

“**Net Cash Proceeds**” means:

 

(a)           with respect to anyCasualty Event, the excess, if any, of (i) the sum of cash and CashEquivalents received in connection with such Casualty Event (including anyinsurance proceeds or condemnation awards in respect of such Casualty Eventactually received by or paid to or for the account of any Borrower or any ofits Restricted Subsidiaries) over (ii) the sum of (A) the principalamount of any Indebtedness that is secured by the asset subject to suchCasualty Event and that is required to be repaid (and is timely repaid) inconnection with such Casualty Event (other than Indebtedness under the LoanDocuments), (B) the out-of-pocket fees and expenses (including, withoutlimitation, attorneys’ fees, investment banking fees, survey costs, titleinsurance premiums, and related search and recording charges, transfer taxes,deed or mortgage recording taxes, other customary expenses and brokerage,consultant and other customary fees) actually incurred by such Borrower or suchRestricted Subsidiary in connection with such Casualty Event, (C) taxespaid or reasonably estimated to be payable in connection therewith by suchBorrower or such Restricted Subsidiary and attributable to such Casualty Event(including, in respect of any proceeds received in connection with a CasualtyEvent of any asset of any Restricted Subsidiary organized under the laws of ajurisdiction different from the jurisdiction of organization of the Borrowerthat is its most direct parent company, deductions in respect of withholdingtaxes that are payable in cash if such funds are repatriated to the jurisdictionof the relevant Borrower) and (D) any reserve for adjustment in respect of(1) the sale price of such asset or assets established in accordance withGAAP and (2) any liabilities associated with such asset or assets andretained by any Borrower or any of its Restricted Subsidiaries after such saleor other disposition thereof, including, without limitation, pension and otherpost-employment benefit liabilities and liabilities related to environmentalmatters or against any indemnification obligations associated with suchtransaction and it being understood that “Net Cash Proceeds” shall include,without limitation, any cash or Cash Equivalents (i) received upon theDisposition of any non-cash consideration received by any Borrower or any ofits Restricted Subsidiaries in respect of any such Casualty Event and (ii) uponthe reversal (without the satisfaction of any applicable liabilities in cash ina corresponding amount) of any reserve described in clause (D) aboveor, if such liabilities have not been satisfied in cash and such reserve notreversed within three hundred and sixty-five (365) days after such CasualtyEvent, the amount of such reserve.

 

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

 

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suchfunds are repatriated to the jurisdiction of the relevant Borrower) and fees(including investment banking fees, underwriting discounts, commissions, costsand other out-of-pocket expenses (including attorneys’ fees) and othercustomary expenses) incurred by such Borrower or such Restricted Subsidiary inconnection with such issuance; and

 

(c)           with respect to theincurrence or issuance of any Indebtedness by any Borrower or any of itsRestricted Subsidiaries, the excess, if any, of (i) the sum of the cashreceived in connection with such incurrence or issuance over (ii) theinvestment banking fees, underwriting discounts, commissions, costs and otherout-of-pocket expenses (including attorneys’ fees) and other customaryexpenses, incurred by such Borrower or such Restricted Subsidiary in connectionwith such incurrence or issuance (including, in the case of Indebtedness of anyRestricted Subsidiary organized under the laws of a jurisdiction different fromthe jurisdiction of organization of the Borrower that is its most direct parentcompany, deductions in respect of withholding taxes that are payable in cash ifsuch funds are repatriated to the jurisdiction of the relevant Borrower).

 

“**Non-Consenting Lender**” has the meaningspecified in Section 3.07(d).

 

“**Non-Recourse Debt**” means Indebtedness:

 

(a)           as to which neitherParent nor any of its Restricted Subsidiaries (i) provides credit supportof any kind (including any undertaking, agreement or instrument that wouldconstitute Indebtedness), (ii) is directly or indirectly liable as aguarantor or otherwise, or (ii) constitutes the lender;

 

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

 

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

 

“**Nonrenewal Notice Date**” has the meaningspecified in Section 2.03(b)(iii).

 

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

 

“**Not Otherwise Applied**” means, withreference to any amount of Net Cash Proceeds of any transaction or event, thatsuch amount (a) was not previously included in a calculation of “ConsolidatedEBITDA” pursuant to clause (b)(xiii) of the definition thereof and (c) wasnot previously applied in determining the permissibility of a transaction underthe Loan Documents where such permissibility was (or may have been) contingenton receipt of such amount.

 

“**Note**” means a Revolving Credit Note.

 

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

 

“**NPL**” means the National Priorities Listunder CERCLA.

 

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“**Obligations**” means all advances to, anddebts, liabilities, obligations, covenants and duties of, any Loan Partyarising under any Loan Document with respect to any Loan or Letter of Credit,whether direct or indirect (including those acquired by assumption), absoluteor contingent, due or to become due, now existing or hereafter arising andincluding interest and fees that accrue after the commencement by or againstany Loan Party of any proceeding under any Debtor Relief Laws naming suchPerson as the debtor in such proceeding, regardless of whether such interestand fees are allowed claims in such proceeding. Without limiting the generality of the foregoing, the Obligations of theLoan Parties under the Loan Documents include (a) the obligation to payprincipal, interest, Letter of Credit commissions, charges, expenses, fees,Attorney Costs, indemnities and other amounts payable by any Loan Party underany Loan Document and (b) the obligation of any Loan Party to reimburseany amount in respect of any of the foregoing that any Lender, any Agent or anyL/C Issuer in its sole discretion, may elect to pay or advance on behalf ofsuch Loan Party.

 

“**Organization Documents**” means, (a) withrespect to any corporation, the certificate or articles of incorporation andthe bylaws (or equivalent or comparable constitutive documents with respect toany non-US jurisdiction); (b) with respect to any limited liabilitycompany, the certificate or articles of formation or organization and operatingagreement; and (c) with respect to any partnership, joint venture, trustor other form of business entity, the partnership, joint venture or otherapplicable agreement of formation or organization and any agreement,instrument, filing or notice with respect thereto filed in connection with itsformation or organization with the applicable Governmental Authority in thejurisdiction of its formation or organization and, if applicable, any certificateor articles of formation or organization of such entity.

 

“**Other Taxes**” has the meaning specified in Section 3.01(b).

 

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

 

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

 

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

 

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

 

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

 

“**PATRIOT Act**” means the Uniting andStrengthening America by Providing Appropriate Tools Required to Intercept andObstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signedinto Law October 26, 2001)).

 

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“**PBGC**” means the Pension Benefit GuarantyCorporation referred to and defined in ERISA and any successor entityperforming similar functions.

 

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

 

“**Permitted Acquisition**” has the meaningspecified in Section 7.02(i).

 

“**Permitted Encumbrances**” has the meaningspecified in the Mortgages.

 

“**Permitted Holders**” means the Sponsor andthe Management Shareholders.

 

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

 

“**Permitted Refinancing**” means, with respectto any Person, any modification, refinancing, refunding, renewal or extensionof any Indebtedness of such Person; *provided*that (a) the principal amount (or accreted value, if applicable) thereofdoes not exceed the principal amount (or accreted value, if applicable),including any amounts paid-in-kind, of the Indebtedness so modified,refinanced, refunded, renewed or extended except by an amount equal to unpaidaccrued interest and premium thereon plus other reasonable amounts paid, andfees and expenses reasonably incurred, in connection with such modification,refinancing, refunding, renewal or extension and by an amount equal to anyexisting commitments unutilized thereunder, (b) such modification,refinancing, refunding, renewal or extension has a final maturity date equal toor later than the final maturity date of, and has a Weighted Average Life toMaturity equal to or greater than the Weighted Average Life to Maturity of, theIndebtedness being modified, refinanced, refunded, renewed or extended, (c) ifthe Indebtedness being modified, refinanced, refunded, renewed or extended issubordinated in right of payment to the Obligations, such modification,refinancing, refunding, renewal or extension is subordinated in right ofpayment to the Obligations on terms at least as favorable to the Lenders asthose contained in the documentation governing the Indebtedness being modified,refinanced, refunded, renewed or extended, taken as a whole, (d) the termsand conditions (including, if applicable, as to collateral) of any suchmodified, refinanced, refunded, renewed or extended Indebtedness (excludinginterest rate and call protection, which shall be on then market terms forsimilar issuances of Indebtedness) are not materially less favorable to theLoan Parties or the Lenders than the terms and conditions of the Indebtednessbeing modified, refinanced, refunded, renewed or extended, (e) suchmodification, refinancing, refunding, renewal or extension is incurred by thePerson or Persons who are the obligors on the Indebtedness being modified,refinanced, refunded, renewed or extended, and such new or additional obligorsas are permitted under Section 7.03 or as are or become LoanParties in accordance with Section 6.12 and with respect tosubordinated Indebtedness the obligations of such obligors shall besubordinated in right of payment to the Obligations on terms at least asfavorable to the Lenders as those contained in documentation governing theIndebtedness, taken as a whole and (f) at the time thereof, no Event ofDefault shall have occurred and be continuing.

 

“**Permitted Subordinated Indebtedness**” meansany unsecured Indebtedness of a Borrower that (a) is expresslysubordinated to the prior payment in full in cash of the Obligations on termsand conditions satisfactory to the Administrative Agent, (b) is notscheduled to mature prior to the date that is one hundred eighty-one (181) daysafter the scheduled Maturity Date of the Revolving Credit Facility, (c) hasno scheduled amortization or payments of principal prior to the date that isone hundred eighty-one (181) days after the Maturity Date of the RevolvingCredit Facility, and (d) has covenant, default and

 

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

 

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

 

“**Platform**” has the meaning specified in Section 6.02.

 

“**Pledged Debt**” has the meaning specified inthe Security Agreement.

 

“**Pledged Equity**” has the meaning specifiedin the Security Agreement.

 

**“Post-Acquisition Period”** means, with respect to anyPermitted Acquisition, the period beginning on the date such PermittedAcquisition is consummated and ending on the last day of the fourth fullconsecutive fiscal quarter immediately following the date on which suchPermitted Acquisition is consummated.

 

“**Pro Forma Adjustment**” means, for any periodfor which the financial covenant contained in Section 7.11, theLeverage Ratio or the Interest Coverage Ratio is measured that includes all orany part of a fiscal quarter included in any Post-Acquisition Period, withrespect to the Acquired EBITDA of the applicable entity or business acquired ina Permitted Acquisition or the Consolidated EBITDA of the Borrower Parties, thepro forma increase or decrease in such Acquired EBITDA or such ConsolidatedEBITDA, as the case may be, either (a) in an aggregate amount not inexcess of 15% of Consolidated EBITDA after giving effect to any such PermittedAcquisition, projected by the Borrowers in good faith or (b) reasonablyacceptable to the Administrative Agent, in each case, as a result of (i) anyaction taken during such Post-Acquisition Period for the purposes of realizingreasonable identifiable and factually supportable cost savings or (ii) anyadditional costs incurred during such Post-Acquisition Period, in each case inconnection with the combination of the operations of such entity or businesswith the operations of the Borrowers and the Restricted Subsidiaries; *provided* that, so long as such actions aretaken during such Post-Acquisition Period or such costs are incurred duringsuch Post-Acquisition Period, as applicable, the cost savings related to suchactions or such additional costs, as applicable, it may be assumed, forpurposes of projecting such pro forma increase or decrease to such AcquiredEBITDA or such Consolidated EBITDA, as the case may be, that such cost savingswill be realized during the entirety of such period, or such additional costs,as applicable, will be incurred during the entirety of such period; *provided further* that any such pro formaincrease or decrease to such Acquired EBITDA or such Consolidated EBITDA, asthe case may be, shall be without duplication for cost savings or additionalcosts already included in such Acquired EBITDA or such Consolidated EBITDA, asthe case may be, for such period.

 

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

 

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impliedrate of interest for the applicable period for purposes of this definitiondetermined by utilizing the rate which is or would be in effect with respect tosuch Indebtedness as at the relevant date of determination; *provided* that the foregoing pro formaadjustments may be applied to the financial covenant set forth in Section 7.11the definitions of Leverage Ratio and Interest Coverage Ratio solely to theextent that such adjustments are consistent with the definition of ConsolidatedEBITDA and give effect to events that are (i) (x) directlyattributable to such transaction, (y) expected to have a continuing impacton the Borrowers and their Restricted Subsidiaries and (z) factuallysupportable or based on the reasonable good faith of the Responsible Officerexecuting the Compliance Certificate or (ii) otherwise consistent with thedefinition of Pro Forma Adjustment.

 

“**Pro Rata Share**” means, with respect to eachLender at any time, a fraction (expressed as a percentage, carried out to theninth decimal place), the numerator of which is the amount of the RevolvingCredit Commitments of such Lender under the Revolving Credit Facility at suchtime and the denominator of which is the amount of the Aggregate Commitmentsunder the Revolving Credit Facility at such time; *provided* that if such Revolving Credit Commitments have beenterminated, then the Pro Rata Share of each Lender shall be determined based onthe Pro Rata Share of such Lender immediately prior to such termination andafter giving effect to any subsequent assignments made pursuant to the termshereof.

 

“**Public Lender**” has the meaning specified inSection 6.02.

 

“**Purchased Subsidiary**” has the meaningspecified in the preliminary statements to this Agreement.

 

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

 

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

 

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

 

“**Related Documents**” means the MergerAgreement, the Equity Contribution Agreement, the Senior Notes Documents andthe Senior PIK/Toggle Notes Documents.

 

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

 

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

 

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

 

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

 

“**Reserves**” means reserves establishedpursuant to either of Sections 2.15 or 2.16 and Lease PaymentReserves.

 

“**Responsible Officer**” means the chiefexecutive officer, president, chief financial officer or controller of a LoanParty or, in the case of any Borrower, any duly appointed authorized signatoryor any director or managing member of such Person and, as to any documentdelivered on the Amendment Closing Date, any secretary or assistant secretary.  Any document delivered hereunder that issigned by a Responsible Officer of a Loan Party shall be conclusively presumedto have been authorized by all necessary corporate, partnership and/or otheraction on the part of such Loan Party and such Responsible Officer shall beconclusively presumed to have acted on behalf of such Loan Party.

 

“**Restricted Payment**” means any dividend orother distribution (whether in cash, securities or other property) with respectto any Equity Interest of any Borrower or any Restricted Subsidiary, or anypayment (whether in cash, securities or other property), including any sinkingfund or similar deposit, on account of the purchase, redemption, retirement,defeasance, acquisition, cancellation or termination of any such EquityInterest, or on account of any return of capital to the stockholders, partnersor members (or the equivalent Persons thereof) of any Borrower or anyRestricted Subsidiary.

 

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

 

“**Revolving Credit Borrowing**” means aborrowing consisting of simultaneous Revolving Credit Loans of the same Typeand, in the case of Eurodollar Rate Loans, having the same Interest Period madeby each of the Lenders pursuant to Section 2.01.

 

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

 

“**Revolving Credit Commitment**” means, as toeach Lender, its obligation to (a) make Revolving Credit Loans to theBorrowers pursuant to Section 2.01, (b) purchaseparticipations in L/C Obligations in respect of Letters of Credit and (c) purchaseparticipations in Swing Line Loans, in an aggregate amount at any one timeoutstanding not to exceed the amount set forth, and opposite such Lender’s nameon Schedule 2.01 under the caption “Revolving Credit Commitment” or inthe Assignment and Assumption pursuant to which such Lender becomes a partyhereto, as applicable, as such amount may be adjusted from time to time inaccordance with this Agreement.  Theaggregate Revolving Credit Commitments of all Lenders shall be $195,000,000 onthe Amendment Closing Date, as such amount may be adjusted from time to time inaccordance with the terms of this Agreement.

 

“**Revolving Credit Facility**” means, at anytime, the aggregate amount of the Lenders’ Revolving Credit Commitments at suchtime.

 

“**Revolving Credit Loan**” has the meaningspecified in Section 2.01.

 

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“**Revolving Credit Note**” means a promissorynote of a Borrower payable to any Lender or its registered assigns, insubstantially the form of Exhibit C-1 hereto, evidencing theaggregate indebtedness of such Borrower to such Lender resulting from theRevolving Credit Loans made by such Lender to such Borrower.

 

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

 

“**S&P**” means Standard & Poor’sRatings Services, a division of The McGraw-Hill Companies, Inc., and anysuccessor thereto.

 

“**SEC**” means the Securities and ExchangeCommission, or any Governmental Authority succeeding to any of its principalfunctions.

 

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

 

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

 

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

 

“**Secured Hedge Obligations**” means anyObligation arising under a Secured Hedge Agreement.

 

“**Secured Obligations**” has the meaningspecified in the Security Agreement.

 

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

 

“**Security Agreement**” means the Amended andRestated First Lien Security Agreement among the Borrowers, the Guarantors, theAdditional Grantors named therein and the Collateral Agent, dated as of thedate hereof and substantially in the form of Exhibit G, togetherwith each related security agreement supplement executed and delivered pursuantto Section 6.12.

 

“**Security Agreement Supplement**” has the meaningspecified in the Security Agreement.

 

“**Seller**” means J.W. Childs Equity PartnersIII, L.P., as representative of the Securityholders (as defined in the MergerAgreement).

 

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

 

“**Senior Notes Documents**” means the SeniorNotes, the Senior Indenture, the Intercreditor Agreement, the Second LienSecurity Agreement and all other documents executed and delivered with respectto the Senior Notes or the Senior Indenture.

 

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“**Senior Indenture**” means the Indenture datedas of****May 31,****2007, pursuant to which the Senior Notesand the Senior PIK/Toggle Notes were issued.

 

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

 

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

 

“**Solvency Certificate**” has the meaningspecified in Section 4.01(a)(ix).

 

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

 

“**Specified Officer**” means the chiefexecutive officer, president, chief financial officer or general counsel of aLoan Party.

 

“**Specified Transaction**” means any (a) Dispositionof all or substantially all the assets of or all the Equity Interests of anyRestricted Subsidiary or of any division or product line of any Borrower or anyof its Restricted Subsidiaries, (b) Permitted Acquisition, (c) designationof any Restricted Subsidiary as an Unrestricted Subsidiary, or of anyUnrestricted Subsidiary as a Restricted Subsidiary, in each case in accordancewith Section 6.16 or (d) the proposed incurrence ofIndebtedness or making of a Restricted Payment in respect of which compliancewith the financial covenant set forth in Section 7.11 is by theterms of this Agreement required to be calculated on a Pro Forma Basis.

 

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

 

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

 

“**Stated Maturity**” means, with respect to anyinstallment of interest or principal on any series of Indebtedness, the date onwhich the payment of interest or principal was scheduled to be paid in thedocumentation governing such Indebtedness, and will not include any contingentobligations to repay, redeem or repurchase any such interest or principal priorto the date originally scheduled for the payment thereof.

 

“**Subsidiary**” of a Person means acorporation, partnership, limited liability company or other business entity ofwhich a majority of the shares of securities or other interests having ordinaryvoting power for the election of directors or other governing body (other thansecurities or interests having such power only by reason of the happening of acontingency) are at the time beneficially owned, or the management of which isotherwise controlled, directly, or indirectly through one or moreintermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” orto “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of any Borrower.

 

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

 

“**Swap Contract**” means (a) any and allrate swap transactions, basis swaps, credit derivative transactions, forwardrate transactions, commodity swaps, commodity options, forward contracts,future contracts, equity or equity index swaps or options, bond or bond priceor bond index swaps or options or forward bond or forward bond price or forwardbond index transactions, interest rate options, forward foreign exchangetransactions, cap transactions, floor transactions, collar transactions,currency swap transactions, cross-currency rate swap transactions, currencyoptions, spot contracts, repurchase agreements, reverse repurchase agreements,sell buy back and buy sell back agreements, and securities lending andborrowing agreements or any other similar transactions or any combination ofany of the foregoing (including any options to enter into any of theforegoing), whether or not any such transaction is governed by or subject toany master agreement, and (b) any and all transactions of any kind, andthe related confirmations, which are subject to the terms and conditions of, orgoverned by, any form of master agreement published by the International Swapsand Derivatives Association, Inc., any International Foreign ExchangeMaster Agreement, or any other master agreement (any such master agreement,together with any related schedules, a “**MasterAgreement**”), including any such obligations or liabilities under anyMaster Agreement.

 

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

 

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

 

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

 

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

 

“**Swing Line Loan**” has the meaning specifiedin Section 2.04(a).

 

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

 

“**Swing Line Note**” means a promissory note ofany Borrower payable to the Swing Line Lender or its registered assigns, insubstantially the form of Exhibit C-2 hereto, evidencing theaggregate indebtedness of such Borrower to such Swing Line Lender resultingfrom the Swing Line Loans made by the Swing Line Lender.

 

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“**Swing Line Sublimit**” means $5,000,000.  The Swing Line Sublimit is part of, and notin addition to, the Revolving Credit Facility.

 

“**Syndication Agent**” means GE Capital, assyndication agent under this Agreement.

 

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

 

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

 

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

 

“**Threshold Amount**” means $15,000,000.

 

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

 

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

 

“**Trademarks**” means all of the following nowowned or hereafter existing or adopted or acquired by any Loan Party: (a) alltrademarks, trade names, corporate names, business names, trade styles, servicemarks, logos, other source or business identifiers, designs and generalintangibles of like nature (whether registered or unregistered), allregistrations and recordings thereof, and all applications in connectiontherewith, including registrations, recordings and applications in the UnitedStates Patent and Trademark Office or in any similar office or agency of theUnited States, any state or territory thereof, or any other country or anypolitical subdivision thereof; (b) all reissues, extensions or renewalsthereof; and (c) all goodwill associated with or symbolized by any of theforegoing.

 

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

 

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

 

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

 

“**UHS**” has the meaning specified in firstparagraph of this Agreement.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

“**Wholesale Disposables**” means Inventorypurchased by any Borrower or any of its Subsidiaries for sale to customers ofsuch Borrower or any of its Subsidiaries.

 

SECTION 1.02.  Other Interpretive Provisions.  With reference to thisAgreement and each other Loan Document, unless otherwise specified herein or insuch other Loan Document:

 

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

###  

### (b)           (i)            Thewords “herein,” “hereto,” “hereof” and “hereunder” and words of similar importwhen used in any Loan Document shall refer to such Loan Document as a whole andnot to any particular provision thereof.

###  

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

#####  

##### (iii)          The term “including” is by way ofexample and not limitation.

#####  

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

###  

### (d)           Section headings herein and inthe other Loan Documents are included for convenience of reference only andshall not affect the interpretation of this Agreement or any other LoanDocument.

###  

SECTION 1.03.  Accounting Terms.  (a)  All accountingterms not specifically or completely defined herein shall be construed inconformity with, and all financial data required to be submitted pursuant tothis Agreement shall be prepared in conformity with, GAAP, as in effect fromtime to time.  The financial ratiocalculated pursuant to Section 7.11 shall be calculated in a mannerconsistent with that used in preparing the Historical Financial Statements forthe fiscal year ended December 31, 2006, except as otherwise specificallyprescribed herein.

 

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

###  

### (c)           Notwithstanding anything to thecontrary contained herein, financial ratios and other financial calculationspursuant to this Agreement shall, following any Specified Transaction, becalculated on a Pro Forma Basis.

###  

SECTION 1.04.  Rounding.  Any financial ratios requiredto be maintained by any Borrower pursuant to this Agreement (or required to besatisfied in order for a specific action to be permitted under this Agreement)shall be calculated by dividing the appropriate component by the othercomponent, carrying the result to one place more than the number of places bywhich such ratio is expressed herein and rounding the result up or down to thenearest number (with a rounding-up if there is no nearest number).

 

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

 

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restatements,extensions, supplements and other modifications are not prohibited by any LoanDocument; and (b) references to any Law shall include all statutory andregulatory provisions consolidating, amending, replacing, supplementing orinterpreting such Law.

 

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

 

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

 

# ARTICLE2

#  

# THEREVOLVING CREDIT COMMITMENTS AND CREDIT EXTENSIONS

#  

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

 

Anyprovision of this Agreement to the contrary notwithstanding, at the request ofBorrowers, in its discretion Administrative Agent may (but shall haveabsolutely no obligation to), make Revolving Credit Loans to the Borrowers onbehalf of the Lenders, for the purpose of protecting or preserving theCollateral or any portion thereof, enhancing the likelihood of repayment of theObligations or paying any other amount chargeable to the Borrowers pursuant tothe terms of this Agreement (including fees, costs and expenses described in Section 10.04),in amounts that cause the aggregate Outstanding Amount of the Revolving CreditLoans to exceed the Borrowing Base (less the Swing Line Loan) (any such excessaggregate Outstanding Amount of the Revolving Credit Loans are herebycollectively referred to as “**Overadvances**”);*provided*that (A) no suchevent or occurrence shall cause or constitute a waiver of the AdministrativeAgent’s, the Swing Line Lender’s or any Lender’s right to refuse to make anyfurther Overadvances, Swing Line Loans or Revolving Credit Loans, or incur anyL/C Obligations, as the case may be, at any time that an Overadvance exists,and (B) no Overadvance shall result in a Default or Event of Default dueto Borrowers’ failure to comply with Section 2.05(b) for solong as the Administrative Agent permits such Overadvance to remainoutstanding, but solely with

 

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respectto the amount of such Overadvance.  Inaddition, Overadvances may be made even if the conditions to lending set forthin Article 4 have not been met.  AllOveradvances shall constitute Base Rate Loans, shall bear interest at theDefault Rate and shall be payable on the earlier of demand and the TerminationDate.  The authority of AdministrativeAgent to make Overadvances is limited to an aggregate amount of $10,000,000 atany time, shall not cause the Revolving Loan to exceed the Maximum Amount andmay be revoked prospectively by a written notice to Administrative Agent signedby Required Lenders.

 

SECTION 2.02.  Borrowings, Conversions and Continuationsof Loans.  (a)  EachRevolving Credit Borrowing, each conversion of Revolving Credit Loans from oneType to the other, and each continuation of Eurodollar Rate Loans shall be madeupon any Borrower’s irrevocable (except as provided in Section 3.02,Section 3.03 and Section 3.04 herein) notice to theAdministrative Agent, which may be given by telephone.  Each such notice must be received by theAdministrative Agent (i) not later than 12:00 p.m. (noon) three (3) BusinessDays prior to the requested date of any Borrowing of Eurodollar Rate Loans,continuation of Eurodollar Rate Loans or any conversion of Base Rate Loans toEurodollar Rate Loans, and (ii) not later than 12:00 p.m. (noon) onthe requested date of any Borrowing of Base Rate Loans.  Each telephonic notice by a Borrower pursuantto this Section 2.02(a) must be confirmed promptly by deliveryto the Administrative Agent of a written Committed Loan Notice, appropriatelycompleted and signed by a Responsible Officer of such Borrower.  Each Borrowing of, conversion to orcontinuation of Eurodollar Rate Loans shall be in a minimum principal amount of$500,000 or a whole multiple of $250,000 in excess thereof.  Except as provided in Section 2.03(c)(i) andSection 2.04(c)(i), each Borrowing of or conversion to Base RateLoans shall be in a principal amount of $50,000 or a whole multiple of $50,000in excess thereof.  Each Committed LoanNotice (whether telephonic or written) shall specify (i) whether therelevant Borrower is requesting a Revolving Credit Borrowing, a conversion ofRevolving Credit Loans from one Type to the other, or a continuation of EurodollarRate Loans, (ii) the requested date of the Borrowing, conversion orcontinuation, as the case may be (which shall be a Business Day), (iii) theprincipal amount of Loans to be borrowed, converted or continued, (iv) theType of Loans to be borrowed or to which existing Revolving Credit Loans are tobe converted, (v) if applicable, the duration of the Interest Period withrespect thereto and (vi) the account of the relevant Borrower to becredited with the proceeds of such Borrowing. If, with respect to Loans denominated in Dollars the relevant Borrowerfails to specify a Type of Loan in a Committed Loan Notice or fails to give atimely notice requesting a conversion or continuation, then the applicableRevolving Credit Loans shall be made as, or converted to, Base Rate Loans.  Any such automatic conversion to Base RateLoans shall be effective as of the last day of the Interest Period then ineffect with respect to the applicable Eurodollar Rate Loans.  If the relevant Borrower requests a Borrowingof, conversion to, or continuation of Eurodollar Rate Loans in any suchCommitted Loan Notice, but fails to specify an Interest Period, it will bedeemed to have specified an Interest Period of one (1) month.

 

### (b)           Following receipt of a Committed LoanNotice, the Administrative Agent shall promptly notify each Appropriate Lenderof the amount of its Pro Rata Share of the Loans, and if no timely notice of aconversion or continuation is provided by the relevant Borrower, theAdministrative Agent shall notify each Lender of the details of any automaticconversion to Base Rate Loans or continuation described in Section 2.02(a).  In the case of each Borrowing, eachAppropriate Lender shall make the amount of its Loan available to theAdministrative Agent in immediately available funds at the Administrative Agent’sOffice not later than 12:00 p.m. (noon) on the Business Day specified inthe applicable Committed Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02(or, if such Borrowing is the initial Credit Extension, Section 4.01),the Administrative Agent shall make all funds so received available to therelevant Borrower in like funds as received by the Administrative Agent by wiretransfer of such funds in accordance with instructions provided to theAdministrative Agent by such Borrower.

 

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### (c)           Except as otherwise provided herein,a Eurodollar Rate Loan may be continued or converted only on the last day of anInterest Period for such Eurodollar Rate Loan unless the relevant Borrower paysthe amount due, if any, under Section 3.05 in connectiontherewith.  During the continuance of anEvent of Default, the Administrative Agent or the Required Lenders may requirethat no Loans may be converted to or continued as Eurodollar Rate Loans.

###  

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

###  

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

###  

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

###  

SECTION 2.03.  Letters of Credit.  (a)  The Letter ofCredit Commitment.  (i)  Subjectto the terms and conditions set forth herein, (A) the L/C Issuer agrees,in reliance upon the agreements of the other Lenders set forth in this Section 2.03,(1) from time to time on any Business Day during the period from theClosing Date until the Letter of Credit Expiration Date, to issue Letters ofCredit denominated in Dollars for the account of the Borrowers (or anyRestricted Subsidiary so long as a Borrower is a joint and severalco-applicant, and references to a “Borrower” in this Section 2.03shall be deemed to include reference to such Restricted Subsidiary) and toamend or renew Letters of Credit previously issued by it, in accordance with Section 2.03(b),and (2) to honor drafts under the Letters of Credit; and (B) theLenders severally agree to participate in Letters of Credit issued for theaccount of the relevant Borrower; *provided*that the L/C Issuer shall not be obligated to make any L/C Credit Extensionwith respect to any Letter of Credit, and no Lender shall be obligated toparticipate in any Letter of Credit if, as of the date of such L/C CreditExtension, (x) the aggregate Outstanding Amount of the Revolving CreditLoans of any Lender, plus such Lender’s Amount of Pro Rata Share of theOutstanding Amount of all L/C Obligations, plus such Lender’s Pro Rata Share ofthe Outstanding Amount of all Swing Line Loans, would exceed such Lender’sRevolving Credit Commitment, or (y) the Outstanding Amount of the L/CObligations would exceed the Letter of Credit Sublimit, or (z) theaggregate Outstanding Amount of the Revolving Credit Loans, plus theOutstanding Amount of all L/C Obligations, plus the Outstanding Amount of allSwing Line Loans, would exceed the Borrowing Base; *provided further* that the Initial L/C Issuer shall not beobligated to make any L/C Credit Extension with respect to any Letter ofCredit, if, as of the date of such L/C Credit Extension, the Outstanding Amountof the L/C Obligations issued by the Initial L/C issuer would exceed$5,000,000.  Within the foregoing limits,and subject to the terms and conditions hereof, the relevant Borrower’s abilityto obtain Letters of Credit shall be fully revolving, and accordingly suchBorrower may, during the foregoing period, obtain Letters of Credit to replaceLetters of Credit that have expired or that have been drawn upon andreimbursed.

 

##### (ii)           The L/C Issuer shall be under noobligation to issue any Letter of Credit if:

 

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(A)          any order, judgment or decree of any Governmental Authorityor arbitrator shall by its terms purport to enjoin or restrain the L/C Issuerfrom issuing such Letter of Credit, or any Law applicable to the L/C Issuer orany request or directive (whether or not having the force of law) from anyGovernmental Authority with jurisdiction over the L/C Issuer shall prohibit, orrequest that the L/C Issuer refrain from, the issuance of letters of creditgenerally or such Letter of Credit in particular or shall impose upon the L/CIssuer with respect to such Letter of Credit any restriction, reserve orcapital requirement (for which the L/C Issuer is not otherwise compensatedhereunder) not in effect on the Closing Date, or shall impose upon the L/CIssuer any unreimbursed loss, cost or expense which was not applicable on theClosing Date and which, in each case, the L/C Issuer in good faith deemsmaterial to it;

 

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

 

(C)           the expiry date of such requested Letter of Credit wouldoccur after the Letter of Credit Expiration Date, unless all the Lenders haveapproved such expiry date; or

 

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

 

##### (iii)          The L/C Issuer shall be under noobligation to amend any Letter of Credit if (A) the L/C Issuer would haveno obligation at such time to issue such Letter of Credit in its amended formunder the terms hereof, or (B) the beneficiary of such Letter of Creditdoes not accept the proposed amendment to such Letter of Credit.

#####  

### (b)           Procedures for Issuance andAmendment of Letters of Credit; Auto-Renewal Letters of Credit.  (i)  Each Letter of Credit shall beissued or amended, as the case may be, upon the request of the relevantBorrower delivered to the L/C Issuer (with a copy to the Administrative Agent)in the form of a Letter of Credit Application, appropriately completed andsigned by a Responsible Officer of such Borrower.  Such Letter of Credit Application must bereceived by the L/C Issuer and the Administrative Agent not later than 1:00 p.m.at least two (2) days, or such shorter period as mutually agreed, prior tothe proposed issuance date or date of amendment, as the case may be (providedthat in each case the applicable Borrower has delivered a Letter of CreditApplication, appropriately completed and signed by a Responsible Officer ofsuch Borrower and has provided satisfactory language with respect to theapplicable beneficiary of such Letter of Credit), or such later date and timeas the L/C Issuer may agree in a particular instance in its solediscretion.  In the case of a request foran initial issuance of a Letter of Credit, such Letter of Credit Applicationshall specify in form and detail reasonably satisfactory to the L/CIssuer:  (A) the proposed issuancedate of the requested Letter of Credit (which shall be a Business Day); (B) theamount thereof; (C) the expiry date thereof; (D) the name and addressof the beneficiary thereof; (E) the documents to be presented by suchbeneficiary in case of any drawing thereunder; (F) the full text of anycertificate to be presented by such beneficiary in case of any drawingthereunder; and (G) such other matters as the L/C Issuer may reasonablyrequest.  In the case of a request for anamendment of any outstanding Letter of Credit, such Letter of CreditApplication shall specify in form and detail reasonably satisfactory to the L/CIssuer:  (A) the Letter of Credit tobe amended; (B) the proposed date of amendment thereof (which shall be aBusiness Day); (C) the nature of the proposed amendment; and (D) suchother matters as the L/C Issuer may reasonably request.

 

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##### (ii)           Promptly after receipt of any Letterof Credit Application, the L/C Issuer will confirm with the AdministrativeAgent (by telephone or in writing) that the Administrative Agent has received acopy of such Letter of Credit Application from the relevant Borrower and, ifnot, the L/C Issuer will provide the Administrative Agent with a copythereof.  Upon receipt by the L/C Issuerof confirmation from the Administrative Agent that the requested issuance oramendment is permitted in accordance with the terms hereof (such confirmationto be promptly provided by the Administrative Agent), then, subject to theterms and conditions hereof, the L/C Issuer shall, on the requested date, issuea Letter of Credit for the account of the relevant Borrower or enter into theapplicable amendment, as the case may be. Immediately upon the issuance of each Letter of Credit, each Lendershall be deemed to, and hereby irrevocably and unconditionally agrees to,purchase from the L/C Issuer an unfunded risk participation in such Letter ofCredit in an amount equal to the product of such Lender’s Pro Rata Share timesthe amount of such Letter of Credit.

#####  

##### (iii)          If the relevant Borrower so requestsin any applicable Letter of Credit Application, the L/C Issuer may, in its soleand absolute discretion, agree to issue a Letter of Credit that has automaticrenewal provisions (each, an “**Auto-RenewalLetter of Credit**”); *provided*that any such Auto-Renewal Letter of Credit must permit the L/C Issuer toprevent any such renewal at least once in each twelve month period (commencingwith the date of issuance of such Letter of Credit) by giving prior notice tothe beneficiary thereof not later than a day (the “**Nonrenewal Notice Date**”) in each such twelve month period tobe agreed upon at the time such Letter of Credit is issued.  Unless otherwise directed by the L/C Issuer,no Borrower shall be required to make a specific request to the L/C Issuer forany such renewal.  Once an Auto-RenewalLetter of Credit has been issued, the Lenders shall be deemed to haveauthorized (but may not require) the L/C Issuer to permit the renewal of suchLetter of Credit at any time to an expiry date not later than the Letter ofCredit Expiration Date; *provided*that the L/C Issuer shall not permit any such renewal if (A) the L/CIssuer has determined that it would have no obligation at such time to issuesuch Letter of Credit in its renewed form under the terms hereof (by reason ofthe provisions of Section 2.03(a)(ii) or otherwise), or (B) ithas received notice (which may be by telephone or in writing) on or before theday that is five (5) Business Days before the Nonrenewal Notice Date (1) fromthe Administrative Agent that the Required Lenders have elected not to permitsuch renewal or (2) from the Administrative Agent, any Lender or anyBorrower that one or more of the applicable conditions specified in Section 4.02is not then satisfied.

#####  

##### (iv)          Promptly after its delivery of anyLetter of Credit or any amendment to a Letter of Credit to an advising bankwith respect thereto or to the beneficiary thereof, the L/C Issuer will alsodeliver to the relevant Borrower and the Administrative Agent a true andcomplete copy of such Letter of Credit or amendment.

#####  

### (c)           Drawings and Reimbursements;Funding of Participations.  (i) Uponreceipt from the beneficiary of any Letter of Credit of any notice of a drawingunder such Letter of Credit, the L/C Issuer shall notify the relevant Borrowerand the Administrative Agent thereof. Not later than 12:00 p.m. (noon) on the Business Day immediatelyfollowing any payment by the L/C Issuer under a Letter of Credit (each suchdate, an “**Honor Date**”), therelevant Borrower shall reimburse the L/C Issuer through the AdministrativeAgent in an amount equal to the amount of such drawing (with interest, if noton the same date).  If any Borrower failsto so reimburse the L/C Issuer by such time, the Administrative Agent shallpromptly notify each Lender of the Honor Date, the amount of the unreimburseddrawing (the “**Unreimbursed Amount**”),and the amount of such Lender’s Pro Rata Share thereof.  In such event, the relevant Borrower shall bedeemed to have requested a Revolving Credit Borrowing of Base Rate Loans to bedisbursed on the Honor Date in an amount equal to the Unreimbursed Amount,without regard to the

 

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### minimum and multiplesspecified in Section 2.02(a) for the principal amount of BaseRate Loans but subject to the amount of the unutilized portion of the RevolvingCredit Commitments and the conditions set forth in Section 4.02(other than the delivery of a Committed Loan Notice).  Any notice given by the L/C Issuer or theAdministrative Agent pursuant to this Section 2.03(c)(i) maybe given by telephone if promptly confirmed in writing; *provided* that the lack of a promptconfirmation shall not affect the conclusiveness or binding effect of suchnotice.

###  

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

#####  

##### (iii)          With respect to any UnreimbursedAmount that is not fully refinanced by a Revolving Credit Borrowing of BaseRate Loans because the conditions set forth in Section 4.02 cannotbe satisfied or for any other reason, or if a reimbursement to the L/C Issuershall be required to be returned or disgorged for any reason (including byreason of the commencement of a proceeding of the type described in Section 8.01(f)),the relevant Borrower shall be deemed to have incurred from the L/C Issuer anL/C Borrowing in the amount of the Unreimbursed Amount that is not sorefinanced, which L/C Borrowing shall be due and payable on demand (togetherwith interest) and shall bear interest at the Default Rate.  In such event, each Lender’s payment to theAdministrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(ii) shallbe deemed payment in respect of its participation in such L/C Borrowing andshall constitute an L/C Advance from such Lender in satisfaction of itsparticipation obligation under this Section 2.03.

#####  

##### (iv)          Until each Lender funds its RevolvingCredit Loan or L/C Advance pursuant to this Section 2.03(c) toreimburse the L/C Issuer for any amount drawn under any Letter of Credit,interest in respect of such Lender’s Pro Rata Share of such amount shall besolely for the account of the L/C Issuer.

#####  

##### (v)           Each Lender’s obligation to makeRevolving Credit Loans or L/C Advances to reimburse the L/C Issuer for amountsdrawn under Letters of Credit, as contemplated by this Section 2.03(c),shall be absolute and unconditional and shall not be affected by anycircumstance, including (A) any setoff, counterclaim, recoupment, defenseor other right which such Lender may have against the L/C Issuer, any Borroweror any other Person for any reason whatsoever, (B) the occurrence orcontinuance of a Default, or (C) any other occurrence, event or condition,whether or not similar to any of the foregoing; *provided* that each Lender’s obligation to make RevolvingCredit Loans pursuant to this Section 2.03(c) is subject tothe conditions set forth in Section 4.02 (other than delivery bythe relevant Borrower of a Committed Loan Notice).  No such making of an L/C Advance shallrelieve or otherwise impair the obligation of the relevant Borrower toreimburse the L/C Issuer for the amount of any payment made by the L/C Issuerunder any Letter of Credit, together with interest as provided herein.

#####  

##### (vi)          If any Lender fails to make availableto the Administrative Agent for the account of the L/C Issuer any amountrequired to be paid by such Lender pursuant to the foregoing provisions of thisSection 2.03(c) by the time specified in Section 2.03(c)(ii),the L/C Issuer shall be entitled to recover from such Lender (acting throughthe Administrative Agent), on demand, such amount with interest thereon for theperiod from the date such payment is required to the

 

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##### dateon which such payment is immediately available to the L/C Issuer at a rate perannum equal to the applicable Federal Funds Rate from time to time ineffect.  A certificate of the L/C Issuersubmitted to any Lender (through the Administrative Agent) with respect to anyamounts owing under this Section 2.03(c)(vi) shall beconclusive absent manifest error.

#####  

### (d)           Repayment of Participations.  (i)  If, at any time after the L/CIssuer has made a payment under any Letter of Credit and has received from anyLender such Lender’s L/C Advance in respect of such payment in accordance with Section 2.03(c),the Administrative Agent receives for the account of the L/C Issuer any paymentin respect of the related Unreimbursed Amount or interest thereon (whetherdirectly from the relevant Borrower or otherwise, including proceeds of CashCollateral applied thereto by the Administrative Agent), the AdministrativeAgent will distribute to such Lender its Pro Rata Share thereof (appropriatelyadjusted, in the case of interest payments, to reflect the period of timeduring which such Lender’s L/C Advance was outstanding) in the same funds as thosereceived by the Administrative Agent.

###  

##### (ii)           If any payment received by theAdministrative Agent for the account of the L/C Issuer pursuant to Section 2.03(d)(i) isrequired to be returned under any of the circumstances described in Section 10.06(including pursuant to any settlement entered into by the L/C Issuer in itsdiscretion), each Lender shall pay to the Administrative Agent for the accountof the L/C Issuer its Pro Rata Share thereof on demand of the AdministrativeAgent, plus interest thereon from the date of such demand to the date suchamount is returned by such Lender, at a rate per annum equal to the applicableFederal Funds Rate from time to time in effect.

#####  

### (e)           Obligations Absolute.  The obligation of each Borrower to reimbursethe L/C Issuer for each drawing under each Letter of Credit issued for itsaccount and to repay each L/C Borrowing relating to any Letter of Credit issuedfor its account shall be absolute, unconditional and irrevocable, and shall bepaid strictly in accordance with the terms of this Agreement under allcircumstances, including the following:

###  

##### (i)            any lack of validity orenforceability of such Letter of Credit, this Agreement, or any other agreementor instrument relating thereto;

#####  

##### (ii)           the existence of any claim, counterclaim,setoff, defense or other right that such Borrower or the applicable otherBorrower or applicable Restricted Subsidiary may have at any time against anybeneficiary or any transferee of such Letter of Credit (or any Person for whomany such beneficiary or any such transferee may be acting), the L/C Issuer orany other Person, whether in connection with this Agreement, the transactionscontemplated hereby or by such Letter of Credit or any agreement or instrumentrelating thereto, or any unrelated transaction;

#####  

##### (iii)          any draft, demand, certificate orother document presented under such Letter of Credit proving to be forged,fraudulent, invalid or insufficient in any respect or any statement thereinbeing untrue or inaccurate in any respect; or any loss or delay in thetransmission or otherwise of any document required in order to make a drawingunder such Letter of Credit;

#####  

##### (iv)          any payment by the L/C Issuer undersuch Letter of Credit against presentation of a draft or certificate that doesnot strictly comply with the terms of such Letter of Credit; or any paymentmade by the L/C Issuer under such Letter of Credit to any Person purporting tobe a trustee in bankruptcy, debtor-in-possession, assignee for the benefit ofcreditors, liquidator, receiver or other representative of or successor to anybeneficiary or any transferee of such Letter of Credit, including any arisingin connection with any proceeding under any Debtor Relief Law;

 

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

#####  

##### (vi)          any other circumstance orhappening whatsoever, whether or not similar to any of the foregoing, includingany other circumstance that might otherwise constitute a defense available to,or a discharge of, such Borrower;

#####  

*provided* that the foregoing shallnot excuse the L/C Issuer from liability to such Borrower to the extent of anydirect damages (as opposed to consequential damages, claims in respect of whichare waived by such Borrower to the extent permitted by applicable Law) sufferedby such Borrower that are determined by a nonappealable judgment of a court ofcompetent jurisdiction to have been caused by the L/C Issuer’s grossnegligence, bad faith or willful misconduct when determining whether drafts andother documents presented under a Letter of Credit comply with the termsthereof.  Each Borrower shall promptlyexamine a copy of each Letter of Credit issued for its account and eachamendment thereto that is delivered to it and, in the event of any claim ofnoncompliance with such Borrower’s instructions or other irregularity, suchBorrower will promptly notify the L/C Issuer. Each Borrower shall be conclusively deemed to have waived any such claimagainst the L/C Issuer and its correspondents unless such notice is given asaforesaid.

 

### (f)            Role of L/C Issuer.  Each Lender and each Borrower agree that, inpaying any drawing under a Letter of Credit, the L/C Issuer shall not have anyresponsibility to obtain any document (other than any sight draft, certificatesand documents expressly required by the Letter of Credit) or to ascertain orinquire as to the validity or accuracy of any such document or the authority ofthe Person executing or delivering any such document.  None of the L/C Issuer, any Agent-RelatedPerson nor any of the respective correspondents, participants or assignees ofthe L/C Issuer shall be liable to any Lender for (i) any action taken oromitted in connection herewith at the request or with the approval of theLenders or the Required Lenders, as applicable; (ii) any action taken oromitted in the absence of gross negligence or willful misconduct; or (iii) thedue execution, effectiveness, validity or enforceability of any document orinstrument related to any Letter of Credit or Letter of CreditApplication.  Each Borrower herebyassumes all risks of the acts or omissions of any beneficiary or transfereewith respect to its use of any Letter of Credit; *provided* that this assumption is not intended to, and shallnot, preclude such Borrower’s pursuing such rights and remedies as it may haveagainst the beneficiary or transferee at Law or under any other agreement.  None of the L/C Issuer, any Agent-RelatedPerson, nor any of the respective correspondents, participants or assignees ofthe L/C Issuer, shall be liable or responsible for any of the matters describedin clauses (i) through (vi) of Section 2.03(e);*provided* that anything in suchclauses to the contrary notwithstanding, each relevant Borrower may have aclaim against the L/C Issuer, and the L/C Issuer may be liable to suchBorrower, to the extent, but only to the extent, of any direct, as opposed toconsequential or exemplary, damages suffered by such Borrower which suchBorrower proves were caused by the L/C Issuer’s willful misconduct, bad faithor gross negligence or the L/C Issuer’s willful or grossly negligent or badfaith failure to pay under any Letter of Credit after the presentation to it bythe beneficiary of a sight draft and certificate(s) strictly complyingwith the terms and conditions of a Letter of Credit.  In furtherance and not in limitation of theforegoing, the L/C Issuer may accept documents that appear on their face to bein order, without responsibility for further investigation, regardless of anynotice or information to the contrary, and the L/C Issuer shall not beresponsible for the validity or sufficiency of any instrument transferring orassigning or purporting to transfer or assign a Letter of Credit or the rightsor benefits thereunder or proceeds thereof, in whole or in part, which may proveto be invalid or ineffective for any reason.

###  

### (g)           Cash Collateral.  Upon the request of the Administrative Agent,(i) if the L/C Issuer has honored any full or partial drawing requestunder any Letter of Credit and such drawing has resulted in an 

 

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### L/C Borrowing and the conditions set forth in Section 4.02to a Revolving Credit Borrowing cannot then be met, or (ii) if, as of theLetter of Credit Expiration Date, any Letter of Credit may for any reasonremain outstanding and partially or wholly undrawn, the relevant Borrower shallpromptly Cash Collateralize (x) in the case of clause (i), 100% and(y) in the case of clause (ii), 103%, in each case, the thenOutstanding Amount of all L/C Obligations (such Outstanding Amount to bedetermined as of the date of such L/C Borrowing or the Letter of CreditExpiration Date, as the case may be) or, in the case of clause (ii),provide a back to back letter of credit in a face amount at least equal to 103%of the then undrawn amount of such Letter of Credit from an issuer and in formand substance reasonably satisfactory to the L/C Issuer in its reasonablediscretion.  Any Letter of Credit that isso Cash Collateralized or in respect of which such a back-to-back letter ofcredit shall have been issued shall be deemed no longer outstanding forpurposes of this Agreement.  For purposeshereof, “**Cash Collateralize**” meansto pledge and deposit with or deliver to the Administrative Agent, for thebenefit of the L/C Issuer and the Lenders, as collateral for the L/CObligations, cash or deposit account balances (“**Cash Collateral**”) pursuant to documentation in form andsubstance reasonably satisfactory to the Administrative Agent and the L/CIssuer (which documents are hereby consented to by the Lenders).  Derivatives of such term have correspondingmeanings.  Cash Collateral shall bemaintained in deposit accounts designated by the Administrative Agent and whichis under the sole dominion and control of the Administrative Agent and shall bedeposited in an interest-bearing account. If at any time the Administrative Agent determines that any funds heldas Cash Collateral are subject to any right or claim of any Person other thanthe Administrative Agent or claims of the depositary bank arising by operationof law or that the total amount of such funds is less than the amount requiredby the first sentence of this clause (g), the relevant Borrower will,forthwith upon demand by the Administrative Agent, pay to the AdministrativeAgent, as additional funds to be deposited and held in the deposit accountsdesignated by the Administrative Agent as aforesaid, an amount equal to theexcess of (x) 100% or 103%, as applicable, of such aggregate OutstandingAmount over (y) the total amount of funds, if any, then held as CashCollateral that the Administrative Agent reasonably determines to be free andclear of any such right and claim.  Uponthe drawing of any Letter of Credit for which funds are on deposit as CashCollateral, such funds shall be applied, to the extent permitted underapplicable Law, to reimburse the L/C Issuer. To the extent the amount of any Cash Collateral exceeds 100% or 103%, asapplicable, of the then Outstanding Amount of such L/C Obligations and so longas no Event of Default has occurred and is continuing, the excess shall berefunded to the relevant Borrower.

###  

### (h)           Applicability of ISP98 andUCP.  Unless otherwise expresslyagreed by the L/C Issuer and the relevant Borrower when a Letter of Credit isissued, (i) the rules of the “International Standby Practices 1998”published by the Institute of International Banking Law & Practice (orsuch later version thereof as may be in effect at the time of issuance)(excluding Rule 3.14) shall apply to each standby Letter of Credit, and (ii) therules of the Uniform Customs and Practice for Documentary Credits, as mostrecently published by the International Chamber of Commerce at the time ofissuance shall apply to each commercial Letter of Credit.

###  

### (i)            Letter of Credit Fees.  Each Borrower shall pay to the AdministrativeAgent for the account of each Lender in accordance with its Pro Rata Share aLetter of Credit fee for each Letter of Credit issued for the account of suchBorrower equal to the Applicable Rate times the daily maximum amount thenavailable to be drawn under such Letter of Credit.  Such letter of credit fees shall be computedon a quarterly basis in arrears.  Suchletter of credit fees shall be due and payable on the last Business Day of eachMarch, June, September and December, commencing with the first such dateto occur after the issuance of such Letter of Credit, on the Letter of CreditExpiration Date and thereafter on demand. If there is any change in the Applicable Rate during any quarter, thedaily maximum amount of each Letter of Credit shall be computed and multipliedby the Applicable Rate separately for each period during such quarter that suchApplicable Rate was in effect.

 

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### (j)            Fronting Fee and Documentaryand Processing Charges Payable to L/C Issuer.  Each Borrower shall pay directly to the L/CIssuer for its own account a fronting fee with respect to each Letter of Creditissued for the account of such Borrower equal to 0.25% per annum of the dailymaximum amount then available to be drawn under such Letter of Credit.  Such fronting fees shall be computed on aquarterly basis in arrears.  Suchfronting fees shall be due and payable on the last Business Day of each March,June, September and December, commencing with the first such date to occurafter the issuance of such Letter of Credit, on the Letter of Credit ExpirationDate and thereafter on demand.  Inaddition, each Borrower shall pay directly to the L/C Issuer for its ownaccount the customary issuance, presentation, amendment and other processingfees, and other standard costs and charges, of the L/C Issuer relating toletters of credit as from time to time in effect.  Such customary fees not related to thefronting fee and standard costs and charges are due and payable within five (5) BusinessDays of written demand by the L/C Issuer setting forth in reasonable detailsuch costs and charges and are nonrefundable.

###  

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

###  

SECTION 2.04.  Swing Line Loans.  (a)  The Swing Line.  Subject to the terms and conditions set forthherein, the Swing Line Lender agrees to make loans (each such loan, a “**Swing Line Loan**”) to each Borrower fromtime to time on any Business Day (other than the Closing Date) during theRevolving Credit Commitment Period in an aggregate amount not to exceed at anytime outstanding the least of (i) the amount of the Swing Line Sublimit,and (ii) the lesser of the Revolving Credit Commitment and the BorrowingBase, in each case, less the outstanding balance of the Revolving Credit Loansand outstanding L/C Obligations at such time, notwithstanding the fact thatsuch Swing Line Loans, when aggregated with the Pro Rata Share of theOutstanding Amount of Loans and L/C Obligations of the Lender acting as SwingLine Lender, may exceed the amount of such Lender’s Commitment; *provided* that after giving effect to anySwing Line Loan, the aggregate Outstanding Amount of the Revolving Credit Loansof any Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount ofall L/C Obligations, plus such Lender’s Pro Rata Share of the amount of the OutstandingAmount of all Swing Line Loans shall not exceed such Lender’s Revolving CreditCommitment; *provided further* that(x) no Borrower shall use the proceeds of any Swing Line Loan to refinanceany outstanding Swing Line Loan, and (y) the aggregate principal amount ofthe Swing Line Loans outstanding to the Borrowers shall not exceed at any timethe Borrowing Base less the Revolving Credit Loans and the Outstanding Amountof all L/C Obligations outstanding to the Borrowers.  Within the foregoing limits, and subject tothe other terms and conditions hereof, the Borrowers may borrow under this Section 2.04,prepay under Section 2.05, and reborrow under this Section 2.04.  Each Swing Line Loan shall be a Base RateLoan.  Swing Line Loans shall only bedenominated in Dollars.  Immediately uponthe making of a Swing Line Loan, each Lender shall be deemed to, and herebyirrevocably and unconditionally agrees to, purchase from the Swing Line Lenderan unfunded risk participation in such Swing Line Loan in an amount equal tothe product of such Lender’s Pro Rata Share times the amount of such Swing LineLoan.

 

### (b)           Borrowing Procedures.  Each Swing Line Borrowing shall be made uponthe relevant Borrower’s irrevocable notice to the Swing Line Lender and theAdministrative Agent, which may be given by telephone.  Each such notice must be received by theSwing Line Lender and the Administrative Agent not later than 1:00 p.m. onthe requested borrowing date, and shall specify (i) the amount to beborrowed, which shall be a minimum of $100,000 (ii) the requestedborrowing date, which shall be a Business Day and (iii) the account of therelevant Borrower to be credited with the proceeds of such Swing LineBorrowing.  Each such telephonic noticemust be confirmed promptly by delivery to the Swing Line Lender and theAdministrative Agent of a written Swing Line Loan Notice, appropriatelycompleted and signed by a Responsible Officer of the relevant Borrower.  Promptly after receipt by the Swing LineLender of any telephonic Swing Line Loan Notice, the Swing Line Lender willconfirm with 

 

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### the Administrative Agent (by telephone or inwriting) that the Administrative Agent has also received such Swing Line LoanNotice and, if not, the Swing Line Lender will notify the Administrative Agent(by telephone or in writing) of the contents thereof.  Unless the Swing Line Lender has receivednotice (by telephone or in writing) from the Administrative Agent (including atthe request of any Lender) prior to 2:00 p.m. on the date of such proposedSwing Line Borrowing (A) directing the Swing Line Lender not to make suchSwing Line Loan as a result of the limitations set forth in the first provisoto the first sentence of Section 2.04(a), or (B) that one ormore of the applicable conditions specified in Section 4.02 is notthen satisfied, then, subject to the terms and conditions hereof, the SwingLine Lender will, not later than 3:00 p.m. on the borrowing date specifiedin such Swing Line Loan Notice, make the amount of its Swing Line Loanavailable to the relevant Borrower.

###  

### (c)           Refinancing of Swing LineLoans.  (i)  The Swing LineLender at any time in its sole and absolute discretion may request, but no lessfrequently than weekly, on behalf of the relevant Borrower (each of whichhereby irrevocably authorizes the Swing Line Lender to so request on itsbehalf), that each Lender make a Base Rate Loan in an amount equal to suchLender’s Pro Rata Share of the amount of Swing Line Loans then outstanding.  Each such request shall be made in writing(which written request shall be deemed to be a Committed Loan Notice forpurposes hereof) and in accordance with the requirements of Section 2.02(a),without regard to the minimum and multiples specified therein for the principalamount of Base Rate Loans, but subject to the unutilized portion of theaggregate Revolving Credit Commitments and the conditions set forth in Section 4.02.  The Swing Line Lender shall furnish therelevant Borrower with a copy of the applicable Committed Loan Notice promptlyafter delivering such notice to the Administrative Agent.  Each Lender shall make an amount equal to itsPro Rata Share of the amount specified in such Committed Loan Notice availableto the Administrative Agent in immediately available funds for the account ofthe Swing Line Lender at the Administrative Agent’s Office not later than 1:00 p.m.on the day specified in such Committed Loan Notice, whereupon, subject to Section 2.04(c)(ii),each Lender that so makes funds available shall be deemed to have made a BaseRate Loan to the relevant Borrower in such amount.  The Administrative Agent shall remit thefunds so received to the Swing Line Lender.

###  

##### (ii)           If for any reason any SwingLine Loan cannot be refinanced by such a Revolving Credit Borrowing inaccordance with Section 2.04(c)(i), or if a reimbursement to theSwing Line Lender shall be required to be returned or disgorged for any reason(including by reason of the commencement of a proceeding of the type describedin Section 8.01(f)), the request for Base Rate Loans submitted bythe Swing Line Lender as set forth herein shall be deemed to be a request bythe Swing Line Lender that each of the Lenders fund its risk participation insuch Swing Line Loan and each such Lender’s payment to the Administrative Agentfor the account of the Swing Line Lender pursuant to Section 2.04(c)(i) shallbe deemed payment in respect of such participation.

#####  

##### (iii)          If any Lender fails to makeavailable to the Administrative Agent for the account of the Swing Line Lenderany amount required to be paid by such Lender pursuant to the foregoingprovisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i),the Swing Line Lender shall be entitled to recover from such Lender (actingthrough the Administrative Agent), on demand, such amount with interest thereonfor the period from the date such payment is required to the date on which suchpayment is immediately available to the Swing Line Lender at a rate per annumequal to the applicable Federal Funds Rate from time to time in effect.  A certificate of the Swing Line Lendersubmitted to any Lender (through the Administrative Agent) with respect to anyamounts owing under this clause (iii) shall be conclusive absentmanifest error.

 

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##### (iv)          Each Lender’s obligation tomake Revolving Credit Loans or to purchase and fund risk participations inSwing Line Loans pursuant to this Section 2.04(c) shall beabsolute and unconditional and shall not be affected by any circumstance,including (A) any setoff, counterclaim, recoupment, defense or other rightwhich such Lender may have against the Swing Line Lender, any Borrower or anyother Person for any reason whatsoever, (B) the occurrence or continuanceof a Default, or (C) any other occurrence, event or condition, whether ornot similar to any of the foregoing; *provided*that each Lender’s obligation to make Revolving Credit Loans pursuant to this Section 2.04(c) issubject to the conditions set forth in Section 4.02 (other thandelivery by a Borrower of a Committed Loan Notice).  No such funding of risk participations shallrelieve or otherwise impair the obligation of the relevant Borrower to repaySwing Line Loans, together with interest as provided herein.

#####  

### (d)           Repayment of Participations.  (i)  At any time after any Lender haspurchased and funded a risk participation in a Swing Line Loan, if the SwingLine Lender receives any payment on account of such Swing Line Loan, the SwingLine Lender will distribute to such Lender its Pro Rata Share of such payment(appropriately adjusted, in the case of interest payments, to reflect theperiod of time during which such Lender’s risk participation was funded) in thesame funds as those received by the Swing Line Lender.

###  

##### (ii)           If any payment received bythe Swing Line Lender in respect of principal or interest on any Swing LineLoan is required to be returned by the Swing Line Lender under any of thecircumstances described in Section 10.06 (including pursuant to anysettlement entered into by the Swing Line Lender in its discretion), eachLender shall pay to the Swing Line Lender its Pro Rata Share thereof on demandof the Administrative Agent, plus interest thereon from the date of such demandto the date such amount is returned, at a rate per annum equal to theapplicable Federal Funds Rate.  TheAdministrative Agent will make such demand upon the request of the Swing LineLender.

#####  

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

###  

### (f)            Payments Directly to SwingLine Lender.  Therelevant Borrower shall make all payments of principal and interest in respectof the Swing Line Loans directly to the Swing Line Lender.

###  

SECTION 2.05.  Prepayments.  (a)  Optional.  (i)  Any Borrower may, upon notice tothe Administrative Agent, at any time or from time to time voluntarily prepayLoans made to such Borrower, in each case, in whole or in part without premiumor penalty; *provided* that (A) suchnotice must be received by the Administrative Agent not later than 12:00 p.m.(noon) (1) three (3) Business Days prior to any date of prepayment ofEurodollar Rate Loans and (2) on the date of prepayment of Base RateLoans; (B) any prepayment of Eurodollar Rate Loans shall be in a principalamount of $500,000 or a whole multiple of $250,000 in excess thereof or, ifless, the entire principal amount thereof then outstanding; and (C) anyprepayment of Base Rate Loans shall be in a principal amount of $50,000 or awhole multiple of $50,000 in excess thereof or, if less, the entire principalamount thereof then outstanding.  Eachsuch notice shall specify the date and amount of such prepayment and the Type(s) ofLoans to be prepaid.  The AdministrativeAgent will promptly notify each Appropriate Lender of its receipt of each suchnotice, and of the amount of such Lender’s Pro Rata Share of such prepayment.  If such notice is given by a Borrower, suchBorrower shall make such prepayment and the payment amount specified in suchnotice shall be due and payable on the date specified therein.  Any prepayment of a Eurodollar Rate Loanshall 

 

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

 

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

#####  

##### (iii)          Notwithstanding anything tothe contrary contained in this Agreement, any relevant Borrower may rescind anynotice of prepayment under Section 2.05(a)(i) or Section 2.05(a)(ii) ifsuch prepayment would have resulted from a refinancing of all of theFacilities, which refinancing shall not be consummated or shall otherwise bedelayed.

#####  

### (b)           Mandatory.  (i)  If for any reason the aggregateOutstanding Amount of the Revolving Credit Loans, the L/C Obligations and SwingLine Loans at any time exceeds the aggregate Revolving Credit Commitments thenin effect, the Borrowers shall promptly prepay Revolving Credit Loans or SwingLine Loans and/or Cash Collateralize the L/C Obligations in an aggregate amountequal to such excess; *provided*that the Borrowers shall not be required to Cash Collateralize the L/CObligations pursuant to this Section 2.05(b)(i) unless afterthe prepayment in full of the Revolving Credit Loans and Swing Line Loans suchaggregate Outstanding Amount exceeds such aggregate Revolving CreditCommitments then in effect.

###  

##### (ii)           If on any date on which aBorrowing Base Certificate or a Alternative Borrowing Base Certificate, as thecase may be, is delivered pursuant to Section 6.01(e), theaggregate outstanding balance of the Revolving Credit Loans, the L/CObligations and the Swing Line Loans exceeds the Borrowing Base, as calculatedtherein, the Borrowers shall, no later than the Business Day immediatelyfollowing the date of delivery of such Borrowing Base Certificate orAlternative Borrowing Base Certificate, as applicable, prepay the RevolvingCredit Loans or Swing Line Loans and/or Cash Collateralize the L/C Obligationsin an aggregate amount equal to such excess; *provided*that the Borrowers shall not be required to Cash Collateralize the L/CObligations pursuant to this Section 2.05(b)(ii) unless afterthe prepayment in full of the Revolving Credit Loans and Swing Line Loans suchaggregate Outstanding Amount exceeds such aggregate Borrowing Base then ineffect.

#####  

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

#####  

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

 

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##### Period therefor, any amountsowing in respect of such Eurodollar Rate Loan, pursuant to Section 3.05.  Notwithstanding any of the other provisionsof Section 2.05(b), so long as no Event of Default shall haveoccurred and be continuing, if any prepayment of Eurodollar Rate Loans isrequired to be made under this Section 2.05(b), other than on thelast day of the Interest Period therefor, the Borrowers may, in their solediscretion, deposit the amount of any such prepayment otherwise required to bemade thereunder into a Cash Collateral Account until the last day of suchInterest Period, at which time the Administrative Agent shall be authorized(without any further action by or notice to or from such Borrowers or any otherLoan Party) to apply such amount to the prepayment of such Loans in accordancewith this Section 2.05(b). Upon the occurrence and during the continuance of any Event of Default,the Administrative Agent shall also be authorized (without any further actionby or notice to or from a Borrower or any other Loan Party) to apply suchamount to the prepayment of the outstanding Loans in accordance with this Section 2.05(b).

#####  

SECTION 2.06.  Termination or Reduction of RevolvingCredit Commitments.  (a)  Optional.  The Borrowers may, upon written notice to theAdministrative Agent, terminate all or any portion of the unused RevolvingCredit Commitments under the Revolving Credit Facility; *provided* that (i) any such noticeshall be received by the Administrative Agent three (3) Business Daysprior to the date of termination or reduction, (ii) any such partialreduction shall be in an aggregate amount (A) of $1,000,000 or any wholemultiple of $100,000 in excess thereof or (B) equal to the entireremaining amount of the Revolving Credit Commitments and (iii) if, aftergiving effect to any reduction of the Revolving Credit Commitments, (1) theLetter of Credit Sublimit or the Swing Line Sublimit, as the case may be,exceeds the amount of the Revolving Credit Commitments, such sublimit shall beautomatically reduced by the amount of such excess.  The amount of any such Revolving CreditCommitment reduction shall not be applied to the Letter of Credit Sublimit orthe Swing Line Sublimit unless otherwise specified by the Borrowers.  Notwithstanding the foregoing, the Borrowersmay rescind or postpone any notice of termination of the Revolving CreditCommitments if such termination would have resulted from a refinancing of allof the Facilities, which refinancing shall not be consummated or otherwiseshall be delayed.

 

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

###  

SECTION 2.07.  Repayment of Loans.  (a)  RevolvingCredit Loans.  Each Borrower shallrepay to the Administrative Agent for the ratable account of the applicableLenders on the Maturity Date for the Revolving Credit Facility the aggregateprincipal amount of all of its Revolving Credit Loans outstanding on such date.

 

### (b)           Swing Line Loans.  Each Borrower shall repay the aggregateprincipal amount of all of its Swing Line Loans on the Maturity Date for theRevolving Credit Facility.

###  

SECTION 2.08.  Interest.  (a)  Subject to theprovisions of Section 2.08(b), (i) each Eurodollar Rate Loanshall bear interest on the outstanding principal amount thereof for eachInterest Period at a rate per annum equal to the Eurodollar Rate for suchInterest Period plus the Applicable Rate; (ii) each Base Rate Loan shallbear interest on the outstanding principal amount thereof from the 

 

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applicable borrowing date at a rate per annumequal to the Base Rate plus the Applicable Rate; and (iii) each Swing LineLoan shall bear interest on the outstanding principal amount thereof from theapplicable borrowing date at a rate per annum equal to the Base Rate plus theApplicable Rate for Revolving Credit Loans.

 

### (b)           While any Event of Defaultset forth in Section 8.01(a) exists, each Borrower shall payinterest on the overdue principal amount of all of its outstanding Obligationshereunder at a fluctuating interest rate per annum at all times equal to theDefault Rate to the fullest extent permitted by applicable Laws.  Accrued and unpaid interest on past dueamounts (including interest on past due interest) shall be due and payable upondemand.

###  

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

###  

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

 

### (a)           Revolving Credit CommitmentFee.  The Borrowers shall pay to theAdministrative Agent for the account of each Lender in accordance with its ProRata Share, a commitment fee (each, a “**RevolvingCredit Commitment Fee**” and, collectively, the “**Revolving Credit Commitment Fees**”) equal tothe Applicable Commitment Fee Rate times the actual daily amount by which theaggregate Revolving Credit Commitments exceed the sum of (i) theOutstanding Amount of Revolving Credit Loans (exclusive of any Swing LineLoans) and (ii) the Outstanding Amount of L/C Obligations; *provided* that any Revolving CreditCommitment Fee accrued with respect to the Revolving Credit Commitment of aDefaulting Lender during the period prior to the time such Lender became aDefaulting Lender and unpaid at such time shall not be payable by the Borrowersso long as such Lender shall be a Defaulting Lender except to the extent thatsuch Revolving Credit Commitment Fee shall otherwise have been due and payableby the Borrowers prior to such time; and *providedfurther* that no Revolving Credit Commitment Fee shall accrue on theRevolving Credit Commitment of a Defaulting Lender so long as such Lender shallbe a Defaulting Lender.  The RevolvingCredit Commitment Fees shall accrue at all times from the Closing Date untilthe Maturity Date for the Revolving Credit Facility, including at any time duringwhich one or more of the conditions in Article 4 is not met, andshall be due and payable quarterly in arrears on the last Business Day of eachMarch, June, September and December, commencing with the first such dateto occur after the Closing Date, and on the Maturity Date for the RevolvingCredit Facility.  The Revolving CreditCommitment Fees shall be calculated quarterly in arrears, and if there is anychange in the Applicable Rate during any quarter, the actual daily amount shallbe computed and multiplied by the Applicable Rate separately for each periodduring such quarter that such Applicable Rate was in effect.

###  

### (b)           Closing Fees.  The Borrowers shall pay to the AdministrativeAgent for the account of each Lender in accordance with its Pro Rata Share, onthe Amendment Closing Date, a closing fee equal to 0.50% of the RevolvingCredit Commitments of such Lender after giving effect to the Amendment ClosingDate.

###  

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

 

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SECTION 2.10.  Computation of Interest and Fees.  All computations of interestfor Base Rate Loans when the Base Rate is determined by reference to the “PrimeRate” as published by Bloomberg Professional Service Page Prime shall bemade on the basis of a year of three hundred and sixty-five (365) or threehundred and sixty-six (366) days, as the case may be, and actual dayselapsed.  All other computations of feesand interest shall be made on the basis of a three hundred and sixty (360) dayyear and actual days elapsed (which results in more fees or interest, asapplicable, being paid than if computed on the basis of a three hundred andsixty-five (365) day year).  Interestshall accrue on each Loan for the day on which the Loan is made, and shall notaccrue on a Loan, or any portion thereof, for the day on which the Loan or suchportion is paid; *provided* thatany Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a),bear interest for one (1) day.  Eachdetermination by the Administrative Agent of an interest rate or fee hereundershall be conclusive and binding for all purposes, absent manifest error.

 

SECTION 2.11.  Evidence of Indebtedness.  (a)  The CreditExtensions made by each Lender shall be evidenced by one or more accounts orrecords maintained by such Lender and evidenced by one or more entries in theRegister maintained by the Administrative Agent, acting solely for purposes ofTreasury Regulation Section 5f.103-1(c), as agent for the Borrowers, ineach case in the ordinary course of business. The accounts or records maintained by the Administrative Agent and eachLender shall be *prima facie*evidence absent manifest error of the amount of the Credit Extensions made bythe Lenders to the Borrowers and the interest and payments thereon.  Any failure to so record or any error indoing so shall not, however, limit or otherwise affect the obligation of theBorrowers hereunder to pay any amount owing with respect to theObligations.  In the event of anyconflict between the accounts and records maintained by any Lender and theaccounts and records of the Administrative Agent in respect of such matters,the accounts and records of the Administrative Agent shall control in theabsence of manifest error.  Upon therequest of any Lender made through the Administrative Agent, the relevantBorrowers shall execute and deliver to such Lender (through the AdministrativeAgent) a Note payable to such Lender, which shall evidence such Lender’s Loansin addition to such accounts or records. Each Lender may attach schedules to its Note and endorse thereon thedate, Type (if applicable), amount and maturity of its Loans and payments withrespect thereto.  Each Borrower and eachLender agrees from time to time after the occurrence and during the continuanceof an Event of Default under Section 8.01(f) or Section 8.01(g)(i) toexecute and deliver to the Administrative Agent all such Notes or otherpromissory notes and other instruments and documents as the AdministrativeAgent shall reasonably request to evidence and confirm the respective interestsand obligations of the Lenders after giving effect to any exchange of Lenders’interests pursuant to arrangements relating thereto among the Lenders, and eachLender agrees to surrender any Notes or other promissory notes originallyreceived by it in connection with its Loans hereunder to the AdministrativeAgent against delivery of any Notes or other promissory notes so executed anddelivered.

 

### (b)           In addition to the accountsand records referred to in Section 2.11(a), each Lender and theAdministrative Agent shall maintain in accordance with its usual practiceaccounts or records and, in the case of the Administrative Agent, entries inthe Register, evidencing the purchases and sales by such Lender ofparticipations in Letters of Credit and Swing Line Loans.  In the event of any conflict between theaccounts and records maintained by the Administrative Agent and the accountsand records of any Lender in respect of such matters, the accounts and recordsof the Administrative Agent shall control in the absence of manifest error.

###  

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

 

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

###  

SECTION 2.12.  Payments Generally.  (a)  All payments to bemade by the Borrowers shall be made without condition or deduction for anycounterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by theBorrowers hereunder shall be made to the Administrative Agent, for the accountof the respective Lenders to which such payment is owed, at the AdministrativeAgent’s Office in Dollars and in immediately available funds not later than2:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its ProRata Share (or other applicable share as provided herein) of such payment inlike funds as received by wire transfer to such Lender’s Lending Office.  All payments received by the AdministrativeAgent after 4:00 p.m. shall be deemed received on the next succeedingBusiness Day in the Administrative Agent’s sole discretion and any applicableinterest or fee shall continue to accrue to the extent applicable.

 

### (b)           If any payment to be made byany Borrower shall come due on a day other than a Business Day in relation tosuch Borrower, payment shall be made on the next following Business Day, andsuch extension of time shall be reflected in computing interest or fees, as thecase may be; *provided* that, if suchextension would cause payment of interest on or principal of Eurodollar RateLoans to be made in the next succeeding calendar month, such payment shall bemade on the immediately preceding Business Day.

###  

### (c)           Unless any Borrower or anyLender has notified the Administrative Agent, prior to the date any payment isrequired to be made by it to the Administrative Agent hereunder, that suchBorrower or such Lender, as the case may be, will not make such payment, theAdministrative Agent may assume that such Borrower or such Lender, as the casemay be, has timely made such payment and may (but shall not be so required to),in reliance thereon, make available a corresponding amount to the Personentitled thereto.  If and to the extentthat such payment was not in fact made to the Administrative Agent inimmediately available funds, then:

###  

##### (i)            if any Borrower failed tomake such payment, each Lender shall forthwith on demand repay to theAdministrative Agent the portion of such assumed payment that was made availableto such Lender in immediately available funds, together with interest thereonin respect of each day from and including the date such amount was madeavailable by the Administrative Agent to such Lender to the date such amount isrepaid to the Administrative Agent in immediately available funds at theapplicable Federal Funds Rate from time to time in effect; and

#####  

##### (ii)           if any Lender failed to makesuch payment, such Lender shall forthwith on demand pay to the AdministrativeAgent the amount thereof in immediately available funds, together with interestthereon for the period from the date such amount was made available by theAdministrative Agent to the relevant Borrower to the date such amount isrecovered by the Administrative Agent (the “**CompensationPeriod**”) at a rate per annum equal to the applicable Federal FundsRate from time to time in effect.  Whensuch Lender makes payment to the Administrative Agent (together with allaccrued interest thereon), then such payment amount (excluding the amount ofany interest which may have accrued and been paid in respect of such latepayment) shall constitute such Lender’s Loan included in the applicableBorrowing.  If such Lender does not paysuch amount forthwith upon the Administrative Agent’s demand therefor, theAdministrative Agent may make a demand therefor upon the relevant Borrower, andthe relevant Borrower shall pay such amount to the Administrative Agent,together with interest thereon for the Compensation Period at a rate per annumequal to the rate of interest applicable to 

 

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##### the applicableBorrowing.  Nothing herein shall bedeemed to relieve any Lender from its obligation to fulfill its RevolvingCredit Commitment or to prejudice any rights which the Administrative Agent orany Borrower may have against any Lender as a result of any default by suchLender hereunder.

 

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

 

### (d)           If any Lender makesavailable to the Administrative Agent funds for any Loan to be made by suchLender as provided in the foregoing provisions of this Article 2,and such funds are not made available to the relevant Borrower by theAdministrative Agent because the conditions to the applicable Credit Extensionset forth in Article 4 are not satisfied or waived in accordancewith the terms hereof, the Administrative Agent shall return such funds (inlike funds as received from such Lender) to such Lender, without interest.

###  

### (e)           The obligations of theLenders hereunder to make Loans and to fund participations in Letters of Creditand Swing Line Loans are several and not joint. The failure of any Lender to make any Loan or to fund any suchparticipation on any date required hereunder shall not relieve any other Lenderof its corresponding obligation to do so on such date, and no Lender shall beresponsible for the failure of any other Lender to so make its Loan or purchaseits participation.

###  

### (f)            Nothing herein shall bedeemed to obligate any Lender to obtain the funds for any Loan in anyparticular place or manner or to constitute a representation by any Lender thatit has obtained or will obtain the funds for any Loan in any particular placeor manner.

###  

### (g)           Whenever any paymentreceived by the Administrative Agent under this Agreement or any of the otherLoan Documents is insufficient to pay in full all amounts due and payable tothe Administrative Agent and the Lenders under or in respect of this Agreementand the other Loan Documents on any date, such payment shall be distributed bythe Administrative Agent and applied by the Administrative Agent and theLenders in the order of priority set forth in Section 8.03.  If the Administrative Agent receives fundsfor application to the Obligations of the Loan Parties under or in respect ofthe Loan Documents under circumstances for which the Loan Documents do notspecify the manner in which such funds are to be applied, the AdministrativeAgent may, but shall not be obligated to, elect to distribute such funds toeach of the Lenders in accordance with such Lender’s Pro Rata Share of the sumof (i) the Outstanding Amount of all Loans outstanding at such time and (ii) theOutstanding Amount of all L/C Obligations outstanding at such time, inrepayment or prepayment of such of the outstanding Loans or other Obligationsthen owing to such Lender.  In theabsence of a specific determination by the Administrative Agent, payments shallbe applied to amounts then due and payable in the following order: (i) tofees, expenses of the Agents reimbursable hereunder and Indemnified Liabilitiesof the Agents hereunder, (ii) to interest on the Swing Line Loans, (iii) toprincipal payments on the Swing Line Loans, (iv) to interest on theRevolving Credit Loans, (v) to principal payments on the Revolving CreditLoans and to provide Cash Collateralize L/C Obligations, ratably to theaggregate combined principal amount of the Revolving Credit Loans andoutstanding L/C Obligations, and (vi) to all other Obligations, includingexpenses of Lenders hereunder to the extent reimbursable under Section 10.04and all Indemnified Liabilities of Lenders.

###  

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

 

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

 

SECTION 2.14.  [Intentionally Omitted]

 

SECTION 2.15.  Eligible Accounts and Eligible UnbilledAccounts.  All of theAccounts owned by Borrowers and their Subsidiaries and reflected in the mostrecent Borrowing Base Certificate (to the extent required to be reflectedpursuant to Section 6.01(e)) delivered by Borrowers toAdministrative Agent shall be “Eligible Accounts” or, as applicable, “EligibleUnbilled Accounts” for purposes of this Agreement, except any Account to whichany of the exclusionary criteria set forth below applies.  Administrative Agent shall have the right, inits commercially reasonable judgment that there has been a material and adversechange from historical performance with respect to the value of EligibleAccounts and/or Eligible Unbilled Accounts, at any time either (a) anEvent of Default has occurred and is then continuing and/or (b) BorrowingAvailability is less than the Borrowing Base Adjustment Limit, to (i) establish,modify or eliminate Reserves against Eligible Accounts and/or Eligible UnbilledAccounts from time to time and/or (ii) adjust from time to time any of thecriteria set forth below, establish new criteria and adjust advance rates withrespect to Eligible Accounts and/or Eligible Unbilled Accounts, in each caseeffective on prior written notice delivered by Administrative Agent to theBorrowers, the effect of which, along with any other changes to Reserves,eligibility criteria, advance rates and the exercise of other AdministrativeAgent rights under this Section 2.15 and/or under Section 2.16,shall not reduce the Borrowing Base by an aggregate amount in excess of theBorrowing Base Adjustment Limit.  Anyexercise of rights by Administrative Agent pursuant to the immediatelypreceding sentence (x) shall be reversed, automatically and withoutfurther action by Administrative Agent, at such time that no Event of Defaultshall have occurred and remain continuing and Borrowing Availability,calculated without giving effect to any actions taken by Administrative Agentpursuant to the immediately preceding sentence, is greater than the BorrowingBase Adjustment Limit and (y) subject to the provisions of the immediatelypreceding clause (x), shall be subject to the approval of SupermajorityRequired Lenders in the case of adjustments, new criteria, changes in advancerates or the elimination of Reserves which have the effect of making morecredit available.

 

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### (a)           Eligible Accounts shall notinclude any Account of any Borrower or any of its Subsidiaries:

#####  

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

#####  

##### (ii)           (x) upon which anyBorrower’s or any Subsidiary’s right to receive payment is not absolute or iscontingent upon the fulfillment of any condition whatsoever or (y) as towhich any Borrower or any Subsidiary is not legally able to bring suit orotherwise enforce its remedies against the Account Debtor through judicialprocess;

#####  

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

#####  

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

#####  

##### (v)           that is the obligation of anAccount Debtor located in a foreign country other than Canada unless paymentthereof is assured by a letter of credit assigned and delivered toAdministrative Agent, reasonably satisfactory to Administrative Agent as toform, amount and issuer;

#####  

##### (vi)          that arises with respect togoods that are delivered on a bill and hold, cash on delivery basis or placedon consignment, sale or return, sale on approval, guaranteed sale or otherterms by reason of which the payment by the Account Debtor is or may beconditional;

#####  

##### (vii)         that is in default, asestablished upon the occurrence of any of the following:

#####  

(A)          the Account isnot paid within 90 days following its original invoice date;

 

(B)           the AccountDebtor obligated upon such Account suspends business, makes a generalassignment for the benefit of creditors or fails to pay its debts generally asthey come due; or

 

(C)           a petition isfiled by or against any Account Debtor obligated upon such Account under anybankruptcy law or any other federal, state or foreign (including anyprovincial) receivership, insolvency relief or other law or laws for the reliefof debtors;

 

##### (viii)        as to which AdministrativeAgent’s Lien thereon, on behalf of itself and Lenders, is not a first priorityperfected Lien;

#####  

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

#####  

##### (x)            to the extent such Accountis evidenced by a judgment, Instrument or Chattel Paper (unless such ChattelPaper has been delivered to the Collateral Agent or bears the legend set forthin Section 4 of the Security Agreement);

 

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

#####  

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

#####  

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

#####  

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

#####  

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

#####  

##### (xvi)        that is the obligation of anAccount Debtor if fifty percent (50%) or more of the Dollar amount of allAccounts owing by that Account Debtor are ineligible under the other criteriaset forth in this Section 2.15; or

#####  

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

#####  

### (b)           Eligible Unbilled Accountsshall not include any Account of any Borrower or any of its Subsidiaries:

###  

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

#####  

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

#####  

##### (iii)          that is not an UnbilledAccount;

 

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

#####  

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

#####  

##### (vi)          that arises with respect togoods that are delivered on a bill and hold, cash on delivery basis or placedon consignment, sale or return, sale on approval, guaranteed sale or otherterms by reason of which the payment by the Account Debtor is or may beconditional;

#####  

##### (vii)         that is in default, asestablished upon the occurrence of any of the following:

#####  

(A)          the AccountDebtor obligated upon such Account suspends business, makes a generalassignment for the benefit of creditors or fails to pay its debts generally asthey come due; or

 

(B)           a petition isfiled by or against any Account Debtor obligated upon such Account under anybankruptcy law or any other federal, state or foreign (including anyprovincial) receivership, insolvency relief or other law or laws for the reliefof debtors;

 

(C)           as to which theCollateral Agent’s Lien thereon, on behalf of itself and Lenders, is not afirst priority perfected Lien;

 

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

#####  

##### (ix)           to the extent such Accountis evidenced by a judgment, Instrument or Chattel Paper (unless such ChattelPaper has been delivered to the Collateral Agent or bears the legend set forthin Section 4 of the Security Agreement);

#####  

##### (x)            that has remained anUnbilled Account for more than seven (7) Business Days following the dateof the Borrowing Base Certificate that includes such Unbilled Accounts asEligible Unbilled Accounts.

#####  

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

#####  

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

#####  

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

 

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

#####  

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

#####  

##### (xvi)        that is the obligation of anAccount Debtor if fifty percent (50%) or more of the Dollar amount of allAccounts owing by that Account Debtor are ineligible under the other criteriaset forth in this Section 2.15;

#####  

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

#####  

SECTION 2.16.  Eligible Rental Equipment, EligibleWholesale Disposables and Eligible Equipment Disposables.  All of the Rental Equipment,Wholesale Disposables and Equipment Disposables owned by any Borrower or any ofits Subsidiaries and reflected in the most recent Borrowing Base Certificate(to the extent required to be reflected pursuant to Section 6.01(e))delivered by Borrowers to Administrative Agent shall be “Eligible RentalEquipment”, “Eligible Wholesale Disposables” and “Eligible EquipmentDisposables” for purposes of this Agreement, respectively, except any Inventoryor Equipment (as applicable) to which any of the exclusionary criteria setforth below applies.  AdministrativeAgent shall have the right, in its commercially reasonable judgment that therehas been a material and adverse change from historical performance with respectto the value of Eligible Rental Equipment, Eligible Wholesale Disposablesand/or Eligible Equipment Disposables, at any time either (x) an Event ofDefault has occurred and is then continuing and/or (y) BorrowingAvailability is less than the Borrowing Base Adjustment Limit, to (i) establish,modify or eliminate Reserves against Eligible Rental Equipment, EligibleWholesale Disposables and Eligible Equipment Disposables from time to time,and/or (ii) adjust from time to time any of the criteria set forth below,establish new criteria and adjust advance rates with respect to Eligible RentalEquipment, Eligible Wholesale Disposables and Eligible Equipment Disposables,in each case effective on prior written notice delivered by the AdministrativeAgent to Borrowers, the effect of which, along with any other changes toReserves, eligibility criteria, advance rates and the exercise of otherAdministrative Agent rights under this Section 2.15 and/or under Section 2.16,shall not reduce the Borrowing Base by an aggregate amount in excess of theBorrowing Base Adjustment Limit.  Anyexercise of rights by Administrative Agent pursuant to the immediatelypreceding sentence (A) shall be reversed, automatically and withoutfurther action by Administrative Agent, at such time that no Event of Defaultshall have occurred and remain continuing and Borrowing Availability, calculatedwithout giving effect to any actions taken by Administrative Agent pursuant tothe immediately preceding sentence, is greater than the Borrowing BaseAdjustment Limit and (B) subject to the provisions of the immediatelypreceding clause (A), shall be subject to the approval of (i) SupermajorityRequired Lenders in the case of adjustments, new criteria, changes in advancerates or the elimination of Reserves which have the effect of making morecredit available and (ii) Supermajority Required Lenders in the case ofadjustments, new criteria, changes in advance rates or the elimination ofReserves, the effect of which is to make credit available to Borrowers inrespect of Rental Equipment, Wholesale Disposables and Equipment Disposables inexcess of eighty five percent 

 

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(85%) of the orderly liquidation value ofsuch assets as reflected in the appraisal of such assets most recentlyconducted by or at the request of Administrative Agent.  If any Eligible Wholesale Deliverables orEligible Equipment Disposables are located at any leased location of Borrowers,the Administrative Agent shall have the right, in its commercially reasonablejudgment, to establish Lease Payment Reserves against such Eligible WholesaleDeliverables and/or Eligible Equipment Disposables effective upon five (5) daysprior written notice delivered by the Administrative Agent to theBorrowers.  Eligible Rental Equipment,Eligible Wholesale Disposables and Eligible Equipment Disposables shall notinclude any Inventory or Equipment of any Borrower or any of its Subsidiariesthat:

 

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

###  

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

###  

### (c)           is unrentable, obsolete, orslow moving;

###  

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

###  

### (e)           is not of a type held forsale or rent in the ordinary course of any Borrower’s or any Subsidiary’sbusiness;

###  

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

###  

### (g)           breaches any of therepresentations or warranties pertaining to Inventory set forth in the LoanDocuments;

###  

### (h)           is not in compliance withEnvironmental Laws;

###  

### (i)            is not covered by casualtyinsurance reasonably acceptable to the Administrative Agent;

###  

### (j)            is not located in the UnitedStates of America or Canada; or

###  

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

###  

# ARTICLE 3

#  

# TAXES,INCREASED COSTS PROTECTION AND ILLEGALITY

#  

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

 

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levies, imposts, deductions, assessments,fees, withholdings or similar charges, and all liabilities (including additionsto tax, penalties and interest) with respect thereto, *excluding*, in the case of each Agent andeach Lender, (i) taxes imposed on or measured by its net income andfranchise (and similar) taxes imposed on it in lieu of net income taxes, by theUnited States and the jurisdiction (or any political subdivision thereof) underthe Laws of which such Agent or such Lender, as the case may be, is organizedor in which its principal office is located or in the case of any Lender, inwhich its Lending Office is located, and (ii) any branch profits taximposed by the United States, and all liabilities (including additions to tax,penalties and interest) with respect thereto (all such non-excluded taxes,duties, levies, imposts, deductions, assessments, fees, withholdings or similarcharges, and liabilities being hereinafter referred to as “**Taxes**”). If any Borrower shall be required by any Laws to deduct any Taxes fromor in respect of any sum payable under any Loan Document to any Agent or anyLender, (i) the sum payable shall be increased as necessary so that aftermaking all required deductions (including deductions applicable to additionalsums payable under this Section 3.01), each of such Agent and suchLender receives an amount equal to the sum it would have received had no suchdeductions been made, (ii) such Borrower shall make such deductions, (iii) suchBorrower shall pay the full amount deducted to the relevant taxation authorityor other authority in accordance with applicable Laws, and (iv) withinthirty (30) days after the date of such payment, such Borrower shall furnish tosuch Agent or Lender (as the case may be) the original or a certified copy of areceipt evidencing payment thereof to the extent such a receipt is issuedtherefor, or other written proof of payment thereof that is reasonablysatisfactory to the Administrative Agent; *provided*that no Borrower shall be obligated to make any such payment to anyAgent or any Lender (as the case may be) in respect of penalties, interest andother liabilities attributable to Taxes or Other Taxes if and to the extentthat such penalties, interest and other liabilities are attributable to thegross negligence or willful misconduct of such Agent or such Lender (as thecase may be); *provided further*that if any Borrower reasonably believes that such taxes were not correctly orlegally asserted by any Agent or Any Lender, such Agent or such Lender, as thecase may be, will use reasonable efforts to cooperate with the Borrowers toobtain a refund of such taxes so long as such efforts would not, in the soledetermination of the Agent or such Lender (as the case may be) result in anyadditional costs, expenses or risks or be otherwise disadvantageous to it.

 

### (b)           In addition, each Borroweragrees to pay any and all present or future stamp, court or documentary taxesand any other excise, property, intangible or mortgage recording taxes orcharges or similar levies which arise from any payment made under any LoanDocument or from the execution, delivery, performance, enforcement orregistration of, or otherwise with respect to, any Loan Document (hereinafterreferred to as “**Other Taxes**”).

###  

### (c)           Each Borrower agrees toindemnify each Agent and each Lender for (i) the full amount of Taxes andOther Taxes (including any Taxes or Other Taxes imposed or asserted by anyjurisdiction on amounts payable under this Section 3.01) paid bysuch Agent and such Lender, and (ii) any liability (including additions totax, penalties, interest and expenses) arising therefrom or with respectthereto, in each case whether or not such Taxes or Other Taxes were correctlyor legally imposed or asserted by the relevant Governmental Authority; *provided* that such Agent or Lender, as thecase may be, provides such Borrower with a written statement thereof settingforth in reasonable detail the basis and calculation of such amounts.  Payment under this Section 3.01(c) shallbe made within thirty (30) days after the date such Lender or such Agent makesa written demand therefor. Notwithstanding anything contained in this Section 3.01 tothe contrary, the Borrowers shall be under no obligation to any Agent or anyLender with respect to any additional amounts described in subsections (a), (b) and(c) of this Section 3.01 to the extent incurred prior to theone hundred-eightieth (180th) day preceding the date on which the Borrowersreceived notice by such Agent or such Lender of such additional amounts, unlessthe requirement resulting in such additional amounts becomes effective duringsuch 180 day period and retroactively applies to a date occurring prior to such180 day period, in which case the Borrowers shall be responsible 

 

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### for all such additional amounts described insubsections (a), (b) and (c) of this Section 3.01 fromand after such date of effectiveness.

###  

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

###  

### (e)           If a Lender or an Agent issubject to United States withholding tax at a rate in excess of zero percent atthe time such Lender or such Agent, as the case may be, first becomes a partyto this Agreement, withholding tax at such rate (or at a lesser rate to whichsuch Lender or Agent is entitled under an applicable treaty) at such time shallbe considered excluded from Taxes; *provided*that, if at the date of the Assignment and Assumption pursuant to which aLender becomes a party to this Agreement, the Lender assignor was entitled topayments under clause (a) of this Section 3.01 inrespect of United States withholding tax with respect to interest paid at suchdate, then, to such extent, the term Taxes shall include (in addition towithholding taxes that may be imposed in the future or other amounts otherwiseincludable in Taxes) United States withholding tax, if any, applicable withrespect to the Lender assignee on such date. Any Lender that is entitled to an exemption from or reduction ofwithholding tax under the law of the jurisdiction in which the Borrower islocated or any treaty to which the Netherlands is a party, with respect topayments under this Agreement shall deliver to the Borrower (with a copy to theappropriate Agent), at the reasonable written request of the Borrower, suchproperly completed and executed documentation prescribed by applicable law aswill permit such payments to be made without withholding or at a reduced rate; *provided* that such Lender is legallyentitled to complete, execute and deliver such documentation and in suchLender’s judgment such completion, execution or delivery would not materiallyprejudice the legal position of such Lender; and *provided further*, that if any form or document referred toin this Section 3.01 requires the disclosure of information, otherthan information necessary to compute the tax payable and information requiredon the date hereof by the relevant taxing authority, that the applicable Lenderor Agent considers to be confidential, such Lender or Agent shall give noticethereof to the Borrower and shall not be obligated to include in such form ordocument such confidential information.

###  

### (f)            If any Lender or Agent shallbecome aware that it is entitled to receive a refund in respect of amounts paidby any Borrower pursuant to this Section 3.01, which refund in thegood faith judgment of such Lender or Agent is allocable to such payment, itshall promptly notify such Borrower of the availability of such refund andshall, within thirty (30) days thereafter, apply for such refund; *provided* that in the sole judgment of theLender or Agent, applying for such refund would not cause such Person to sufferany material economic, legal or regulatory disadvantage.  If any Lender or Agent receives a refund inrespect of any Taxes or Other Taxes as to which indemnification or additionalamounts have been paid to it by any Borrower pursuant to this Section 3.01,it shall promptly remit such refund (including any interest included in suchrefund) to such Borrower (to the extent that it determines that it can do sowithout prejudice to the retention of the refund), net of all reasonableout-of-pocket expenses of the Lender or Agent, as the case may be; *provided* that such Borrower, upon therequest of the Lender or Agent, as the case may be, agrees promptly to returnsuch refund to such party in the event such party is required to repay suchrefund to the relevant taxing authority. Such Lender or Agent, as the case may be, shall, at such Borrower’srequest, provide such Borrower with a copy of any notice of assessment or otherevidence of the requirement to repay such refund received from the relevanttaxing authority (*provided*

 

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### that such Lender or Agent may delete any informationtherein that such Lender or Agent deems confidential).  Nothing herein contained shall interfere withthe right of a Lender or Agent to arrange its tax affairs in whatever manner itthinks fit nor oblige any Lender or Agent to claim any tax refund or todisclose any information relating to its tax affairs or any computations inrespect thereof or require any Lender or Agent to do anything that wouldprejudice its ability to benefit from any other refunds, credits, reliefs,remissions or repayments to which it may be entitled.

###  

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

###  

SECTION 3.02.  Illegality.  If any Lender determinesthat any Law has made it unlawful, or that any Governmental Authority hasasserted that it is unlawful, for any Lender or its applicable Lending Officeto make, maintain or fund Eurodollar Rate Loans or to determine or chargeinterest rates based upon the Eurodollar Rate, then, on notice thereof by suchLender to the Borrowers through the Administrative Agent, any obligation ofsuch Lender to make Eurodollar Rate Loans or continue Eurodollar Rate Loans orto convert Base Rate Loans to Eurodollar Rate Loans shall be suspended untilsuch Lender notifies the Administrative Agent and the Borrowers that thecircumstances giving rise to such determination no longer exist.  Upon receipt of such notice, each suchBorrower (i) may revoke any pending request for a Borrowing of, conversionto, or continuation of Eurodollar Rate Loans or (ii) shall, upon demandfrom such Lender (with a copy to the Administrative Agent), prepay or, ifapplicable, convert all Eurodollar Rate Loans of such Lender to Base RateLoans, either on the last day of the Interest Period therefor, if such Lendermay lawfully continue to maintain such Eurodollar Rate Loans to such day, orimmediately, if such Lender may not lawfully continue to maintain suchEurodollar Rate Loans.  Upon any suchprepayment or conversion, each such Borrower shall also pay accrued interest onthe amount so prepaid or converted.  EachLender agrees to designate a different Lending Office if such designation willavoid the need for such notice and will not, in the good faith judgment of suchLender, otherwise be materially disadvantageous to such Lender.

 

SECTION 3.03.  Inability to Determine Rates.  If the Required Lendersdetermine that for any reason adequate and reasonable means do not exist fordetermining the Eurodollar Rate for any requested Interest Period with respectto a proposed Eurodollar Rate Loan or that the Eurodollar Rate for anyrequested Interest Period with respect to a proposed Eurodollar Rate Loan doesnot adequately and fairly reflect the cost to such Lenders of funding suchLoan, or that Dollar deposits are not being offered to banks in the Londoninterbank eurodollar market for the applicable amount and the Interest Periodof such Eurodollar Rate Loan the Administrative Agent will promptly so notifyeach Borrower and each Lender. Thereafter, the obligation of the Lenders to make or maintain EurodollarRate Loans shall be suspended until the Administrative Agent (upon theinstruction of the Required Lenders) revokes such notice.  Upon receipt of such notice, each Borrowermay revoke any pending request for a Borrowing of, conversion to orcontinuation of Eurodollar Rate Loans or, failing that, will be deemed to haveconverted such request into a request for a Borrowing of Base Rate Loans in theamount specified therein.

 

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

 

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

 

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

###  

### (c)           Each Borrower shall pay toeach Lender, (i) as long as such Lender shall be required to maintainreserves with respect to liabilities or assets consisting of or includingEurocurrency funds or deposits (currently known as “Eurocurrency liabilities”),additional interest on the unpaid principal amount of each Eurodollar Rate Loanequal to the actual costs of such reserves allocated to such Loan by suchLender (as determined by such Lender in good faith, which determination shallbe conclusive in the absence of manifest error), and (ii) as long as suchLender shall be required to comply with any reserve ratio requirement oranalogous requirement of any other central banking or financial regulatoryauthority imposed in respect of the maintenance of the Revolving CreditCommitments or the funding of the Eurodollar Rate Loans such additional costs(expressed as a percentage per annum and rounded upwards, if necessary, to thenearest five decimal places) equal to the actual costs allocated to suchRevolving Credit Commitment or Loan by such Lender (as determined by such Lenderin good faith, which determination shall be conclusive absent manifest error)which in each case shall be due and payable on each date on which interest ispayable on such Loan; *provided*such Borrower shall have received at least thirty (30) days’ prior notice (witha copy to the Administrative Agent) of such additional interest or cost fromsuch Lender.  If a Lender fails to givenotice thirty (30) days prior to the relevant Interest Payment Date, suchadditional interest or cost shall be due and payable thirty (30) days fromreceipt of such notice.

###  

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

 

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### (e)           If any Lender requestscompensation under this Section 3.04, then such Lender will, ifrequested by the relevant Borrower, use commercially reasonable efforts todesignate another Lending Office for any Loan or Letter of Credit affected bysuch event; *provided* that suchefforts are made on terms that, in the reasonable judgment of such Lender,cause such Lender and its Lending Office(s) to suffer no materialeconomic, legal or regulatory disadvantage, and *provided further* that nothing in this Section 3.04(e) shallaffect or postpone any of the Obligations of any Borrower or the rights of suchLender pursuant to Section 3.04(a), Section 3.04(b), Section 3.04(c) orSection 3.04(d).

###  

SECTION 3.05.  Funding Losses.  Upon demand of any Lenderfrom time to time, each Borrower shall promptly compensate such Lender for andhold such Lender harmless from any loss, cost or expense incurred by it as aresult of:

 

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

###  

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

###  

including any loss or expense arising fromthe liquidation or reemployment of funds obtained by it to maintain such Loanor from fees payable to terminate the deposits from which such funds wereobtained.

 

For purposes of calculatingamounts payable by a Borrower to the Lenders under this Section 3.05,each Lender shall be deemed to have funded each Eurodollar Rate Loan made by itat the Eurodollar Rate for such Loan by a matching deposit or other borrowingin the London interbank eurodollar market for a comparable amount and for acomparable period, whether or not such Eurodollar Rate Loan was in fact sofunded.

 

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

 

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

###  

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

 

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

###  

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

#####  

##### (ii)           all Loans that wouldotherwise be made or continued as Eurodollar Rate Loans from one InterestPeriod to another by such Lender shall be made or continued instead as BaseRate Loans, and all Base Rate Loans of such Lender that would otherwise beconverted into Eurodollar Rate Loans shall remain as Base Rate Loans.

#####  

### (d)           If any Lender gives noticeto a Borrower (with a copy to the Administrative Agent) that the circumstancesspecified in Section 3.01, Section 3.02, Section 3.03or Section 3.04 hereof that gave rise to the conversion of suchLender’s Eurodollar Rate Loans pursuant to this Section 3.06 nolonger exist (which such Lender agrees to do promptly upon such circumstancesceasing to exist) at a time when Eurodollar Rate Loans made by other Lendersare outstanding, such Lender’s Base Rate Loans shall be automatically convertedirrespective of whether such conversion results in greater than fifteen (15)****Interest Periods being outstanding underthis Agreement, on the first day(s) of the next succeeding Interest Period(s) forsuch outstanding Eurodollar Rate Loans, to the extent necessary so that, aftergiving effect thereto, all Loans held by the Lenders holding Eurodollar RateLoans and by such Lender are held pro rata (as to principal amounts, interestrate basis, and Interest Periods) in accordance with their respective RevolvingCredit Commitments.

###  

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

 

### (b)           Any Lender being replacedpursuant to Section 3.07(a) above shall (i) execute anddeliver an Assignment and Assumption with respect to such Lender’s RevolvingCredit Commitment and outstanding Loans and, if applicable, participations inL/C Obligations and Swing Line Loans, and (ii) deliver any Notesevidencing such Loans to the relevant Borrower or the AdministrativeAgent.  Pursuant to such Assignment andAssumption, (i) the assignee Lender shall acquire all or a portion, as thecase may be, of the assigning Lender’s Revolving Credit Commitment andoutstanding Loans and, if applicable, participations in L/C Obligations andSwing Line Loans, (ii) all obligations of the Borrowers owing to theassigning Lender relating to the Loans and participations so assigned shall bepaid in full by the assignee Lender to such assigning Lender concurrently withsuch assignment and assumption and (iii) upon such payment and, if sorequested by the assignee Lender, delivery to the assignee Lender of theappropriate 

 

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### Note or Notes executed by the relevant Borrower, theassignee Lender shall become a Lender hereunder and the assigning Lender shallcease to constitute a Lender hereunder with respect to such assigned Loans, RevolvingCredit Commitments and participations, except with respect to indemnificationprovisions under this Agreement, which shall survive as to such assigningLender.

###  

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

###  

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

###  

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

 

# ARTICLE 4

#  

# CONDITIONSPRECEDENT

#  

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

 

### (a)           The Administrative Agent’sreceipt of the following, each of which shall be originals or facsimiles or pdfelectronic copies (followed promptly by originals) unless otherwise specified,each dated the Amendment Closing Date unless otherwise indicated, properlyexecuted by a Responsible Officer of the signing Loan Party and in form andsubstance reasonably satisfactory to the Administrative Agent:

###  

##### (i)            executed counterparts ofthis Agreement;

#####  

##### (ii)           executed counterparts ofeach Guaranty;

#####  

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

#####  

##### (iv)          the Security Agreement, dulyexecuted by each of the relevant Loan Parties;

#####  

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

 

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##### material respects on and asof the Amendment Closing Date, except to the extent that such representationsand warranties specifically refer to an earlier date, in which case they shallhave been true and correct in all material respects as of such earlier date, (ii) noDefault or Event of Default exists immediately before or immediately aftergiving effect thereto, (iii) UHS and its Restricted Subsidiaries shall bein Pro Forma Compliance with the financial covenant set forth in Section 7.11as of (A) the Amendment Closing Date and (B) the last day of the mostrecently ended determination period after giving Pro Forma Effect to theAmendment Closing Date, the making of any Credit Extensions on the AmendmentClosing Date and any Investment or Disposition to be consummated in connectiontherewith;

#####  

##### (vi)          a Request for CreditExtension relating to the Credit Extensions to be made on the Amendment ClosingDate in accordance with the requirements hereof;

#####  

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

#####  

##### (viii)        such documents andcertifications as the Administrative Agent may reasonably require to evidencethat each Loan Party is duly organized or formed, validly existing, in goodstanding and qualified to engage in business in its jurisdiction oforganization;

#####  

##### (ix)           such certificates ofresolutions or other action, incumbency certificates and/or other certificatesof Responsible Officers of each Loan Party as the Administrative Agent mayreasonably require evidencing the identity, authority and capacity of eachResponsible Officer of such Loan Party authorized to act as a ResponsibleOfficer in connection with this Agreement and the other Loan Documents to whichsuch Loan Party is a party; and

#####  

##### (x)            a certificate in the form ofExhibit L hereto, attesting to the solvency of UHS, before andafter the Amendment Closing Date, from the chief financial officer of UHS onbehalf of UHS (the “**Solvency Certificate**”).

#####  

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

###  

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

###  

### (d)           No Default shall existbefore or after giving effect to the Amendment Closing Date, or would resultfrom any Credit Extension to be made on the Amendment Closing Date, or from theapplication of the proceeds therefrom.

###  

### (e)           All fees and expensesrequired to be paid hereunder or under the Existing Credit Agreement on orbefore the Amendment Closing Date and invoiced (with reasonable supportingdocumentation) and delivered to the Borrowers before the Amendment Closing Dateshall have been paid in full in cash.

 

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### (f)            The Administrative Agentshall have received all documentation and other information with respect toeach Loan Party required by regulatory authorities under applicable “know yourcustomer” and anti-money laundering rules and regulations, including withoutlimitation, the Patriot Act.

###  

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

 

### (a)           The representations andwarranties of each Borrower and each other Loan Party contained in Article 5or any other Loan Document shall be true and correct in all material respectson and as of the date of such Credit Extension, except (i) to the extentthat such representations and warranties specifically refer to an earlier date,in which case they shall be true and correct in all material respects as ofsuch earlier date and (ii) that for purposes of this Section 4.02,the representations and warranties contained in Section 5.05(a) andSection 5.05(b) shall be deemed to refer to the most recentfinancial statements furnished pursuant to Section 6.01(a) andSection 6.01(b) and, in the case of the financial statementsfurnished pursuant to Section 6.01(b), the representationscontained in Section 5.05(a), as modified by this clause (ii),shall be qualified by the statement that such financial statements are subjectto the absence of footnotes and year-end audit adjustments.

###  

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

###  

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

###  

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

###  

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

 

# ARTICLE 5

#  

# REPRESENTATIONSAND WARRANTIES

#  

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

 

SECTION 5.01.  Existence, Qualification and Power;Compliance with Laws.  Each Loan Partyand each of its Restricted Subsidiaries (a) is a Person duly organized orformed, validly existing and in good standing under the Laws of thejurisdiction of its incorporation or organization, (b) has all requisitecorporate or other applicable entity power and authority to (i) own or leaseits assets and carry on its business and (ii) execute, deliver and performits obligations under the Loan Documents to which it is a party, (c) isduly qualified and in good standing under the Laws of each jurisdiction whereits ownership, lease or operation of properties or the conduct of its businessrequires such qualification, (d) is 

 

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

 

SECTION 5.02.  Authorization; No Contravention.  The (a) execution,delivery and performance by each Loan Party of each Loan Document to which suchPerson is a party, and (b) as of the Closing Date only, the consummationof the Transactions (other than the Transactions described in clause (a)),are within such Loan Party’s corporate or other powers, have been dulyauthorized by all necessary corporate or other organizational action, and donot and will not (i) contravene the terms of any of such Person’sOrganization Documents, (ii) conflict with or result in any breach orcontravention of, or the creation of any Lien under (other than as permitted bySection 7.01), or constitute a default under or require any payment(except for Indebtedness to be repaid on or prior to the Closing Date or theAmendment Closing Date, as applicable, in connection with the Transactions) tobe made under (x) (A) the Senior Notes Documents or the SeniorPIK/Toggle Note Documents or (B) any other Contractual Obligation to whichsuch Person is a party or affecting such Person or the properties of suchPerson or any of its Subsidiaries or (y) any order, injunction, writ ordecree of any Governmental Authority or any arbitral award to which such Personor its property is subject; or (iii) violate any Law (including, withoutlimitation, Regulation X issued by the FRB); except with respect to anyconflict, breach, contravention, default, payment (but not creation of Liens)or violation referred to in clause (ii)(x)(B), clause (ii)(y) orclause (iii), to the extent that such conflict, breach, contravention,default, payment or violation could not reasonably be expected to have aMaterial Adverse Effect.

 

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

 

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

 

SECTION 5.05.  Financial Statements; No Material AdverseEffect.  (a)  The most recentaudited annual financial statements delivered to the Administrative Agentpursuant to Section 6.01(a) fairly present in all materialrespects the financial condition of UHS and its Subsidiaries as of the datethereof and their results of operations for the period covered thereby inaccordance with GAAP or the equivalent accounting principles in the relevantlocal jurisdiction consistently applied throughout the period covered thereby,except as otherwise expressly noted therein.

 

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### (b)           In the case of the AmendmentClosing Date, since December 31, 2009 and, in all other cases, since thedate of the most recent audited financial statements delivered to theAdministrative Agent pursuant to Section 6.01(a), there has been nomaterial adverse change in, or event or condition, either individually or inthe aggregate, that has had or could reasonably be expected to have a materialadverse effect on the business, operations, assets, financial condition oroperating results of the Borrowers and their Restricted Subsidiaries, taken asa whole.

###  

### (c)           Except as set forth onSchedule 3.6 to the Merger Agreement, as of the Closing Date, UHS has nomaterial liabilities or obligations of any nature (whether known or unknown,absolute, accrued, contingent, matured or unmatured), except for (i) liabilitiesand obligations reflected on the Historical Financial Statements, (ii) liabilitiesand obligations that have been incurred in the Ordinary Course of Business (asdefined in the Merger Agreement) since December 31, 2006, (iii) liabilitiesand obligations for fees and expenses incurred in connection with the MergerAgreement and the transactions contemplated thereby, (iv) liabilities andobligations that would not reasonably be expected to have a Target Material AdverseEffect.

###  

### (d)           The forecasts ofconsolidated income statement and cash flow statement of UHS and itsSubsidiaries for each fiscal year ending after the Closing Date until thefourth anniversary of the Closing Date, copies of which have been furnished tothe Administrative Agent and the Lenders prior to the Closing Date, wereprepared in good faith based upon assumptions believed to be reasonable at thetime made in light of the conditions existing at the time of preparation ofsuch forecasts and represented, at the time of preparation, UHS’s reasonableestimate of its future financial performance, it being understood that (i) suchforecasts, as to future events, are not to be viewed as facts, that actualresults during the period or periods covered by any such forecasts may differsignificantly from the forecasted results and that such differences may bematerial and that such forecasts are not a guarantee of financial performanceand (ii) no representation is made with respect to information of a generaleconomic or general industry nature.

###  

SECTION 5.06.  Litigation.  Except (insofar as clause (b) belowis concerned) as disclosed on Schedule 5.06 (the “**Disclosed Litigation**”), there are noactions, suits, proceedings, claims or disputes pending or, to the actualknowledge of any Specified Officer of the Borrower, threatened in writing, atlaw, in equity, in arbitration or before any Governmental Authority, againstany Borrower or any of its Subsidiaries or against any of their properties orrevenues that (a) purport to restrain or contest entry into or performanceunder this Agreement or any other Loan Document or the consummation of theTransactions or (b) either individually or in the aggregate, couldreasonably be expected to have a Material Adverse Effect, and there has been nomaterially adverse change in the status, or financial effect on any Loan Partyor any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule5.06 hereto.

 

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

###  

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

 

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### Loan Party and each of its Subsidiaries is subjectto no Liens, other than Liens set forth on Schedule 7.01(b), and asotherwise permitted by Section 7.01.

###  

### (c)           Schedule 5.07(c) setsforth a complete and accurate list of all real property owned by any Loan Partyor any of its Restricted Subsidiaries, as of the Amendment Closing Date,showing as of such date the street address (to the extent available), county orother relevant jurisdiction, state and record owner and book and estimated fairvalue thereof.  Each Loan Party has goodand marketable title to the real property owned by such Loan Party, free andclear of all Liens, other than Liens created or permitted by the LoanDocuments.

###  

### (d)           Schedule 7.02(f) setsforth a list of all Investments held by any Loan Party or any RestrictedSubsidiary of a Loan Party that is complete and accurate in all materialrespects, as of the Amendment Closing Date, showing as of the date hereof theamount, obligor or issuer and maturity, if any, thereof.

###  

SECTION 5.08.  Environmental Compliance.  Except as set forth on Schedule5.08 hereof:

 

(a)  There are noactions, suits, proceedings, demands or claims alleging potential liability orresponsibility for violation of, or liability under, any Environmental Lawreceived by, and relating to businesses, operations or properties of, any LoanParty or its Subsidiaries except for matters (x) disclosed on Schedule5.08 hereto, which are not expected to result in material liability to anyLoan Party, or (y) that could not, individually or in the aggregate,reasonably be expected to have a Material Adverse Effect.

 

### (b)           Except for matters (x) disclosedon Schedule 5.08 hereto, which are not expected to result in materialliability to any Loan Party, or (y) that could not reasonably be expectedto have a Material Adverse Effect, (i) none of the properties currentlyor, to the actual knowledge of any Specified Officer of the Borrower, formerlyowned, leased or operated by any Loan Party or any of its Subsidiaries, or, tothe actual knowledge of any Specified Officer of the Borrower, to which anyLoan Party or any of its Subsidiaries sent any Hazardous Materials fordisposal, is listed on the NPL or on the CERCLIS or any analogous foreign,state or local list; (ii) there are no and, to the actual knowledge of anySpecified Officer of the Borrower, never have been any underground oraboveground storage tanks or any surface impoundments, septic tanks, pits,sumps or lagoons in which Hazardous Materials are being or have beendischarged, treated, stored or disposed on, at or under any property currentlyowned or operated by any Loan Party or any of its Subsidiaries or, to itsknowledge, on, at or under any property formerly owned, leased or operated byany Loan Party or any of its Subsidiaries during or prior to the period of suchownership or operation; (iii) there is no asbestos or asbestos-containingmaterial on or at any property currently owned or operated by any Loan Party orany of its Subsidiaries; and (iv) Hazardous Materials have not beenreleased, discharged or disposed of on, at or under any property currently orto the actual knowledge of any Specified Officer of the Borrower formerly ownedor operated by any Loan Party or any of its Subsidiaries, except for suchreleases, discharges or disposal that were in compliance with EnvironmentalLaws.

###  

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

###  

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

 

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### order of any Governmental Authority or therequirements of any Environmental Law except for any such investigation orassessment or remedial or response action that, (x) is disclosed on Schedule5.08 hereto, which is not expected to result in material liability to anyLoan Party, or (y) individually or in the aggregate, could not reasonablybe expected to result in a Material Adverse Effect.

###  

### (e)           No Hazardous Materialsgenerated, used, treated, handled or stored at, or transported to or from, anyproperty currently or to the actual knowledge of any Specified Officer of theBorrower formerly owned or operated by any Loan Party or any of itsSubsidiaries have been disposed of by or on behalf of any Loan Party or any ofits Subsidiaries, except for such disposal (x) that could reasonably beexpected to result in, individually or in the aggregate, a Material AdverseEffect, or (y) disclosed on Schedule 5.08 hereto, which are notexpected to result in material liability to any Loan Party.

###  

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

 

SECTION 5.09.  Taxes. The Loan Parties have filed all Federal and state income and othermaterial tax returns and reports required to be filed (after giving effect topermitted extension periods), and have paid all Federal and state income andother material taxes, assessments, fees and other governmental charges leviedor imposed upon them or their properties, income or assets otherwise due andpayable, except those (a) which are not overdue by more than sixty (60)days or (b) which are being contested in good faith by appropriateproceedings diligently conducted and for which adequate reserves have beenprovided in accordance with GAAP or the equivalent accounting principles in therelevant local jurisdiction or (c) with respect to which the failure tomake such filing or payment could not reasonably be expected to have a MaterialAdverse Effect.

 

SECTION 5.10.  ERISA Compliance.  (a)  Except as couldnot reasonably be expected to have a Material Adverse Effect, (i) eachPension Plan is in compliance in all material respects with the applicableprovisions of ERISA and the Code; and (ii) each Pension Plan that isintended to qualify under Section 401(a) of the Code has eitherreceived a favorable determination letter from the IRS or an application for sucha letter has been or will be submitted to the IRS within the applicablerequired time period with respect thereto and, to the knowledge of anySpecified Officer of the Borrower, nothing has occurred which could reasonablybe expected to prevent, or cause the loss of, such qualification.

 

### (b)           Except as set forth on Schedule5.10(b), as of the Amendment Closing Date there are no pending or, to theknowledge of any Specified Officer of the Borrower, threatened claims, actionsor lawsuits, or action by any Governmental Authority, with respect to anyPension Plan that could reasonably be expected to have a Material AdverseEffect.  To the knowledge of anySpecified Officer of the Borrower, there has been no prohibited transaction orviolation of the fiduciary responsibility rules with respect to anyPension Plan that has resulted or could reasonably be expected to result in aMaterial Adverse Effect.

###  

### (c)           Except as set forth on Schedule5.10(c), (i) no ERISA Event has occurred or is reasonably expected tooccur; (ii) no Pension Plan has an “accumulated funding deficiency” (asdefined in Section 412 of the Code), whether or not waived, and noapplication for a waiver of the minimum funding standard has been filed withrespect to any Pension Plan; (iii) none of the Borrowers or any ERISAAffiliate has incurred, or reasonably expects to incur, any liability underTitle IV of ERISA with respect to any Pension Plan (other than premiums not yetdue or premiums due and not yet delinquent under Section 4007 of ERISA); (iv) noneof the Borrowers or any ERISA Affiliate has incurred, or reasonably expects toincur, any liability (and no event has occurred which, with the giving ofnotice under Section 4219 of ERISA, would result in such liability) underSections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v) noneof the Borrowers or any ERISA Affiliate has engaged in a transaction 

 

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

###  

SECTION 5.11.  Subsidiaries; Equity Interests.  As of the Amendment Closing Date,no Loan Party has any Subsidiaries other than those specifically disclosed in Schedule5.11, and all of the outstanding Equity Interests in each RestrictedSubsidiary are fully paid and with respect to corporate shares, nonassessableand are owned directly by the Person set forth on Schedule 5.11 and arefree and clear of all Liens except (i) those created under the CollateralDocuments and (ii) any nonconsensual Lien that is permitted under Section 7.01.  As of the Amendment Closing Date, Schedule5.11 (a) sets forth the name and jurisdiction of each Subsidiary, and (b) setsforth the direct ownership interest of the Borrowers and any other Subsidiaryin each Subsidiary, including the percentage of such ownership.  As of the Amendment Closing Date, theSubsidiary named on Schedule 5.11 has no material assets.

 

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

 

### (b)           None of the Borrowers, anyPerson Controlling the Borrowers, or any Subsidiary is or is required to beregistered as an “investment company” under the Investment Company Act of1940.  Neither the making of any Loans,nor the issuance of any Letters of Credit, nor the application of the proceedsor repayment thereof by the Borrowers, nor the consummation of the othertransactions contemplated by the Related Documents will violate any provisionof the Securities Act or any rule, regulation or order of the SEC thereunder.

###  

SECTION 5.13.  Disclosure.  To the actual knowledge ofthe Specified Officers of the Borrowers, no report, financial statement,certificate or other written information furnished by or on behalf of any LoanParty to any Agent or any Lender in connection with the transactionscontemplated hereby and the negotiation of this Agreement or deliveredhereunder or any other Loan Document (as modified or supplemented by otherinformation so furnished), including without limitation, the ConfidentialMemorandum, when taken as a whole contains any material misstatement of fact oromits to state any material fact necessary to make the statements therein, inthe light of the circumstances under which they were made, not materiallymisleading; *provided* that, (a) withrespect to financial estimates, projected financial information and otherforward-looking information, each Borrower represents and warrants only thatsuch information was prepared in good faith based upon assumptions believed tobe reasonable at the time of preparation; it being understood that suchprojections, as to future events, are not to be viewed as facts, that actualresults during the period or periods covered by any such projections may differsignificantly from the projected results and that such differences may bematerial and that such projections are not a guarantee of financial performanceand (b) no representation is made with respect to information of a generaleconomic or general industry nature.

 

SECTION 5.14.  Intellectual Property, Licenses, Etc.  Schedule 5.14 sets forth acomplete and accurate list of all registered, patented or applied for MaterialIntellectual Property on the Amendment Closing Date, owned by each Loan Partyand its Subsidiaries, showing as of the Amendment Closing Date the jurisdictionin which each such Material Intellectual Property is registered, theregistration or application serial number, if applicable, and the date ofregistration, if applicable.  Each LoanParty and its Restricted Subsidiaries own, or possess a license or other rightto use, all of the material trademarks, service marks, trade names, copyrights,patents, patent rights, database rights and design rights and otherintellectual property rights (collectively, “**IPRights**”) that are reasonably necessary for the operation of theirrespective businesses as currently operated by each Loan Party and its 

 

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Restricted Subsidiaries without, to theknowledge of a Specified Officer of the Borrower, conflict with the rights ofany other Person, except to the extent such failure to own or possess the rightto use or such conflicts, either individually or in the aggregate, could notreasonably be expected to have a Material Adverse Effect.  To the knowledge of the Specified Officers ofthe Borrower, no trademarks, servicemarks, copyrights, logos, designs, slogansor other advertising devices, products, processes, methods, substances, part orother material, as currently used or employed by any Loan Party or anyRestricted Subsidiary, infringes upon any rights held by any other Personexcept for such infringements, individually or in the aggregate, which couldnot reasonably be expected to have a Material Adverse Effect.  No claim or litigation regarding any of theforegoing is pending or, to the actual knowledge of any Specified Officer ofthe Borrower, threatened, against any Loan Party which, either individually orin the aggregate, could reasonably be expected to have a Material AdverseEffect.

 

SECTION 5.15.  Solvency.  On the Amendment ClosingDate after giving effect to the transactions contemplated by this Agreement, theLoan Parties have certified, on a consolidated basis, as to solvency inaccordance with the Solvency Certificate.

 

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

 

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

 

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

 

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

 

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# ARTICLE 6

#  

# AFFIRMATIVECOVENANTS

#  

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

 

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

 

### (a)           as soon as available, but inany event within one hundred twenty (120) days after the end of each fiscalyear, a consolidated balance sheet of UHS and its Subsidiaries as at the end ofsuch fiscal year, and the related consolidated statements of income oroperations, shareholders’ equity and cash flows for such fiscal year, settingforth in each case in comparative form the figures for the previous fiscalyear, all in reasonable detail and prepared in accordance with GAAP, auditedand accompanied by a report and opinion of PricewaterhouseCoopers LLP or anyother independent certified public accountant of nationally recognizedstanding, which report and opinion shall be prepared in accordance withgenerally accepted auditing standards and shall not be subject to any “goingconcern” or like qualification or exception or any qualification or exceptionas to the scope of such audit;

###  

### (b)           as soon as available, but inany event within sixty (60) days after the end of each fiscal quarter,excluding, in each case, the fourth fiscal quarter, a consolidated balancesheet of UHS and its Subsidiaries as at the end of such fiscal quarter, and therelated consolidated statements of income or operations, shareholders’ equityand cash flows for such fiscal quarter and for the portion of the fiscal yearthen ended, setting forth in each case in comparative form the figures for thecorresponding fiscal quarter of the previous fiscal year and the correspondingportion of the previous fiscal year, all in reasonable detail and certified bya Responsible Officer of UHS as fairly presenting in all material respects thefinancial condition, results of operations, shareholders’ equity and cash flowsof UHS and its Subsidiaries in accordance with GAAP, subject only to normalyear-end audit adjustments and the absence of footnotes; and

###  

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

###  

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

###  

### (e)           upon Administrative Agent’srequest at any time Borrowing Availability is less than $3,000,000, and in anyevent no less frequently than 5 Business Days after the end of each fiscalmonth (together with a copy of all or any part of the following reports requestedby any Lender in writing after the Closing Date), a Borrowing Base Certificateprepared by the Borrowers as of the last day of the fiscal month immediatelypreceding the most recently ended fiscal month or the date 2 days prior to thedate of 

 

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### any such request, based on the most recentlyavailable information, accompanied by such supporting detail and documentationas shall be reasonably requested by Administrative Agent.  Notwithstanding anything to the contrary setforth herein or Exhibit K hereto, if on the date of delivery of anyBorrowing Base Certificate the Total Outstandings do not exceed the BorrowingBase without giving effect to clauses (a) and (b) of the definitionthereof, Borrowers may deliver such Borrowing Base Certificate withoutcalculating the amount of Eligible Accounts, Eligible Unbilled Accounts,Eligible Wholesale Disposables and Eligible Equipment Disposables (each, a “**Alternative Borrowing Base Certificate**”).  For the avoidance of doubt, if the Borrowerselect to deliver an Alternative Borrowing Base Certificate, the Borrowersacknowledge that the Borrowing Base and Borrowing Availability will bedetermined for all purposes under the Loan Documents on the basis of suchAlternative Borrowing Base Certificate, regardless of the amount and existenceof Eligible Accounts and Eligible Unbilled Accounts.

###  

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

###  

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

###  

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

###  

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

###  

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

 

### (a)           (i) concurrently withthe delivery of the financial statements referred to in Section 6.01(a) andSection 6.01(b) for a quarter during which BorrowingAvailability was less than $15,000,000 for three (3) consecutive days, aduly completed Compliance Certificate signed by a Responsible Officer of UHS(which shall set forth reasonably detailed calculations demonstratingcompliance with Section 7.11 and (ii) at any time on or afterthe tenth (10th) day prior to the last day of any fiscal quarter, the EquityInvestors may deliver notice of their intent to provide UHS with Net CashProceeds (a “**Notice of Intent to Make AnEquity Infusion**”) through capital contributions or the purchase ofEquity Interests by one or more Equity Investors as contemplated pursuant to clause(b)(xiii) and the final proviso of the definition of “Consolidated EBITDA”;*provided* that the delivery of aNotice of Intent to Make An Equity Infusion shall in no way affect or alter theoccurrence, existence or continuation of any such Event of Default or therights, benefits, powers and remedies of the Administrative Agent and the Lendersunder any Loan Document; *provided**further* that from the date ofreceipt of such Notice of Intent to Make an 

 

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

###  

### (b)           promptly after the same arepublicly available, copies of all annual, regular, periodic and special reportsand registration statements which any Borrower or any Restricted Subsidiaryfiled with the SEC under Section 13 or 15(d) of the SecuritiesExchange Act of 1934, or with any Governmental Authority that may besubstituted therefor, or with any national securities exchange, and in any casenot otherwise required to be delivered to the Administrative Agent pursuanthereto;

###  

### (c)           promptly after thefurnishing thereof, copies of any material requests or material noticesreceived by any Loan Party (other than in the ordinary course of business)from, or material statement or material report furnished to, any holder of debtsecurities of any Loan Party or of any of its Restricted Subsidiaries pursuantto the terms of any Junior Financing Documentation in a principal amountgreater than the Threshold Amount and not otherwise required to be furnished tothe Lenders pursuant to any other clause of this Section 6.02;

###  

### (d)           promptly after the receiptthereof by any Loan Party or any of its Subsidiaries, copies of each notice orother written correspondence received from the SEC (or comparable agency in anyapplicable non-US jurisdiction) concerning any material investigation or othermaterial inquiry by such agency regarding financial or other operationalresults of any Loan Party or any of its Subsidiaries;

###  

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

###  

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

###  

Documents required to bedelivered pursuant to Section 6.01(a), Section 6.01(b),Section 6.02(b) or Section 6.02(c) (to theextent any such documents are included in materials otherwise filed with theSEC) may be delivered electronically and if so delivered, shall be deemed tohave been delivered on the date (i) on which any Borrower posts suchdocuments, or provides a link thereto on such Borrower’s website on theInternet at the website address listed on Schedule 10.02; or (ii) onwhich such documents are posted on the Borrowers’ behalf on IntraLinks/IntraAgencyor another relevant website, if any, to which each Lender and theAdministrative Agent have access (whether a commercial, third-party website orwhether sponsored by the Administrative Agent); *provided* that: (A) upon the request of the AdministrativeAgent, the Borrowers shall deliver paper copies of such documents to theAdministrative Agent for further distribution to each Lender and (B) theBorrowers shall notify (which may be by facsimile or electronic mail) theAdministrative Agent of the posting of any such documents and provide to theAdministrative Agent by electronic mail electronic versions (*i.e.*, soft copies) of such documents.  Except for Compliance Certificates, theAdministrative Agent shall have no obligation to request the delivery or tomaintain copies of the documents referred to above, and in any event shall haveno responsibility to monitor compliance by the Borrowers with any such requestfor delivery, and each Lender shall be solely responsible for requestingdelivery of or maintaining its copies of such documents.

 

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

 

### (a)           of the occurrence of anyDefault;

###  

### (b)           of any matter that hasresulted or could in the reasonable judgment of any Loan Party reasonably beexpected to result in a Material Adverse Effect, including any such matterarising out of or resulting from (i) breach or non-performance of, or anydefault under, a Contractual Obligation of any Loan Party or any RestrictedSubsidiary, (ii) any dispute, litigation, investigation, proceeding orsuspension between any Loan Party or any Subsidiary and any GovernmentalAuthority, (iii) the commencement of, or any material adverse developmentin, any litigation or proceeding affecting any Loan Party or any Subsidiary,including pursuant to any applicable Environmental Laws or the assertion oroccurrence of any alleged noncompliance by any Loan Party or as any of itsSubsidiaries with any Environmental Law or Environmental Permit, or (iv) theoccurrence of any ERISA Event;

###  

### (c)           if Borrowing Availability isless than $15,000,000; and

###  

### (d)           of any notice provided to orby any trustee with respect to the Senior Notes Documents or the SeniorPIK/Toggle Notes Documents, attaching thereto a true and correct copy of anysuch notice.

###  

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

 

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

 

SECTION 6.05.  Preservation of Existence, Etc.  (a) Preserve, renew and maintain in full force and effect its legal existence underthe Laws of the jurisdiction of its organization except in a transactionpermitted by Section 7.04 or Section 7.05, and, in thecase of any Restricted Subsidiary (other than a Borrower) to the extent thefailure to do so could not reasonably be expected to have a Material AdverseEffect, and (b) take all reasonable action to maintain all rights,privileges (including its good standing), permits, licenses, MaterialIntellectual Property Rights and franchises necessary in the normal conduct ofits business, except (i) to the extent that failure to do so could notreasonably be expected to have a Material Adverse Effect or (ii) pursuantto a transaction permitted by Section 7.04 or Section 7.05.

 

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

 

SECTION 6.07.  Maintenance of Insurance.  Maintain with financiallysound and reputable insurance companies, insurance with respect to itsproperties and business against loss or 

 

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damage of the kinds customarily insuredagainst by Persons engaged in the same or similar business, of such types andin such amounts (after giving effect to any self-insurance reasonable andcustomary for similarly situated Persons engaged in the same or similarbusinesses as the Borrowers and their Restricted Subsidiaries in the samegeographic locales) as are customarily carried under similar circumstances bysuch other Persons, including, without limitation, casualty insurance withrespect to the Collateral in form and substance not materially less than thatin effect on the Closing Date.  Ifreasonably requested by the Administrative Agent, each Loan Party shall deliverto the Administrative Agent from time to time (no more frequently than once inany calendar year unless an Event of Default has occurred and is continuing) areport of its insurance broker with respect to its insurance policies.

 

SECTION 6.08.  Compliance with Laws.  Comply in all materialrespects with the requirements of all Laws and all orders, writs, injunctionsand decrees applicable to it or to its business or property, except if thefailure to comply therewith (other than the PATRIOT Act, any othercounter-terrorism laws and the Racketeer Influenced and Corrupt OrganizationsChapter of the Organized Crime Control Act of 1970) could not reasonably beexpected to have a Material Adverse Effect.

 

SECTION 6.09.  Books and Records.  Maintain proper books ofrecord and account (in which full, true and correct, in all material respects,entries shall be made of all material financial transactions and mattersinvolving the assets and business of the Borrowers and the Subsidiaries) in amanner that permits the preparation of financial statements in accordance withGAAP or the equivalent accounting principles in the relevant localjurisdiction.

 

SECTION 6.10.  Inspection Rights.  Permit representatives andindependent contractors of the Administrative Agent to visit and inspect any ofits properties, to examine its corporate, financial and operating records, andmake copies thereof or abstracts therefrom, and to discuss its affairs,finances and accounts with its directors, officers, and independent publicaccountants (so long as an executed standard access letter of such independentpublic accountants is received from the Administrative Agent) and to examineand make extracts from its books and records, all at such reasonable times andas often as reasonably requested, all at the expense of the Borrowers asprovided below and at such reasonable times during normal business hours and asoften as may be reasonably desired, upon reasonable advance notice to theBorrowers and the applicable Loan Party; *provided*that, excluding any such visits and inspections during the continuation of anEvent of Default, only the Administrative Agent on behalf of the Lenders mayexercise rights under this Section 6.10 and the AdministrativeAgent shall not exercise such rights more often than one (1) time duringany calendar year absent the existence and continuance of an Event of Defaultand only at such time shall it be at the Borrowers’ expense; *provided further* that when an Event ofDefault has occurred and is continuing the Administrative Agent or any suchLender (or any of their respective representatives or independent contractors)may do any of the foregoing at the expense of the Borrowers at any time duringnormal business hours and upon reasonable advance notice.  The Administrative Agent and the Lendersshall give the Borrowers the opportunity to participate in any discussions withthe Borrowers’ accountants provided that no Loan Party shall be required toprovide the Administration Agent with access to patient information of anycustomer or employee of any Loan Party or any Subsidiary thereof.

 

SECTION 6.11.  Use of Proceeds.  Use the proceeds of theCredit Extensions (i) to finance in part the Acquisition, (ii) to payfees and expenses incurred in connection with the Transactions, (iii) toprovide ongoing working capital and for other general corporate purposes of theBorrowers and their Subsidiaries (including Permitted Acquisitions and CapitalExpenditures), and (iv) to make repayments and/or purchases ofIndebtedness to the extent not prohibited by Section 7.14.

 

SECTION 6.12.  Covenant to Guarantee Obligations and GiveSecurity.  (a) Upon (A) theformation or acquisition of any new direct or indirect Restricted Subsidiary byany Loan Party or the 

 

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

 

##### (i)            within thirty (30) daysafter such formation, acquisition, designation or Guarantee (or such longerperiod as the Administrative Agent may agree in its reasonable discretion):

#####  

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

 

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

 

(C)           cause each suchRestricted Subsidiary that is required to become a Guarantor pursuant to Section 6.12(a)(i)(A),to duly execute and deliver to the Administrative Agent Mortgages with respectto Material Real Property, Security Agreement Supplements, IntellectualProperty Security Agreements and other Collateral Documents, as specified by,and in form and substance reasonably satisfactory to the Administrative Agent(consistent with the Mortgages, Security Agreements, Intellectual PropertySecurity Agreement and other Collateral Documents in effect on the AmendmentClosing Date), granting a Lien in substantially all personal property (otherthan Equity Interests in any Subsidiary or a Joint Venture) of such RestrictedSubsidiary and all Material Real Property, in each case securing theObligations of such Restricted Subsidiary under its Guaranty; *provided* that, unless an Event of Defaulthas occurred and is continuing, if UHS notifies the Administrative Agent thatit intends to sell such Material Real Property within one year of the time suchMortgage would otherwise be required to be executed and delivered, suchMaterial Real Property shall not be required to be mortgaged until such periodexpires (unless extended by the Administrative Agent in its discretion);

 

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

 

(E)           take and causesuch Restricted Subsidiary to take whatever action (including the recording ofMortgages with respect to Material Real Property, the filing of UniformCommercial Code financing statements, and delivery of certificates evidencingstock and membership interests) as may be necessary in the reasonable opinionof the Administrative Agent to vest in the Administrative Agent (or in anyrepresentative of the Administrative Agent designated by it) valid andsubsisting Liens on 

 

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theproperties purported to be subject to the Mortgages and the other CollateralDocuments delivered pursuant to this Section 6.12, enforceableagainst all third parties in accordance with their terms,

 

##### (ii)           within thirty (30) daysafter the reasonable request therefor by the Administrative Agent, deliver tothe Administrative Agent a signed copy of a customary legal opinion, addressed tothe Administrative Agent and the other Secured Parties, of counsel for the LoanParties reasonably acceptable to the Administrative Agent as to such mattersset forth in this Section 6.12(a) as the Administrative Agentmay reasonably request, and

#####  

##### (iii)          as promptly as practicableafter the request therefor by the Administrative Agent, deliver to theAdministrative Agent with respect to Material Real Property owned by suchRestricted Subsidiary that is the subject of such request, title reports inscope, form and substance reasonably satisfactory to the Administrative Agentand, to the extent available, surveys and environmental assessment reports.

#####  

### (b)           Upon the acquisition of (x) anypersonal property by any Loan Party or (y) Material Real Property by anyLoan Party, if such property shall not already be subject to a perfected Lienin favor of the Administrative Agent for the benefit of the Secured Parties,the relevant Borrower or Loan Party, as the case may be, shall give noticethereof to the Administrative Agent and shall, if requested by theAdministrative Agent or the Required Lenders, cause such assets to be subjectedto a Lien securing such Loan Party’s Obligations and will take, or cause therelevant Loan Party to take, such actions as shall be necessary or reasonablyrequested by the Administrative Agent to grant and perfect or record such Lien,including, as the case may be, the applicable actions referred to in Section 6.12(a) andSection 6.14(b); *provided*that if UHS notifies the Administrative Agent that it intends to sell suchMaterial Real Property within one year of the time such Mortgage wouldotherwise be required to be executed and delivered, such Material Real Propertyshall not be required to be mortgaged until such period expires (unlessextended by the Administrative Agent in its discretion).

###  

### (c)           Each Guarantor has dulyexecuted and delivered (i) a Security Agreement granting a first-priorityperfected security interest (subject to Liens permitted under Section 7.02)in its assets constituting Collateral thereunder to secure its Obligationsunder the Guaranty, (ii) a Guaranty and (iii) if applicable, anIntellectual Property Security Agreement to secure its Obligations under theGuaranty.  To the extent reasonablyrequested by the Administrative Agent, the Borrowers will cause to be deliveredto the Administrative Agent one or more customary legal opinions in form andsubstance reasonably satisfactory to the Administrative Agent with respect tothe granting of such security interests and the making of such Guarantees.

###  

### (d)           Notwithstanding theforegoing, (x) the Administrative Agent shall not take a security interestin or require any title insurance or similar items with respect to those assetsas to which the Administrative Agent shall determine, in its reasonablediscretion, that the cost of obtaining such Lien (including any mortgage,stamp, intangibles or other tax, title insurance or similar items) is excessivein relation to the benefit to the Lenders of the security afforded thereby, (y) Liensrequired to be granted pursuant to this Section 6.12 shall besubject to exceptions and limitations consistent with those set forth in theCollateral Documents as in effect on the Amendment Closing Date (to the extentappropriate in the applicable jurisdiction) and (z) the Subsidiary namedon Schedule 5.11 shall not be required to comply with paragraphs (a) through(c) above unless and until it acquires any material assets.

###  

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

 

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

 

SECTION 6.14.  Further Assurances.  (a)  Promptly uponreasonable request by the Administrative Agent, (i) correct any materialdefect or error that may be discovered in the execution, acknowledgment, filingor recordation of any Loan Document or other document or instrument relating toany Collateral, and (ii) do, execute, acknowledge, deliver, record,re-record, file, re-file, register and re-register any and all such furtheracts, deeds, certificates, assurances and other instruments as theAdministrative Agent may reasonably require from time to time in order to carryout more effectively the purposes of the Loan Documents (including, withoutlimitation, the Collateral Documents).

 

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

###  

SECTION 6.15.  Landlord Agreement and Real EstatePurchases.  UHS shall usecommercially reasonable efforts to obtain a landlord’s agreement with respectto UHS’s operating headquarters from the lessor of such property, whichagreement shall be reasonably satisfactory in form and substance to theAdministrative Agent.  To the extentotherwise permitted hereunder, if any Loan Party proposes to acquire a feeownership interest in Material Real Property after the Amendment Closing Date,it shall within sixty (60) days after such acquisition (or such longer periodas the Administrative Agent shall agree in its reasonable discretion) provideto the Administrative Agent a mortgage or deed of trust granting theAdministrative Agent a first priority Lien on such real estate, together withenvironmental audits, mortgage title insurance commitment, real propertysurvey, local counsel opinion(s), and supplemental casualty insurance and (tothe extent required by law) flood insurance, and such other documents,instruments or agreements reasonably requested by the Administrative Agent, ineach case, in form and substance reasonably satisfactory to the AdministrativeAgent; provided that if such Loan Party notifies the AdministrativeAgent that it intends to sell such Material Real Property within one year ofthe time such Mortgage would otherwise be required to be executed anddelivered, such Material Real Property shall not be required to be mortgageduntil such period expires (unless extended by the Administrative Agent in itsdiscretion).

 

SECTION 6.16.  Designation of Subsidiaries.  The board of directors ofany Borrower may at any time designate any Restricted Subsidiary as anUnrestricted Subsidiary or any Unrestricted Subsidiary as a RestrictedSubsidiary; *provided* that (a) immediatelybefore and after such designation, no Default shall have occurred and becontinuing, (b) immediately before and after giving effect to suchdesignation, Borrowing Availability shall be no less that $25,000,000, (c) immediatelyafter giving effect to such designation, UHS and its Subsidiaries shall be incompliance, on a Pro Forma Basis, with Articles 6 and 7,including the financial covenant set forth in Section 7.11 as if ineffect on the date thereof (and, as a condition precedent to the effectivenessof any such designation, the Borrowers shall deliver to the AdministrativeAgent a certificate setting forth in reasonable detail the calculationsdemonstrating such 

 

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compliance), (d) noBorrower may be designated as an Unrestricted Subsidiary and (e) noSubsidiary may be designated as an Unrestricted Subsidiary if it is a“Restricted Subsidiary” for the purpose of any Permitted SubordinatedIndebtedness.  The designation of anySubsidiary as an Unrestricted Subsidiary shall constitute an Investment by suchBorrower or the relevant Restricted Subsidiary (as applicable) therein at thedate of designation in an amount equal to the net book value of such Person’s(as applicable) investment therein.  Thedesignation of any Unrestricted Subsidiary as a Restricted Subsidiary shallconstitute the incurrence at the time of designation of any Indebtedness orLiens of such Subsidiary existing at such time.

 

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

 

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

###  

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

###  

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

###  

### (d)           ensuring that anyIndebtedness of any Unrestricted Subsidiary is Non-Recourse Debt with respectto such Restricted Subsidiary;

###  

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

###  

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

###  

### (g)           not providing any aGuarantee or otherwise directly or indirectly providing credit support for anyIndebtedness of any Unrestricted Subsidiary.

###  

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

 

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other Laws affecting creditors’ rightsgenerally and by general principles of equity (regardless of whetherenforcement is sought in equity or at law).

 

# ARTICLE 7

# NEGATIVECOVENANTS

#  

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

 

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

 

### (a)           Liens pursuant to any LoanDocument;

###  

### (b)           Subject to the IntercreditorAgreement, Liens created under any Senior Notes Documents and Senior PIK/ToggleNotes Documents;

###  

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

###  

### (d)           Liens for taxes, assessmentsor governmental charges which are not overdue for a period of more than sixty(60) days or, if more than sixty (60) days overdue (i) which are beingcontested in good faith and by appropriate actions diligently conducted, ifadequate reserves with respect thereto are maintained on the books of theapplicable Person in accordance with GAAP or the equivalent accountingprinciples in the relevant local jurisdiction or (ii) with respect towhich the failure to make payment could not reasonably be expected to have aMaterial Adverse Effect;

###  

### (e)           statutory Liens oflandlords, carriers, warehousemen, mechanics, materialmen, repairmen, constructioncontractors or other like Liens arising in the ordinary course of businesswhich secure amounts not overdue for a period of more than sixty (60) days or,if more than sixty (60) days overdue (i) no action has been taken toenforce such Lien, (ii) such Lien is being contested in good faith and byappropriate actions diligently conducted, if adequate reserves with respectthereto are maintained on the books of the applicable Person in accordance withGAAP or the equivalent accounting principles in the relevant local jurisdictionor (iii) with respect to which the failure to make payment could notreasonably be expected to have a Material Adverse Effect;

###  

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

 

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

###  

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

###  

### (h)           easements, rights-of-way,covenants, conditions, restrictions, encroachments, protrusions and othersimilar encumbrances and minor title defects or matters that would be disclosedin an accurate survey affecting real property which, in the aggregate, do notin any case materially and adversely interfere with the ordinary conduct of thebusiness of the applicable Person;

###  

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

###  

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

###  

### (k)           (i) leases, licenses,subleases or sublicenses granted to other Persons in the ordinary course ofbusiness which do not (A) interfere in any material respect with thebusiness of any Borrower or any other Loan Party or (B) secure anyIndebtedness for borrowed money or (ii) the rights reserved or vested inany Person by the terms of any lease, license, franchise, grant or permit heldby any Borrower or any of the Restricted Subsidiaries or by a statutoryprovision, to terminate any such lease, license, franchise, grant or permit, orto require annual or periodic payments as a condition to the continuancethereof;

###  

### (l)            Liens in favor of customsand revenue authorities arising as a matter of law to secure payment of customsduties in connection with the importation of goods in the ordinary course ofbusiness;

###  

### (m)          Liens (i) of acollection bank arising under Section 4-210 of the Uniform Commercial Codeon items in the course of collection, (ii) attaching to commodity tradingaccounts or other commodities brokerage accounts incurred in the ordinarycourse of business or (iii) in favor of a banking institution arising as amatter of law encumbering deposits (including the right of set-off) and whichare within the general parameters customary in the banking industry;

###  

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

 

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

###  

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

###  

### (q)           Liens arising fromprecautionary Uniform Commercial Code financing statement filings (or similarfilings under other applicable Law) regarding leases entered into by anyBorrower or any of the Restricted Subsidiaries in the ordinary course ofbusiness;

###  

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

###  

### (s)           Permitted Encumbrances;

###  

### (t)            other Liens securingIndebtedness or other obligations permitted under this Agreement andoutstanding in an aggregate principal amount not to exceed $10,000,000;

###  

### (u)           Liens that are contractualrights of set-off (i) relating to the establishment of depositoryrelations with banks not given in connection with the issuance of Indebtedness,(ii) relating to pooled deposit or sweep accounts of any Borrower or any RestrictedSubsidiary to permit satisfaction of overdraft or similar obligations incurredin the ordinary course of business of such Borrower and its RestrictedSubsidiaries or (iii) relating to purchase orders and other agreementsentered into with customers of any Borrower or any Restricted Subsidiary in theordinary course of business;

###  

(v)           any interest or title of alicensor, sublicensor, lessor or sublessor under any license or operating ortrue lease agreement;

 

(w)          Liens on securities whichare the subject of repurchase agreements incurred in the ordinary course ofbusiness;

 

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

 

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

 

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

 

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

 

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

 

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

 

### (a)           Investments by Parent, anyBorrower or any Restricted Subsidiary in assets that were Cash Equivalents whensuch Investment was made;

###  

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

###  

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

###  

### (d)           Investments consisting ofextensions of credit in the nature of accounts receivable or notes receivablearising from the grant of trade credit in the ordinary course of business, andInvestments received in satisfaction or partial satisfaction thereof fromfinancially troubled account debtors and other credits to suppliers in theordinary course of business;

###  

### (e)           Investments consisting ofLiens, Indebtedness, fundamental changes, Dispositions and Restricted Paymentspermitted by Section 7.01, Section 7.03, Section 7.04,Section 7.05 and Section 7.06, respectively;

###  

### (f)            Investments existing orcontemplated on the Closing Date and set forth on Schedule 7.02(f) andany modification, replacement, renewal or extension thereof; *provided* that the amount of the originalInvestment is not increased except by the terms of such Investment or asotherwise permitted by this Section 7.02;

###  

### (g)           Investments in SwapContracts permitted by Section 7.03;

###  

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

###  

### (i)            the purchase or otheracquisition of all or substantially all of the assets or business of, anyPerson, or of assets constituting a business unit, a line of business ordivision of, such Person, or of all of 

 

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

###  

(A)          each applicableLoan Party and any such newly created or acquired Subsidiary shall, or willwithin the times specified therein, have complied with the applicablerequirements of Section 6.12;

 

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

 

(C)           the Borrowersshall have delivered to the Administrative Agent, on behalf of the Lenders, nolater than five (5) Business Days after the date on which any suchpurchase or other acquisition is consummated, (1) a certificate of aResponsible Officer, in form and substance reasonably satisfactory to theAdministrative Agent, certifying that all of the requirements set forth in thisSection 7.02(i) have been satisfied or will be satisfied on orprior to the consummation of such purchase or other acquisition and (2) solelywith respect to any such purchase or other acquisition the total cash andnoncash consideration paid by or on behalf of the Borrowers and their Subsidiariesin connection with which is equal to or greater than $50,000,000, and to theextent permitted under the Loan Parties’ agreements with the seller(s) thereof,true, correct and complete copies of the relevant acquisition agreement and theresolutions of the Loan Parties and (to the extent provided by the seller(s) tosuch Loan Parties) the seller(s) party thereto authorizing the execution,delivery and performance thereof and of the transactions contemplated thereby.

###  

### (j)            Investments in connectionwith the Acquisition;

###  

### (k)           Investments in the ordinarycourse of business consisting of (i) indorsements for collection ordeposit or (ii) customary trade arrangements with customers;

###  

### (l)            Investments (including debtobligations and Equity Interests) received in connection with the bankruptcy orreorganization of any Person and in settlement of obligations of, or disputeswith, any Person arising in the ordinary course of business and uponforeclosure with respect to any secured Investment or other transfer of titlewith respect to any secured Investment;

 

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

###  

### (n)           so long as immediately aftergiving effect to any such Investment, no Event of Default has occurred and iscontinuing, other Investments (including in Unrestricted Subsidiaries) that donot exceed (i) $25,000,000 plus (ii) the Applicable Amount at any onetime outstanding;

###  

### (o)           advances of payroll paymentsto employees in the ordinary course of business;

###  

### (p)           Guarantees by Parent, anyBorrower or any Restricted Subsidiary of leases (other than CapitalizedLeases), contracts, or of other obligations that do not constituteIndebtedness, in each case entered into in the ordinary course of business;

###  

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

###  

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

 

(t)            earnest money required inconnection with Permitted Acquisitions;

 

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

 

(v)           capitalization orforgiveness of any Indebtedness owed to any Loan Parties by any other LoanParties; and

 

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

 

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

 

### (a)           Indebtedness evidenced bythe Senior Notes, the Senior PIK/Toggle Notes and any Permitted Refinancingthereof;

 

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

 

##### (i)            Indebtedness of the LoanParties under the Loan Documents;

#####  

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

 

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

#####  

##### (iv)          (A) Indebtedness assumed inconnection with any Permitted Acquisition; *provided*that such Indebtedness is not incurred in contemplation of such PermittedAcquisition, or (B) Indebtedness owed to the seller of any propertyacquired in a Permitted Acquisition on an unsecured subordinated basis, whichsubordination shall be on terms reasonably satisfactory to the AdministrativeAgent, in each case under this clause (iv), so long as both immediately priorand after giving effect thereto (x) no Event of Default shall exist or resulttherefrom, (y) the Borrower Parties shall be in Pro Forma Compliance withthe financial covenant set forth in Section 7.11, after givingeffect to such Permitted Acquisition and the assumption, incurrence or issuanceof such Indebtedness, and, in each case, any Permitted Refinancing thereof, and(z) the  amount of Indebtednessincurred under this clause (iv) shall not exceed $20,000,000 in theaggregate at any time outstanding;

#####  

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

#####  

##### (vi)          Indebtedness consisting of promissorynotes issued by any Loan Party to future, present or former officers, directorsand employees, members of management, or consultants of UHS or any of itsSubsidiaries or their respective estates, spouses or former spouses to financethe purchase or redemption of Equity Interests of Parent (or, after theoccurrence of a Qualifying IPO of UHS, UHS), to the extent the applicableRestricted Payment is permitted by Section 7.06;

#####  

##### (vii)         Guarantees by Parent of Indebtedness ofUHS and its Restricted Subsidiaries to the extent the primary obligation isexpressly permitted or not prohibited hereunder.

#####  

##### (viii)        Existing Indebtedness outstanding on theClosing Date and listed on Schedule 7.03(b)(viii) and any PermittedRefinancing thereof;

#####  

##### (ix)           Indebtedness in respect of SwapContracts incurred in the ordinary course of business and not for speculativepurposes;

#####  

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

#####  

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

#####  

##### (xii)          Indebtedness (other than for borrowedmoney) subject to Liens permitted under Section 7.01;

 

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##### (xiii)         Indebtedness representing deferredcompensation to employees of any Borrower or any Restricted Subsidiary incurredin the ordinary course of business;

#####  

##### (xiv)        Indebtedness incurred in a PermittedAcquisition or Disposition under agreements providing for indemnification, theadjustment of the purchase price or similar adjustments;

#####  

##### (xv)         Indebtedness consisting of obligationsof any Borrower or any Restricted Subsidiary under deferred compensation orother similar arrangements incurred by such Person in connection with theTransactions and Permitted Acquisitions;

#####  

##### (xvi)        Cash Management Obligations and otherIndebtedness in respect of netting services, overdraft protections and similararrangements in each case in connection with cash management and depositaccounts;

#####  

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

#####  

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

#####  

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

#####  

##### (xx)          Indebtedness in respect of anybankers’ acceptance, letter of credit, warehouse receipt or similar facilitiesentered into in the ordinary course of business;

#####  

##### (xxi)         Attributable Indebtedness andIndebtedness incurred in connection with sale-leaseback transactions permittedunder Section 7.05(j);

#####  

##### (xxii)        without duplication of any otherIndebtedness, non-cash accruals of interest, accretion or amortization oforiginal issue discount and/or pay-in-kind interest to the extent such Debt ispermitted hereunder;

#####  

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

 

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##### such Indebtedness, if any,shall be subordinated to the Lien of the Collateral Agent with respect theretopursuant to an intercreditor agreement entered into by the holder(s) ofsuch Indebtedness with the Administrative Agent in form and substancesubstantially similar to the Intercreditor Agreement or otherwise reasonablyacceptable to the Administrative Agent; and

#####  

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

#####  

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

 

### (a)           any Restricted Subsidiary may merge with or liquidate into(i) any Borrower (including a merger, the purpose of which is toreorganize any Borrower into a new jurisdiction so long as such Borrowerremains organized under the laws of the United States, any state thereof or theDistrict of Columbia (the requirements set forth in this clause (i), andthe last proviso of this Section 7.04(a), the “**Jurisdictional Requirement**”)); *provided* that such Borrower shall be thecontinuing or surviving Person or the continuing or surviving Person shallexpressly assume the obligations of such Borrower in a manner reasonablyacceptable to the Administrative Agent, or (ii) any one or more otherRestricted Subsidiaries; *provided*that when any Restricted Subsidiary that is a Loan Party is merging withanother Restricted Subsidiary, (A) a Loan Party shall be the continuing orsurviving Person or (B) to the extent constituting an Investment, suchInvestment must be an Investment permitted by Section 7.02 and anyIndebtedness corresponding to such Investment must be permitted by Section 7.03;*provided further*that, if anysuch merger results in a new jurisdiction of organization of such Borrower orother Loan Party, the Borrowers shall have provided the Administrative Agentwith prior written notice of such change in jurisdiction and proper financingstatements, duly prepared for filing under the Uniform Commercial Code in suchjurisdiction with respect to such Borrower or such Loan Party.

###  

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

###  

### (c)           so long as no Event of Default exists or would resulttherefrom, any Borrower or any Restricted Subsidiary may merge with any otherPerson in order to (i) effect an Investment permitted pursuant to Section 7.02(*provided* that (A) thecontinuing or surviving Person shall be a Restricted Subsidiary, which togetherwith each of its Restricted Subsidiaries, shall have complied with therequirements of Section 6.12 and (B) to the extent constitutingan Investment, such Investment must be a permitted Investment in accordancewith Section 7.02) or (ii) to effect the designation of aRestricted Subsidiary as an Unrestricted Subsidiary or an UnrestrictedSubsidiary as a Restricted Subsidiary in accordance with Section 6.16;*provided* that if any Borrower isa party to any transaction effected pursuant to this Section 7.04(c),(1) such Borrower shall be the continuing and surviving Person or thecontinuing or surviving Person shall expressly assume the obligations of suchBorrower in a manner reasonably acceptable to the Administrative Agent and (2) theJurisdictional Requirement shall be satisfied;

###  

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

###  

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

 

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

###  

SECTION 7.05.  Dispositions.  Make any Disposition except:

 

### (a)           Dispositions of obsolete, used, surplus or worn outproperty, whether now owned or hereafter acquired, in the ordinary course ofbusiness, Dispositions of equipment in the ordinary course of business inaccording with past practice and Dispositions of property no longer used or usefulin the conduct of the business of the Borrowers and the RestrictedSubsidiaries;

###  

### (b)           Sale or discount without recourse of accounts receivablearising in the ordinary course of business in connection with the compromise orcollection thereof;

###  

### (c)           Dispositions of inventory, cash and immaterial assets inthe ordinary course of business;

###  

### (d)           Dispositions of property to the extent that (i) suchproperty is exchanged for credit against the purchase price of similarreplacement property or (ii) the proceeds of such Disposition are promptlyapplied to the purchase price of such replacement property;

###  

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

###  

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

###  

### (g)           Dispositions of Cash Equivalents;

###  

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

###  

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

###  

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

###  

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

###  

### (l)            Dispositions of Investments in Joint Ventures;

 

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

###  

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

###  

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

###  

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

###  

### (q)           exclusive or non-exclusive licenses or similar agreementsin respect of IP Rights;

###  

*provided* that anyDisposition of any property pursuant to this Section 7.05 (exceptpursuant to Sections 7.05(a), (e), (f), (g), (h),(i), (j) and (m)), shall be for not less than thefair market value of such property at the time of such Disposition.  To the extent any Collateral is Disposed ofas expressly permitted by this Section 7.05 to any Person otherthan a Loan Party, such Collateral shall be sold free and clear of the Lienscreated by the Loan Documents, and the Administrative Agent is herebyauthorized by the Lenders to take any actions deemed appropriate in order toeffect the foregoing.

 

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

###  

### (a)           each Restricted Subsidiary may make Restricted Payments toany Borrower and to other Restricted Subsidiaries (and, in the case of aRestricted Payment by a non-wholly owned Restricted Subsidiary, to (i) aBorrower or such Restricted Subsidiary and (ii) to each other owner ofEquity Interests of such Restricted Subsidiary based on their relativeownership interests);

###  

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

###  

### (c)           to the extent constituting Restricted Payments, theBorrowers and the Restricted Subsidiaries may enter into transactions expresslypermitted by Section 7.04, Section 7.05 or Section 7.08;

###  

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

###  

##### (i)            the proceeds of which shall be usedby Parent to pay its operating expenses incurred in the ordinary course ofbusiness and other corporate overhead costs and expenses (including, withoutlimitation, administrative, legal, accounting and similar expenses provided bythird parties), which are reasonable and customary and incurred in the ordinarycourse of business, in an aggregate amount not to exceed $1,000,000 in anyfiscal year plus any reasonable and customary indemnification claims made bydirectors or officers of Parent attributable to the ownership or operations ofthe Borrowers and the Restricted Subsidiaries;

 

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

#####  

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

#####  

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

#####  

##### (v)           the proceeds of which shall be usedby Parent to make cash payments in lieu of the issuance of fractional shares inconnection with the exercise of warrants, options or other securitiesconvertible into or exchangeable for Equity Interests of Parent (or, after aQualifying IPO of UHS, of UHS); *provided*that any such cash payment shall not be for the purpose of evading thelimitations set forth in this Section 7.06 (as determined in goodfaith by the board of directors or the managing board, as the case may be, ofUHS (or any authorized committee thereof));

#####  

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

#####  

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

 

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##### other benefits are directlyattributable to the ownership or operations of the Borrowers and the RestrictedSubsidiaries; and

#####  

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

#####  

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

###  

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

###  

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

###  

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

 

SECTION 7.08.  Transactions with Affiliates.  Enter into any transactionof any kind with any Affiliate of the Borrowers, whether or not in the ordinarycourse of business, other than (a) transactions among Loan Parties or anyentity that becomes a Loan Party as a result of such transaction, (b) onfair and reasonable terms substantially as favorable to the relevant Borroweror such Restricted Subsidiary as would be obtainable by such Borrower or suchRestricted Subsidiary in a comparable arm’s-length transaction with a Personother than an Affiliate, (c) the payment of fees, costs and expenses inconnection with the consummation of the Transactions, (d) so long as noEvent of Default shall have occurred and be continuing under Section 8.01(a),Section 8.01(f) or Section 8.01(g)(i), the paymentof fees, expenses or other payments to the Sponsor pursuant to the SponsorManagement Agreement as such fee provisions are set forth in the SponsorManagement Agreement as in effect on the Closing Date, (e) loans and othertransactions by the Borrowers and the Subsidiaries to the extent not prohibitedby this Agreement, (f) entering into employment and severance arrangementsbetween Parent, the Borrowers and the Restricted Subsidiaries and theirrespective officers and employees, as determined in good faith by the board ofdirectors or senior management of the relevant Person, (g) payments by theBorrowers and the Restricted Subsidiaries pursuant to the tax sharingagreements among the Borrowers and the Restricted Subsidiaries on customaryterms to the extent attributable to the ownership or operations of theBorrowers and the Subsidiaries, (h) the payment of customary fees andreimbursement of reasonable out-of-pocket costs of, and customary indemnitiesprovided to or on behalf of, directors, officers and employees of Parent, theBorrowers and the Restricted Subsidiaries in the ordinary course of business orthe Sponsor or to its Affiliates, to the extent attributable to the ownershipor operations of the Borrowers and the Restricted Subsidiaries, as determinedin good faith by the board of directors or senior management of the relevantPerson, (i) transactions pursuant to the other permitted agreements inexistence on the 

 

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Amendment Closing Date and set forth on Schedule7.08 or any amendment thereto to the extent such an amendment is notadverse to the Lenders in any material respect, (j) Restricted Paymentspermitted under Section 7.06, (k) payments by the Borrowersand the Restricted Subsidiaries to the Sponsor made for any customary financialadvisory, financing, underwriting or placement services or in respect of otherinvestment banking activities, including in connection with acquisitions,financings or divestitures, which payments are approved by the board ofdirectors of the applicable Borrower in good faith, (l) the issuance ofEquity Interests to the management of UHS or any of its Subsidiaries inconnection with the Transactions, (m) payment of reasonable compensationto officers and employees for services actually rendered to any Loan Party orany of its Subsidiaries, (n) stock option and compensation plans of theLoan Parties and their Subsidiaries, (o) advances and loans to officers,directors, members of management and employees of Parent, any Borrower or anyRestricted Subsidiary to the extent specifically permitted under Section 7.02(b),(p) Investments consisting of promissory notes issued by any Loan Party tofuture, present or former officers, directors and employees, members ofmanagement, or consultants of UHS or any of its Subsidiaries or theirrespective estates, spouses or former spouses to finance the purchase orredemption of Equity Interests of Parent (or, after the occurrence of aQualifying IPO of UHS, UHS), to the extent the applicable Restricted Payment ispermitted by Section 7.06, (q) any issuance of EquityInterests (other than Disqualified Equity Interests), (r) Investments bythe Equity Investors in securities of Parent or any of its RestrictedSubsidiaries so long as the investments is being offered generally to otherinvestors on the same or more favorable terms and any other transactioninvolving Parent or any Restricted Subsidiary, on the one hand, and IrvingPlace Capital or any of its Affiliates, on the other hand, which transactions,in the reasonable determination of the Board of Directors, are on commerciallyreasonable terms, and (s) other transactions specifically permitted underthis Agreement (including, without limitation, sale/leaseback transactions,Dispositions, Investments and Indebtedness).

 

SECTION 7.09.  Burdensome Agreements.  Enter into or permit toexist any Contractual Obligation (other than this Agreement or any other LoanDocument, the Senior Indenture or customary terms in any documentationproviding for any Permitted Refinancing thereof) that limits the ability of (a) anyRestricted Subsidiary to make Restricted Payments to any Borrower or anyGuarantor or to otherwise transfer property to or invest in any Borrower or anyGuarantor, or (b) any Borrower or any Loan Party to create, incur, assumeor suffer to exist Liens on property of such Person for the benefit of theSecured Parties with respect to the Facilities and the Obligations or under theLoan Documents; *provided* that theforegoing shall not apply to Contractual Obligations which (i) (x) ariseunder applicable law, (y) existed on the Closing Date and (to the extentnot otherwise permitted by this Section 7.09) are listed on Schedule7.09 hereto or (z) to the extent Contractual Obligations permitted by clause(y) are set forth in an agreement evidencing Indebtedness, are setforth in any agreement evidencing any permitted renewal, extension orrefinancing of such Indebtedness so long as such renewal, extension orrefinancing does not expand the scope of the restrictions described in clause(a) or (b) that are contained in such ContractualObligation, (ii) are binding on a Restricted Subsidiary at the time suchRestricted Subsidiary first becomes a Restricted Subsidiary of a Borrower, solong as such Contractual Obligations were not entered into in contemplation ofsuch Person becoming a Restricted Subsidiary of a Borrower, (iii) representIndebtedness of a Restricted Subsidiary which is permitted by Section 7.03,(iv) arise in connection with any Disposition permitted by Section 7.05,(v) are customary provisions in joint venture agreements and other similaragreements applicable to joint ventures permitted under Section 7.02and applicable solely to such joint venture, (vi) are negative pledges andrestrictions on Liens in favor of any holder of Indebtedness permitted under Section 7.03but solely to the extent any negative pledge relates to the property financedby or the subject of such Indebtedness (and excluding in any event anyPermitted Subordinated Indebtedness) or that expressly permits Liens for thebenefit of the Agents and the Lenders with respect to the credit facilitiesestablished hereunder and the Obligations under the Loan Documents on a seniorbasis without the requirement that such holders of such Indebtedness be securedby such Liens on an equal and ratable, or junior, basis, (vii) arecustomary restrictions on leases, subleases, licenses or asset sale agreementsotherwise permitted hereby so long as such restrictions may relate to theassets 

 

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subject thereto, (viii) compriserestrictions imposed by any agreement relating to secured Indebtednesspermitted pursuant to Section 7.03 to the extent that suchrestrictions apply only to the property or assets securing such Indebtedness, (ix) arecustomary provisions restricting subletting or assignment of any leasegoverning a leasehold interest or (x) are customary provisions restrictingassignment or transfer of any agreement entered into in the ordinary course ofbusiness.

 

SECTION 7.10.  Holding Company.  Parent shall not (a) engagein any business or activity other than (i) the ownership of all theoutstanding Equity Interests in UHS (or other Equity Interests in accordancewith clause (b) below) and activities incidental thereto, (ii) activitiesnecessary to consummate the Acquisition and the Transactions and (iii) corporatemaintenance activities (including the payment of taxes and expenses associatedwith being a holding company), (b) own or acquire any assets (other thanEquity Interests in UHS or other Subsidiaries of UHS and cash and CashEquivalents in amounts reasonably required in connection with its permittedbusiness activities or representing proceeds of a Restricted Payment permittedhereunder temporarily held pending further distribution to the PermittedHolders), (c) create, incur, assume or permit to exist any Lien on anyproperty or asset owned by it, other than Liens under the Loan Documents ornon-consensual Liens permitted under Section 7.01, (d) incurIndebtedness (other than Indebtedness permitted hereunder, liabilities underthe Loan Documents, unsecured Guarantees permitted hereunder, liabilitiesrelating to the performance of its obligations under such documents and otherliabilities (not including Indebtedness) incidental to its existence andpermitted business activities), (e) make any public offering of its commonstock or any other issuance of its Equity Interests not prohibited by Article 7,and (f) engage in any transaction that Parent is permitted to enter intoor consummate under this Article 7.

 

SECTION 7.11.  Financial Covenant.  Interest Coverage Ratio.  Permit the Interest Coverage Ratio to be lessthan 1.50:1.00 as of the end of any fiscal quarter of UHS during whichBorrowing Availability has been less than $15,000,000 for three (3) consecutivedays during such quarter (beginning with the fiscal quarter ending September 30,2007, if applicable).

 

### SECTION 7.12.  Amendments of Certain Documents.  Amend or otherwise modify (a) anyof its Organization Documents in a manner that would reasonably be expected tohave a Material Adverse Effect, (b) the Merger Agreement with respect toany economic provisions or in a manner materially adverse to the AdministrativeAgent or the Lenders or (c) any other Related Document, including anySenior Notes Document or Senior PIK/Toggle Notes Document, except as permittedby the Intercreditor Agreement, or (d) any term or condition of any JuniorFinancing Documentation in any manner materially adverse to the interests ofthe Administrative Agent or the Lenders, in each case without the consent ofthe Administrative Agent.

###  

SECTION 7.13.  Accounting Changes.  Make any change in (a) fiscalyear or (b) accounting policies or reporting policies except as requiredor permitted by generally accepted accounting principles; *provided, however*, that the Borrowers may,upon written notice to the Administrative Agent, change their fiscal year toany other fiscal year reasonably acceptable to the Administrative Agent, inwhich case, the Borrowers and the Administrative Agent will, and are herebyauthorized by the Lenders to, make any adjustments to this Agreement and to thecovenants contained herein that are deemed reasonably necessary by theAdministrative Agent, and not objected to by the Required Lenders, to reflectsuch change in fiscal year.

 

SECTION 7.14.  Prepayments, Etc. of PermittedSubordinated Indebtedness.  Prepay, redeem,purchase, defease or otherwise satisfy prior to the scheduled maturity thereofin any manner (it being understood that payments of regularly scheduledinterest shall be permitted) any Permitted Subordinated Indebtedness, except (a) solong as no Event of Default shall have occurred and be continuing or wouldresult therefrom, (i) for an aggregate purchase price not to exceed$5,000,000; 

 

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*provided* that, if theLeverage Ratio as of the last day of the immediately preceding four fiscalquarters was less than 5.0:1, such amount may be increased by an amount equalto the sum of (x) $5,000,000 and (y) an amount equal to 100% of theApplicable Amount that is Not Otherwise Applied or (ii) the refinancingthereof with the Net Cash Proceeds of any Permitted Subordinated Indebtednessor Eligible Equity Proceeds that are Not Otherwise Applied and (b) theconversion of any Permitted Subordinated Indebtedness to Equity Interests(other than Disqualified Equity Interests).

 

SECTION 7.15.  Designated Senior Debt.  Designate any Indebtedness(other than under this Agreement and the other Loan Documents) of the Borrowersor the Restricted Subsidiaries as “Designated Senior Indebtedness” or “SeniorSecured Financing” (or any comparable term) under, and as defined in, anyJunior Financing Documentation.

 

ARTICLE8

 

# EVENTSOF DEFAULT AND REMEDIES

#  

SECTION 8.01.  Events of Default.  Any of the following shallconstitute an Event of Default:

 

### (a)           Non-Payment. Any Borrower or any other Loan Party fails to pay (i) when due(whether by scheduled maturity, required prepayment, acceleration, demand, orotherwise), any amount of principal of any Loan or any L/C Borrowing, or (ii) withinfive (5) Business Days after the same becomes due, any interest or any feepayable pursuant to Section 2.09 or any other amount payable hereunderor with respect to any other Loan Document; or

###  

### (b)           Specific Covenants. Any Loan Party fails to perform or observe any term, covenant oragreement contained in (i) any of Section 6.03(a), Section 6.05(a) (solelywith respect to the Borrowers) or Section 6.11 or Article 7(provided that any Event of Default under Section 7.11 is subjectto cure as contemplated by the last proviso set forth in the definition of“Consolidated EBITDA”), (ii) any of Section 6.01(e), Section 6.03(c) andSection 6.07 and such failure continues for ten (10) days(provided that with respect to Section 6.07, if such Loan Party ismaking good faith efforts to cure such failure, such cure period shall bethirty (30) days), or (iii) any of Section 6.10 and Section 5of the Security Agreement and such failure continues for five (5) BusinessDays; or

###  

### (c)           Other Defaults. Any Loan Party fails to perform or observe any other covenant oragreement (not specified in Section 8.01(a) or (b) above)contained in any Loan Document on its part to be performed or observed and suchfailure continues for thirty (30) days after knowledge of a Responsible Officeror notice thereof by the Administrative Agent to the Borrowers; or

###  

### (d)           Representations and Warranties.  Any representation, warranty, certificationor statement of fact made or deemed made by or on behalf of any Borrower or anyother Loan Party herein, in any other Loan Document, or in any documentrequired to be delivered in connection herewith or therewith shall be incorrector misleading in any material respect when made or, as provided in Section 4.02,deemed made; or

###  

### (e)           Cross-Default. Any Loan Party or any Restricted Subsidiary (i) fails to make anypayment beyond the applicable grace period with respect thereto, if any(whether by scheduled maturity, required prepayment, acceleration, demand, orotherwise) in respect of any Indebtedness (other than Indebtedness hereunderand determined, in the case of any Swap Contract, by reference to the SwapTermination Value of such Swap Contract) having an aggregate outstandingprincipal amount of not less than the Threshold Amount, or (ii) fails toobserve or perform any other agreement or condition relating 

 

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### to any such Indebtedness, or any other event occurs,the effect of which default or other event is to cause, or to permit the holderor holders of such Indebtedness (or a trustee or agent on behalf of such holderor holders or beneficiary or beneficiaries) to cause, with the giving of noticeif required, such Indebtedness to become due or to be repurchased, prepaid,defeased or redeemed (automatically or otherwise), or an offer to repurchase,prepay, defease or redeem such Indebtedness to be made, prior to its statedmaturity; *provided* that this clause(e)(ii) shall not apply to secured Indebtedness that becomes due as aresult of the voluntary sale or transfer of the property or assets securingsuch Indebtedness, if such sale or transfer is permitted hereunder and underthe documents providing for such Indebtedness; or

###  

### (f)            Insolvency Proceedings, Etc.  Any Loan Party or any of its RestrictedSubsidiaries institutes or consents to the institution of any proceeding underany Debtor Relief Law, or makes a general assignment for the benefit ofcreditors; or applies for or consents to the appointment of any receiver,trustee, custodian, conservator, liquidator, rehabilitator, administrator,administrative receiver or similar officer for it or for all or any materialpart of its property; or any receiver, trustee, custodian, conservator,liquidator, rehabilitator, administrator, administrative receiver or similarofficer is appointed without the application or consent of such Person and theappointment continues undischarged or unstayed for sixty (60) calendar days; orany proceeding under any Debtor Relief Law relating to any such Person or toall or any material part of its property is instituted without the consent ofsuch Person and continues undismissed or unstayed for sixty (60) calendar days,or an order for relief is entered in any such proceeding; or

###  

### (g)           Inability to Pay Debts; Attachment.  (i) Any Loan Party or any RestrictedSubsidiary becomes unable or admits in writing its inability or fails generallyto pay its debts as they become due, or (ii) any writ or warrant ofattachment or execution or similar process is issued or levied against all orany material part of the property of any such Person and is not released,vacated or fully bonded within sixty (60) days after its issue or levy; or

###  

### (h)           Judgments. There is entered against any Loan Party or any Restricted Subsidiary oneor more final judgments or orders for the payment of money in an aggregateamount exceeding the Threshold Amount (to the extent not covered by independentthird-party insurance as to which such insurer has been notified of suchjudgment or order and has not denied coverage) and there is a period of sixty(60) consecutive days during which a stay of enforcement of such judgment, byreason of a pending appeal or otherwise, is not in effect; or

###  

### (i)            ERISA.  AnERISA Event shall have occurred that, when taken together with all other ERISAEvents that have occurred, could reasonably be expected to result in a MaterialAdverse Effect; or

###  

### (j)            Invalidity of Loan Documents.  Any material provision of any Loan Document,at any time after its execution and delivery and for any reason other than asexpressly permitted hereunder or thereunder (including as a result of atransaction permitted under Section 7.04 or Section 7.05)or satisfaction in full of all the Obligations (other than contingentindemnification obligations not then due and payable or Letters of Credit thatare collateralized in a manner reasonably satisfactory to the applicable L/CIssuer), ceases to be in full force and effect; or any Loan Party contests inwriting the validity or enforceability of any provision of any Loan Document;or any Loan Party denies in writing that it has any or further liability orobligation under any Loan Document (other than as a result of repayment in fullof the Obligations (other than contingent indemnification obligations not thendue and payable or Letters of Credit that are collateralized in a mannerreasonably satisfactory to the applicable L/C Issuer) and termination of theAggregate Commitments or as a result of a transaction permitted hereunder orthereunder (including under Section 7.04 or Section 7.05)),or purports in writing to revoke or rescind any Loan Document; or

 

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

###  

### (l)            Collateral Documents.  Any Collateral Document after deliverythereof, whether pursuant to Section 4.01 or Section 6.12or otherwise, shall for any reason (other than pursuant to the terms thereofincluding as a result of a transaction permitted under Section 7.04or Section 7.05) cease to create a valid and perfected, subject tolimitations set forth in the Loan Documents, first priority Lien on andsecurity interest in any Collateral covered thereby, subject to PermittedLiens, or any Loan Party shall assert in writing such invalidity or lack ofperfection or priority (other than in an informational notice to theAdministrative Agent), except (i) to the extent that any such loss of perfectionor priority results from the failure of the Administrative Agent to maintainpossession of certificates actually delivered to it representing securitiespledged under the Collateral Documents or to file Uniform Commercial Codecontinuation statements, (ii) as to Collateral consisting of realproperty, to the extent that such losses are covered by a lender’s titleinsurance policy and the related insurer shall not have ultimately denied ordisclaimed in writing that such losses are covered by such title insurance,notwithstanding any initial denial or disclaimer of coverage by the relatedtitle company under lender’s title insurance policy, (iii) as a result ofthe sale, release or other Disposition of the applicable Collateral in atransaction permitted under the Loan Documents and (iv) relating to animmaterial amount of the Collateral; or

###  

### (m)          Any information contained in any Borrowing Base Certificateor Alternative Borrowing Base Certificate is untrue or incorrect in any respect(other than inadvertent errors not exceeding $1,000,000 in the aggregate in anyBorrowing Base Certificate or Alternative Borrowing Base Certificate, as thecase may be) and, after giving effect to the correction of such errors and as aresult thereof (i) Borrowing Availability is less than $15,000,000 and (ii) theInterest Coverage Ratio as of the last day of the next ending fiscal quarter ofUHS is less than 1.50:1.00.

###  

SECTION 8.02.  Remedies Upon Event of Default.  If any Event of Defaultoccurs and is continuing, the Administrative Agent shall, at the request of, ormay, with the consent of, the Required Lenders, take any or all of thefollowing actions:

 

### (a)           declare the Revolving Credit Commitment of each Lender tomake Loans and any obligation of the L/C Issuer to make L/C Credit Extensionsto be terminated, whereupon such Revolving Credit Commitments and obligationshall be terminated;

###  

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

###  

### (c)           require that the Borrowers Cash Collateralize the L/CObligations (in an amount equal to the then Outstanding Amount thereof); and

###  

### (d)           exercise on behalf of itself and the Lenders all rightsand remedies available to it and the Lenders under the Loan Documents orapplicable Law;

###  

*provided* that upon theoccurrence of an actual or deemed entry of an order for relief with respect toany Borrower under the Bankruptcy Code of the United States, the obligation ofeach Lender to make Loans and any obligation of the L/C Issuer to make L/CCredit Extensions shall automatically terminate, the unpaid principal amount ofall outstanding Loans and all interest and other amounts as aforesaid shallautomatically become due and payable, and the obligation of the Borrowers toCash Collateralize the L/C Obligations as aforesaid shall automatically becomeeffective, in each case without further act of the Administrative Agent or anyLender.

 

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SECTION 8.03.  Application of Funds.  After the exercise ofremedies provided for in Section 8.02 (or after the Loans haveautomatically become immediately due and payable and the L/C Obligations haveautomatically been required to be Cash Collateralized as set forth in theproviso to Section 8.02), any amounts received on account of theObligations shall be applied by the Administrative Agent in the followingorder:

 

*First*, to payment of that portion of theObligations constituting fees, indemnities, expenses and other amounts(including Attorney Costs payable under Section 10.04 and amountspayable under Article 3, but not including principal of or intereston any Loan) payable to the Administrative Agent in its capacity as such;

 

*Second*, to the payment in full of the UnfundedAdvances/Participations (the amounts so applied to be distributed between oramong the Administrative Agent, the Swing Line Lender and any L/C Issuer *pro rata* in accordance with the amounts ofUnfunded Advances/Participations owed to them on the date of any distribution);

 

*Third*, to payment of that portion of theObligations constituting fees, indemnities and other amounts (other thanprincipal and interest) payable to the Lenders and any L/C Issuer (includingAttorney Costs payable under Section 10.05 and amounts payableunder Article 3), ratably among them in proportion to the amountsdescribed in this clause Third payable to them;

 

*Fourth*, to payment of that portion of theObligations constituting accrued and unpaid interest on the Loans and L/CBorrowings, ratably among the Lenders in proportion to the respective amountsdescribed in this clause Fourth payable to them;

 

*Fifth*, ratably to (a) the AdministrativeAgent for the account of the L/C Issuer, to Cash Collateralize that portion ofL/C Obligations comprised of the aggregate undrawn amount of Letters of Creditand (b) to payment of that portion of the Obligations constituting unpaidprincipal of the Loans, ratably among the Secured Parties in proportion to therespective amounts described in this clause Fifth held by them;

 

*Sixth*, to the payment of the Secured HedgeObligations, the Cash Management Obligations and all other Obligations of theLoan Parties that are due and payable to the Administrative Agent and the otherSecured Parties on such date, ratably based upon the respective aggregateamounts of all such Obligations owing to the Administrative Agent and the otherSecured Parties on such date; and

 

*Last*, the balance, if any, after all of theObligations (other than contingent indemnification obligations not then due andpayable and Letters of Credit that are cash collateralized on terms reasonablysatisfactory to the applicable L/C Issuer) have been paid in full, to theBorrowers or as otherwise required by Law.

 

Subject to Section 2.03(c),amounts used to Cash Collateralize the aggregate undrawn amount of Letters ofCredit pursuant to clause Fifth (b) above shall be applied tosatisfy drawings under such Letters of Credit as they occur.  If any amount remains on deposit as CashCollateral after all Letters of Credit have either been fully drawn or expired,such remaining amount shall be applied to the other Obligations, if any, in theorder set forth above and, if no Obligations remain outstanding, delivered tothe Borrowers.

 

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ARTICLE9

#  

# ADMINISTRATIVEAGENT AND OTHER AGENTS

#  

SECTION 9.01.  Authorization and Action.  (a)  Each Lender (inits capacities as a Lender, a Swing Line Lender (if applicable), an IssuingBank (if applicable) and on behalf of itself and its Affiliates as potentialHedge Banks) hereby appoints and authorizes each Agent to take such action asagent on its behalf and to exercise such powers and discretion under thisAgreement and the other Loan Documents as are delegated to such Agent by theterms hereof and thereof, together with such powers and discretion as arereasonably incidental thereto.  As to anymatters not expressly provided for by the Loan Documents (including, withoutlimitation, enforcement or collection of the Loans), no Agent shall be requiredto exercise any discretion or take any action, but shall be required to act orto refrain from acting (and shall be fully protected in so acting or refrainingfrom acting) upon the instructions of the Required Lenders, and suchinstructions shall be binding upon all Lenders, all Hedge Banks and all holdersof Notes; *provided*, *however*, that, whether or not expresslyprovided for in this Agreement or the other Loan Documents, no Agent shall berequired to take any action that exposes or which such Agent reasonablybelieves exposes such Agent to personal liability or that is contrary to thisAgreement or applicable law.  Each Agentagrees to give to each Lender prompt notice of each notice given to it by theBorrowers pursuant to the terms of this Agreement.

 

### (b)           In furtherance of the foregoing, each Lender (in itscapacities as a Lender, a Swing Line Lender (if applicable), an Issuing Bank(if applicable) and on behalf of itself and its Affiliates as potential HedgeBanks) hereby appoints and authorizes the Collateral Agent to act as the agentof such Lender for purposes of acquiring, holding and enforcing any and allLiens on Collateral granted by any of the Loan Parties to secure any of theSecured Obligations, together with such powers and discretion as are reasonablyincidental thereto.  In this connection,the Collateral Agent (and any Supplemental Collateral Agents appointed by theCollateral Agent pursuant to Section 9.01(c) for purposes ofholding or enforcing any Lien on the Collateral (or any portion thereof)granted under the Collateral Documents, or for exercising any rights orremedies thereunder at the direction of the Collateral Agent), shall beentitled to the benefits of this Article 9 (including, without limitation,Section 9.05 as though any such Supplemental Collateral Agents werean “Agent” under the Loan Documents) as if set forth in full herein withrespect thereto.

###  

### (c)           Any Agent may execute any of its duties under thisAgreement or any other Loan Document (including for purposes of holding orenforcing any Lien on the Collateral (or any portion thereof) granted under theCollateral Documents or of exercising any rights and remedies thereunder at thedirection of the Collateral Agent) by or through agents, employees orattorneys-in-fact and shall be entitled to advice of counsel and otherconsultants or experts concerning all matters pertaining to such duties.  The Collateral Agent may also from time totime, when the Collateral Agent deems it to be necessary or desirable, appointone or more trustees, co-trustees, collateral co-agents, collateral subagentsor attorneys-in-fact (each, a “**SupplementalCollateral Agent**”) with respect to all or any part of theCollateral; *provided*, *however*, that no such SupplementalCollateral Agent shall be authorized to take any action with respect to anyCollateral unless and except to the extent expressly authorized in writing bythe Collateral Agent.  Should any instrumentin writing from the Borrowers or any other Loan Party be required by anySupplemental Collateral Agent so appointed by the Collateral Agent to morefully or certainly vest in and confirm to such Supplemental Collateral Agentsuch rights, powers, privileges and duties, the Borrowers shall, or shall causesuch Loan Party to, execute, acknowledge and deliver any and all suchinstruments promptly upon request by the Collateral Agent.  If any Supplemental Collateral Agent, orsuccessor thereto, shall die, become incapable of acting, resign or be removed,all rights, powers, privileges and duties of such Supplemental CollateralAgent, to the extent permitted by law, shall automatically vest in and beexercised by the Collateral Agent until the appointment of a new 

 

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### Supplemental Collateral Agent.  No Agent shall be responsible for thenegligence or misconduct of any agent, attorney-in-fact or SupplementalCollateral Agent that it selects in accordance with the foregoing provisions ofthis Section 9.01(c) in the absence of such Agent’s grossnegligence, bad faith or willful misconduct.

###  

SECTION 9.02.  Agents’ Reliance, Etc.  Neither any Agent nor any oftheir respective directors, officers, agents or employees shall be liable forany action taken or omitted to be taken by it or them under or in connectionwith the Loan Documents, except for its or their own gross negligence, badfaith or willful misconduct.  Withoutlimitation of the generality of the foregoing, each Agent:  (a) may consult with legal counsel(including counsel for any Loan Party), independent public accountants andother experts selected by it and shall not be liable for any action taken oromitted to be taken in good faith by it in accordance with the advice of suchcounsel, accountants or experts; (b) makes no warranty or representationto any Lender and shall not be responsible to any Lender for any statements,warranties or representations (whether written or oral) made in or inconnection with the Loan Documents; (c) shall not have any duty toascertain or to inquire as to the performance, observance or satisfaction ofany of the terms, covenants or conditions of any Loan Document on the part ofany Loan Party or the existence at any time of any Default under the Loan Documentsor to inspect the property (including the books and records) of any Loan Party;(d) shall not be responsible to any Lender for the due execution,legality, validity, enforceability, genuineness, sufficiency or value of, orthe perfection or priority of any lien or security interest created orpurported to be created under or in connection with, any Loan Document or anyother instrument or document furnished pursuant thereto; and (e) shallincur no liability under or in respect of any Loan Document by acting upon anynotice, consent, certificate or other instrument or writing (which may be bytelegram or telecopy) believed by it to be genuine and signed or sent by theproper party or parties.

 

SECTION 9.03.  GE Capital and Affiliates.  With respect to itsRevolving Credit Commitments, the Loans made by it and any Notes issued to it,GE Capital shall have the same rights and powers under the Loan Documents asany other Lender and may exercise the same as though it was not an Agent; andthe term “Lender” or “Lenders” shall, unless otherwise expressly indicated,include GE Capital in its individual capacities.  GE Capital and its affiliates may acceptdeposits from, lend money to, act as trustee under indentures of, acceptinvestment banking engagements from and generally engage in any kind ofbusiness with, any Loan Party, any of its Subsidiaries and any Person that maydo business with or own securities of any Loan Party or any such Subsidiary,all as if GE Capital was not an Agent and without any duty to account thereforto the Lenders.  No Agent shall have anyduty to disclose any information obtained or received by it or any of itsAffiliates relating to any Loan Party or any of its Subsidiaries to the extentsuch information was obtained or received in any capacity other than as suchAgent.

 

SECTION 9.04.  Lender Credit Decision.  Each Lender acknowledgesthat it has, independently and without reliance upon any Agent or any otherLender and based on the financial statements referred to in Section 5.01and such other documents and information as it has deemed appropriate, made itsown credit analysis and decision to enter into this Agreement.  Each Lender also acknowledges that it will,independently and without reliance upon any Agent or any other Lender and basedon such documents and information as it shall deem appropriate at the time,continue to make its own credit decisions in taking or not taking action underthis Agreement.

 

SECTION 9.05.  Indemnification.  (a)  Each Lenderseverally agrees to indemnify each Agent (to the extent not promptly reimbursedby the Borrowers) from and against such Lender’s ratable share (determined asprovided below) of any and all liabilities, obligations, losses, damages,penalties, actions, judgments, suits, costs, expenses or disbursements of anykind or nature whatsoever that may be imposed on, incurred by, or assertedagainst such Agent in any way relating to or arising out of the Loan 

 

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Documents or any action taken or omitted bysuch Agent under the Loan Documents (collectively, the “**Indemnified Costs**”); *provided*, *however*,that no Lender shall be liable for any portion of such liabilities,obligations, losses, damages, penalties, actions, judgments, suits, costs, expensesor disbursements resulting from such Agent’s gross negligence or willfulmisconduct as found in a final, non-appealable judgment by a court of competentjurisdiction.  Without limitation of theforegoing, each Lender agrees to reimburse each Agent promptly upon demand forits ratable share of any costs and expenses (including, without limitation,reasonable fees and expenses of counsel) payable by the Borrowers under Section 10.04,to the extent that such Agent is not promptly reimbursed for such costs andexpenses by the Borrowers.  In the caseof any investigation, litigation or proceeding giving rise to any IndemnifiedCosts, this Section 9.05 applies whether any such investigation,litigation or proceeding is brought by any Lender or any other Person.

 

### (b)           Each Lender severally agrees to indemnify the Issuing Bank(to the extent not promptly reimbursed by the Borrowers) from and against suchLender’s ratable share (determined as provided below) of any and allliabilities, obligations, losses, damages, penalties, actions, judgments,suits, costs, expenses or disbursements of any kind or nature whatsoever thatmay be imposed on, incurred by, or asserted against the Issuing Bank in any wayrelating to or arising out of the Letters of Credit or the Loan Documents orany action taken or omitted by the Issuing Bank under the Letters of Credit orthe Loan Documents; *provided*, *however*, that no Lender shall be liablefor any portion of such liabilities, obligations, losses, damages, penalties,actions, judgments, suits, costs, expenses or disbursements resulting from theIssuing Bank’s gross negligence or willful misconduct as found in a final,non-appealable judgment by a court of competent jurisdiction.  Without limitation of the foregoing, eachLender agrees to reimburse the Issuing Bank promptly upon demand for itsratable share of any costs and expenses (including, without limitation,reasonable fees and expenses of counsel) payable by the Borrowers under Section 9.04,to the extent that the Issuing Bank is not promptly reimbursed for such costsand expenses by the Borrowers.

###  

### (c)           For purposes of this Section 9.05, eachLender’s respective ratable share of any amount shall be determined, at anytime, according to the sum of (i) the aggregate principal amount of theLoans outstanding at such time and owing to such Lender, (ii) suchLender’s Pro Rata Share of the aggregate available amount of all Letters ofCredit outstanding at such time, and (iii) such Lender’s unused RevolvingCredit Commitments at such time; *provided*that the aggregate principal amount of Swing Line Loans owing to the Swing LineLender and of Letter of Credit Loans owing to the Issuing Bank shall beconsidered to be owed to the Lenders ratably in accordance with theirrespective Revolving Credit Commitments. The failure of any Lender to reimburse any Agent or the Issuing Bank, asthe case may be, promptly upon demand for its ratable share of any amountrequired to be paid by the Lenders to such Agent or the Issuing Bank, as thecase may be, as provided herein shall not relieve any other Lender of itsobligation hereunder to reimburse such Agent or the Issuing Bank, as the casemay be, for its ratable share of such amount, but no Lender shall beresponsible for the failure of any other Lender to reimburse such Agent or theIssuing Bank, as the case may be, for such other Lender’s ratable share of suchamount.  Without prejudice to thesurvival of any other agreement of any Lender hereunder, the agreement andobligations of each Lender contained in this Section 9.05 shallsurvive the payment in full of principal, interest and all other amountspayable hereunder and under the other Loan Documents.

###  

SECTION 9.06.  Successor Agents.  Any Agent may resign as toany or all of the Facilities at any time by giving written notice thereof tothe Lenders and the Borrowers and may be removed as to all of the Facilities atany time with or without cause by the Required Lenders; *provided*, *however*,that any removal of the Administrative Agent will not be effective until it orits Affiliate has also been replaced as Collateral Agent, Swing Line Lender andIssuing Bank and discharged from all of its obligations in respectthereof.  Upon any such resignation orremoval, the Required Lenders shall have the right (with the consent of theBorrowers, so long as no Event of Default under Section 8.01(a) or(f)

 

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has occurred or is continuing) to appoint asuccessor Agent as to such of the Facilities as to which such Agent hasresigned or been removed.  If nosuccessor Agent shall have been so appointed by the Required Lenders (or, solong as no Event of Default Section 8.01(a) or (f) hasoccurred or is continuing, consented to by the Borrowers), and shall haveaccepted such appointment, within 30 days after the retiring Agent’s giving ofnotice of resignation or the Required Lenders’ removal of the retiring Agent,then the retiring Agent may, on behalf of the Lenders, appoint a successorAgent, which shall be a commercial bank organized under the laws of the UnitedStates or of any State thereof and having a combined capital and surplus of atleast $250,000,000.  Upon the acceptanceof any appointment as Agent hereunder by a successor Agent as to all of theFacilities and, in the case of a successor Collateral Agent, upon the executionand filing or recording of such financing statements, or amendments thereto,and such amendments or supplements to the Mortgages, and such other instrumentsor notices, as may be necessary or desirable, or as the Required Lenders mayreasonably request, in order to continue the perfection of the Liens granted orpurported to be granted by the Collateral Documents, such successor Agent shallsucceed to and become vested with all the rights, powers, discretion,privileges and duties of the retiring Agent, and the retiring Agent shall bedischarged from its duties and obligations under the Loan Documents.  Upon the acceptance of any appointment asAgent hereunder by a successor Agent as to less than all of the Facilities and,in the case of a successor Collateral Agent, upon the execution and filing orrecording of such financing statements, or amendments thereto, and suchamendments or supplements to the Mortgages, and such other instruments ornotices, as may be reasonably necessary or desirable, or as the RequiredLenders may request, in order to continue the perfection of the Liens grantedor purported to be granted by the Collateral Documents, such successor Agentshall succeed to and become vested with all the rights, powers, discretion,privileges and duties of the retiring Agent as to such Facilities, other thanwith respect to funds transfers and other similar aspects of the administrationof Borrowings under such Facilities, issuances of Letters of Credit(notwithstanding any resignation as Agent with respect to the Letter of CreditFacility) and payments by the Borrowers in respect of such Facilities, and theretiring Administrative Agent shall be discharged from its duties and obligationsunder this Agreement as to such Facilities, other than as aforesaid.  If within 45 days after written notice isgiven of the retiring Agent’s resignation or removal under this Section 9.06no successor Agent shall have been appointed and shall have accepted suchappointment, then on such 45th day (a) the retiring Agent’s resignation orremoval shall become effective, (b) the retiring Agent shall thereupon bedischarged from its duties and obligations under the Loan Documents and (c) theRequired Lenders shall thereafter perform all duties of the retiring Agentunder the Loan Documents until such time, if any, as the Required Lendersappoint a successor Agent as provided above. After any retiring Agent’s resignation or removal hereunder as Agent asto any of the Facilities shall have become effective, the provisions of this Article 9shall inure to its benefit as to any actions taken or omitted to be taken by itwhile it was Agent as to such Facilities under this Agreement.

 

SECTION 9.07.  Other Agents; Arrangers.  None of the Lenders or otherPersons identified on the facing page or signature pages of thisAgreement as a “documentation agent”, “book runner,” or “lead arranger” shallhave any right, power, obligation, liability, responsibility or duty under thisAgreement other than to the extent expressly set forth herein and, in the caseof such Lenders, those applicable to all Lenders as such.  Without limiting the foregoing, none of theLenders or other Persons so identified shall have or be deemed to have anyfiduciary relationship with any Lender. Each Lender acknowledges that it has not relied, and will not rely, onany of the Lenders or other Persons so identified in deciding to enter intothis Agreement or in taking or not taking action hereunder.

 

SECTION 9.08.  Intercreditor Agreement.  Each of the Lenders and eachL/C Issuer hereby acknowledges that it has received and reviewed theIntercreditor Agreement and agrees to be bound by the terms thereof.  Each Lender and L/C Issuer (and each Personthat becomes a Lender or L/C Issuer hereunder pursuant to Section 10.07)hereby (a) acknowledges that GE Capital is acting under the IntercreditorAgreement in its capacity as the Collateral Agent and Wells Fargo Bank,National 

 

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Association is acting under the IntercreditorAgreement in its capacity as the Second Lien Collateral Agent and (b) waivesany conflict of interest, now contemplated or arising hereafter, in connectiontherewith and agrees not to assert against GE Capital any claims, causes ofaction, damages or liabilities of whatever kind or nature relatingthereto.  Each Lender and each L/C Issuer(and each Person that becomes a Lender or L/C Issuer hereunder pursuant to Section 10.07)hereby authorizes and directs GE Capital to enter into the IntercreditorAgreement on behalf of such Lender or L/C Issuer and agrees that GE Capital, inits capacity thereunder, may take such actions on its behalf as is contemplatedby the terms of the Intercreditor Agreement.

 

ARTICLE 10

#  

# MISCELLANEOUS

#  

SECTION 10.01.  Amendments, Etc.  No amendment or waiver ofany provision of this Agreement or any other Loan Document, and no consent toany departure by any Borrower or any other Loan Party therefrom, shall be effectiveunless made in writing and signed by the Required Lenders (or by theAdministrative Agent with the consent of the Required Lenders) and the relevantBorrower or the applicable Loan Party, as the case may be, and each such waiveror consent shall be effective only in the specific instance and for thespecific purpose for which given; *provided*that no such amendment, waiver or consent shall:

 

### (a)           extend or increase the Revolving Credit Commitment of anyLender without the written consent of such Lender (it being understood that awaiver of any condition precedent set forth in Section 4.01 or Section 4.02,or the waiver of any Default, Event of Default, mandatory prepayment ormandatory reduction of the Revolving Credit Commitments shall not constitute anextension or increase of any Revolving Credit Commitment of any Lender);

###  

### (b)           postpone any date scheduled for any payment of principalor interest under Section 2.07 or Section 2.08 or feesunder Section 2.03(i) or Section 2.09(a), withoutthe written consent of each Lender directly affected thereby;

###  

### (c)           reduce or forgive the principal of, or the rate ofinterest specified herein on, any Loan or L/C Borrowing, or (subject to clause(iii) of the second proviso to this Section 10.01) anyfees or other amounts payable hereunder or under any other Loan Documentwithout the written consent of each Lender directly affected thereby, it beingunderstood that any change to the definition of Leverage Ratio or in thecomponent definitions thereof shall not constitute a reduction in any rate ofinterest; *provided* that only theconsent of the Required Lenders shall be necessary to amend the definition of“Default Rate” or to waive any obligation of the Borrowers to pay interest atthe Default Rate;

###  

### (d)           change any provision of this Section 10.01,the definition of “Required Lenders” or the definition of “SupermajorityRequired Lenders”;

###  

### (e)           change the definition of “Pro Rata Share”, Section 2.12(a),Section 2.13 or Section 8.03 in any manner that wouldalter the pro rata sharing of payments or other amounts required therebywithout the written consent of each Lender affected thereby;

###  

### (f)            release all or substantially all of the Collateral in anytransaction or series of related transactions (it being understood that a transactionpermitted under Section 7.05 shall not constitute the release ofall or substantially all of the Collateral), without the written consent ofeach Lender; or

 

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### (g)           other than in connection with a transaction permittedunder Section 7.04 or Section 7.05, release anymaterial Guarantor from its obligations under the Guaranty, without the writtenconsent of each Lender;

###  

*provided**further* that no such amendment, waiver orconsent shall increase the percentage advance rates set forth in the definitionof the Borrowing Base, or make less restrictive the nondiscretionary criteriafor exclusion from Eligible Accounts, Eligible Unbilled Accounts, EligibleRental Equipment, Eligible Wholesale Disposables and Eligible EquipmentDisposables set forth in Sections 2.15 and 2.16 without thewritten consent of Supermajority Required Lenders, and *provided still further* that (i) noamendment, waiver or consent shall, unless in writing and signed by the L/CIssuer in addition to the Lenders required above, affect the rights or dutiesof the L/C Issuer under this Agreement or any Letter of Credit Applicationrelating to any Letter of Credit issued or to be issued by it; (ii) noamendment, waiver or consent shall, unless in writing and signed by the SwingLine Lender in addition to the Lenders required above, affect the rights orduties of the Swing Line Lender under this Agreement; (iii) no amendment,waiver or consent shall, unless in writing and signed by the AdministrativeAgent in addition to the Lenders required above, affect the rights or dutiesof, or any fees or other amounts payable to, the Administrative Agent underthis Agreement or any other Loan Document; and (iv) Section 10.07(g) maynot be amended, waived or otherwise modified without the consent of eachGranting Lender all or any part of whose Loans are being funded by an SPC atthe time of such amendment, waiver or other modification.  Notwithstanding anything to the contraryherein, no Defaulting Lender shall have any right to approve or disapprove anyamendment, waiver or consent hereunder, except that the Revolving CreditCommitment of such Lender may not be increased or extended without the consentof such Lender (it being understood that any Revolving Credit Commitments orLoans held or deemed held by any Defaulting Lender shall be excluded from avote of the Lenders hereunder requiring any consent of the Lenders).

 

Notwithstanding anything tothe contrary contained in Section 10.01, in the event that theBorrowers request that this Agreement be modified or amended in a manner thatwould require the unanimous consent of all of the Lenders and such modificationor amendment is agreed to by the Required Lenders, then with the consent of theBorrowers and the Required Lenders, the Borrowers and the Required Lendersshall be permitted to amend the Agreement without the consent of theNon-Consenting Lenders to provide for (a) the termination of the RevolvingCredit Commitment of each Non-Consenting Lender at the election of theBorrowers and the Required Lenders, (b) the addition to this Agreement ofone or more other financial institutions (each of which shall be an EligibleAssignee), or an increase in the Revolving Credit Commitment of one or more ofthe Required Lenders (with the written consent thereof), so that the totalRevolving Credit Commitment after giving effect to such amendment shall be inthe same amount as the total Revolving Credit Commitment immediately beforegiving effect to such amendment, (c) if any Loans are outstanding at thetime of such amendment, the making of such additional Loans by such newfinancial institutions or Required Lender or Lenders, as the case may be, asmay be necessary to repay in full with accrued interest and fees, at par, theoutstanding Loans of the Non-Consenting Lenders immediately before givingeffect to such amendment and (d) such other modifications to thisAgreement as may be appropriate to effect the foregoing clauses (a), (b) and(c).

 

Further, notwithstandinganything to the contrary contained in Section 10.01, if withinthirty (30) days following the Amendment Closing Date, the Administrative Agentand the Borrowers shall have jointly identified an obvious error or any erroror omission of a technical or immaterial nature, in each case, in any provisionof the Loan Documents, then the Administrative Agent and the Borrowers shall bepermitted to amend such provision and such amendment shall become effectivewithout any further action or consent of any other party to any Loan Documentif the same is not objected to in writing by the Required Lenders within five (5) BusinessDays following receipt of notice thereof.

 

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SECTION 10.02.  Notices and Other Communications;Facsimile Copies.  (a)  General.  Unless otherwise expressly provided herein,all notices and other communications provided for hereunder or any other LoanDocument shall be in writing (including by facsimile transmission).  All such written notices shall be mailed,faxed or delivered to the applicable address, facsimile number or (subject to Section 10.02(c))electronic mail address, and all notices and other communications expresslypermitted hereunder to be given by telephone shall be made to the applicabletelephone number, as follows:

 

##### (i)            if to any Borrower, any Guarantor,the Administrative Agent, the L/C Issuer or the Swing Line Lender, to theaddress, facsimile number, electronic mail address or telephone numberspecified for such Person on Schedule 10.02 or to such other address,facsimile number, electronic mail address or telephone number as shall bedesignated by such party in a notice to the other parties; and

#####  

##### (ii)           if to any other Lender, to theaddress, facsimile number, electronic mail address or telephone numberspecified in its Administrative Questionnaire or to such other address,facsimile number, electronic mail address or telephone number as shall bedesignated by such party in a notice to the relevant Borrower, theAdministrative Agent, the L/C Issuer and the Swing Line Lender.

#####  

All such notices and other communicationsshall be deemed to be given or made upon the earlier to occur of (i) actualreceipt by the relevant party hereto and (ii) (A) if delivered byhand or by courier, when signed for by or on behalf of the relevant partyhereto; (B) if delivered by mail, four (4) Business Days afterdeposit in the mails, postage prepaid; (C) if delivered by facsimile, whensent and receipt has been confirmed; and (D) if delivered by electronicmail (which form of delivery is subject to the provisions of Section 10.02(c)),when delivered; *provided* thatnotices and other communications to the Administrative Agent, the L/C Issuerand the Swing Line Lender pursuant to Article 2 shall not be effectiveuntil actually received by such Person. In no event shall a voice mail message be effective as a notice,communication or confirmation hereunder.

###  

### (b)           Effectiveness of Facsimile Documents and Signatures.  Loan Documents may be transmitted and/or signedby facsimile.  The effectiveness of anysuch documents and signatures shall, subject to applicable Law, have the sameforce and effect as manually signed originals and shall be binding on all LoanParties, the Agents and the Lenders.  TheAdministrative Agent may also require that any such documents and signatures beconfirmed by a manually signed original thereof; *provided* that the failure to request or deliver the sameshall not limit the effectiveness of any facsimile document or signature.

###  

### (c)           Reliance by Agents and Lenders.  The Administrative Agent and the Lendersshall be entitled to rely and act upon any notices (including telephonicCommitted Loan Notices and Swing Line Loan Notices) purportedly given by or onbehalf of any Borrower even if (i) such notices were not made in a mannerspecified herein, were incomplete or were not preceded or followed by any otherform of notice specified herein, or (ii) the terms thereof, as understoodby the recipient, varied from any confirmation thereof.  The Borrowers shall indemnify eachAgent-Related Person and each Lender from all actual losses, costs, expensesand liabilities resulting from the reliance by such Person on each noticepurportedly given by or on behalf of any Borrower in the absence of gross negligence,bad faith or willful misconduct.

###  

SECTION 10.03.  No Waiver; Cumulative Remedies.  No failure by any Lender orthe Administrative Agent to exercise, and no delay by any such Person inexercising, any right, remedy, power or privilege hereunder or under any otherLoan Document shall operate as a waiver thereof; nor shall any single orpartial exercise of any right, remedy, power or privilege hereunder precludeany other 

 

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or further exercise thereof or the exerciseof any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided, andprovided under each other Loan Document, are cumulative and not exclusive ofany rights, remedies, powers and privileges provided by Law.

 

SECTION 10.04.  Costs, Expenses and Taxes.  The Borrowers agree upon andfollowing the Closing Date (a) to pay or reimburse the AdministrativeAgent for all reasonable out-of-pocket costs and expenses incurred inconnection with the preparation, negotiation, syndication and execution of thisAgreement and the other Loan Documents, and any amendment, waiver, consent orother modification of the provisions hereof and thereof, and the consummationand administration of the transactions contemplated hereby and thereby,including all Attorney Costs of one attorney for all Lenders and theAdministrative Agent (which shall be Shearman & Sterling LLP) and suchother local counsel in each foreign jurisdiction as agreed between theAdministrative Agent and the Borrowers, and (b) to pay or reimburse theAdministrative Agent and each Lender for all reasonable out-of-pocket costs andexpenses incurred in connection with the enforcement of any rights or remediesunder this Agreement or the other Loan Documents (including all such costs andexpenses incurred during any legal proceeding, including any proceeding underany Debtor Relief Law), including all Attorney Costs of counsel (which counselshall be limited as provided in Section 10.05).  The foregoing costs and expenses shallinclude all reasonable search, filing, recording, title insurance and appraisalcharges and fees and taxes related thereto, and other reasonable out-of-pocketexpenses incurred by any Agent.  Allamounts due under this Section 10.04 shall be paid promptly (but inany event within 30 days) following receipt by the Borrowers of an invoicerelating thereto setting forth such expenses in reasonable detail.  The agreements in this Section 10.04shall survive the termination of the Aggregate Commitments and repayment of allof the Obligations.  If any Loan Partyfails to pay when due any costs, expenses or other amounts payable by ithereunder or under any Loan Document, such amount may be paid on behalf of suchLoan Party by the Administrative Agent or any Lender, in its sole discretion.

 

SECTION 10.05.  Indemnification by the Borrowers.  The Borrowers shallindemnify and hold harmless each Agent-Related Person, each Lender, each L/CIssuer and their respective Affiliates, directors, officers, employees,counsel, agents, attorneys-in-fact, trustees and advisors (collectively the “**Indemnitees**”) from and against any and allliabilities, obligations, actual losses, actual damages, penalties, claims,demands, actions, judgments, suits, reasonable costs, reasonable expenses andreasonable disbursements (including Attorney Costs (which shall be limited toone (1) counsel to the Administrative Agent and the Lenders (exclusive ofone local counsel to the Administrative Agent and the Lenders in eachappropriate jurisdiction), unless (x) the interests of the AdministrativeAgent and the Lenders are sufficiently divergent, in which case one (1) additionalcounsel may be appointed and (y) if the interests of any Lender or groupof Lenders (other than all of the Lenders) are distinctly or disproportionatelyaffected, one (1) additional counsel for such Lender or group of Lendersin the case of clause (a) below)) of any kind or nature whatsoeverwhich may at any time be imposed on, incurred by or asserted against any suchIndemnitee in any way relating to or arising out of or in connection with (a) theexecution, delivery, enforcement, performance or administration of any LoanDocument or any other agreement, letter or instrument delivered in connectionwith the transactions contemplated thereby or the consummation of thetransactions contemplated thereby, (b) any Revolving Credit Commitment,Loan or Letter of Credit or the use or proposed use of the proceeds therefrom(including any refusal by the L/C Issuer to honor a demand for payment under aLetter of Credit if the documents presented in connection with such demand donot strictly comply with the terms of such Letter of Credit), or (c) anyactual or alleged presence or release of Hazardous Materials on or from anyproperty currently or formerly owned or operated by any Borrower, anySubsidiary or any other Loan Party, or any Environmental Liability related inany way to any Borrower, any Subsidiary or any other Loan Party, or (d) anyactual or prospective claim, litigation, investigation or proceeding relatingto any of the foregoing, whether based on contract, tort or any other theory(including any investigation of, preparation for, or defense of any pending orthreatened claim, investigation, litigation or proceeding) and regardless ofwhether any 

 

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Indemnitee is a party thereto (and regardlessof whether such matter is instituted by a third party or by any Borrower or anyother Loan Party) (all the foregoing, collectively, the “**Indemnified Liabilities**”), in all cases,whether or not caused by or arising, in whole or in part, out of the negligenceof the Indemnitee; *provided* thatsuch indemnity shall not, as to any Indemnitee, be available to the extent thatsuch liabilities, obligations, losses, damages, penalties, claims, demands,actions, judgments, suits, costs, expenses or disbursements (x) have beendetermined in the final judgment of a court of competent jurisdiction to haveresulted from the gross negligence, bad faith or willful misconduct of anyIndemnitee or any of its directors, officers or employees or a material breachof the Loan Documents by any Indemnitee or (y) arise from claims of any ofthe Lenders solely against one or more Lenders (and not by one or more Lendersagainst the Administrative Agent or one or more of the other Agents) that havenot resulted from the action, inaction, participation or contribution of anyBorrower or their respective Subsidiaries or other Affiliates or any of theirrespective officers, directors, stockholders, partners, members, employees,agents, representatives or advisors.  NoIndemnitee shall be liable for any damages arising from the use by others ofany information or other materials obtained through IntraLinks or other similarinformation transmission systems in connection with this Agreement, nor shallany Indemnitee or any Loan Party have any liability for any special, punitive,indirect or consequential damages relating to this Agreement or any other LoanDocument or arising out of its activities in connection herewith or therewith(whether before or after the Closing Date). In the case of an investigation, litigation or other proceeding to whichthe indemnity in this Section 10.05 applies, such indemnity shallbe effective whether or not such investigation, litigation or proceeding isbrought by any Loan Party, its directors, shareholders or creditors or anIndemnitee or any other Person, whether or not any Indemnitee is otherwise aparty thereto and whether or not any of the transactions contemplated hereunderor under any of the other Loan Documents is consummated.  All amounts due under this Section 10.05shall be paid promptly (but in any event within thirty (30) days) after writtendemand therefor; *provided, however*,that such Indemnitee shall promptly refund such amount to the extent that thereis a final judicial or arbitral determination that such Indemnitee was notentitled to indemnification or contribution rights with respect to such paymentpursuant to the express terms of this Section 10.05.  The agreements in this Section 10.05shall survive the resignation of the Administrative Agent, the replacement ofany Lender, the termination of the Aggregate Commitments and the repayment,satisfaction or discharge of all the other Obligations.

 

SECTION 10.06.  Payments Set Aside.  To the extent that anypayment by or on behalf of any Borrower is made to any Agent or any Lender, orany Agent or any Lender exercises its right of setoff, and such payment or theproceeds of such setoff or any part thereof is subsequently invalidated,declared to be fraudulent or preferential, set aside or required (includingpursuant to any settlement entered into by such Agent or such Lender in itsdiscretion) to be repaid to a trustee, receiver or any other party, inconnection with any proceeding under any Debtor Relief Law or otherwise, then (a) tothe extent of such recovery, the obligation or part thereof originally intendedto be satisfied shall be revived and continued in full force and effect as ifsuch payment had not been made or such setoff had not occurred, and (b) eachLender severally agrees to pay to the Administrative Agent upon demand itsapplicable share of any amount so recovered from or repaid by any Agent, plusinterest thereon from the date of such demand to the date such payment is madeat a rate per annum equal to the applicable Federal Funds Rate from time totime in effect.

 

SECTION 10.07.  Successors and Assigns.  (a)  The provisions ofthis Agreement shall be binding upon and inure to the benefit of the partieshereto and their respective successors and assigns permitted hereby, exceptthat no Borrower may assign or otherwise transfer any of its rights orobligations hereunder without the prior written consent of each Lender and noLender may assign or otherwise transfer any of its rights or obligationshereunder except (i) to an Eligible Assignee in accordance with theprovisions of Section 10.07(b), (ii) by way of participationin accordance with the provisions of Section 10.07(d), (iii) byway of pledge or assignment of a security interest subject to the restrictionsof

 

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Section 10.07(f) or Section 10.07(h),as the case may be, or (iv) to an SPC in accordance with the provisions ofSection 10.07(g) (and any other attempted assignment ortransfer by any party hereto shall be null and void).  Nothing in this Agreement, expressed orimplied, shall be construed to confer upon any Person (other than the partieshereto, their respective successors and assigns permitted hereby, Participantsto the extent provided in Section 10.07(d) and, to the extentexpressly contemplated hereby, the Indemnitees) any legal or equitable right,remedy or claim under or by reason of this Agreement.

 

### (b)                                 Any Lender mayat any time assign to one or more Eligible Assignees all or a portion of itsrights and obligations under this Agreement (including all or a portion of itsRevolving Credit Commitment and the Loans (including for purposes of this Section 10.07(b),participations in L/C Obligations and in Swing Line Loans) at the time owing toit); *provided* that (i) exceptin the case of an assignment of the entire remaining amount of the assigningLender’s Revolving Credit Commitment and the Loans at the time owing to it orin the case of an assignment to a Lender or an Affiliate of a Lender or anApproved Fund with respect to a Lender, the aggregate amount of the RevolvingCredit Commitment (which for this purpose includes Loans outstandingthereunder) or, if the applicable Revolving Credit Commitment is not then ineffect, the outstanding principal balance of the Loans of the assigning Lendersubject to each such assignment, determined as of the date the Assignment andAssumption with respect to such assignment is delivered to the AdministrativeAgent, shall not be less than $1,000,000, in the case of any assignment inrespect of the Revolving Credit Facility; (ii) except in the case of anassignment to a Lender, an Affiliate of a Lender or an Approved Fund, each ofthe Administrative Agent and, so long as no Event of Default in respect of Section 8.01(a),Section 8.01(f) or Section 8.01(g)(i) hasoccurred and is continuing and except for assignments in connection with theexchange of Lenders’ interests pursuant to arrangements relating thereto amongthe Lenders following the date on which either any Event of Default referred toin Section 8.01(f) or Section 8.01(g)(i) shallhave occurred and be continuing in respect of any Borrower or the Loans shallhave been declared immediately due and payable pursuant to Section 8.02,each Borrower consents to such assignment (each such consent not to beunreasonably withheld or delayed); (iii) any assignment must be approvedby the Administrative Agent, the L/C Issuer and the Swing Line Lender (eachsuch consent not to be unreasonably withheld or delayed); (iv) the parties(other than the relevant Borrower unless its consent to such assignment isrequired hereunder) to each assignment shall (A) execute and deliver tothe Administrative Agent an Assignment and Assumption via an electronicsettlement system acceptable to the Administrative Agent (which initially maybe ClearPar, LLC) or (B) manually execute and deliver to theAdministrative Agent an Assignment and Assumption; and (v) the assigningLender shall deliver any Notes evidencing such Loans to the relevant Borroweror the Administrative Agent.  Subject toacceptance and recording thereof by the Administrative Agent pursuant to Section 10.07(c),from and after the effective date specified in each Assignment and Assumption,the Eligible Assignee thereunder shall be a party to this Agreement and, to theextent of the interest assigned by such Assignment and Assumption, have therights and obligations of a Lender under this Agreement, and the assigningLender thereunder shall, to the extent of the interest assigned by suchAssignment and Assumption, be released from its obligations under thisAgreement (and, in the case of an Assignment and Assumption covering all of theassigning Lender’s rights and obligations under this Agreement, such Lendershall cease to be a party hereto but shall continue to be entitled to the benefitsof Section 3.01, Section 3.04, Section 3.05,Section 10.04 and Section 10.05 with respect to factsand circumstances occurring prior to the effective date of suchassignment).  Upon request, and thesurrender by the assigning Lender of its Note, the relevant Borrower (at itsexpense) shall execute and deliver a Note to the assignee Lender.  Any assignment or transfer by a Lender ofrights or obligations under this Agreement that does not comply with this clause(b) shall be treated for purposes of this Agreement as a sale by suchLender of a participation in such rights and obligations in accordance with Section 10.07(d).

###  

### (c)                                  TheAdministrative Agent, acting solely for this purpose as an agent of theBorrowers, shall maintain at the Administrative Agent’s Office a copy of eachAssignment and Assumption delivered to it and a register for the recordation ofthe names and addresses of the Lenders, and the Revolving 

 

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### Credit Commitments of, and principal amounts (andrelated interest amounts) of the Loans, L/C Obligations (specifying theUnreimbursed Amounts), L/C Borrowings and amounts due under Section 2.03,owing to, each Lender pursuant to the terms hereof from time to time (the “**Register**”). The entries in the Register shall be conclusive, absent manifest error,and the Borrowers, the Agents and the Lenders shall treat each Person whosename is recorded in the Register pursuant to the terms hereof as a Lenderhereunder for all purposes of this Agreement, notwithstanding notice to thecontrary.  The Register shall beavailable for inspection by any Borrower, any Agent and any Lender, at anyreasonable time and from time to time upon reasonable prior notice.

###  

### (d)                                 Any Lender mayat any time, without the consent of, or notice to, any Borrower or theAdministrative Agent, sell participations to any Person (other than a naturalperson) (each, a “**Participant**”) inall or a portion of such Lender’s rights and/or obligations under thisAgreement (including all or a portion of its Revolving Credit Commitment and/orthe Loans (including such Lender’s participations in L/C Obligations and/orSwing Line Loans) owing to it); *provided*that (i) such Lender’s obligations under this Agreement shall remainunchanged, (ii) such Lender shall remain solely responsible to the otherparties hereto for the performance of such obligations and (iii) theBorrowers, the Agents and the other Lenders shall continue to deal solely anddirectly with such Lender in connection with such Lender’s rights andobligations under this Agreement.  Anyagreement or instrument pursuant to which a Lender sells such a participationshall provide that such Lender shall retain the sole right to enforce this Agreementand the other Loan Documents and to approve any amendment, modification orwaiver of any provision of this Agreement or the other Loan Documents; *provided* that such agreement or instrumentmay provide that such Lender will not, without the consent of the Participant,agree to any amendment, waiver or other modification described in the firstproviso to Section 10.01 that directly affects suchParticipant.  Subject to Section 10.07(e),the Borrowers agree that each Participant shall be entitled to the benefits of Section 3.01,Section 3.04 and Section 3.05 to the same extent as ifit were a Lender and had acquired its interest by assignment pursuant to Section 10.07(b) andsuch Participant agrees to be bound by such Sections and Section 3.06.  To the extent permitted by Law, each Participantalso shall be entitled to the benefits of Section 10.09 as thoughit were a Lender; *provided* thatsuch Participant agrees to be subject to Section 2.13 as though itwere a Lender.

###  

### (e)                                  A Participantshall not be entitled to receive any greater payment under Section 3.01,Section 3.04 or Section 3.05 than the applicable Lenderwould have been entitled to receive with respect to the participation sold tosuch Participant, unless the sale of the participation to such Participant ismade with the relevant Borrower’s prior written consent and such Participantcomplies with Section 3.01, Section 3.06 and Section 10.15as if such Participant were a Lender under Section 10.15.  A Participant shall not be entitled to thebenefits of Section 3.01 unless the relevant Borrower is notifiedof the participation sold to such Participant and such Participant agrees, forthe benefit of the relevant Borrower, to comply with Section 3.01, Section 3.06and Section 10.15 as though it were a Lender.

###  

### (f)                                    Any Lender mayat any time pledge or assign a security interest in all or any portion of itsrights under this Agreement (including under its Note, if any) to secureobligations of such Lender, including any pledge or assignment to secureobligations to a Federal Reserve Bank; *provided*that no such pledge or assignment shall release such Lender from any of itsobligations hereunder or substitute any such pledgee or assignee for suchLender as a party hereto.

###  

### (g)                                 Notwithstandinganything to the contrary contained herein, any Lender (a “**Granting Lender**”) may grant to a specialpurpose funding vehicle identified as such in writing from time to time by theGranting Lender to the Administrative Agent and the relevant Borrower (an “**SPC**”) the option to provide all or any partof any Loan that such Granting Lender would otherwise be obligated to makepursuant to this Agreement; *provided*that (i) nothing herein shall constitute a commitment by any SPC to fundany Loan, and (ii) if an SPC elects not to exercise such option orotherwise fails to make all or any 

 

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### part of such Loan, the Granting Lender shall beobligated to make such Loan pursuant to the terms hereof.  Each party hereto hereby agrees that (i) neitherthe grant to any SPC nor the exercise by any SPC of such option shall increasethe costs or expenses or otherwise increase or change the obligations of therelevant Borrower under this Agreement (including its obligations under Section 3.01,Section 3.04 or Section 3.05), (ii) no SPC shallbe liable for any indemnity or similar payment obligation under this Agreementfor which a Lender would be liable, and (iii) the Granting Lender shallfor all purposes, including the approval of any amendment, waiver or othermodification of any provision of any Loan Document, remain the lender of recordhereunder.  The making of a Loan by anSPC hereunder shall utilize the Revolving Credit Commitment of the GrantingLender to the same extent, and as if, such Loan were made by such Granting Lender.  Notwithstanding anything to the contrarycontained herein, any SPC may (i) with notice to, but without priorconsent of the relevant Borrower and the Administrative Agent, assign all orany portion of its right to receive payment with respect to any Loan to theGranting Lender and (ii) disclose on a confidential basis any non-publicinformation relating to its funding of Loans to any rating agency, commercialpaper dealer or provider of any surety or Guarantee or credit or liquidityenhancement to such SPC.

###  

### (h)                                 Notwithstandinganything to the contrary contained herein, any Lender that is a Fund may,without the consent of or notice to the Administrative Agent or any Borrower,create a security interest in all or any portion of the Loans owing to it andthe Note, if any, held by it to the trustee for holders of obligations owed, orsecurities issued, by such Fund as security for such obligations or securities;*provided* that unless and untilsuch trustee actually becomes a Lender in compliance with the other provisionsof this Section 10.07, (i) no such pledge shall release thepledging Lender from any of its obligations under the Loan Documents and (ii) suchtrustee shall not be entitled to exercise any of the rights of a Lender underthe Loan Documents even though such trustee may have acquired ownership rightswith respect to the pledged interest through foreclosure or otherwise (unlesssuch trustee is an Eligible Assignee which has complied with the requirementsof Section 10.07(b)).

###  

### (i)                                     Notwithstandinganything to the contrary contained herein, any L/C Issuer or the Swing LineLender may, upon thirty (30) days’ notice to the Borrowers and the Lenders,resign as a L/C Issuer and/or the Swing Line Lender; *provided* that on or prior to the expiration of such 30-dayperiod with respect to such L/C Issuer’s resignation as a L/C Issuer, such L/CIssuer shall have identified a successor L/C Issuer reasonably acceptable tothe Borrowers willing to accept its appointment as a successor L/C Issuer.  In the event of any such resignation as a L/CIssuer or the Swing Line Lender, the Borrowers shall be entitled to appointfrom among the Lenders willing to accept such appointment a successor L/CIssuer or Swing Line Lender hereunder; *provided*that no failure by the Borrowers to appoint any such successor shall affect theresignation of such L/C Issuer as a L/C Issuer or the Swing Line Lender, as thecase may be, except as expressly provided above.  If any L/C Issuer resigns as a L/C Issuer, itshall retain all the rights and obligations of a L/C Issuer hereunder withrespect to all Letters of Credit outstanding as of the effective date of itsresignation as a L/C Issuer and all L/C Obligations with respect thereto(including the right to require the Lenders to make Base Rate Loans or fundrisk participations in Unreimbursed Amounts pursuant to Section 2.03(c)).  If the Swing Line Lender resigns as SwingLine Lender, it shall retain all the rights of the Swing Line Lender providedfor hereunder with respect to Swing Line Loans made by it and outstanding as ofthe effective date of such resignation, including the right to require theLenders to make Base Rate Loans or fund risk participations in outstandingSwing Line Loans pursuant to Section 2.04(c).

###  

SECTION 10.08.  Confidentiality.  Each of the Agents and theLenders agrees to maintain the confidentiality of the Information, except thatInformation may be disclosed (a) to its and its Affiliates’ directors,officers, employees, trustees and agents, including accountants, legal counseland other advisors (it being understood that the Persons to whom suchdisclosure is made will be informed of the confidential nature of suchInformation and instructed to keep such Information confidential in 

 

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accordance with this Section 10.08);(b) to the extent requested by any regulatory authority; (c) to theextent required by applicable Laws or regulations or by any subpoena or similarlegal process; (*provided* that theAgent or Lender that discloses any Information pursuant to this clause (c) shallprovide the Loan Parties prompt notice of such disclosure to the extentpermitted by applicable Law so that such Loan Parties may seek an appropriateprotective order or other appropriate remedy); (d) to any other party tothis Agreement; (e) subject to an agreement containing provisions no lessrestrictive than those of this Section 10.08 (or as may otherwisebe reasonably acceptable to the Loan Parties), to any Eligible Assignee of orParticipant in, or any prospective Eligible Assignee of or Participant in, anyof its rights or obligations under this Agreement; (f) with the specificprior written consent of the Responsible Officers of the applicable Loan Party;(g) to the extent such Information becomes publicly available other thanas a result of a breach of this Section 10.08; (h) to anystate, Federal or foreign authority or examiner (including the NationalAssociation of Insurance Commissioners or any other similar organization)regulating any Lender; (i) to any rating agency when required by it (itbeing understood that, prior to any such disclosure, such rating agency shallundertake to preserve the confidentiality of any Information relating to theLoan Parties received by it from such Lender in accordance herewith); (j) inconnection with the exercise of any remedies hereunder or under any other LoanDocument or any action or proceeding relating to this Agreement or any otherLoan Document or the enforcement of rights hereunder or thereunder to theextent reasonably necessary in connection with such enforcement or (k) toany direct or indirect contractual counterparty in swap agreements or suchcontractual counterparty’s professional advisor (so long as such contractualcounterparty or professional advisor to such contractual counterparty agrees tobe bound by the provisions of this Section 10.08).  In addition, the Agents and the Lenders maydisclose the existence of this Agreement and information about this Agreementto market data collectors, similar service providers to the lending industry,and service providers to the Agents and the Lenders in connection with theadministration and management of this Agreement, the other Loan Documents, theRevolving Credit Commitments, and the Credit Extensions.  For the purposes of this Section 10.08,“**Information**” means allinformation received from any Loan Party relating to any Loan Party or itsbusiness, other than any such information that is publicly available to anyAgent or any Lender on a non-confidential basis prior to disclosure by any LoanParty other than as a result of a breach of this Section 10.08.

 

SECTION 10.09.  Setoff.  In addition to any rightsand remedies of the Lenders provided by Law, upon the occurrence and during thecontinuance of any Event of Default, after obtaining the prior written consentof the Administrative Agent, each Lender is authorized at any time and fromtime to time, without prior notice to the Borrowers or any other Loan Party,any such notice being waived by each of the Borrowers (on its own behalf and onbehalf of each Loan Party) to the fullest extent permitted by Law, to set offand apply any and all deposits (general or special, time or demand, provisionalor final) at any time held by, and other Indebtedness at any time owing by,such Lender to or for the credit or the account of the respective Loan Partiesagainst any and all Obligations owing to such Lender hereunder or under anyother Loan Document, now or hereafter existing, irrespective of whether or notsuch Agent or such Lender shall have made demand under this Agreement or anyother Loan Document and although such Obligations may be contingent orunmatured.  Each Lender agrees promptlyto notify the Borrowers and the Administrative Agent after any such set off andapplication made by such Lender; *provided*that the failure to give such notice shall not affect the validity of suchsetoff and application.  The rights ofthe Administrative Agent and each Lender under this Section 10.09are in addition to other rights and remedies (including, without limitation,other rights of setoff) that the Administrative Agent and such Lender may have.

 

SECTION 10.10.  Interest Rate Limitation.  Notwithstanding anything tothe contrary contained in any Loan Document, the interest paid or agreed to bepaid under the Loan Documents shall not exceed the maximum rate of non-usuriousinterest permitted by applicable Law (the “**MaximumRate**”).  If any Agent or anyLender shall receive interest in an amount that exceeds the Maximum Rate, 

 

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the excess interest shall be applied to theprincipal of the Loans or, if it exceeds such unpaid principal, refunded to theBorrowers.  In determining whether theinterest contracted for, charged, or received by an Agent or a Lender exceedsthe Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterizeany payment that is not principal as an expense, fee, or premium rather thaninterest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize,prorate, allocate, and spread in equal or unequal parts the total amount ofinterest throughout the contemplated term of the Obligations hereunder.

 

SECTION 10.11.  Counterparts.  This Agreement and eachother Loan Document may be executed in one or more counterparts, each of whichshall be deemed an original, but all of which together shall constitute one andthe same instrument.  Delivery bytelecopier or “pdf” of an executed counterpart of a signature page to thisAgreement and each other Loan Document shall be effective as delivery of anoriginal executed counterpart of this Agreement and such other LoanDocument.  The Agents may also requirethat any such documents and signatures delivered by telecopier or “pdf” beconfirmed by a manually signed original thereof; *provided* that the failure to request or deliver the sameshall not limit the effectiveness of any document or signature delivered bytelecopier or “pdf”.

 

SECTION 10.12.  Integration.  This Agreement, togetherwith the other Loan Documents, comprises the complete and integrated agreementof the parties on the subject matter hereof and thereof and supersedes allprior agreements, written or oral, on such subject matter.  In the event of any conflict between theprovisions of this Agreement and those of any other Loan Document, theprovisions of this Agreement shall control; *provided*that the inclusion of supplemental rights or remedies in favor of the Agents orthe Lenders in any other Loan Document shall not be deemed a conflict with thisAgreement.  Each Loan Document wasdrafted with the joint participation of the respective parties thereto andshall be construed neither against nor in favor of any party, but rather inaccordance with the fair meaning thereof.

 

SECTION 10.13.  Survival of Representations and Warranties.  All representations andwarranties made hereunder and in any other Loan Document or other documentdelivered pursuant hereto or thereto or in connection herewith or therewithshall survive the execution and delivery hereof and thereof.  Such representations and warranties have beenor will be relied upon by each Agent and each Lender, regardless of anyinvestigation made by any Agent or any Lender or on their behalf and notwithstandingthat any Agent or any Lender may have had notice or knowledge of any Default atthe time of any Credit Extension, and shall continue in full force and effectas long as any Loan or any other Obligation (other than contingentindemnification obligations to the extent not then due and payable or Lettersof Credit that have been cash collateralized in a manner satisfactory to theapplicable L/C Issuer) hereunder shall remain unpaid or unsatisfied or anyLetter of Credit shall remain outstanding except as set forth in Section 2.03(g).

 

SECTION 10.14.  Severability.  If any provision of thisAgreement or the other Loan Documents is held to be illegal, invalid orunenforceable, the legality, validity and enforceability of the remainingprovisions of this Agreement and the other Loan Documents shall not be affectedor impaired thereby.  The invalidity of aprovision in a particular jurisdiction shall not invalidate or renderunenforceable such provision in any other jurisdiction.

 

SECTION 10.15.  Tax Forms.  (a)  (i)  EachLender and Agent that is not a “United States person” within the meaning of Section 7701(a)(30)of the Code that lends to the Borrowers (each, a “**Non-US Lender**”) shall deliver to the Borrowers and theAdministrative Agent, on or prior to the date which is ten (10) BusinessDays after the Amendment Closing Date (or upon accepting an assignment of aninterest herein), two duly signed, properly completed copies of either IRS Form W-8BENor any successor thereto (relating to such Non-US Lender and entitling it to anexemption from, or reduction of, 

 

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United States withholding tax on all paymentsto be made to such Non-US Lender by the Borrowers pursuant to this Agreement orany other Loan Document) or IRS Form W-8ECI or any successor thereto(relating to all payments to be made to such Non-US Lender by the Borrowerspursuant to this Agreement or any other Loan Document) or such other evidencereasonably satisfactory to the Borrowers and the Administrative Agent that suchNon-US Lender is entitled to an exemption from, or reduction of, United Stateswithholding tax, including any exemption pursuant to Section 881(c) ofthe Code, and in the case of a Non-US Lender claiming such an exemption under Section 881(c) ofthe Code, a certificate that establishes in writing to the Borrowers and theAdministrative Agent that such Non-US Lender is not (i) a “bank” asdefined in Section 881(c)(3)(A) of the Code, (ii) a 10 percentshareholder within the meaning of Section 871(h)(3)(B) of the Code,or (iii) a controlled foreign corporation related to the Borrowers withthe meaning of Section 864(d) of the Code.  Thereafter and from time to time, each suchNon-US Lender shall (A) promptly submit to the Borrowers and theAdministrative Agent such additional duly and properly completed and signedcopies of one or more of such forms or certificates (or such successor forms orcertificates as shall be adopted from time to time by the relevant UnitedStates taxing authorities) as may then be available under then current UnitedStates laws and regulations to avoid, or such evidence as is reasonablysatisfactory to the Borrowers and the Administrative Agent of any availableexemption from, or reduction of, United States withholding taxes in respect ofall payments to be made to such Non-US Lender by the Borrowers pursuant to thisAgreement, or any other Loan Document, in each case, (1) on or before thedate that any such form, certificate or other evidence expires or becomesobsolete, (2) after the occurrence of any event requiring a change in themost recent form, certificate or evidence previously delivered by it to theBorrowers and the Administrative Agent and (3) from time to timethereafter if reasonably requested by the Borrowers or the AdministrativeAgent, and (B) promptly notify the Borrowers and the Administrative Agentof any change in circumstances which would modify or render invalid any claimedexemption or reduction.

 

##### (ii)                                  Each Non-USLender, to the extent it does not act or ceases to act for its own account withrespect to any portion of any sums paid or payable to such Non-US Lender underany of the Loan Documents (for example, in the case of a typical participationby such Non-US Lender), shall deliver to the Borrowers and the AdministrativeAgent on the date when such Non-US Lender ceases to act for its own accountwith respect to any portion of any such sums paid or payable, and at such othertimes as may be necessary in the determination of the Borrowers or theAdministrative Agent (in either case, in the reasonable exercise of itsdiscretion), (A) two duly signed, properly completed copies of the formsor statements required to be provided by such Non-US Lender as set forth above,to establish the portion of any such sums paid or payable with respect to whichsuch Non-US Lender acts for its own account that is not subject to UnitedStates withholding tax, and (B) two duly signed, properly completed copiesof IRS Form W-8IMY (or any successor thereto), together with anyinformation such Non-US Lender chooses to transmit with such form, and anyother certificate or statement of exemption required under the Code, toestablish that such Non-US Lender is not acting for its own account withrespect to a portion of any such sums payable to such Non-US Lender.

#####  

##### (iii)                               If any form ordocument referred to in this Section 10.15 requires the disclosureof information, other than information necessary to compute the tax payable andinformation required on the date hereof by Internal Revenue Service, that theapplicable Non-US Lender reasonably considers to be confidential, such Lendershall give notice thereof to the Borrowers and shall not be obligated toinclude in such form or document such confidential information.

#####  

##### (iv)                              The Borrowersshall not be required to pay any additional amount or any indemnity paymentunder Section 3.01 to (A) any Non-US Lender with respect toany Taxes required to be deducted or withheld on the basis of the information,certificates or statements of exemption such Lender transmits pursuant to this Section 10.15(a),or (B) any Non-US Lender with respect to any Taxes required to thededucted or withheld by reason of such Non-US Lender’s failure to satisfy theforegoing provisions of 

 

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##### this Section 10.15(a), with respect toTaxes required to be deducted or withheld by reason of such US Lender’sfailure; *provided* that if suchLender shall have satisfied the requirement of this Section 10.15(a) onthe date such Lender became a Lender to the Borrowers or ceased to act for itsown account with respect to any payment under any of the Loan Documents,nothing in this Section 10.15(a) shall relieve the Borrowersof their obligation to pay any amounts pursuant to Section 3.01 ifsuch Lender’s failure to satisfy the provisions of Section 10.15(a) isreasonably the result of any change in any applicable Law, treaty orgovernmental rule, regulation or order, or any change in the interpretation,administration or application thereof.

#####  

##### (v)                                 TheAdministrative Agent may deduct and withhold any taxes required by any Laws tobe deducted and withheld from any payment under any of the Loan Documents.

#####  

SECTION 10.16.  Process Agent.  Each party to this Agreementirrevocably consents to service of process in the manner provided for noticesin Section 10.02.  Inaddition, each Loan Party not organized in the United States of America or astate thereof hereby irrevocably appoints National Registered Agents, Inc.(the “**Process Agent**”) with anoffice on the date hereof at 111 Eighth Avenue, New York, New York 10011 in theUnited States, as its agent to receive on behalf of such Loan Party and itsproperty service of copies of the summons and complaint and any other processthat may be served in any such action or proceeding.  Such service may be made by mailing ordelivering a copy of such process to such Loan Party in care of the ProcessAgent at the Process Agent’s above address, and such Loan Party herebyirrevocably authorizes and directs the Process Agent to accept such service onits behalf.  As an alternative method ofservice, each Loan Party not organized in the United States of America or astate thereof also irrevocably consents to the service of any and all process inany such action or proceeding by the mailing of copies of such process to suchLoan Party at its address specified in Section 10.02 (such serviceto be effective seven days after mailing thereof).  Each Loan Party not organized in the UnitedStates of America or a state thereof covenants and agrees that it shall takeany and all reasonable action, including the execution and filing of any andall documents, that may be necessary to continue the designation of the ProcessAgent above in full force and effect, and to cause the Process Agent tocontinue to act as such.  Nothing in thisSection 10.16 shall affect the right of any Lender or theAdministrative Agent to serve legal process in any other manner permitted byapplicable law or affect the right of any Lender or the Administrative Agent tobring any suit, action or proceeding against each Loan Party or its property inthe courts of other jurisdictions.

 

SECTION 10.17.  Release of Collateral.  Upon the sale, lease,transfer or other disposition of any item of Collateral of or by any Loan Party(including, without limitation, as a result of the sale, in accordance with theterms of the Loan Documents, of the Loan Party that owns such Collateral) inaccordance with the terms of the Loan Documents, the security interest grantedunder the Collateral Documents in such Collateral shall automatically terminateand the Collateral Agent will, promptly and at the Borrowers’ expense, promptlyexecute and deliver to such Loan Party such documents as such Loan Party mayreasonably request to evidence the release of such item of Collateral from theLiens granted under the Collateral Documents in accordance with the terms ofthe Loan Documents.

 

SECTION 10.18.  GOVERNING LAW.  (a)  THIS AGREEMENT ANDEACH OTHER LOAN DOCUMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCEWITH, THE LAW OF THE STATE OF NEW YORK.

###  

### (b)                                 ANY LEGALACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BEBROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK CITY OR OFTHE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION ANDDELIVERY OF THIS AGREEMENT, 

 

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### EACH BORROWER, EACH AGENT AND EACH LENDER CONSENTS,FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OFTHOSE COURTS.  EACH BORROWER, EACH AGENTAND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TOTHE LAYING OF VENUE OR BASED ON THE GROUNDS OF *FORUMNON CONVENIENS*, WHICH IT MAY NOW OR HEREAFTER HAVE TO THEBRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANYLOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO.

###  

SECTION 10.19.  WAIVER OF RIGHT TO TRIAL BY JURY.  EACH PARTY TO THIS AGREEMENTHEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTIONOR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITHOR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEMWITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACHCASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACTOR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCHCLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIALWITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINALCOUNTERPART OR A COPY OF THIS SECTION 10.19 WITH ANY COURT ASWRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OFTHEIR RIGHT TO TRIAL BY JURY.

 

SECTION 10.20.  Binding Effect.  This Agreement shall becomeeffective when it shall have been executed by each Borrower and theAdministrative Agent shall have been notified by each Lender, Swing Line Lenderand the L/C Issuer that each such Lender, Swing Line Lender and the L/C Issuerhas executed it and the conditions set forth in Section 4.01 shallhave been satisfied or waived, and thereafter shall be binding upon and inureto the benefit of each Borrower, each Agent and each Lender and their respectivesuccessors and assigns, except that no Borrower shall have the right to assignits rights hereunder or any interest herein without the prior written consentof the Lenders except as permitted by Section 7.04.

 

SECTION 10.21.  USA Patriot Act Notice.  Each Lender that is subjectto the Patriot Act and the Administrative Agent (for itself and not on behalfof any Lender) hereby notifies the Borrowers that pursuant to the requirementsof the Patriot Act, it is required to obtain, verify and record informationthat identifies each Borrower, which information includes the name and addressof each Borrower and other information that will allow such Lender or theAdministrative Agent, as applicable, to identify each Borrower in accordancewith the Act.

 

**[THE REMAINDER OF THIS PAGE ISINTENTIONALLY LEFT BLANK.]**

 

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**IN WITNESS WHEREOF**, the parties hereto havecaused this Agreement to be duly executed as of the date first above written.

 
|   | **UNIVERSAL  HOSPITAL SERVICES, INC.,** |
|--------|-----------------------------------------|
|   | as Borrower                             |
|   |                                    |
|   |                                    |
|   | By:                                     | /s/ Rex T. Clevenger |
|   |                                    | Name: Rex T. Clevenger |
|   |                                    | Title: CFO &  Executive Vice President |

 

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|   | **UHS  HOLDCO, INC.,** |
|--------|------------------------|
|   | as Parent              |
|   |                   |
|   |                   |
|   | By:                    | /s/ Rex T. Clevenger |
|   |                   | Name: Rex T. Clevenger |
|   |                   | Title: CFO &  Executive Vice President |

 

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|   | **GE  BUSINESS FINANCIAL SERVICES INC.,**                                                                 |
|--------|-----------------------------------------------------------------------------------------------------------|
|   | individually  as a Lender and as Administrative  Agent, Initial L/C Issuer and Initial Swing  Line Lender |
|   |                                                                                                      |
|   |                                                                                                      |
|   | By                                                                                                        |   |
|   |                                                                                                      | Name: |
|   |                                                                                                      | Title: |

 

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|   | **WACHOVIA  BANK, N.A.,**                            |
|--------|------------------------------------------------------|
|   | individually  as a Lender and as Initial L/C  Issuer |
|   |                                                 |
|   |                                                 |
|   | By                                                   |   |
|   |                                                 | Name: |
|   |                                                 | Title: |

 

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|   |                     |
|--------|--------------------------|
|   | **,**                    |
|   | [INSERT LENDER NAME]     |
|   | individually as a Lender |
|   |                     |
|   |                     |
|   | By:                      |   |
|   |                     | Name: |
|   |                     | Title: |

 

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