exv10w1






Exhibit 10.1




EXECUTION VERSION




CREDIT AGREEMENT

among




NMH HOLDINGS, LLC,



NATIONAL MENTOR HOLDINGS, INC.,

as Borrower,



The Several Lenders from Time to Time Parties Hereto,



and



UBS AG, STAMFORD BRANCH,

as Administrative Agent



Dated as of February 9, 2011



UBS SECURITIES LLC,

BARCLAYS CAPITAL,

JEFFERIES FINANCE LLC,

and

GE CAPITAL MARKETS, INC.,

as Joint Lead Arrangers



UBS SECURITIES LLC,

BARCLAYS CAPITAL,

and

JEFFERIES FINANCE LLC,

as Joint Bookrunners



BARCLAYS CAPITAL

and

JEFFERIES FINANCE LLC,

as Co-Documentation Agents



UBS SECURITIES LLC,

as Syndication Agent



 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	SECTION 1

	 
	 	 	 	 
	DEFINITIONS

	 
	 	 	 	 
	1.1 Defined Terms
	 	 	1	 
	1.2 Other Definitional Provisions
	 	 	30	 
	 
	 	 	 	 
	SECTION 2

	 
	 	 	 	 
	AMOUNT AND TERMS OF COMMITMENTS

	 
	 	 	 	 
	2.1 Tranche B Term Commitments
	 	 	31	 
	2.2 Procedure for Tranche B Term Loan Borrowings
	 	 	31	 
	2.3 Repayment of Tranche B Term Loans
	 	 	31	 
	2.4 Revolving Commitments
	 	 	31	 
	2.5 Procedure for Revolving Loan Borrowing
	 	 	32	 
	2.6 Swingline Commitment
	 	 	32	 
	2.7 Procedure for Swingline Borrowing; Refunding of Swingline Loans
	 	 	32	 
	2.8 Commitment Fees, Etc.
	 	 	34	 
	2.9 Termination or Reduction of Commitments
	 	 	34	 
	2.10 Optional Prepayments
	 	 	34	 
	2.11 Mandatory Prepayments
	 	 	35	 
	2.12 Conversion and Continuation Options
	 	 	35	 
	2.13 Limitations on Eurodollar Tranches
	 	 	36	 
	2.14 Interest Rates and Payment Dates
	 	 	36	 
	2.15 Computation of Interest and Fees
	 	 	37	 
	2.16 Inability to Determine Interest Rate
	 	 	37	 
	2.17 Pro Rata Treatment and Payments
	 	 	37	 
	2.18 Requirements of Law
	 	 	39	 
	2.19 Taxes
	 	 	40	 
	2.20 Indemnity
	 	 	42	 
	2.21 Change of Lending Office
	 	 	43	 
	2.22 Replacement of Lenders
	 	 	43	 
	2.23 Limitation on Additional Amounts, Etc
	 	 	43	 
	2.24 [Reserved]
	 	 	44	 
	2.25 Incremental Credit Extensions
	 	 	44	 
	2.26 Defaulting Lenders
	 	 	45	 
	 
	 	 	 	 
	SECTION 3

	 
	 	 	 	 
	LETTERS OF CREDIT

	 
	 	 	 	 
	3.1 Letters of Credit
	 	 	47	 
	3.2 Procedure for Issuance of Letter of Credit
	 	 	48	 
	3.3 Fees and Other Charges
	 	 	48	 
	3.4 L/C Participations
	 	 	49	 
	3.5 Reimbursement Obligation of the Borrower
	 	 	50	 






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	 	 	Page	 
	3.6 Obligations Absolute
	 	 	50	 
	3.7 Letter of Credit Payments
	 	 	51	 
	3.8 Applications
	 	 	51	 
	3.9 Obligations of Certain Issuing Lenders
	 	 	51	 
	 
	 	 	 	 
	SECTION 4

	 
	 	 	 	 
	REPRESENTATIONS AND WARRANTIES

	 
	 	 	 	 
	4.1 Financial Condition
	 	 	51	 
	4.2 No Change
	 	 	52	 
	4.3 Existence; Compliance with Law
	 	 	52	 
	4.4 Power; Authorization; Enforceable Obligations
	 	 	52	 
	4.5 No Legal Bar
	 	 	52	 
	4.6 Litigation
	 	 	52	 
	4.7 No Default
	 	 	53	 
	4.8 Ownership of Property; Liens
	 	 	53	 
	4.9 Licenses; Intellectual Property
	 	 	53	 
	4.10 Taxes
	 	 	53	 
	4.11 Federal Regulations
	 	 	53	 
	4.12 Labor Matters
	 	 	54	 
	4.13 ERISA
	 	 	54	 
	4.14 Investment Company Act; Other Regulations
	 	 	54	 
	4.15 Subsidiaries
	 	 	54	 
	4.16 Use of Proceeds
	 	 	54	 
	4.17 Environmental Matters
	 	 	54	 
	4.18 Accuracy of Information, Etc
	 	 	55	 
	4.19 Security Documents
	 	 	56	 
	4.20 Solvency
	 	 	56	 
	4.21 Regulation H
	 	 	56	 
	 
	 	 	 	 
	SECTION 5

	 
	 	 	 	 
	CONDITIONS PRECEDENT

	 
	 	 	 	 
	5.1 Conditions to Initial Extension of Credit
	 	 	57	 
	5.2 Conditions to Each Extension of Credit
	 	 	59	 
	 
	 	 	 	 
	SECTION 6

	 
	 	 	 	 
	AFFIRMATIVE COVENANTS

	 
	 	 	 	 
	6.1 Financial Statements
	 	 	59	 
	6.2 Certificates; Other Information
	 	 	60	 
	6.3 Payment of Taxes
	 	 	61	 
	6.4 Maintenance of Existence; Compliance
	 	 	61	 
	6.5 Maintenance of Property; Insurance
	 	 	62	 
	6.6 Inspection of Property; Books and Records; Discussions
	 	 	62	 
	6.7 Notices
	 	 	62	 
	6.8 Environmental Laws
	 	 	63	 






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	 	 	Page	 
	6.9 Additional Collateral, Etc
	 	 	64	 
	6.10 Initial Mortgages
	 	 	65	 
	6.11 Designation of Subsidiaries
	 	 	65	 
	 
	 	 	 	 
	SECTION 7

	 
	 	 	 	 
	NEGATIVE COVENANTS

	 
	 	 	 	 
	7.1 Financial Condition Covenants
	 	 	66	 
	7.2 Indebtedness
	 	 	67	 
	7.3 Liens
	 	 	70	 
	7.4 Fundamental Changes
	 	 	72	 
	7.5 Disposition of Property
	 	 	73	 
	7.6 Restricted Payments
	 	 	74	 
	7.7 Capital Expenditures
	 	 	76	 
	7.8 Investments
	 	 	76	 
	7.9 Optional Prepayments and Modifications of Certain Debt Instruments and Material Agreements
	 	 	79	 
	7.10 Transactions with Affiliates
	 	 	79	 
	7.11 Sales and Leasebacks
	 	 	80	 
	7.12 Swap Agreements
	 	 	80	 
	7.13 Changes in Fiscal Periods
	 	 	80	 
	7.14 Negative Pledge Clauses
	 	 	80	 
	7.15 Clauses Restricting Subsidiary Distributions
	 	 	81	 
	7.16 Lines of Business
	 	 	81	 
	7.17 Insurance Subsidiary Investments
	 	 	81	 
	7.18 Insurance Subsidiary
	 	 	82	 
	7.19 Limitations on Institutional L/C Collateral Account
	 	 	82	 
	 
	 	 	 	 
	SECTION 8

	 
	 	 	 	 
	EVENTS OF DEFAULT

	 
	 	 	 	 
	SECTION 9

	 
	 	 	 	 
	THE AGENTS

	 
	 	 	 	 
	9.1 Appointment and Authority
	 	 	85	 
	9.2 Rights as a Lender
	 	 	85	 
	9.3 Exculpatory Provisions
	 	 	86	 
	9.4 Reliance by Agent
	 	 	86	 
	9.5 Delegation of Duties
	 	 	87	 
	9.6 Resignation of Agent
	 	 	87	 
	9.7 Non-Reliance on Agent and Other Lenders
	 	 	88	 
	9.8 Withholding Tax
	 	 	88	 
	9.9 No Other Duties, Etc
	 	 	89	 
	9.10 Enforcement
	 	 	89	 
	9.11 Collateral and Guaranty Matters
	 	 	89	 
	9.12 Indemnity; Damage Waiver.
	 	 	90	 






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	 	 	Page	 
	SECTION 10

	 
	 	 	 	 
	MISCELLANEOUS

	 
	 	 	 	 
	10.1 Amendments and Waivers
	 	 	91	 
	10.2 Notices
	 	 	94	 
	10.3 No Waiver; Cumulative Remedies
	 	 	94	 
	10.4 Survival of Representations and Warranties
	 	 	94	 
	10.5 Payment of Expenses
	 	 	95	 
	10.6 Successors and Assigns; Participations and Assignments
	 	 	96	 
	10.7 Adjustments; Set-off
	 	 	100	 
	10.8 Counterparts
	 	 	101	 
	10.9 Severability
	 	 	101	 
	10.10 Integration
	 	 	101	 
	10.11 GOVERNING LAW
	 	 	101	 
	10.12 Submission to Jurisdiction; Waivers
	 	 	101	 
	10.13 Acknowledgements
	 	 	102	 
	10.14 Releases of Guarantees and Liens
	 	 	102	 
	10.15 Confidentiality
	 	 	102	 
	10.16 WAIVERS OF JURY TRIAL
	 	 	103	 
	10.17 USA PATRIOT ACT
	 	 	103	 
	10.18 Replacement of Holdings
	 	 	103	 
	10.19 Mortgaged Property Acknowledgment
	 	 	104	 






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	SCHEDULES:
	 
	 	 
	1.1A

	 	Commitments
	1.1B

	 	Liquidating Subsidiaries
	1.1C

	 	Mortgage Facility Properties
	4.4

	 	Consents, Authorizations, Filings and Notices
	4.6

	 	Litigation
	4.7

	 	No Default
	4.8

	 	Initial Mortgaged Property
	4.9

	 	Licenses
	4.15(a)

	 	Organizational Structure
	4.15(b)

	 	Subsidiaries
	4.19(a)

	 	UCC Filing Jurisdictions
	5.1(g)

	 	Previously Mortgaged Properties
	7.2(d)

	 	Existing Indebtedness
	7.3(f)

	 	Existing Liens
	7.8(g)

	 	Existing Investments
	7.10

	 	Transactions with Affiliates
	 
	 	 
	EXHIBITS:
	 
	 	 
	A

	 	Form of Assignment and Assumption
	B

	 	Form of Guarantee and Security Agreement
	C

	 	Form of Exemption Certificate
	D

	 	Form of Legal Opinion of Kirkland & Ellis LLP
	E

	 	Form of Reinvestment Notice
	F

	 	Form of Compliance Certificate
	G

	 	Form of Affiliated Lender Assignment and Assumption
	H

	 	Form of Borrowing Notice






-v-









 





     CREDIT AGREEMENT, dated as of February 9, 2011, among NMH Holdings, LLC, a Delaware limited
liability company (“Holdings”), National MENTOR Holdings, Inc., a Delaware corporation (the
“Borrower”), the several banks and other financial institutions or entities from time to
time parties to this Agreement (the “Lenders”) and UBS AG, Stamford Branch, as
administrative agent.



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



SECTION 1




DEFINITIONS



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



     “ABR”: for any day, a rate per annum (rounded upwards, if necessary, to the next 1/16
of 1%) equal to the greater of (a) the Prime Rate in effect on such day, (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%; and (c) the Eurodollar Rate for an Interest
Period of one-month beginning on such day (or if such day is not a Business Day, on the immediately
preceding Business Day) plus 100 basis points.



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



     “Accepting Lenders”: as defined in Section 10.1.



     “Acquired EBITDA”: with respect to any Acquired Entity or Business or any Converted
Restricted Subsidiary (any of the foregoing, a “Pro Forma Entity”) for any period, the
amount for such period of Consolidated EBITDA of such Pro Forma Entity (determined as if references
to the Borrower and the Restricted Subsidiaries in the definition of Consolidated EBITDA were
references to such Pro Forma Entity and its Subsidiaries (except to the extent that such
Subsidiaries will not constitute Restricted Subsidiaries immediately after giving effect to such
acquisition or conversion)), all as determined on a consolidated basis for such Pro Forma Entity.



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



     “Acquisition”: any acquisition of all or substantially all of the assets (or any
substantial part for which financial statements or other customary financial information is
available) or which results in owning more than 50% of the equity interests of any Person or
division or line of business thereof.



     “Additional Lender”: as defined in Section 2.25.



     “Administrative Agent”: UBS AG, Stamford Branch, as the administrative agent for the
Lenders under this Agreement and the other Loan Documents, together with any of its successors.



     “Affected Class”: as defined in Section 10.1.



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



 









 





     “Affiliated Lender Assignment and Assumption”: as defined in Section 10.6(g).



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



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



	 	 	 	 	 	 	 	 	 
	 	 	ABR Loans	 	Eurodollar Loans
	Revolving Loans and Swingline Loans
	 	 	4.25	%	 	 	5.25	%
	Tranche B Term Loans
	 	 	4.25	%	 	 	5.25	%






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



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



     “Asset Sale”: any Disposition of property or series of related Dispositions of
property, excluding (i) any such Disposition permitted by clause (a), (b), (c), (d), (f), (g) or
(i) of Section 7.5, (ii) any Sale Leaseback Transaction and (iii) other Dispositions to the extent
that the Net Cash Proceeds to the Loan Parties of all such other Dispositions do not exceed
$4,000,000 in the aggregate in any fiscal year.



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



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



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



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



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



     “Borrower”: as defined in the preamble hereto.



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



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



     “Business Day”: a day other than a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to close, provided, that with
respect to notices and determinations in connection with, and payments of principal and interest
on, Eurodollar Loans, such day is also a day for trading by and between banks in Dollar deposits in
the interbank eurodollar market.



     “Capital Expenditures”: for any period, with respect to any Person, the aggregate of
all expenditures (whether paid in cash or other consideration, financed by the incurrence of
Indebtedness or accrued as a liability) by such Person and its Restricted Subsidiaries during such
period that are additions to property,



-2-









 




plant and equipment for the acquisition, rental, lease, purchase, construction,
replacement, repair or use of any property, the value of which should be capitalized under GAAP and
reflected as additions to property, plant and equipment on a consolidated balance sheet of such
Person and its Restricted Subsidiaries (including, without limitation, the aggregate principal
amount of Capital Lease Obligations incurred during such period).




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



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



     “Cash Equivalents”: (a) marketable direct obligations issued by, or unconditionally
guaranteed by, the United States Government or issued by any agency thereof and backed by the full
faith and credit of the United States, in each case maturing within one year from the date of
acquisition; (b) certificates of deposit, time deposits, eurodollar time deposits or overnight bank
deposits having maturities of one year or less from the date of acquisition issued by any Lender or
by any commercial bank organized under the laws of the United States or any state thereof having
combined capital and surplus of not less than $500,000,000; (c) commercial paper of an issuer rated
at least A-1 by Standard & Poor’s Ratings Services (“S&P”) or P-1 by Moody’s Investors
Service, Inc. (“Moody’s”), or carrying an equivalent rating by a nationally recognized
rating agency, if both of the two named rating agencies cease publishing ratings of commercial
paper issuers generally, and maturing within one year from the date of acquisition; (d) repurchase
obligations of any Lender or of any commercial bank satisfying the requirements of clause (b) of
this definition, having a term of not more than 30 days, with respect to securities issued or fully
guaranteed or insured by the United States government; (e) securities with maturities of one year
or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or
territory of the United States, by any political subdivision or taxing authority of any such state,
commonwealth or territory or by any foreign government, the securities of which state,
commonwealth, territory, political subdivision, taxing authority or foreign government (as the case
may be) are rated at least A by S&P or A by Moody’s; (f) securities with maturities of one year or
less from the date of acquisition backed by standby letters of credit issued by any Lender or any
commercial bank satisfying the requirements of clause (b) of this definition; (g) money market
mutual or similar funds that invest substantially in assets satisfying the requirements of clauses
(a) through (1) of this definition; (h) money market funds that (i) comply with the criteria set
forth in SEC Rule 2a-7 under the Investment Company Act of 1940, as amended, (ii) are rated AAA by
S&P and Aaa by Moody’s and (iii) have portfolio assets of at least $5,000,000,000; or (i) other
short-term investments utilized by Foreign Subsidiaries in accordance with the normal investment
practices for cash management in investments of a type analogous to the foregoing.



     “Cash Management Obligations”: any obligations owed by Holdings, the Borrower or any
of its Subsidiaries to any Lender or any Affiliate of a Lender (or was a Lender or Affiliate
thereof at the time any such arrangements were entered into) or Bank of America, N.A. or any
affiliate of Bank of America, N.A. in respect of any overdraft and other liabilities arising from
treasury, depository and cash management services (including but not limited to purchase cards in
an amount at any one time outstanding not to exceed 7.5% Consolidated EBITDA for the latest four
fiscal quarter period for which financial statements have been delivered prior to Section 6.1), or
any automated clearing house transfers of funds and designated by Holdings or the Borrower as being
secured under the Security Documents.



-3-









 





     “Change of Control”: (a) prior to an Initial Public Offering, for any reason (i) the
Permitted Holders shall fail to have the right to appoint, directly or indirectly, a majority of
the board of managers of Holdings and thereby control the management of Holdings, the Borrower and
its Subsidiaries; (ii) Holdings shall cease to own, directly or indirectly, 100% of the outstanding
voting power of all Capital Stock of the Borrower on a fully diluted basis; or (iii) the Permitted
Holders shall cease to own and control of record and beneficially, directly or indirectly, on a
fully diluted basis, at least 51% of the issued and outstanding voting power of all Capital Stock
of Holdings; and (b) after any Initial Public Offering,




     (i) the sale, lease or transfer, in one or a series of related transactions, of all or
substantially all of the assets of the Borrower and its Subsidiaries, taken as a whole, to
any Person other than a Permitted Holder; or




     (ii) the Borrower becomes aware of (by way of a report or any other filing pursuant to
Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) the acquisition
by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the
Exchange Act, or any successor provision), including any group acting for the purpose of
acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under
the Exchange Act), other than the Permitted Holders, in a single transaction or in a related
series of transactions, by way of merger, consolidation or other business combination or
purchase of beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act,
or any successor provision) of 50% or more of the total voting power of the Voting Stock of
the Borrower or any of its direct or indirect parent companies holding directly or
indirectly 50% or more of the total voting power of the Voting Stock of the Borrower.



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



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



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



     “Co-Documentation Agents”: Barclays Capital, the investment banking division of
Barclays Bank PLC and Jefferies Finance LLC, in their capacity as Co-Documentation Agents
hereunder.



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



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



     “Commitment Fee Rate”: a rate per annum equal to 1/2 of 1%.



     “Commitment Increase”: as defined in Section 2.25.



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



-4-









 





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



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



     “Confidential Information Memorandum”: the Confidential Information Memorandum dated
January 2011 and furnished to certain Lenders.



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



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



     “Consolidated EBITDA”: for any period, Consolidated Net Income for such period plus,
without duplication and to the extent already deducted (and not added back) in arriving at such
Consolidated Net Income (other than with respect to clause (g) below), the sum of (i) (to the
extent attributable to the Borrower and its Restricted Subsidiaries): (a) income tax expense (and
franchise taxes in the nature of income taxes) and foreign withholding tax expense for such period
and any state single business unitary or similar tax, (b) consolidated interest expense and, to the
extent not reflected in consolidated interest expense, amortization or write-off of deferred
financing costs, debt discount and debt issuance costs and commissions, discounts and other fees
and charges associated with Indebtedness (including the Loans) and any losses on hedging
obligations or other derivative instruments entered into for the purpose of hedging interest rate
risk, (c) depreciation and amortization expense, (d) amortization of intangibles (including, but
not limited to, goodwill) and organization costs, (e) Non-Cash Charges, (f) Management Fees paid in
cash or accrued during such period to the extent permitted to be paid hereunder, (g) proceeds of
business interruption insurance received during such period, (h) expenses incurred to the extent
covered by indemnification or refunding provisions in any Permitted Acquisition document, any
document pertaining to any acquisition consummated prior to the Closing Date, or any insurance to
the extent reimbursed (or reasonably expected to be reimbursed within 120 days of the incurrence
thereof), (i) Permitted Start-Up Losses, (j) non-cash expenses incurred in connection with the
issuance of stock options, warrants or other Permitted Capital Stock by Borrower, Holdings or any
direct or indirect parent company of Holdings to employees of Borrower and its Restricted
Subsidiaries and any costs or expenses incurred by the




-5-











 




Borrower and its Restricted Subsidiaries pursuant to any management equity plan or stock
option plan or any management or employee benefit plan or agreement or any stock subscription or
shareholder agreement, to the extent such costs or expenses are funded with cash proceeds
contributed to the capital of Borrower, Holdings or Net Cash Proceeds of an issuance of Capital
Stock of Borrower, Holdings or any direct or indirect parent company of Holdings Not Otherwise
Applied, (k) any Transaction Bonuses, (l) unusual or non-recurring losses or charges, severance
costs and relocation costs, (m) any deductions attributable to minority interests (excluding
dividends and other distributions paid or payable in cash to the holders of such minority
interests), (n) any expenses or charges related to any debt or equity offering, Investment,
acquisition, disposition, recapitalization or Indebtedness permitted to be incurred hereunder
(whether or not successful), including such fees, expenses or charges related to the offering of
the Senior Notes and this Agreement or any other Transaction and in connection with any actual or
proposed registration of any securities (debt or equity), (o) expenses related to executive
employment agreements, stay bonuses, transaction costs, benefits and payroll taxes paid to or on
behalf of employees of the relevant seller pertaining to any acquisition or investment permitted
hereunder or consummated prior to the date hereof who are no longer employed by Holdings or its
Restricted Subsidiaries not to exceed $1,000,000 for the four fiscal quarters most recently ended,
(p) charges in respect of early retirement of Indebtedness, restructuring costs, integration costs
or other business optimization expenses, costs associated with establishing new facilities or
reserves, consolidation or discontinuance or closure of any operations, employees and/or management
(including costs incurred to implement such restructuring), and transaction fees and expenses,
including any expense relating to enhanced accounting functions not to exceed 5% of Consolidated
EBITDA of the Borrower and its Restricted Subsidiaries for the four fiscal quarters most recently
ended (prior to giving effect to such amounts then to be added to Consolidated EBITDA pursuant to
this clause (p)), (q) any net loss from disposed or discontinued operations and (r) cash receipts
(or any netting arrangements resulting in reduced cash expenditures) not representing Consolidated
EBITDA or Consolidated Net Income in any period to the extent non-cash gains relating to such
income were deducted in the calculation of Consolidated EBITDA pursuant to clause (a) below for any
previous period and not added back and (ii) the income of any Unrestricted Subsidiary to the extent
any such income is actually received by the Borrower or any Restricted Subsidiary and minus
(a) without duplication and to the extent included in the statement of such Consolidated Net Income
for such period, the sum of (i) any unusual or non-recurring income or gains, (ii) income tax
credits (to the extent not netted from income tax expense), (iii) any other non-cash income and
(iv) any interest income and gains on hedging or other derivative instruments entered into for the
purpose of hedging interest rate risk, and (b) any cash payments made during such period in respect
of Non-Cash Charges described in clause (e) which cash payments are made subsequent to the fiscal
quarter in which the relevant Non-Cash Charges were reflected as a charge in the statement of
Consolidated Net Income, but only to the extent that such cash payments do not exceed such Non-Cash
Charges, all as determined on a consolidated basis. In addition, Consolidated EBITDA shall be
calculated without giving effect to (w) any gains or losses from Asset Sales, (x) any gain or loss
recognized in determining Consolidated Net Income for such period in respect of post-retirement
benefits as a result of the application of FASB 106 and (y) any gain or loss recognized in
determining Consolidated Net Income for such period resulting from Earnout Obligations.
Furthermore, (A) there shall be included in determining Consolidated EBITDA for any period, without
duplication, (I) Acquired EBITDA of any Person, property, business or asset acquired (other than in
the ordinary course of business) by, or contributed to, the Borrower or any Restricted Subsidiary
during such period (but not the Acquired EBITDA of any related Person, property, business or assets
to the extent not so acquired), to the extent not subsequently sold, transferred or otherwise
disposed of by the Borrower or such Restricted Subsidiary (each such Person, property, business or
asset acquired or received and not subsequently so disposed of, an “Acquired Entity or
Business”) and (II) the Acquired EBITDA of any Unrestricted Subsidiary that is converted into a
Restricted Subsidiary during such period (each, a “Converted Restricted Subsidiary”), based on the
actual Acquired EBITDA of such Acquired Entity or Business or Converted Restricted Subsidiary for
such period (including the portion thereof occurring prior to such acquisition or conversion) and
the Pro Forma Adjustments, if any, applicable thereto and (B) there shall be excluded in
determining Consolidated






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 EBITDA for any period (I) the Disposed EBITDA of any Person, property, business or
asset sold, transferred or otherwise disposed of, closed or classified as discontinued operations
(in each case, other than in the ordinary course of business) by the Borrower or any Restricted
Subsidiary during such period (each such Person, property, business or asset so sold or disposed
of, a “Sold Entity or Business”) and (II) the Disposed EBITDA of any Restricted Subsidiary
that is converted into an Unrestricted Subsidiary during such period (each, a “Converted
Unrestricted Subsidiary”), based on the actual Disposed EBITDA of such Sold Entity or Business
or Converted Unrestricted Subsidiary for such period (including the portion thereof occurring prior
to such sale, transfer or disposition or conversion).




     For the purpose of the definition of Consolidated EBITDA, “Non-Cash Charges” means (a)
any impairment charge or asset write-off related to intangible assets, long-lived assets, and
investments in debt and equity securities pursuant to GAAP, (b) all losses from investments
recorded using the equity method, (c) stock-based awards compensation expense, and (d) other
non-cash charges, in each case excluding any non-cash charge in respect of an item that was
included in Consolidated Net Income in a prior period.



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



     “Consolidated Interest Expense”: for any period, total cash interest expense
(including that attributable to Capital Lease Obligations), net of cash interest income, of the
Borrower and its Restricted Subsidiaries for such period with respect to all outstanding
Indebtedness of the Borrower and its Restricted Subsidiaries (including all commissions, discounts
and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing
and net costs under Swap Agreements in respect of interest rates to the extent such net costs are
allocable to such period in accordance with GAAP); provided, however, that (a)
Consolidated Interest Expense shall be determined excluding (to the extent otherwise included
therein) all non-recurring cash interest expense consisting of liquidated damages for failure to
timely comply with registration rights obligations and financing fees, as calculated on a
consolidated basis in accordance with GAAP, (b) for purposes of determining the Consolidated
Interest Coverage Ratio, if any Indebtedness is incurred (including pre-existing Indebtedness of
any Person that becomes a Restricted Subsidiary) or repaid in connection with the acquisition of an
Acquired Entity or Business or sale or disposition of a Sold Entity or Business, in each case
subsequent to the commencement of the period for which the Consolidated Interest Coverage Ratio is
being determined, then the Consolidated Interest Expense for such period shall be determined giving
pro forma effect to such incurrence or repayment of Indebtedness as if such incurrence or repayment
had occurred at the beginning of such period. For purposes of clause (b) of the foregoing (i) if
any Indebtedness bears a floating rate of interest and is being given pro forma effect, the
interest on such Indebtedness shall be calculated as if the rate in effect on the date of
incurrence had been the applicable rate for the entire period, (ii) interest on any Indebtedness
under a revolving credit facility computed on a pro forma basis shall be computed based upon the
average daily balance of such Indebtedness during the applicable period, and (iii) interest on
Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime
or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been
based upon the rate (including any applicable margin) actually chosen, or, if none, then based upon
such optional rate chosen as the Borrower may designate and (c) for the avoidance of doubt, all
interest expense of any Unrestricted Subsidiary and any Converted Unrestricted Subsidiary shall be
excluded from Consolidated Interest Expense for such period; provided that when determining
Consolidated Interest Expense of the Borrower in respect of any period ending prior to the first
anniversary of the Closing Date, Consolidated Interest Expense shall be calculated by multiplying
the aggregate Consolidated Interest Expense accrued since the Closing Date by 365 and then dividing
such product by the number of days from and including the Closing Date to and including the last
day of such period.



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



     “Consolidated Net Income”: for any period, the consolidated net income (or loss) of
the Borrower and its Restricted Subsidiaries, determined on a consolidated basis in accordance with
GAAP excluding, without duplication, (a) extraordinary items for such period, (b) the cumulative
effect of a change in accounting principles during such period, to the extent included in such net
income (loss), (c) Closing Costs and any amortization thereof thereafter, (d) any fees, costs and
expenses (including allocated internal costs and expenses) incurred during such period, or any
amortization thereof for such period, in connection with any actual or proposed acquisition,
investment, asset disposition, recapitalization, dividend, distribution, issuance or repayment of
Indebtedness, issuance of equity interests, refinancing transaction or amendment or modification of
any debt instrument (in each case, including any such transaction consummated prior to the Closing
Date and any such transaction not completed or initiated) and any charges or non-recurring merger
costs incurred during such period as a result of any such transaction, (e) the after-tax effect of
any income (or loss) for such period attributable to the early extinguishment of Indebtedness, (f)
the income (or deficit) of any Person accrued prior to the date it becomes a Restricted Subsidiary
of Borrower or is merged into or consolidated with Borrower or any of its Restricted Subsidiaries
(other than for purposes of calculating Consolidated Leverage Ratio and Consolidated Interest
Coverage Ratio hereunder, as set forth in the definition of Consolidated EBITDA), (g) the income
(or deficit) of any Person (other than a Restricted Subsidiary of the Borrower) in which the
Borrower or any of its Restricted Subsidiaries has an ownership interest, except to the extent that
any such income is actually received by the Borrower or such Restricted Subsidiary in the form of
dividends or similar distributions, and (h) the undistributed earnings of any non-Subsidiary
Guarantor of the Borrower to the extent that the declaration or payment of dividends or similar
distributions by such Restricted Subsidiary is not at the time permitted by the terms of any
Contractual Obligation (other than under any Loan Document) or Requirement of Law applicable to
such Subsidiary. There also shall be excluded from Consolidated Net Income for any period (without
duplication of the foregoing) the purchase accounting effects of adjustments to property and
equipment, other intangible assets, deferred revenue, lease contracts and debt line items required
or permitted by GAAP and related authoritative pronouncements (including the effects of such
adjustments pushed down to the Borrower and its Restricted Subsidiaries), as a result of any
acquisition consummated prior to the Closing Date, any Permitted Acquisitions, or the amortization
or write-off of any amounts thereof.



     “Consolidated Total Debt”: at any date, the excess of (a) the aggregate principal
amount of all Indebtedness of the Borrower and its Restricted Subsidiaries at such date, determined
on a consolidated basis, to the extent consisting of any Indebtedness for borrowed money, Capital
Lease Obligations or debt obligations evidenced by bonds, debentures or notes and, for the
avoidance of doubt, excluding any letters of credit, any Earnout Obligation until (I)(x) such
obligation becomes a liability on the balance sheet of such Person in accordance with GAAP, (y) the
amount of such obligation is contractually fixed and (z) the date (or dates) on which such
obligation is due is contractually fixed and (II)(A) such date that clauses (x), (y) and (z) are
satisfied with respect to such Earnout Obligation is more than 90 days in the future from that date
on which such clauses (x), (y) and (z) were satisfied or (B) such Earnout Obligation is overdue,
and any changes in GAAP which would classify any operating leases in accordance with GAAP in effect
as of the date hereof as Capital Lease Obligations, required to be reflected on a consolidated
balance sheet of the Borrower in accordance with GAAP minus (b) the aggregate amount of
unrestricted cash, cash that collateralizes Institutional L/C Exposure or Revolving L/C Exposure
and Cash Equivalents of the Borrower and the Subsidiary Guarantors (in each case, free and clear of
all Liens, other than nonconsensual Liens permitted by Section 7.3 or Liens permitted under Section
7.3(h), (j), (o), (bb) or (cc) or any other Lien on deposits securing any such Indebtedness) at
such date required to be reflected on a consolidated balance sheet of the Borrower in accordance
with GAAP; provided that, if a Defeasance is



-8-









 




consummated, the Existing Notes or any other defeased debt shall not be included in determining
Consolidated Total Debt.




     “Consolidated Working Capital”: at any date, the excess (or deficit) of Consolidated
Current Assets on such date over Consolidated Current Liabilities on such date;
provided that Consolidated Working Capital shall be calculated without giving effect to (i)
any assets or liabilities acquired or assumed in any Permitted Acquisition or other Investment,
(ii) as a result of the reclassification of items from short-term to long-term and vice-versa or
(iii) non-cash current assets and current liabilities.



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



     “Converted Restricted Subsidiary” has the meaning set forth in the definition of
Consolidated EBITDA.



     “Converted Unrestricted Subsidiary” has the meaning set forth in the definition of
Consolidated EBITDA.



     “Cumulative Excess Cash Flow”: as of any date, an amount equal to the excess, if any,
of (a) the sum of Excess Cash Flow for each fiscal year of the Borrower ended on or after September
30, 2011 (or in the case of the fiscal year ended September 30, 2011, from April 1, 2011 to
September 30, 2011), prior to such date for which audited financial statements have been delivered
pursuant to Section 6.1(a), over (b) the sum, with respect to each such fiscal year (or shorter
period in the case of the fiscal year ended September 30, 2011) for which Excess Cash Flow is
included in clause (a), of (i) the aggregate principal amount of all prepayments of Revolving Loans
and Swingline Loans made during such fiscal year (or such shorter period) to the extent
accompanying permitted optional reductions of the Revolving Commitments and (ii) the amount of cash
used for all optional prepayments of Tranche B Term Loans made during such fiscal year (or such
shorter period); provided that such excess of (a) over (b) shall not be less than zero for
any such fiscal year.



     “Debt Discharge”: (a) the payment in full of all loans outstanding under the Existing
Credit Agreement and all accrued and unpaid interest, fees and other amounts owing thereunder, the
termination of all commitments to extend credit thereunder and the release of all Liens securing
obligations thereunder, and (b) the consummation of a Successful Debt Tender or a Defeasance.



     “Debt Fund Affiliate”: any Person that is organized primarily for the purpose of
making debt investments in one or more companies and is a bona fide and diversified investment
fund.



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



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



     “Defaulting Lender”: any Lender, as determined by the Administrative Agent, that (a)
has failed to fund any portion of its Loans or participations in Letters of Credit or Swingline
Loans required to be funded by it hereunder within one Business Day of the date required to be
funded by it hereunder, (b) has notified the Administrative Agent, the Issuing Lender, the
Swingline Lender, any Lender and/or Borrower in writing that it does not intend to comply with any
of its funding obligations under this Agreement or has made a public statement to the effect that
it does not intend to comply with its funding obligations under this Agreement or under other
agreements in which it commits to extend credit, (c) has failed,



-9-









 




within three Business Days after request by the Administrative Agent, to confirm that it will
comply with the terms of this Agreement relating to its obligations to fund prospective Loans and
participations in then outstanding Letters of Credit and Swingline Loans, (d) has otherwise failed
to pay over to the Administrative Agent or any other Lender any other amount required to be paid by
it hereunder within three Business Days of the date when due, unless the subject of a good faith
dispute, or (e) in the case of a Lender that has a Commitment, Revolving L/C Exposure or Swingline
Exposure outstanding at such time, shall take, or is the Subsidiary of any person that has taken,
any action or be (or is) the subject of any action or proceeding of a type described in Section
8.1(f) (or any comparable proceeding initiated by a regulatory authority having jurisdiction over
such Lender or such person); provided, that (1) with respect to (a), (b) or (c), to the
extent such Lender is making a good faith claim that it has no obligation to fund because the
conditions to borrowing have not been met, then such Lender shall not be considered a Defaulting
Lender and (2) as of any date of determination, the determination of whether any Lender is a
Defaulting Lender hereunder shall not take into account, and shall not otherwise impair, any
amounts funded by such Lender which have been assigned by such Lender to a Conduit Lender pursuant
to Section 10.6(f).




     “Defeasance”: a covenant defeasance in respect of the Existing Notes pursuant to
Article 8 of the Existing Notes Indenture, a covenant defeasance in respect of the Senior Notes
Indenture pursuant to Article 8 of the Senior Notes Indenture or any similar covenant defeasance in
respect of other Indebtedness.



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



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



     “Disqualified Lender” as defined in Section 10.6(b)(ii)(E).



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



     “Domestic Subsidiary”: any Restricted Subsidiary of the Borrower incorporated or
organized in the United States, any State or the District of Columbia, but excluding any Subsidiary
that has no material assets other than the capital stock of one or more controlled foreign
corporations (within the meaning of Section 957(a) of the Code..



     “Earnout Obligations”: those payment obligations of the Borrower and its Restricted
Subsidiaries to former owners of businesses which were acquired by the Borrower or one of its
Restricted Subsidiaries pursuant to an acquisition which are in the nature of deferred purchase
price to the extent such payment obligations are required to be set forth on a balance sheet
prepared in accordance with GAAP.



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



     “Environmental Laws”: any and all foreign, Federal, state, local or municipal laws,
rules, orders, regulations, statutes, ordinances, codes, decrees, requirements of any Governmental
Authority or other



-10-









 




Requirements of Law (including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of the environment or of human health as affected by
exposure to harmful or deleterious substances, as now or may at any time hereafter be in effect.




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



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



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



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



     “Eurodollar Rate”: with respect to each day during each Interest Period pertaining to
a Eurodollar Loan, a rate per annum determined for such day in accordance with the following
formula (rounded upward to the nearest 1/100th of 1%); provided that the Eurodollar Rate
shall be deemed to be not less than 1.75% per annum:



Eurodollar Base Rate

     1.00 – Eurocurrency Reserve Requirements     





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



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



     “Excess Cash Flow”: for any period, (a) Consolidated Net Income for such period,
plus (b) if there was a net decrease in Consolidated Working Capital during such period,
the amount of such net decrease, plus (c) an amount equal to the amount of non-cash charges
to the extent deducted in arriving at such Consolidated Net Income, plus (d) non-cash
losses from asset sales for such period (other than from sales in the ordinary course of business)
to the extent deducted in arriving at such Consolidated Net Income, minus (e) regularly
scheduled payments and mandatory prepayments of the principal of any



-11-









 




Indebtedness during such period (other than any such payments and prepayments of principal of
Indebtedness made with the proceeds of any issuance of Capital Stock or other Indebtedness incurred
by the Borrower or any of its Restricted Subsidiaries), but only to the extent (other than with
respect to the Mortgage Facility) that any such prepaid amounts cannot by their terms be reborrowed
or redrawn and do not occur in connection with a refinancing of all or any portion of such
Indebtedness for such period, minus (f) without duplication of amounts deducted pursuant to
clause (o) below in prior fiscal years, Capital Expenditures (other than Capital Expenditures
financed with Indebtedness permitted hereunder (other than Revolving Loans or Swingline Loans) and
other Excluded Capital Expenditures) permitted to be made during such period, minus (g)
without duplication of amounts deducted pursuant to clause (o) below in prior fiscal years, the
cash portion of consideration for Permitted Acquisitions and other Investments permitted hereunder
(other than consideration for Permitted Acquisitions and other Investments financed with
Indebtedness (other than Revolving Loans or Swingline Loans) or issuances of Capital Stock
permitted hereunder) for such period or payable within 30 days of the end of such period
(provided that amounts so deducted shall not be deducted in any subsequent period),
minus (h) non-cash gains from asset sales for such period (other than from sales in the
ordinary course of business) to the extent included in arriving at such Consolidated Net Income,
minus (i) if there was a net increase in Consolidated Working Capital during such period
the amount of such net increase, minus (j) an amount equal to the amount of all non-cash
credits included in arriving at such Consolidated Net Income and cash charges included in clauses
(a) through (e) of the definition of Consolidated Net Income, minus (k) cash payments by
the Borrower and its Restricted Subsidiaries during such period in respect of long-term liabilities
of the Borrower and its Restricted Subsidiaries other than Indebtedness (other than cash payments
in respect of claims offset by receivables from insurance companies), minus (l) the amount
of cash Restricted Payments paid during such period pursuant to (x) Section 7.6(b), (c), (h) or (i)
or (y) Section 7.6(j)(i) and (iii) to the extent such Restricted Payments were financed with
internally generated cash flow of the Borrower and its Restricted Subsidiaries or with the proceeds
of Revolving Loans or Swingline Loans, minus (m) the aggregate amount of expenditures
actually made by the Borrower and its Restricted Subsidiaries in cash during such period (including
expenditures for the payment of financing fees) to the extent that such expenditures are not
expensed during such period, except to the extent financed with the proceeds of Indebtedness (other
than Revolving Loans or Swingline Loans) or Capital Stock of Holdings, the Borrower or its
Restricted Subsidiaries, minus (n) the aggregate amount of any premium, make-whole or
penalty payments actually paid in cash by the Borrower and its Restricted Subsidiaries during such
period that are required to be made in connection with any prepayment of Indebtedness,
minus (o) without duplication of amounts deducted from Excess Cash Flow in prior periods,
the aggregate consideration (excluding any such consideration intended to be financed with
Indebtedness (other than Revolving Loans or Swingline Loans) or issuances of Capital Stock)
required to be paid in cash by the Borrower or any of its Restricted Subsidiaries pursuant to
binding contracts (the “Contract Consideration”) entered into prior to or during such
period relating to Permitted Acquisitions or Capital Expenditures to be consummated or made during
the period of two consecutive fiscal quarters of the Borrower following the end of such period,
minus (p) any amounts of income or cash or cash equivalents distributed with the Post-Acute
Specialty Rehabilitation Services segment or business in the year that the SRS Distribution is
consummated, provided that to the extent the aggregate amount of internally generated cash
and proceeds of Revolving Loans or Swingline Loans actually utilized to finance such Permitted
Acquisitions during such period of two consecutive fiscal quarters is less than the Contract
Consideration, the amount of such shortfall shall be added to the calculation of Excess Cash Flow
at the end of such period of two consecutive fiscal quarters, plus (p) without duplication,
an amount equal to all cash amounts received during such period but excluded in arriving at such
Consolidated Net Income pursuant to any of clauses (a) through (e) of the definition of
Consolidated Net Income, minus (q) cash payments made during such period in respect of Earnout
Obligations, to the extent such Earnout Obligations were not deducted in calculating Excess Cash
Flow for such period or any prior period, minus (r) voluntary prepayments of Indebtedness
other than the Term Loans or Revolving Loans (in the case of revolving loans (including swingline
loans), to the extent accompanied by permanent reduction in commitments), minus (s) without
duplication, an amount equal to all charges or expenses






-12-









 







 incurred during such period but excluded in arriving at such Consolidated Net Income
pursuant to any of clauses (a) through (e) of the definition of Consolidated Net Income.




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



     “Exchange Act”: the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the SEC promulgated thereunder.



     “Excluded Capital Expenditures”: all Capital Expenditures:




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




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




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




     (iv) made with the Net Cash Proceeds (Not Otherwise Applied) of an issuance after the
Closing Date of Capital Stock of Borrower, Holdings or a direct or indirect parent company
of Holdings.



     “Existing Credit Agreement”: the Credit Agreement dated as of June 29, 2006, as
amended, among the Borrower, NMH Holdings, LLC, the lenders party thereto, JPMorgan Chase Bank,
N.A., as administrative agent, and the documentation agents and syndication agent referred to
therein.



     “Existing Notes”: the Borrower’s existing 111/4% Senior Subordinated Notes due 2014 and
NMH Holdings, Inc.’s Senior Floating Rate Toggle Notes due 2014.



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



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



     “Facility”: each of (a) the Tranche B Term Commitments and the Tranche B Term Loans
made thereunder (the “Tranche B Term Facility”) and (b) the Revolving Commitments and the
extensions of credit made thereunder (the “Revolving Facility”).



     “FATCA”: current Sections 1471 through 1474 of the Code (and any successor version
that is substantively comparable) and the United States Treasury Regulations or published guidance
with respect thereto.



     “Federal Funds Effective Rate”: for any day, the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve System arranged by federal
funds brokers, as



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published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the average of the quotations for
the day of such transactions received by the Administrative Agent, from three federal funds brokers
of recognized standing selected by it.




     “Fee Payment Date”: (a) the third Business Day following the last day of each March,
June, September and December, (b) the last day of the Revolving Commitment Period or any earlier
date on which the Revolving Commitments are terminated and there is no remaining Revolving
Extension of Credit (in the case of fees payable in respect of the Revolving Facility or any
Revolving Extension of Credit).



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



     “Flood Determination”: as defined in Section 6.9(b).



     “Flood Insurance Laws”: collectively, (i) the National Flood Insurance Act of 1968 as
now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster Protection Act
of 1973 as now or hereafter in effect or any successor statute thereto, (iii) the National Flood
Insurance Reform Act of 1994 as now or hereafter in effect or any successor statute thereto and
(iv) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute
thereto.



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



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



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



     “GAAP”: generally accepted accounting principles in the United States as in effect
from time to time, except that for purposes of the definitions of Excess Cash Flow, Cumulative
Excess Cash Flow and Section 7.1, GAAP shall be determined on the basis of such principles in
effect on the date hereof and consistent with those used in the preparation of the most recent
audited financial statements referred to in Section 4.1(b). Anything in this Agreement to the
contrary notwithstanding, any obligation of a Person under a lease (whether existing now or entered
into in the future) that is not (or would not be) required to be classified and accounted for as a
capital lease on the balance sheet of such Person under GAAP as in effect at the time such lease is
entered into shall not be treated as a capital lease solely as a result of (x) the adoption of any
changes in, or (y) changes in the application of, GAAP after such lease is entered into.



     “Governmental Authority”: any nation or government, any state or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body, court, central bank
or other entity



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exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or
pertaining to government, any securities exchange and any self-regulatory organization (including
the National Association of Insurance Commissioners).




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



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



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



     “Guarantors”: the collective reference to Holdings and the Subsidiary Guarantors.
“Holdings” as defined in the preamble hereto.



     “Holdings”: as defined in the preamble hereto.



     “Incremental Amendment”: as defined in Section 2.25.



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



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



     “Indebtedness”: of any Person at any date, without duplication, (a) all indebtedness
of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase
price of property or services (other than current trade payables and accrued expenses incurred in
the ordinary course of such Person’s business), (c) all obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments, (d) all indebtedness created or arising
under any conditional sale or other title retention agreement with respect to property acquired by
such Person (even though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such



-15-









 




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




     “Initial Mortgaged Properties”: the real properties identified as Initial Mortgaged
Properties on Schedule 4.8.



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



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



     “Insolvent”: pertaining to a condition of Insolvency.



     “Institutional L/C Collateral Account”: a blocked account maintained at the Issuing
Lender of Institutional Letters of Credit under its sole dominion and control that has been funded
with the proceeds of cash from the Borrower.



     “Institutional L/C Collateral Account Agreement”: an agreement among, and in form and
substance satisfactory to, the Issuing Lender of Institutional Letters of Credit, the
Administrative Agent and Borrower, which shall provide for, among other things, the administration
of the Institutional L/C Collateral Account and the granting and perfection of the Issuing Lender’s
Lien on the Institutional L/C Collateral Account, the amounts therein, and the proceeds and
products thereof.



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



     “Institutional L/C Exposure”: at any time an amount equal to the sum of (a) the
aggregate then undrawn and unexpired amount of the then outstanding Institutional Letters of Credit
and (b) the



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aggregate amount of Institutional L/C Disbursements that have not then been reimbursed by or on
behalf of the Borrower.




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



     “Institutional Letters of Credit”: at any time, Letters of Credit designated as
Institutional Letters of Credit in an amount equal to the lesser of (a) 95.2381% of the amount of
funds deposited in the Institutional L/C Collateral Account at such time and (b) the aggregate then
undrawn and unexpired amount of such then outstanding Letters of Credit at such time. Letters of
Credit will from time to time be deemed to be Institutional Letters of Credit or Revolving Letters
of Credit in accordance with Section 3.1(c).



     “Institutional Letter of Credit Fee Letter”: the fee letter dated February 9, 2011,
among the Borrower and UBS AG, Stamford Branch, as the issuing lender for the Institutional Letters
of Credit.



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



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



     “Interest Payment Date”: (a) as to any ABR Loan (other than any Swingline Loan), the
last day of each March, June, September and December to occur while such Loan is outstanding and
the final maturity date of such Loan, (b) as to any Eurodollar Loan having an Interest Period of
three months or less, the last day of such Interest Period, (c) as to any Eurodollar Loan having an
Interest Period longer than three months, each day that is three months, or a whole multiple
thereof, after the first day of such Interest Period and the last day of such Interest Period, (d)
as to any Loan (other than any Revolving Loan that is an ABR Loan and any Swingline Loan), the date
of any repayment or prepayment made in respect thereof and (e) as to any Swingline Loan, the day
that such Loan is required to be repaid.



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




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



-17-









 






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




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




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



     “Investments”: as defined in Section 7.8.



     “Issuing Lender”: UBS AG, Stamford Branch, or any affiliate thereof or, in the case
of a Revolving Letter of Credit, any other Lender approved by the Administrative Agent.



     “Joint Bookrunners”: UBS Securities LLC, Barclays Capital, the investment banking
division of Barclays Bank PLC, and Jefferies Finance LLC.



     “Joint Lead Arrangers”: UBS Securities LLC, Barclays Capital, the investment banking
division of Barclays Bank PLC, Jefferies Finance LLC and GE Capital Markets, Inc..



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



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



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



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



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



     “Loan Documents”: this Agreement, the Security Documents, the Notes, except for
purposes of Section 10.1, the Institutional L/C Collateral Account Agreement and Institutional
Letter of Credit Fee Letter and any amendment, waiver, supplement or other modification to any of
the foregoing.



     “Loan Modification Offer”: as defined in Section 10.1.



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



     “Majority Facility Lenders”: (a) with respect to the Tranche B Term Facility, the
holders of more than 50% of the aggregate unpaid principal amount of the Tranche B Term Loans (b)
with respect to the



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Revolving Facility, the holders of more than 50% of the Total Revolving Commitments (or, if
the Revolving Commitments have terminated, the holders of more than 50% of the Total Revolving
Extensions of Credit); and (c) with respect to the Incremental Term Loans, the holders of more than
50% of the aggregate unpaid principal amount of the Incremental Term Loans; provided that
the Tranche B Term Loans, the Incremental Term Loans, the Revolving Commitments and the Revolving
Extensions of Credit of any Defaulting Lender shall be excluded for the purposes of making a
determination of Majority Facility Lenders.




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



     “Management Agreement”: the management agreement dated June 29, 2006, between the
Sponsor and the Borrower, as amended, modified, supplemented or replaced.



     “Management Fees”: as defined in Section 7.10.



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



     “Material Adverse Effect”: a material adverse effect on (a) the business, property,
operations or financial condition of the Borrower and its Subsidiaries taken as a whole, (b) the
ability of any Loan Party to perform its material payment obligations under the Loan Documents to
which it is a party or (c) the validity or enforceability of this Agreement, the Notes, Section 2
of the Guarantee and Security Agreement, or, taken as a whole, any of the other Loan Documents, or
the rights or remedies of the Administrative Agent or the Lenders under this Agreement, the Notes
or, taken as whole, the other Loan Documents.



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



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



     “Mortgage Facility”: any facility entered into by the Borrower or any Subsidiary the
proceeds of which are secured by the Mortgage Facility Properties.



     “Mortgage Facility Properties”: the real properties identified on Schedule 1.1C.



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



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



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



-19-









 





     “Net Cash Proceeds”: (a) in connection with any Asset Sale, Sale Leaseback
Transaction or any Recovery Event, the proceeds thereof in the form of cash and Cash Equivalents
(including any such proceeds received by way of deferred payment of principal pursuant to a note or
installment receivable or purchase price adjustment receivable or otherwise, but only as and when
received), net of attorneys’ fees, accountants’ fees, investment banking fees, amounts required to
be applied to the repayment of Indebtedness (including, without limitation, principal, interest,
premium and penalties, if any) secured by a Lien expressly permitted hereunder on any asset that is
the subject of such Asset Sale, Sale Leaseback Transaction or Recovery Event (other than any Lien
pursuant to a Security Document) and other related fees and expenses actually incurred in
connection therewith and net of taxes paid or reasonably estimated to be payable as a result
thereof and net of (i) any reasonable reserves established in connection therewith, (ii) reasonable
holdbacks and (iii) reasonable indemnity obligations relating thereto, and (b) in connection with
any issuance or sale of Capital Stock or any incurrence of Indebtedness, the cash proceeds received
from such issuance or incurrence, net of attorneys’ fees, investment banking fees, accountants’
fees, underwriting discounts and commissions and other related fees and expenses actually incurred
in connection therewith.



     “Non-Debt Fund Affiliate”: an Affiliate of the Borrower that is not a Debt Fund
Affiliate or a Purchasing Borrower Party.



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



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



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



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



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



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



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



-20-









 




Management Obligations or any other document made, delivered or given in connection herewith or
therewith, whether on account of principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses (including all fees, charges and disbursements of counsel to the Administrative
Agent or to any Lender that are required to be paid by the Borrower pursuant hereto) or otherwise.




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



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



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



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




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




     (b) the Acquisition must not be of a hostile nature, the Target must be engaged
primarily in a business that complies with Section 7.16 and if Target or any of its
Subsidiaries operate outside of the United States, after giving effect to such acquisition,
the consolidated assets of the Borrower and the Restricted Subsidiaries located outside the
United States shall not exceed 5% of the total consolidated assets of the Borrower and the
Restricted Subsidiaries;




     (c) no Event of Default shall have occurred and be continuing or would result from such
Acquisition;




     (d) without limiting the generality of the foregoing, after giving effect to such
Acquisition (including any Indebtedness resulting therefrom or incurred in connection
therewith), the Borrower shall be in compliance with the provisions of Section 7.1,
calculated on a pro forma basis as of the end of the quarter most recently ended prior to
the date of such Acquisition for which financial statements have been delivered pursuant to
Section 6.1 (calculated as though all Indebtedness resulting from or incurred in connection
with such Permitted Acquisition had been incurred at the beginning of the relevant four
quarter period, in the case of Section 7.1(b)) and, unless such Acquisition involves total
consideration (including Indebtedness resulting therefrom pursuant to Section 7.2(g)) of
$20,000,000 or less, prior to the closing of such Acquisition, the Borrower shall provide to
the Administrative Agent a certificate signed by a Responsible Officer demonstrating such
compliance in reasonable detail; and



-21-









 






     (e) after giving effect to such Acquisition, the Available Revolving Commitment plus
the amount of unrestricted cash and Cash Equivalents then owned by Borrower and its
Restricted Subsidiaries shall not be less than $20,000,000.



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



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



     “Permitted Amendments”: as defined in Section 10.1.



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



     “Permitted Disposition”: (i) any sale or discount of past due isolated accounts
receivable in the ordinary course of business; (ii) (x) any lease as lessor (under a short term
lease) or license as licensor of isolated parcels of real property or isolated items of personal
property (including Intellectual Property) in the ordinary course of business and (y) any grant of
options to purchase, lease or acquire isolated parcels of real property or isolated items of
personal property (including Intellectual Property) in the ordinary course of business; (iii) any
sale or exchange of isolated specific items of equipment, so long as the purpose of each sale or
exchange is to acquire (and results within 360 days of such sale or exchange in the acquisition of)
replacement items of equipment which are, in the reasonable business judgment of the Borrower and
its Restricted Subsidiaries, the functional equivalent of the item of equipment so sold or
exchanged and provided Administrative Agent has at all times after such acquisition a perfected
Lien in the replacement property with the same priority or better than the equipment being sold or
exchanged; and (iv) any Permitted SRS Distribution.



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



     “Permitted Liens”: Liens permitted by Section 7.3.



     “Permitted Refinancing Indebtedness”: Indebtedness of the Borrower or any Restricted
Subsidiary issued or incurred (including by means of the extension or renewal of existing
Indebtedness) to refinance, refund, extend or renew existing Indebtedness (“Refinanced
Indebtedness”); provided, that (a) the principal amount (or accreted value, if
applicable) of such refinancing, refunding, extending or renewing Indebtedness is not greater than
the sum of (i) the principal amount (or accreted value, if applicable) of



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such Refinanced Indebtedness plus (ii) an amount equal to unpaid accrued interest and premium
thereon and fees and expenses reasonably incurred in connection with such refinancing, refunding,
extension or renewal, plus (iii) if the Refinanced Indebtedness was extended under a committed
financing arrangement and any such commitments remain unutilized at the time, the amount of such
unutilized commitments, but only to the extent that Indebtedness could be incurred thereunder at
the time in compliance with the terms thereof and of this Agreement, plus (iv) an amount equal to
any other permitted available basket, (b) such refinancing, refunding, extending or renewing
Indebtedness has a final maturity that is no sooner than the final maturity of, and a weighted
average life to maturity that is no shorter than the remaining weighted average life of, such
Refinanced Indebtedness, (c) if such Refinanced Indebtedness or any Guarantees thereof are
subordinated to the Obligations (other than the Specified Swap Agreements and Cash Management
Obligations), such refinancing, refunding, extending or renewing Indebtedness and any Guarantees
thereof remain so subordinated on terms no less favorable to the Lenders, (d) the obligors in
respect of such Refinanced Indebtedness immediately prior to such refinancing, refunding, extending
or renewing are the only obligors on such refinancing, refunding, extending or renewing
Indebtedness (except in connection with an acquisition) and (e) such refinancing, refunding,
extending or renewing Indebtedness contains mandatory redemption (or similar provisions), covenants
and events of default and is benefited by Guarantees, if any, which, taken as a whole, are on
market terms (it being understood that Permitted Refinancing Indebtedness incurred under clause (r)
or (s) of Section 7.2 must satisfy the requirements set forth therein); provided,
further, however, that Permitted Refinancing Indebtedness shall not include (i)
Indebtedness of a Restricted Subsidiary that refinances Indebtedness of the Borrower or (ii)
Indebtedness of the Borrower or a Subsidiary Guarantor that refinances Indebtedness of a Restricted
Subsidiary that is not a Subsidiary Guarantor.




     “Permitted SRS Distribution”: an SRS Distribution (i) if the Consolidated Leverage
Ratio, determined on a pro forma basis as of the last day of the most recent fiscal quarter for
which financial statements are available (including any repayment of Indebtedness in connection
with such SRS Distribution), shall not exceed 3.0 to 1.0, (ii) if the Consolidated Leverage Ratio
and the Consolidated Interest Coverage Ratio, determined on a pro forma basis as of the last day of
the most recent fiscal quarter for which financial statements are available (including any
repayment of Indebtedness in connection with such SRS Distribution), shall not exceed the maximum
Consolidated Leverage Ratio or be less than the minimum Consolidated Interest Coverage Ratio,
respectively, permitted as of the end of the most recently ended fiscal quarter for which financial
statement are available pursuant to Section 7.1, (iii) both before and after giving effect to the
SRS Distribution, no Default or Event of Default shall have occurred or be continuing, and (iv)
after giving effect to the SRS Distribution, substantially all of the liabilities primarily
relating to the Post-Acute Specialty Rehabilitation Services segment or business of the Borrower
and its Subsidiaries are assumed by the Person whose equity interests are being distributed (or
the Borrower and its Subsidiaries are indemnified for such liabilities).



     “Permitted Start-Up Losses”: in respect of any period, any loss for such period
directly attributable to the operations of a separately identifiable business unit of a Loan Party
or an Acquired Entity or Business which business unit commenced operations or Acquired Entity or
Business was acquired within 18 months prior to the last day of such period; provided that
the aggregate amount of all such losses (for all such business units) that are treated as Permitted
Start-Up Losses for any period of four consecutive fiscal quarters shall not exceed $6,000,000.



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



     “Plan”: at a particular time, any employee benefit plan that is covered by ERISA and
in respect of which the Borrower or a Commonly Controlled Entity is (or, if such plan were
terminated at such time,



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would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.




     “Prime Rate”: for any day, a rate per annum that is equal to the corporate base rate
of interest established by the Administrative Agent from time to time; each change in the Prime
Rate shall be effective on the date such change is effective. The corporate base rate is not
necessarily the lowest rate charged by the Administrative Agent to its customers.



     “Pro Forma Adjustments”: (a) to the extent (i) factually supportable and certified by
the chief financial officer of the Borrower in detail reasonably acceptable to the Administrative
Agent, and (ii) realizable (or a plan for realization has been established) within 180 days after
the applicable Acquisition or conversion, cost savings reasonably expected to result from
operational efficiencies expected to be created by employee terminations, facilities consolidations
and closings, standardization of employee benefits and compensation policies, consolidation of
property, casualty and other insurance coverage and policies, reductions in taxes other than income
taxes and other cost savings reasonably expected to be realized for such period from all
acquisitions of an acquired entity or business or (b) in the case of any Acquisition of an Acquired
Entity or Business for which the actual Acquired EBITDA cannot be determined due to the absence of
reliable financial statements, an adjustment pursuant to clause (A) of the last sentence of the
definition of Consolidated EBITDA (in lieu of the actual Acquired EBITDA for such Acquired Entity
or Business and any adjustments pursuant to clause (a) above), equal to the Acquired EBITDA for
such Acquired Entity or Business for the relevant period preceding the date of such Acquisition, as
estimated in good faith by the chief financial officer of the Borrower based upon the facts
applicable to the Acquired Entity or Business as of the date of such Acquisition (as though such
facts applied during the period preceding such date), and set forth in a schedule, in detail
reasonably acceptable to the Administrative Agent, identifying the facts (and any relevant
assumptions) upon which such estimate is based and the calculation of such estimate, and certified
by such chief financial officer to be prepared in good faith; provided, however,
that clause (b) above shall not apply for any Acquisition involving an Acquired Entity or Business
with Acquired EBITDA that would exceed $4,000,000 for a period of four consecutive fiscal quarters.



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



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



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



     “Purchasing Borrower Party”: the Borrower or any Subsidiary of the Borrower that
becomes an Assignees or Participant pursuant to Section 10.6(g).



     “Recovery Event”: any settlement of or payment in respect of any property or casualty
insurance claim or any condemnation proceeding relating to any asset of any Loan Party, in excess
of $5,000,000 in the aggregate for all such amounts in any fiscal year.



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



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



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



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



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



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



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



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



     “Reinvestment Prepayment Amount”: with respect to any Reinvestment Event, the
Reinvestment Deferred Amount relating thereto less any amount expended prior to the relevant
Reinvestment Prepayment Date to acquire or repair assets to be used in the Borrower’s or any
Subsidiary’s business or in connection with a Permitted Acquisition or Capital Expenditure.



     “Reinvestment Prepayment Date”: with respect to any Reinvestment Event, the earlier
of (a) the date occurring 365 days after such Reinvestment Event and (b) the date on which the
Borrower shall have determined not to, or shall have otherwise ceased to, acquire or repair assets
to be used and useful in the Borrower’s or any Subsidiary’s business or make Permitted
Acquisitions, Investments permitted hereunder or Capital Expenditures with all or any portion of
the relevant Reinvestment Deferred Amount.



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



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



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



     “Required Lenders”: at any time, the holders of more than 50% of (a) until the
Closing Date, the Commitments then in effect and (b) thereafter, the sum of (i) the aggregate
unpaid principal amount of the Tranche B Term Loans and Incremental Term Loans then outstanding and
(ii) the Total Revolving Commitments then in effect or, if the Revolving Commitments have been
terminated, the Total Revolving Extensions of Credit then outstanding.



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



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



     “Restricted Payments”: as defined in Section 7.6.



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



     “Revolving Commitment”: as to any Lender, the obligation of such Lender, if any, to
make Revolving Loans and participate in Swingline Loans and Revolving Letters of Credit in an
aggregate principal and/or face amount not to exceed the amount set forth under the heading
“Revolving Commitment” opposite such Lender’s name on Schedule 1.1A or in the Assignment and
Assumption pursuant to which such Lender became a party hereto, as the same may be changed from
time to time pursuant to the terms hereof. The original amount of the Total Revolving Commitments
is $75,000,000.



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



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



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



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



     “Revolving L/C Commitment”: $25,000,000.



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



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



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



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



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



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



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



     “Revolving Termination Date”: February 9, 2016.



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



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



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



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



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



     “Senior Notes”: the $250,000,000 aggregate principal amount of senior notes of the
Borrower issued on the Closing Date pursuant to the Senior Note Indenture.



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



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



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



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



     “Specified Swap Agreement”: any Swap Agreement entered into by the Borrower and any
Lender or affiliate thereof (or was a Lender or an Affiliate of a Lender at the time such Swap
Agreement was entered into).



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



     “SRS Distribution”: one or more dividends or distributions to the equity holders of
Holdings by the Borrower and Holdings (and any of its Subsidiaries) of equity interests in or
assets of one or more Subsidiaries of Holdings substantially all of whose assets are comprised of
assets of the Post-Acute Specialty Rehabilitation Services segment or business of the Borrower and
its Subsidiaries.



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



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



     “Successful Debt Tender”: a Debt Tender that results in the tender and purchase of,
and receipt of consents in respect of, an aggregate amount of Existing Notes necessary to modify
the Existing Notes Indentures to remove certain restrictive provisions thereof.



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



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



     “Swingline Exposure”: an obligation to make a Revolving Loan pursuant to Section
2.7(b).



     “Swingline Lender”: UBS Loan Finance LLC, in its capacity as the lender of Swingline
Loans.



     “Swingline Loans”: as defined in Section 2.6(a).



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     “Swingline Participation Amount” as defined in Section 2.7(c).



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



     “Target”: any Person or any division or line of business of a Person, more than 80%
of the outstanding Capital Stock or all or substantially all of the assets (or any substantial part
for which financial statements or other customary financial information is available) of which
(together with any existing owned interests or assets), are proposed to be acquired by the Borrower
or any of the Restricted Subsidiaries in connection with a Permitted Acquisition.



     “Term Loans”: the Incremental Term Loans and the Tranche B Term Loans.



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



     “Total Assets”: at any date, the total amount of assets of Borrower and its
consolidated subsidiaries as of the end of the month immediately preceding such date.



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



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



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



     “Tranche B Maturity Date”: February 9, 2017.



     “Tranche B Term Commitment”: as to any Lender, the obligation of such Lender, if any,
to make a Tranche B Term Loan to the Borrower on the Closing Date in a principal amount not to
exceed the amount set forth under the heading “Tranche B Term Commitment” opposite such Lender’s
name on Schedule 1.1A, as the same may be reduced pursuant to the terms hereof. The original
aggregate amount of the Tranche B Term Commitments is $530,000,000.



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



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



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



     “Transaction Bonuses”: any bonuses payable to any officer or employee of Holdings or
any of its Subsidiaries (including any Person who becomes an officer or employee of any Group
Member in connection with a Permitted Acquisition) in connection with any Permitted Acquisition in
an aggregate amount not exceeding $2,000,000 in any four fiscal quarter period most recently ended.



     “Transactions”: the payment of the Closing Costs, the Debt Discharge, the Financing
Transactions and the other transactions contemplated thereby.



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     “Transferee”: any Assignee or Participant.



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



     “United States”: the United States of America.



     “Unrestricted Subsidiary”: (a) any Subsidiary of an Unrestricted Subsidiary and (b)
any Subsidiary of the Borrower designated by the board of directors of the Borrower as an
Unrestricted Subsidiary pursuant to Section 6.11 subsequent to the date hereof.



     “Voting Stock”: of any Person as of any date, the Capital Stock of such Person that
is at the time entitled to vote in the election of the board of directors of such Person.



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



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



     1.2 Other Definitional Provisions.



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




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




          (c) The words “hereof”, “herein” and “hereunder” and words of similar import, when used in
this Agreement, shall refer to this Agreement as a whole and not to any particular provision of
this Agreement, and Section, Schedule and Exhibit references are to this Agreement unless otherwise
specified.




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







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SECTION 2




AMOUNT AND TERMS OF COMMITMENTS



     2.1 Tranche B Term Commitments.



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




          (b) [Reserved].




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




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



     2.3 Repayment of Tranche B Term Loans. The Borrower shall repay the Tranche B Term
Loans in installments on each March 31, June 30, September 30 and December 31 of each year,
commencing with June 30, 2011 and ending with the Tranche B Maturity Date, in an aggregate
principal amount equal to (i) in the case of each such installment due prior to the Tranche B
Maturity Date, 0.25% of the aggregate principal amount of Tranche B Term Loans made prior to such
scheduled payment date and (ii) in the case of the installment due on the Tranche B Maturity Date,
the entire remaining balance of the Tranche B Term Loans; provided that any such
installment may be reduced as a result of a prepayment in accordance with Section 2.17(b).



     2.4 Revolving Commitments.



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







-31-









 








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




     2.5 Procedure for Revolving Loan Borrowing. The Borrower may borrow under the
Revolving Commitments during the Revolving Commitment Period on any Business Day, provided
that the Borrower shall give the Administrative Agent irrevocable notice, substantially in the form
of Exhibit H (which notice must be received by the Administrative Agent prior to (a) 12:00 Noon,
New York City time, three Business Days prior to the requested Borrowing Date, in the case of
Eurodollar Loans, or (b) 10:00 A.M., New York City time, on or prior to the same day as the
requested Borrowing Date, in the case of ABR Loans), specifying (i) the amount and Type of
Revolving Loans to be borrowed, (ii) the requested Borrowing Date and (iii) in the case of
Eurodollar Loans, the respective amounts of each such Type of Loan and the respective lengths of
the initial Interest Period therefor. Each borrowing under the Revolving Commitments shall be in
an amount equal to (x) in the case of ABR Loans, $500,000 or a whole multiple of $100,000 over such
amount (or, if the then aggregate Available Revolving Commitments are less than $500,000, such
lesser amount) and (y) in the case of Eurodollar Loans, $1,000,000 or a whole multiple of $100,000
in excess thereof; provided, that the Swingline Lender may request, on behalf of the
Borrower, borrowings under the Revolving Commitments that are ABR Loans in other amounts pursuant
to Section 2.7. Upon receipt of any such notice from the Borrower, the Administrative Agent shall
promptly notify each Revolving Lender thereof. Each Revolving Lender will make the amount of its
pro rata share of each borrowing available to the Administrative Agent for the account of the
Borrower at the Funding Office prior to 12:00 Noon, New York City time, on the Borrowing Date
requested by the Borrower in funds immediately available to the Administrative Agent. Such
borrowing will then be made available to the Borrower by the Administrative Agent crediting the
account of the Borrower on the books of such office with the aggregate of the amounts made
available to the Administrative Agent by the Revolving Lenders and in like funds as received by the
Administrative Agent.



     2.6 Swingline Commitment.



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




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




     2.7 Procedure for Swingline Borrowing; Refunding of Swingline Loans.



          (a) Whenever the Borrower desires that the Swingline Lender make Swingline Loans it shall give
the Swingline Lender irrevocable telephonic notice confirmed promptly in writing (which






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




          (b) The Swingline Lender, at any time and from time to time in its sole and absolute
discretion may, on behalf of the Borrower (which hereby irrevocably directs the Swingline Lender to
act on its behalf), by written notice given no later than 10:00 A.M., New York City time, on any
Business Day request each Revolving Lender to make, and each Revolving Lender hereby agrees to
make, a Revolving Loan, in an amount equal to such Revolving Lender’s Revolving Percentage of the
aggregate amount of the Swingline Loans (the “Refunded Swingline Loans”) outstanding on the
date of such notice, to repay the Swingline Lender. Each Revolving Lender shall make the amount of
such Revolving Loan available to the Administrative Agent at the Funding Office in immediately
available funds, upon receipt of notice as provided above. The proceeds of such Revolving Loans
shall be immediately made available by the Administrative Agent to the Swingline Lender for
application by the Swingline Lender to the repayment of the Refunded Swingline Loans. The Borrower
irrevocably authorizes the Swingline Lender to charge the Borrower’s accounts with the
Administrative Agent, if any (up to the amount available in each such account), in order to
immediately pay the amount of such Refunded Swingline Loans to the extent amounts received from the
Revolving Lenders are not sufficient to repay in full such Refunded Swingline Loans, on a weekly
basis or as otherwise determined by the Administrative Agent.




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




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




          (e) Each Revolving Lender’s obligation to make the Loans referred to in Section 2.7(b) and to
purchase participating interests pursuant to Section 2.7(c) shall be absolute and






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unconditional and shall not be affected by any circumstance, including (i) any setoff, counterclaim,
recoupment, defense or other right that such Revolving Lender or the Borrower may have against the
Swingline Lender, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence
or continuance of a Default or an Event of Default or the failure to satisfy any of the other
conditions specified in Section 5, (iii) any adverse change in the condition (financial or
otherwise) of the Borrower, (iv) any breach of this Agreement or any other Loan Document by the
Borrower, any other Loan Party or any other Revolving Lender or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing; provided
that a Revolving Lender shall not be required to make a Loan referred to in Section 2.7(b) or to
purchase a participation in a Swingline Loan pursuant to Section 2.7(c) if (x) a Default shall have
occurred and was continuing at the time such Swingline Loan was made and (y) such Revolving Lender
shall have notified the Swingline Lender in writing, not less than one Business Day before such
Swingline Loan was made, that such Default has occurred and that such Revolving Lender will not
refund or participate in any Swingline Loans made while such Default exists.




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



     2.9 Termination or Reduction of Commitments.



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




          (b) [Reserved]




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




     2.10 Optional Prepayments. The Borrower may at any time and from time to time prepay
the Loans, in whole or in part, without premium or penalty, upon notice (which may be conditional)
delivered to the Administrative Agent no later than 12:00 Noon, New York City time, three Business
Days prior thereto, in the case of Eurodollar Loans, and no later than 12:00 Noon, New York City
time, one Business Day prior thereto, in the case of ABR Loans (or on the same day in the case of
Swingline Loans), which notice shall specify the date and amount of prepayment and whether the
prepayment is of Eurodollar Loans or ABR Loans; provided, that if a Eurodollar Loan is
prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower
shall also pay any amounts owing pursuant to Section 2.20. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender thereof. If any such notice is
given, the amount specified in such notice shall be due and payable on the date specified therein,
together with (except in the case of Revolving Loans that are ABR



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Loans and Swingline Loans) accrued interest to such date on the amount prepaid. Partial
prepayments of Tranche B Term Loans and Revolving Loans shall be in an aggregate principal amount
of $1,000,000 or a whole multiple thereof. Partial prepayments of Swingline Loans shall be in an
aggregate principal amount of $100,000 or a whole multiple thereof.




     2.11 Mandatory Prepayments.



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




          (b) If on any date any Loan Party shall receive Net Cash Proceeds from any Asset Sale, Sale
Leaseback Transaction or Recovery Event, then, unless a Reinvestment Notice shall be delivered in
respect thereof, such Net Cash Proceeds shall be applied as soon as practicable but in any event
within ten days after the date of receipt thereof toward the prepayment of the Tranche B Term Loans
as set forth in Section 2.11(d); provided that, notwithstanding the foregoing, on each
Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to
the relevant Reinvestment Event shall be applied toward the prepayment of the Tranche B Term Loans
as set forth in Section 2.11(d).




          (c) If, for any fiscal year of the Borrower commencing with the fiscal year ending September
30, 2011, there shall be Excess Cash Flow; provided that for the fiscal year of the
Borrower ending on September 30, 2011, Excess Cash Flow shall only be calculated from the period
beginning April 1, 2011 and ending September 30, 2011, the Borrower shall, on the relevant Excess
Cash Flow Application Date, apply an amount equal to (i) the ECF Percentage of such Excess Cash
Flow less (ii) the aggregate principal amount of all prepayments of Revolving Loans and Swingline
Loans made during such fiscal year to the extent accompanying permitted optional reductions of the
Revolving Commitments and the aggregate amount of cash used for all optional prepayments of Term
Loans made during such fiscal year, toward the prepayment of the Term Loans as set forth in Section
2.11(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application
Date”) no later than five Business Days after the earlier of (i) the date on which the
financial statements of the Borrower referred to in Section 6.1(a), for the fiscal year with
respect to which such prepayment is made, are required to be delivered to the Lenders and (ii) the
date such financial statements are actually delivered.




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




     2.12 Conversion and Continuation Options.



          (a) The Borrower may elect from time to time to convert Eurodollar Loans to ABR Loans by
giving the Administrative Agent prior irrevocable notice of such election no later than 12:00 Noon,
New York City time, on the Business Day preceding the proposed conversion date, provided
that any such conversion of Eurodollar Loans may only be made on the last day of an Interest Period
with respect thereto. The Borrower may elect from time to time to convert ABR Loans to Eurodollar
Loans by giving the Administrative Agent prior irrevocable notice of such election no later than
12:00 Noon, New York City time, on the third Business Day preceding the proposed conversion date
(which notice shall specify the length of the initial Interest Period therefor), provided
that no ABR Loan under a particular






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Facility may be converted into a Eurodollar Loan in excess of one month when any Event of
Default has occurred and is continuing and the Administrative Agent or the Majority Facility
Lenders in respect of such Facility have determined in its or their sole discretion not to permit
such conversions. Upon receipt of any such notice the Administrative Agent shall promptly notify
each relevant Lender thereof.




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




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



     2.14 Interest Rates and Payment Dates.



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




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




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




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







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     2.15 Computation of Interest and Fees.



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




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




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




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




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


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




     2.17 Pro Rata Treatment and Payments.



          (a) Each borrowing by the Borrower from the Lenders hereunder and any reduction of the
Commitments of the Lenders shall be made pro rata according to the respective
Tranche B Term Commitments or Revolving Commitments, as the case may be, of the relevant Lenders.
Each payment by the Borrower on account of commitment fees hereunder shall be made pro rata
according to the respective Revolving Commitments of the relevant Lenders.




          (b) Except as otherwise provided herein, each payment (including each prepayment) by the
Borrower on account of principal of and interest on the Tranche B Term Loans shall be made (i) in






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the case of principal, pro rata according to the respective outstanding principal amounts of
the Tranche B Term Loans then held by the Tranche B Term Lenders, and (ii) in the case of interest,
pro rata according to the respective amounts of accrued and unpaid interest on the Tranche B Term
Loans then due to the Tranche B Term Lenders. The amount of each principal prepayment of the
Tranche B Term Loans shall be applied to reduce the then remaining installments of the Tranche B
Term Loans as directed by the Borrower by notice to the Administrative Agent. Amounts prepaid on
account of the Tranche B Term Loans may not be reborrowed.




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




          (d) [Reserved].




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




          (f) Unless the Administrative Agent shall have been notified in writing by any Lender prior to
a borrowing that such Lender will not make the amount that would constitute its share of such
borrowing available to the Administrative Agent, the Administrative Agent may assume that such
Lender is making such amount available to the Administrative Agent, and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If
such amount is not made available to the Administrative Agent by the required time on the Borrowing
Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a
rate determined by the Administrative Agent in accordance with banking industry rules on interbank
compensation, for the period until such Lender makes such amount immediately available to the
Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest
error. If such Lender’s share of such borrowing is not made available to the Administrative Agent
by such Lender within three Business Days after such Borrowing Date, the Administrative Agent shall
also be entitled to recover such amount with interest thereon at the rate per annum applicable to
ABR Loans under the relevant Facility, on demand, from the Borrower. If the Borrower and such
Lender shall pay such interest to the Administrative Agent for the same or an overlapping period,
the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by
the Borrower for such period. If such Lender pays its share of the applicable borrowing to the
Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included






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in such borrowing. Any payment by the Borrower shall be without prejudice to any claim the
Borrower may have against a Lender that shall have failed to make such payment to the
Administrative Agent.




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




     2.18 Requirements of Law.



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





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




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


and the result of any of the foregoing is to increase the cost to such Lender, by an amount that
such Lender deems to be material, of making, converting into, continuing or maintaining Eurodollar
Loans or issuing or participating in Letters of Credit, or to reduce any amount receivable by such
Lender hereunder in respect thereof, then, in any such case, the Borrower shall promptly and in any
event within five Business Days pay such Lender, upon its written demand, any additional amounts
necessary to compensate such Lender for such increased cost or reduced amount receivable. If any
Lender becomes entitled to claim any additional amounts pursuant to this paragraph, it shall
promptly notify the Borrower (with a copy to the Administrative Agent) of the event by reason of
which it has become so entitled.




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






-39-









 







Borrower shall pay to such Lender such additional amount or amounts as will compensate such
Lender or such corporation for such reduction.




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




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




     2.19 Taxes.



          (a) Unless required by a Requirement of Law, all payments made by any Loan Party under any
Loan Document shall be made free and clear of, and without deduction or withholding for or on
account of, any present or future income, stamp or other taxes, levies, imposts, duties, charges,
fees, deductions or withholdings (including any interest, additions to tax or penalties applicable
thereto), now or hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding (i) net income taxes and franchise taxes (imposed in lieu of net income taxes)
imposed on the Administrative Agent or any Lender by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized or in which its principal lending
office is located, or in the case of any Lender, in which its applicable lending office is located
and (ii) any branch profits taxes imposed by the United States of America under Section 884 (a) of
the Code or any similar taxes, imposed by any jurisdiction described in (i). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings
(“Non-Excluded Taxes”) or Other Taxes are required by law to be withheld by an applicable
withholding agent from any amounts payable to the Administrative Agent or any Lender hereunder, the
amounts so payable to the Administrative Agent or such Lender shall be increased by the applicable
Loan Party to the extent necessary to yield to the Administrative Agent or such Lender (after
payment of all Non-Excluded Taxes and Other Taxes) interest or any such other amounts payable under
the applicable Loan Document at the rates or in the amounts specified therein, provided,
however that a Loan Party shall not be required to increase any such amounts payable to any
recipient with respect to any Non-Excluded Taxes (i) that are attributable to such recipient’s
failure to comply with the requirements of paragraph (d), (e) or (g) of this Section, (ii) that are
United States federal withholding tax imposed on amounts payable to such recipient pursuant to any
Requirement of Law in effect at the time such recipient becomes a party to this Agreement (or
designates a new lending office), except to the extent that such recipient or its assignor (if any)
was entitled, at the time of designation of a new lending office or assignment, to receive
additional amounts from the Borrower with respect to such Non-Excluded Taxes pursuant to this
paragraph, or (iii) that are United States federal withholding taxes that would not have been
imposed but for a failure by such recipient (or any financial institution through which any payment
is made to such recipient) to comply with the applicable requirements of FATCA. Nothing contained
in this Section 2.19(a) shall require the Administrative Agent or any Lender to make available its
tax returns (or any information relating to its taxes which it deems confidential) to the Borrower
or any other Person.




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




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






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and penalties that may become payable by the Administrative Agent or any Lender as a result of
any such failure.




          (d) Each Lender (or Transferee) that is not a “U.S. Person” as defined in Section
7701(a)(30) of the Code (a “Non-U.S. Lender”) shall deliver to the Borrower and the
Administrative Agent (or, in the case of a Participant, to the Lender from which the related
participation shall have been purchased) two original copies of either U.S. Internal Revenue
Service Form W-8BEN, W-8ECI or W-8EXP, or, in the case of a Non-U.S. Lender claiming exemption from
U.S. federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of
“portfolio interest”, a certificate substantially in the form of Exhibit C (a “Non-Bank Tax
Certificate”) and a Form W-8BEN, or any subsequent versions thereof or successors thereto,
properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or a
reduced rate of, U.S. federal withholding tax on all applicable payments by the Borrower under this
Agreement and the other Loan Documents. Any Non-U.S. Lender that is a partnership for U.S. federal
income tax purposes or otherwise not the beneficial owner (i.e., who has sold a participation)
shall deliver to the Borrower and the Administrative Agent two copies of U.S. Internal Revenue
Service Form W-8IMY, together with the applicable Form W-8, Form W-9 and other required
attachments, and, in the case of any beneficial owner claiming the “portfolio interest” exemption,
a Non-Bank Tax Certificate” (provided that, in the case of a Non-U.S. Lender that is a
partnership, any Non-Bank Tax Certificate may be provided by the Non-U.S. Lender on behalf of the
beneficial owner(s)). Any forms described above shall be delivered by each Non-U.S. Lender on or
before the date it becomes a party to this Agreement (or, in the case of any Participant, on or
before the date such Participant purchases the related participation). In addition, each Non-U.S.
Lender shall promptly notify the Borrower of any change in circumstances which would modify or
render invalid any claimed exemption or reduction and shall deliver such forms promptly upon the
obsolescence, expiration or invalidity of any form previously delivered by such Non-U.S. Lender.
Each Non-U.S. Lender shall promptly notify the Borrower and the Administrative Agent at any time it
determines that it is no longer in a position to provide any previously delivered certificate to
the Borrower (or any other form of certification adopted by the U.S. taxing authorities for such
purpose). Notwithstanding any other provision of this paragraph, a Non-U.S. Lender shall not be
required to deliver any form pursuant to this paragraph that such Non-U.S. Lender is not legally
able to deliver.




          (e) A Lender that is entitled to an exemption from or reduction of any withholding tax other
than U.S. federal withholding tax, with respect to payments under any Loan Document shall deliver
to the Borrower (with a copy to the Administrative Agent), at the time or times prescribed by
applicable law or reasonably requested by the Borrower, such properly completed and executed
documentation prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate, provided that such Lender is legally entitled to
complete, execute and deliver such documentation and in such Lender’s judgment such completion,
execution or submission would not materially prejudice the legal position of such Lender.




          (f) If the Administrative Agent or any Lender determines, in its sole discretion, exercised in
good faith, that it has received a refund of any Non-Excluded Taxes or Other Taxes as to which it
has been indemnified by any Loan Party or with respect to which any Loan Party has paid additional
amounts pursuant to this Section 2.19, it shall pay over such refund to the Borrower (but only to
the extent of indemnity payments made, or additional amounts paid, by the Borrower under this
Section 2.19 with respect to the Non-Excluded Taxes or Other Taxes giving rise to such refund), net
of all reasonable out-of-pocket expenses of the Administrative Agent or such Lender (including any
Taxes imposed on such refund) and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund); provided, that the Borrower, upon the
request of the Administrative Agent or such Lender, agrees to repay the amount paid over to the
Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent or such Lender in






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the event the Administrative Agent or such Lender is required to repay such refund to such
Governmental Authority but only if such repayment is required because the initial refund was
permitted in error. This paragraph shall not be construed to require the Administrative Agent or
any Lender to make available its tax returns (or any other information relating to its taxes which
it deems confidential) to the Loan Party or any other Person.




          (g) At the times specified in Section 2.19(d),, each Lender (or Transferee) that is a “U.S.
Person” within the meaning of Section 7701(a)(30) of the Code shall deliver two properly completed
and duly signed original copies of IRS Form W-9 or any successor form that such Lender is entitled
to provide at such time, in order to qualify for an exemption from United States backup withholding
requirements. If such Lender fails to deliver such forms, then the Administrative Agent may,
notwithstanding Section 2.19(a), deduct and withhold from any applicable payment to such Lender or
Transferee an amount equivalent to the applicable backup withholding tax imposed by the Code.




          (h) If a payment made to a Lender under any Loan Document would be subject to U.S. federal
withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable
reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the
Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent, at
the time or times prescribed by law and at such time or times reasonably requested by the Borrower
or the Administrative Agent, such documentation prescribed by Applicable Law (including as
prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably
requested by the Borrower or the Administrative Agent as may be necessary for the Borrower or the
Administrative Agent to comply with its obligations under FATCA, to determine that such Lender has
complied with such Lender’s obligations under FATCA or to determine the amount to deduct and
withhold from such payment.




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




          (j) For the avoidance of doubt, the term “Lender” shall, for purposes of this Section 2.19,
include any Swingline Lender, any Conduit Lender and any Issuing Lender.




     2.20 Indemnity. The Borrower agrees to indemnify each Lender for, and to hold each
Lender harmless from, any loss or expense that such Lender may sustain or incur as a consequence of
(a) default by the Borrower in making a borrowing of, conversion into or continuation of Eurodollar
Loans after the Borrower has given a notice requesting the same in accordance with the provisions
of this Agreement, (b) default by the Borrower in making any prepayment of or conversion from
Eurodollar Loans after the Borrower has given a notice thereof in accordance with the provisions of
this Agreement or (c) the making of a prepayment of Eurodollar Loans on a day that is not the last
day of an Interest Period with respect thereto. Such indemnification may include an amount equal
to the excess, if any, of (i) the amount of interest that would have accrued on the amount so
prepaid, or not so borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of such Interest
Period (or, in the case of a failure to borrow, convert or continue, the Interest Period that would
have commenced on the date of such failure) in each case at the applicable rate of interest for
such Loans provided for herein (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such Lender) that would have accrued
to such Lender on such amount by placing such amount on deposit for a comparable period with
leading banks in the interbank eurodollar market. A certificate as to any amounts payable pursuant
to this Section submitted to the Borrower by any Lender which is submitted within 180 days of the
incurrence of any loss or expense covered by this Section with appropriate detail demonstrating how
such amounts were derived shall be conclusive in the absence of manifest error. This covenant
shall survive the termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.



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



     2.22 Replacement of Lenders.



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




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




     2.23 Limitation on Additional Amounts, Etc. Notwithstanding anything to the contrary
contained in Sections 2.18 and 2.19 of this Agreement, unless the Administrative Agent or a Lender
gives



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




     2.24 [Reserved].



     2.25 Incremental Credit Extensions. The Borrower may at any time or from time to time
after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent
shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches
of term loans (the “Incremental Term Loans”), (b) one or more increases in the amount of
the Revolving Commitments (each such increase, a “Revolving Commitment Increase” together
with any Incremental Term Loans, referred to herein as a “Credit Increase”);
provided that (i) both at the time of any such request and upon the effectiveness of any
Incremental Amendment referred to below, no Default or Event of Default shall exist and at the time
that any such Incremental Term Loan is made (and after giving effect thereto) no Default or Event
of Default shall exist and (ii) the Consolidated Leverage Ratio, determined on a pro forma basis as
of the last day of the most recent fiscal quarter for which financial statements are available (but
based on Consolidated Total Debt at the time of and after giving effect to such Credit Increase)
shall not exceed 6.00 to 1.00 (or, if less, the maximum Consolidated Leverage Ratio permitted as of
the end of the most recently ended fiscal quarter pursuant to Section 7.1(a)). Each Credit
Increase shall be in an aggregate principal amount that is not less than $25,000,000
(provided that such amount may be less than $25,000,000 on no more than two occasions if
such amount is not less than $10,000,000 on each such occasion, and such amount may be a lesser
amount if such amount represents all remaining availability under the limit set forth in the next
sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Credit
Increases shall not exceed $125,000,000. The Incremental Term Loans (A) shall rank pari
passu in right of payment and of security with the other Facilities, (B) shall not mature
earlier than the Tranche B Maturity Date and shall have a weighted average life to maturity
(pursuant to such amortization schedules as may be determined by the Borrower and the lenders
thereof) that is no shorter than the then-remaining weighted average life to maturity of the
Tranche B Term Loans (as the aggregate amount thereof may have been reduced and as the scheduled
amortization thereof may have been modified as of such date), (C) except as set forth above or in
the applicable Incremental Amendment, shall be treated substantially the same as the Tranche B Term
Loans (in each case, including with respect to mandatory and voluntary prepayments), and (D) will
accrue interest at rates determined by the Borrower and the lenders providing such Incremental Term
Loans, which rates may be higher or lower than the rates applicable to the Tranche B Term Loans,
provided that if the initial yield on such Incremental Term Loans (as determined by the
Administrative Agent to be equal to the sum of (1) the initial margin above the Eurodollar Rate on
such Incremental Term Loans and (2) if such Incremental Term Loans are initially made at a discount
or all the Lenders making the same receive a fee (other than any customary arrangement,
underwriting, structuring, syndication or similar fee but not any upfront fee paid to Lenders in
their capacities as lenders) directly or indirectly from Holdings, the Borrower or any Subsidiary
for doing so (the amount of such discount or fee, expressed as a percentage of the Incremental Term
Loans, being referred to herein as “Incremental OID”), the amount of such Incremental OID
divided by the average life to maturity of such Incremental Term Loans) exceeds by more than 50
basis



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points (the amount of such
excess above 50 basis points being referred to herein as the “Yield Differential”) the
sum of (x) the Applicable Margin then in effect for Tranche B Term Loans that are Eurodollar Loans
and (y) if all Tranche B Term Lenders received upfront or similar fees directly or indirectly from
Holdings, the Borrower or any Subsidiary for making the Tranche B Term Loans (the amount of such
fees, expressed as a percentage of the sum of the original aggregate amount of the Tranche B Term
Commitments, being referred to herein as “Initial OID”), the amount of such Initial OID
divided by the average life to maturity of the Tranche B Term Loans as of the Closing Date, then
the Applicable Margin then in effect for Tranche B Term Loans shall automatically be increased by
the Yield Differential, effective upon the making of the Incremental Term Loans. Each notice from
the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of
the relevant Credit Increases. Incremental Term Loans may be made, and Revolving Commitment
Increases may be provided, by any existing Lender or by any other bank or other financial
institution (any such other bank or other financial institution being called an “Additional
Lender”), provided that the Administrative Agent and, in the case of a Revolving
Commitment Increase, each Issuing Lender shall have consented (not to be unreasonably withheld) to
such Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment
Increases, if such consent would be required under Section 10.6 for an assignment of Tranche B Term
Loans or Revolving Credit Commitments, as applicable, to such Additional Lender. Commitments in
respect of Credit Increases shall become Commitments (or in the case of a Revolving Commitment
Increase to be provided by an existing Revolving Lender, an increase in such Lender’s applicable
Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental
Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by
Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional
Lender, if any, and the Administrative Agent. An Incremental Amendment may, without the consent of
any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be
necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower,
to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be
subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing
Date”) of each of the conditions set forth in the Incremental Amendment. No Lender shall be
obligated to provide any Credit Increases, unless it so agrees. Upon each increase in the
Revolving Commitments pursuant to this Section, the participations held by the Revolving Lenders in
the Revolving L/C Exposure and Swingline Loans immediately prior to such increase will be
reallocated so as to be held by the Revolving Lenders ratably in accordance with their respective
Revolving Percentages after giving effect to such Revolving Commitment Increase. If, on the date
of a Revolving Commitment Increase, there are any Revolving Loans outstanding, the Borrower shall
prepay such Revolving Loans in accordance with this Agreement on the date of effectiveness of such
Revolving Commitment Increase (but the Borrower may finance such prepayment with a concurrent
borrowing of Revolving Loans from the Revolving Lenders in accordance with their Revolving
Percentages after giving effect to such Revolving Commitment Increase). The Borrower may use the
proceeds of each Credit Increase for any purpose not prohibited by this Agreement unless otherwise
agreed in connection with such Credit Increase.





     2.26 Defaulting Lenders. Notwithstanding any provision of this Agreement to the
contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for
so long as such Lender is a Defaulting Lender:




     (a) The commitment fee under Section 2.8(a) shall cease to accrue on the commitment of
such Lender so long as it is a Defaulting Lender (except to the extent it is payable to the
Issuing Lender pursuant to clause (c)(v) below);




     (b) If any Swingline Exposure or Revolving L/C Exposure exists at the time a Lender
becomes a Defaulting Lender then:



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     (i) all or any part of such Swingline Exposure and Revolving L/C Exposure shall
be re-allocated among the non-Defaulting Lenders in accordance with their respective
Revolving Percentages but only to the extent (x) the sum of all non-Defaulting
Lenders’ Revolving Loans plus such Defaulting Lender’s Swingline Exposure and
Revolving L/C Exposure does not exceed the total of all non-Defaulting Lenders’
Revolving Commitments and (y) such reallocation does not cause the Revolving
Extensions of Credit of any non-Defaulting Lender to exceed the Revolving Commitment
of such non-Defaulting Lender;




     (ii) if the reallocation with respect to Revolving L/C Exposure described in
clause (i) above cannot, or can only partially, be effected, Borrower shall within
five Business Days following notice by the Administrative Agent (or such longer
period as Administrative Agent may agree), cash collateralize such Defaulting
Lender’s Revolving L/C Exposure (after giving effect to any partial reallocation
pursuant to clause (i) above) for so long as such Revolving L/C Exposure is
outstanding;




     (iii) if any portion of such Defaulting Lender’s Revolving L/C Exposure is cash
collateralized pursuant to clause (ii) above or otherwise, at 105% of the face
amount thereof pursuant to terms reasonably satisfactory to the Issuing Lender,
Borrower shall not be required to pay the Letter of Credit participation fee with
respect to such portion of such Defaulting Lender’s Revolving L/C Exposure so long
as it is cash collateralized;




     (iv) if any portion of such Defaulting Lender’s Revolving L/C Exposure is
reallocated to the non-Defaulting Lenders pursuant to clause (i) above, then the
Letter of Credit participation fee with respect to such portion shall be allocated
among the non-Defaulting Lenders in accordance with their Revolving Percentages; or




     (v) if any portion of such Defaulting Lender’s Revolving L/C Exposure is
neither cash collateralized nor reallocated pursuant to this Section 2.26(b), then,
without prejudice to any rights or remedies of the Issuing Lender or any Lender
hereunder, the LC Participation Fee payable with respect to such Defaulting Lender’s
LC Exposure shall be payable to the Issuing Lender until such LC Exposure is cash
collateralized and/or reallocated;




     (c) so long as any Lender is a Defaulting Lender, the Swingline Lender shall not be
required to fund any Swingline Loan and the Issuing Lender shall not be required to issue,
amend or increase any Letter of Credit, unless it is satisfied that the related exposure
will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or cash
collateralized in accordance with Section 2.26, and participations in any such newly issued
or increased Letter of Credit or newly made Swingline Loan shall be allocated among
non-Defaulting Lenders in accordance with their respective Revolving Percentages (and
Defaulting Lenders shall not participate therein); and




     (d) any amount payable to such Defaulting Lender hereunder may, in lieu of being
distributed to such Defaulting Lender, be retained by the Administrative Agent in a
segregated non-interest-bearing account and, subject to any applicable Requirements of Law,
be applied at such time or times as may be determined by the Administrative Agent (i)
first, to the payment of any amounts owing by such Defaulting Lender to the
Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts
owing by such Defaulting Lender to the Issuing Lender or Swingline Lender hereunder, (iii)
third, to the funding of any Loan or the funding or cash collateralization of any
participation in any Swingline Loan or Letter of Credit in respect of



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which such Defaulting Lender has failed to fund its portion thereof as required by this
Agreement, as determined by the Administrative Agent, (iv) fourth, if so determined
by the Administrative Agent and Borrower, held in such account as cash collateral for future
funding obligations of the Defaulting Lender under this Agreement, (v) fifth, pro
rata, to the payment of any amounts owing to Borrower or the Lenders as a result of any
judgment of a court of competent jurisdiction obtained by Borrower or any Lender against
such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations
under this Agreement and (vi) sixth, to such Defaulting Lender or as otherwise
directed by a court of competent jurisdiction; provided that if such payment is (x)
a prepayment of the principal amount of any Loans or Reimbursement Obligations which a
Defaulting Lender has funded its participation obligations and (y) made at a time when the
conditions set forth in Section 5.2 are satisfied, such payment shall be applied solely to
prepay the Loans of, and Reimbursement Obligations owed to, all non-Defaulting Lenders pro
rata prior to being applied to the prepayment of any Loans, or Reimbursement Obligations
owed to, any Defaulting Lender.


In the event that the Administrative Agent, Borrower, the Issuing Lender or the Swingline Lender,
as the case may be, each agrees that a Defaulting Lender has adequately remedied all matters that
caused such Lender to be a Defaulting Lender, then the Swingline Exposure and Revolving L/C
Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment
and on such date such Lender shall purchase at par such of the Loans of the other Lenders as the
Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans
in accordance with its Revolving Percentage and the Administrative Agent shall release any cash
collateral previously required by Section 2.26. The rights and remedies against a Defaulting
Lender under this Section 2.26 are in addition to other rights and remedies that Borrower, the
Administrative Agent, the Issuing Lender, the Swingline Lender and the non-Defaulting Lenders may
have against such Defaulting Lender. The arrangements permitted or required by this Section 2.26
shall be permitted under this Agreement, notwithstanding any limitation on Liens or the pro rata
sharing provisions or otherwise.




SECTION 3




LETTERS OF CREDIT



     3.1 Letters of Credit.



          (a) Subject to the terms and conditions hereof, (a) each Issuing Lender agrees to issue
letters of credit (“Letters of Credit”) for the account of the Borrower on any Business Day
during the Revolving Commitment Period (in the case of a Revolving Letter of Credit) or the
Institutional L/C Period (in the case of an Institutional Letter of Credit), in each case in such
form as may be reasonably approved from time to time by such Issuing Lender; provided that
such Issuing Lender shall have no obligation to issue any Letter of Credit if, after giving effect
to such issuance, (i) the Revolving L/C Exposure would exceed the Revolving L/C Commitment, (ii)
the Total Revolving Extensions of Credit would exceed the Total Revolving Commitments, (iii) the
amount of funds deposited in the Institutional L/C Collateral Account at such time would not be at
least 105% of the Institutional L/C Exposure or (iv) any Institutional Letter of Credit would be
issued by an Issuing Lender other than UBS AG, Stamford Branch or an affiliate thereof. Each
Letter of Credit shall (A) be denominated in Dollars and (B) expire no later than the earlier of
(x) the first anniversary of its date of issuance and (y) the date that is five Business Days prior
to the Revolving Termination Date (in the case of a Revolving Letter of Credit) or the Tranche B
Maturity Date (in the case of an Institutional Letter of Credit), provided that any Letter
of Credit with a one-year term may provide for the renewal thereof for additional one-year periods
(which shall in no event extend beyond the date referred to in clause (y) above).







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          (b) [Reserved].




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




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




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



     3.3 Fees and Other Charges.



          (a) The Borrower will pay a participation fee on all outstanding Revolving Letters of Credit
at a per annum rate equal to the Applicable Margin then in effect with respect to Eurodollar Loans
under the Revolving Facility, shared ratably among the Revolving Lenders and payable quarterly in







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arrears on each Fee Payment Date after the issuance date. In addition, the Borrower shall pay
to each Issuing Lender for its own account a fronting fee of 0.125% per annum on the face amount of
each Revolving Letter of Credit issued by such Issuing Lender payable quarterly in arrears on each
Fee Payment Date after the issuance date. In addition the following fees will also be charged: an
issuance fee of $500.00 per Revolving Letter of Credit, drawing fees of $250.00 per draw, amendment
fees of $200.00 per amendment and $250.00 for renewals on each anniversary of a “evergreen”
Revolving Letter of Credit.




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




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




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Revolving L/C Participant its pro rata share thereof; provided, however, that in
the event that any such payment received by such Issuing Lender shall be required to be returned by
such Issuing Lender, such Revolving L/C Participant shall return to such Issuing Lender the portion
thereof previously distributed by such Issuing Lender to it.




     3.5 Reimbursement Obligation of the Borrower. If any draft is paid under any Letter
of Credit, the Borrower shall reimburse the applicable Issuing Lender with respect to such draft
paid by the Issuing Lender for the amount of (a) the draft so paid and (b) any taxes, fees, charges
or other costs or expenses incurred by such Issuing Lender in connection with such payment, not
later than 10:00 A.M., New York City time, on (i) the Business Day that the Borrower receives
notice of such draft, if such notice is received on such day prior to 1:00 P.M., New York City
time, or (ii) if clause (i) above does not apply, the Business Day immediately following the day
that the Borrower receives such notice. Each such payment shall be made to the applicable Issuing
Lender at its address for notices referred to herein in Dollars and in immediately available funds.
If any draft is paid under any Letter of Credit, then, unless the Borrower shall reimburse the
applicable Issuing Lender in full on the same day that such draft is paid, the unpaid amount
thereof shall bear interest for each day from and including the date on which such draft is paid to
but excluding the date that the Borrower makes reimbursement in full, at (a) in the case of a
Revolving L/C Disbursement, the rate per annum then applicable to ABR Loans under the Revolving
Facility and (b) in the case of an Institutional L/C Disbursement, the rate per annum then
applicable to ABR Loans under the Tranche B Term Facility (determined without regard to whether the
Tranche B Term Facility is in effect); provided that, if the Borrower does not make
reimbursement in full on or prior to the second Business Day following the date of the applicable
drawing, then Section 2.14(c) shall apply; provided that, with respect to Institutional Letters of
Credit, the Borrower may authorize the Issuing Lender to draw such payment from the Institutional
L/C Collateral Account. If the Issuing Lender with respect to an Institutional Letter of Credit
shall not have received from the Borrower the payment required to be made by this Section 3.5 with
respect to any Institutional Letter of Credit within the time specified in this Section, such
Issuing Lender will promptly notify the Administrative Agent of the unreimbursed amount of an
Institutional L/C Disbursement. In each such event, the Borrower hereby authorizes and directs the
Issuing Lender with respect to an Institutional Letter of Credit to withdraw from the Institutional
L/C Collateral Account an amount equal to such unreimbursed amount. The Administrative Agent shall
promptly upon request advise the Issuing Lender with respect to an Institutional Letter of Credit
of the aggregate amount of any such permitted withdrawal, and such Issuing Lender shall promptly
advise the Administrative Agent of the amount of any such reimbursement it shall effect with the
proceeds of any such withdrawal. Any amounts received by the Administrative Agent thereafter
pursuant to this Section 3.5 in respect of an unreimbursed amount of an Institutional L/C
Disbursement under an Institutional Letter of Credit will be promptly remitted by the
Administrative Agent to the Institutional Collateral Account (it being understood that, thereafter,
such amounts will be available to reimburse the Issuing Lender with respect to an Institutional
Letter of Credit in accordance with this Section 3.5).



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



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




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



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



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



SECTION 4




REPRESENTATIONS AND WARRANTIES



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



     4.1 Financial Condition.



          (a) The unaudited pro forma consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at September 30, 2010, and unaudited pro forma statement of operations of the
Borrower and its consolidated Subsidiaries for the twelve-month period then ended (including the
notes thereto) (the “Pro Forma Financial Statements”), copies of which have heretofore been
furnished to each Lender, have been prepared giving effect to the Transactions and all other
transactions that would be required to be given pro forma effect by Regulation S-X (and such other
adjustments as have been agreed to by the Joint Bookrunners), as if such transactions had occurred
on September 30, 2010 (in the case of such unaudited pro forma balance sheet) or at the beginning
of such twelve-month period (in the case of such unaudited statement of operations). The Pro Forma
Financial Statements have been prepared in good faith by the Borrower, and present fairly in all
material respects on a pro forma basis the estimated financial position and results of operations
of the Borrower and its consolidated Subsidiaries as at September 30, 2010, and for such period
then ended, assuming that such transactions had actually occurred at such date or at the beginning
of such period, as the case may be.




          (b) The audited consolidated balance sheets of the Borrower and its Subsidiaries as at
September 30, 2009 and September 30, 2010, and the related consolidated statements of income and of
cash flows for the fiscal years ended on such dates, reported on by and accompanied by an
unqualified






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report from Ernst & Young LLP or Deloitte & Touche, LLP, as the case may be, present fairly in
all material respects the consolidated financial condition of the Borrower and its Subsidiaries as
at such date, and the consolidated results of its operations and its consolidated cash flows for
the respective fiscal years then ended. All such financial statements, including the related
schedules and notes thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as approved by the aforementioned firm of accountants and
disclosed therein). Except as set forth on the Pro Forma Financial Statements, during the period
from September 30, 2010, to and including the date hereof there has been no Disposition by any
Group Member of any material part of its business or property.




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



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



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



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



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



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



     4.8 Ownership of Property; Liens. Each Group Member has marketable title to, or a
valid leasehold interest in, all its real property, and marketable title to, or a valid leasehold
interest in, all its material other property, and none of such property is subject to any Lien
except as permitted by Section 7.3. As of the date hereof, set forth on Schedule 4.8 is a complete
and correct list of all real property with a fair market value of more than $175,000 as reasonably
determined in good faith by the Borrower (including street address) (other than condominiums or
co-ops) located in the United States and owned by any Group Member and all leases (other than
apartment leases) of any Group Member. The real properties designated on Schedule 4.8 as “Initial
Mortgaged Properties” constitute all real properties (other than condominiums or co-ops) located in
the United States and owned in fee by any Loan Party (a) with a fair market value of more than
$175,000 as reasonably determined in good faith by the Borrower, (b) for which the Flood
Determination delivered pursuant to Section 6.10 indicates that such real property is not located
in a Special Flood Hazard Area, (c) which, as of the date hereof, is not being actively marketed
for sale by the Borrower or the applicable Group Member and (d) which is not a Mortgage Facility
Property.



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


4.10 Taxes. Except for any failure, lien, filing or claim, as applicable, that would not be
reasonably expected to, individually or in the aggregate, result in a Material Adverse Effect: (i)
each Group Member has filed or caused to be filed all tax returns that are required to be filed and
has paid all taxes (including any interest, additions to tax or penalties applicable thereto) due
and payable (whether or not shown on a tax return) and any assessments made against it or any of
its property and all other taxes, fees or other charges imposed on it or any of its property by any
Governmental Authority (other than any tax the amount or validity of which are currently being
contested in good faith by appropriate proceedings and with respect to which reserves in conformity
with GAAP have been provided on the books of the relevant Group Member); (ii) no tax Lien has been
filed (other than Permitted Liens); and (iii) no claim is being asserted with respect to any such
tax, fee or other charge.




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



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



     4.13 ERISA. Except as would not reasonably be expected to have a Material Adverse
Effect, (i) neither a Reportable Event nor a failure to satisfy the minimum funding standard
(within the meaning of Section 412 of the Code or Section 302 of ERISA) has occurred during the
five-year period prior to the date on which this representation is made or deemed made with respect
to any Plan, and each Plan during such five-year period has complied in all material respects with
the applicable provisions of ERISA and the Code, (ii) no termination of a Single Employer Plan has
occurred, and no Lien in favor of the PBGC or a Plan has arisen, during such five-year period and
(iii) the present value of all accrued benefits under each Single Employer Plan (based on those
assumptions used to fund such Plans) did not, as of the last annual valuation date prior to the
date on which this representation is made or deemed made, exceed the value of the assets of such
Plan allocable to such accrued benefits by a material amount. To the best of the Borrower’s
knowledge, neither the Borrower nor any Commonly Controlled Entity has had a complete or partial
withdrawal from any Multiemployer Plan that has resulted or could reasonably be expected to result
in a material liability under ERISA, and to the best of the Borrower’s knowledge, neither the
Borrower nor any Commonly Controlled Entity would become subject to any material liability under
ERISA if the Borrower or any such Commonly Controlled Entity were to withdraw completely from all
Multiemployer Plans as of the valuation date most closely preceding the date on which this
representation is made or deemed made. No such Multiemployer Plan is in Reorganization or
Insolvent which would reasonably be expected to result in a Material Adverse Effect.



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



     4.15 Subsidiaries. Attached hereto as Schedule 4.15(a) is an organization chart of
each Loan Party and its Subsidiaries as of the Closing Date. e, (a) Except as disclosed to the
Administrative Agent in writing from time to time after the Closing Date, Schedule 4.15(b) sets
forth the name and jurisdiction of formation of each Restricted Subsidiary Guarantor and, as to
each such Restricted Subsidiary Guarantor, the percentage of each class of Capital Stock owned by
any Loan Party and (b) as of the Closing Date, there are no outstanding subscriptions, options,
warrants, calls, rights or other agreements or commitments (other than stock options granted to
employees or directors and directors’ qualifying shares) of any nature relating to any Capital
Stock of the Borrower or any Restricted Subsidiary, except as created by the Loan Documents.



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



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



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




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




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




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




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




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




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



     4.18 Accuracy of Information, Etc. No statement or factual information with respect
to any Group Member contained in this Agreement, any other Loan Document, the Confidential
Information Memorandum or any other factual document, certificate or statement (other than any
projections, pro formas or other estimates with respect to any Group Member or information of a
general economic nature or industry data) furnished by or by Persons directed on behalf of any Loan
Party to the Administrative Agent or the Lenders, or any of them, for use in connection with the
transactions contemplated by this Agreement or the other Loan Documents, when taken as a whole,
contained as of the date such statement, information, document or certificate was so furnished, any
untrue statement of a material fact or omitted to state a material fact necessary to make the
statements contained herein or therein not materially misleading. The projections and pro forma
financial information contained in the materials referenced above were, and the projections
hereafter delivered, when delivered, will be, based upon good faith estimates



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and assumptions believed by management of each Loan Party to be reasonable at the time made
and no Loan Party knows as of the date hereof any fact making such estimates and assumptions no
longer true in any material respects, it being recognized by the Administrative Agent and the
Lenders that such financial information as it relates to future events is not to be viewed as fact
and that actual results during the period or periods covered by such financial information may
differ from the projected results set forth therein by a material amount.




     4.19 Security Documents.



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




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




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


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







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SECTION 5




CONDITIONS PRECEDENT



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




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




     (b) Other Financing Transactions. The Borrower shall have received
$250,000,000 in gross cash proceeds from the issuance of the Senior Notes.




     (c) Debt Discharge. The Debt Discharge shall be consummated (including
consummation of a Successful Debt Tender or, in the case of a Defeasance, the deposit of
sufficient funds with the applicable trustee and consummation of all other actions as are
necessary to satisfy the covenant defeasance provisions of the applicable Existing Notes
Indenture) prior to or substantially simultaneously with the initial extensions of credit
hereunder. After giving effect to the Transactions, Holdings and its Subsidiaries shall not
have any outstanding Indebtedness or preferred stock, other than (i) the Facilities, (ii)
the Senior Notes, (iii) any Existing Notes that are not purchased pursuant to a Successful
Debt Tender, or all the Existing Notes in the event of a Defeasance, and (iv) other
Indebtedness permitted hereunder. If a Successful Debt Tender is consummated (A) the terms
and conditions of any Existing Notes not purchased pursuant to the Debt Tender shall be
amended or modified consistent with the terms described to the Joint Bookrunners and (B) all
Existing Notes purchased shall be retired and cancelled.




     (d) Financial Statements. The Joint Bookrunners and the Lenders shall have
received the audited consolidated balance sheet and related statements of income,
stockholders’ equity and cash flows of the Borrower for the fiscal year ended September 30,
2010, which financial statements shall be prepared in accordance with GAAP.




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




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




     (g) Lien Searches, Etc. The Administrative Agent shall have received the
results of a recent lien search in each of the jurisdictions where the Loan Parties are
organized or where assets of the Loan Parties are located, and such search shall reveal no
Liens on any of the assets of the Loan Parties except for Permitted Liens or discharged on
or prior to the Closing Date pursuant to documentation reasonably satisfactory to the
Administrative Agent other than releases with respect to any property listed on Schedule
5.1(g), in which case the Borrower shall have 180 days after the Closing Date to file such
releases (subject to extensions granted by the Agent from time to time in its reasonable
discretion).



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




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




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




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




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




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




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




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




     (m) Filings, Registrations and Recordings. The Administrative Agent shall have
received each document (including any Uniform Commercial Code financing statement) required
by the Security Documents or under law or reasonably requested by the Administrative Agent
to be filed, registered or recorded in order to create in favor of the Administrative Agent,
for the benefit of the Lenders, a perfected Lien on the Collateral described therein, prior
and superior in right to any other Person (other than with respect to Liens expressly
permitted by Section 7.3), and each such document shall be in proper form for filing,
registration or recordation; provided that no pledge shall be required of more than
65% of the Capital Stock of a Foreign Subsidiary.




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



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     (o) Material Adverse Change. Since September 30, 2010, there shall not have
occurred any change, effect, occurrence or development that is materially adverse to the
business, assets, liabilities, financial condition, operations or results of operations of
the Borrower and its Subsidiaries, taken as a whole. The Administrative Agent shall have
received a certificate signed by a Responsible Officer of the Borrower to the foregoing
effect.




     (p) Institutional L/C Collateral Account. The Borrower shall have established
the Institutional L/C Collateral Account, and the Borrower and the Issuing Lender shall have
entered into the Institutional L/C Collateral Account Agreement.



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




     (a) Representations and Warranties. Each of the representations and warranties
made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all
material respects on and as of such date as if made on and as of such date (other than
representations and warranties which speak only as of a certain date, which representations
and warranties shall be made only on such date).




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



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



SECTION 6




AFFIRMATIVE COVENANTS



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



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




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



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




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




     (d) simultaneously with the delivery of each set of consolidated financial statements
referred to in Section 6.01(a) and Section 6.01(b) above, the related consolidating
financial statements reflecting the adjustments necessary to eliminate the accounts of
Unrestricted Subsidiaries (if any) (which may be in footnote form only) from such
consolidated financial statements.



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



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



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




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




     (b) concurrently with the delivery of any financial statements pursuant to Section
6.1(a) and (b), (i) a Compliance Certificate containing all information and calculations
required by the form of such certificate attached as Exhibit F, including those necessary
for determining compliance by each Group Member with the provisions of Section 7.1
(including detail



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with respect to any calculation of Consolidated EBITDA) as of the last day of the fiscal
quarter or fiscal year of Holdings, as the case may be, and (ii) to the extent not
previously disclosed to the Administrative Agent, a description of any change in the
jurisdiction of organization of any Loan Party and a list of any applications or
registrations of Intellectual Property filed in the name of, or acquired by, any Loan Party
since the date of the most recent report delivered pursuant to this clause (ii) (or, in the
case of the first such report so delivered, since the Closing Date);




     (c) commencing with the fiscal year ended September 30, 2012, as soon as available, and
in any event no later than 60 days after the end of each fiscal year of the Borrower and its
Restricted Subsidiaries, a consolidated budget for the following fiscal year (and no later
than 90 days after the end of each fiscal year of the Borrower, a detailed projected
consolidated balance sheet of the Borrower and its consolidated Restricted Subsidiaries as
of the end of the following fiscal year, the related consolidated statements of projected
cash flow, projected changes in financial position and projected income and a description of
the underlying assumptions applicable thereto), and, as soon as available, significant
revisions, if any, of such budget and projections with respect to such fiscal year
(collectively, the “Projections”);




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




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




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




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



     6.3 Payment of Taxes. Pay, discharge or otherwise satisfy at or before maturity or
before they become delinquent, as the case may be, all its tax obligations of whatever nature
(including any interest, additions to tax or penalties applicable thereto), except where (i) the
amount or validity thereof is being contested in good faith by appropriate proceedings and reserves
in conformity with GAAP with respect thereto have been provided on the books of the relevant Group
Member or (ii) the failure to pay would not reasonably be expected to, individually or in the
aggregate, result in a Material Adverse Effect.



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



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     6.5 Maintenance of Property; Insurance. (a) Keep all material property useful and
necessary in its business in good working order and condition, ordinary wear and tear and damage by
casualty excepted, (b) maintain with financially sound and reputable insurance companies insurance
(or pursuant to self-insurance to the extent commercially reasonable) in at least such amounts and
against at least such risks (but including in any event public liability, professional liability,
workers’ compensation and business interruption) as are usually insured against in the same general
area by companies engaged in the same or a similar business and of similar size (and including, in
any event, such insurance as may be required by the Security Documents); provided that the
insurance amount for general liability insurance of the Borrower shall in no event be less than
$4,000,000 (which shall be available after any reasonable self-insurance or effective deductibles,
which at the date hereof are $2,000,000 per occurrence and $8,000,000 for all occurrences); and (c)
provide that each insurance policy maintained or required to be maintained by any Loan Party shall
(i) name the Administrative Agent, on behalf of the Lenders, as loss payee pursuant to a so-called
“standard mortgagee clause” or “Lender’s loss payable endorsement”, with respect to property
coverage of such Loan Party, and shall name the Administrative Agent on behalf of the Lenders as an
additional insured, with respect to general liability coverage, (ii) provide that no action of any
Loan Party or any Subsidiary or any other Person shall void any such policy as to the
Administrative Agent or the Lenders, (iii) provide that the insurers shall notify the
Administrative Agent of any proposed cancellation in accordance with the policy provisions and that
the Administrative Agent or the Lenders will have the opportunity to correct any deficiencies
justifying such proposed cancellation and (iv) cause any Insurance Subsidiary to (A) conduct its
insurance business in compliance with all applicable insurance laws, rules, regulations and orders
and using sound actuarial principles and (B) maintain usual and customary stop-loss coverage and
excess coverage reinsurance for individual claims. The insurance premiums and other expenses
charged by any Insurance Subsidiary to the Borrower and its Subsidiaries shall be reasonable and
customary. The Borrower will provide the Administrative Agent (A) copies of any outside actuarial
reports prepared with respect to any projection, valuation or appraisal of any Insurance Subsidiary
promptly after receipt thereof and (B) once each year promptly after receipt thereof, an actuarial
opinion with respect to any Insurance Subsidiary from a recognized actuarial firm reasonably
satisfactory to the Administrative Agent; and (e) if any portion of any Mortgaged Property is
located in an area identified by the Federal Emergency Management Agency (or any successor agency)
as a Special Flood Hazard Area with respect to which flood insurance has been made available under
the National Flood Insurance Act of 1968 (as now or hereafter in effect or any successor act
thereto), either (x) cause the applicable Mortgage to be released in accordance with Section
9.11 hereof or (y) (A) maintain, or cause to be maintained, with a financially sound and
reputable insurer, flood insurance in an amount and otherwise sufficient to comply with all
applicable rules and regulations promulgated pursuant to the Flood Insurance Laws and (B) deliver
to the Administrative Agent evidence of such compliance in form and substance reasonably acceptable
to the Administrative Agent.



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



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



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




     (b) any (i) default or event of default under any Contractual Obligation of any Group
Member or (ii) litigation, investigation or proceeding affecting any Group Member that, in
either case, if not cured (in the case of clause (i)) or if adversely determined (in the
case of clause (ii)) could reasonably be expected to result in (A) a liability or judgment
of $10,000,000 or more in excess of that fully covered by insurance or (B) a Material
Adverse Effect;




     (c) the following events, as soon as possible and in any event within 30 days after any
Responsible Officer of the Borrower knows or has reason to know thereof if such event or
events could reasonably be expected to result in a liability of $10,000,000 or more or a
Material Adverse Effect: (i) the occurrence of any Reportable Event with respect to any
Plan, a failure to make any required contribution to a Single Employer or Multiemployer
Plan, the creation of any Lien in favor of the PBGC or a Plan or any withdrawal from, or the
termination, Reorganization or Insolvency of, any Multiemployer Plan or (ii) the institution
of proceedings or the taking of any other action by the PBGC or the Borrower or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the withdrawal from, or the
termination, Reorganization or Insolvency of, any Single Employer or Multiemployer Plan; and




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



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



     6.8 Environmental Laws.



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




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







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     6.9 Additional Collateral, Etc.



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




          (b) With respect to any fee interest in any real property having a value (together with
improvements thereof) of at least $175,000 acquired after the Closing Date by any Loan Party (other
than any such real property subject or to be subject to a Lien permitted by Section 7.3(g), (w) or
(z)), on a quarterly basis reasonably promptly after delivery of the financial statements delivered
pursuant to Section 6.1(a) or (b), execute and deliver (x) other than with respect to any such real
property for which the Flood Determination required pursuant to this paragraph indicates that such
real property is located in a Special Flood Hazard Area, a first priority mortgage or deed of trust
in a form substantially similar to the Mortgages on the Initial Mortgaged Properties and reasonably
satisfactory to the Administrative Agent, in favor of the Administrative Agent, for the benefit of
the Lenders, covering such real property and recorded by a nationally recognized title insurance
company, (y) a completed Federal Emergency Management Agency life-of-loan Standard Flood Hazard
Determination (a “Flood Determination”) with respect to each such property and (z) a title
search dated contemporaneous with the delivery of such Mortgage conducted by a title insurance
company which reflects that such Mortgaged Property is owned in fee by the Loan Party identified as
the mortgagor, trustor or grantor in the applicable Mortgage, free and clear of all Liens other
than Permitted Liens.




          (c) With respect to any new Subsidiary (other than an Unrestricted Subsidiary) created or
acquired after the Closing Date by any Loan Party (or any Subsidiary that ceases to be a
Liquidating Subsidiary) or any Subsidiary of a Loan Party ceases to be an Unrestricted Subsidiary,
promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and
Security Agreement as the Administrative Agent reasonably deems necessary to grant to the
Administrative Agent, for the benefit of the Lenders, a perfected first priority security interest
subject to Liens permitted pursuant to Section 7.3 in the Capital Stock of such new Subsidiary
(other than an Unrestricted Subsidiary) that is owned by any Loan Party (provided, such
security interest shall be limited (A) in the case of a Foreign Subsidiary or a Domestic Subsidiary
that has no material assets other than Capital Stock of one or more “controlled foreign
corporations” (as defined under Section 957 of the Code), to 65% of such Capital Stock in such
Subsidiary, (B) in the case of any Insurance Subsidiary, to the lesser of the amount of such
Insurance Subsidiary’s Capital Stock which can be pledged pursuant to the applicable law governing
such Insurance Subsidiary or if such Insurance Subsidiary is a Foreign Subsidiary, the amount which
is required to be otherwise pledged hereunder and (C) in the case of any Non-Profit Entity formed
after the Closing Date, to the amount of such entity’s Capital Stock that can be pledged pursuant
to the applicable law or regulations governing such entity), (ii) deliver to the Administrative
Agent the certificates representing such Capital Stock, together with undated stock powers, in
blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause
such new Subsidiary (unless such Subsidiary is a Foreign Subsidiary, a Domestic Subsidiary of a
Foreign Subsidiary, a Domestic Subsidiary that has no material assets other than Capital Stock of
one or more “controlled foreign corporations” (as defined






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under Section 957 of the Code), an Insurance Subsidiary, a Non-Wholly-Owned Subsidiary, an
Unrestricted Subsidiary or a Non-Profit Entity) (A) to become a party to the Guarantee and Security
Agreement, (B) to take such actions necessary or advisable to grant to the Administrative Agent for
the benefit of the Lenders a perfected first priority security interest subject to the Liens
permitted under Section 7.3 in the Collateral described in the Guarantee and Security Agreement
with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing
statements in such jurisdictions as may be required by the Guarantee and Security Agreement or by
law or as may be requested by the Administrative Agent (other than foreign Collateral documents)
and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in
the form of Exhibit C or in such other form as may be acceptable to the Administrative Agent, with
appropriate insertions and attachments, and (iv) if reasonably requested by the Administrative
Agent, deliver to the Administrative Agent legal opinions relating to the matters described above,
which opinions shall be in form and substance consistent with those delivered on the Closing Date
or otherwise, and from counsel, reasonably satisfactory to the Administrative Agent;
provided that (1) Holdings and the Borrower shall not be required to take, or cause any
Subsidiary to take, the actions required by this paragraph (c) with respect to any such new
Subsidiary prior to the delivery of financial statements delivered pursuant to Section 6.1(a) or
(b) for the fiscal quarter of the Borrower during which such new Subsidiary was created or acquired
unless (x) the aggregate amount of Investments made by the Group Members in all such new
Subsidiaries exceeds $10,000,000 prior to the end of such fiscal quarter or (y) a Default has
occurred and is continuing and (2) Holdings and the Borrower shall not be required to provide the
legal opinions required by this paragraph (c) if the applicable new Subsidiary (on a consolidated
basis) accounts for less than 1% of the assets, revenues or Consolidated EBITDA of the Borrower, in
each case on a pro forma basis as of the end of and for the four fiscal quarters most recently
ended for which financial statements have been delivered under Section 6.1 (a) or (b), as though
such Subsidiary had become a Subsidiary at the beginning of such period, unless such new
Subsidiary, together with all other Subsidiary Guarantors organized in the same jurisdiction with
respect to which no opinions have been received by the Administrative Agent, account for 4% of more
of the assets, revenues or Consolidated EBITDA of the Borrower (determined on the same basis as
provided above).




     6.10 Initial Mortgages. Deliver to the Administrative Agent on or before the date
which is 180 days after the Closing Date (which period may be extended by the Administrative Agent
from time to time in its reasonable discretion), (i) a Mortgage in favor of (and reasonably
satisfactory in form and substance to) the Administrative Agent in respect of each of the Initial
Mortgaged Properties, executed by the record owner of such Initial Mortgaged Property and recorded
by a nationally recognized title insurance company, (ii) with respect to each Initial Mortgaged
Property, a Flood Determination indicating that such Initial Mortgaged Property is not located in a
Special Flood Hazard Area and (iii) with respect to each owned real property listed on Schedule 4.8
which is not identified as an Initial Mortgaged Property solely by virtue of its being located in a
Special Flood Hazard Area, a Flood Determination indicating that such Initial Mortgaged Property
(or a portion thereof) is located in a Special Flood Hazard Area.



     6.11 Designation of Subsidiaries. The board of directors of the Borrower may at any
time designate any Restricted Subsidiary as an Unrestricted Subsidiary or any Unrestricted
Subsidiary as a Restricted Subsidiary; provided that (a) immediately before and after such
designation, no Default shall have occurred and be continuing and (b) immediately after giving
effect to such designation, the Borrower and its Restricted Subsidiaries shall be in compliance, on
a pro forma basis, with the covenants set forth in Section 7.1 (and, as a condition precedent to
the effectiveness of any such designation, the Borrower shall deliver to the Administrative Agent a
certificate setting forth in reasonable detail the calculations demonstrating such compliance).
The designation of any Subsidiary as an Unrestricted Subsidiary shall constitute an Investment by
Borrower or the relevant Restricted Subsidiary (as applicable) therein at the date of designation
in an amount equal to the fair market value of such Person’s (as applicable) investment therein and
the Investment resulting from such designation must otherwise be in compliance with Section 7.8.
The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute a
reduction



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in any outstanding Investment (i.e., increase to the applicable Investment basket the incurrence
at the time of designation of any Indebtedness or Liens of such Subsidiary existing at such time.
As of the date hereof, there are no Unrestricted Subsidiaries.




SECTION 7




NEGATIVE COVENANTS



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



     7.1 Financial Condition Covenants.



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




	 	 	 	 	 
	Fiscal Quarter	 	Consolidated
	Ending	 	Leverage Ratio
	September 30, 2011
	 	 	7.25x	 
	December 31, 2011
	 	 	7.25x	 
	March 31, 2012
	 	 	7.25x	 
	June 30, 2012
	 	 	7.25x	 
	September 30, 2012
	 	 	7.25x	 
	December 31, 2012
	 	 	6.75x	 
	March 31, 2013
	 	 	6.75x	 
	June 30, 2013
	 	 	6.50x	 
	September 30, 2013
	 	 	6.50x	 
	December 31, 2013
	 	 	6.00x	 
	March 31, 2014
	 	 	6.00x	 
	June 30, 2014
	 	 	6.00x	 
	September 30, 2014
	 	 	5.50x	 
	December 31, 2014
	 	 	5.50x	 
	March 31, 2015
	 	 	5.50x	 
	June 30, 2015
	 	 	5.50x	 
	September 30, 2015
	 	 	5.00x	 
	December 31, 2015
	 	 	5.00x	 
	March 31, 2016
	 	 	5.00x	 
	June 30, 2016
	 	 	5.00x	 
	September 30, 2016 and thereafter
	 	 	4.50x	 






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





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	Fiscal Quarter	 	Consolidated Interest
	Ending	 	Coverage Ratio
	September 30, 2011
	 	 	1.30x	 
	December 31, 2011
	 	 	1.30x	 
	March 31, 2012
	 	 	1.35x	 
	June 30, 2012
	 	 	1.35x	 
	September 30, 2012
	 	 	1.40x	 
	December 31, 2012
	 	 	1.40x	 
	March 31, 2013
	 	 	1.45x	 
	June 30, 2013
	 	 	1.45x	 
	September 30, 2013
	 	 	1.55x	 
	December 31, 2013
	 	 	1.55x	 
	March 31, 2014
	 	 	1.55x	 
	June 30, 2014
	 	 	1.55x	 
	September 30, 2014
	 	 	1.70x	 
	December 31, 2014
	 	 	1.70x	 
	March 31, 2015
	 	 	1.70x	 
	June 30, 2015
	 	 	1.70x	 
	September 30, 2015
	 	 	1.85x	 
	December 31, 2015
	 	 	1.85x	 
	March 31, 2016
	 	 	1.85x	 
	June 30, 2016
	 	 	1.85x	 
	September 30, 2016 and thereafter
	 	 	1.95x	 






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




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




     (b) Indebtedness of (i) the Borrower to any Restricted Subsidiary and of any Subsidiary
Guarantor to the Borrower or any other Restricted Subsidiary and (ii) of any Subsidiary that
is not a Guarantor to (x) the Borrower or any Subsidiary Guarantor to the extent not in
violation of Section 7.8 or (y)any other Subsidiary that is not a Guarantor;
provided that any such Indebtedness of a Loan Party shall be subordinated to the
Obligations (other than the Specified Swap Agreements and Cash Management Obligations) on
terms reasonably satisfactory to the Administrative Agent;




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




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




     (e) Indebtedness (including, without limitation, Capital Lease Obligations, including
those incurred pursuant to Sale Leaseback Transactions) secured by Liens permitted by
Section 7.3(g) (or Section 7.3(w), in the case of a Sale Leaseback Transaction), and any
Permitted Refinancing Indebtedness in respect of such Indebtedness, in an aggregate
principal amount not to exceed the sum of $25,000,000 at any one time outstanding;




     (f) Indebtedness of the Borrower in respect of the Senior Notes in an aggregate
principal amount not to exceed $250,000,000 (and Permitted Refinancing Indebtedness in
respect of any such Indebtedness) and Guarantee Obligations of Holdings and any Subsidiary
Guarantor in respect of such Indebtedness;



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     (g) Indebtedness of the Borrower or any of its Restricted Subsidiaries acquired or
assumed pursuant to a Permitted Acquisition which Indebtedness was in existence at the time
of such Permitted Acquisition and not incurred in contemplation thereof (and any Permitted
Refinancing Indebtedness in respect of any such Indebtedness), in an aggregate principal
amount not to exceed $30,000,000 at any time outstanding;




     (h) any other Indebtedness of the Borrower or any of its Restricted Subsidiaries in an
aggregate amount not exceeding $50,000,000 at any one time outstanding; provided,
however, in no event shall any Indebtedness of Restricted Subsidiaries which are not
Guarantors, exceed $20,000,000 at any one time outstanding;




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




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




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




     (l) Indebtedness of any Loan Party (other than Holdings) consisting of promissory notes
or similar obligations issued by such Loan Party relating to licenses to be acquired in
connection with a Permitted Acquisition that cannot be transferred to such Loan Party prior
to or concurrently with the consummation of such Permitted Acquisition not exceeding
$20,000,000 at any one time outstanding;




     (m) Indebtedness consisting of promissory notes issued by the Borrower to officers,
directors and employees of Holdings, the Borrower or any Restricted Subsidiary of the
Borrower to purchase or redeem Capital Stock of Holdings or any of its direct or indirect
parent companies to the extent permitted hereunder, in an aggregate amount not exceeding
$1,500,000 at any time outstanding;




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




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




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




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




     (r) unsecured Indebtedness or Indebtedness that is subordinated to the Obligations (on
terms no less favorable to holders of senior debt than the subordination provisions
applicable to the Existing Notes of the Borrower) of the Borrower incurred to finance a
Permitted Acquisition within 90 days of the incurrence of such Indebtedness and any
Permitted Refinancing Indebtedness



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 in respect of any such Indebtedness; provided that (i) in addition to
and without limitation of compliance with clause (d) of the definition of “Permitted
Acquisition”, the Consolidated Leverage Ratio as of the end of the most recent fiscal
quarter for which financial statements are available (determined on a pro forma basis as
provided in such clause (d)) shall not exceed 5.5 to 1.0, (ii) such Indebtedness matures
after, and does not require any scheduled amortization or other scheduled payments of
principal prior to, the date that is ninety-one (91) days after the Tranche B Maturity Date
(it being understood that such Indebtedness may have mandatory prepayment, repurchase or
redemption provisions satisfying the requirement of clause (iii) hereof), (iii) such
Indebtedness has terms and conditions (other than interest rate, redemption premiums and
subordination terms), taken as a whole, that are not materially less favorable to the
Borrower than the terms and conditions of the Senior Notes as of the Closing Date and (iv)
such Indebtedness is incurred by the Borrower and is not guaranteed by any Restricted
Subsidiary of the Borrower other than the Subsidiary Guarantors and Holdings;




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




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




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




     (v) Indebtedness of Holdings and the Borrower or any Subsidiary Guarantor under the
Mortgage Facility and any Permitted Refinancing Indebtedness in respect of any such
Indebtedness; provided that the aggregate amount of Indebtedness outstanding and
incurred pursuant to this clause (v) does not at any one time exceed $6,000,000;



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




     (x) Indebtedness of Foreign Subsidiaries that are Restricted Subsidiaries or Restricted
Subsidiaries thereof to finance working capital and general corporate purposes not exceeding
$10,000,000 at any time outstanding.



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




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




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




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




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




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




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




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




     (h) Liens created pursuant to the Security Documents;



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




     (j) rights of setoff or bankers’ liens upon deposits of cash in favor of banks or other
depository institutions whether arising by contract or operation of law, incurred in the
ordinary course of business so long as such deposits are not intended to be collateral for
any obligations;




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




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




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




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




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




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




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




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




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




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




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



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     (v) Liens not otherwise permitted by this Section so long as the aggregate outstanding
principal amount of the obligations secured thereby does not exceed $20,000,000 at any one
time;




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




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




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




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




     (aa) zoning, building codes and other land use laws regulating the use or occupancy of
real property or the activities conducted thereon which are imposed by any Governmental
Authority having jurisdiction over such real property and are not violated by the current
use or occupancy of such real property or materially interfere with the ordinary conduct of
the business of the Borrower or any of its Restricted Subsidiaries thereon;




     (bb) Liens securing repurchase obligations under Cash Equivalents;




     (cc) Liens securing the Institutional Letters of Credit;




     (dd) Liens on assets of non-Guarantors to secure Indebtedness under Section 7.2(x); and




     (ee) Liens on the equity interest of Unrestricted Subsidiaries.



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




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




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



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




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




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




     (f) in connection with an Initial Public Offering, (i) Holding may merge into the
Borrower and (ii) the Borrower may merge into Holdings.



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




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




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




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




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




     (e) the Disposition for market value of other property in the aggregate having a book
value not exceeding 15% of the consolidated assets of the Borrower and its Restricted
Subsidiaries in the aggregate from and after the Closing Date (with consolidated assets
being determined at the time of any such Disposition by reference to the most recent
consolidated financial statements delivered pursuant to Section 6.1); provided that
if such Disposition, together with all related Dispositions, involves assets with a value in
excess of $5.0 million, not less than 75% of the total consideration for any such
Disposition shall be paid to the Borrower in cash or within 180 days after the consummation
of such Disposition is reasonably expected to and shall be converted into cash; and
provided, further, that any liabilities that, if not assumed by the
transferee with respect to the applicable Disposition, would have been deducted in
calculating the Net Cash Proceeds from such Disposition but that are assumed by the
transferee with respect to the applicable Disposition and for which the Borrower and all of
the Restricted Subsidiaries shall have been validly released by all applicable creditors in
writing, shall be treated as cash consideration;




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




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



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




     (i) like-kind exchanges of existing assets for similar replacement assets, so long as
the receipt of the replacement assets in such exchange occurs promptly following the
transfer thereof; provided that to the extent the assets that were subject to, and exchanged
in connection with, such like-kind exchange constituted Collateral, assets acquired in
connection therewith shall constitute Collateral; and




     (j) any of the Borrower and its Restricted Subsidiaries shall be permitted to dispose
of the Capital Stock of an Unrestricted Subsidiary for fair market value.



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



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


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





     (a) any Restricted Subsidiary may make Restricted Payments to the Borrower or its
equity holders on a pro rata basis;




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



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Borrower may pay dividends to Holdings to permit Holdings to pay, or to pay dividends
to or any of its direct or indirect parent companies permit the or any of its direct or
indirect parent companies to pay, Management Fees;




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




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




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




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




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




     (h) the Borrower may directly or indirectly make distributions to Holdings (and
Holdings may make distributions to or any of its direct or indirect parent companies) or
make payments on behalf of Holdings (or any of its direct or indirect parent companies), to
the extent necessary to pay the taxes and the operating and administrative expenses of
Holdings (or any of its direct or indirect parent companies) incurred in the ordinary course
of its business including, without limitation, reasonable directors’ fees and expenses;
provided that all dividends or other distributions made directly or indirectly to,
or payments made on behalf of, any of its direct or indirect parent companies pursuant to
this clause (h) and clause (c) above shall not exceed $6,500,000 in the aggregate;




     (i) Holdings may purchase Existing Notes of NMH Holdings, Inc. and Holdings (and
Borrower and Holdings may make distributions to NMH Holdings, Inc. and Holdings for that
purpose) and the Borrower may purchase or otherwise acquire Existing Notes of Borrower;




     (j) in addition to the foregoing Restricted Payments and so long as no Default shall
have occurred and be continuing or would result therefrom, the Borrower may make additional
Restricted Payments to Holdings the proceeds of which may be utilized by Holdings to make
additional Restricted Payments, in an aggregate amount, not to exceed the sum of (i)
$15,000,000, (ii) the aggregate amount of the Net Cash Proceeds from issuances of Permitted
Capital Stock of Holdings after the Closing Date that have been contributed to the Borrower
as common equity and Not Otherwise Applied and (iii) if the Consolidated Leverage Ratio as
of the last day of the most recent fiscal quarter for which financial statements have been
delivered pursuant to Section 6.1 (after giving pro forma effect to such additional
Restricted Payments and any Indebtedness incurred in connection therewith) is 4.75:1 or
less, the amount of Cumulative Excess Cash Flow that is Not Otherwise Applied;



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     (k) any Permitted SRS Distribution;




     (l) with respect to any taxable period during which the Borrower or any of its
Subsidiary is a member of a consolidated, unitary, combined or similar tax group in which
NMH Holdings, Inc. (or any direct or indirect parent of NMH Holdings, Inc.) is the common
parent, the Borrower (or another Restricted Subsidiary of the Borrower) may directly (or
indirectly through Holdings) make payment to NMH Holdings, Inc. in order for NMH Holdings,
Inc. (or any direct or indirect parent of NMH Holdings, Inc.) to pay the portion of its
consolidated, unitary, combined or similar U.S. federal, state and local and non-U.S. income
taxes attributable to the income of the Borrower and any of its Subsidiaries in an amount
not to exceed the income tax liabilities that would have been payable by the Borrower and
its Subsidiaries on a stand-alone basis, reduced by any such income taxes paid or to be paid
directly by the Borrower or its Subsidiaries; provided that the amount of any such payments,
dividends or distributions attributable to any income of an Unrestricted Subsidiary shall be
limited to the cash distributions made by such Unrestricted Subsidiary to the Borrower or
its Restricted Subsidiaries for such purpose; and




     (m) the Borrower or any Restricted Subsidiary may make Restricted Payments with the
Capital Stock of, and/or the proceeds of the sale of Capital Stock of, an Unrestricted
Subsidiary or proceeds of a dividend or distribution from an Unrestricted Subsidiary if
after giving effect to such Restricted Payment the fair market value of the Investments of
Group Members in the applicable Unrestricted Subsidiary (plus any cash dividend or
distributed to Group Members by an Unrestricted Subsidiary and retained by Group Members) is
at least equal to the fair market value of all Investments in such Unrestricted Subsidiary
valued at the respective times such Investments were made.



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




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



	 	 	 	 
	Fiscal Year	 	Capital Expenditure	 
	Ending	 	Limit	 
	September 30, 2011

	 	$28.0 million	 
	September 30, 2012

	 	$28.0 million	 
	September 30, 2013

	 	$33.0 million	 
	September 30, 2014

	 	$33.0 million	 
	September 30, 2015

	 	$33.0 million	 
	September 30, 2016

	 	$33.0 million	 







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




     (b) Excluded Capital Expenditures.



     7.8 Investments. Make any advance, loan, extension of credit (by way of guaranty or
otherwise) or capital contribution to, or purchase any Capital Stock, bonds, notes, debentures or
other debt securities of, or any assets constituting a business unit of, or make any other
investment in, any Person



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(all of the foregoing, “Investments”), except in the case of Holdings and any of its
Restricted Subsidiaries (other than any Insurance Subsidiary unless otherwise expressly included in
this Section 7.8 or permitted by Section 7.17):





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




     (b) Investments in Cash Equivalents;




     (c) Guarantee Obligations permitted by Section 7.2;




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




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




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




     (g) Permitted Acquisitions;




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




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




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




     (k) the Borrower and its Restricted Subsidiaries may make Investments and guarantees
expressly permitted under Sections 7.2, 7.4, 7.5 and 7.6;




     (l) the Borrower and its Restricted Subsidiaries may make an Investment that could
otherwise be made as a Restricted Payment to the extent the related advance or investment
would



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be permitted under clause (j) of Section 7.6 (it being understood that any such
Investment shall be deemed to be and shall count as a Restricted Payment for purposes of
clause (j) of Section 7.6);




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




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




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




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




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




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




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




     (t) Investments by the Borrower and the Restricted Subsidiaries in Restricted
Subsidiaries (other than Insurance Subsidiaries) that are not Guarantors, which does not
exceed the greater of (i) $25,000,000 or (ii) 2.5% of Total Assets at any one time
outstanding;




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




     (v) Investments consisting of loans and advances to employees of any Group Member
(including for travel, entertainment and relocation expenses) not exceeding $2,500,000 in
the aggregate at any time outstanding;




     (w) Investments in less than 50% of the equity interest of other Persons (“Minority
Investments”) held by a Restricted Subsidiary acquired pursuant to a Permitted Acquisition,
which Minority Investments existed at the time of such Permitted Acquisition and were not
made in contemplation of or in connection with such Permitted Acquisition; provided,
however, that the aggregate amount of all such Minority Investments (determined,
with respect to each such Minority Investment, based on the fair market value thereof as of
the date of the relevant Permitted Acquisition) shall not exceed 33% of the total assets of
the Subsidiary to be acquired;




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




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     (y) so long as immediately after giving effect to any such Investment, no Default has
occurred and is continuing and the Borrower and its Restricted Subsidiaries will be in
compliance with the covenants set forth in Section 7.1 as of the last day of the most recent
fiscal quarter for which financial statements have been delivered pursuant to Section 6.1
(after giving pro forma effect to such Investment and any Indebtedness incurred in
connection therewith), other Investments that do not exceed, in the aggregate, $15,000,000;
plus any amount that could otherwise be made as a Restricted Payment permitted at the time
under clause (j) of Section 7.6 (it being understood that any amounts so applied shall be
deemed to be and count as Restricted Payments for purposes of clause (j) of Section 7.6);




     (z) Investments in the form of or made out of the proceeds of an issuance of Permitted
Capital Stock;




     (aa) Investments by the Borrower and the Restricted Subsidiaries in Foreign
Subsidiaries not to exceed the greater of $12,500,000 at any one time outstanding;




     (bb) Investments in any Unrestricted Subsidiary in lieu of Restricted Payments that
could be made pursuant to Section 7.6(l); and




     (cc) any retained equity interest in a Person (including an Unrestricted
Subsidiary) whose equity interests were the subject of a Permitted SRS
Distribution.



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



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



     7.10 Transactions with Affiliates. Enter into any transaction, including any
purchase, sale, lease or exchange of property, the rendering of any service or the payment of any
management, advisory or similar fees, with any Affiliate (other than Holdings, the Borrower or any
Subsidiary Guarantor) unless



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such transaction is (a) otherwise permitted under this Agreement and (b) upon fair and
reasonable terms no less favorable to the relevant Group Member than it would obtain in a
comparable arm’s length transaction with a Person that is not an Affiliate. Notwithstanding the
foregoing, (i) Holdings and its Restricted Subsidiaries may pay to the Sponsor fees pursuant to and
in accordance with the Management Agreement as in effect on the Closing Date (and not prior to the
times payable under the Management Agreement as in effect on the Closing Date) (the “Management
Fees”) and expenses and indemnities in connection therewith (which fees, but not expenses or
indemnities (which shall not be restricted), may only be paid when no Event of Default has occurred
and is continuing), (ii)Holdings, the Borrower and its Restricted Subsidiaries may pay customary
fees to, and the out-of-pocket expenses of, its board of directors, employees and officers and may
provide customary corporate indemnities for the benefit of members of its board of directors,
employees and officers, (iii) the payment of Closing Costs, (iv) Restricted Payments permitted
under Section 7.6, and (v) transactions pursuant to permitted agreements in existence on the
Closing Date and set forth on Schedule 7.10 or any amendment thereto to the extent such an
amendment is not adverse to the Lenders in any material respect.




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



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



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



     7.14 Negative Pledge Clauses. Enter into or suffer to exist or become effective any
agreement that prohibits or limits the ability of any Group Member to create, incur, assume or
suffer to exist any Lien upon any of its property or revenues, whether now owned or hereafter
acquired, to secure its obligations under the Loan Documents to which it is a party other than (a)
this Agreement and the other Loan Documents, the Senior Note Indenture, Existing Notes, the
Mortgage Facility or documents evidencing Indebtedness incurred under Sections 7.2(e), (g), (h),
(r), (s) and (x) and any Permitted Refinancing Indebtedness in respect of any such Indebtedness,
(b) any agreements governing any Indebtedness secured by Liens permitted hereby (in which case, any
prohibition or limitation shall only be effective



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




     7.15 Clauses Restricting Subsidiary Distributions. Enter into or suffer to exist or
become effective any consensual encumbrance or restriction on the ability of any Restricted
Subsidiary of the Borrower to (a) make Restricted Payments in respect of any Capital Stock of such
Restricted Subsidiary held by, or pay any Indebtedness owed to, the Borrower or any other
Restricted Subsidiary of the Borrower, (b) make loans or advances to, or other Investments in, the
Borrower or any other Restricted Subsidiary of the Borrower or (c) transfer any of its assets to
the Borrower or any other Restricted Subsidiary of the Borrower, except for (x) agreements which
(i) are binding on a Restricted Subsidiary at the time such Restricted Subsidiary first becomes a
Restricted Subsidiary, so long as such agreements were not entered into in contemplation of such
Person becoming a Restricted Subsidiary, (ii) are customary provisions in joint venture agreements
and other similar agreements applicable to joint ventures permitted under Section 7.8 and
applicable solely to such joint venture entered into in the ordinary course of business, (iii) are
customary restrictions on leases, subleases, licenses or asset sale agreements otherwise permitted
hereby so long as such restrictions relate to the assets subject thereto, (iv) are customary
provisions restricting subletting or assignment of any lease governing a leasehold interest of the
Borrower or any Restricted Subsidiary, (v) are customary provisions restricting assignment of any
agreement entered into in the ordinary course of business, and (vi) are restrictions on cash or
other deposits imposed by customers under contracts entered into in the ordinary course of
business), (y) such encumbrances or restrictions existing under or by reason of (i) any
restrictions existing under the Loan Documents, or the Senior Notes Indenture, the Mortgage
Facility or documents evidencing Indebtedness incurred under Sections 7.2(e), (r), (s) and (x) and
any Permitted Refinancing Indebtedness in respect of any such Indebtedness or (ii) any restrictions
with respect to a Subsidiary imposed pursuant to an agreement that has been entered into in
connection with the Disposition of all or substantially all of the Capital Stock or assets of such
Subsidiary and (z) restrictions applicable only to Foreign Subsidiaries.



     7.16 Lines of Business. Enter into any business, either directly or through any
Restricted Subsidiary, except for those businesses in which the Borrower and its Restricted
Subsidiaries are engaged on the date of this Agreement or that are reasonably related,
complementary or ancillary thereto, including relating to social services, it being understood and
acknowledged that any Insurance Subsidiary shall be the only entity conducting insurance business
(and business reasonably related thereto) and that any Insurance Subsidiary shall be engaged for
the underwriting of insurance policies for Holdings, the Borrower and its Restricted Subsidiaries
and each of such Person’s respective employees, officers or directors. As to Holdings, engage in
any business except for holding all of the Capital Stock of the Borrower and activities incidental
thereto and other transactions specifically permitted hereunder. In connection therewith, Holdings
shall have no Indebtedness other than Indebtedness under the Loan Documents and other transactions
specifically permitted hereunder, tax liabilities incurred in the ordinary course of business, and
administrative expenses incurred in the ordinary course of business.



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



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     (a) Investments in Cash Equivalents;




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




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




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



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


7.19 Limitations on Institutional L/C Collateral Account. Permit Holdings or any of its
Subsidiaries to withdraw or apply the funds deposited in the Institutional L/C Collateral Account
for any purpose other than to (i) prepay the Loans; (ii) cash collateralize any Institutional L/C
Exposure; or (iii) secure any Obligations hereunder in a manner reasonably satisfactory to the
Administrative Agent.




SECTION 8




EVENTS OF DEFAULT



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




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




     (b) any representation or warranty made or deemed made by any Loan Party herein or in
any other Loan Document or that is contained in any certificate, document or financial or
other statement furnished by it at any time under or in connection with this Agreement or
any such other Loan Document shall prove to have been inaccurate in any materially adverse
respect on or as of the date made or deemed made; or




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



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




     (e) any Group Member shall (i) default in making any payment of any principal of any
Indebtedness (including any Guarantee Obligation, but excluding the Obligations) on the
scheduled or original due date with respect thereto; or (ii) default in making any payment
of any interest on any such Indebtedness (excluding the Obligations), in each case, beyond
the period of grace, if any, provided in the instrument or agreement under which such
Indebtedness was created and such default has not been waived; or (iii) default in the
observance or performance of any other agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, the effect of which default or
other event or condition is to cause, or to permit the holder or beneficiary of such
Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to cause, with
the giving of notice if required, such Indebtedness to become due prior to its stated
maturity or (in the case of any such Indebtedness constituting a Guarantee Obligation) to
become payable and such default has not been waived; provided, that a default, event
or condition described in clause (i), (ii) or (iii) of this paragraph (e) shall not at any
time constitute an Event of Default unless, at such time, one or more defaults, events or
conditions of the type described in clauses (i), (ii) and (iii) of this paragraph (e) shall
have occurred and be continuing with respect to Indebtedness the outstanding principal
amount of which exceeds in the aggregate $20,000,000; or




     (f) (i) any Group Member shall commence any case, proceeding or other action (A) under
any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts, or (B) seeking appointment of a receiver,
trustee, custodian, conservator or other similar official for it or for all or any
substantial part of its assets, or any Group Member shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against any Group Member any
case, proceeding or other action of a nature referred to in clause (i) above that (A)
results in the entry of an order for relief or any such adjudication or appointment or (B)
remains undismissed or undischarged for a period of 60 days; or (iii) there shall be
commenced against any Group Member any case, proceeding or other action seeking issuance of
a warrant of attachment, execution, distraint or similar process against all or any
substantial part of its assets that results in the entry of an order for any such relief
that shall not have been vacated, discharged, or stayed or bonded pending appeal within 60
days from the entry thereof; or (iv) any Group Member shall take any action in furtherance
of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth
in clause (i), (ii), or (iii) above; or (v) any Group Member shall generally not, or shall
be unable to, or shall admit in writing its inability to, pay its debts as they become due;
or




     (g) (i) any Person shall engage in any non-exempt “prohibited transaction” (as defined
in Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (ii) a failure to
satisfy the minimum funding standard (within the meaning of Section 302 of ERISA or Section
412 of the Code), whether or not waived, or any Lien in favor of the PBGC or a Plan shall
arise on the assets of the Borrower or any Commonly Controlled Entity, (iii) a Reportable
Event shall occur with respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to terminate, any Single
Employer Plan, which Reportable



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Event or commencement of proceedings or appointment of a trustee is, in the reasonable
opinion of the Required Lenders, likely to result in the termination of such Plan for
purposes of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for purposes of
Title IV of ERISA, (v) the Borrower or any Commonly Controlled Entity shall incur any
liability in connection with a withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other similar event or condition shall occur or exist with
respect to a Plan; and in each case in clauses (i) through (vi) above, such event or
condition, together with all other such events or conditions, if any, would, in the
reasonable opinion of the Required Lenders, reasonably be expected to have a Material
Adverse Effect; or




     (h) one or more judgments or decrees shall be entered against any Group Member
involving in the aggregate a liability (not paid or fully covered by insurance as to which
the relevant insurance company has not denied coverage) of $20,000,000 or more, and all such
judgments or decrees shall not have been vacated, discharged, stayed or bonded pending
appeal within 45 days from the entry thereof; or




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




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




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




     (l) any Permitted Acquisition Debt that is required to be subordinated to the
Obligations or any Permitted Additional Subordinated Debt (or any Permitted Refinancing
Indebtedness in respect of any of the foregoing) or the guarantees thereof shall cease, for
any reason, to be validly subordinated to the Obligations or the obligations of the
Subsidiary Guarantors under the Guarantee and Security Agreement, as the case may be, as
provided in the applicable documentation in respect of such Indebtedness; or




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




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




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



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then, and in any such event, (A) if such event is an Event of Default specified in clause (i) or
(ii) of paragraph (f) above with respect to the Borrower, automatically the Commitments shall
immediately terminate and the Loans (with accrued interest thereon) and all other amounts owing
under this Agreement and the other Loan Documents (including all amounts of Reimbursement
Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit shall have
presented the documents required thereunder) shall immediately become due and payable, and (B) if
such event is any other Event of Default, either or both of the following actions may be taken:
(i) with the consent of the Required Lenders, the Administrative Agent may, or upon the request of
the Required Lenders, the Administrative Agent shall, by notice to the Borrower declare the
Commitments to be terminated forthwith, whereupon the Commitments shall immediately terminate; and
(ii) with the consent of the Required Lenders, the Administrative Agent may, or upon the request of
the Required Lenders, the Administrative Agent shall, by notice to the Borrower, declare the Loans
(with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan
Documents (including all amounts of Reimbursement Obligations, whether or not the beneficiaries of
the then outstanding Letters of Credit shall have presented the documents required thereunder) to
be due and payable forthwith, whereupon the same shall immediately become due and payable. With
respect to all Letters of Credit with respect to which presentment for honor shall not have
occurred at the time of an acceleration pursuant to this paragraph, the Borrower shall at such time
deposit in a cash collateral account opened by the Administrative Agent an amount equal to the
aggregate then undrawn and unexpired amount of such Letters of Credit. Amounts held in such cash
collateral account shall be applied by the Administrative Agent to the payment of Reimbursement
Obligations in respect of drafts drawn under such Letters of Credit, and the unused portion thereof
after all such Letters of Credit shall have expired or been fully drawn upon, if any, shall be
applied to repay other Obligations. After all such Letters of Credit shall have expired or been
fully drawn upon, all Reimbursement Obligations shall have been satisfied and all other Obligations
shall have been paid in full, the balance, if any, in such cash collateral account shall be
returned to the Borrower (or such other Person as may be lawfully entitled thereto). Except as
expressly provided above in this Section, presentment, demand, protest and all other notices of any
kind are hereby expressly waived by the Borrower.




SECTION 9




THE AGENTS



     9.1 Appointment and Authority. Each of the Lenders and the Issuing Lender hereby
irrevocably appoints UBS AG, Stamford Branch, to act on its behalf as the Administrative Agent
hereunder and under the other Loan Documents and authorizes such Agent to take such actions on its
behalf and to exercise such powers as are delegated to such Agent by the terms hereof or thereof,
together with such actions and powers as are reasonably incidental thereto. The provisions of this
Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Lender,
and neither Borrower nor any other Loan Party shall have rights as a third party beneficiary of any
of such provisions.



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



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     9.3 Exculpatory Provisions. No Agent shall have any duties or obligations except
those expressly set forth herein and in the other Loan Documents. Without limiting the generality
of the foregoing, no Agent:




     (i) shall be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing;




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




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



     No Agent shall be liable for any action taken or not taken by it (x) with the consent or at
the request of the Required Lenders (or such other number or percentage of the Lenders as shall be
necessary, or as such Agent shall believe in good faith shall be necessary, under the circumstances
as provided in Section 10.02) or (y) in the absence of its own gross negligence or willful
misconduct. No Agent shall be deemed to have knowledge of any Default unless and until notice
describing such Default is given to such Agent by Borrower, a Lender or the Issuing Lender.



     No Agent shall be responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with this Agreement or any other
Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder
or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of
the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Section 5 or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to such Agent. Without limiting the generality
of the foregoing, the use of the term “agent” in this Agreement with reference to the
Administrative Agent is not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable law. Instead, such term is used merely
as a matter of market custom and is intended to create or reflect only an administrative
relationship between independent contracting parties.



     Each party to this Agreement acknowledges and agrees that the Administrative Agent may use an
outside service provider for the tracking of all UCC financing statements required to be filed
pursuant to the Loan Documents and notification to the Administrative Agent of, among other things,
the upcoming lapse or expiration thereof, and that any such service provider will be deemed to be
acting at the request and on behalf of Borrower and the other Loan Parties. No Agent shall be
liable for any action taken or not taken by any such service provider.



     9.4 Reliance by Agent. Each Agent shall be entitled to rely upon, and shall not incur
any liability for relying upon, any notice, request, certificate, consent, statement, instrument,
document or other writing (including any electronic message, Internet or intranet website posting
or other distribution)



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believed by it to be genuine and to have been signed, sent or otherwise authenticated by the
proper person. Each Agent also may rely upon any statement made to it orally or by telephone and
believed by it to have been made by the proper person, and shall not incur any liability for
relying thereon. In determining compliance with any condition hereunder to the making of a Loan,
or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a
Lender or the Issuing Lender, the Administrative Agent may presume that such condition is
satisfactory to such Lender or the Issuing Lender unless the Administrative Agent shall have
received notice to the contrary from such Lender or the Issuing Lender prior to the making of such
Loan or the issuance of such Letter of Credit. Each Agent may consult with legal counsel (who may
be counsel for Borrower), independent accountants and other experts selected by it, and shall be
entitled to rely upon the advice of any such counsel, accountants or experts and shall not be
liable for any action taken or not taken by it in accordance with such advice.




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



     9.6 Resignation of Agent.



          (a) Each Agent may at any time give notice of its resignation to the Lenders, the Is-suing
Lender and Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall
have the right, with the Borrower’s consent, to appoint a successor, which shall be a bank with an
office in the United States, or an Affiliate of any such bank with an office in the United States.
If no such successor shall have been so appointed by the Required Lenders and shall have accepted
such appointment within 30 days after the retiring Agent gives notice of its resignation, then the
retiring Agent may, on behalf of the Lenders and the Issuing Lender, appoint a successor Agent
meeting the qualifications set forth above provided that if the Agent shall notify Borrower
and the Lenders that no qualifying person has accepted such appointment, then such resignation
shall nonetheless become effective in accordance with such notice and (1) the retiring Agent shall
be discharged from its duties and obligations hereunder and under the other Loan Documents (except
that in the case of any collateral security held by the Administrative Agent on behalf of the
Lenders or the Issuing Lender under any of the Loan Documents, the retiring Administrative Agent
shall continue to hold such collateral security as nominee until such time as a successor
Administrative Agent is appointed) and (2) all payments, communications and determinations provided
to be made by, to or through an Agent shall instead be made by or to each Lender and the Issuing
Lender directly, until such time as the Required Lenders appoint a successor Agent as provided for
above in this paragraph. Upon the acceptance of a successor’s appointment as Agent hereunder, such
successor shall succeed to and become vested with all of the rights, powers, privileges and duties
of the retiring (or retired) Agent, and the retiring Agent shall be discharged from all of its
duties and obligations hereunder or under the other Loan Documents (if not already discharged
therefrom as provided above in this paragraph). The fees payable by Borrower to a successor Agent
shall be the same as those payable to its predecessor unless otherwise agreed between Borrower and
such successor. After the retiring Agent’s resignation hereunder and under the other Loan
Documents, the provisions of this Section 9 shall continue in effect for the benefit of such
retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while the retiring Agent was acting as Agent.




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          (b) The Issuing Lender or the Swingline Lender may at any time give notice of its resignation
to the Lenders, the Administrative Agent and Borrower. Upon receipt of any such notice of
resignation, the Required Lenders shall have the right with the Borrower’s consent to appoint
a successor, which shall be a bank with an office in the United States, or an Affiliate of any such
bank with an office in the United States. If no such successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after the retiring Issuing
Lender and/or the Swingline Lender gives notice of its resignation, then the Borrower may, on
behalf of the Lenders and the Administrative Agent, appoint a successor Issuing Lender and/or the
Swingline Lender meeting the qualifications set forth above; provided that if the Issuing
Lender and/or the Swingline Lender shall notify Borrower and the Lenders that no qualifying person
has accepted such appointment, then such resignation shall nonetheless become effective in
accordance with such notice and (1) the retiring Issuing Lender and/or the Swingline Lender shall
be discharged from its duties and obligations hereunder and under the other Loan Documents and (2)
all payments, communications and determinations provided to be made by, to or through an Issuing
Lender and/or the Swingline Lender shall instead be made by or to each Lender and the
Administrative Agent directly, until such time as the Required Lenders appoint a successor Issuing
Lender and/or the Swingline Lender as provided for above in this paragraph (except as to already
outstanding Letters of Credit and Swingline Loans, as to which the Issuing Lender and the Swingline
Lender shall continue in such capacities until the Revolving L/C Exposure relating thereto shall be
reduced to zero and such Swingline Loans shall have been repaid, as applicable, or until the
successor Administrative Agent shall succeed to the roles of Issuing Lender and Swingline Lender in
accordance with the next sentence and perform the actions required by the next sentence). Upon the
acceptance of a successor’s appointment as Issuing Lender and/or Swingline Lender hereunder, unless
the Administrative Agent and/or such successor gives notice to Borrower otherwise, (i) such
successor shall succeed to and become vested with all of the rights, powers, privileges and duties
of the retiring Issuing Lender and Swingline Lender and (ii) the successor Issuing Lender shall
issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time
of such succession or make other arrangements satisfactory to the retiring Issuing Lender to
effectively assume the obligations of the retiring Issuing Lender with respect to such Letters of
Credit. At the time any such resignation of the Issuing Lender shall become effective, Borrower
shall pay all unpaid fees accrued for the account of the retiring Issuing Lender.




     9.7 Non-Reliance on Agent and Other Lenders. Each Lender and the Issuing Lender
acknowledges that it has, independently and without reliance upon any Agent or any other Lender and
based on such documents and information as it has deemed appropriate, made its own credit analysis
and decision to enter into this Agreement. Each Lender further represents and warrants that it has
had the opportunity to review the Confidential Information Memorandum and each other document made
available to it in connection with this Agreement and has acknowledged and accepted the terms and
conditions applicable to the recipients thereof. Each Lender and the Issuing Lender also
acknowledges that it will, independently and without reliance upon any Agent or any other Lender
and based on such documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based upon this
Agreement, any other Loan Document or any related agreement or any document furnished hereunder or
thereunder.



     9.8 Withholding Tax. To the extent required by any applicable law, the Administrative
Agent may withhold from any payment to any Lender an amount equivalent to any applicable
withholding tax. Without limiting or expanding the provisions of Section 2.18, 2.19 or 2.20, each
Lender shall, and does hereby, indemnify the Administrative Agent against, and shall make payable
in respect thereof within 30 days after demand therefor, any and all taxes, interest, additions to
tax and penalties and any and all related losses, claims, liabilities and expenses (including fees,
charges and disbursements of any counsel for the Administrative Agent) incurred by or asserted
against the Administrative Agent by the Internal Revenue Service or any other Governmental
Authority as a result of the failure of the Administrative Agent to properly withhold tax from
amounts paid to or for the account of any Lender for any reason



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(including, without limitation,
because the appropriate form was not delivered or not property executed, or because such Lender
failed to notify the Administrative Agent of a change in circumstance that
rendered the exemption from, or reduction of, withholding tax ineffective). A certificate as
to the amount of such payment or liability delivered to any Lender by the Administrative Agent
shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent
to set off and apply any and all amounts at any time owing to such Lender under this Agreement or
any other Loan Document against any amount due the Administrative Agent under this Section 9.08.
The agreements in this Section 9.08 shall survive the resignation and/or replacement of the
Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination
of the Commitments and the repayment, satisfaction or discharge of all other Obligations. For the
avoidance of doubt, the term “Lender” shall, for purposes of this Section 9.8, include any
Swingline Lender, any Conduit Lender and any Issuing Lender.



     9.9 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of
the Joint Bookmanagers, Joint Lead Arrangers, Syndication Agent or Documentation Agent listed on
the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any
of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, a
Lender or the Issuing Lender hereunder.



     9.10 Enforcement. Notwithstanding anything to the contrary contained herein or in any
other Loan Document, the authority to enforce rights and remedies hereunder and under the other
Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all
actions and proceedings at law in connection with such enforcement shall be instituted and
maintained exclusively by, the Administrative Agent, or as the Required Lenders may require or
otherwise direct, for the benefit of all the Lenders and the Issuing Lender; provided,
however, that the foregoing shall not prohibit (a) the Administrative Agent from exercising
on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as
Administrative Agent) hereunder and under the other Loan Documents, (b) the Issuing Lender or the
Swingline Lender from exercising the rights and remedies that inure to its benefit (solely in its
capacity as Issuing Lender or Swingline Lender, as the case may be) hereunder and under the other
Loan Documents, (c) any Lender from exercising setoff rights in accordance with, and subject to,
the terms of this Agreement, or (d) any Lender from filing proofs of claim or appearing and filing
pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under
any bankruptcy or insolvency law.



     9.11 Collateral and Guaranty Matters. Each of the Lenders (on behalf of itself, its
Affiliates and Related Parties (and in its capacity as a Lender under any Specified Swap Agreement)
and the Issuing Lender irrevocably authorize the Administrative Agent, at its option and in its
discretion,




     (a) to release any Lien on any property granted to or held by the Administrative Agent
under any Loan Document (i) upon the payment in full of all Obligations (other than
contingent obligations), termination or expiration of the Commitments of the Lenders to make
any Loan or to issue any Letter of Credit and termination or cash collateralization, in
accordance with the provisions of this Agreement, of all Letters of Credit, (ii) that is
sold or transferred or to be sold or transferred as part of or in connection with any sale
permitted hereunder or under any other Loan Document to a Person that is not a Loan Party,
(iii) that constitutes “excluded collateral” (as described in Section 3 of the Guarantee and
Security Agreement), (iv) if the property subject to such a Lien is owned by a Guarantor
upon release of such Guarantor from its Guarantee Obligation, (v) upon the designation of a
Subsidiary as an Unrestricted Subsidiary, (vi) if the property subject to such Lien is
located in an area that has been identified by the Secretary of Housing and Urban
Development as a “Special Flood Hazard Area” or other area having special flood hazards
(whether as a result of a change in the mapping of Special Flood Hazard Areas or otherwise)
and



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in which flood insurance has been made available under the National Flood Insurance Act
of 1968 or (vii) if approved, authorized or ratified in writing in accordance with Section
10.2;




     (b) to release any Guarantor from its obligations under this Agreement and other Loan
Documents if such Person ceases to be a Restricted Subsidiary (including upon the
designation of a Subsidiary as an Unrestricted Subsidiary) as a result of a transaction
permitted hereunder; and




     (c) to (x) subordinate any Lien on any property granted to or held by the
Administrative Agent under any Loan Document to the holder of any Lien on such property that
is permitted hereunder or (y) to enter into intercreditor agreements.



     Upon request by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release or subordinate its interest in particular
types or items of property, or to release any Guarantor from its obligations under this Agreement
and other Loan Documents pursuant to this Section 9.11. In each case as specified in this Section
9.11, the Administrative Agent will, at the Borrower’s expense, execute and deliver to the
applicable Loan Party such documents as such Loan Party may reasonably request to evidence the
release of such item of Collateral from the assignment and security interest granted under the
Security Documents or to subordinate its interest in such item, or to release such Guarantor from
its obligations under the Loan Documents, in each case in accordance with the terms of the Loan
Documents and this Section 9.11.



     9.12 Indemnity; Damage Waiver.



          (a) Reserved.




          (b) Reimbursement by Lenders. To the extent that Borrower for any reason fails to
indefeasibly pay any amount required under Section 10.5 to be paid by it to the Administrative
Agent (or any sub-agent thereof), the Issuing Lender, the Swingline Lender or any Related Party of
any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the Issuing Lender, the Swingline Lender or such Related Party, as the case may be,
such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought) of such unpaid amount (such indemnity shall be effective whether or
not the related losses, claims, damages, liabilities and related expenses are incurred or asserted
by any party hereto or any third party); provided that (i) the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by
or asserted against the Administrative Agent (or any such sub-agent), the Swingline Lender or the
Issuing Lender in its capacity as such, or against any Related Party of any of the foregoing acting
for the Administrative Agent (or any such sub-agent), the Swingline Lender or Issuing Lender in
connection with such capacity and (ii) such indemnity for the Swingline Lender or the Issuing
Lender shall not include losses incurred by the Swingline Lender or the Issuing Lender due to one
or more Lenders defaulting in their obligations to purchase participations of Swingline Exposure
under Section 2.7 or Revolving L/C Exposure under Section 3.4 or to make Revolving Loans under
Section 3.4 (it being understood that this proviso shall not affect the Swingline Lender’s or the
Issuing Lender’s rights against any Defaulting Lender). The obligations of the Lenders under this
paragraph (c) are subject to the provisions of Section 2.17. For purposes hereof, a Lender’s “pro
rata share” shall be determined based upon its share of the sum of the Total Revolving Extensions
of Credit, outstanding Tranche B Term Loans and unused Total Revolving Commitments and the
Institutional L/C Exposure at the time.




          (c) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable Requirements of Law, no party hereto shall assert, and each party hereto hereby waives,
any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential
or punitive damages




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(as opposed to direct or actual damages) arising out of, in connection with, or
as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated
hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of
the proceeds thereof. No Indemnitee referred to in paragraph (b) above shall be liable for any damages arising from the
use by unintended recipients of any information or other materials distributed by it through
telecommunications, electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.




          (d) Payments. All amounts due under this Section shall be payable not later than 3
Business Days after demand therefor.




          (e) Specified Swap Agreements. No Lender under any Specified Swap Agreement that
obtains the benefits of the Security Agreement or any Collateral by virtue of the provisions hereof
or of the Security Agreement or any Security Document shall have any right to notice of any action
or to consent to, direct or object to any action hereunder or under any other Loan Document or
otherwise in respect of the Collateral (including the release or impairment of any Collateral)
other than in its capacity as a Lender and, in such case, only to the extent expressly provided in
the Loan Documents. Notwithstanding any other provision of this Section 9 to the contrary, the
Administrative Agent shall not be required to verify the payment of, or that other satisfactory
arrangements have been made with respect to, Obligations arising under Specified Swap Agreements
with Lenders unless the Administrative Agent has received written notice of such Obligations,
together with such supporting documentation as the Administrative Agent may request from the
applicable Lender.




SECTION 10




MISCELLANEOUS



     10.1 Amendments and Waivers. Neither this Agreement, any other Loan Document, nor any
terms hereof or thereof may be amended, supplemented or modified except in accordance with the
provisions of this Section 10.1 or Sections 7.13 or 2.25. The Required Lenders and each Loan Party
party to the relevant Loan Document may, or, with the written consent of the Required Lenders, the
Administrative Agent and each Loan Party party to the relevant Loan Document may, from time to
time, (a) enter into written amendments, supplements or modifications hereto and to the other Loan
Documents for the purpose of adding any provisions to this Agreement or the other Loan Documents or
changing in any manner the rights of the Lenders or of the Loan Parties hereunder or thereunder or
(b) waive, on such terms and conditions as the Required Lenders or the Administrative Agent, as the
case may be, may specify in such instrument, any of the requirements of this Agreement or the other
Loan Documents or any Default or Event of Default and its consequences; provided,
however, that no such waiver and no such amendment, supplement or modification shall (i)
forgive the principal amount or extend the final scheduled date of maturity of any Loan, extend the
scheduled date of any amortization payment (but not prepayment) in respect of any Tranche B Term
Loan, reduce the stated rate of any interest or fee payable hereunder (except (x) in connection
with the waiver of applicability of any post-default increase in interest rates (which waiver shall
be effective with the consent of the Majority Facility Lenders of each adversely affected Facility)
and (y) that any amendment or modification of defined terms used in the financial covenants in this
Agreement shall not constitute a reduction in the rate of interest or fees for purposes of this
clause (i)) or extend the scheduled date of any payment thereof, or increase the amount or extend
the expiration date of any Lender’s Revolving Commitment, in each case without the written consent
of each Lender (it being understood that waivers or modifications of conditions precedent,
covenants, Defaults or Events of Default or of any mandatory reductions of Commitments shall not
constitute an increase of Commitment of any Lender and that an increase in the available portion of
any Commitment of any Lender shall not constitute an increase in the Commitment of any Lender)
directly affected thereby;



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(ii) eliminate or reduce the voting rights of any Lender under this
Section 10.1 without the written consent of such Lender; (iii) reduce any percentage specified in
the definition of Required Lenders, consent to the assignment or transfer by the Borrower of any of
its rights and obligations under this Agreement and the
other Loan Documents, release all or substantially all of the Collateral or release all or
substantially all of the Loan Parties (or Loan Parties owning all or substantially all of the
Collateral) from their obligations under the Guarantee and Security Agreement (except in accordance
with its terms), in each case without the written consent of all Lenders; (iv) amend, modify or
waive any provision of Section 2.17 without the written consent of the Majority Facility Lenders in
respect of each Facility directly and adversely affected thereby; (v) reduce the percentage
specified in the definition of Majority Facility Lenders with respect to any Facility without the
written consent of all Lenders under such Facility; (vi) amend, modify or waive any provision of
Section 9 without the written consent of the Administrative Agent; (vii) amend, modify or waive any
provision of Section 2.6 or 2.7 without the written consent of the Swingline Lender; or (viii)
amend, modify or waive any provision of Section 3 or the Institutional L/C Collateral Account
Agreement or the Institutional Letter of Credit Fee Letter without the written consent of each
Issuing Lender affected thereby (it being agreed that if the opportunity of consent is made
available to all Lenders on the same terms, only the consent of the Borrower and any of the parties
identified in clauses (i) through (viii) shall be required for an amendment, modification,
supplement or waiver referred to therein). Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Lenders and shall be binding upon the Loan Parties,
the Lenders, the Administrative Agent and all future holders of the Loans. In the case of any
waiver, the Loan Parties, the Lenders and the Administrative Agent shall be restored to their
former position and rights hereunder and under the other Loan Documents, and any Default or Event
of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend
to any subsequent or other Default or Event of Default, or impair any right consequent thereon.



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



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



     If the Borrower wishes to replace the Commitments, Loans and other extensions of credit, as
applicable, under any Facility (the “Facility Interests”) with ones having different terms,
it shall have the option, with the consent of the Administrative Agent and subject to at least
three Business Days’ advance notice to the Lenders under such Facility, instead of reducing,
terminating and repaying such Facility



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Interests to be replaced, to (i) require the Lenders under
such Facility to assign such Facility Interests to the Administrative Agent or its designees and
(ii) amend the terms thereof in accordance with this Section 10.1 (with such replacement, if
applicable, being deemed to have been made pursuant to this Section
10.1). Pursuant to any such assignment, all Facility Interests to be replaced shall be
purchased at par (allocated among the Lenders under such Facility in the same manner as would be
required if all Loans included therein were being optionally prepaid and all Commitments included
therein were being optionally reduced or terminated by the Borrower), accompanied by payment of any
accrued interest and fees thereon and any amounts owing pursuant to Section 3, 2.20 or 10.6. By
receiving such purchase price, the Lenders under such Facility shall automatically be deemed to
have assigned the Facility Interests under such Facility pursuant to the terms of the form of
Assignment and Assumption attached hereto as Exhibit A, and accordingly no other action by such
Lenders shall be required in connection therewith. The provisions of this paragraph are intended
to facilitate the maintenance of the perfection and priority of existing security interests in the
Collateral during any such replacement.



     The Borrower may, by written notice to the Administrative Agent from time to time, make one or
more offers (each, a “Loan Modification Offer”) to all the Lenders of one or more classes
of Loans and/or Commitments (each class subject to such a Loan Modification Offer, an “Affected
Class”) to make one or more Permitted Amendments (as defined below) pursuant to procedures
reasonably specified by the Administrative Agent and reasonably acceptable to the Borrower. Such
notice shall set forth (i) the terms and conditions of the requested Permitted Amendment and (ii)
the date on which such Permitted Amendment is requested to become effective (which shall not be
less than 10 Business Days nor more than 30 Business Days after the date of such notice, unless
otherwise agreed to by the Administrative Agent). Permitted Amendments shall become effective only
with respect to the Loans and Commitments of the Lenders of the Affected Class that accept the
applicable Loan Modification Offer (such Lenders, the “Accepting Lenders”) and, in the case
of any Accepting Lender, only with respect to such Lender’s Loan and Commitments of such Affected
Class as to which such Lender’s acceptance has been made.



     The Borrower and each Accepting Lender shall execute and deliver to the Administrative Agent
such documentation as the Administrative Agent shall reasonably specify to evidence the acceptance
of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall
promptly notify each Lender as to the effectiveness of each Permitted Amendment. Each of the
parties hereto hereby agrees that, upon the effectiveness of any Permitted Amendment, this
Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the
existence and terms of such Permitted Amendment and only with respect to the Loans and Commitments
of the Accepting Lenders of the Affected Class. Notwithstanding the foregoing, no Permitted
Amendment shall become effective unless the Administrative Agent, to the extent so reasonably
requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or
an officer’s certificate consistent with those delivered on the Closing Date under Sections 5.1 and
5.2.



     “Permitted Amendments” shall be (i) an extension of the final maturity date of the
applicable Loans and/or Commitments of the Accepting Lenders (provided that such extensions
may not result in having more than one additional final maturity date under this Agreement in any
year without the consent of the Administrative Agent), (ii) a reduction or elimination of the
scheduled amortization of the applicable Loans of the Accepting Lenders, (iii) change in the
required percentage with respect to the applicable Loans and/or Commitments of the Accepting
Lenders (including by implementation of a “LIBOR floor”) and the payment of additional fees to the
Accepting Lenders (any such increase and/or payments to be in the form of cash, Equity Interests or
other property to the extent not prohibited by this Agreement) and (iv) if the right to participate
in such amendment is provided to all Lenders on the same terms, a reduction of the principal amount
of the applicable Loans and/or Commitments or a conversion of the principal amount of the
applicable Loans to equity.



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



	 	 	 

	Holdings and Borrower:

	 	National Mentor Holdings, Inc.
	 

	 	313 Congress Street
	 

	 	Boston, MA 02210
	 

	 	Attention: CEO (with a copy to General Counsel)
	 

	 	Telecopy: (617) 790-4271
	 

	 	Telephone: (617) 790-4800
	 
	 	 
	with a copy to:

	 	Kirkland & Ellis LLP
	 

	 	300 North LaSalle Street
	 

	 	Chicago, IL 60654
	 

	 	Attn: Christopher Butler, P.C.
	 

	 	Fax: (312) 862-2200
	 

	 	Tel: (312) 862-2000
	 
	 	 
	Administrative Agent:

	 	UBS AG, Stamford, Branch
	 

	 	677 Washington Boulevard
	 

	 	Stamford, Connecticut 06901
	 

	 	Attention: Banking Products Services Agency
	 

	 	Telecopier No.: (203) 719-4176
	 

	 	e-mail: DL-UBSAgency@ubs.com





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




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



     10.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Administrative Agent or any Lender, any right, remedy, power or
privilege hereunder or under the other Loan Documents shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.



     10.4 Survival of Representations and Warranties. All representations and warranties
made hereunder, in the other Loan Documents and in any document, certificate or statement delivered
pursuant



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hereto or in connection herewith shall survive the execution and delivery of this
Agreement and the making of the Loans and other extensions of credit hereunder.



     10.5 Payment of Expenses. The Borrower agrees (a) to pay or reimburse each of the
Administrative Agent and the Joint Bookrunners for all its reasonable out-of-pocket costs and
expenses incurred in connection with the development, preparation and execution of, and any
amendment, supplement or modification to, this Agreement and the other Loan Documents and any other
documents prepared in connection herewith or therewith, and the consummation and administration of
the transactions contemplated hereby and thereby, including the reasonable fees and disbursements
of one counsel to the Administrative Agent and Joint Bookrunners (and one local counsel to the
Administrative Agent and Joint Bookrunners in any applicable jurisdiction as to which the
Administrative Agent reasonably determines local counsel is appropriate) and such other counsel to
the Administrative Agent and Joint Bookrunners as is retained with the Borrower’s consent, and
filing and recording fees and expenses, with statements with respect to the foregoing to be
submitted to the Borrower prior to the Closing Date (in the case of amounts to be paid on the
Closing Date) and from time to time thereafter on a quarterly basis or such other periodic basis as
the Administrative Agent shall deem appropriate, (b) to pay or reimburse each Lender and Agent for
all its reasonable costs and expenses incurred in connection with the enforcement or preservation
of any rights under this Agreement, the other Loan Documents and any such other documents,
including the fees and disbursements of one counsel to all Lenders and of counsel to the Agents,
(c) to pay, indemnify, and hold each Lender and Agent harmless from, any and all recording and
filing fees and any and all liabilities with respect to, or resulting from any delay in paying,
stamp, excise and other taxes, if any, that may be payable or determined to be payable in
connection with the execution and delivery of, or consummation or administration of any of the
transactions contemplated by, or any amendment, supplement or modification of, or any waiver or
consent under or in respect of, this Agreement, the other Loan Documents and any such other
documents, and (d) to pay, indemnify, and hold each Lender and each Agent and their respective
officers, directors, employees, affiliates, agents and controlling persons (each, an
“Indemnitee”) harmless from and against any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the other Loan Documents and any such other documents, including
any of the foregoing relating to the use of proceeds of the Loans or the violation of,
noncompliance with or liability under, any Environmental Law applicable to the operations of any
Group Member or any of the Properties and the reasonable fees and expenses of one legal counsel for
all Lenders (and one local counsel to such Lenders in any applicable jurisdiction as to which the
Lenders reasonably determine is appropriate) in connection with claims, actions or proceedings by
any Indemnitee against any Loan Party under any Loan Document (all the foregoing in this clause
(d), collectively, the “Indemnified Liabilities”), provided, that the Borrower
shall have no obligation hereunder to any Indemnitee with respect to Indemnified Liabilities to the
extent such Indemnified Liabilities are found by a final and nonappealable decision of a court of
competent jurisdiction
to have resulted from the gross negligence, bad faith or willful misconduct
of or material branch of any Loan Document by such Indemnitee (or any of such Indemnitee’s
affiliates or their respective officers, directors, employees or agents), to the extent such
Indemnitee has settled any claim without the consent of the Borrower (which is not to be
unreasonably withheld or delayed) or disputes between Lenders (other than with respect to a dispute
with a Lender in its capacity as Administration Agent, Issuing Lender or Swingline Lender).
Without limiting the foregoing, and to the extent permitted by applicable law, each of Holdings and
the Borrower agrees not to assert and to cause its Subsidiaries not to assert, and hereby waives
and agrees to cause its Subsidiaries to waive, all rights for contribution or any other rights of
recovery with respect to all claims, demands, penalties, fines, liabilities, settlements, damages,
costs and expenses of whatever kind or nature, under or related to Environmental Laws, that any of
them might have by statute or otherwise against any Indemnitee, except to the extent such claims,
demands, penalties, fines, liabilities, settlements, damages, costs, and expenses of whatever kind
or nature, under or related to Environmental Laws, are found by a final and nonappealable decision
of a court of competent jurisdiction



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to have resulted from the gross negligence, bad faith or
willful misconduct, of or material breach of any Loan Document by, such Indemnitee (or any of such
Indemnitee’s affiliates or their respective officers, directors, employees or agents), to the
extent such Indemnitee has settled any claim without the consent of
the Borrower (which is not to be unreasonably withheld or delayed) or disputes between Lenders
(other than with respect to disputes not involving acts or omissions by the Borrower). In the case
of any investigation, litigation or other proceeding to which the indemnity in clause (d) of this
Section applies, such indemnity shall be effective whether or not such investigation, litigation or
other proceeding is brought by a third party or any Group Member or an Indemnified Party, and
whether or not an Indemnified Party is otherwise a party thereto. All amounts due under this
Section 10.5 shall be payable not later than 10 days after written demand therefor. Statements
payable by the Borrower pursuant to this Section 10.5 shall be submitted to the address of the
Borrower set forth in Section 10.2, or to such other Person or address as may be hereafter
designated by the Borrower in a written notice to the Administrative Agent. The agreements in this
Section 10.5 shall survive termination of the Commitments and repayment of the Loans and all other
amounts payable hereunder.



     10.6 Successors and Assigns; Participations and Assignments.



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




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





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




     (B) the Administrative Agent (such consent not to be unreasonably withheld or delayed),
provided that no consent of the Administrative Agent shall be required for an
assignment of a Tranche B Term Loan to a Lender, an Affiliate of a Lender or an Approved
Fund; and




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




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




     (A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an
Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s
interests under any Facility, the amount of the Commitments or Tranche B Term Loans, as
applicable, of the assigning Lender subject to each such assignment (determined as of the
date the Assignment and Assumption with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $1,000,000 (or, in the case of the Revolving
Facility, $5,000,000) unless each of the Borrower and the Administrative Agent otherwise
consent, provided that no such



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consent of the Borrower shall be required if an Event
of Default under Section 8(a) or 8(f) has occurred and is continuing;




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




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




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




     (E) No assignment shall be made to (a)(x) a competitor (or any affiliate thereof) of
the Borrower or (y) any other Person identified by the Borrower to the Administrative Agent
in writing as of the Closing Date and (b) any other Person designated from time to time by
the Borrower in writing to the Administrative Agent and approved (such approval not to be
unreasonably withheld or delayed) by the Administrative Agent (each, a “Disqualified
Lender”).



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




          (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) below, from
and after the effective date specified in each Assignment and Assumption the Assignee thereunder
shall be a party hereto and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption,
be released from its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of
Sections 2.18, 2.19, 2.20 and 10.5). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 10.6 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (c) of this Section.




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



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for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for inspection by the
Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.




          (v) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning
Lender and an Assignee, the Assignee’s completed administrative questionnaire (unless the Assignee
shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Assumption and record the
information contained therein in the Register. No assignment shall be effective for purposes of
this Agreement unless it has been recorded in the Register as provided in this paragraph.
Notwithstanding anything to the contrary contained in this Agreement, the Loans and the Letter of
Credit are registered obligations and the right, title and interest of the Lenders in and to such
Loans and Letters of Credit, as the case may be, shall be transferable only in accordance with the
terms hereof. This Section 10.06(b)(v) shall be construed so that the Loans and the Letters of
Credit are at all times maintained in “registered form” within the meaning of Sections 163(f),
871(h)(2) and 881(c)(2) of the Code.




          (c) (i) Any Lender may, without the consent of the Borrower or the Administrative Agent, sell
participations to one or more banks or other entities that are not a Disqualified Lender (a
“Participant”) in all or a portion of such Lender’s rights and obligations under this
Agreement (including all or a portion of its Commitments and the Loans owing to it);
provided that (A) such Lender’s obligations under this Agreement shall remain unchanged,
(B) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations and (C) the Borrower, the Administrative Agent, the Issuing Lenders and the other
Lenders shall continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement. Any agreement pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain the sole right to enforce
this Agreement and to approve any amendment, modification or waiver of any provision of the Loan
Documents; provided that such agreement may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver that (1) requires the
consent of each Lender directly affected thereby pursuant to the proviso to the second sentence of
Section 10.1 and (2) directly affects such Participant. Subject to paragraph (c)(ii) of this
Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections
2.18, 2.19 and 2.20 (subject to the requirements and limitations of such Sections (including
Sections 2.19(d) and (e) and Sections 2.21 and 2.22 as if the Participant were a Lender) to the
same extent as if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 10.7(b) as though it were a Lender, provided such Participant
shall be subject to Section 10.7(a) as though it were a Lender. Each Lender that sells a
participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower,
maintains a register of its Participants. The entries in a Participant register shall be conclusive
absent manifest error, and the parties shall treat each Person whose mane is recorded in the
Participant register as the Participant for all purposes of this Agreement, notwithstanding a
notice to the contrary.




          (ii) A Participant shall not be entitled to receive any greater payment under Section 2.18 or
2.19 than the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant except to the extent such entitlement to a greater payment
results from a change in any Requirement of Law after the Participant became a Participant.




          (d) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender (and any initial or subsequent
pledgee or grantee, as the case may be, may in turn at any time and from time to time pledge or
grant a security interest in all or any portion of such rights as collateral security to secure
obligations of such Person),



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including any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or assignment of a security
interest; provided that no such pledge or assignment of a security interest shall release a
Lender from any of its obligations hereunder or substitute any such pledgee or Assignee for such
Lender as a party hereto.




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




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




          (g) (A) Notwithstanding anything else to the contrary contained in this Agreement, any Lender
may assign all or a portion of its Tranche B Term Loans to any Non-Debt Fund Affiliate or
Purchasing Borrower Party in accordance with Section 10.6(b); provided that:





     (i) if a Purchasing Borrower Party is an assignee, no Default or Event of Default has
occurred or is continuing or would result therefrom;




     (ii) the assigning Lender and Non-Debt Fund Affiliate or Purchasing Borrower Party
purchasing such Lender’s Tranche B Term Loans shall execute and deliver to the
Administrative Agent an assignment agreement substantially in the form of Exhibit G
(an “Affiliated Lender Assignment and Assumption”) in lieu of an Assignment and
Assumption (which shall include a customary “big boy” disclaimer by all parties thereto);




     (iii) for the avoidance of doubt, Lenders shall not be permitted to assign Revolving
Commitments or Revolving Loans to any Purchasing Borrower Party or Non-Debt Fund Affiliate;




     (iv) any Tranche B Term Loans assigned to any Purchasing Borrower Party shall be
automatically and permanently cancelled upon the effectiveness of such assignment and will
thereafter no longer be outstanding for any purpose hereunder;




     (v) no Purchasing Borrower Party may use the proceeds from Revolving Loans or Swing
Line Loans to purchase any Tranche B Term Loans; and




     (vi) no Tranche B Term Loan may be assigned to a Non-Debt Fund Affiliate pursuant to
this Section 10.6(g) if after giving effect to such assignment, Non-Debt Fund Affiliate in
the aggregate would own in excess of 20% of all Tranche B Term Loans then outstanding.



          (B) Notwithstanding anything to the contrary in this Agreement, no Non-Debt Fund Affiliate
shall have any right to (i) attend (including by telephone) any meeting or discussions (or portion
thereof) among the Administrative Agent or any Lender to which representatives of the Loan Parties
are



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not invited, and (ii) receive any information or material prepared by the Administrative Agent
or any Lender or any communication by or among the Administrative Agent and/or one or more Lenders,
except to the extent such information or materials have been made available to any Loan Party or
its representatives (and in any case, other than the right to receive notices of prepayments and
other administrative notices in respect of its Loans required to be delivered to Lenders), or (iii)
make or bring (or participate in,
other than as a passive participant in or recipient of its pro rata benefits of) any claim, in
its capacity as a Lender, against the Administrative Agent or any other Lender with respect to any
duties or obligations or alleged duties or obligations of such Agent or any other such Lender under
the Loan Documents (other than for payments due).




          (h) Notwithstanding anything in Section 10.1 or the definition of “Required Lenders” to the
contrary, for purposes of determining whether the “Required Lenders” have (i) consented (or not
consented) to any amendment, modification, waiver, consent or other action with respect to any of
the terms of any Loan Document or any departure by any Loan Party therefrom, (ii) otherwise acted
on any matter related to any Loan Document, or (iii) directed or required the Administrative Agent
or any Lender to undertake any action (or refrain from taking any action) with respect to or under
any Loan Document:





     (i) all Tranche B Term Loans held by any Non-Debt Fund Affiliate shall be deemed to be
not outstanding for all purposes of calculating whether the Required Lenders have taken any
actions; and




     (ii) all Tranche B Term Loans, Revolving Commitments and Revolving L/C Exposure held by
Debt Fund Affiliates may not account for more than 50% of the Tranche B Term Loans,
Revolving Commitments and Revolving L/C Exposure of consenting Lenders included in
determining whether the “Required Lenders” have consented to any action pursuant to Section
10.1.


Additionally, the Loan Parties and each Non-Debt Fund Affiliate hereby agree that if a case under
Title 11 of the United States Code is commenced against any Loan Party, such Loan Party shall seek
(and each Non-Debt Fund Affiliate shall consent) to provide that the vote of any Non-Debt Fund
Affiliate (in its capacity as a Lender) with respect to any plan of reorganization of such Loan
Party shall not be counted except that such Non-Debt Fund Affiliates’ vote (in its capacity as a
Lender) may be counted to the extent any such plan of reorganization proposed to treat the
Obligations held by such Non-Debt Fund Affiliate in a manner that is less favorable in any material
respect to such Non-Debt Fund Affiliate than the proposed treatment of similar Obligations held by
Lenders that are not Affiliates of the Borrower. Each Non-Debt Fund Affiliate hereby irrevocably
appoints the Administrative Agent (such appointment being coupled with an interest) as such
Non-Debt Fund Affiliate’s attorney-in-fact, with full authority in the place and stead of such
Non-Debt Fund Affiliate and in the name of such Non-Debt Fund Affiliate, from time to time in the
Administrative Agent’s discretion to take any action and to execute any instrument that the
Administrative Agent may deem reasonably necessary to carry out the provisions of this paragraph.




     10.7 Adjustments; Set-off.



          (a) Except to the extent that this Agreement expressly provides for payments to be allocated
to a particular Lender or to the Lenders under a particular Facility, if any Lender (a
“Benefitted Lender”) shall receive any payment of all or part of the Obligations owing to
it, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in Section 8(f), or otherwise), in a
greater proportion than any such payment to or collateral received by any other Lender, if any, in
respect of the Obligations owing to such other Lender, such Benefitted Lender shall purchase for
cash from the other Lenders a participating interest in such portion of the Obligations owing to
each such other Lender, or shall provide such other Lenders with the




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benefits of any such
collateral, as shall be necessary to cause such Benefitted Lender to share the excess payment or
benefits of such collateral ratably with each of the Lenders; provided, however,
that if all or any portion of such excess payment or benefits is thereafter recovered from such
Benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned,
to the extent of such recovery, but without interest.




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




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



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



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



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



     10.12 Submission to Jurisdiction; Waivers. Each of the parties hereto hereby
irrevocably and unconditionally:




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



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




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




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




     (e) waives, to the maximum extent not prohibited by law, any right it may have to claim
or recover in any legal action or proceeding referred to in this Section any special,
exemplary, punitive or consequential damages; provided that nothing contained in
this Section 10.12(e) shall limit the Borrower’s indemnity and reimbursement obligations to
the extent set forth in Section 10.5.



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




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




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




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



     10.14 Releases of Guarantees and Liens. Notwithstanding anything to the contrary
contained herein or in any other Loan Document, the Administrative Agent is hereby irrevocably
authorized by each Lender (without requirement of notice to or consent of any Lender except as
expressly required by Section 10.1) to take any action requested by the Borrower having the effect
of releasing any Collateral or guarantee obligations (i) to the extent necessary to permit
consummation of any transaction not prohibited by any Loan Document or that has been consented to
in accordance with Section 10.1 or (ii) under the circumstances described in Section 9.11.



     10.15 Confidentiality. Each of the Administrative Agent, the Issuing Lenders and the
Lenders agrees to maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and
agents, including accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the extent requested by
any regulatory authority, (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party to this Agreement, (e) in connection with
the exercise of any remedies hereunder or any suit, action or proceeding



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relating to this Agreement
or the enforcement of rights hereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations under this Agreement or
(ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction
relating to the Borrower and its obligations, (g) with the consent of the Borrower or (h) to the
extent such Information (i)
becomes publicly available other than as a result of a breach of this Section or (ii) becomes
available to the Administrative Agent, the Issuing Lender or any Lender on a non-confidential basis
from a source other than the Borrower; provided, however, that with respect to
disclosures pursuant to clauses (b) and (c) of this Section (other than disclosures pursuant to
routine regulatory examinations) and clause (e) of this Section (as such clause relates to suits,
actions or proceedings in which disclosure is being sought by a third party), unless prohibited by
applicable Requirements of Law or court order, each Lender, each Issuing Lender and the
Administrative Agent shall (x) notify the Borrower of any request by any Governmental Authority or
representative thereof or other Person for disclosure of confidential and non-public information
after receipt of such request and (y) if such disclosure of such confidential or non-public
information is legally required, furnish only such portion of such information as it is legally
compelled to disclose and exercise commercially reasonable efforts to obtain an order or other
reliable assurance that confidential treatment will be accorded to the disclosed information.



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



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



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



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



     10.18 Replacement of Holdings. Notwithstanding any contrary provisions of this
Agreement, Holdings may, in order to achieve the effect of substituting a corporation as the
immediate parent



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company of the Borrower, form a corporation that is a wholly owned subsidiary of
Holdings (such corporation being referred to herein as “New Holdings”), and transfer
(subject to the Lien of the Guarantee and Security Agreement) all its assets (including all
outstanding Capital Stock of the Borrower) to New Holdings; provided that (a) the
arrangements for the formation of New Holdings and the transfer of assets from Holdings to New
Holdings are reasonably satisfactory to the Administrative Agent, (b) New Holdings
shall become a party to this Agreement and each other Loan Document to which Holdings is a
party and shall assume all obligations of Holdings thereunder pursuant to documentation reasonably
satisfactory to the Administrative Agent and (c) the Administrative Agent shall receive such
documents, certificates and legal opinions as the Administrative Agent or its counsel may
reasonably request with respect to the foregoing, all in form and substance reasonably satisfactory
to the Administrative Agent. If all of the requirements of the preceding sentence are satisfied,
then Holdings shall cease to be a party to the Loan Documents and shall be released from its
obligations thereunder and thereupon the term “Holdings” shall be deemed to refer to New Holdings.
The Administrative Agent shall notify the Lenders of any replacement of Holdings effected pursuant
to this Section.



     10.19 Mortgaged Property Acknowledgment. Each Lender by making or acquiring a Loan or
interest therein or issuing a Letter of Credit acknowledges that (x) any Mortgage encumbering any
Mortgaged Property hereunder was or will be entered into without consultation with local counsel in
the jurisdiction where such Mortgaged Property is located and (y) no title insurance policies were
or will be obtained with respect to any Mortgages encumbering any Mortgaged Property.
Consequently, there is a substantial risk that the Mortgages encumbering any such Mortgaged
Property may be invalid or ineffective under applicable law and, in such event, the Lenders would
not have any recovery as a secured creditor or under any title insurance policy with respect
thereto. Each Lender agrees that neither the Administrative Agent, the Joint Lead Arrangers, the
Joint Bookrunners, the Co-Documentations Agents, the Syndication Agent, the Borrower (and its
Subsidiaries) nor any of their officers, directors, agents, attorneys, affiliates or other
representatives shall have any liability to any Lender as a result of the foregoing.



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



	 	 	 	 	 
	 	NMH HOLDINGS, LLC



By:  NMH Holdings, Inc., its sole member

 	 
	 	By:  	/s/ Denis M. Holler
 	 
	 	 	Name:  	Denis M. Holler 	 
	 	 	Title:  	Executive Vice President, Chief

Financial Officer and Treasurer 	 
	 
	 	NATIONAL MENTOR HOLDINGS, INC.

 	 
	 	By:  	/s/ Denis M. Holler
 	 
	 	 	Name:  	Denis M. Holler 	 
	 	 	Title:  	Executive Vice President, Chief

Financial Officer and Treasurer 	 
	 
	 	UBS AG, STAMFORD BRANCH, as

Administrative Agent and Issuing Lender

 	 
	 	By:  	/s/ Mary E. Evans
 	 
	 	 	Name:  	Mary E. Evans 	 
	 	 	Title:  	Associate Director, Banking Products

Services, US 	 
	 
	 	 	 
	 	By:  	                                              /s/ Irja R. Otsa
 	 
	 	 	Name:  	Irja R. Otsa 	 
	 	 	Title:  	Associate Director, Banking Products

Services, US 	 
	 




S-1








 





	 	 	 	 	 
	 	UBS Loan Finance LLC, as

Swingline Lender and Lender

 	 
	 	By:  	/s/ Mary E. Evans
 	 
	 	 	Name:  	Mary E. Evans 	 
	 	 	Title:  	Associate Director, Banking Products

Services, US 	 
	 
	 	 	 
	 	By:  	                                              /s/ Irja R. Otsa
 	 
	 	 	Name:  	Irja R. Otsa 	 
	 	 	Title:  	Associate Director, Banking Products

Services, US 	 
	 



S-2









 






	 	 	 	 	 
	 	UBS SECURITIES LLC, as

Joint Lead Arranger and Joint Bookrunner

 	 
	 	By:  	/s/ Mary E. Evans
 	 
	 	 	Name:  	Mary E. Evans 	 
	 	 	Title:  	Associate Director, Banking Products

Services, US 	 
	 
	 	 	 
	 	By:  	                                              /s/ Irja R. Otsa
 	 
	 	 	Name:  	Irja R. Otsa 	 
	 	 	Title:  	Associate Director, Banking Products

Services, US 	 
	 





S-3









 





	 	 	 	 	 
	 	BARCLAYS BANK PLC, as

Joint Lead Arranger, Joint Bookrunner and Lender

 	 
	 	By:  	/s/ Diane Rolfe
 	 
	 	 	Name:  	Diane Rolfe 	 
	 	 	Title:  	Director 	 
	 




S-4









 






	 	 	 	 	 
	 	JEFFERIES FINANCE LLC, as

Joint Lead Arranger, Joint Bookrunner and Lender

 	 
	 	By:  	/s/ E. J. Hess
 	 
	 	 	Name:  	E. J. Hess 	 
	 	 	Title:  	Managing Director 	 
	 





S-5









 





	 	 	 	 	 
	 	GE CAPITAL MARKETS, INC., as

Joint Lead Arranger and Lender

 	 
	 	By:  	/s/ John Dale
 	 
	 	 	Name:  	John Dale 	 
	 	 	Title:  	Duly Authorized Signatory 	 
	 


S-6