Exhibit 10.1





Exhibit 10.1




EXECUTION COPY




$125,000,000

CREDIT AGREEMENT

DATED AS OF FEBRUARY 18, 2011

AMONG




ASSISTED LIVING CONCEPTS, INC., AS BORROWER,




U.S. BANK NATIONAL ASSOCIATION,

AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT,




COMPASS BANK, FIRSTMERIT BANK, N.A., AND HARRIS N.A.,

AS DOCUMENTATION AGENTS,




THE LENDERS AND L/C ISSUERS PARTY HERETO,




and




U.S. BANK NATIONAL ASSOCIATION,

AS SOLE LEAD ARRANGER AND SOLE BOOKRUNNER



 


 









 





	 	 	 	 	 
	ARTICLE I

DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS
	 	 	1	 
	Section 1.1 Defined Terms
	 	 	1	 
	Section 1.2 UCC Terms
	 	 	28	 
	Section 1.3 Accounting Terms and Principles
	 	 	28	 
	Section 1.4 Payments
	 	 	29	 
	Section 1.5 Interpretation
	 	 	29	 
	 
	 	 	 	 
	ARTICLE II

THE FACILITY
	 	 	30	 
	Section 2.1 Revolving Credit Commitments
	 	 	30	 
	Section 2.2 Borrowing Procedures
	 	 	30	 
	Section 2.3 Swing Loans
	 	 	32	 
	Section 2.4 Letters of Credit
	 	 	33	 
	Section 2.5 Reduction and Termination of the Commitments
	 	 	36	 
	Section 2.6 Repayment of Loans
	 	 	36	 
	Section 2.7 Optional Prepayments
	 	 	37	 
	Section 2.8 Mandatory Prepayments
	 	 	37	 
	Section 2.9 Interest
	 	 	37	 
	Section 2.10 Conversion and Continuation Options
	 	 	38	 
	Section 2.11 Fees
	 	 	39	 
	Section 2.12 Application of Payments
	 	 	40	 
	Section 2.13 Payments and Computations
	 	 	41	 
	Section 2.14 Evidence of Debt
	 	 	42	 
	Section 2.15 Suspension of Eurodollar Rate Option
	 	 	44	 
	Section 2.16 Breakage Costs; Increased Costs; Capital Requirements
	 	 	44	 
	Section 2.17 Taxes
	 	 	46	 
	Section 2.18 Substitution of Lenders
	 	 	49	 
	Section 2.19 Defaulting Lenders
	 	 	50	 
	 
	 	 	 	 
	ARTICLE III

CONDITIONS TO LOANS AND LETTERS OF CREDIT
	 	 	52	 
	Section 3.1 Conditions Precedent to Initial Loans and Letters of Credit
	 	 	52	 
	Section 3.2 Conditions Precedent to Each Loan and Letter of Credit
	 	 	54	 
	Section 3.3 Determinations of Initial Borrowing Conditions
	 	 	55	 
	 
	 	 	 	 
	ARTICLE IV

REPRESENTATIONS AND WARRANTIES
	 	 	55	 
	Section 4.1 Corporate Existence; Compliance with Law
	 	 	55	 
	Section 4.2 Loan Documents
	 	 	55	 
	Section 4.3 Ownership of Loan Parties
	 	 	56	 
	Section 4.4 Financial Statements
	 	 	56	 
	Section 4.5 Material Adverse Effect
	 	 	57	 
	Section 4.6 Solvency
	 	 	57	 
	Section 4.7 Litigation
	 	 	57	 
	Section 4.8 Taxes
	 	 	57	 
	Section 4.9 Margin Regulations
	 	 	58	 
	Section 4.10 No Burdensome Obligations; No Defaults
	 	 	58	 
	Section 4.11 Investment Company Act
	 	 	58	 





 


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	Section 4.12 Labor Matters
	 	 	58	 
	Section 4.13 ERISA
	 	 	58	 
	Section 4.14 Environmental Matters
	 	 	59	 
	Section 4.15 Intellectual Property
	 	 	59	 
	Section 4.16 Title; Real Property
	 	 	60	 
	Section 4.17 Full Disclosure
	 	 	60	 
	 
	 	 	 	 
	ARTICLE V

FINANCIAL COVENANTS
	 	 	60	 
	Section 5.1 Maximum Consolidated Leverage Ratio
	 	 	60	 
	Section 5.2 Minimum Consolidated Fixed Charge Coverage Ratio
	 	 	60	 
	 
	 	 	 	 
	ARTICLE VI

REPORTING COVENANTS
	 	 	61	 
	Section 6.1 Financial Statements
	 	 	61	 
	Section 6.2 Other Events
	 	 	62	 
	Section 6.3 Copies of Notices and Reports
	 	 	62	 
	Section 6.4 Taxes
	 	 	62	 
	Section 6.5 Labor Matters
	 	 	63	 
	Section 6.6 ERISA Matters
	 	 	63	 
	Section 6.7 Environmental Matters
	 	 	63	 
	Section 6.8 Other Information
	 	 	64	 
	 
	 	 	 	 
	ARTICLE VII

AFFIRMATIVE COVENANTS
	 	 	64	 
	Section 7.1 Maintenance of Corporate Existence
	 	 	64	 
	Section 7.2 Compliance with Laws, Etc.
	 	 	64	 
	Section 7.3 Payment of Obligations
	 	 	64	 
	Section 7.4 Maintenance of Property
	 	 	65	 
	Section 7.5 Maintenance of Insurance
	 	 	65	 
	Section 7.6 Keeping of Books
	 	 	65	 
	Section 7.7 Access to Books and Property
	 	 	65	 
	Section 7.8 Environmental
	 	 	66	 
	Section 7.9 Use of Proceeds
	 	 	66	 
	Section 7.10 Additional Collateral and Guaranties
	 	 	66	 
	Section 7.11 Deposit Accounts; Securities Accounts and Cash Collateral Accounts
	 	 	67	 
	Section 7.12 Accreditation and Licensing
	 	 	68	 
	 
	 	 	 	 
	ARTICLE VIII

NEGATIVE COVENANTS
	 	 	69	 
	Section 8.1 Indebtedness
	 	 	69	 
	Section 8.2 Liens
	 	 	70	 
	Section 8.3 Investments
	 	 	71	 
	Section 8.4 Asset Sales
	 	 	71	 
	Section 8.5 Restricted Payments
	 	 	73	 
	Section 8.6 Prepayment of Indebtedness
	 	 	73	 
	Section 8.7 Fundamental Changes
	 	 	74	 
	Section 8.8 Change in Nature of Business
	 	 	74	 
	Section 8.9 Transactions with Affiliates
	 	 	74	 





 


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	Section 8.10 Third-Party Restrictions on Indebtedness, Liens, Investments
or Restricted Payments
	 	 	75	 
	Section 8.11 Modification of Certain Documents
	 	 	75	 
	Section 8.12 Accounting Changes; Fiscal Year
	 	 	75	 
	Section 8.13 Margin Regulations
	 	 	75	 
	Section 8.14 Compliance with ERISA
	 	 	76	 
	Section 8.15 Hazardous Materials
	 	 	76	 
	Section 8.16 Capital Expenditures
	 	 	76	 
	 
	 	 	 	 
	ARTICLE IX

EVENTS OF DEFAULT
	 	 	76	 
	Section 9.1 Definition
	 	 	76	 
	Section 9.2 Remedies
	 	 	78	 
	Section 9.3 Actions in Respect of Letters of Credit
	 	 	78	 
	 
	 	 	 	 
	ARTICLE X

THE ADMINISTRATIVE AGENT
	 	 	78	 
	Section 10.1 Appointment and Duties
	 	 	78	 
	Section 10.2 Binding Effect
	 	 	80	 
	Section 10.3 Use of Discretion
	 	 	80	 
	Section 10.4 Delegation of Rights and Duties
	 	 	80	 
	Section 10.5 Reliance and Liability
	 	 	80	 
	Section 10.6 Administrative Agent Individually
	 	 	82	 
	Section 10.7 Lender Credit Decision
	 	 	82	 
	Section 10.8 Expenses; Indemnities
	 	 	82	 
	Section 10.9 Resignation of Administrative Agent or L/C Issuer
	 	 	83	 
	Section 10.10 Release of Collateral or Guarantors
	 	 	84	 
	Section 10.11 Additional Secured Parties
	 	 	85	 
	 
	 	 	 	 
	ARTICLE XI

MISCELLANEOUS
	 	 	85	 
	Section 11.1 Amendments, Waivers, Etc.
	 	 	85	 
	Section 11.2 Assignments and Participations; Binding Effect
	 	 	87	 
	Section 11.3 Costs and Expenses
	 	 	89	 
	Section 11.4 Indemnities
	 	 	90	 
	Section 11.5 Survival
	 	 	91	 
	Section 11.6 Limitation of Liability for Certain Damages
	 	 	91	 
	Section 11.7 Lender-Creditor Relationship
	 	 	91	 
	Section 11.8 Right of Setoff
	 	 	91	 
	Section 11.9 Sharing of Payments, Etc.
	 	 	92	 
	Section 11.10 Marshaling; Payments Set Aside
	 	 	92	 
	Section 11.11 Notices
	 	 	92	 
	Section 11.12 Electronic Transmissions
	 	 	93	 
	Section 11.13 Governing Law
	 	 	94	 
	Section 11.14 Jurisdiction
	 	 	95	 
	Section 11.15 WAIVER OF JURY TRIAL
	 	 	95	 
	Section 11.16 Severability
	 	 	95	 
	Section 11.17 Execution in Counterparts
	 	 	96	 
	Section 11.18 Entire Agreement
	 	 	96	 
	Section 11.19 Use of Name
	 	 	96	 
	Section 11.20 Non-Public Information; Confidentiality
	 	 	96	 
	Section 11.21 Patriot Act Notice
	 	 	97	 





 


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SCHEDULES




Schedule I —  Commitments




Schedule II —  Addresses for Notices




Schedule 2.4(h) — Existing Letters of Credit




Schedule 4.2 —  Consents




Schedule 4.3 —  Ownership of Borrower and Subsidiaries




Schedule 4.7 —  Litigation




Schedule 4.12 —  Labor Matters




Schedule 4.13 —  List of Plans




Schedule 4.14 —  Environmental Matters




Schedule 4.16 —  Real Property




Schedule 8.1 —  Existing Indebtedness




Schedule 8.2 —  Existing Liens




Schedule 8.3 —  Existing Investments




EXHIBITS




Exhibit A —  Form of Assignment




Exhibit B —  Form of Note




Exhibit C —  Form of Notice of Borrowing




Exhibit D —  Form of Swingline Request




Exhibit E —  Form of L/C Request




Exhibit F —  Form of Notice of Conversion or Continuation




Exhibit G —  Form of Compliance Certificate




Exhibit H —  Form of Guaranty and Security Agreement



 


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This CREDIT AGREEMENT, dated as of February 18, 2011, is entered into among ASSISTED LIVING
CONCEPTS, INC., a Nevada corporation (the “Borrower”), the Lenders (as defined below), the
L/C Issuers (as defined below) and U.S. BANK NATIONAL ASSOCIATION (“U.S. Bank”), as administrative
agent and collateral agent for the Lenders and the L/C Issuers (in such capacity, and together with
its successors and permitted assigns, the “Administrative Agent”).




The parties hereto agree as follows:



ARTICLE I

DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS





Section 1.1 Defined Terms. As used in this Agreement, the following terms have the following meanings:




“Additional Projections” has the meaning specified in Section 6.1(d).




“Affected Lender” has the meaning specified in Section 2.18.



“Affiliate” means, with respect to any Person, each officer, director, general partner
or joint-venturer of such Person and any other Person that directly or indirectly controls, is
controlled by, or is under common control with, such Person; provided, however,
that no Secured Party shall be an Affiliate of the Borrower. For purpose of this definition,
“control” means the possession of either (a) the power to vote, or the beneficial ownership
of, 10% or more of the Voting Stock of such Person or (b) the power to direct or cause the
direction of the management and policies of such Person, whether by contract or otherwise.




“Agreement” means this Credit Agreement.



“ALC Omnibus Incentive Compensation Plan” means The Assisted Living Concepts, Inc.
2006 Omnibus Incentive Compensation Plan adopted October 31, 2006, as amended and in effect from
time to time.


 


1









 





“Applicable Margin” means, with respect to Revolving Loans, Swing Loans and the Unused
Commitment Fee, a percentage equal to (a) during the period commencing on the Closing Date and
ending on the next date of determination relating to the delivery of the Compliance Certificate for
the Fiscal Quarter ending March 31, 2011, the percentage set forth in the applicable column
opposite Level III in the table set forth in clause (b) below and (b) thereafter, as of
each date of determination (and until the next such date of determination), a percentage equal to
the percentage set forth below in the applicable column opposite the level corresponding to the
Consolidated Leverage Ratio in effect as of the last day of the most recently ended Fiscal Quarter:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	CONSOLIDATED	 	 	 	 	 	 	 	 	 
	 	 	LEVERAGED	 	BASE RATE	 	 	EURODOLLAR	 	 	UNUSED	 
	LEVEL	 	RATIO	 	LOANS	 	 	RATE LOANS	 	 	COMMITMENT FEE	 
	I
	 	Greater than or equal to 3.00 to 1	 	 	2.50	%	 	 	3.50	%	 	 	0.625	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	II
	 	Less than 3.00 to 1 and equal to or greater than 2.50 to 1	 	 	2.00	%	 	 	3.00	%	 	 	0.500	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	III
	 	Less than 2.50 to 1 and equal to or greater than 2.00 to 1	 	 	1.75	%	 	 	2.75	%	 	 	0.500	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	IV
	 	Less than 2.00 to 1 and equal to or greater than 1.50 to 1	 	 	1.50	%	 	 	2.50	%	 	 	0.375	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	V
	 	Less than 1.50 to 1	 	 	1.375	%	 	 	2.25	%	 	 	0.300	%






Each date of determination for the Applicable Margin shall be the date that is 3 Business Days
after delivery by the Borrower to the Administrative Agent of a new Compliance Certificate pursuant
to Section 6.1(c). Notwithstanding anything to the contrary set forth in this Agreement
(including the then effective Consolidated Leverage Ratio), the Applicable Margin shall equal the
percentage set forth in the appropriate column opposite Level I in the table above, effective
immediately upon (x) the occurrence of any Event of Default under Section 9.1(e)(ii) or (y)
the delivery of a notice by the Administrative Agent or the Required Lenders to the Borrower during
the continuance of any other Event of Default and, in each case, for as long as such Event of
Default shall be continuing.



“Approved Fund” means, with respect to any Lender, any Person (other than a natural
Person) that (a) is or will be engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of its business and (b) is
advised or managed by (i) such Lender, (ii) any Affiliate of such Lender or (iii) any Person (other
than an individual) or any Affiliate of any Person (other than an individual) that administers or
manages such Lender.




“Arranger” means U.S. Bank.



“Assignment” means an assignment agreement entered into by a Lender, as assignor, and
any prospective assignee thereof and accepted by the Administrative Agent, in substantially the
form of Exhibit A.


 


2









 





“Base Rate” means, at any time, a rate per annum equal to the highest of (i) the rate
of interest announced by the Administrative Agent as its prime or reference rate for interest rate
calculations, as such rate may change from time to time (which may not be the lowest interest rate
charged by the Administrative Agent), (ii) the Federal Funds Rate plus 0.5%, or (iii) the Daily
Reset LIBOR Rate plus 1.00%.




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



“Benefit Plan” means any employee benefit plan as defined in Section 3(3) of ERISA
(whether governed by the laws of the United States or otherwise) to which any Group Member incurs
or otherwise has any obligation or liability, contingent or otherwise.




“Borrower” has the meaning specified in the preamble.



“Borrowing” means a borrowing consisting of Loans (other than Swing Loans and Loans
deemed made pursuant to Section 2.4) made in one Facility on the same day by the Lenders
according to their respective Commitments under such Facility.



“Business Day” means any day of the year that is not a Saturday, Sunday or a day on
which banks are required or authorized to close in Milwaukee, Wisconsin and, when determined in
connection with notices and determinations in respect of any Eurodollar Rate or Eurodollar Rate
Loan or any funding, conversion, continuation, Interest Period or payment of any Eurodollar Rate
Loan, that is also a day on which dealings in Dollar deposits are carried on in the London
interbank market.



“Capital Expenditures” means, for any Person for any period, the aggregate of all
expenditures, whether or not made through the incurrence of Indebtedness, by such Person and its
Subsidiaries during such period for the acquisition, leasing (pursuant to a Capital Lease),
construction, replacement, repair, substitution or improvement of fixed or capital assets or
additions to equipment, in each case required to be capitalized under GAAP on a Consolidated
balance sheet of such Person, excluding (a) interest capitalized during construction and (b) any
expenditure to the extent, for purpose of the definition of Permitted Acquisition, such expenditure
is part of the aggregate amounts payable in connection with, or other consideration for, any
Permitted Acquisition consummated during or prior to such period and (c) expenditures consisting of
Capitalized Lease Obligations or purchase money Indebtedness permitted pursuant to Section
8.1(c).



“Capital Lease” means, with respect to any Person, any lease of, or other arrangement
conveying the right to use, any property (whether real, personal or mixed) by such Person as lessee
that has been or should be accounted for as a capital lease on a balance sheet of such Person
prepared in accordance with GAAP.



“Capitalized Lease Obligations” means, at any time, with respect to any Capital Lease,
any lease entered into as part of any Sale and Leaseback Transaction of any Person or any synthetic
lease, the amount of all obligations of such Person that is (or that would be, if such synthetic
lease or other lease were accounted for as a Capital Lease) capitalized on a balance sheet of such
Person prepared in accordance with GAAP.


 


3









 





“Cash Collateral Account” means a deposit account or securities account in the name of
the Borrower and under the sole control (as defined in the applicable UCC) of the Administrative
Agent and (a) in the case of a deposit account, from which the Borrower may not make withdrawals
except as permitted by the Administrative Agent and (b) in the case of a securities account, with
respect to which the Administrative Agent shall be the entitlement holder and the only Person
authorized to give entitlement orders with respect thereto.



“Cash Equivalents” means (a) any readily-marketable securities (i) issued by, or
directly, unconditionally and fully guaranteed or insured by the United States federal government
or (ii) issued by any agency of the United States federal government the obligations of which are
fully backed by the full faith and credit of the United States federal government, (b) any
readily-marketable direct obligations issued by any other agency of the United States federal
government, any state of the United States or any political subdivision of any such state or any
public instrumentality thereof, in each case having a rating of at least “A-1” from S&P or at least
“P-1” from Moody’s, (c) any commercial paper rated at least “A-1” by S&P or “P-1”
by Moody’s and issued by any Person organized under the laws of any state of the United States, (d)
any Dollar denominated time deposit, insured certificate of deposit, overnight bank deposit or
bankers’ acceptance issued or accepted by (i) any Lender or (ii) any commercial bank that is (A)
organized under the laws of the United States, any state thereof or the District of Columbia, (B)
“adequately capitalized” (as defined in the regulations of its primary federal banking regulators)
and (C) has Tier 1 capital (as defined in such regulations) in excess of $250,000,000 and (e)
shares of any United States money market fund that (i) has substantially all of its assets invested
continuously in the types of investments referred to in clause (a), (b), (c) or (d) above
with maturities as set forth in the proviso below, (ii) has net assets in excess of $500,000,000
and (iii) has obtained from either S&P or Moody’s the highest rating obtainable for money market
funds in the United States; provided, however, that the maturities of all
obligations specified in any of clauses (a), (b), (c) and (d) above shall not exceed 365
days.



“CERCLA” means the United States Comprehensive Environmental Response, Compensation,
and Liability Act (42 U.S.C. §§ 9601 et seq.).




“Change of Control” means the occurrence of any of the following:



(a) any Person other than (x) any employee stock ownership plan (or related trust or
fiduciary) sponsored or maintained by the Borrower or (y) Thornridge Holdings Limited and its
Affiliates shall become the legal or beneficial owner of, or shall have acquired, pursuant to any
Contractual Obligation or otherwise, control over, 50% or more of the aggregate voting power
represented by the issued and outstanding Voting Stock of the Borrower;



(b) at any time after the second anniversary of the Closing Date, continuing directors shall
cease for any reason other than death or disability to constitute a majority of the members of the
board of directors of the Borrower then in office; or



(c) the Borrower shall cease to own and control legally and beneficially all of the economic
and voting rights associated with all classes of the outstanding Stock and Stock Equivalents of any
Guarantor.


 


4









 





For purpose of this definition, the following terms shall have the following meanings: (x)
“person” means any “person” as such term is used in the United States Securities Exchange
Act of 1934, as amended, including any partnership, limited partnership, syndicate or group of
persons that is deemed to be a “person” for purposes of Sections 13(d) and 14(d)(2) of such
Securities Exchange Act, (y) “beneficial owner” means any “beneficial owner” under and as
defined in Rules 13d-3 and 13d-5 of the United States Securities and Exchange Commission under such
Securities Exchange Act; provided, however, that any person shall be deemed to be
the beneficial owner of all Securities that such person has the right to acquire, whether such
right is exercisable immediately or with the passage of time and (z) “continuing director”
means, at any date of determination, each individual member of the board of directors of the
Borrower who (i) has been a member of such board in the period of twelve successive calendar months
last ended prior to such date or (ii) whose nomination for election by the stockholders of the
Borrower was approved by a vote of at least two thirds of the directors who were continuing
directors at the time of such nomination.



“Closing Date” means the first date on which this Agreement shall have been executed
and all conditions to the initial funding of any Loan set forth in Section 3.1 have been satisfied.




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



“Collateral” means all property and interests in property and proceeds thereof now
owned or hereafter acquired by any Loan Party in or upon which a Lien is granted or purported to be
granted pursuant to any Loan Document.



“Commitment” means, with respect to any Lender, such Lender’s Revolving Credit
Commitment.



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



“Consolidated” means, with respect to any Person, the accounts of such Person and its
Subsidiaries consolidated in accordance with GAAP. When used with respect to the Borrower,
consolidated means the accounts of the Borrower consolidated with those of all other Group Members.



“Consolidated Cash Interest Expense” means, with respect to any Person for any period,
the Consolidated Interest Expense of such Person for such period less the sum of, in each case to
the extent included in the definition of Consolidated Interest Expense, (a) the amortized amount of
debt discount and debt issuance costs, (b) charges relating to write-ups or write-downs in the book
or carrying value of existing Consolidated Total Debt, (c) interest payable in evidences of
Indebtedness or by addition to the principal of the related Indebtedness and (d) other non-cash
interest.


 


5









 





“Consolidated EBITDA” means, with respect to any Person for any period, (a) the
Consolidated Net Income of such Person for such period plus (b) the sum of, in each case to
the extent included in the calculation of such Consolidated Net Income but without duplication, (i)
any provision for United States federal income taxes or other taxes measured by net income,
(ii) Consolidated Interest Expense, amortization of debt discount and commissions and other fees
and charges associated with Indebtedness, (iii) any loss from extraordinary items, (iv) any
depreciation, depletion and amortization expense, (v) any aggregate net loss on the Sale of
property (other than accounts (as defined under the applicable UCC) and inventory) outside the
ordinary course of business, (vi) any other non-cash expenditure, charge or loss for such period
(other than any non-cash expenditure, charge or loss relating to write-offs, write-downs or
reserves with respect to accounts and inventory), including the amount of any compensation
deduction as the result of any grant of Stock or Stock Equivalents to employees, officers,
directors or consultants, and (vii) any one-time transaction fees and expenses related to Permitted
Acquisitions which are capitalized under GAAP, or would be so capitalized if ASC 805 — Business
Combinations were not taken into account, minus (c) the sum of, in each case to the extent
included in the calculation of such Consolidated Net Income and without duplication, (i) any credit
for United States federal income taxes or other taxes measured by net income, (ii) any interest
income, (iii) any gain from extraordinary items and any other non-recurring gain, (iv) any
aggregate net gain from the Sale of property (other than accounts (as defined in the applicable
UCC) and inventory) out of the ordinary course of business by such Person, (v) any other non-cash
gain, including any reversal of a charge referred to in clause (b)(vi) above by reason of a
decrease in the value of any Stock or Stock Equivalent, and (vi) any other cash payment in respect
of expenditures, charges and losses that have been added to Consolidated EBITDA of such Person
pursuant to clause (b)(vi) above in any prior period.



“Consolidated Fixed Charge Coverage Ratio” means, with respect to any Person for any
period, the ratio, computed on a Pro Forma Basis, of (a) Consolidated EBITDA of such Person for
such period minus Consolidated Maintenance Capital Expenditures of such Person for such
period minus the total liability for United States federal income taxes and other taxes
measured by net income earned in the ordinary course of business actually paid or due and payable
by such Person in respect of such period to (b) the Consolidated Fixed Charges of such Person for
such period.



“Consolidated Fixed Charges” means, with respect to any Person for any period, the
sum, determined on a Consolidated basis, of (a) the Consolidated Cash Interest Expense of such
Person and its Subsidiaries for such period, (b) the principal amount of Consolidated Total Debt of
such Person and its Subsidiaries having a scheduled due date during such period, provided that
there shall be excluded from Consolidated Fixed Charges for any period the principal portion of any
such Indebtedness that is repaid or refinanced at maturity with additional Indebtedness permitted
to be incurred pursuant to the terms of the Loan Documents, (c) all cash dividends payable by such
Person and its Subsidiaries on Stock in respect of such period to Persons other than such Person
and its Subsidiaries and (d) all commitment fees and other costs, fees and expenses payable by such
Person and its Subsidiaries during such period in order to effect, or because of, the incurrence of
any Indebtedness.



“Consolidated Growth Capital Expenditures” means, for any period, all Capital
Expenditures of the Borrower and its Subsidiaries for such period representing the purchase price
for, or other costs associated with the construction or expansion of, a facility owned or operated
by the Borrower or any Subsidiary.


 


6









 





“Consolidated Interest Expense” means, for any Person for any period, (a) Consolidated
total interest expense of such Person and its Subsidiaries for such period and including, in any
event, (i) interest capitalized during such period and net costs under Interest Rate Contracts for
such period and (ii) all fees, charges, commissions, discounts and other similar obligations (other
than reimbursement obligations) with respect to letters of credit, bank guarantees, banker’s
acceptances, surety bonds and performance bonds (whether or not matured) payable by such Person and
its Subsidiaries during such period minus (b) the sum of (i) Consolidated net gains of such
Person and its Subsidiaries under Interest Rate Contracts for such period and (ii) Consolidated
interest income of such Person and its Subsidiaries for such period.



“Consolidated Leverage Ratio” means, with respect to any Person as of any date and
calculated on a Pro Forma Basis, the ratio of (a) Consolidated Total Debt of such Person
outstanding as of such date to (b) Consolidated EBITDA for such Person for the last period of four
consecutive Fiscal Quarters ending on or before such date.



“Consolidated Maintenance Capital Expenditures” means, for any period, all Capital
Expenditures of the Borrower and its Subsidiaries for such period other than Consolidated Growth
Capital Expenditures.



“Consolidated Net Income” means, with respect to any Person, for any period, the
Consolidated net income (or loss) of such Person and its Subsidiaries for such period;
provided, however, that the following shall be excluded: (a) the net income of any
other Person in which such Person or one of its Subsidiaries has a joint interest with a
third-party (which interest does not cause the net income of such other Person to be Consolidated
into the net income of such Person), except to the extent of the amount of dividends or
distributions paid to such Person or Subsidiary, (b) the net income of any Subsidiary of such
Person that is, on the last day of such period, subject to any restriction or limitation on the
payment of dividends or the making of other distributions, to the extent of such restriction or
limitation and (c) except as agreed by the Administrative Agent in connection with any Pro Forma
Transaction, the net income of any other Person arising prior to such other Person becoming a
Subsidiary of such Person or merging or consolidating into such Person or its Subsidiaries.



“Consolidated Total Assets” means, for the Borrower and its Subsidiaries on a
Consolidated basis, the total amount of all assets of the Borrower and its Subsidiaries appearing
on the asset side of the Borrower’s Consolidated balance sheet.



“Consolidated Total Debt” of any Person means all Indebtedness of a type described in
clause (a), (b), (c)(i), (d) or (f) of the definition thereof and all Guaranty Obligations
with respect to any such Indebtedness, in each case of such Person and its Subsidiaries on a
Consolidated basis.



“Constituent Documents” means, with respect to any Person, collectively and, in each
case, together with any modification of any term thereof, (a) the articles of incorporation,
certificate of incorporation, constitution or certificate of formation of such Person, (b) the
bylaws, operating agreement or joint venture agreement of such Person, (c) any other constitutive,
organizational or governing document of such Person, whether or not equivalent,
and (d) any other document setting forth the manner of election or duties of the directors,
officers or managing members of such Person or the designation, amount or relative rights,
limitations and preferences of any Stock of such Person.


 


7









 





“Contractual Obligation” means, with respect to any Person, any provision of any
Security issued by such Person or of any document or undertaking (other than a Loan Document) to
which such Person is a party or by which it or any of its property is bound or to which any of its
property is subject.



“Control Agreement” means, with respect to any deposit account, any securities
account, commodity account, securities entitlement or commodity contract, an agreement, in form and
substance satisfactory to the Administrative Agent, among the Administrative Agent, the financial
institution or other Person at which such account is maintained or with which such entitlement or
contract is carried and the Loan Party maintaining such account, effective to grant “control” (as
defined under the applicable UCC) over such account to the Administrative Agent.



“Controlled Deposit Account” means each deposit account (including all funds on
deposit therein) that is the subject of an effective Control Agreement and that is maintained by
any Loan Party with a financial institution approved by the Administrative Agent.



“Controlled Securities Account” means each securities account or commodity account
(including all financial assets held therein and all certificates and instruments, if any,
representing or evidencing such financial assets) that is the subject of an effective Control
Agreement and that is maintained by any Loan Party with a securities intermediary or commodity
intermediary approved by the Administrative Agent.



“Copyrights” means all rights, title and interests (and all related IP Ancillary
Rights) arising under any Requirement of Law in or relating to copyrights and all mask work,
database and design rights, whether or not registered or published, all registrations and
recordations thereof and all applications in connection therewith.



“Corporate Chart” means a document in form reasonably acceptable to the Administrative
Agent and setting forth, as of a date set forth therein, for each Person that is a Loan Party, that
is subject to Section 7.10 or that is a Subsidiary or joint venture of any of them, (a) the
full legal name of such Person, (b) the jurisdiction of organization and any organizational number
and tax identification number of such Person, (c) the location of such Person’s chief executive
office (or, if applicable, sole place of business) and (d) the number of shares of each class of
Stock of such Person authorized, the number outstanding and the number and percentage of such
outstanding shares for each such class owned, directly or indirectly, by any Loan Party or any
Subsidiary of any of them.


 


8









 






“Customary Permitted Liens” means, with respect to any Person, any of the following:



(a) liens (i) with respect to the payment of taxes, assessments or other governmental charges
or (ii) of suppliers, carriers, materialmen, warehousemen, workmen or mechanics and other similar
Liens, in each case imposed by law or arising in the ordinary course
of business, and, for each of the Liens in clauses (i) and (ii) above for amounts that
are not yet due or that are being contested in good faith by appropriate proceedings diligently
conducted and with respect to which adequate reserves or other appropriate provisions are
maintained on the books of such Person in accordance with GAAP;



(b) liens of a collection bank on items in the course of collection arising under Section
4-208 of the UCC as in effect in the State of Wisconsin or any similar section under any applicable
UCC or any similar Requirement of Law of any foreign jurisdiction;



(c) pledges or cash deposits made in the ordinary course of business (i) in connection with
workers’ compensation, unemployment insurance or other types of social security benefits (other
than any Lien imposed by ERISA), (ii) to secure the performance of bids, tenders, leases (other
than Capital Leases) sales or other trade contracts (other than for the repayment of borrowed
money) or (iii) made in lieu of, or to secure the performance of, surety, customs, reclamation or
performance bonds (in each case not related to judgments or litigation);



(d) judgment liens (other than for the payment of taxes, assessments or other governmental
charges) securing judgments and other proceedings not constituting an Event of Default under
Section 9.1(f) and pledges or cash deposits made in lieu of, or to secure the performance
of, judgment or appeal bonds in respect of such judgments and proceedings;



(e) Liens (i) arising by reason of zoning restrictions, easements, licenses, reservations,
restrictions, covenants, rights-of-way, encroachments, minor defects or irregularities in title
(including leasehold title) and other similar encumbrances on the use of real property or (ii)
consisting of leases, licenses or subleases granted by a lessor, licensor or sublessor on its
property (in each case other than Capital Leases) otherwise permitted under Section 8.4
that, for each of the Liens in clauses (i) and (ii) above, do not, in the aggregate, materially (x)
impair the value or marketability of such real property or (y) interfere with the ordinary conduct
of the business conducted and proposed to be conducted at such real property;



(f) Liens of landlords and mortgagees of landlords (i) arising by statute or under any lease
or related Contractual Obligation entered into in the ordinary course of business, (ii) on fixtures
and movable tangible property located on the real property leased or subleased from such landlord,
(iii) for amounts not yet due or that are being contested in good faith by appropriate proceedings
diligently conducted and (iv) for which adequate reserves or other appropriate provisions are
maintained on the books of such Person in accordance with GAAP; and



(g) the title and interest of a lessor or sublessor in and to personal property leased or
subleased (other than through a Capital Lease), in each case extending only to such personal
property.



“Daily Reset LIBOR Rate” means the one-month Eurodollar Base Rate quoted by the
Administrative Agent from Reuters Screen LIBOR01 Page or any successor thereto, which shall be that
one-month Eurodollar Base Rate in effect and reset each Business Day, adjusted for any reserve
requirement and any subsequent costs arising from a change in government regulation.


 


9









 





“Default” means any Event of Default and any event that, with the passing of time or
the giving of notice or both, would become an Event of Default.



“Defaulting Lender” means any Lender, as determined by the Administrative Agent, that
has (a) failed to fund any portion of its Loans or participations in Letters of Credit or Swing
Line Loans within one Business Day of the date required to be funded by it hereunder, (b) notified
the Borrower, the Administrative Agent, the L/C Issuer, the Swing Line Lender or any Lender 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) failed, within one Business Day 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 Swing Line Loans, (d) otherwise failed
to pay over to the Administrative Agent or any other Lender any other amount required to be paid by
it hereunder within one Business Day of the date when due, unless the subject of a good faith
dispute, or (e) (i) become or is insolvent or has a parent company that has become or is insolvent
or (ii) become the subject of a bankruptcy or insolvency proceeding, or has had a receiver,
conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or
indicating its consent to, approval of or acquiescence in any such proceeding or appointment or has
a parent company that has become the subject of a bankruptcy or insolvency proceeding, or has had a
receiver, conservator, trustee or custodian appointed for it, or has taken any action in
furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or
appointment. Nothing contained in the foregoing shall be deemed to constitute a waiver by the
Borrower of any of its rights or remedies (whether in equity or law) against any Lender which fails
to fund any of its Loans hereunder at the time or in the amount required to be funded under the
terms of this Agreement.



“Disclosure Documents” means, collectively, (a) all confidential information memoranda
and related materials prepared in connection with the syndication of the Facility and (b) all other
documents filed by any Group Member with the United States Securities and Exchange Commission.



“Dollars” and the sign “$” each mean the lawful money of the United States of
America.



“Domestic Person” means any “United States person” under and as defined in
Section 770l(a)(30) of the Code.




“E-Fax” means any system used to receive or transmit faxes electronically.



“Electronic Transmission” means each document, instruction, authorization, file,
information and any other communication transmitted, posted or otherwise made or communicated by
e-mail or E-Fax, or otherwise to or from an E-System or other equivalent service.



“Eligible Assignee” has the meaning specified in Section 11.2.


 


10









 





“Environmental Laws” means all Requirements of Law and Permits imposing liability or
standards of conduct for or relating to the regulation and protection of human health, safety, the
environment and natural resources, including CERCLA, the SWDA, the Hazardous Materials
Transportation Act (49 U.S.C. §§ 5101 et seq.), the Federal Insecticide, Fungicide, and Rodenticide
Act (7 U.S.C. §§ 136 et seq.), the Toxic Substances Control Act (15 U.S.C. §§ 2601 et seq.), the
Clean Air Act (42 U.S.C. §§ 7401 et seq.), the Federal Water Pollution Control Act (33 U.S.C. §§
1251 et seq.), the Occupational Safety and Health Act (29 U.S.C. §§ 651 et seq.), the Safe Drinking
Water Act (42 U.S.C. §§ 300(f) et seq.), all regulations promulgated under any of the foregoing,
all analogous Requirements of Law and Permits and any environmental transfer of ownership
notification or approval statutes, including the Industrial Site Recovery Act (N.J. Stat. Ann. §§
13:1K-6 et seq.).



“Environmental Liabilities” means all Liabilities (including costs of Remedial
Actions, natural resource damages and costs and expenses of investigation and feasibility studies)
that may be imposed on, incurred by or asserted against any Group Member as a result of, or related
to, any claim, suit, action, investigation, proceeding or demand by any Person, whether based in
contract, tort, implied or express warranty, strict liability, criminal or civil statute or common
law or otherwise, arising under any Environmental Law or in connection with any environmental,
health or safety condition or with any Release and resulting from the ownership, lease, sublease or
other operation or occupation of property by any Group Member, whether on, prior or after the date
hereof.




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



“ERISA Affiliate” means, collectively, any Group Member, and any Person under common
control, or treated as a single employer, with any Group Member, within the meaning of Section
414(b), (c), (m) or (o) of the Code.



“ERISA Event” means any of the following: (a) a reportable event described in Section
4043(b) of ERISA (or, unless the 30-day notice requirement has been duly waived under the
applicable regulations, Section 4043(c) of ERISA) with respect to a Title IV Plan, (b) the
withdrawal of any ERISA Affiliate from a Title IV Plan subject to Section 4063 of ERISA during a
plan year in which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA, (c)
the complete or partial withdrawal of any ERISA Affiliate from any Multiemployer Plan, (d) with
respect to any Multiemployer Plan, the filing of a notice of reorganization, insolvency or
termination (or treatment of a plan amendment as termination) under Section 4041A of ERISA, (e) the
filing of a notice of intent to terminate a Title IV Plan (or treatment of a plan amendment as
termination) under Section 4041 of ERISA, (f) the institution of proceedings to terminate a Title
IV Plan or Multiemployer Plan by the PBGC, (g) the failure to make any required contribution to any
Title IV Plan or Multiemployer Plan when due, (h) the imposition of a lien under Section 412 of the
Code or Section 302 or 4068 of ERISA on any property (or rights to property, whether real or
personal) of any ERISA Affiliate, (i) the failure of a Benefit Plan or any trust thereunder
intended to qualify for tax exempt status under Section 401 or 501 of the Code or other
Requirements of Law to qualify thereunder and (j) any other event or condition that might
reasonably be expected to constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Title IV Plan or
Multiemployer Plan or for the imposition of any liability upon any ERISA Affiliate under Title IV
of ERISA other than for PBGC premiums due but not delinquent.


 


11









 





“E-Signature” means the process of attaching to or logically associating with an
Electronic Transmission an electronic symbol, encryption, digital signature or process (including
the name or an abbreviation of the name of the party transmitting the Electronic Transmission) with
the intent to sign, authenticate or accept such Electronic Transmission.



“E-System” means any electronic system, including DebtX and any other Internet or
extranet-based site, whether such electronic system is owned, operated or hosted by the
Administrative Agent, any of its Related Persons or any other Person, providing for access to data
protected by passcodes or other security system.



“Eurodollar Base Rate” means, with respect to any Interest Period for any Eurodollar
Rate Loan, the rate determined by the Administrative Agent to be the offered rate for deposits in
Dollars for the applicable Interest Period appearing on the Reuters Screen LIBOR01 Page or any
successor thereto, on the electronic communications terminals in the Administrative Agent’s money
center as of 11:00 a.m. (London time) on the second full Business Day next preceding the first day
of each Interest Period. In the event that such rate does not appear on the Reuters Screen LIBOR01
Page (or otherwise on the Reuters Screen) at such time, the “Eurodollar Base Rate” shall be
determined by reference to such other comparable publicly available service for displaying the
offered rate for deposit in Dollars in the London interbank market as may be selected by the
Administrative Agent and, in the absence of availability, such other method to determine such
offered rate as may be selected by the Administrative Agent in its sole discretion.



“Eurodollar Rate” means, with respect to any Interest Period and for any Eurodollar
Rate Loan, an interest rate per annum determined as the ratio of (a) the Eurodollar Base Rate with
respect to such Interest Period for such Eurodollar Rate Loan to (b) the difference between the
number one and the Eurodollar Reserve Requirements with respect to such Interest Period and for
such Eurodollar Rate Loan.



“Eurodollar Rate Loan” means any Loan that bears interest based on the Eurodollar
Rate.



“Eurodollar Reserve Requirements” means, with respect to any Interest Period and for
any Eurodollar Rate Loan, a rate per annum equal to the aggregate, without duplication, of the
maximum rates (expressed as a decimal number) of reserve requirements in effect 2 Business Days
prior to the first day of such Interest Period (including basic, supplemental, marginal and
emergency reserves) under any regulations of the Federal Reserve 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
Federal Reserve Board) maintained by a member bank of the United States Federal Reserve System.



“Event of Default” has the meaning specified in Section 9.1.


 


12









 





“Excluded Foreign Subsidiary” means any Subsidiary that is not a Domestic Person and
in respect of which any of (a) the pledge of all of the Stock of such Subsidiary as Collateral for
any Obligation of the Borrower, (b) the grant by such Subsidiary of a Lien on any of its property
as Collateral for any Obligation of the Borrower or (c) such Subsidiary incurring Guaranty
Obligations with respect to any Obligation of the Borrower, the Borrower or any Domestic Person
would, in the good faith judgment of the Borrower, result in materially adverse tax consequences to
the Loan Parties and their Subsidiaries, taken as a whole; provided, however, that
(x) the Administrative Agent and the Borrower may agree that, despite the foregoing, any such
Subsidiary shall not be an “Excluded Foreign Subsidiary” and (y) no such Subsidiary shall
be an “Excluded Foreign Subsidiary” if, with substantially similar tax consequences, such
Subsidiary has entered into any Guaranty Obligations with respect to, such Subsidiary has granted a
security interest in any of its property to secure, or more than 66% of the Voting Stock of such
Subsidiary was pledged to secure, directly or indirectly, any Indebtedness (other than the
Obligations) of any Loan Party.




“Facility” means the Revolving Credit Facility.



“Federal Funds Rate” means, for any period, a fluctuating interest rate per annum
equal for each day during such period to the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as
determined by the Administrative Agent in its sole discretion.



“Federal Reserve Board” means the Board of Governors of the United States Federal
Reserve System and any successor thereto.



“Fee Letter” means the letter agreement, dated as of February 18, 2011, addressed to
the Borrower from the Administrative Agent and accepted by the Borrower, with respect to certain
fees to be paid from time to time to the Administrative Agent.



“Financial Statement” means each financial statement delivered pursuant to Section
4.4 or 6.1.



“Fiscal Quarter” means each 3 fiscal month period ending on March 31, June 30,
September 30 or December 31.




“Fiscal Year” means the twelve month period ending on December 31.



“GAAP” means generally accepted accounting principles in the United States of America,
as in effect from time to time, set forth in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants, in the statements and
pronouncements of the Financial Accounting Standards Board and in such other statements by such
other entity as may be in general use by significant segments of the accounting profession that are
applicable to the circumstances as of the date of determination. Subject to Section 1.3,
all references to “GAAP” shall be to GAAP applied consistently with the principles used in
the preparation of the Financial Statements described in Section 4.4(a).


 


13









 





“GE Capital Credit Agreement” means the $100,000,000 Credit Agreement dated as of
November 1, 2006, as amended and in effect as of the Closing Date, among the Borrower, the
financial institutions party thereto, and General Electric Capital Corporation, as administrative
agent and collateral agent.



“Governmental Authority” means any nation, sovereign or government, any state or other
political subdivision thereof, any agency, authority or instrumentality thereof and any entity or
authority exercising executive, legislative, taxing, judicial, regulatory or administrative
functions of or pertaining to government, including any central bank, stock exchange, regulatory
body, arbitrator, public sector entity, supra-national entity (including the European Union and the
European Central Bank) and any self-regulatory organization (including the National Association of
Insurance Commissioners).




“Group Members” means, collectively, the Borrower and its Subsidiaries.



“Group Members’ Accountants” means Grant Thornton LLP or other nationally-recognized
independent registered certified public accountants selected by Borrower and reasonably acceptable
to the Administrative Agent.



“Guarantor” means each Subsidiary of the Borrower listed on Schedule 4.3 that
is not an Excluded Foreign Subsidiary and each other Person that enters into any Guaranty
Obligation with respect to any Obligation of any Loan Party.



“Guaranty and Security Agreement” means a guaranty and security agreement, in
substantially the form of Exhibit H, among the Administrative Agent, the Borrower and other
Guarantors from time to time party thereto.



“Guaranty Obligation” means, as applied to any Person, any direct or indirect
liability, contingent or otherwise, of such Person for any Indebtedness, lease, dividend or other
obligation (the “primary obligation”) of another Person (the “primary obligor”), if
the purpose or intent of such Person in incurring such liability, or the economic effect thereof,
is to guarantee such primary obligation or provide support, assurance or comfort to the holder of
such primary obligation or to protect or indemnify such holder against loss with respect to such
primary obligation, including (a) the direct or indirect guaranty, endorsement (other than for
collection or deposit in the ordinary course of business), co-making, discounting with recourse or
sale with recourse by such Person of any primary obligation, (b) the incurrence of reimbursement
obligations with respect to any letter of credit or bank guarantee in support of any primary
obligation, (c) the existence of any Lien, or any right, contingent or otherwise, to receive a
Lien, on the property of such Person securing any part of any primary obligation and (d) any
liability of such Person for a primary obligation through any Contractual Obligation (contingent or
otherwise) or other arrangement (i) to purchase, repurchase or otherwise acquire such primary
obligation or any security therefor or to provide funds for the payment or discharge of such
primary obligation (whether in the form of a loan, advance, stock purchase, capital contribution or
otherwise), (ii) to maintain the solvency, working capital, equity capital or


 


14









 






any balance sheet
item, level of income or cash flow, liquidity or financial condition of any primary obligor, (iii)
to make take-or-pay or similar payments, if required, regardless of non-performance by any other
party to any Contractual Obligation, (iv) to purchase, sell or lease (as lessor or lessee) any
property, or to purchase or sell services, primarily for the purpose of enabling the primary
obligor to satisfy such primary obligation or to protect the holder of such primary obligation
against loss or (v) to supply funds to or in any other manner invest in, such primary obligor
(including to pay for property or services irrespective of whether such property is received or
such services are rendered); provided, however, that “Guaranty Obligations”
shall not include (x) endorsements for collection or deposit in the ordinary course of business and
(y) product warranties given in the ordinary course of business. The outstanding amount of any
Guaranty Obligation shall equal the outstanding amount of the primary obligation so guaranteed or
otherwise supported as reasonably determined by the Administrative Agent or, if lower, the stated
maximum amount for which such Person may be liable under such Guaranty Obligation.



“Hazardous Material” means any substance, material or waste that is classified,
regulated or otherwise characterized under any Environmental Law as hazardous, toxic, a contaminant
or a pollutant or by other words of similar meaning or regulatory effect, including petroleum or
any fraction thereof, asbestos, polychlorinated biphenyls and radioactive substances.



“Hedging Agreement” means any Interest Rate Contract, foreign exchange, swap, option
or forward contract, spot, cap, floor or collar transaction, any other derivative instrument and
any other similar speculative transaction and any other similar agreement or arrangement designed
to alter the risks of any Person arising from fluctuations in any underlying variable.



“Indebtedness” of any Person means, without duplication, any of the following, whether
or not matured: (a) all indebtedness for borrowed money, (b) all obligations evidenced by notes,
bonds, debentures or similar instruments, (c) all reimbursement and all obligations with respect to
(i) letters of credit, bank guarantees or bankers’ acceptances or (ii) surety, customs, reclamation
or performance bonds (in each case not related to judgments or litigation) other than those entered
into in the ordinary course of business, (d) all obligations to pay the deferred purchase price of
property or services, other than trade payables incurred in the ordinary course of business, (e)
all obligations created or arising under any conditional sale or other title retention agreement,
regardless of whether the rights and remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such property, (f) all Capitalized Lease
Obligations, (g) all obligations, whether or not contingent, to purchase, redeem, retire, defease
or otherwise acquire for value any of its own Stock or Stock Equivalents (or any Stock or Stock
Equivalent of a direct or indirect parent entity thereof) prior to the date that is 180 days after
the Scheduled Revolving Credit Termination Date, valued at, in the case of redeemable preferred
Stock, the greater of the voluntary liquidation preference and the involuntary liquidation
preference of such Stock plus accrued and unpaid dividends, (h) all payments that would be required
to be made in respect of any Hedging Agreement in the event of a termination (including an early
termination) on the date of determination and (i) all Guaranty Obligations for obligations of any
other Person constituting Indebtedness of such other Person; provided, however,
that the items in each of clauses (a) through (i) above shall constitute
“Indebtedness” of such Person solely to the extent, directly or indirectly, (x) such Person
is liable for any part of any such item, (y) any such item is secured by a Lien on such Person’s
property or (z) any other Person has a right, contingent or otherwise, to cause such Person to become
liable for any part of any such item or to grant such a Lien.


 


15









 






“Indemnified Matter” has the meaning specified in Section 11.4.




“Indemnitee” has the meaning specified in Section 11.4.



“Intellectual Property” means all rights, title and interests in or relating to
intellectual property arising under any Requirement of Law and all IP Ancillary Rights relating
thereto, including all Copyrights, Patents, Trademarks, Internet Domain Names, Trade Secrets and IP
Licenses.



“Interest Period” means, with respect to any Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is made or converted to a Eurodollar Rate Loan or,
if such loan is continued, on the last day of the immediately preceding Interest Period therefor
and, in each case, ending 1, 2, 3 or 6 months thereafter, as selected by the Borrower pursuant
hereto; provided, however, that (a) 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 extend such Interest Period into
another such Business Day falls in the next calendar month, in which case such Interest Period
shall end on the immediately preceding Business Day, (b) any Interest Period that begins on the
last Business Day of a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on the last Business Day of
a calendar month, (c) the Borrower may not select any Interest Period ending after the Scheduled
Revolving Credit Termination Date, (d) the Borrower may not select any Interest Period in respect
of Loans having an aggregate principal amount of less than $5,000,000 or an integral multiple of
$1,000,000 in excess of such amount, and (e) there shall be outstanding at any one time no more
than 5 Interest Periods.



“Interest Rate Contracts” means all interest rate swap agreements, interest rate cap
agreements, interest rate collar agreements and interest rate insurance.



“Internet Domain Names” means all rights, title and interests (and all related IP
Ancillary Rights) arising under any Requirement of Law in or relating to Internet domain names.



“Investment” means, with respect to any Person, directly or indirectly, (a) to own,
purchase or otherwise acquire, in each case whether beneficially or otherwise, any investment in,
including any interest in, any Security of any other Person (other than any evidence of any
Obligation), (b) to purchase or otherwise acquire, whether in one transaction or in a series of
transactions, all or a significant part of the property of any other Person or a business conducted
by any other Person or all or substantially all of the assets constituting the business of a
division, branch, brand or other unit operation of any other Person, (c) to incur, or to remain
liable under, any Guaranty Obligation for Indebtedness of any other Person, to assume the
Indebtedness of any other Person or to make, hold, purchase or otherwise acquire, in each case
directly or indirectly, any deposit, loan, advance, commitment to lend or advance, or other
extension of credit (including by deferring or extending the date of, in each case outside the
ordinary course of business, the payment


 


16









 






of the purchase price for Sales of property or services to
any other Person, to the extent such payment obligation constitutes Indebtedness of such other Person),
excluding deposits with financial institutions available for withdrawal on demand, prepaid
expenses, accounts receivable and similar items created in the ordinary course of business, (d) to
make, directly or indirectly, any contribution to the capital of any other Person or (e) to Sell
any property for less than fair market value (including a disposition of cash or Cash Equivalents
in exchange for consideration of lesser value); provided, however, that such
Investment shall be valued at the difference between the value of the consideration for such Sale
and the fair market value of the property Sold.



“IP Ancillary Rights” means, with respect to any other Intellectual Property, as
applicable, all foreign counterparts to, and all divisionals, reversions, continuations,
continuations-in-part, reissues, reexaminations, renewals and extensions of, such Intellectual
Property and all income, royalties, proceeds and Liabilities at any time due or payable or asserted
under or with respect to any of the foregoing or otherwise with respect to such Intellectual
Property, including all rights to sue or recover at law or in equity for any past, present or
future infringement, misappropriation, dilution, violation or other impairment thereof, and, in
each case, all rights to obtain any other IP Ancillary Right.



“IP License” means all Contractual Obligations (and all related IP Ancillary Rights),
whether written or oral, granting any right title and interest in or relating to any Intellectual
Property.



“IRS” means the Internal Revenue Service of the United States and any successor
thereto.



“Issue” means, with respect to any Letter of Credit, to issue, extend the expiration
date of, renew (including by failure to object to any automatic renewal on the last day such
objection is permitted), increase the face amount of, or reduce or eliminate any scheduled decrease
in the face amount of, such Letter of Credit, or to cause any Person to do any of the foregoing.
The terms “Issued” and “Issuance” have correlative meanings.



“L/C Cash Collateral Account” means any Cash Collateral Account (a) specifically
designated as such by the Borrower in a notice to the Administrative Agent and (b) from and after
the effectiveness of such notice, not containing any funds other than those required under the Loan
Documents to be placed therein.



“L/C Issuer” means (a) U.S. Bank and (b) each Person that hereafter becomes an L/C
Issuer with the approval of, and pursuant to an agreement with and in form and substance
satisfactory to, the Administrative Agent and the Borrower, in each case in their capacity as L/C
Issuers hereunder and together with their successors.



“L/C Obligations” means, for any Letter of Credit at any time, the sum of (a) the L/C
Reimbursement Obligations at such time for such Letter of Credit and (b) the aggregate maximum
undrawn face amount of such Letter of Credit outstanding at such time.



“L/C Reimbursement Agreement” has the meaning specified in Section 2.4(a).


 


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“L/C Reimbursement Date” has the meaning specified in Section 2.4(e).



“L/C Reimbursement Obligation” means, for any Letter of Credit, the obligation of the
Borrower to the L/C Issuer thereof, as and when matured, to pay all amounts drawn under such Letter
of Credit.




“L/C Request” has the meaning specified in Section 2.4(b).




“L/C Sublimit” means $15,000,000.



“Lender” means, collectively, the Swingline Lender and any other financial institution
or other Person that (a) is listed on the signature pages hereof as a “Lender” or (b) from
time to time becomes a party hereto by execution of an Assignment, in each case together with its
successors.




“Letter of Credit” means any letter of credit Issued pursuant to Section 2.4.



“Liabilities” means all claims, actions, suits, judgments, damages, losses, liability,
obligations, responsibilities, fines, penalties, sanctions, costs, fees, taxes, commissions,
charges, disbursements and expenses, in each case of any kind or nature (including interest accrued
thereon or as a result thereto and fees, charges and disbursements of financial, legal and other
advisors and consultants), whether joint or several, whether or not indirect, contingent,
consequential, actual, punitive, treble or otherwise.



“Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment, charge,
deposit arrangement, encumbrance, easement, lien (statutory or other), security interest or other
security arrangement and any other preference, priority or preferential arrangement of any kind or
nature whatsoever, including any conditional sale contract or other title retention agreement, the
interest of a lessor under a Capital Lease and any synthetic or other financing lease having
substantially the same economic effect as any of the foregoing.




“Loan” means any loan made or deemed made by any Lender hereunder.



“Loan Documents” means, collectively, this Agreement, any Notes, the Guaranty and
Security Agreement, the Mortgages, the Control Agreements, the Fee Letter, the L/C Reimbursement
Agreements, the Secured Hedging Agreements and, when executed, each document executed by a Loan
Party and delivered to the Administrative Agent, any Lender or any L/C Issuer in connection with or
pursuant to any of the foregoing or the Obligations, together with any modification of any term, or
any waiver with respect to, any of the foregoing.




“Loan Party” means each Borrower and each Guarantor.



“Loan To Value Ratio” means, as of any time, the ratio of (a) the aggregate amount of
the Revolving Credit Commitments at such time to (b) the aggregate value of all Mortgaged Property
at such time based upon the Mortgaged Property Reports delivered by the Borrower to the
Administrative Agent for each of the Mortgaged Properties.


 


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“Material Adverse Effect” means an effect that results in or causes, or could
reasonably be expected to result in or cause, a material adverse change in any of (a) the condition
(financial or otherwise), business, performance, operations or property of the Group Members, taken
as a whole, (b) the ability of any Loan Party to perform its obligations under any Loan Document
and (c) the validity or enforceability of any Loan Document or the rights and remedies of the
Administrative Agent, the Lenders and the other Secured Parties under any Loan Document.



“Material Environmental Liabilities” means Environmental Liabilities exceeding (a)
$5,000,000 individually, or (b) $10,000,000 in the aggregate for any one or more Group Members.



“Manitowoc Property” means the Borrower’s 60-bed assisted living facility located in
Manitowoc, Wisconsin.




“Maximum Lawful Rate” has the meaning specified in Section 2.13.




“Moody’s” means Moody’s Investors Service, Inc.



“Mortgage” means any mortgage, deed of trust or other document executed or required
herein to be executed by any Loan Party and granting a security interest over real property in
favor of the Administrative Agent as security for the Obligations.



“Mortgage Supporting Documents” means, with respect to any Mortgage for a parcel of
real property, each document (including title policies or marked-up unconditional insurance
binders, in each case, together with copies of all documents referred to therein, maps,
environmental assessments and reports and evidence regarding recording and payment of fees,
insurance premium and taxes) that the Administrative Agent may reasonably request, to create,
register, perfect, maintain, evidence the existence, substance, form or validity of or enforce a
valid lien on such parcel of real property in favor of the Administrative Agent for the benefit of
the Secured Parties, subject only to such Liens as the Administrative Agent may approve.



“Mortgaged Property” means each real property of any Loan Party identified in
Schedule 4.16 that is the subject of a Mortgage.



“Mortgaged Property Report” means, with respect to each Mortgaged Property, an
independent third party valuation of such Mortgaged Property prepared by an appraiser selected by
the Administrative Agent.



“Multiemployer Plan” means any multiemployer plan, as defined in Section 400l(a)(3) of
ERISA, to which any ERISA Affiliate incurs or otherwise has any obligation or liability, contingent
or otherwise.



“Net Cash Proceeds” means proceeds received in cash from any Property Loss Event with
respect to, property, net of (i) the customary out-of-pocket cash costs, fees and expenses paid or
required to be paid in connection therewith, and (ii) taxes paid or reasonably estimated to be
payable as a result thereof.


 


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“Non-Funding Lender” has the meaning specified in Section 2.2(c).



“Non-Recourse Indebtedness” means Indebtedness (a) as to which none of the Group
Members (other than a Non-Recourse Subsidiary that is the obligor on such Indebtedness) (i)
provides credit support of any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (ii) is directly or indirectly liable (as a guarantor or otherwise), or
(iii) constitutes the lender; (b) no default with respect to which (including any rights that the
holders thereof may have to take enforcement action against any Non-Recourse Subsidiary) would
permit (upon notice, lapse of time or both) any holder of any other Indebtedness (other than the
Obligations) of any of the Group Members to declare a default on such other Indebtedness or cause
the payment thereof to be accelerated or payable prior to its stated maturity, (c) as to which the
lenders thereunder will not have any recourse to the Stock or assets of any Group Member (other
than the Non-Recourse Subsidiary that is the obligor on such Indebtedness), and (d) the Net Cash
Proceeds of which are used to finance the purchase of property used in the business of the Group
Members or improvements made to such property.



“Non-Recourse Subsidiary” means any Subsidiary that incurs Non-Recourse Indebtedness
and has no material assets other than the property that was purchased or improved with the proceeds
of such Non-Recourse Indebtedness.



“Non-U.S. Lender Party” means each of the Administrative Agent, each Lender, each L/C
Issuer, each SPV and each participant, in each case that is not a Domestic Person.



“Note” means a promissory note of the Borrower, in substantially the form of
Exhibit B, payable to the order of a Lender in the Facility in a principal amount equal to
the amount of such Lender’s Commitment under the Facility.




“Notice of Borrowing” has the meaning specified in Section 2.2.



“Notice of Conversion or Continuation” has the meaning specified in Section
2.10.



“Obligations” means, with respect to any Loan Party, all amounts, obligations,
liabilities, covenants and duties of every type and description owing by such Loan Party to the
Administrative Agent, any Lender, any L/C Issuer, any other Indemnitee, any participant, any SPV
or, in the case of any Secured Hedging Agreement, any Affiliate of any of them arising out of,
under, or in connection with, any Loan Document, whether direct or indirect (regardless of whether
acquired by assignment), absolute or contingent, due or to become due, whether liquidated or not,
now existing or hereafter arising and however acquired, and whether or not evidenced by any
instrument or for the payment of money, including, without duplication, (a) if such Loan Party is
the Borrower, all Loans and L/C Obligations, (b) all interest, whether or not accruing after the
filing of any petition in bankruptcy or after the commencement of any insolvency, reorganization or
similar proceeding, and whether or not a claim for post-filing or post-petition interest is allowed
in any such proceeding, and (c) all other fees, expenses (including fees, charges and disbursement
of counsel), interest, commissions, charges, costs, disbursements, indemnities and reimbursement of
amounts paid and other sums chargeable to
such Loan Party under any Loan Document (including those payable to L/C Issuers as described
in Section 2.11).


 


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“Other Taxes” has the meaning specified in Section 2.17(c).



“Patents” means all rights, title and interests (and all related IP Ancillary Rights)
arising under any Requirement of Law in or relating to letters patent and applications therefor.



“PBGC” means the United States Pension Benefit Guaranty Corporation and any successor
thereto.



“Permit” means, with respect to any Person, any permit, approval, authorization,
license, registration, certificate, concession, grant, franchise, variance or permission from, and
any other Contractual Obligations with, any Governmental Authority, in each case whether or not
having the force of law and applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.



“Permitted Acquisition” means any Proposed Acquisition satisfying each of the
following conditions: (a) the aggregate amounts payable in connection with, and other consideration
for (in each case, including all transaction costs and all Indebtedness, liabilities and Guaranty
Obligations incurred or assumed in connection therewith or otherwise reflected in a Consolidated
balance sheet of the Borrower and the Proposed Acquisition Target), such Proposed Acquisition and
all other Permitted Acquisitions consummated in any Fiscal Year shall not exceed $50,000,000;
provided, however, that any portion of such amount that remains unused for
Permitted Acquisitions at the end of any Fiscal Year may be carried over and used for Permitted
Acquisitions in the following Fiscal Year; and provided, further, that the
cumulative unused amounts may be carried over into successive Fiscal Years, but the total unused
amount carried over from any Fiscal Year to the next for Permitted Acquisitions may not exceed
$50,000,000, (b) the Administrative Agent shall have received reasonable advance notice of such
Proposed Acquisition including a reasonably detailed description thereof at least 30 days prior to
the consummation of such Proposed Acquisition (or such later date as may be agreed by the
Administrative Agent) and on or prior to the date of such Proposed Acquisition, the Administrative
Agent shall have received copies of the acquisition agreement and related Contractual Obligations
and other documents and information reasonably requested by the Administrative Agent and (c) as of
the date of consummation of any transaction as part of such Proposed Acquisition and after giving
effect to all transactions to occur on such date as part of such Proposed Acquisition, (i) all
conditions set forth in clauses (i) and (ii) of Section 3.2(b) shall be satisfied
or duly waived, (ii) the Consolidated Leverage Ratio, calculated on a Pro Forma Basis as of the
last day of the most recent Fiscal Quarter for which Financial Statements have been delivered
hereunder, shall not be greater than 3.50 to 1, and (iii) the Borrower shall be in compliance with
the other financial covenants set forth in Article V on a Pro Forma Basis as of the last
day of the most recent Fiscal Quarter for which Financial Statements have been delivered hereunder.



“Permitted Indebtedness” means any Indebtedness of any Group Member that is not
prohibited by Section 8.1 or any other provision of any Loan Document.


 


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“Permitted Investment” means any Investment of any Group Member that is not prohibited
by Section 8.3 or any other provision of any Loan Document.



“Permitted Lien” means any Lien on or with respect to the property of any Group Member
that is not prohibited by Section 8.2 or any other provision of any Loan Document.



“Permitted Refinancing” means Indebtedness constituting a refinancing or extension of
Permitted Indebtedness that (a) has an aggregate outstanding principal amount not greater than the
aggregate principal amount of such Permitted Indebtedness outstanding at the time of such
refinancing or extension, (b) is not entered into as part of a Sale and Leaseback transaction, (c)
is not secured by any property or any Lien other than those securing such Permitted Indebtedness
and (d) is otherwise on terms no less favorable to the Group Members, taken as a whole, than those
of such Permitted Indebtedness; provided, however, that, notwithstanding the
foregoing, (x) the terms of such Permitted Indebtedness may be modified as part of such Permitted
Refinancing if such modification would have been permitted pursuant to Section 8.11 and (y)
no Guaranty Obligation for such Indebtedness shall constitute part of such Permitted Refinancing
unless similar Guaranty Obligations with respect to such Permitted Indebtedness existed and
constituted Permitted Indebtedness prior to such refinancing or extension.



“Permitted Reinvestment” means, with respect to the Net Cash Proceeds of any Property
Loss Event, to acquire (or make Capital Expenditures to finance the acquisition, repair,
improvement or construction of), to the extent otherwise permitted hereunder and under the Loan
Documents, property useful in the business of the Borrower or any of its Subsidiaries (including
through a Permitted Acquisition) or, if such Property Loss Event involves loss or damage to
property, to the extent otherwise permitted under the Loan Documents, to repair such loss or
damage.



“Person” means any individual, partnership, corporation (including a business trust
and a public benefit corporation), joint stock company, estate, association, firm, enterprise,
trust, limited liability company, unincorporated association, joint venture and any other entity or
Governmental Authority.



“Private Payor” means any insurance company, health maintenance organization,
professional provider organization or similar entity that is obligated to make payments for goods
or services provided to a patient, other than a governmental entity.



“Private Payor Arrangement” means an agreement or arrangement with a Private Payor
pursuant to which the Private Payor pays all or a portion of the charges of the Borrower for
providing goods and services to a patient.



“Pro Forma Basis” means, with respect to any determination for any period and any Pro
Forma Transaction, that such determination shall be made by giving pro forma effect to each such
Pro Forma Transaction, as if each such Pro Forma Transaction had been consummated on the first day
of such period, based on historical results accounted for in accordance with GAAP and, to the
extent applicable, reasonable assumptions that are specified in detail in the relevant Compliance
Certificate, Financial Statement or other document provided to the
Administrative Agent or any Lender in connection herewith in accordance with Regulation S-X of
the Securities Act of 1933.


 


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“Pro Forma Transaction” means any transaction consummated as part of any Permitted
Acquisition, together with each other transaction relating thereto and consummated in connection
therewith, including any incurrence or repayment of Indebtedness.



“Property Loss Event” means, with respect to any property, any loss of or damage to
such property or any taking of such property or condemnation thereof.



“Proposed Acquisition” means (a) any proposed acquisition that is consensual and
approved by the board of directors of such Proposed Acquisition Target, of all or substantially all
of the assets or Stock of any Proposed Acquisition Target by the Borrower or any Subsidiary of the
Borrower or (b) any proposed merger of any Proposed Acquisition Target with or into the Borrower or
any Subsidiary of the Borrower (and, in the case of a merger with the Borrower, with the Borrower
being the surviving corporation).



“Proposed Acquisition Target” means any Person or any brand, line of business,
division, branch, operating division or other unit operation of any Person.



“Pro Rata Outstandings”, of any Lender at any time, means the sum of (a) the
outstanding principal amount of Revolving Loans owing to such Lender and (b) the amount of the
participation of such Lender in the L/C Obligations outstanding with respect to all Letters of
Credit.



“Pro Rata Share” means, with respect to any Lender at any time, the percentage
obtained by dividing (a) the sum of the Commitments (or, if such Commitments in the Facility are
terminated, the Pro Rata Outstandings therein) of such Lender then in effect under the Facility by
(b) the sum of the Commitments (or, if such Commitments in the Facility are terminated, the Pro
Rata Outstandings therein) of all Lenders then in effect under the Facility; provided,
however, that, if there are no Commitments and no Pro Rata Outstandings in the Facility,
such Lender’s Pro Rata Share in the Facility shall be determined based on the Pro Rata Share in the
Facility most recently in effect, after giving effect to any subsequent assignment and any
subsequent non-pro rata payments of any Lender pursuant to Section 2.18.




“Register” has the meaning specified in Section 2.14(b).



“Reinvestment Prepayment Amount” means, with respect to any Net Cash Proceeds on the
Reinvestment Prepayment Date therefor, the amount of such Net Cash Proceeds less any amount paid or
required to be paid by any Loan Party to make Permitted Reinvestments with such Net Cash Proceeds
pursuant to a Contractual Obligation entered into prior to such Reinvestment Prepayment Date with
any Person that is not an Affiliate of the Borrower.


 


23









 





“Reinvestment Prepayment Date” means, with respect to any portion of any Net Cash
Proceeds of any Property Loss Event, the earliest of (a) the 365th day after the completion of the
portion of such Property Loss Event corresponding to such Net Cash Proceeds, (b) the date that is 5
Business Days after the date on which the Borrower shall have notified the
Administrative Agent of the Borrower’s determination not to make Permitted Reinvestments with
such Net Cash Proceeds, (c) the occurrence of any Event of Default set forth in Section
9.1(e)(ii) and (d) 5 Business Days after the delivery of a notice by the Administrative Agent
or the Required Lenders to the Borrower during the continuance of any other Event of Default.



“Related Person” means, with respect to any Person, each Affiliate of such Person and
each director, officer, employee, agent, trustee, representative, attorney, accountant and each
insurance, environmental, legal, financial and other advisor (including those retained in
connection with the satisfaction or attempted satisfaction of any condition set forth in Article
III) and other consultants and agents of or to such Person or any of its Affiliates, together with,
if such Person is the Administrative Agent, each other Person or individual designated, nominated
or otherwise mandated by or helping the Administrative Agent pursuant to and in accordance with
Section 10.4 or any comparable provision of any Loan Document.



“Release” means any release, threatened release, spill, emission, leaking, pumping,
pouring, emitting, emptying, escape, injection, deposit, disposal, discharge, dispersal, dumping,
leaching or migration of Hazardous Material into or through the environment.



“Remedial Action” means all actions required to (a) clean up, remove, treat or in any
other way address any Hazardous Material in the indoor or outdoor environment, (b) prevent or
minimize any Release so that a Hazardous Material does not migrate or endanger or threaten to
endanger public health or welfare or the indoor or outdoor environment or (c) perform pre-remedial
studies and investigations and post-remedial monitoring and care with respect to any Hazardous
Material.



“Required Lenders” means, at any time, Lenders having at such time at least 51% of the
sum of the aggregate Revolving Credit Commitments (or, if such Commitments are terminated, the sum
of the amounts of the participations in Swing Loans, the principal amount of unparticipated
portions of the Swing Loans and the Pro Rata Outstandings in the Revolving Credit Facility) then in
effect, ignoring, in such calculation, the amounts held by any Non-Funding Lender.



“Requirements of Law” means, with respect to any Person, collectively, the common law
and all federal, state, local, foreign, multinational or international laws, statutes, codes,
treaties, standards, rules and regulations, guidelines, ordinances, orders, judgments, writs,
injunctions, decrees (including administrative or judicial precedents or authorities) and the
interpretation or administration thereof by, and other determinations, directives, requirements or
requests of, any Governmental Authority, in each case whether or not having the force of law and
that are applicable to or binding upon such Person or any of its property or to which such Person
or any of its property is subject.



“Responsible Officer” means, with respect to any Person, any of the president, chief
executive officer, treasurer, assistant treasurer, controller, managing member or general partner
of such Person but, in any event, with respect to financial matters, any such officer that is
responsible for preparing the Financial Statements delivered hereunder and, with respect to the
documents delivered on the Closing Date and documents delivered pursuant to Section 7.10,
the secretary or assistant secretary of such Person or any other officer responsible for
maintaining the corporate and similar records of such Person.


 


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“Restricted Payment” means (a) any dividend, return of capital, distribution or any
other payment or Sale of property for less than fair market value, whether direct or indirect
(including through the use of Hedging Agreements, the making, repayment, cancellation or
forgiveness of Indebtedness and similar Contractual Obligations) and whether in cash, Securities or
other property, on account of any Stock or Stock Equivalent of the Borrower or any of its
Subsidiaries, in each case now or hereafter outstanding, including with respect to a claim for
rescission of a Sale of such Stock or Stock Equivalent and (b) any redemption, retirement,
termination, defeasance, cancellation, purchase or other acquisition for value, whether direct or
indirect (including through the use of Hedging Agreements, the making, repayment, cancellation or
forgiveness of Indebtedness and similar Contractual Obligations), of any Stock or Stock Equivalent
of any Group Member or of any direct or indirect parent entity of the Borrower, now or hereafter
outstanding, and any payment or other transfer setting aside funds for any such redemption,
retirement, termination, cancellation, purchase or other acquisition, whether directly or
indirectly and whether to a sinking fund, a similar fund or otherwise.



“Revolving Credit Commitment” means, with respect to each Revolving Credit Lender, the
commitment of such Lender to make Revolving Loans and acquire interests in other Revolving Credit
Outstandings, which commitment is in the amount set forth opposite such Lender’s name on
Schedule I under the caption “Revolving Credit Commitment”, as amended to reflect
Assignments and as such amount may be reduced pursuant to this Agreement. The aggregate amount of
the Revolving Credit Commitments on the date hereof equals $125,000,000.



“Revolving Credit Facility” means the Revolving Credit Commitments and the provisions
herein related to the Revolving Loans, Swing Loans and Letters of Credit.



“Revolving Credit Lender” means each Lender that has a Revolving Credit Commitment,
holds a Revolving Loan or participates in any Swing Loan or Letter of Credit.



“Revolving Credit Outstandings” means, at any time, the sum of, in each case to the
extent outstanding at such time, (a) the aggregate principal amount of the Revolving Loans and
Swing Loans and (b) the L/C Obligations for all Letters of Credit.



“Revolving Credit Termination Date” shall mean the earliest of (a) the Scheduled
Revolving Credit Termination Date, (b) the date of termination of the Revolving Credit Commitments
pursuant to Section 2.5 or 9.2 and (c) the date on which the Obligations become due and
payable pursuant to Section 9.2.




“Revolving Loan” has the meaning specified in Section 2.1.




“S&P” means Standard & Poor’s Rating Services.


 


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“Sale and Leaseback Transaction” means, with respect to any Person (the
“obligor”), any Contractual Obligation or other arrangement with any other Person (the
“counterparty”) consisting of a lease by such obligor of any property that, directly
or indirectly, has been or is to be Sold by the obligor to such counterparty or to any other Person
to whom funds have been advanced by such counterparty based on a Lien on, or an assignment of, such
property or any obligations of such obligor under such lease.




“Scheduled Revolving Credit Termination Date” means February 18, 2016.



“Secured Hedging Agreements” means any Hedging Agreement that (a) is entered into by
the Borrower and any Person that, at the time such Person entered into such Hedging Agreement, was
the Administrative Agent, a Lender or an Affiliate of a Lender, (b) in the case of any Person that
is not the Administrative Agent or an Affiliate of the Administrative Agent, is expressly
identified as being a “Secured Hedging Agreement” hereunder in a joint notice from such Loan Party
and such Person delivered to the Administrative Agent reasonably promptly after the execution of
such Hedging Agreement and (c) meets the requirements of Section 8.1(g).



“Secured Parties” means the Lenders, the L/C Issuers, the Administrative Agent, each
other Indemnitee and any other holder of any Obligation of any Loan Party.



“Security” means all Stock, Stock Equivalents, voting trust certificates, bonds,
debentures, instruments and other evidence of Indebtedness, whether or not secured, convertible or
subordinated, all certificates of interest, share or participation in, all certificates for the
acquisition of, and all warrants, options and other rights to acquire, any Security.



“Sell” means, with respect to any property, to sell, convey, transfer, assign,
license, lease or otherwise dispose of, any interest therein or to permit any Person to acquire any
such interest, including, in each case, through a Sale and Leaseback Transaction or through a sale,
factoring at maturity, collection of or other disposal, with or without recourse, of any notes or
accounts receivable. Conjugated forms thereof and the noun “Sale” have correlative
meanings.



“Solvent” means, with respect to any Person as of any date of determination, that, as
of such date, (a) the value of the assets of such Person (both at fair value and present fair
saleable value) is greater than the total amount of liabilities (including contingent and
unliquidated liabilities) of such Person, (b) such Person is able to pay all liabilities of such
Person as such liabilities mature and (c) such Person does not have unreasonably small capital. In
computing the amount of contingent or unliquidated liabilities at any time, such liabilities shall
be computed at the amount that, in light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual or matured liability.



“SPV” means any special purpose funding vehicle identified as such in a writing by any
Lender to the Administrative Agent.



“Stock” means all shares of capital stock (whether denominated as common stock or
preferred stock), equity interests, beneficial, partnership or membership interests, joint venture
interests, participations or other ownership or profit interests in or equivalents (regardless of
how designated) of or in a Person (other than an individual), whether voting or non-voting.


 


26









 





“Stock Equivalents” means all securities convertible into or exchangeable for Stock or
any other Stock Equivalent and all warrants, options or other rights to purchase, subscribe for or
otherwise acquire any Stock or any other Stock Equivalent, whether or not presently convertible,
exchangeable or exercisable.



“Subordinated Debt” means any Indebtedness that is subordinated to the payment in full
of the Obligations on terms and conditions satisfactory to the Administrative Agent.



“Subsidiary” means, with respect to any Person, any corporation, partnership, joint
venture, limited liability company, association or other entity, the management of which is,
directly or indirectly, controlled by, or of which an aggregate of more than 50% of the outstanding
Voting Stock is, at the time, owned or controlled directly or indirectly by, such Person or one or
more Subsidiaries of such Person.




“Substitute Lender” has the meaning specified in Section 2.18(a).




“SWDA” means the Solid Waste Disposal Act (42 U.S.C. §§ 6901 et seq.).




“Swingline Commitment” means $10,000,000.



“Swingline Lender” means, each in its capacity as Swingline Lender hereunder, U.S.
Bank or, upon the resignation of U.S. Bank as Administrative Agent hereunder, any Lender (or
Affiliate or Approved Fund of any Lender) that agrees, with the approval of the Administrative
Agent (or, if there is no such successor Administrative Agent, the Required Lenders) and the
Borrower, to act as the Swingline Lender hereunder.




“Swingline Request” has the meaning specified in Section 2.3(b).




“Swing Loan” has the meaning specified in Section 2.3.



“Tax Affiliate” means, (a) the Borrower and its Subsidiaries and (b) any Affiliate of
the Borrower with which the Borrower files or is eligible to file consolidated, combined or unitary
tax returns.




“Tax Return” has the meaning specified in Section 4.8.




“Taxes” has the meaning specified in Section 2.17(a).



“Title IV Plan” means a pension plan subject to Title IV of ERISA, other than a
Multiemployer Plan, to which any ERISA Affiliate incurs or otherwise has any obligation or
liability, contingent or otherwise.



“Trademarks” means all rights, title and interests (and all related IP Ancillary
Rights) arising under any Requirement of Law in or relating to trademarks, trade names, corporate
names, company names, business names, fictitious business names, trade styles, service marks, logos
and other source or business identifiers and, in each case, all goodwill
associated therewith, all registrations and recordations thereof and all applications in
connection therewith.


 


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“Trade Secrets” means all right, title and interest (and all related IP Ancillary
Rights) arising under any Requirement of Law in or relating to trade secrets.



“UCC” means the Uniform Commercial Code of any applicable jurisdiction and, if the
applicable jurisdiction shall not have any Uniform Commercial Code, the Uniform Commercial Code as
in effect in the State of Wisconsin.




“United States” means the United States of America.




“Unused Commitment Fee” has the meaning specified in Section 2.11.



“U.S. Lender Party” means each of the Administrative Agent, each Lender, each L/C
Issuer, each SPV and each participant, in each case that is a Domestic Person.



“Voting Stock” means Stock of any Person having ordinary power to vote in the election
of members of the board of directors, managers, trustees or other controlling Persons, of such
Person (irrespective of whether, at the time, Stock of any other class or classes of such entity
shall have or might have voting power by reason of the occurrence of any contingency).



“Wholly Owned Subsidiary” of any Person means any Subsidiary of such Person, all of
the Stock of which (other than nominal holdings and director’s qualifying shares) is owned by such
Person, either directly or through one or more Wholly Owned Subsidiaries of such Person.



“Withdrawal Liability” means, at any time, any liability incurred (whether or not
assessed) by any ERISA Affiliate and not yet satisfied or paid in full at such time with respect to
any Multiemployer Plan pursuant to Section 4201 of ERISA.




Section 1.2 UCC Terms.
The following terms have the meanings given to them in the applicable UCC: “commodity
account”, “commodity contract”, “commodity intermediary”, “deposit account”, “entitlement holder”,
“entitlement order”, “equipment”, “financial asset”, “general intangible”, “goods”, “instruments”,
“inventory”, “securities account”, “securities intermediary” and “security entitlement”.




Section 1.3 Accounting Terms and Principles.



(a) GAAP. Except as provided to the contrary herein, all accounting terms used herein
shall be interpreted and all accounting determinations hereunder shall be made in accordance with
GAAP in a manner consistent with that used in preparing the financial statements referred to in
Section 4.4; provided, however, that, notwithstanding any other
provision contained herein, all terms of an accounting or financial nature used herein shall
be construed, and all computations of amounts and ratios referred to herein shall be made, without
giving effect to any election under Accounting Standards Codification 825-10-25 (previously
referred to as Statement


 


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 of Financial Accounting Standards 159) (or any other Accounting
Standards Codification or Financial Accounting Standard having a similar result or effect) to value any
Indebtedness or other liabilities of the Borrower or any of its Subsidiaries at “fair value”, as
defined therein. If at any time any change in GAAP would affect the computation of any financial
ratio or requirement set forth in any Loan Document, and the Borrower, the Administrative Agent or
the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall
negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof
in light of such change in GAAP (subject to the approval of the Required Lenders), provided that,
until so amended, such ratio or requirement shall continue to be computed in accordance with GAAP
prior to such change therein and the Borrower shall provide to the Administrative Agent and the
Lenders reconciliation statements showing the difference in such calculation, together with the
delivery of quarterly and annual financial statements required hereunder.



(b) Pro Forma. All components of financial calculations made to determine compliance
with Article V shall be adjusted on a Pro Forma Basis to include or exclude, as the case
may be, without duplication, such components of such calculations attributable to any Pro Forma
Transaction consummated after the first day of the applicable period of determination and prior to
the end of such period, as determined in good faith by the Borrower based on assumptions expressed
therein and that were reasonable based on the information available to the Borrower at the time of
preparation of the Compliance Certificate setting forth such calculations.




Section 1.4 Payments.
The Administrative Agent may set up standards and procedures to determine or redetermine
the equivalent in Dollars of any amount expressed in any currency other than Dollars and otherwise
may, but shall not be obligated to, rely on any determination made by any Loan Party or any L/C
Issuer. Any such determination or redetermination by the Administrative Agent shall be conclusive
and binding for all purposes, absent manifest error. No determination or redetermination by any
Secured Party or Loan Party and no other currency conversion shall change or release any obligation
of any Loan Party or of any Secured Party (other than the Administrative Agent and its Related
Persons) under any Loan Document, each of which agrees to pay separately for any shortfall
remaining after any conversion and payment of the amount as converted.




Section 1.5 Interpretation.



(a) Certain Terms. Except as set forth in any Loan Document, all accounting terms not
specifically defined herein shall be construed in accordance with GAAP (except for the term
“property”, which shall be interpreted as broadly as possible, including, in any case,
cash, Securities, other assets, rights under Contractual Obligations and Permits and any right or
interest in any property). The terms “herein”, “hereof” and similar terms
refer to this Agreement as a whole. In the computation of periods of time from a specified date to
a later specified date in any Loan Document, the terms “from” means “from and including”
and the words “to” and “until” each mean “to but excluding” and the word
“through” means “to and including.” In any other case, the term “including” when
used in any Loan Document means “including without limitation.” The term “documents” means
all writings, however evidenced and whether in physical or electronic form, including all
documents, instruments, agreements, notices, demands, certificates, forms, financial statements,
opinions and reports. The term “incur” means incur, create, make, issue, assume or
otherwise become directly or indirectly liable in respect of or responsible for, in each case
whether directly or indirectly, and the terms “incurrence” and “incurred” and similar derivatives
shall have correlative meanings.


 


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(b) Certain References. Unless otherwise expressly indicated, references (i) in this
Agreement to an Exhibit, Schedule, Article, Section or clause refer to the appropriate Exhibit or
Schedule to, or Article, Section or clause in, this Agreement and (ii) in any Loan Document, to (A)
any agreement shall include, without limitation, all exhibits, schedules, appendixes and annexes to
such agreement and, unless the prior consent of any Secured Party required therefor is not
obtained, any modification to any term of such agreement, (B) any statute shall be to such statute
as modified from time to time and to any successor legislation thereto, in each case as in effect
at the time any such reference is operative and (C) any time of day shall be a reference to
Milwaukee, Wisconsin time. Titles of articles, sections, clauses, exhibits, schedules and annexes
contained in any Loan Document are without substantive meaning or content of any kind whatsoever
and are not a part of the agreement between the parties hereto. Unless otherwise expressly
indicated, the meaning of any term defined (including by reference) in any Loan Document shall be
equally applicable to both the singular and plural forms of such term.



ARTICLE II

THE FACILITY





Section 2.1 Revolving Credit Commitments. On the terms and subject to the conditions contained in this Agreement, each Revolving
Credit Lender severally, but not jointly, agrees to make loans in Dollars (each a “Revolving
Loan”) to the Borrower from time to time on any Business Day during the period from the date
hereof until the Revolving Credit Termination Date in an aggregate principal amount at any time
outstanding for all such loans by such Lender not to exceed such Lender’s Revolving Credit
Commitment; provided, however, that at no time shall any Revolving Credit Lender be
obligated to make a Revolving Loan in excess of such Lender’s Pro Rata Share of the amount by which
the then effective Revolving Credit Commitments exceeds the aggregate Revolving Credit Outstandings
at such time; provided, further, that the aggregate amount of Revolving Credit
Outstandings may not exceed $122,500,000 for a temporary period as provided in Section
3.1(a)(iv). Within the limits set forth in the first sentence of this Section 2.1,
amounts of Revolving Loans repaid may be reborrowed under this Section 2.1.




Section 2.2 Borrowing Procedures.



(a) Notice From the Borrower. Each Borrowing shall be made on notice given by the
Borrower to the Administrative Agent not later than 12:00 p.m. on (i) the same Business Day as the
date of the proposed Borrowing, in the case of a Borrowing of Base Rate Loans, and (ii) the second
Business Day prior to the date of the proposed Borrowing, in the case of a Borrowing of Eurodollar
Rate Loans. Each such notice may be made in a writing substantially in the form of Exhibit
C (a “Notice of Borrowing”) duly completed or by telephone if confirmed promptly, but
in any event within one Business Day and prior to such Borrowing, with such a Notice of Borrowing.
In the event of any discrepancy between a telephonic notice and the related Notice of Borrowing,
the terms of the telephonic notice shall control. Loans shall be made as Base Rate Loans unless,
outside of a suspension period pursuant to Section 2.15, the Notice of Borrowing specifies
that all or a portion thereof shall be Eurodollar Rate Loans. Each Borrowing shall be in an
aggregate amount that is an integral multiple of $1,000,000. Each Borrowing consisting of Base
Rate Loans shall be in a minimum aggregate amount of $5,000,000.


 


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(b) Notice to Each Lender. The Administrative Agent shall give to each Lender prompt
notice of the Administrative Agent’s receipt of a Notice of Borrowing and, if Eurodollar Rate Loans
are properly requested in such Notice of Borrowing, prompt notice of the applicable interest rate.
Each Lender shall, before 3:00 p.m. on the date of the proposed Borrowing, make available to the
Administrative Agent at its address referred to in Section 11.11, such Lender’s Pro Rata
Share of such proposed Borrowing. Upon fulfillment or due waiver (i) on the Closing Date, of the
applicable conditions set forth in Section 3.1 and (ii) on the Closing Date and any time
thereafter, of the applicable conditions set forth in Section 3.2, the Administrative Agent
shall make such funds available to the Borrower.



(c) Non-Funding Lenders. Unless the Administrative Agent shall have received notice
from any Lender prior to the date such Lender is required to make any payment hereunder with
respect to any Loan or any participation in any Swing Loan or Letter of Credit that such Lender
will not make such payment (or any portion thereof) available to the Administrative Agent, the
Administrative Agent may assume that such Lender has made such payment available to the
Administrative Agent on the date such payment is required to be made in accordance with this
Article II and the Administrative Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. The Borrower agrees to repay to the
Administrative Agent on demand such amount (until repaid by such Lender) with interest thereon for
each day from the date such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent, at the interest rate applicable to the Obligation that would
have been created when the Administrative Agent made available such amount to the Borrower had such
Lender made a corresponding payment available; provided, however, that such payment
shall not relieve such Lender of any obligation it may have to the Borrower, the Swingline Lender
or any L/C Issuer. In addition, any Lender that shall not have made available to the Administrative
Agent any portion of any payment described above (any such Lender, a “Non-Funding Lender”)
agrees to pay such amount to the Administrative Agent on demand together with interest thereon, for
each day from the date such amount is made available to the Borrower until the date such amount is
repaid to the
Administrative Agent, at the Federal Funds Rate for the first Business Day and thereafter (i)
in the case of a payment in respect of a Loan, at the interest rate applicable at the time to such
Loan and (ii) otherwise, at the interest rate applicable to Base Rate Loans under the Revolving
Credit Facility. Such repayment shall then constitute the funding of the corresponding Loan
(including any Loan deemed to have been made hereunder with such payment) or participation. The
existence of any Non-Funding Lender shall not relieve any other Lender of its obligations under any
Loan Document, but no other Lender shall be responsible for the failure of any Non-Funding Lender
to make any payment required under any Loan Document.


 


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Section 2.3 Swing Loans.



(a) Availability. On the terms and subject to the conditions contained in this
Agreement, the Swingline Lender may, in its sole discretion, make loans in Dollars (each a
“Swing Loan”) available to the Borrower under the Revolving Credit Facility from time to
time on any Business Day during the period from the date hereof until the Revolving Credit
Termination Date in an aggregate principal amount at any time outstanding not to exceed its
Swingline Commitment; provided, however, that the Swingline Lender may not make any
Swing Loan (x) to the extent that after giving effect to such Swing Loan, the aggregate Revolving
Credit Outstandings would exceed the Revolving Credit Commitments and (y) in the period commencing
on the first Business Day after it receives notice from the Administrative Agent or the Required
Lenders that one or more of the conditions precedent contained in Section 3.2 are not
satisfied and ending when such conditions are satisfied or duly waived. In connection with the
making of any Swing Loan, the Swingline Lender may but shall not be required to determine that, or
take notice whether, the conditions precedent set forth in Section 3.2 have been satisfied
or waived. Each Swing Loan shall be a Base Rate Loan and must be repaid in full on the earliest of
(i) the funding date of any Borrowing of Revolving Loans and (ii) the Revolving Credit Termination
Date. Within the limits set forth in the first sentence of this clause (a), amounts of
Swing Loans repaid may be reborrowed under this clause (a).



(b) Borrowing Procedures. In order to request a Swing Loan, the Borrower shall give to
the Administrative Agent a notice to be received not later than 3:00 p.m. on the day of the
proposed borrowing, which may be made in a writing substantially in the form of Exhibit D
duly completed (a “Swingline Request”) or by telephone if confirmed promptly but, in any
event, prior to such borrowing, with such a Swingline Request. In addition, if any Notice of
Borrowing requests a Borrowing of Base Rate Loans, the Swing Line Lender may, notwithstanding
anything else to the contrary in Section 2.2, make a Swing Loan available to the Borrower
in an aggregate amount not to exceed such proposed Borrowing, and the aggregate amount of the
corresponding proposed Borrowing shall be reduced accordingly by the principal amount of such Swing
Loan. The Administrative Agent shall promptly notify the Swingline Lender of the details of the
requested Swing Loan. Upon receipt of such notice and subject to the terms of this Agreement, the
Swingline Lender may make a Swing Loan available to the Borrower by making the proceeds thereof
available to the Administrative Agent and, in turn, the Administrative Agent shall make such
proceeds available to the Borrower on the date set forth in the relevant Swingline Request.



(c) Refinancing Swing Loans. The Swingline Lender may at any time forward a demand to
the Administrative Agent (which the Administrative Agent shall, upon receipt, forward to each
Revolving Credit Lender) that each Revolving Credit Lender pay to the Administrative Agent, for the
account of the Swingline Lender, such Revolving Credit Lender’s Pro Rata Share of all or a portion
of the outstanding Swing Loans. Each Revolving Credit Lender shall pay such Pro Rata Share to the
Administrative Agent for the account of the Swingline Lender. Upon receipt by the Administrative
Agent of such payment (other than during the continuation of any Event of Default under Section
9.1(e)), such Revolving Credit Lender shall be deemed to have made a Revolving Loan to the
Borrower, which, upon receipt of such payment by the Swingline Lender from the Administrative
Agent, the Borrower shall be deemed to have used in whole to refinance such Swing Loan. In
addition, regardless of whether any such demand is made, upon the


 


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occurrence of any Event of
Default under Section 9.1(e), each Revolving Credit Lender shall be deemed to have
acquired, without recourse or warranty, an undivided interest and participation in each Swing Loan
in an amount equal to such Lender’s Pro Rata Share of such Swing Loan. If any payment made by any
Revolving Credit Lender as a result of any such demand is not deemed a Revolving Loan, such payment
shall be deemed a funding by such Lender of such participation. Such participation shall not be
otherwise required to be funded. Upon receipt by the Swingline Lender of any payment from any
Revolving Credit Lender pursuant to this clause (c) with respect to any portion of any Swing Loan,
the Swingline Lender shall promptly pay over to such Revolving Credit Lender all payments of
principal (to the extent received after such payment by such Lender) and interest (to the extent
accrued with respect to periods after such payment) received by the Swingline Lender with respect
to such portion.



(d) Obligation to Fund Absolute. Each Revolving Credit Lender’s obligations pursuant
to clause (c) above shall be absolute, unconditional and irrevocable and shall be performed
strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever,
including (A) the existence of any setoff, claim, abatement, recoupment, defense or other right
that such Lender, any Affiliate thereof or any other Person may have against the Swing Loan Lender,
any other Secured Party or any other Person, (B) the failure of any condition precedent set forth
in Section 3.2 to be satisfied or the failure of the Borrower to deliver any notice set
forth in Section 2.2(a) (each of which requirements the Revolving Credit Lenders hereby
irrevocably waive) and (C) any adverse change in the condition (financial or otherwise) of any Loan
Party.




Section 2.4 Letters of Credit.



(a) Commitment and Conditions. On the terms and subject to the conditions contained
herein, each L/C Issuer agrees to Issue, at the request of the Borrower, in accordance with such
L/C Issuer’s usual and customary business practices, and for the account of the Borrower (or, as
long as the Borrower remains responsible for the payment in full of all amounts drawn thereunder
and related fees, costs and expenses, for the account of any Group Member), Letters of Credit
(denominated in Dollars) from time to time on any Business Day during the period from the Closing
Date through the earlier of the Revolving Credit Termination Date and 7
days prior to the Scheduled Revolving Credit Termination Date; provided,
however, that such L/C Issuer shall not be under any obligation to Issue any Letter of
Credit upon the occurrence of any of the following, after giving effect to such Issuance:




(i) (A) the aggregate Revolving Credit Outstandings would exceed the aggregate
Revolving Credit Commitments or (B) the L/C Obligations for all Letters of Credit
would exceed the L/C Sublimit;




(ii) the expiration date of such Letter of Credit (A) is not a Business Day,
(B) is more than one year after the date of issuance thereof or (C) is later than 7
days prior to the Scheduled Revolving Credit Termination Date; provided,
however, that any Letter of Credit with a term not exceeding one year may
provide for its renewal for additional periods not exceeding one year as long as (x)
each of the Borrower and such L/C Issuer have the option to prevent such renewal
before the expiration of such term or any such period and (y) neither such L/C
Issuer nor the Borrower shall permit any such renewal to extend such expiration date
beyond the date set forth in clause (C) above; or


 


33









 






(iii) (A) any fee due in connection with, and on or prior to, such Issuance has
not been paid, (B) such Letter of Credit is requested to be Issued in a form that is
not acceptable to such L/C Issuer or (C) such L/C Issuer shall not have received,
each in form and substance reasonably acceptable to it and duly executed by the
Borrower (and, if such Letter of Credit is issued for the account of any other Group
Member, such Group Member), the documents that such L/C Issuer generally uses in the
ordinary course of its business for the Issuance of letters of credit of the type of
such Letter of Credit (collectively, the “L/C Reimbursement Agreement”).
For each such Issuance, the applicable L/C Issuer may, but shall not be required to,
determine that, or take notice whether, the conditions precedent set forth in
Section 3.2 have been satisfied or waived in connection with the Issuance of
any Letter of Credit; provided, however, that no Letter of Credit
shall be Issued during the period starting on the first Business Day after the
receipt by such L/C Issuer of notice from the Administrative Agent or the Required
Lenders that any condition precedent contained in Section 3.2 is not
satisfied and ending on the date all such conditions are satisfied or duly waived.



(b) Notice of Issuance. The Borrower shall give the relevant L/C Issuer and the
Administrative Agent a notice of any requested Issuance of any Letter of Credit, which shall be
effective only if received by such L/C Issuer and the Administrative Agent not later than 11:00
a.m. on the third Business Day prior to the date of such requested Issuance. Such notice may be
made in a writing substantially the form of Exhibit E duly completed or in a writing in any
other form acceptable to such L/C Issuer (an “L/C Request”) or by telephone if confirmed
promptly, but in any event within one Business Day and prior to such Issuance, with such an L/C
Request.



(c) Reporting Obligations of L/C Issuers. Each L/C Issuer agrees to provide the
Administrative Agent (which, after receipt, the Administrative Agent shall provide to each
Revolving Credit Lender), in form and substance satisfactory to the Administrative Agent, each of
the following on the following dates: (i) on or prior to (A) any Issuance of any Letter of Credit
by such L/C Issuer, (B) any drawing under any such Letter of Credit or (C) any payment (or failure
to pay when due) by the Borrower of any related L/C Reimbursement Obligation, notice thereof, which
shall contain a reasonably detailed description of such Issuance, drawing or payment, (ii) upon the
request of the Administrative Agent (or any Revolving Credit Lender through the Administrative
Agent), copies of any Letter of Credit Issued by such L/C Issuer and any related L/C Reimbursement
Agreement and such other documents and information as may reasonably be requested by the
Administrative Agent and (iii) on the first Business Day of each calendar week, a schedule of the
Letters of Credit Issued by such L/C Issuer, in form and substance reasonably satisfactory to the
Administrative Agent, setting forth the L/C Obligations for such Letters of Credit outstanding on
the last Business Day of the previous calendar week.


 


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(d) Acquisition of Participations. Upon any Issuance of a Letter of Credit in
accordance with the terms of this Agreement resulting in any increase in the L/C Obligations, each
Revolving Credit Lender shall be deemed to have acquired, without recourse or warranty, an
undivided interest and participation in such Letter of Credit and the related L/C Obligations in an
amount equal to such Lender’s Pro Rata Share of such L/C Obligations.



(e) Reimbursement Obligations of the Borrower. The Borrower agrees to pay to the L/C
Issuer of any Letter of Credit each L/C Reimbursement Obligation owing with respect to such Letter
of Credit no later than the first Business Day after the Borrower receives notice from such L/C
Issuer that payment has been made under such Letter of Credit or that such L/C Reimbursement
Obligation is otherwise due (the “L/C Reimbursement Date”) with interest thereon computed
as set forth in clause (i) below. In the event that any L/C Issuer incurs any L/C
Reimbursement Obligation not repaid by the Borrower as provided in this clause (e) (or any
such payment by the Borrower is rescinded or set aside for any reason), such L/C Issuer shall
promptly notify the Administrative Agent of such failure (and, upon receipt of such notice, the
Administrative Agent shall forward a copy to each Revolving Credit Lender) and, irrespective of
whether such notice is given, such L/C Reimbursement Obligation shall be payable on demand by the
Borrower with interest thereon computed (i) from the date on which such L/C Reimbursement
Obligation arose to the L/C Reimbursement Date, at the interest rate applicable during such period
to Revolving Loans that are Base Rate Loans and (ii) thereafter until payment in full, at the
interest rate applicable during such period to past due Revolving Loans that are Base Rate Loans.



(f) Reimbursement Obligations of the Revolving Credit Lenders. Upon receipt of the
notice described in clause (e) above from the Administrative Agent, each Revolving Credit
Lender shall pay to the Administrative Agent for the account of such L/C Issuer its Pro Rata Share
of such L/C Reimbursement Obligation. By making such payment (other than during the continuation of
an Event of Default under Section 9.1(e)), such Lender shall be deemed to have made a
Revolving Loan to the Borrower, which, upon receipt thereof by such L/C Issuer, the Borrower shall
be deemed to have used in whole to repay such L/C Reimbursement Obligation. Any such payment that
is not deemed a Revolving Loan shall be
deemed a funding by such Lender of its participation in the applicable Letter of Credit and
the related L/C Obligations. Such participation shall not otherwise be required to be funded. Upon
receipt by any L/C Issuer of any payment from any Lender pursuant to this clause (f) with respect
to any portion of any L/C Reimbursement Obligation, such L/C Issuer shall promptly pay over to such
Lender all payments received after such payment by such L/C Issuer with respect to such portion.


 


35









 





(g) Obligations Absolute. The obligations of the Borrower and the Revolving Credit
Lenders pursuant to clauses (d), (e) and (f) above shall be absolute, unconditional and
irrevocable and performed strictly in accordance with the terms of this Agreement irrespective of
(i) (A) the invalidity or unenforceability of any term or provision in any Letter of Credit, any
document transferring or purporting to transfer a Letter of Credit, any Loan Document (including
the sufficiency of any such instrument), or any modification to any provision of any of the
foregoing, (B) any document presented under a Letter of Credit being forged, fraudulent, invalid,
insufficient or inaccurate in any respect or failing to comply with the terms of such Letter of
Credit or (C) any loss or delay, including in the transmission of any document, (ii) the existence
of any setoff, claim, abatement, recoupment, defense or other right that any Person (including any
Group Member) may have against the beneficiary of any Letter of Credit or any other Person, whether
in connection with any Loan Document or any other Contractual Obligation or transaction, or the
existence of any other withholding, abatement or reduction; provided, in each such case, that
payment by the L/C Issuer under the applicable Letter of Credit shall not have resulted solely from
the gross negligence or willful misconduct of the L/C Issuer under the circumstances in question
(as determined by a final, non-appealable judgment of a court of competent jurisdiction), (iii) in
the case of the obligations of any Revolving Credit Lender, (A) the failure of any condition
precedent set forth in Section 3.2 to be satisfied (each of which conditions precedent the
Revolving Credit Lenders hereby irrevocably waive) or (B) any adverse change in the condition
(financial or otherwise) of any Loan Party and (iv) any other act or omission to act or delay of
any kind of any Secured Party or any other Person or any other event or circumstance whatsoever,
whether or not similar to any of the foregoing, that might, but for the provisions of this
Section 2.4, constitute a legal or equitable discharge of any obligation of the Borrower or
any Revolving Credit Lender hereunder.



(h) Existing Letters of Credit. On the Closing Date the outstanding letters of credit
issued by U.S. Bank pursuant to the Reimbursement Agreement dated as of December 22, 2009 between
U.S. Bank and the Borrower, which outstanding letters of credit are listed on Schedule
2.4(h), shall be deemed to be Letters of Credit Issued by an L/C Issuer under this Agreement,
and shall be treated as Letters of Credit for all purposes of this Agreement.




Section 2.5 Reduction and Termination of the Commitments.



(a) Optional. The Borrower may, upon notice to the Administrative Agent, terminate in
whole or reduce in part ratably any unused portion of the Revolving Credit Commitments;
provided, however, that each partial reduction shall be in an aggregate amount that
is an integral multiple of $1,000,000.



(b) Mandatory. All outstanding Commitments shall terminate on the Scheduled Revolving
Credit Termination Date.



(c) Reductions for Mandatory Prepayments. The then current Revolving Credit
Commitments shall be reduced ratably on each date on which a prepayment of Revolving Loans or Swing
Loans is made pursuant to clause (a) (Property Loss Events) of Section 2.8
or would be required to be made had the aggregate outstanding principal amount of the Revolving
Loans and Swing Loans been equal to the Revolving Credit Commitments then in effect, in each case
in the amount of such prepayment.




Section 2.6 Repayment of Loans. The Borrower promises to repay the entire unpaid principal amount of the Revolving Loans
and the Swing Loans on the Scheduled Revolving Credit Termination Date.


 


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Section 2.7 Optional Prepayments. The Borrower may prepay the outstanding principal amount of any Loan in whole or in part at
any time (together with any breakage costs that may be owing pursuant to Section 2.16(a)
after giving effect to such prepayment) upon notice given by the Borrower to the Administrative
Agent not later than 12:00 p.m. on the date of the proposed prepayment of Base Rate Loans, and not
later than 12:00 p.m. on the second Business Day prior to the date of the proposed prepayment of
Eurodollar Rate Loans; provided, however, that each partial prepayment that is not of the entire
outstanding amount under any Facility shall be in an aggregate amount that is an integral multiple
of $1,000,000 or such lesser amount as the Administrative Agent may agree.




Section 2.8 Mandatory Prepayments.



(a) Property Loss Events. Upon receipt on or after the Closing Date by any Loan Party
or any of its Subsidiaries of Net Cash Proceeds arising from any Property Loss Event with respect
to any Mortgaged Property or other Collateral, the Borrower shall immediately pay or cause to be
paid to the Administrative Agent an amount equal to 100% of such Net Cash Proceeds in accordance
with the applicable requirements of the Loan Documents; provided, however, that,
upon any such receipt, as long as no Event of Default shall be continuing, any Loan Party may make
Permitted Reinvestments with such Net Cash Proceeds and the Borrower shall not be required to make
or cause such payment to the extent (x) such Net Cash Proceeds are intended to be used to make
Permitted Reinvestments and (y) on each Reinvestment Prepayment Date for such Net Cash Proceeds,
the Borrower shall pay or cause to be paid to the Administrative Agent an amount equal to the
Reinvestment Prepayment Amount applicable to such Reinvestment Prepayment Date and such Net Cash
Proceeds.



(b) Excess Outstandings. On any date on which the aggregate principal amount of
Revolving Credit Outstandings exceeds the aggregate Revolving Credit
Commitments, the Borrower shall pay to the Administrative Agent an amount equal to such
excess.



(c) Application of Payments. Any payments made to the Administrative Agent pursuant to
this Section 2.8 shall be applied to the Obligations in accordance with Section
2.12(b).




Section 2.9 Interest.



(a) Rate. All Loans and the outstanding amount of all other Obligations (other than
pursuant to Secured Hedging Agreements) shall bear interest, in the case of Loans, on the unpaid
principal amount thereof from the date such Loans are made and, in the case of such other
Obligations, from the date such other Obligations are due and payable until, in all cases, paid in
full, except as otherwise provided in clause (c) below, as follows: (i) in the case of Base
Rate Loans, at a rate per annum equal to the sum of the Base Rate and the Applicable Margin, each
as in effect from time to time, (ii) in the case of Eurodollar Rate Loans, at a rate per annum
equal to the sum of the Eurodollar Rate and the Applicable Margin, each as in effect for the
applicable Interest Period, and (iii) in the case of other Obligations, at a rate per annum equal
to the sum of the Base Rate and the Applicable Margin for Revolving Loans that are Base Rate Loans,
each as in effect from time to time.


 


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(b) Payments. Interest accrued shall be payable in arrears (i) if accrued on the
principal amount of any Loan, (A) at maturity (whether by acceleration or otherwise), and (B)(1) if
such Loan is a Base Rate Loan (including a Swing Loan), on the last day of each calendar quarter
commencing on the first such day following the making of such Loan, (2) if such Loan is a
Eurodollar Rate Loan, on the last day of each Interest Period applicable to such Loan and, if
applicable, on each date during such Interest Period occurring every 3 months from the first day of
such Interest Period and (ii) if accrued on any other Obligation, on demand from any after the time
such Obligation is due and payable (whether by acceleration or otherwise).



(c) Default Interest. Notwithstanding the rates of interest specified in clause (a)
above or elsewhere in any Loan Document, effective immediately upon (A) the occurrence of any Event
of Default under Section 9.1(e)(ii) or (B) the delivery of a notice by the Administrative
Agent or the Required Lenders to the Borrower during the continuance of any other Event of Default
and, in each case, for as long as such Event of Default shall be continuing, the principal balance
of all Obligations (including any Obligation that bears interest by reference to the rate
applicable to any other Obligation) then due and payable shall bear interest at a rate that is 2%
per annum in excess of the interest rate applicable to such Obligations from time to time, payable
on demand or, in the absence of demand, on the date that would otherwise be applicable.




Section 2.10 Conversion and Continuation Options.



(a) Option. The Borrower may elect (i) in the case of any Eurodollar Rate Loan, (A) to
continue such Eurodollar Rate Loan or any portion thereof for an additional Interest Period on the
last day of the Interest Period applicable thereto and (B) to convert such Eurodollar Rate Loan or
any portion thereof into a Base Rate Loan at any time on any Business Day, subject to the payment
of any breakage costs required by Section 2.16(a), and (ii) in the case of Base Rate Loans
(other than Swing Loans), to convert such Base Rate Loans or any portion thereof into Eurodollar
Rate Loans at any time on any Business Day upon two Business Days’ prior notice; provided,
however, that, (x) for each Interest Period, the aggregate amount of Eurodollar Rate Loans
having such Interest Period must be an integral multiple of $1,000,000 or, if less, the remaining
outstanding principal amount of the Revolving Loans and (y) no conversion in whole or in part of
Base Rate Loans to Eurodollar Rate Loans and no continuation in whole or in part of Eurodollar Rate
Loans shall be permitted at any time at which (1) an Event of Default shall be continuing and the
Administrative Agent or the Required Lenders shall have determined in their sole discretion not to
permit such conversions or continuations, or (2) such continuation or conversion would be made
during a suspension imposed by Section 2.15.



(b) Procedure. Each such election shall be made by giving the Administrative Agent
written notice in substantially the form of Exhibit F (a “Notice of Conversion or
Continuation”), duly completed, not later than 12:00 p.m. on the day which is at least two
Business Days prior to the date of such conversion or continuation. The Administrative Agent shall
promptly notify each Lender of its receipt of a Notice of Conversion or Continuation and of the
options selected therein. If the Administrative Agent does not receive a timely Notice of
Conversion or Continuation from the Borrower containing a permitted election to continue or convert
any Eurodollar Rate Loan, then, upon the expiration of the applicable Interest Period, such Loan
shall be automatically converted to a Base Rate Loan. Each partial conversion or continuation shall
be allocated ratably among the Lenders in the applicable Facility in accordance with their Pro Rata
Share.


 


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Section 2.11 Fees.



(a) Unused Commitment Fee. The Borrower agrees to pay to each Revolving Credit Lender
a commitment fee on the actual daily amount by which the Revolving Credit Commitment of such Lender
exceeds its Pro Rata Share of the sum of (i) the aggregate outstanding principal amount of
Revolving Loans, (ii) the aggregate outstanding principal amount of Swing Loans, and (iii) the
outstanding amount of the L/C Obligations for all Letters of Credit (the “Unused Commitment
Fee”) from the date hereof through the Revolving Credit Termination Date at a rate per annum
equal to the Applicable Margin, payable in arrears (x) on the last day of each calendar quarter and
(y) on the Revolving Credit Termination Date.



(b) Letter of Credit Fees. The Borrower agrees to pay, with respect to all Letters of
Credit issued by any L/C Issuer, (i) to such L/C Issuer, (A) a fronting fee in the amount of 0.25%
of the stated amount of each Letter of Credit issued by such L/C Issuer, payable at the time of
issuance of such Letter of Credit, and (B) certain fees, documentary and processing charges as
separately agreed between the Borrower and such L/C Issuer or otherwise
in accordance with such L/C Issuer’s standard schedule in effect at the time of determination
thereof and (ii) to the Administrative Agent, for the benefit of the Revolving Credit Lenders
according to their Pro Rata Shares, (A) for commercial Letters of Credit, a fee computed at the
rate per annum equal to the Applicable Margin for Revolving Loans that are Eurodollar Rate Loans on
the face amount of each such Letter of Credit for the period for which it is originally issued or
subsequently issued (by extension or renewal), payable in advance upon issuance, extension or
renewal, and (B) for standby Letters of Credit, a fee accruing at a rate per annum equal to the
Applicable Margin for Revolving Loans that are Eurodollar Rate Loans on the maximum undrawn face
amount of such Letters of Credit, payable in arrears (1) on the last day of each calendar quarter
ending after the issuance of such Letter of Credit and (2) on the Revolving Credit Termination
Date; provided, however, that the fee payable under this clause (ii) shall be
increased by 2% per annum and shall be payable, in addition to any date it is otherwise required to
be paid hereunder, on demand, effective immediately upon (x) the occurrence of any Event of Default
under Section 9.1(e)(ii) or (y) the delivery of a notice by the Administrative Agent or the
Required Lenders to the Borrower during the continuance of any other Event of Default and, in each
case, for as long as such Event of Default shall be continuing.



(c) Additional Fees. The Borrower shall pay to the Administrative Agent and its
Related Persons its reasonable and customary fees and expenses in connection with any payments made
pursuant to Section 2.16(a) (Breakage Costs) and has agreed to pay the additional
fees described in the Fee Letter.


 


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Section 2.12 Application of Payments.



(a) Application of Voluntary Prepayments. Unless otherwise provided in this
Section 2.12 or elsewhere in any Loan Document, all payments and any other amounts received
by the Administrative Agent from or for the benefit of the Borrower shall be applied to repay the
Obligations the Borrower designates.



(b) Application of Mandatory Prepayments. Subject to the provisions of clause
(c) below with respect to the application of payments during the continuance of an Event of
Default, any payment made by the Borrower to the Administrative Agent pursuant to Section
2.8 or any other prepayment of the Obligations required to be applied in accordance with this
clause (b) shall be applied first, (to repay the outstanding principal balance of the
Revolving Loans and the Swing Loans, second, in the case of any payment required pursuant
to Section 2.8(c), to provide cash collateral to the extent and in the manner set forth in
Section 9.3 and, then, any excess shall be retained by the Borrower.



(c) Application of Payments During an Event of Default. The Borrower hereby
irrevocably waives, and agrees to cause each Loan Party and each other Group Member to waive, the
right to direct the application during the continuance of an Event of Default of any and all
payments in respect of any Obligation and any proceeds of Collateral and agrees that,
notwithstanding the provisions of clause (a) above, the Administrative Agent may, and, upon
either (A) the direction of the Required Lenders or (B) the termination of any Commitment or the
acceleration of any Obligation pursuant to Section 9.2, shall, apply all payments in
respect of any Obligation, all funds on deposit in any Cash Collateral Account and all other
proceeds of Collateral (i) first, to pay Obligations in respect of any cost or expense
reimbursements, fees or indemnities then due to the Administrative Agent, (ii) second, to
pay Obligations in respect of any cost or expense reimbursements, fees or indemnities then due to
the Lenders and the L/C Issuers, (iii) third, to pay interest then due and payable in
respect of the Loans and L/C Reimbursement Obligations, (iv) fourth, to repay the
outstanding principal amounts of the Loans and L/C Reimbursement Obligations, to provide cash
collateral for Letters of Credit in the manner and to the extent described in Section 9.3
and to pay amounts owing with respect to Secured Hedging Agreements and (v) fifth, to the
ratable payment of all other Obligations.



(d) Application of Payments Generally. All payments that would otherwise be allocated
to the Revolving Credit Lenders pursuant to this Section 2.12 shall instead be allocated
first, to repay interest on Swing Loans, on any portion of the Revolving Loans that the
Administrative Agent may have advanced on behalf of any Lender and on any L/C Reimbursement
Obligation, in each case for which the Administrative Agent or, as the case may be, the L/C Issuer
has not then been reimbursed by such Lender or the Borrower, second to pay the outstanding
principal amount of the foregoing obligations and third, to repay the Revolving Loans. All
repayments of any Revolving Loans shall be applied first, to repay such Loans outstanding as Base
Rate Loans and then, to repay such Loans outstanding as Eurodollar Rate Loans, with those
Eurodollar Rate Loans having earlier expiring Interest Periods being repaid prior to those having
later expiring Interest Periods. If sufficient amounts are not available to repay all outstanding
Obligations described in any priority level set forth in this Section 2.12, the available
amounts shall be applied, unless otherwise expressly specified herein, to such Obligations ratably
based on the proportion of the Secured Parties’ interest in such Obligations. Any priority level
set forth in this Section 2.12 that includes interest shall include all such interest,
whether or not accruing after the filing of any petition in bankruptcy or the commencement of any
insolvency, reorganization or similar proceeding, and whether or not a claim for post-filing or
post-petition interest is allowed in any such proceeding.


 


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Section 2.13 Payments and Computations.



(a) Procedure. The Borrower shall make each payment under any Loan Document not later
than 11:00 a.m. on the day when due to the Administrative Agent by wire transfer to the following
account (or at such other account or by such other means to such other address as the
Administrative Agent shall have notified the Borrower in writing within a reasonable time prior to
such payment) in immediately available Dollars and without setoff or counterclaim:




ABA No. 123000220

Account Number 003400-12160600

Account Name: Commercial Loan Services — West

Reference: Assisted Living Concepts, Inc.



In lieu of payment by wire transfer as provided above, the Borrower authorizes the
Administrative Agent to debit the Borrower’s account number 153910351334 with the Administrative
Agent for all payments due under any Loan Document.



The Administrative Agent shall promptly thereafter cause to be distributed immediately
available funds relating to the payment of principal, interest or fees to the Lenders, in
accordance with the application of payments set forth in Section 2.12. The Lenders shall
make any payment under any Loan Document in immediately available Dollars and without setoff or
counterclaim. Each Revolving Credit Lender shall make each payment for the account of any L/C
Issuer or Swingline Lender required pursuant to Section 2.3 or 2.4 (A) if the
notice or demand therefor was received by such Lender prior to 11:00 a.m. on any Business Day, on
such Business Day and (B) otherwise, on the Business Day following such receipt. Payments received
by the Administrative Agent after 11:00 a.m. shall be deemed to be received on the next Business
Day.



(b) Computations of Interests and Fees. All computations of interest and of fees shall
be made by the Administrative Agent on the basis of a year of 360 days (or, in the case of Base
Rate Loans whose interest rate is calculated based on the rate set forth in clause (i) of
the definition of “Base Rate”, 365/366 days), in each case for the actual number of days (including
the first day but excluding the last day) occurring in the period for which such interest and fees
are payable. Each determination of an interest rate or the amount of a fee hereunder shall be made
by the Administrative Agent (including determinations of a Eurodollar Rate or Base Rate in
accordance with the definitions of “Eurodollar Rate” and “Base Rate”, respectively) and shall be
conclusive, binding and final for all purposes, absent manifest error.



(c) Payment Dates. Whenever any payment hereunder shall be stated to be due on a day
other than a Business Day, the due date for such payment shall be extended to the next succeeding
Business Day without any increase in such payment as a result of additional interest or fees;
provided, however, that such interest and fees shall continue accruing as a result
of such extension of time.


 


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(d) Advancing Payments. Unless the Administrative Agent shall have received notice
from the Borrower to the Lenders prior to the date on which any payment is due hereunder that the
Borrower will not make such payment in full, the Administrative Agent may assume that the Borrower
has made such payment in full to the Administrative Agent on such date and the Administrative Agent
may, in reliance upon such assumption, cause to be distributed to each Lender on such due date an
amount equal to the amount then due such Lender. If and to the extent that the Borrower shall not
have made such payment in full to the Administrative Agent, each Lender shall repay to the
Administrative Agent on demand such amount distributed to such Lender together with interest
thereon (at the Federal Funds Rate for the first Business Day and thereafter, at the rate
applicable to Base Rate Loans under the applicable Facility) for each day from the date such amount
is distributed to such Lender until the date such Lender repays such amount to the Administrative
Agent.



(e) Maximum Lawful Rate. Notwithstanding the provisions of Section 2.9, in no
event shall the rate of interest payable by Borrower with respect to the Loan exceed the
maximum rate of interest permitted to be charged under applicable Requirements of Law (the
“Maximum Lawful Rate”). If at any time such interest exceeds the Maximum Lawful Rate, then,
so long as the Maximum Lawful Rate would be exceeded, the applicable rate of interest shall be
equal to the Maximum Lawful Rate. If at any time thereafter the applicable rate of interest is less
than the Maximum Lawful Rate, Borrower shall continue to pay interest under the Loan at the Maximum
Lawful Rate until such time as the total interest paid by Borrower therefor is equal to the total
interest that would have been paid had applicable law not limited the interest rate payable under
this Agreement.




Section 2.14 Evidence of Debt.



(a) Records of Lenders. Each Lender shall maintain in accordance with its usual
practice accounts evidencing Indebtedness of the Borrower to such Lender resulting from each Loan
of such Lender from time to time, including the amounts of principal and interest payable and paid
to such Lender from time to time under this Agreement. In addition, each Lender having sold a
participation in any of its Obligations or having identified an SPV as such to the Administrative
Agent, acting as agent of the Borrower solely for this purpose and solely for tax purposes, shall
establish and maintain at its address referred to in Section 11.11 (or at such other
address as such Lender shall notify the Borrower) a record of ownership, in which such Lender shall
register by book entry (A) the name and address of each such participant and SPV (and each change
thereto, whether by assignment or otherwise) and (B) the rights, interest or obligation of each
such participant and SPV in any Obligation, in any Commitment and in any right to receive any
payment hereunder.


 


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(b) Records of Administrative Agent. The Administrative Agent, acting as agent of the
Borrower solely for tax purposes and solely with respect to the actions described in this
Section 2.14, shall establish and maintain at its address referred to in Section
11.11 (or at such other address as the Administrative Agent may notify the Borrower) (A) a
record of ownership (the “Register”) in which the Administrative Agent agrees to register
by book entry the interests (including any rights to receive payment hereunder) of the
Administrative Agent, each Lender and each L/C Issuer in the Revolving Credit Outstandings, each of
their obligations under this Agreement to participate in each Loan, Letter of Credit and L/C
Reimbursement Obligation, and any assignment of any such interest, obligation or right and (B)
accounts in the Register in accordance with its usual practice in which it shall record (1) the
names and addresses of the Lenders and the L/C Issuers (and each change thereto pursuant to
Section 2.18 (Substitution of Lenders) and Section 11.2 (Assignments
and Participations; Binding Effect)), (2) the Commitments of each Lender, (3) the amount of
each Loan and each funding of any participation described in clause (A) above, for
Eurodollar Rate Loans, the Interest Period applicable thereto, (4) the amount of any principal or
interest due and payable or paid, (5) the amount of the L/C Reimbursement Obligations due and
payable or paid and (6) any other payment received by the Administrative Agent from the Borrower
and its application to the Obligations.



(c) Registered Obligations. Notwithstanding anything to the contrary contained in this
Agreement, the Loans (including any Notes evidencing such Loans and the corresponding obligations
to participate in L/C Obligations and Swing Loans) and the L/C Reimbursement Obligations are
registered obligations, the right, title and interest of the Lenders and the L/C Issuers and their
assignees in and to such Loans or L/C Reimbursement Obligations, as the case may be, shall be
transferable only upon notation of such transfer in the Register and no assignment thereof shall be
effective until recorded therein. This Section 2.14 and Section 11.2 shall be
construed so that the Loans and L/C Reimbursement Obligations 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 and any related regulations (and any successor provisions).



(d) Prima Facie Evidence. The entries made in the Register and in the accounts
maintained pursuant to clauses (a) and (b) above shall, to the extent permitted by
applicable Requirements of Law, be prima facie evidence of the existence and amounts of the
obligations recorded therein; provided, however, that no error in such account and
no failure of any Lender or the Administrative Agent to maintain any such account shall affect the
obligations of any Loan Party to repay the Loans in accordance with their terms. In addition, the
Loan Parties, the Administrative Agent, the Lenders and the L/C Issuers shall treat each Person
whose name is recorded in the Register as a Lender or L/C Issuer, as applicable, for all purposes
of this Agreement. Information contained in the Register with respect to any Lender or L/C Issuer
shall be available for inspection by the Borrower, the Administrative Agent, such Lender or such
L/C Issuer at any reasonable time and from time to time upon reasonable prior notice.



(e) Notes. Upon any Lender’s request, the Borrower shall promptly execute and deliver
Notes to such Lender evidencing the Loans of such Lender in a Facility and substantially in the
form of Exhibit B; provided, however, that only one Note for each Facility
shall be issued to each Lender, except (i) to an existing Lender exchanging existing Notes to
reflect changes in the Register relating to such Lender, in which case the new Notes delivered to
such Lender shall be dated the date of the original Notes and (ii) in the case of loss, destruction
or mutilation of existing Notes and similar circumstances. Each Note, if issued, shall only be
issued as means to evidence the right, title or interest of a Lender or a registered assignee in
and to the related Loan, as set forth in the Register, and in no event shall any Note be considered
a bearer instrument or obligation.


 


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Section 2.15 Suspension of Eurodollar Rate Option. Notwithstanding any provision to the contrary in this Article II, the following
shall apply:



(a) Interest Rate Unascertainable, Inadequate or Unfair. In the event that (A) the
Administrative Agent determines that adequate and fair means do not exist for ascertaining the
applicable interest rates by reference to which the Eurodollar Rate is determined or (B) the
Required Lenders notify the Administrative Agent that the Eurodollar Rate for any Interest Period
will not adequately reflect the cost to the Lenders of making or maintaining such Loans for such
Interest Period, the Administrative Agent shall promptly so notify the Borrower and the Lenders,
whereupon the obligation of each Lender to make or to continue Eurodollar Rate Loans
shall be suspended as provided in clause (c) below until the Administrative Agent
shall notify the Borrower that the Required Lenders have determined that the circumstances causing
such suspension no longer exist.



(b) Illegality. If any Lender determines that the introduction of, or any change in or
in the interpretation of, any Requirement of Law after the date of this Agreement shall make it
unlawful, or any Governmental Authority shall assert that it is unlawful, for any Lender or its
applicable lending office to make Eurodollar Rate Loans or to continue to fund or maintain
Eurodollar Rate Loans, then, on notice thereof and demand therefor by such Lender to the Borrower
through the Administrative Agent, the obligation of such Lender to make or to continue Eurodollar
Rate Loans shall be suspended as provided in clause (c) below until such Lender shall,
through the Administrative Agent, notify the Borrower that it has determined that it may lawfully
make Eurodollar Rate Loans.



(c) Effect of Suspension. If the obligation of any Lender to make or to continue
Eurodollar Rate Loans is suspended, (A) the obligation of such Lender to convert Base Rate Loans
into Eurodollar Rate Loans shall be suspended, (B) such Lender shall make a Base Rate Loan at any
time such Lender would otherwise be obligated to make a Eurodollar Rate Loan, (C) the Borrower may
revoke any pending Notice of Borrowing or Notice of Conversion or Continuation to make or continue
any Eurodollar Rate Loan or to convert any Base Rate Loan into a Eurodollar Rate Loan and (D) each
Eurodollar Rate Loan of such Lender shall automatically and immediately (or, in the case of any
suspension pursuant to clause (a) above, on the last day of the current Interest Period
thereof) be converted into a Base Rate Loan.




Section 2.16 Breakage Costs; Increased Costs; Capital Requirements.



(a) Breakage Costs. The Borrower shall compensate each Lender, upon demand from such
Lender to such Borrower (with copy to the Administrative Agent), for all Liabilities (including, in
each case, those incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to prepare to fund, to fund or to maintain the Eurodollar Rate Loans of
such Lender to the Borrower but excluding any loss of the Applicable Margin on the relevant Loans)
that such Lender may incur (A) to the extent, for any reason other than solely by reason of such
Lender being a Non-Funding Lender, a proposed Borrowing,  conversion into


 


44









 






 or continuation of
Eurodollar Rate Loans does not occur on a date specified therefor in a Notice of Borrowing or a
Notice of Conversion or Continuation or in a similar request made by telephone by the Borrower, (B)
to the extent any Eurodollar Rate Loan is paid (whether through a scheduled, optional or mandatory
prepayment) or converted to a Base Rate Loan (including because of Section 2.15) on a date
that is not the last day of the applicable Interest Period or (C) as a consequence of any failure
by the Borrower to repay Eurodollar Rate Loans when required by the terms hereof. For purposes of
this clause (a), each Lender shall be deemed to have funded each Eurodollar Rate Loan made
by it using a matching deposit or other borrowing in the London interbank market.



(b) Increased Costs. If at any time any Lender or L/C Issuer determines that, after
the date hereof, the adoption of, or any change in or in the interpretation, application or
administration of, or compliance with, any Requirement of Law (other than any imposition or
increase of Eurodollar Reserve Requirements) from any Governmental Authority, including,
notwithstanding the foregoing, all requests, rules, guidelines or directives in connection with the
Dodd-Frank Wall Street Reform and Consumer Protection Act regardless of the date enacted, adopted
or issued, shall have the effect of (i) increasing the cost to such Lender of making, funding or
maintaining any Eurodollar Rate Loan or to agree to do so or of participating, or agreeing to
participate, in extensions of credit, (ii) increasing the cost to such L/C Issuer of Issuing or
maintaining any Letter of Credit or of agreeing to do so or (iii) imposing any other cost to such
Lender or L/C Issuer with respect to compliance with its obligations under any Loan Document, then,
upon demand by such Lender or L/C Issuer (with copy to the Administrative Agent), the Borrower
shall pay to the Administrative Agent for the account of such Lender or L/C Issuer amounts
sufficient to compensate such Lender or L/C Issuer for such increased cost.



(c) Increased Capital Requirements. If at any time any Lender or L/C Issuer determines
that, after the date hereof, the adoption of, or any change in or in the interpretation,
application or administration of, or compliance with, any Requirement of Law (other than any
imposition or increase of Eurodollar Reserve Requirements) from any Governmental Authority
regarding capital adequacy, reserves, special deposits, compulsory loans, insurance charges against
property of, deposits with or for the account of, Obligations owing to, or other credit extended or
participated in by, any Lender or L/C Issuer or any similar requirement (in each case other than
any imposition or increase of Eurodollar Reserve Requirements), shall have the effect of reducing
the rate of return on the capital of such Lender’s or L/C Issuer (or any corporation controlling
such Lender or L/C Issuer) as a consequence of its obligations under or with respect to any Loan
Document or Letter of Credit to a level below that which, taking into account the capital adequacy
policies of such Lender, L/C Issuer or corporation, such Lender, L/C Issuer or corporation could
have achieved but for such adoption or change, then, upon demand from time to time by such Lender
or L/C Issuer (with a copy of such demand to the Administrative Agent), the Borrower shall pay to
the Administrative Agent for the account of such Lender amounts sufficient to compensate such
Lender for such reduction. Notwithstanding the foregoing, for purposes of this Agreement, (i) all
requests, rules, guidelines or directives in connection with the Dodd-Frank Wall Street Reform and
Consumer Protection Act shall be deemed to be a change in a Requirement of Law regardless of the
date enacted, adopted or issued, and (ii) all requests, rules, guidelines or directives promulgated
by the Bank for International Settlements, the Basel Committee on Banking Regulations and
Supervisory Practices (or any successor or similar authority) or the United States financial
regulatory authorities adopted, issued, promulgated or implemented after the date of this Agreement
shall be deemed to be a change in a Requirement of Law.


 


45









 





(d) Compensation Certificate. Each demand for compensation under this Section
2.16 shall be accompanied by a certificate of the Lender or L/C Issuer claiming such
compensation, setting forth the amounts to be paid hereunder in reasonable detail and the bases
therefor, which certificate shall be conclusive, binding and final for all purposes, absent
manifest error. In determining such amount, such Lender or L/C Issuer may use any reasonable
averaging and attribution methods.




Section 2.17 Taxes.



(a) Payments Free and Clear of Taxes. Except as otherwise provided in this Section
2.17, each payment by any Loan Party under any Loan Document shall be made free and clear of
all present or future taxes, levies, imposts, deductions, charges or withholdings and all
liabilities with respect thereto (and without deduction for any of them) (collectively, but
excluding the taxes set forth in clauses (i) and (ii) below, the “Taxes”)
other than for (i) taxes measured by net income (including branch profits taxes) and franchise
taxes imposed in lieu of net income taxes, in each case imposed on any Secured Party as a result of
a present or former connection between such Secured Party and the jurisdiction of the Governmental
Authority imposing such tax or any political subdivision or taxing authority thereof or therein
(other than such connection arising solely from any Secured Party having executed, delivered or
performed its obligations or received a payment under, or enforced, any Loan Document) or (ii)
taxes that are directly attributable to the failure (other than as a result of a change in any
Requirement of Law) by any Secured Party to deliver the documentation required to be delivered
pursuant to clause (f) below.



(b) Gross-Up. If any Taxes shall be required by law to be deducted from or in respect
of any amount payable under any Loan Document (other than any Secured Hedging Agreement) to any
Secured Party (i) such amount shall be increased as necessary to ensure that, after all required
deductions for Taxes are made (including deductions applicable to any increases to any amount under
this Section 2.17), such Secured Party receives the amount it would have received had no
such deductions been made, (ii) the relevant Loan Party shall make such deductions, (iii) the
relevant Loan Party shall timely pay the full amount deducted to the relevant taxing authority or
other authority in accordance with applicable Requirements of Law and (iv) within 30 days after
such payment is made, the relevant Loan Party shall deliver to the Administrative Agent an original
or certified copy of a receipt evidencing such payment; provided, however, that no
such increase shall be made with respect to, and no Loan Party shall be required to indemnify any
such Secured Party pursuant to clause (d) below for, withholding taxes to the extent that
the obligation to withhold amounts existed on the date that such Secured Party became a “Secured
Party” under this Agreement in the capacity under which such Secured Party makes a claim under this
clause (b), except in each case to the extent such Secured Party is a direct or indirect
assignee (other than pursuant to Section 2.18 (Substitution of Lenders)) of any
other Secured Party that was entitled, at the time the assignment of such other Secured Party
became effective, to receive additional amounts under this clause (b).




 


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(c) Other Taxes. In addition, the Borrower agrees to pay, and authorizes the
Administrative Agent to pay in its name, any stamp, documentary, excise or property tax, charges or
similar levies imposed by any applicable Requirement of Law or Governmental Authority and all
Liabilities with respect thereto (including by reason of any delay in payment thereof), in each
case arising from the execution, delivery or registration of, or otherwise with respect to, any
Loan Document or any transaction contemplated therein (collectively, “Other Taxes”). The
Swingline Lender may, without any need for notice, demand or consent from the Borrower, by making
funds available to the Administrative Agent in the amount equal to any
such payment, make a Swing Loan to the Borrower in such amount, the proceeds of which shall be
used by the Administrative Agent in whole to make such payment. Within 30 days after the date of
any payment of Taxes or Other Taxes by any Loan Party, the Borrower shall furnish to the
Administrative Agent, at its address referred to in Section 11.11, the original or a
certified copy of a receipt evidencing payment thereof.



(d) Indemnification. The Borrower shall reimburse and indemnify, within 30 days after
receipt of demand therefor (with copy to the Administrative Agent), each Secured Party for all
Taxes and Other Taxes (including any Taxes and Other Taxes imposed by any jurisdiction on amounts
payable under this Section 2.17) paid by such Secured Party and any Liabilities arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. A certificate of the Secured Party (or of the Administrative Agent on behalf of
such Secured Party) claiming any compensation under this clause (d), setting forth the
amounts to be paid thereunder and delivered to the Borrower with copy to the Administrative Agent,
shall be conclusive, binding and final for all purposes, absent manifest error. In determining such
amount, the Administrative Agent and such Secured Party may use any reasonable averaging and
attribution methods.



(e) Mitigation. Any Lender claiming any additional amounts payable pursuant to this
Section 2.17 shall use its reasonable efforts (consistent with its internal policies and
Requirements of Law) to change the jurisdiction of its lending office if such a change would reduce
any such additional amounts (or any similar amount that may thereafter accrue) and would not, in
the sole determination of such Lender, be otherwise disadvantageous to such Lender.




(f) Tax Forms.




(i) Each Non-U.S. Lender Party that, at any of the following times, is entitled
to an exemption from United States withholding tax or, after a change in any
Requirement of Law, is subject to such withholding tax at a reduced rate under an
applicable tax treaty, shall (w) on or prior to the date such Non-U.S. Lender Party
becomes a “Non-U.S. Lender Party” hereunder, (x) on or prior to the date on which
any such form or certification expires or becomes obsolete, (y) after the occurrence
of any event requiring a change in the most recent form or certification previously
delivered by it pursuant to this clause (i) and (z) from time to time if
requested by the Borrower or the Administrative Agent (or, in the case of a
participant or


 


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 SPV, the relevant Lender), provide the Administrative Agent and the
Borrower (or, in the case of a participant or SPV,  the relevant Lender) with two
completed originals of each of the following, as applicable: (A) Forms W-8ECI
(claiming exemption from U.S. withholding tax because the income is effectively
connected with a U.S. trade or business), W-8BEN (claiming exemption from, or a
reduction of, U.S. withholding tax under an income tax treaty) or any successor
forms, (B) in the case of a Non-U.S. Lender Party claiming exemption under Sections
871(h) or 881(c) of the Code, Form W-8BEN (claiming exemption from U.S. withholding
tax under the portfolio interest exemption) or any successor form and a certificate
in form and substance
acceptable to the Administrative Agent that such Non-U.S. Lender Party is not
(1) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (2) a “10
percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of
the Code or (3) a “controlled foreign corporation” described in Section 881(c)(3)(C)
of the Code or (C) any other applicable document prescribed by the IRS certifying as
to the entitlement of such Non-U.S. Lender Party to such exemption from United
States withholding tax or reduced rate with respect to all payments to be made to
such Non-U.S. Lender Party under the Loan Documents. Unless the Borrower and the
Administrative Agent have received forms or other documents satisfactory to them
indicating that payments under any Loan Document to or for a Non-U.S. Lender Party
are not subject to United States withholding tax or are subject to such tax at a
rate reduced by an applicable tax treaty, the Loan Parties and the Administrative
Agent shall withhold amounts required to be withheld by applicable Requirements of
Law from such payments at the applicable statutory rate.




(ii) Each U.S. Lender Party shall (A) on or prior to the date such U.S. Lender
Party becomes a “U.S. Lender Party” hereunder, (B) on or prior to the date on which
any such form or certification expires or becomes obsolete, (C) after the occurrence
of any event requiring a change in the most recent form or certification previously
delivered by it pursuant to this clause (f) and (D) from time to time if
requested by the Borrower or the Administrative Agent (or, in the case of a
participant or SPV, the relevant Lender), provide the Administrative Agent and the
Borrower (or, in the case of a participant or SPV, the relevant Lender) with two
completed originals of Form W-9 (certifying that such U.S. Lender Party is entitled
to an exemption from U.S. backup withholding tax) or any successor form.




(iii) Each Lender having sold a participation in any of its Obligations or
identified an SPV as such to the Administrative Agent shall collect from such
participant or SPV the documents described in this clause (f) and provide
them to the Administrative Agent.


 


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Section 2.18 Substitution of Lenders.



(a) Substitution Right. In the event that any Lender in any Facility (an
“Affected Lender”), (i) makes a claim under clause (b) (Increased Costs) or
(c) (Increased Capital Requirements) of Section 2.16, (ii) notifies the Borrower
pursuant to Section 2.15(b) (Illegality) that it becomes illegal for such Lender to
continue to fund or make any Eurodollar Rate Loan in such Facility, (iii) makes a claim for payment
pursuant to Section 2.17(b) (Taxes), (iv) becomes a Non-Funding Lender with respect
to such Facility, (v) becomes a Defaulting Lender with respect to such Facility, or (vi) does not
consent to any amendment, waiver or consent to any Loan Document for which the consent of the
Required Lenders is obtained but that requires the consent of other Lenders in such Facility, the
Borrower may either pay in full
such Affected Lender with respect to amounts due in such Facility with the consent of the
Administrative Agent or substitute for such Affected Lender in such Facility any Lender or any
Affiliate or Approved Fund of any Lender or any other Person acceptable (which acceptance shall not
be unreasonably withheld or delayed) to the Administrative Agent (in each case, a “Substitute
Lender”).



(b) Procedure. To substitute such Affected Lender or pay in full the Obligations owed
to such Affected Lender under such Facility, the Borrower shall deliver a notice to the
Administrative Agent and such Affected Lender. The effectiveness of such payment or substitution
shall be subject to the delivery to the Administrative Agent by the Borrower (or, as may be
applicable in the case of a substitution, by the Substitute Lender) of (i) payment for the account
of such Affected Lender, of, to the extent accrued through, and outstanding on, the effective date
for such payment or substitution, all Obligations owing to such Affected Lender with respect to
such Facility (including those that will be owed because of such payment and all Obligations that
would be owed to such Lender if it was solely a Lender in such Facility), (ii) in the case of a
payment in full of the Obligations owing to such Affected Lender in the Revolving Credit Facility,
payment of any amount that, after giving effect to the termination of the Commitment of such
Affected Lender, is required to be paid pursuant to Section 2.8(b) (Excess
Outstandings) and (iii) in the case of a substitution, (A) payment of the assignment fee set
forth in Section 11.2(c) and (B) an assumption agreement in form and substance satisfactory
to the Administrative Agent whereby the Substitute Lender shall, among other things, agree to be
bound by the terms of the Loan Documents and assume the Commitment of the Affected Lender under
such Facility.



(c) Effectiveness. Upon satisfaction of the conditions set forth in clause (b)
above, the Administrative Agent shall record such substitution or payment in the Register,
whereupon (i) in the case of any payment in full in any Facility, such Affected Lender’s
Commitments in such Facility shall be terminated and (ii) in the case of any substitution in any
Facility, (A) the Affected Lender shall sell and be relieved of, and the Substitute Lender shall
purchase and assume, all rights and claims of such Affected Lender under the Loan Documents with
respect to such Facility, except that the Affected Lender shall retain such rights expressly
providing that they survive the repayment of the Obligations and the termination of the
Commitments, (B) the Substitute Lender shall become a “Lender” hereunder having a
Commitment in such Facility in the amount of such Affected Lender’s Commitment in such Facility and
(C) the Affected Lender shall execute and deliver to the Administrative Agent an Assignment to
evidence such substitution and deliver any Note in its possession with respect to such Facility;
provided, however, that the failure of any Affected Lender to execute any such
Assignment or deliver any such Note shall not render such sale and purchase (or the corresponding
assignment) invalid.


 


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Section 2.19 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) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting
Lender pursuant to Section 2.11;



(b) the Commitment and Pro Rata Outstandings of such Defaulting Lender shall not be included
in determining whether all Lenders or the Required Lenders have taken or may take any action
hereunder (including any consent to any amendment or waiver pursuant to Section 11.1), provided
that any waiver, amendment or modification requiring the consent of all Lenders or each affected
Lender which affects such Defaulting Lender differently than other affected Lenders shall require
the consent of such Defaulting Lender;



(c) if any Swing Loans shall be outstanding or any L/C Obligations shall exist at the time a
Lender becomes a Defaulting Lender then:




(i) all or any part of the unfunded participations in and commitments with
respect to such Swing Loans or L/C Obligations shall be reallocated among the
non-Defaulting Lenders in accordance with their respective Pro Rata Shares but only
to the extent (x) the sum of all non-Defaulting Lenders’ Pro Rata Outstandings and
participations in and commitments with respect to Swing Loans plus such Defaulting
Lender’s participations in and commitments with respect to Swing Loans and L/C
Obligations does not exceed the total of all non-Defaulting Lender’s Commitments and
(y) the conditions set forth in Article III are satisfied at such time;
provided, that the fees payable to the Lenders with respect to Letters of
Credit shall be determined taking into account such reallocation.




(ii) if the reallocation described in clause (i) above cannot, or can only
partially, be effected, the Borrower shall within one Business Day following notice
by the Administrative Agent (x) first, prepay the outstanding Swing Loans that were
not reallocated and (y) second, cash collateralize such Defaulting Lender’s Pro Rata
Share of the L/C Obligations in accordance with the procedures set forth in Section
9.3 for so long as such L/C Obligations are outstanding;




(iii) if the Borrower cash collateralizes any portion of such Defaulting
Lender’s Pro Rata Share of the L/C Obligations pursuant to clause (ii) above, the
Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to
Section 2.11(b) with respect to such Defaulting Lender’s Pro Rata Share of L/C
Obligations during the period such Defaulting Lender’s Pro Rata Share of L/C
Obligations is cash collateralized; and


 


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(iv) if any Defaulting Lender’s Pro Rata Share of L/C Obligations is not cash
collateralized pursuant to clause (ii) above, then, without prejudice to any rights
or remedies of the L/C Issuer or any Lender hereunder, all letter of credit fees
payable under Section 2.11(b) with respect to such Defaulting Lender’s Pro Rata
Share of L/C Obligations shall be payable to the L/C Issuer until such L/C
Obligations are cash collateralized;



(d) so long as any Lender is a Defaulting Lender, the L/C Issuer shall not be required to
issue or modify any Letter of Credit, unless it is satisfied that the related exposure will be 100%
covered by cash collateral provided by the Borrower in accordance with Section 2.19(c); and



(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal,
interest, fees or otherwise and including any amount that would otherwise be payable to such
Defaulting Lender pursuant to Section 11.9 but excluding Section 2.18) shall, in lieu of being
distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated
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 L/C Issuer or Swing Line Lender hereunder, (iii)
third, to the funding of any Revolving Loan or the funding or cash collateralization of any
participating interest in any Swing Line Loan or Letter of Credit in respect of 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 the 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
the Borrower or the Lenders as a result of any judgment of a court of competent jurisdiction
obtained by the 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 L/C Reimbursement
Obligations in respect of draws under Letters of Credit with respect to which the L/C Issuer has
funded its participation obligations and (y) made at a time when the conditions set forth in
Section 3.2 are satisfied, such payment shall be applied solely to prepay the Loans of, and L/C
Reimbursement Obligations owed to, all Lenders that are not Defaulting Lenders pro rata prior to
being applied to the prepayment of any Loans, or L/C Reimbursement Obligations owed to, any
Defaulting Lender.



In the event that the Administrative Agent, the Borrower, the L/C Issuer and the Swing Line
Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such
Lender to be a Defaulting Lender, then the Swing Line Exposure and Facility 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 the Revolving Loans in
accordance with its Pro Rata Share. For purposes of this Section 2.19, (x) “Swing Line Exposure”
shall mean, with respect to any Defaulting Lender at any time, such Defaulting Lender’s Pro Rata
Share of the aggregate principal amount of all Swing Line Loans outstanding at such time and (y)
“Facility L/C Exposure” shall mean, with respect to any Defaulting Lender at any time, such
Defaulting Lender’s Pro Rata Share of the L/C Obligations at such time.


 


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Nothing contained in the foregoing shall be deemed to constitute a waiver by the Borrower of
any of its rights or remedies (whether in equity or law) against any Lender which
fails to fund any of its Loans hereunder at the time or in the amount required to be funded
under the terms of this Agreement.



ARTICLE III

CONDITIONS TO LOANS AND LETTERS OF CREDIT




Section 3.1 Conditions Precedent to Initial Loans and Letters of Credit. The obligation of each Lender to make any Loan and the obligation of each L/C Issuer to
Issue any Letter of Credit is subject to the satisfaction or due waiver of each of the following
conditions precedent on or prior to the Closing Date:



(a) Certain Documents. The Administrative Agent shall have received on or prior to the
Closing Date each of the following, each dated the Closing Date unless otherwise agreed by the
Administrative Agent, in form and substance satisfactory to the Administrative Agent and each
Lender:




(i) this Agreement duly executed by the Borrower and, for the account of each
Lender having requested the same by notice to the Administrative Agent and the
Borrower received by each at least 3 Business Days prior to the Closing Date (or
such later date as may be agreed by the Borrower), Notes in each applicable Facility
conforming to the requirements set forth in Section 2.14(e);




(ii) the Guaranty and Security Agreement, duly executed by each Guarantor,
together with (A) copies of UCC, Intellectual Property and other appropriate search
reports and of all effective prior filings listed therein, together with evidence of
the termination of such prior filings and other documents with respect to the
priority of the security interest of the Administrative Agent in the Collateral, in
each case as may be reasonably requested by the Administrative Agent, (B) all
documents representing all Securities being pledged pursuant to such Guaranty and
Security Agreement and related undated powers or endorsements duly executed in blank
and (C) all Control Agreements that, in the reasonable judgment of the
Administrative Agent, are required for the Loan Parties to comply with the Loan
Documents as of the Closing Date, each duly executed by, in addition to the
applicable Loan Party, the applicable financial institution;




(iii) Mortgages for each Mortgaged Property of the Loan Parties identified on
Schedule 4.16, together with all Mortgage Supporting Documents relating
thereto;


 


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(iv) Mortgaged Property Reports for all of the Mortgaged Properties showing a
Loan To Value Ratio as of the Closing Date of not more than 75%; provided,
however, that the Closing Date may occur prior to the receipt by the
Administrative Agent of the Mortgaged Property Report for the Manitowoc Property,
but the aggregate amount of Revolving Credit Outstandings shall be limited to
$122,500,000 until such time as the Administrative Agent receives such
Mortgaged Property Report for the Manitowoc Property confirming that the Loan
To Value Ratio as of the Closing Date is not more than 75%;




(v) duly executed favorable opinions of counsel to the Loan Parties in the
States of Indiana, Kentucky, Michigan, Nebraska, Ohio, Pennsylvania, South Carolina,
Texas, and Wisconsin, each addressed to the Administrative Agent, the L/C Issuers
and the Lenders and addressing such matters as the Administrative Agent may
reasonably request;




(vi) a copy of each Constituent Document of each Loan Party that is on file
with any Governmental Authority in any jurisdiction, certified as of a recent date
by such Governmental Authority, together with, if applicable, certificates attesting
to the good standing of such Loan Party in such jurisdiction and each other
jurisdiction where such Loan Party is qualified to do business as a foreign entity
or where such qualification is necessary (and, if appropriate in any such
jurisdiction, related tax certificates);




(vii) a certificate of the secretary or other officer of each Loan Party in
charge of maintaining books and records of such Loan Party certifying as to (A) the
names and signatures of each officer of such Loan Party authorized to execute and
deliver any Loan Document, (B) the Constituent Documents of such Loan Party attached
to such certificate are complete and correct copies of such Constituent Documents as
in effect on the date of such certification (or, for any such Constituent Document
delivered pursuant to clause (v) above, that there have been no changes from such
Constituent Document so delivered) and (C) the resolutions of such Loan Party’s
board of directors or other appropriate governing body approving and authorizing the
execution, delivery and performance of each Loan Document to which such Loan Party
is a party;




(viii) a certificate of a Responsible Officer of the Borrower to the effect
that (A) each condition set forth in Section 3.2(b) has been satisfied, and
(B) both the Loan Parties taken as a whole and the Borrower are Solvent after giving
effect to the initial Loans and Letters of Credit, the application of the proceeds
thereof in accordance with Section 7.9 and the payment of all estimated
legal, accounting and other fees and expenses related hereto and thereto;




(ix) insurance certificates in form and substance satisfactory to the
Administrative Agent demonstrating that the insurance policies required by
Section 7.5 are in full force and effect and have all endorsements required
by such Section 7.5;


 


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(x) a payoff letter from General Electric Capital Corporation addressing (i)
the payment in full of all Indebtedness and other obligations outstanding under the
GE Capital Credit Agreement and (ii) the termination and release of all Liens on any
property of the Group Members securing such
Indebtedness and other obligations, in form and substance acceptable to the
Agent and the Lenders; and




(xi) such other documents and information as any Lender through the
Administrative Agent may reasonably request.



(b) Fee and Expenses. There shall have been paid to the Administrative Agent, for the
account of the Administrative Agent, its Related Persons, any L/C Issuer or any Lender, as the case
may be, all fees and all reimbursements of costs or expenses, in each case due and payable under
any Loan Document on or before the Closing Date.



(c) Consents. Each Group Member shall have received all consents and authorizations
required pursuant to any material Contractual Obligation with any other Person and shall have
obtained all Permits of, and effected all notices to and filings with, any Governmental Authority,
in each case, as may be necessary in connection with the consummation of the transactions
contemplated in any Loan Document.



Section 3.2 Conditions Precedent to Each Loan and Letter of Credit. The obligation of each Lender on any date (including the Closing Date) to make any Loan and
of each L/C Issuer on any date (including the Closing Date) to Issue any Letter of Credit is
subject to the satisfaction of each of the following conditions precedent:



(a) Request. The Administrative Agent (and, in the case of any Issuance, the relevant
L/C Issuer) shall have received, to the extent required by Article II, a written, timely
and duly executed and completed Notice of Borrowing, Swingline Request or, as the case may be, L/C
Request.



(b) Representations and Warranties; No Defaults. The following statements shall be
true on such date, both before and after giving effect to such Loan or, as applicable, such
Issuance: (i) the representations and warranties set forth in any Loan Document shall be true and
correct (A) if such date is the Closing Date, on and as of such date and (B) otherwise, in all
material respects on and as of such date or, to the extent such representations and warranties
expressly relate to an earlier date, on and as of such earlier date and (ii) no Default shall be
continuing.



(c) Availability. After giving pro forma effect to such Loan or Issuance of such
Letter of Credit, the aggregate outstanding Loans and L/C Obligations will not exceed the Revolving
Credit Availability.



(d) Additional Matters. The Administrative Agent shall have received such additional
documents and information as any Lender, through the Administrative Agent, may reasonably request.


 


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The representations and warranties set forth in any Notice of Borrowing, Swingline Request or
L/C Request (or any certificate delivered in connection therewith) shall be
deemed to be made again on and as of the date of the relevant Loan or Issuance and the
acceptance of the proceeds thereof or of the delivery of the relevant Letter of Credit.



Section 3.3 Determinations of Initial Borrowing Conditions. For purposes of determining compliance with the conditions specified in Section
3.1, each Lender shall be deemed to be satisfied with each document and each other matter
required to be satisfactory to such Lender unless, prior to the Closing Date, the Administrative
Agent receives notice from such Lender specifying such Lender’s objections and such Lender has not
made available its Pro Rata Share of any Borrowing scheduled to be made on the Closing Date.



ARTICLE IV

REPRESENTATIONS AND WARRANTIES




To induce the Lenders, the L/C Issuers and the Administrative Agent to enter into the Loan
Documents, the Borrower (and, to the extent set forth in any other Loan Document, each other Loan
Party) represents and warrants to each of them each of the following on and as of each date
applicable pursuant to Section 3.2:



Section 4.1 Corporate Existence; Compliance with Law. Each Group Member (a) is duly organized, validly existing and in good standing or active
status under the laws of the jurisdiction of its organization, (b) is duly qualified to do business
as a foreign entity and in good standing under the laws of each jurisdiction where such
qualification is necessary, except where the failure to be so qualified or in good standing would
not, in the aggregate, reasonably be expected to have a Material Adverse Effect, (c) has all
requisite power and authority and the legal right to own, pledge, mortgage and operate its
property, to lease or sublease any property it operates under lease or sublease and to conduct its
business as now or currently proposed to be conducted, (d) is in compliance with its Constituent
Documents, (e) is in compliance with all applicable Requirements of Law except where the failure to
be in compliance would not reasonably be expected to have a Material Adverse Effect and (f) has all
necessary Permits from or by, has made all necessary filings with, and has given all necessary
notices to, each Governmental Authority having jurisdiction, to the extent required for such
ownership, lease, sublease, operation, occupation or conduct of business, except where the failure
to obtain such Permits, make such filings or give such notices would not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.



Section 4.2 Loan Documents.



(a) Power and Authority. The execution, delivery and performance by each Loan Party of
the Loan Documents to which it is a party and the consummation of the transactions contemplated
therein (i) are within such Loan Party’s corporate or similar powers and, at the time of execution
thereof, have been duly authorized by all necessary corporate and similar action (including, if
applicable, consent of holders of its Securities), (ii) do not (A) contravene such Loan Party’s
Constituent Documents, (B) violate any applicable Requirement of Law, (C) conflict with,
contravene, constitute a default or breach under, or result in or permit the
termination or acceleration of, any material Contractual Obligation of any Loan Party or any
of its Subsidiaries (including other Loan Documents) other than those that would not, in the
aggregate, reasonably be expected to have a Material Adverse Effect and are not created or caused
by, a conflict, breach, default or termination or acceleration event under, any Loan Document or
(D) result in the imposition of any Lien (other than a Permitted Lien) upon any property of any
Loan Party or any of its Subsidiaries and (iii) do not require any Permit of, or filing with, any
Governmental Authority or any consent of, or notice to, any Person, other than (A) with respect to
the Loan Documents, the filings required to perfect the Liens created by the Loan Documents, and
(B) those listed on Schedule 4.2 and that have been, or will be prior to the Closing Date,
obtained or made, copies of which have been, or will be prior to the Closing Date, delivered to the
Administrative Agent, and each of which on the Closing Date will be in full force and effect.


 


55









 





(b) Execution and Delivery. From and after its delivery to the Administrative Agent,
each Loan Document has been duly executed and delivered to the other parties thereto by each Loan
Party party thereto, is the legal, valid and binding obligation of such Loan Party and is
enforceable against such Loan Party in accordance with its terms.



Section 4.3 Ownership of Loan Parties. Set forth on Schedule 4.3 is a complete and accurate list showing, as of the
Closing Date, for each Loan Party and each Subsidiary of any Guarantor and each joint venture of
any of them, its jurisdiction of organization, the number of shares of each class of Stock
authorized (if applicable), the number outstanding on the Closing Date and the number and
percentage of the outstanding shares of each such class owned (directly or indirectly) by the
Borrower. All outstanding Stock of each of them (except in the case of the Borrower) has been
validly issued, is fully paid and non-assessable (to the extent applicable) and is owned
beneficially and of record by a Loan Party free and clear of all Liens other than the security
interests created by the Loan Documents and, in the case of joint ventures, Permitted Liens. There
are no Stock Equivalents with respect to the Stock of any Loan Party or any Subsidiary of any
Guarantor or any joint venture of any of them, except for options under the ALC Omnibus Incentive
Compensation Plan. There are no Contractual Obligations or other understandings to which any Loan
Party, any Subsidiary of any Guarantor or any joint venture of any of them is a party with respect
to (including any restriction on) the issuance, voting, Sale or pledge of any Stock or Stock
Equivalent of any Loan Party or any such Guarantor or joint venture.



Section 4.4 Financial Statements.



Each of (i) the audited Consolidated balance sheet of the Borrower as at December 31, 2009 and
the related Consolidated statements of income, retained earnings and cash flows of the Borrower for
the Fiscal Year then ended, certified by Grant Thornton LLP, and (ii) subject to the absence of
footnote disclosure and normal recurring year-end audit adjustments, the unaudited Consolidated
balance sheets of the Borrower as at September 30, 2010 and the related Consolidated statements of
income, retained earnings and cash flows of the Borrower for the nine months then ended, copies of
each of which have been furnished to the Administrative Agent, fairly present in all material
respects the Consolidated financial position,
results of operations and cash flow of the Borrower as at the dates indicated and for the
periods indicated in accordance with GAAP.


 


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Section 4.5 Material Adverse Effect. Since December 31, 2009, there have been no events, circumstances, developments or other
changes in facts that would, in the aggregate, reasonably be expected to have a Material Adverse
Effect.



Section 4.6 Solvency. Both before and after giving effect to (a) the Loans and Letters of Credit made or Issued
on or prior to the date this representation and warranty is made, (b) the disbursement of the
proceeds of such Loans and (c) the payment and accrual of all transaction costs in connection with
the foregoing, both the Loan Parties taken as a whole and the Borrower are Solvent.



Section 4.7 Litigation. There are no pending (or, to the knowledge of any Group Member, threatened) actions,
investigations, suits, proceedings, audits, claims, demands, orders or disputes affecting the
Borrower or any of its Subsidiaries with, by or before any Governmental Authority other than those
that cannot reasonably be expected to affect the Obligations, the Loan Documents, the Letters of
Credit and the other transactions contemplated therein and would not, in the aggregate, reasonably
be expected to have a Material Adverse Effect.



Section 4.8 Taxes. All federal, state, local and foreign income and franchise and other material tax returns,
reports and statements (collectively, the “Tax Returns”) required to be filed by any Tax
Affiliate have been filed with the appropriate Governmental Authorities in all jurisdictions in
which such Tax Returns are required to be filed, all such Tax Returns are true and correct in all
material respects, and all taxes, charges and other impositions reflected therein or otherwise due
and payable have been paid prior to the date on which any Liability may be added thereto for
non-payment thereof except for those contested in good faith by appropriate proceedings diligently
conducted and for which adequate reserves are maintained on the books of the appropriate Tax
Affiliate in accordance with GAAP or state and local taxes involving an amount, in the aggregate,
of less than $50,000. No Tax Return is under audit or examination by any Governmental Authority
and no notice of such an audit or examination or any assertion of any claim for Taxes has been
given or made by any Governmental Authority which in any such case could reasonably be expected to
have a Material Adverse Effect. Proper and accurate amounts have been withheld by each Tax
Affiliate from their respective employees for all periods in full and complete compliance with the
tax, social security and unemployment withholding provisions of applicable Requirements of Law and
such withholdings have been timely paid to the respective Governmental Authorities. No Tax
Affiliate has participated in a “reportable transaction” within the meaning of Treasury Regulation
Section 1.6011-4(b) or has
been a member of an affiliated, combined or unitary group other than the group of which a Tax
Affiliate is the common parent.


 


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Section 4.9 Margin Regulations. The Borrower is not engaged in the business of extending credit for the purpose of, and no
proceeds of any Loan or other extensions of credit hereunder will be used for the purpose of,
buying or carrying margin stock (within the meaning of Regulation U of the Federal Reserve Board)
or extending credit to others for the purpose of purchasing or carrying any such margin stock, in
each case in contravention of Regulation T, U or X of the Federal Reserve Board.



Section 4.10 No Burdensome Obligations; No Defaults. No Group Member is a party to any Contractual Obligation, no Group Member has Constituent
Documents containing obligations, and, to the knowledge of any Group Member, there are no
applicable Requirements of Law, in each case the compliance with which would reasonably be expected
to have, in the aggregate, a Material Adverse Effect. No Group Member (and, to the knowledge of
each Group Member, no other party thereto) is in default under or with respect to any Contractual
Obligation of any Group Member, other than those that would not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.



Section 4.11 Investment Company Act. No Group Member is an “investment company” or an “affiliated person” of, or “promoter” or
“principal underwriter” for, an “investment company”, as such terms are defined in the Investment
Company Act of 1940.



Section 4.12 Labor Matters. There are no strikes, work stoppages, slowdowns or lockouts existing, pending (or, to the
knowledge of any Group Member, threatened) against or involving any Group Member, except, for those
that would not, in the aggregate, reasonably be expected to have a Material Adverse Effect. Except
as set forth on Schedule 4.12, as of the Closing Date, (a) there is no collective
bargaining or similar agreement with any union, labor organization, works council or similar
representative covering any employee of any Group Member, (b) no petition for certification or
election of any such representative is existing or pending with respect to any employee of any
Group Member and (c) no such representative has sought certification or recognition with respect to
any employee of any Group Member.



Section 4.13 ERISA. Schedule 4.13 sets forth, as of the Closing Date, a complete and correct list of,
and that separately identifies, (a) all Title IV Plans, (b) all Multiemployer Plans and (c) all
material Benefit Plans. Each Benefit Plan, and each trust thereunder, intended to qualify for tax
exempt status under Section 401 or 501 of the Code or other Requirements of Law so qualifies.
Except for those that would not, in the aggregate, reasonably be expected to have a Material
Adverse Effect, (x) each Benefit Plan is in compliance with applicable provisions of ERISA,
the Code and other Requirements of Law, (y) there are no existing or pending (or to the knowledge
of any Group Member, threatened) claims (other than routine claims for benefits in the normal
course), sanctions, actions, lawsuits or other proceedings or investigation involving any Benefit
Plan to which any Group Member incurs or otherwise has or could have an obligation or any Liability
and (z) no ERISA Event is reasonably expected to occur. On the Closing Date, no ERISA Event has
occurred in connection with which obligations and liabilities (contingent or otherwise) remain
outstanding. No ERISA Affiliate would have any Withdrawal Liability as a result of a complete
withdrawal from any Multiemployer Plan on the date this representation is made.


 


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Section 4.14 Environmental Matters. Except as set forth on Schedule 4.14, (a) the operations of each Group Member are
and have been in compliance with all applicable Environmental Laws, including obtaining,
maintaining and complying with all Permits required by any applicable Environmental Law, other than
non-compliances that, in the aggregate, would not have a reasonable likelihood of resulting in
Material Environmental Liabilities, (b) no Group Member is party to, and no Group Member and no
real property currently (or to the knowledge of any Group Member previously) owned, leased,
subleased, operated or otherwise occupied by or for any Group Member is subject to or the subject
of, any Contractual Obligation or any pending (or, to the knowledge of any Group Member,
threatened) order, action, investigation, suit, proceeding, audit, claim, demand, dispute or notice
of violation or of potential liability or similar notice under or pursuant to any Environmental Law
other than those that, in the aggregate, are not reasonably likely to result in Material
Environmental Liabilities, (c) no Lien in favor of any Governmental Authority securing, in whole or
in part, Environmental Liabilities has attached to any property of any Group Member and, to the
knowledge of any Group Member, no facts, circumstances or conditions exist that could reasonably be
expected to result in any such Lien attaching to any such property, (d) no Group Member has caused
or suffered to occur a Release of Hazardous Materials at, to or from any real property of any Group
Member and each such real property is free of contamination by any Hazardous Materials except for
such Release or contamination that could not reasonably be expected to result, in the aggregate, in
Material Environmental Liabilities, (e) no Group Member (i) is or has been engaged in operations,
or (ii) knows of any facts, circumstances or conditions, including receipt of any information
request or notice of potential responsibility under CERCLA or similar Environmental Laws, that, in
the aggregate, would have a reasonable likelihood of resulting in Material Environmental
Liabilities and (f) each Group Member has made available to the Administrative Agent copies of all
existing environmental reports, reviews and audits and all documents pertaining to actual or
potential Environmental Liabilities, in each case to the extent such reports, reviews, audits and
documents are in their possession, custody or control.



Section 4.15 Intellectual Property. Each Group Member owns or licenses all Intellectual Property that is necessary for the
operations of its businesses. To the knowledge of each Group Member, (a) the conduct and operations
of the businesses of each Group Member does not infringe,
misappropriate, dilute, violate or otherwise impair any Intellectual Property owned by any
other Person and (b) no other Person has contested any right, title or interest of any Group Member
in, or relating to, any Intellectual Property, other than, in each case, as cannot reasonably be
expected to affect the Loan Documents and the transactions contemplated therein and would not, in
the aggregate, reasonably be expected to have a Material Adverse Effect. In addition, (x) there are
no pending (or, to the knowledge of any Group Member, threatened) actions, investigations, suits,
proceedings, audits, claims, demands, orders or disputes affecting any Group Member with respect
to, (y) no judgment or order regarding any such claim has been rendered by any competent
Governmental Authority, no settlement agreement or similar Contractual Obligation has been entered
into by any Group Member, with respect to and (z) no Group Member knows or has any reason to know
of any valid basis for any claim based on, any such infringement, misappropriation, dilution,
violation or impairment or contest, other than, in each case, as cannot reasonably be expected to
affect the Loan Documents and the transactions contemplated therein and would not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.


 


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Section 4.16 Title; Real Property.



(a) Each Group Member has good and marketable fee simple title to all owned real property and
valid leasehold interests in all leased real property, and owns all personal property, in each case
that is purported to be owned or leased by it, including those reflected on the most recent
Financial Statements delivered by the Borrower, and none of such property is subject to any Lien
except Permitted Liens.



(b) Set forth on Schedule 4.16 is, as of the Closing Date, (i) a complete and accurate
list of all Mortgaged Properties setting forth, for each such Mortgaged Property, the current
street address (including, where applicable, county, state and other relevant jurisdictions), the
record owner thereof and, where applicable, each lessee and sublessee thereof, and (ii) any lease,
sublease, license or sublicense of such Mortgaged Property by any Group Member.



Section 4.17 Full Disclosure. The information prepared or furnished by or on behalf of any Loan Party in connection with
any Loan Document (including the information contained in any Financial Statement or Disclosure
Document) or any other transaction contemplated therein, does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements contained therein,
in light of the circumstances when made, not misleading; provided, however, that
projections contained therein are not to be viewed as factual and that actual results during the
periods covered thereby may differ from the results set forth in such projections by a material
amount. All projections that are part of such information (including those set forth in any
Additional Projections delivered subsequent to the Closing Date) are based upon good faith
estimates and stated assumptions believed to be reasonable and fair as of the date made in light of
conditions and facts then known and, as of such date, reflect good faith, reasonable and fair
estimates of the information projected for the periods set forth therein. All facts known to any
Loan Party and material to an understanding of the financial condition, business, property or
prospects of the Loan Party taken as one enterprise have been disclosed to the Lenders.



ARTICLE V

FINANCIAL COVENANTS




The Borrower (and, to the extent set forth in any other Loan Document, each other Loan Party)
agrees with the Lenders, the L/C Issuers and the Administrative Agent to each of the following, as
long as any Obligation or any Commitment remains outstanding:



Section 5.1 Maximum Consolidated Leverage Ratio. The Borrower shall not at any time have a Consolidated Leverage Ratio greater than 3.75 to
1.00.



Section 5.2 Minimum Consolidated Fixed Charge Coverage Ratio. The Borrower shall not have, on the last day of any Fiscal Quarter, a Consolidated Fixed
Charge Coverage Ratio for the 4 Fiscal Quarter period ending on such day of less than 1.40:1.00.


 


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ARTICLE VI

REPORTING COVENANTS




The Borrower (and, to the extent set forth in any other Loan Document, each other Loan Party)
agrees with the Lenders, the L/C Issuers and the Administrative Agent to each of the following, as
long as any Obligation or any Commitment remains outstanding:



Section 6.1 Financial Statements. The Borrower shall deliver to the Administrative Agent each of the following:



(a) Quarterly Financials. As soon as available, but in any event not later than 60
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 as of the end of and for
the corresponding period in the previous year, certified by a Responsible Officer as being fairly
stated in all material respects (subject to normal year end audit adjustments). The parties hereto
acknowledge and agree that the posting of the foregoing information on the Borrower’s website shall
constitute “delivery” to the Administrative Agent for purposes hereof.



(b) Annual Financials. 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 as of the end of and for the previous year, reported on without a
“going concern” or like qualification or exception, or qualification arising out of the
scope of the audit, by Grant Thornton LLP or other independent certified public accountants of
nationally recognized standing. The parties hereto acknowledge and agree that the posting of the
foregoing information on the Borrower’s website shall constitute “delivery” to the Administrative
Agent for purposes hereof



(c) Compliance Certificate. Together with each delivery of any Financial Statement
pursuant to clause (a) or (b) above, a Compliance Certificate duly executed by a
Responsible Officer of the Borrower that, among other things, (i) shows in reasonable detail the
calculations used in determining the Consolidated Leverage Ratio, (ii) demonstrates compliance with
each financial covenant contained in Article V that is tested at least on a quarterly basis
and (iii) states that no Default is continuing as of the date of delivery of such Compliance
Certificate or, if a Default is continuing, states the nature thereof and the action that the
Borrower proposes to take with respect thereto.



(d) Additional Projections. As soon as available, and in any event no later than 90
days after the end of each Fiscal Year of the Borrower, a detailed consolidated budget for the
following Fiscal Year (including projected consolidated balance sheets of the Borrower and its
Subsidiaries as of the end of the following Fiscal Year, and the related consolidated statements of
projected cash flow, projected changes in financial position and projected income), and, as soon as
available, significant revisions, if any, of such budget and projections with respect to such
Fiscal Year (collectively, the “Additional Projections”), which Additional Projections
shall in each case be accompanied by a certificate of a Responsible Officer stating that such
Additional Projections are based on reasonable estimates, information and assumptions and that such
Responsible Officer has no reason to believe that such Additional Projections are incorrect or
misleading in any material respect.


 


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(e) Audit Reports, Management Letters, Etc. Together with each delivery of any
Financial Statement for any Fiscal Year pursuant to clause (b) above, copies of each management
letter, audit report or similar letter or report received by any Group Member from any independent
registered certified public accountant (including the Group Members’ Accountants) in connection
with such Financial Statements or any audit thereof, each certified to be complete and correct
copies by a Responsible Officer of the Borrower as part of the Compliance Certificate delivered in
connection with such Financial Statements.



Section 6.2 Other Events. The Borrower shall give the Administrative Agent notice of each of the following (which may
be made by telephone if promptly confirmed in writing) promptly after any Responsible officer of
any Group Member knows or has reason to know of it: (a)(i) any Default and (ii) any event that
would reasonably be likely to have a Material Adverse Effect, specifying, in each case, the nature
and anticipated effect thereof and any action proposed to be taken in connection therewith, (b) any
event (other than any event involving loss or damage to property) reasonably expected to result in
a mandatory payment of the Obligations pursuant to Section 2.8, stating the material terms
and conditions of such transaction and estimating the Net Cash Proceeds thereof, and (c) the
commencement of, or any material developments in, any action, investigation, suit, proceeding,
audit, claim, demand, order or dispute with, by or before
any Governmental Authority affecting any Group Member or any property of any Group Member that
(i) in the reasonable judgment of the Borrower, exposes any Group Member to liability in an
aggregate amount in excess of $10,000,000, or (ii) if adversely determined would reasonably be
likely to have a Material Adverse Effect.



Section 6.3 Copies of Notices and Reports. Within five (5) days after the same are sent, copies of all financial statements and
reports that the Borrower sends to the holders of any class of its debt securities or public equity
securities and, within five (5) days after the same are filed, copies of all Disclosure Documents.



Section 6.4 Taxes. The Borrower shall give the Administrative Agent notice of each of the following (which may
be made by telephone if promptly confirmed in writing) promptly after any Responsible Officer of
any Group Member knows or has reason to know of it: (a) the creation, or filing with the IRS or any
other Governmental Authority, of any Contractual Obligation or other document extending, or having
the effect of extending, the period for assessment or collection of any taxes with respect to any
Tax Affiliate and (b) the creation of any Contractual Obligation of any Tax Affiliate, or the
receipt of any request directed to any Tax Affiliate, to make any adjustment under Section 481(a)
of the Code, by reason of a change in accounting method or otherwise, which would reasonably be
likely to have a Material Adverse Effect.


 


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Section 6.5 Labor Matters. The Borrower shall give the Administrative Agent notice of each of the following (which may
be made by telephone if promptly confirmed in writing), promptly after, and in any event within 30
days after any Responsible Officer of any Group Member knows or has reason to know of it: (a) the
commencement of any material labor dispute to which any Group Member is or may become a party,
including any strikes, lockouts or other disputes relating to any of such Person’s plants and other
facilities and (b) the incurrence by any Group Member of any Worker Adjustment and Retraining
Notification Act or related or similar liability incurred with respect to the closing of any plant
or other facility of any such Person that would, individually or in the aggregate, be reasonably
likely to have a Material Adverse Effect.



Section 6.6 ERISA Matters. The Borrower shall give the Administrative Agent (a) on or prior to any filing by any ERISA
Affiliate of any notice of intent to terminate any Title IV Plan, a copy of such notice and (b)
promptly, and in any event within 10 days, after any Responsible Officer of any ERISA Affiliate
knows or has reason to know that a request for a minimum funding waiver under Section 412 of the
Code has been filed with respect to any Title IV Plan or Multiemployer Plan, a notice (which may be
made by telephone if promptly confirmed in writing) describing such waiver request and any action
that any ERISA Affiliate proposes to take with respect thereto, together with a copy of any notice
filed with the PBGC or the IRS pertaining thereto.



Section 6.7 Environmental Matters. 



(a) The Borrower shall provide the Administrative Agent notice of each of the following (which
may be made by telephone if promptly confirmed by the Administrative Agent in writing) promptly
after any Responsible Officer of any Group Member knows or has reason to know of it (and, upon
reasonable request of the Administrative Agent, documents and information in connection therewith):
(i)(A) unpermitted Releases, (B) the receipt by any Group Member of any notice of violation of or
potential liability or similar notice under, or the existence of any condition that could
reasonably be expected to result in violations of or liabilities under, any Environmental Law or
(C) the commencement of, or any material change to, any action, investigation, suit, proceeding,
audit, claim, demand, dispute alleging a violation of or liability under any Environmental Law,
that, for each of clauses (A), (B) and (C) above (and, in the case of
clause (C), if adversely determined), in the aggregate for each such clause, could
reasonably be expected to result in Environmental Liabilities in excess of $1,000,000, (ii) the
receipt by any Group Member of notification that any property of any Group Member is subject to any
Lien in favor of any Governmental Authority securing, in whole or in part, Environmental
Liabilities and (iii) any proposed acquisition or lease of real property (except as part of any
Permitted Acquisition) if such acquisition or lease would have a reasonable likelihood of resulting
in aggregate Environmental Liabilities in excess of $1,000,000.



(b) Upon the reasonable request of the Administrative Agent, the Borrower shall provide the
Administrative Agent a report containing an update as to the status of any environmental, health or
safety compliance, hazard or liability issue identified in any document delivered to any Secured
Party pursuant to any Loan Document or as to any condition reasonably believed by the
Administrative Agent to result in Material Environmental Liabilities.


 


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Section 6.8 Other Information. The Borrower shall provide the Administrative Agent with such other documents and
information with respect to the business, property, condition (financial or otherwise), legal,
financial or corporate or similar affairs or operations of any Group Member as the Administrative
Agent or such Lender through the Administrative Agent may from time to time reasonably request.



ARTICLE VII

AFFIRMATIVE COVENANTS




The Borrower (and, to the extent set forth in any other Loan Document, each other Loan Party)
agrees with the Lenders, the L/C Issuers and the Administrative Agent to each of the following, as
long as any Obligation or any Commitment remains outstanding:



Section 7.1 Maintenance of Corporate Existence. Each Group Member shall (a) preserve and maintain its legal existence, except in the
consummation of transactions expressly permitted by Sections 8.4 and 8.7, and (b)
preserve and maintain it rights (charter and statutory), privileges franchises and Permits
necessary or desirable in the conduct of its business, except, in the case of this clause
(b), where
the failure to do so would not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.



Section 7.2 Compliance with Laws, Etc.



(a) Each Group Member shall comply with all applicable Requirements of Law, Contractual
Obligations and Permits, except for such failures to comply that would not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.



(b) Each Group Member will maintain all certificates of need, provider numbers, supplier
numbers, and licenses necessary to conduct its business as currently conducted, and take any steps
required to comply with any such new or additional requirements that may be imposed on providers of
the types of services such Group Member provides, except to the extent such failure to maintain or
comply could not reasonably be expected to have a Material Adverse Effect.



(c) Each Group Member shall maintain on its behalf, and shall allow Administrative Agent
and/or consultants of Administrative Agent to review upon reasonable request: (i) a corporate
healthcare regulatory compliance program that complies with the applicable guidelines developed by
the Office of the Inspector General of the Department of Health and Human Services for a compliance
programs, and (ii) a program that complies with the privacy standards pertaining to health
information as set forth at 45 C.F.R. part 164, subparts A and E, and an effective program that
complies with the security standards pertaining to health information as set forth at 45 C.F.R.
part 164, subpart C.



Section 7.3 Payment of Obligations. Each Group Member shall pay or discharge before they become delinquent (a) all material
claims, taxes, assessments, charges and levies imposed by any Governmental Authority and (b) all
other lawful claims that if unpaid would, by the operation of applicable Requirements of Law,
become a Lien upon any property of any Group Member, except, in each case, for those whose amount
or validity is being contested in good faith by proper proceedings diligently conducted and for
which adequate reserves are maintained on the books of the appropriate Group Member in accordance
with GAAP, or where the amounts in dispute are less than $100,000 in the aggregate.


 


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Section 7.4 Maintenance of Property. Each Group Member shall maintain and preserve (a) in good working order and condition all
of its property necessary in the conduct of its business and (b) all rights, permits, licenses,
approvals and privileges (including all Permits) necessary, used or useful, whether because of its
ownership, lease, sublease or other operation or occupation of property or other conduct of its
business, and shall make all necessary or appropriate filings with, and give all required notices
to, Government Authorities, except for such failures to maintain and preserve the items set forth
in clauses (a) and (b) above that would not, in the aggregate, be reasonably likely
to have a Material Adverse Effect.



Section 7.5 Maintenance of Insurance. Each Group Member shall (a) maintain or cause to be maintained in full force and effect all
policies of insurance of any kind with respect to the property and businesses of the Group Members
with financially sound and reputable insurance companies or associations of a nature and providing
such coverage as is sufficient and as is customarily carried by businesses of the size and
character of the business of the Group Members and (b) cause all such insurance relating to any
property or business of any Loan Party to name the Administrative Agent on behalf of the Secured
Parties as additional insured or loss payee, as appropriate, and to provide that no cancellation,
material addition in amount or material change in coverage shall be effective until after 30 days’
notice thereof to the Administrative Agent.



Section 7.6 Keeping of Books. The Group Members shall keep proper books of record and account, in which full, true and
correct entries shall be made in accordance with GAAP and all other applicable Requirements of Law
of all financial transactions and the assets and business of each Group Member.



Section 7.7 Access to Books and Property. Each Group Member shall permit the Administrative Agent, the Lenders and any Related Person
of any of them, as often as reasonably requested, at any reasonable time during normal business
hours and with reasonable advance notice (except that, during the continuance of an Event of
Default, no such notice shall be required) to (a) visit and inspect the property of each Group
Member and examine and make copies of and abstracts from, the corporate (and similar), financial,
operating and other books and records of each Group Member, (b) discuss the affairs, finances and
accounts of each Group Member with any officer or director of any Group Member and (c) communicate
directly with any registered certified public accountants (including the Group Members’
Accountants) of any Group Member. Each Group Member shall authorize their respective registered
certified public accountants (including the Group Members’ Accountants) to communicate directly
with the Administrative Agent, the Lenders and their Related Persons and to disclose to the
Administrative Agent, the Lenders and their Related Persons all financial statements and other
documents and information as they might have and the Administrative Agent or any Lender reasonably
requests with respect to any Group Member.


 


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Section 7.8 Environmental. Each Group Member shall comply with, and maintain its real property, whether owned, leased,
subleased or otherwise operated or occupied, in compliance with, all applicable Environmental Laws
(including by implementing any Remedial Action necessary to achieve such compliance or that is
required by orders and directives of any Governmental Authority) except for failures to comply that
would not, in the aggregate, be reasonably likely to have a Material Adverse Effect. Without
limiting the foregoing, if an Event of Default is continuing or if the Administrative Agent at any
time has a reasonable basis to believe that there exist violations of Environmental Laws by any
Group Member or that there exist any
Environmental Liabilities, in each case, that would be reasonably likely to have, in the
aggregate, a Material Adverse Effect, then each Group Member shall, promptly upon receipt of
request from the Administrative Agent, cause the performance of, and allow the Administrative Agent
and its Related Persons access to such real property for the purpose of conducting, such
environmental audits and assessments, including subsurface sampling of soil and groundwater, and
cause the preparation of such reports, in each case as the Administrative Agent may from time to
time reasonably request. Such audits, assessments and reports, to the extent not conducted by the
Administrative Agent or any of its Related Persons, shall be conducted and prepared by reputable
environmental consulting firms reasonably acceptable to the Administrative Agent and shall be in
form and substance reasonably acceptable to the Administrative Agent.



Section 7.9 Use of Proceeds. The proceeds of the Loans shall be used by the Borrower (and, to the extent distributed to
them by the Borrower, each other Group Member) solely (a) for the payment of transaction costs,
fees and expenses incurred in connection with the Loan Documents and the transactions contemplated
therein, (b) for the payment in full and satisfaction of all outstanding obligations of the
Borrower under the GE Capital Credit Agreement and all Contractual Obligations of the Borrower and
its Subsidiaries relating thereto, and (c) for working capital, Permitted Acquisitions, Permitted
Investments, general corporate and similar purposes, and other purposes permitted by the terms of
this Agreement.



Section 7.10 Additional Collateral and Guaranties. To the extent not delivered to the Administrative Agent on or before the Closing Date
(including in respect of after-acquired property and Persons that become Subsidiaries of any Loan
Party after the Closing Date), each Loan Party shall, promptly, do each of the following, unless
otherwise agreed by the Administrative Agent:



(a) deliver to the Administrative Agent such modifications to the terms of the Loan Documents
(or, to the extent applicable as determined by the Administrative Agent, such other documents), in
each case in form and substance reasonably satisfactory to the Administrative Agent and as the
Administrative Agent deems necessary or advisable in order to ensure the following:




(i) (A) each Subsidiary of any Loan Party that has entered into Guaranty
Obligations with respect to any Indebtedness of the Borrower and (B) each Wholly
Owned Subsidiary of any Loan Party shall guaranty, as primary obligor and not as
surety, the payment of the Obligations of the Borrower; and


 


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(ii) each Loan Party (including any Person required to become a Guarantor
pursuant to clause (i) above) shall effectively grant to the Administrative
Agent, for the benefit of the Secured Parties, a valid and enforceable security
interest in all of its personal property, including all of its Stock and Stock
Equivalents and other Securities, as security for the Obligations of such Loan
Party; provided, however, that, unless the Borrower and the
Administrative Agent otherwise agree, in no event shall (x) any Excluded
Foreign Subsidiary be required to guaranty the payment of any Obligation, (y) the
Loan Parties, individually or collectively, be required to pledge in excess of 66%
of the outstanding Voting Stock of any Excluded Foreign Subsidiary or (z) a security
interest be required to be granted on any property of any Excluded Foreign
Subsidiary as security for any Obligation;



(b) deliver to the Administrative Agent all documents representing all Stock, Stock
Equivalents and other Securities pledged pursuant to the documents delivered pursuant to clause
(a) above, together with undated powers or endorsements duly executed in blank;



(c) to take all other actions necessary or advisable to ensure the validity or continuing
validity of any guaranty for any Obligation or any Lien securing any Obligation, to perfect,
maintain, evidence or enforce any Lien securing any Obligation or to ensure such Liens have the
same priority as that of the Liens on similar Collateral set forth in the Loan Documents executed
on the Closing Date (or, for Collateral located outside the United States, a similar priority
acceptable to the Administrative Agent), including the filing of UCC financing statements in such
jurisdictions as may be required by the Loan Documents or applicable Requirements of Law or as the
Administrative Agent may otherwise reasonably request; and



(d) deliver to the Administrative Agent legal opinions relating to the matters described in
this Section 7.10, which opinions shall be as reasonably required by, and in form and
substance and from counsel reasonably satisfactory to, the Administrative Agent.



Section 7.11 Deposit Accounts; Securities Accounts and Cash Collateral
Accounts.



(a) Each Loan Party (other than Excluded Foreign Subsidiaries) shall (i) deposit all of its
cash in deposit accounts that are Controlled Deposit Accounts, provided, however,
that each Loan Party may maintain (x) zero-balance accounts for the purpose of managing local
disbursements, (y) payroll, withholding tax and other fiduciary accounts, and (z) escrow and
security accounts required under lease or Indebtedness arrangements permitted hereunder in
reasonable amounts and upon reasonable terms and conditions in relation to the applicable lease or
Indebtedness arrangement, (ii) deposit all of its Cash Equivalents in securities accounts that are
Controlled Securities Accounts, in each case except for cash and Cash Equivalents the aggregate
value of which does not exceed $50,000 at any time.


 


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(b) The Administrative Agent shall not have any responsibility for, or bear any risk of loss
of, any investment or income of any funds in any Cash Collateral Account. From time to time after
funds are deposited in any Cash Collateral Account, the Administrative Agent may apply funds then
held in such Cash Collateral Account to the payment of Obligations in accordance with Section
2.12. No Loan Party and no Person claiming on behalf of or through any Loan Party shall have
any right to demand payment of any funds held in any Cash Collateral Account at any time prior to
the termination of all Commitments and the payment in full of all Obligations and, in the case of
L/C Cash Collateral Accounts, the termination of all outstanding Letters of Credit.



Section 7.12 Accreditation and Licensing.



(a) Each Group Member shall (i) obtain and maintain all certificates of need, provider
numbers, supplier numbers, and permits and other licenses required to operate such Person’s
business and its business locations under applicable laws, rules, and regulations and maintain such
Person’s qualification for participation in any applicable program providing for payment or
reimbursement for services rendered by such Person except to the extent such loss or relinquishment
could not reasonably be expected to have a Material Adverse Effect, and (ii) promptly furnish or
cause to be furnished to the Agent copies of all reports and correspondence that it sends or
receives relating to any loss or revocation (or threatened loss or revocation) of any qualification
described in this Section or any other violation or possible violation of any Requirement of Law
that could reasonably be expected to have a Material Adverse Effect.



(b) Each Group Member shall (i) provide goods and services to its customers in compliance with
ethical standards, laws, rules and regulations applicable to it or any facility or location it
operates; (ii) assure that each of its employees and each employee of such facility or location has
all required licenses, credentials, approvals and other certifications to perform his or her duties
and services for such location; and (iii) maintain all permits and other licenses required to
operate its facilities and locations and conduct its business under applicable law; except to the
extent, with respect to each of clauses (i), (ii), and (iii) above, where the failure to comply,
individually or in the aggregate, has not had and could not reasonably be expected to have a
Material Adverse Effect.



(c) Borrower shall notify Administrative Agent within two (2) Business Days following the
occurrence of any of the following events: (1) the notification, through letter or otherwise, of a
potential investigation relating to any Group Member’s submission of claims to any applicable
government reimbursement program or any Private Payor; or (2) the voluntary disclosure by any Group
Member to any Governmental Authority of a potential overpayment matter involving the submission of
claims in connection with any such program or payor that in any case, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.


 


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ARTICLE VIII

NEGATIVE COVENANTS




The Borrower (and, to the extent set forth in any other Loan Document, each other Loan Party)
agrees with the Lenders, the L/C Issuers and the Administrative Agent to each of the following, as
long as any Obligation or any Commitment remains outstanding:



Section 8.1 Indebtedness. No Group Member shall, directly or indirectly, incur or otherwise remain liable with
respect to or responsible for, any Indebtedness except for the following:



(a) the Obligations;



(b) Indebtedness existing on the date hereof and set forth on Schedule 8.1, together
with any Permitted Refinancing of any Indebtedness permitted hereunder in reliance upon this
clause (b);



(c) Indebtedness consisting of (A) secured Indebtedness (other than the Obligations) and
related Guaranty Obligations of any Group Member in respect of such Indebtedness, (B) Capitalized
Lease Obligations (other than with respect to a lease entered into as part of a Sale and Leaseback
Transaction), (C) Indebtedness of any Person assumed in connection with any Permitted Acquisitions;
provided that (i) such Indebtedness is not created in anticipation of any such Acquisition,
and (ii) the amount of such Indebtedness is not increased and (D) purchase money Indebtedness, in
each case incurred by any Group Member to finance the acquisition, repair, improvement or
construction of fixed or capital assets of such Group Member, together with any Permitted
Refinancing of any Indebtedness permitted hereunder in reliance upon this Section 8.1(c);
provided that the principal amount of such Indebtedness does not exceed the lower of the
cost or fair market value of the property so acquired or built or of such repairs or improvements
financed, whether directly or through a Permitted Refinancing, with such Indebtedness (each
measured at the time such acquisition, repair, improvement or construction is made);
provided, however, that no Indebtedness in this Section 8.1(c) is secured
by Collateral on which any Lender has a Lien;



(d) Non-Recourse Indebtedness secured by real property acquired (in conjunction with a
Permitted Acquisition) or constructed after the Closing Date;



(e) Capitalized Lease Obligations arising under Sale and Leaseback Transactions permitted
hereunder in reliance upon Section 8.4(b)(ii);



(f) intercompany loans owing to any Group Member and constituting Permitted Investments of
such Group Member;



(g) obligations under Hedging Agreements entered into for the sole purpose of hedging in the
normal course of business and consistent with industry practices;



(h) Guaranty Obligations of any Group Member with respect to Indebtedness of any Group Member
(other than Indebtedness permitted hereunder in reliance upon clause (b) or (c)
above, for which Guaranty Obligations may be permitted to the extent set forth in such clauses);




(i) any unsecured Indebtedness of any Group Member; and


 


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(j) any unsecured, subordinated Indebtedness of any Group Member consisting of the issuance
and sale of debt securities; provided, however, that such Indebtedness is subject
to a subordination agreement between such Group Member, the holder and the Administrative Agent
that is satisfactory to the Administrative Agent in its reasonable discretion;



provided, however, that no Indebtedness may be incurred under clause (c), (d), (e),
(g), (h), (i) or (j) above if the incurrence of such Indebtedness, together with all other such
Indebtedness incurred in the then-current Fiscal Quarter, would cause the Borrower to
violate the Consolidated Leverage Ratio requirement of Section 5.1, calculated on a Pro Forma
Basis as of the last day of the most recent Fiscal Quarter for which Financial Statements have been
delivered hereunder, after giving effect to the incurrence of all such Indebtedness and the
application of the proceeds thereof.



Section 8.2 Liens. No Group Member shall incur, maintain or otherwise suffer to exist any Lien upon or with
respect to any of its property, whether now owned or hereafter acquired, or assign any right to
receive income or profits, except for the following:




(a) Liens created pursuant to any Loan Document;




(b) Customary Permitted Liens of Group Members;




(c) Liens existing on the date hereof and set forth on Schedule 8.2;



(d) Liens on the property of the Borrower or any of its Subsidiaries securing Indebtedness
permitted hereunder in reliance upon Section 8.1(c); provided, however,
that Liens securing such Indebtedness may attach to property of any Group Member so long as such
property is not Collateral otherwise subject to a Lien in favor of any Lender; and
provided, further, that with respect to Liens securing Indebtedness incurred
pursuant to Section 8.1(c)(D), (i) such Liens exist prior to the acquisition of, or attach
substantially simultaneously with, or within 90 days after, the acquisition, repair, improvement or
construction of, such property financed, whether directly or through a Permitted Refinancing, by
such Indebtedness and (ii) such Liens do not extend to any property of any Group Member other than
the property (and proceeds thereof) acquired or built, or the improvements or repairs, financed,
whether directly or through a Permitted Refinancing, by such Indebtedness;



(e) Liens on the property of the Borrower or any of its Subsidiaries securing Indebtedness
permitted hereunder, and liens on the Stock of a Non-Recourse Subsidiary permitted hereunder, in
each case, in reliance upon Section 8.1(b) or Section 8.1(d); provided,
however, that such Liens do not extend to any property of any Group Member other than the
property (and proceeds thereof) acquired or built or securing the Indebtedness assumed, or the
improvements or repairs, financed, whether directly or through a Permitted Refinancing, by such
Indebtedness;



(f) Liens on the property of the Borrower or any of its Subsidiaries securing the Permitted
Refinancing of any Indebtedness secured by any Lien on such property permitted hereunder in
reliance upon clause (c), (d) or (e) above without any change in the
property subject to such Liens; and


 


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(g) Liens (i) on any property of the Borrower or any of its Subsidiaries securing any of their
Indebtedness or their other liabilities; provided, however, that the aggregate
outstanding principal amount of all such Indebtedness and other liabilities shall not exceed
$10,000,000 at any time, and (ii) that do not attach to any Collateral.



Section 8.3 Investments. No Group Member shall make or maintain, directly or indirectly, any Investment except for
the following:



(a) Investments existing on the date hereof and set forth on Schedule 8.3 (the
“Existing Non-Guarantor Investments”);




(b) Investments in cash and Cash Equivalents;



(c) (i) endorsements for collection or deposit in the ordinary course of business consistent
with past practice, (ii) extensions of trade credit (other than to Affiliates of the Borrower)
arising or acquired in the ordinary course of business and (iii) Investments received in
settlements in the ordinary course of business of such extensions of trade credit;




(d) Investments made as part of a Permitted Acquisition;



(e) Investments by (i) any Loan Party in any other Loan Party, (ii) any Group Member that is
not a Loan Party in any Group Member or in any joint venture or (iii) any Loan Party in any Group
Member that is not a Loan Party or in any joint venture; provided, however, that
the aggregate outstanding amount of all Investments permitted pursuant to this clause (iii)
shall not exceed the sum of: (x) the principal amount of the Existing Non-Guarantor Investments
plus (y) $30,000,000 at any time; and provided, further, that any
Investment consisting of loans or advances to any Loan Party pursuant to clause (ii) above
shall be subordinated in full to the payment of the Obligations of such Loan Party on terms and
conditions satisfactory to the Administrative Agent; and provided, further, that no
Group Member shall become a general partner of a partnership or otherwise assume unlimited
liability for the liabilities of any joint venture.



(f) loans or advances to employees of the Borrower or any of its Subsidiaries to finance
travel, entertainment and relocation expenses and other ordinary business purposes in the ordinary
course of business as presently conducted; provided, however, that the aggregate
outstanding principal amount of all loans and advances permitted pursuant to this clause
(f) shall not exceed $1,000,000 at any time; and



(g) any Investment by the Borrower or any of its Subsidiaries not identified in clauses
(a) through (f), above; provided, however, that the aggregate basis
of all such Investments shall not exceed $10,000,000 at any time.



Section 8.4 Asset Sales. No Group Member shall Sell any of its property (other than cash) or issue shares of its own
Stock, except for the following:



(a) In each case to the extent entered into in the ordinary course of business and made to a
Person that is not an Affiliate of the Borrower, (i) Sales of Cash Equivalents,
inventory or property that has become obsolete or worn out and (ii) non-exclusive licenses of
Intellectual Property;


 


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(b) (i) a true lease or sublease of real property not constituting Indebtedness and not
entered into as part of a Sale and Leaseback Transaction and (ii) a Sale of real property acquired
after the Closing Date and that does not constitute Mortgaged Property pursuant to a Sale and
Leaseback Transaction; provided, however, that the aggregate consideration received during any
Fiscal Year from (A) all Sale and Leaseback Transactions under this clause (ii), plus (B) all Sales
under clause (f), shall not exceed 10% of Consolidated Total Assets;



(c) (i) any Sale of any property (other than (x) Mortgaged Property, and (y) their own Stock
or Stock Equivalents) by any Group Member to any other Group Member to the extent any resulting
Investment constitutes a Permitted Investment, (ii) any Restricted Payment by any Group Member
permitted pursuant to Section 8.5 and (iii) any distribution by the Borrower of the
proceeds of Restricted Payments from any other Group Member to the extent permitted in Section
8.5;



(d) (i) any Sale or issuance by any Subsidiary of the Borrower of its own Stock to any Group
Member, provided, however, that the proportion of such Stock and of each class of
such Stock (both on an outstanding and fully-diluted basis) held by the Loan Parties, taken as a
whole, does not change as a result of such Sale or issuance and (ii) to the extent necessary to
satisfy any Requirement of Law in the jurisdiction of incorporation of any Subsidiary of the
Borrower, any Sale or issuance by such Subsidiary of its own Stock constituting directors’
qualifying shares or nominal holdings;



(e) as long as no Default is continuing or would result therefrom (including with respect to
any Default under Section 9.1(h)), (i) any Sale or issuance of its own Stock by any
Non-Recourse Subsidiary for fair market value payable in cash upon such sale, or (ii) any Sale or
issuance of its own Stock by Borrower (A) for fair market value payable in cash upon such sale, or
(B) upon the exercise of options to purchase Borrower’s Stock in accordance with the terms of the
ALC Omnibus Incentive Compensation Plan; provided, however, that the aggregate
consideration received during any Fiscal Year for all such Sales under (i) above shall not exceed
$1,000,000;



(f) as long as no Default is continuing or would result therefrom, any Sale of property (other
than as part of a Sale and Leaseback Transaction) of any Group Member; provided,
however, that the aggregate consideration received during any Fiscal Year from (i) all
Sales under this clause (f), plus (ii) all Sale and Leaseback Transactions under clause (b)(ii),
shall not exceed 10% of Consolidated Total Assets; and



(g) notwithstanding any provision herein or in any Loan Document to the contrary, any Sale of
a Mortgaged Property by a Loan Party to any other Person; provided, however, that
each of the following conditions is satisfied: (i) such Sale is made on commercially reasonable
terms, as determined by the Borrower in the exercise of its reasonable business judgment, (ii) no
Default or Event of Default shall have occurred and be continuing at the time of such Sale, (iii)
at least 30 days prior to the closing of such Sale, the Borrower shall have
delivered to the Agent (A) a Mortgage on one or more additional parcels of real property of
the Borrower or another Loan Party, which shall become Mortgaged Properties hereunder
(“Replacement Mortgaged Property”), together with all necessary Mortgage Supporting
Documents relating to such Replacement Mortgaged Property, and (B) a Mortgaged Property Report for
such Replacement Mortgaged Property showing that, after giving effect to the Sale of such Mortgaged
Property and the addition of such Replacement Mortgaged Property, the Loan To Value Ratio as of the
date of such Sale shall be not more than 75%.


 


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Section 8.5 Restricted Payments. No Group Member shall directly or indirectly, declare, order, pay, make or set apart any
sum for any Restricted Payment except for the following:



(a) (i) Restricted Payments (A) by any Group Member to any Loan Party and (B) by any Group
Member that is not a Loan Party to any Group Member and (ii) dividends and distributions by any
Subsidiary of the Borrower that is not a Loan Party to any holder of its Stock, to the extent made
to all such holders ratably according to their ownership interests in such Stock;



(b) dividends and distributions declared and paid on the common Stock of any Group Member
ratably to the holders of such common Stock and payable only in common Stock of such Group Member;



(c) cash payments for the purpose of funding the redemption, purchase or other acquisition or
retirement for value by the Borrower of its common Stock (or Stock Equivalents with respect to its
common Stock) from any present or former employee, director or officer (or the assigns, estate,
heirs or current or former spouses thereof) of any Group Member upon the death, disability or
termination of employment of such employee, director or officer; provided, however,
that the amount of such cash dividends paid in any Fiscal Year shall not exceed $1,000,000 in the
aggregate; and




(d) other Restricted Payments by the Borrower in any Fiscal Year;



Provided, however, that no action that would otherwise be permitted hereunder
in reliance upon clauses (c) or (d) above shall be permitted if (A) a Default is then
continuing or would result therefrom, (B) the Consolidated Leverage Ratio, calculated on a Pro
Forma Basis as of the last day of the most recent Fiscal Quarter for which Financial Statements
have been delivered hereunder after giving effect to the Restricted Payments proposed to be made,
shall be greater than 3.50 to 1, or (C) such action is otherwise prohibited under any Loan Document
or under the terms of any Indebtedness (other than the Obligations) of any Group Member.



Section 8.6 Prepayment of Indebtedness. No Group Member shall (x) prepay, redeem, purchase, defease or otherwise satisfy prior to
the scheduled maturity thereof any Indebtedness, (y) set apart any property for such purpose,
whether directly or indirectly and whether to a sinking fund, a similar fund or otherwise, or (z)
make any payment in violation of any subordination terms of any
Indebtedness; provided, however, that each Group Member may, to the extent
otherwise permitted by the Loan Documents, do each of the following:




(a) (i) prepay the Obligations, or (ii) consummate a Permitted Refinancing;



(b) prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity
thereof (or set apart any property for such purpose) (A) in the case of any Group Member that is
not a Loan Party, any Indebtedness owing by such Group Member to any other Group Member and (B)
otherwise, any Indebtedness owing to any Loan Party;


 


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(c) make regularly scheduled or otherwise required repayments or redemptions of Indebtedness
(other than Indebtedness owing to any Affiliate of the Borrower) but only, in the case of
Subordinated Debt, to the extent permitted by the subordination provisions thereof; and



(d) prepay any other Indebtedness, other than Subordinated Debt; provided that the
Group Member determines, in good faith, that such prepayment can be made on favorable economic
terms and is in the best interests of such Group Member.



Section 8.7 Fundamental Changes. No Group Member shall (a) merge, consolidate or amalgamate with any Person, (b) acquire all
or substantially all of the Stock or Stock Equivalents of any Person or (c) acquire any brand or
all or substantially all of the assets of any Person or all or substantially all of the assets
constituting any line of business, division, branch, operating division or other unit operation of
any Person, in each case except for the following: (x) to consummate any Permitted Acquisition, (y)
the merger, consolidation or amalgamation of any Subsidiary of the Borrower into any Loan Party and
(z) the merger, consolidation or amalgamation of any Group Member for the sole purpose, and with
the sole material effect, of changing its State of organization within the United States;
provided, however, that (A) in the case of any merger, consolidation or
amalgamation involving the Borrower, the Borrower shall be the surviving Person and (B) in the case
of any merger, consolidation or amalgamation involving any other Loan Party, a Loan Party shall be
the surviving Person and all actions required to maintain the perfection of the Lien of the
Administrative Agent on the Stock or property of such Loan Party shall have been made.



Section 8.8 Change in Nature of Business. No Group Member shall carry on any business, operations or activities (whether directly,
through a joint venture, in connection with a Permitted Acquisition or otherwise) substantially
different from those carried on by the Borrower and its Subsidiaries at the date hereof and
business, operations and activities reasonably related thereto.



Section 8.9 Transactions with Affiliates. No Group Member shall, except as otherwise expressly permitted herein, enter into any other
transaction directly or indirectly with, or for the benefit of, any Affiliate of the Borrower that
is not a Loan Party (including Guaranty Obligations with respect to any
obligation of any such Affiliate), except for (a) transactions in the ordinary course of
business on a basis no less favorable to such Group Member as would be obtained in a comparable
arm’s length transaction with a Person not an Affiliate of the Borrower, (b) Restricted Payments,
the proceeds of which, if received by the Borrower, are used as required by Section 8.5 and
(c) reasonable salaries and other reasonable director or employee compensation to officers and
directors of any Group Member.


 


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Section 8.10 Third-Party Restrictions on Indebtedness, Liens, Investments or
Restricted Payments. No Group Member shall incur or otherwise suffer to exist or become effective or remain
liable on or responsible for any Contractual Obligation limiting the ability of (a) any Subsidiary
of the Borrower to make Restricted Payments to, or Investments in, or repay Indebtedness or
otherwise Sell property to, any Group Member or (b) any Group Member to incur or suffer to exist
any Lien upon any property of any Group Member, whether now owned or hereafter acquired, securing
any of its Obligations (including any “equal and ratable” clause and any similar Contractual
Obligation requiring, when a Lien is granted on any property, another Lien to be granted on such
property or any other property), except, for each of clauses (a) and (b) above, (x)
pursuant to the Loan Documents and (y) limitations on Liens (other than those securing any
Obligation) on any property whose acquisition, repair, improvement or construction is financed by
purchase money Indebtedness, Capitalized Lease Obligations or Permitted Refinancings permitted
hereunder in reliance upon Section 8.1(b) or (c) set forth in the Contractual
Obligations governing such Indebtedness, Capitalized Lease Obligations or Permitted Refinancing or
Guaranty Obligations with respect thereto.



Section 8.11 Modification of Certain Documents. No Group Member shall do any of the following:



(a) waive or otherwise modify any term of any Constituent Document of, or otherwise change the
capital structure of, any Group Member (including the terms of any of their outstanding Stock or
Stock Equivalents), in each case except for those modifications and waivers that (x) do not elect,
or permit the election, to treat the Stock or Stock Equivalents of any limited liability company
(or similar entity) as certificated and (y) do not materially affect the rights and privileges of
any Group Member and do not materially affect the interests of any Secured Party under the Loan
Documents or in the Collateral; and



(b) waive or otherwise modify any term of any Subordinated Debt if the effect thereof on such
Subordinated Debt is to (i) increase the interest rate, (ii) change the due dates for principal or
interest, other than to extend such dates, (iii) modify any default or event of default, other than
to delete it or make it less restrictive, (iv) add any covenant with respect thereto, (v) modify
any subordination provision, (vi) modify any redemption or prepayment provision, other than to
extend the dates therefor or to reduce the premiums payable in connection therewith or (vii)
materially increase any obligation of any Group Member or confer additional material rights to the
holder of such Subordinated Debt in a manner adverse to any Group Member or any Secured Party.



Section 8.12 Accounting Changes; Fiscal Year. No Group Member shall change its (a) accounting treatment or reporting practices, except as
required by GAAP or any Requirement of Law, or (b) its fiscal year or its method for determining
fiscal quarters or fiscal months.



Section 8.13 Margin Regulations. No Group Member shall use all or any portion of the proceeds of any credit extended
hereunder to purchase or carry margin stock (within the meaning of Regulation U of the Federal
Reserve Board) in contravention of Regulation U of the Federal Reserve Board.


 


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Section 8.14 Compliance with ERISA. No ERISA Affiliate shall cause or suffer to exist (a) any event that could result in the
imposition of a Lien with respect to any Title IV Plan or Multiemployer Plan or (b) any other ERISA
Event, that would, in the aggregate, have a Material Adverse Effect. No Group Member shall cause or
suffer to exist any event that could result in the imposition of a Lien with respect to any Benefit
Plan.



Section 8.15 Hazardous Materials. No Group Member shall cause or suffer to exist any Release of any Hazardous Material at, to
or from any real property owned, leased, subleased or otherwise operated or occupied by any Group
Member that would violate any Environmental Law, form the basis for any Environmental Liabilities
or otherwise adversely affect the value or marketability of any real property (whether or not owned
by any Group Member), other than such violations, Environmental Liabilities and effects that would
not, in the aggregate, reasonably expected to have a Material Adverse Effect.



Section 8.16 Capital Expenditures. The aggregate amount of all Consolidated Growth Capital Expenditures in any Fiscal Year
shall not exceed $35,000,000; provided, however, that any portion of such amount
that remains unused for Consolidated Growth Capital Expenditures at the end of any Fiscal Year may
be carried over and used for Consolidated Growth Capital Expenditures in the following Fiscal Year;
and provided, further, that the cumulative unused amounts may be carried over into
successive Fiscal Years, but the total unused amount carried over from any Fiscal Year to the next
for Consolidated Growth Capital Expenditures may not exceed $35,000,000.



ARTICLE IX

EVENTS OF DEFAULT




Section 9.1 Definition. Each of the following shall be an Event of Default:



(a) the Borrower shall fail to pay (i) any principal of any Loan or any L/C Reimbursement
Obligation when the same becomes due and payable or (ii) any interest on any Loan, any fee under
any Loan Document or any other Obligation (other than those set forth in clause (i) above)
and, in the case of this clause (ii), such non-payment continues for a period of 3 Business
Days after the due date therefor; or



(b) any representation, warranty or certification made or deemed made by or on behalf of any
Loan Party in any Loan Document or by or on behalf of any Loan Party (or any Responsible Officer
thereof) in connection with any Loan Document (including in any document delivered in connection
with any Loan Document) shall prove to have been incorrect in any material respect when made or
deemed made; or



(c) any Loan Party shall fail to comply with (i) any provision of Article V (Financial
Covenants), Section 6.1 (Financial Statements), 6.2(a)(i) (Other Events), 7.1 (Maintenance of
Corporate Existence), 7.9 (Application of Loan Proceeds) or Article VIII (Negative Covenants) or
(ii) any other provision of any Loan Document if, in the case of this clause (ii), such failure
shall remain unremedied for 30 days after the earlier of (A) the date on which a Responsible
Officer of the Borrower becomes aware of such failure and (B) the date on which notice thereof
shall have been given to the Borrower by the Administrative Agent or the Required Lenders; or


 


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(d) (i) any Group Member shall fail to make any payment when due (whether due because of
scheduled maturity, required prepayment provisions, acceleration, demand or otherwise) on any
Indebtedness of any Group Member (other than the Obligations or any Hedging Agreement) and, in each
case, such failure relates to Indebtedness having a principal amount of $10,000,000 or more, (ii)
any other event shall occur or condition shall exist under any Contractual Obligation relating to
any such Indebtedness, if the effect of such event or condition is to accelerate, or to permit the
acceleration of, the maturity of such Indebtedness or (iii) any such Indebtedness shall become or
be declared to be due and payable, or be required to be prepaid, redeemed, defeased or repurchased
(other than by a regularly scheduled required prepayment), prior to the stated maturity thereof; or



(e) (i) any Group Member shall generally not pay its debts as such debts become due, shall
admit in writing its inability to pay its debts generally or shall make a general assignment for
the benefit of creditors, (ii) any proceeding shall be instituted by or against any Group Member
seeking to adjudicate it a bankrupt or insolvent or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, composition of it or its debts or any
similar order, in each case under any Requirement of Law relating to bankruptcy, insolvency or
reorganization or relief of debtors or seeking the entry of an order for relief or the appointment
of a custodian, receiver, trustee, conservator, liquidating agent, liquidator, other similar
official or other official with similar powers, in each case for it or for any substantial part of
its property and, in the case of any such proceedings instituted against (but not by or with the
consent of) any Group Member, either such proceedings shall remain undismissed or unstayed for a
period of 60 days or more or any action sought in such proceedings shall occur or (iii) any Group
Member shall take any corporate or similar action or any other action to authorize any action
described in clause (i) or (ii) above; or



(f) one or more judgments, orders or decrees (or other similar process) shall be rendered
against any Group Member (i)(A) in the case of money judgments, orders and decrees, involving an
aggregate amount (excluding amounts adequately covered by insurance payable to any Group Member, to
the extent the relevant insurer has not denied coverage therefor) in excess of $10,000,000 or (B)
otherwise, that would have, in the aggregate, a Material Adverse Effect and (ii)(A) enforcement
proceedings shall have been commenced by any creditor upon any such judgment, order or decree or
(B) such judgment, order or decree shall not have been vacated or discharged for a period of 30
consecutive days and there shall not be in effect (by reason of a pending appeal or otherwise) any
stay of enforcement thereof; or



(g) except pursuant to a valid, binding and enforceable termination or release permitted under
the Loan Documents and executed by the Administrative Agent or as otherwise expressly permitted
under any Loan Document, (i) any provision of any Loan Document shall, at any time after the
delivery of such Loan Document, fail to be valid and binding on, or enforceable against, any Loan
Party party thereto or (ii) any Loan Document purporting to grant a Lien to secure any Obligation
shall, at any time after the delivery of such Loan Document, fail to create a valid and enforceable
Lien on any Collateral purported to be covered thereby or such Lien shall fail or cease to be a
perfected Lien with the priority required in the relevant Loan Document or, or any Group Member
shall state in writing that any of the events described in clause (i) or (ii) above
shall have occurred; or




(h) there shall occur any Change of Control.


 


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Section 9.2 Remedies. During the continuance of any Event of Default, the Administrative Agent may, and, at the
request of the Required Lenders, shall, in each case by notice to the Borrower and in addition to
any other right or remedy provided under any Loan Document or by any applicable Requirement of Law,
do each of the following: (a) declare all or any portion of the Commitments terminated, whereupon
the Commitments shall immediately be reduced by such portion or, in the case of a termination in
whole, shall terminate together with any obligation any Lender may have hereunder to make any Loan
and any L/C Issuer may have hereunder to Issue any Letter of Credit or (b) declare immediately due
and payable all or part of any Obligation (including any accrued but unpaid interest thereon),
whereupon the same shall become immediately due and payable, without presentment, demand, protest
or further notice or other requirements of any kind, all of which are hereby expressly waived by
the Borrower (and, to the extent provided in any other Loan Document, other Loan Parties);
provided, however, that, effective immediately upon the occurrence of the Events of
Default specified in Section 9.1(e)(ii), (x) the Commitments of each Lender to make Loans
and the commitment of each L/C Issuer to Issue Letters of Credit shall each automatically be
terminated and (y) each Obligation (including in each case any accrued all accrued but unpaid
interest thereon) shall automatically become and be due and payable, without presentment, demand,
protest or further notice or other requirement of any kind, all of which are hereby expressly
waived by the Borrower (and, to the extent provided in any other Loan Document, any other Loan
Party).




Section 9.3 Actions in Respect of Letters of Credit. At any time (i) upon the Revolving Credit Termination Date, (ii) after the Revolving Credit
Termination Date when the aggregate funds on deposit in L/C Cash Collateral Accounts shall be less
than 105% of the L/C Obligations for all Letters of Credit at such time and (iii) as required by
Section 2.12, the Borrower shall pay to the Administrative Agent in immediately available
funds at the Administrative Agent’s office referred to in Section 11.11, for deposit in a
L/C Cash Collateral Account, the amount required so that, after such payment, the aggregate funds
on deposit in the L/C Cash Collateral Accounts equals or exceeds 105% of the L/C Obligations for
all Letters of Credit at such time (not to exceed, in the case of clause (iii) above, the
payment to be applied pursuant to Section 2.12 to provide cash collateral for Letters of
Credit).



ARTICLE X

THE ADMINISTRATIVE AGENT




Section 10.1 Appointment and Duties.



(a) Appointment of Administrative Agent. Each Lender and each L/C Issuer hereby appoints U.S.
Bank (together with any successor Administrative Agent pursuant to Section 10.9) as the
Administrative Agent hereunder and authorizes the Administrative Agent to (i) execute and deliver
the Loan Documents and accept delivery thereof on its behalf from any Group Member, (ii) take such
action on its behalf and to exercise all rights, powers and remedies and perform the duties as are
expressly delegated to the Administrative Agent under such Loan Documents and (iii) exercise such
powers as are reasonably incidental thereto.


 


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(b) Duties as Collateral and Disbursing Agent. Without limiting the generality of
clause (a) above, the Administrative Agent shall have the sole and exclusive right and
authority (to the exclusion of the Lenders and L/C Issuers), and is hereby authorized, to (i) act
as the disbursing and collecting agent for the Lenders and the L/C Issuers with respect to all
payments and collections arising in connection with the Loan Documents (including in any proceeding
described in Section 9.1(e)(ii) or any other bankruptcy, insolvency or similar proceeding),
and each Person making any payment in connection with any Loan Document to any Secured Party is
hereby authorized to make such payment to the Administrative Agent, (ii) file and prove claims and
file other documents necessary or desirable to allow the claims of the Secured Parties with respect
to any Obligation in any proceeding described in Section 9.1(e)(ii) or any other
bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf
of such Secured Party), (iii) act as collateral agent for each Secured Party for purposes of the
perfection of all Liens created by such agreements and all other purposes stated therein, (iv)
manage, supervise and otherwise deal with the Collateral, (v) take such other action as is
necessary or desirable to maintain the perfection and priority of the Liens created or purported to
be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document,
exercise all remedies given to the Administrative Agent and the other Secured Parties with respect
to the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise
and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender
that has consented in writing to such amendment,
consent or waiver; provided, however, that the Administrative Agent hereby
appoints, authorizes and directs each Lender and L/C Issuer to act as collateral sub-agent for the
Administrative Agent, the Lenders and the L/C Issuers for purposes of the perfection of all Liens
with respect to the Collateral, including any deposit account maintained by a Loan Party with, and
cash and Cash Equivalents held by, such Lender or L/C Issuer, and may further authorize and direct
the Lenders and the L/C Issuers to take further actions as collateral sub-agents for purposes of
enforcing such Liens or otherwise to transfer the Collateral subject thereto to the Administrative
Agent, and each Lender and L/C Issuer hereby agrees to take such further actions to the extent, and
only to the extent, so authorized and directed.



(c) Limited Duties. Under the Loan Documents, the Administrative Agent (i) is acting
solely on behalf of the Lenders and the L/C Issuers (except to the limited extent provided in
Section 2.14(b) with respect to the Register and in Section 10.11), with duties that are
entirely administrative in nature, notwithstanding the use of the defined term “Administrative
Agent”, the terms “agent”, “administrative agent” and “collateral agent” and similar terms in any
Loan Document to refer to the Administrative Agent, which terms are used for title purposes only,
(ii) is not assuming any obligation under any Loan Document other than as expressly set forth
therein or any role as agent, fiduciary or trustee of or for any Lender, L/C Issuer or any other
Secured Party and (iii) shall have no implied functions, responsibilities, duties, obligations or
other liabilities under any Loan Document, and each Lender and L/C Issuer hereby waives and agrees
not to assert any claim against the Administrative Agent based on the roles, duties and legal
relationships expressly disclaimed in clauses (i) through (iii) above.


 


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Section 10.2 Binding Effect. Each Lender and each L/C Issuer agrees that (i) any action taken by the Administrative
Agent or the Required Lenders (or, if expressly required hereby, a greater proportion of the
Lenders) in accordance with the provisions of the Loan Documents, (ii) any action taken by the
Administrative Agent in reliance upon the instructions of Required Lenders (or, where so required,
such greater proportion) and (iii) the exercise by the Administrative Agent or the Required Lenders
(or, where so required, such greater proportion) of the powers set forth herein or therein,
together with such other powers as are reasonably incidental thereto, shall be authorized and
binding upon all of the Secured Parties.



Section 10.3 Use of Discretion.



(a) No Action without Instructions. The Administrative Agent shall not be required to
exercise any discretion or take, or to omit to take, any action, including with respect to
enforcement or collection, except any action it is required to take or omit to take (i) under any
Loan Document or (ii) pursuant to instructions from the Required Lenders (or, where expressly
required by the terms of this Agreement, a greater proportion of the Lenders).



(b) Right Not to Follow Certain Instructions. Notwithstanding clause (a)
above, the Administrative Agent shall not be required to take, or to omit to take, any action (i)
unless, upon demand, the Administrative Agent receives an indemnification satisfactory to it
from the Lenders (or, to the extent applicable and acceptable to the Administrative Agent, any
other Secured Party) against all Liabilities that, by reason of such action or omission, may be
imposed on, incurred by or asserted against the Administrative Agent or any Related Person thereof
or (ii) that is, in the opinion of the Administrative Agent or its counsel, contrary to any Loan
Document or applicable Requirement of Law.



Section 10.4 Delegation of Rights and Duties. The Administrative Agent may, upon any term or condition it specifies, delegate or exercise
any of its rights, powers and remedies under, and delegate or perform any of its duties or any
other action with respect to, any Loan Document by or through any trustee, co-agent, employee,
attorney-in-fact and any other Person (including any Secured Party). Any such Person shall benefit
from this Article X to the extent provided by the Administrative Agent.



Section 10.5 Reliance and Liability.



(a) The Administrative Agent may, without incurring any liability hereunder, (i) treat the
payee of any Note as its holder until such Note has been assigned in accordance with Section
11.2(e), (ii) rely on the Register to the extent set forth in Section 2.14, (iii)
consult with any of its Related Persons and, whether or not selected by it, any other advisors,
accountants and other experts (including advisors to, and accountants and experts engaged by, any
Loan Party) and (iv) rely and act upon any document and information (including those transmitted by
Electronic Transmission) and any telephone message or conversation, in each case believed by it to
be genuine and transmitted, signed or otherwise authenticated by the appropriate parties.


 


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(b) None of the Administrative Agent and its Related Persons shall be liable for any action
taken or omitted to be taken by any of them under or in connection with any Loan Document, and each
Lender, L/C Issuer and the Borrower hereby waive and shall not assert (and the Borrower shall cause
each other Loan Party to waive and agree not to assert) any right, claim or cause of action based
thereon, except to the extent of liabilities resulting primarily from the gross negligence or
willful misconduct of the Administrative Agent or, as the case may be, such Related Person (each as
determined in a final, non-appealable judgment by a court of competent jurisdiction) in connection
with the duties expressly set forth herein. Without limiting the foregoing, the Administrative
Agent:




(i) shall not be responsible or otherwise incur liability for any action or
omission taken in reliance upon the instructions of the Required Lenders or for the
actions or omissions of any of its Related Persons selected with reasonable care
(other than employees, officers and directors of the Administrative Agent, when
acting on behalf of the Administrative Agent);




(ii) shall not be responsible to any Secured Party for the due execution,
legality, validity, enforceability, effectiveness, genuineness, sufficiency or value
of, or the attachment, perfection or priority of any Lien
created or purported to be created under or in connection with, any Loan
Document;




(iii) makes no warranty or representation, and shall not be responsible, to any
Secured Party for any statement, document, information, representation or warranty
made or furnished by or on behalf of any Related Person, in or in connection with
any Loan Document or any transaction contemplated therein, whether or not
transmitted by the Administrative Agent, including as to completeness, accuracy,
scope or adequacy thereof, or for the scope, nature or results of any due diligence
performed by the Administrative Agent in connection with the Loan Documents; and




(iv) shall not have any duty to ascertain or to inquire as to the performance
or observance of any provision of any Loan Document, whether any condition set forth
in any Loan Document is satisfied or waived, as to the financial condition of any
Loan Party or as to the existence or continuation or possible occurrence or
continuation of any Default or Event of Default and shall not be deemed to have
notice or knowledge of such occurrence or continuation unless it has received a
notice from the Borrower, any Lender or L/C Issuer describing such Default or Event
of Default clearly labeled “notice of default” (in which case the Administrative
Agent shall promptly give notice of such receipt to all Lenders); and, for each of
the items set forth in clauses (i) through (iv) above, each Lender,
L/C Issuer and the Borrower hereby waives and agrees not to assert (and the Borrower
shall cause each other Loan Party to waive and agree not to assert) any right, claim
or cause of action it might have against the Administrative Agent based thereon.


 


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Section 10.6 Administrative Agent Individually. The Administrative Agent and its Affiliates may make loans and other extensions of credit
to, acquire Stock and Stock Equivalents of, engage in any kind of business with, any Loan Party or
Affiliate thereof as though it were not acting the Administrative Agent and may receive separate
fees and other payments therefor. To the extent the Administrative Agent or any of its Affiliates
makes any Loan or otherwise becomes a Lender hereunder, it shall have and may exercise the same
rights and powers hereunder and shall be subject to the same obligations and liabilities as any
other Lender and the terms “Lender”, “Revolving Credit Lender” and “Required Lender” and any
similar terms shall, except where otherwise expressly provided in any Loan Document, include,
without limitation, the Administrative Agent or such Affiliate, as the case may be, in its
individual capacity as Lender, Revolving Credit Lender or as one of the Required Lenders.



Section 10.7 Lender Credit Decision. Each Lender and each L/C Issuer acknowledges that it shall, independently and without
reliance upon the Administrative Agent, any Lender or L/C Issuer or any of their Related Persons or
upon any document (including the Disclosure Documents) solely
or in part because such document was transmitted by the Administrative Agent or any of its
Related Persons, conduct its own independent investigation of the financial condition and affairs
of each Loan Party and make and continue to make its own credit decisions in connection with
entering into, and taking or not taking any action under, any Loan Document or with respect to any
transaction contemplated in any Loan Document, in each case based on such documents and information
as it shall deem appropriate.



Section 10.8 Expenses; Indemnities.



(a) Each Lender agrees to reimburse the Administrative Agent and each of its Related Persons
(to the extent not reimbursed by any Loan Party) promptly upon demand for such Lender’s Pro Rata
Share with respect to the Facility of any costs and expenses (including fees, charges and
disbursements of financial, legal and other advisors and Other Taxes paid in the name of, or on
behalf of, any Loan Party) that may be incurred by the Administrative Agent or any of its Related
Persons in connection with the preparation, syndication, execution, delivery, administration,
modification, consent, waiver or enforcement (whether through negotiations, through any work-out,
bankruptcy, restructuring or other legal or other proceeding or otherwise) of, or legal advice in
respect of its rights or responsibilities under, any Loan Document.



(b) Each Lender further agrees to indemnify the Administrative Agent and each of its Related
Persons (to the extent not reimbursed by any Loan Party), from and against such Lender’s aggregate
Pro Rata Share with respect to the Facility of the Liabilities (including taxes, interests and
penalties imposed for not properly withholding or backup withholding on payments made to on or for
the account of any Lender) that may be imposed on, incurred by or asserted against the
Administrative Agent or any of its Related Persons in any matter relating to or arising out of, in
connection with or as a result of any Loan Document or any other act, event or transaction related,
contemplated in or attendant to any such document, or, in each case, any action taken or omitted to
be taken by the Administrative Agent or any of its Related Persons under or with respect to any of
the foregoing; provided, however, that no Lender shall be liable to the
Administrative Agent or any of its Related Persons to the extent such liability has resulted
primarily from the gross negligence or willful misconduct of the Administrative Agent or, as the
case may be, such Related Person, as determined by a court of competent jurisdiction in a final
non-appealable judgment or order.


 


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Section 10.9 Resignation of Administrative Agent or L/C Issuer.



(a) The Administrative Agent may resign at any time by delivering notice of such resignation
to the Lenders and the Borrower, effective on the date set forth in such notice or, if not such
date is set forth therein, upon the date such notice shall be effective. If the Administrative
Agent delivers any such notice, the Required Lenders shall have the right to appoint a successor
Administrative Agent. If, within 30 days after the retiring Administrative Agent having given
notice of resignation, no successor Administrative Agent has been appointed by the Required Lenders
that has accepted such appointment, then the retiring Administrative
Agent may, on behalf of the Lenders, appoint a successor Administrative Agent from among the
Lenders. Each appointment under this clause (a) shall be subject to the prior consent of
the Borrower, which may not be unreasonably withheld but shall not be required during the
continuance of a Default.



(b) Effective immediately upon its resignation, (i) the retiring Administrative Agent shall be
discharged from its duties and obligations under the Loan Documents, (ii) the Lenders shall assume
and perform all of the duties of the Administrative Agent until a successor Administrative Agent
shall have accepted a valid appointment hereunder, (iii) the retiring Administrative Agent and its
Related Persons shall no longer have the benefit of any provision of any Loan Document other than
with respect to any actions taken or omitted to be taken while such retiring Administrative Agent
was, or because such Administrative Agent had been, validly acting as Administrative Agent under
the Loan Documents and (iv) subject to its rights under Section 10.3, the retiring
Administrative Agent shall take such action as may be reasonably necessary to assign to the
successor Administrative Agent its rights as Administrative Agent under the Loan Documents.
Effective immediately upon its acceptance of a valid appointment as Administrative Agent, a
successor Administrative Agent shall succeed to, and become vested with, all the rights, powers,
privileges and duties of the retiring Administrative Agent under the Loan Documents.



(c) Any L/C Issuer may resign at any time by delivering notice of such resignation to the
Administrative Agent, effective on the date set forth in such notice or, if no such date is set
forth therein, on the date such notice shall be effective. Upon such resignation, the L/C Issuer
shall remain an L/C Issuer and shall retain its rights and obligations in its capacity as such
(other than any obligation to Issue Letters of Credit but including the right to receive fees or to
have Lenders participate in any L/C Reimbursement Obligation thereof) with respect to Letters of
Credit issued by such L/C Issuer prior to the date of such resignation and shall otherwise be
discharged from all other duties and obligations under the Loan Documents.


 


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(d) If the Administrative Agent is a Defaulting Lender, the Administrative Agent shall be
removed as Administrative Agent hereunder at the request of the Borrower, without the need for any
further action by the parties hereto or to any of the Loan Documents. The Required Lenders that
are not such Administrative Agent or affiliated with such Administrative Agent shall within thirty
(30) days thereafter appoint another Person to act as Administrative Agent (such successor
Administrative Agent shall, if appointed by such Required Lenders, be subject to the consent of the
Borrower, which consent shall not be unreasonably withheld or delayed, and which consent shall not
be required during any period in which a Default or an Event of Default exists (provided that the
successor Administrative Agent is then a Lender or is a commercial bank organized or licensed under
the laws of the United States or of any state thereof and has a combined capital and surplus of at
least $5,000,000,000)), and such successor Administrative Agent shall succeed to the rights, powers
and duties of the Administrative Agent and the term “Administrative Agent” shall mean such
successor effective upon its appointment, and the former Administrative Agent’s rights, powers and
duties as the Administrative Agent shall be terminated without any other or further act or deed on
the part of such former Administrative Agent or any of the parties to this Agreement. After the
removal of any Administrative Agent as Administrative Agent hereunder, the provisions of this
Article X
shall inure to the benefit of such former Administrative Agent (including without limitation
Section 10.8) and such former Administrative Agent shall not by reason of such removal be deemed to
be released from liability for any breach of contract, gross negligence or willful misconduct by it
while it was the Administrative Agent under this Agreement.



Section 10.10 Release of Collateral or Guarantors. Each Lender and L/C Issuer hereby consents to the release and hereby directs the
Administrative Agent to release (or, in the case of clause (b)(ii) below, release or
subordinate) the following:



(a) any Subsidiary of the Borrower from its guaranty of any Obligation of any Loan Party if
all of the Securities of such Subsidiary owned by any Group Member are Sold in a Sale permitted
under the Loan Documents (including pursuant to a waiver or consent), to the extent that, after
giving effect to such Sale, such Subsidiary would not be required to guaranty any Obligations
pursuant to Section 7.10; and



(b) any Lien held by the Administrative Agent for the benefit of the Secured Parties against
(i) any Collateral that is Sold by a Loan Party in a Sale permitted by the Loan Documents
(including pursuant to a valid waiver or consent), to the extent all Liens required to be granted
in such Collateral pursuant to Section 7.10 after giving effect to such Sale have been
granted, (ii) any property subject to a Lien permitted hereunder in reliance upon Section
8.2(d) or (e) and (iii) all of the Collateral and all Loan Parties, upon (A)
termination of the Commitments, (B) payment and satisfaction in full of all Loans, all L/C
Reimbursement Obligations and all other Obligations that the Administrative Agent has been notified
in writing are then due and payable, (C) deposit of cash collateral with respect to all contingent
Obligations (or, in the case of any L/C Obligation, a back-up letter of credit has been issued), in
amounts and on terms and conditions and with parties satisfactory to the Administrative Agent and
each Indemnitee that is owed such Obligations and (D) to the extent requested by the Administrative
Agent, receipt by the Secured Parties of liability releases from the Loan Parties each in form and
substance acceptable to the Administrative Agent.



Each Lender and L/C Issuer hereby directs the Administrative Agent, and the Administrative
Agent hereby agrees, upon receipt of reasonable advance notice from the Borrower, to execute and
deliver or file such documents and to perform other actions reasonably necessary to release the
guaranties and Liens when and as directed in this Section 10.10.


 


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Section 10.11 Additional Secured Parties. The benefit of the provisions of the Loan Documents directly relating to the Collateral or
any Lien granted thereunder shall extend to and be available to any Secured Party that is not a
Lender or L/C Issuer as long as, by accepting such benefits, such Secured Party agrees, as among
the Administrative Agent and all other Secured Parties, that such Secured Party is bound by (and,
if requested by the Administrative Agent, shall confirm such agreement in a writing in form and
substance acceptable to the Administrative Agent) this Article X, Section 11.8
(Right of Setoff), Section 11.9 (Sharing of Payments) and Section
11.20 (Confidentiality) and the decisions and actions of the Administrative Agent and
the Required
Lenders (or, where expressly required by the terms of this Agreement, a greater proportion of
the Lenders) to the same extent a Lender is bound; provided, however, that,
notwithstanding the foregoing, (a) such Secured Party shall be bound by Section 10.8 only
to the extent of Liabilities, costs and expenses with respect to or otherwise relating to the
Collateral held for the benefit of such Secured Party, in which case the obligations of such
Secured Party thereunder shall not be limited by any concept of Pro Rata Share or similar concept,
(b) each of the Administrative Agent, the Lenders and the L/C Issuers shall be entitled to act at
its sole discretion, without regard to the interest of such Secured Party, regardless of whether
any Obligation to such Secured Party thereafter remains outstanding, is deprived of the benefit of
the Collateral, becomes unsecured or is otherwise affected or put in jeopardy thereby, and without
any duty or liability to such Secured Party or any such Obligation and (c) such Secured Party shall
not have any right to be notified of, consent to, direct, require or be heard with respect to, any
action taken or omitted in respect of the Collateral or under any Loan Document.



ARTICLE XI

MISCELLANEOUS




Section 11.1 Amendments, Waivers, Etc.



(a) No amendment or waiver of any provision of any Loan Document (other than the Fee Letter,
the Control Agreements, the L/C Reimbursement Agreements and the Secured Hedging Agreements, the
amendment of which shall be determined by the terms thereof) and no consent to any departure by any
Loan Party therefrom shall be effective unless the same shall be in writing and signed (1) in the
case of an amendment, consent or waiver to cure any ambiguity, omission, defect or inconsistency or
granting a new Lien for the benefit of the Secured Parties or extending an existing Lien over
additional property, by the Administrative Agent and the Borrower, (2) in the case of any other
waiver or consent, by the Required Lenders (or by the Administrative Agent with the consent of the
Required Lenders) and (3) in the case of any other amendment, by the Required Lenders (or by the
Administrative Agent with the consent of the Required Lenders) and the Borrower; provided,
however, that no amendment, consent or waiver described in clause (2), or
(3) above shall, unless in writing and signed by each Lender directly affected thereby (or
by the Administrative Agent with the consent of such Lender), in addition to any other Person the
signature of which is otherwise required pursuant to any Loan Document, do any of the following:




(i) waive any condition specified in Section 3.1, except any condition
referring to any other provision of any Loan Document;


 


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(ii) increase the Commitment of such Lender or subject such Lender to any
additional obligation;




(iii) reduce (including through release, forgiveness, assignment or otherwise)
(A) the principal amount of, the interest rate on, or any obligation of the Borrower
to repay (whether or not on a fixed date), any outstanding Loan owing to such
Lender, (B) any fee or accrued interest payable to such Lender or
(C) if such Lender is a Revolving Credit Lender, any L/C Reimbursement
Obligation or any obligation of the Borrower to repay (whether or not on a fixed
date) any L/C Reimbursement Obligation; provided, however, that this
clause (iii) does not apply to (x) any change to any provision increasing
any interest rate or fee during the continuance of an Event of Default or to any
payment of any such increase or (y) any modification to any financial covenant set
forth in Article V or in any definition set forth therein or principally
used therein;




(iv) waive or postpone any scheduled maturity date or other scheduled date
fixed for the payment, in whole or in part, of principal of or interest on any Loan
or fee owing to such Lender or for the reduction of such Lender’s Commitment;
provided, however, that this clause (iv) does not apply to
any change to mandatory prepayments, including those required under Section
2.8, or to the application of any payment, including as set forth in Section
2.12;




(v) except as provided in Section 8.4(g) and Section 10.10,
release all or any material portion of the Collateral or any Guarantor from its
guaranty of any Obligation of the Borrower;




(vi) reduce or increase the proportion of Lenders required for the Lenders (or
any subset thereof) to take any action hereunder or change the definition of the
terms “Required Lenders”, “Pro Rata Share” or “Pro Rata Outstandings”; or




(vii) amend Section 10.10 (Release of Collateral or Guarantor), Section 11.9
(Sharing of Payments) or this Section 11.1;



and provided, further, that (x) any waiver of any payment applied pursuant to
Section 2.12(b) (Application of Mandatory Prepayments) to, and any modification of
the application of any such payment to the Loans shall require the consent of the Required Lenders,
(y) no amendment, waiver or consent shall affect the rights or duties under any Loan Document of,
or any payment to, the Administrative Agent (or otherwise modify any provision of Article X
or the application thereof), the Swingline Lender, any L/C Issuer or any SPV that has been granted
an option pursuant to Section 11.2(f) unless in writing and signed by the Administrative
Agent, the Swingline Lender, such L/C Issuer or, as the case may be, such SPV in addition to any
signature otherwise required and (z) the consent of the Borrower shall not be required to change
any order of priority set forth in Section 2.12.


 


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(b) Each waiver or consent under any Loan Document shall be effective only in the specific
instance and for the specific purpose for which it was given. No notice to or demand on any Loan
Party shall entitle any Loan Party to any notice or demand in the same, similar or other
circumstances. No failure on the part of any Secured Party to exercise, and no delay in exercising,
any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right preclude any other or further exercise thereof or the exercise of any other right.




Section 11.2 Assignments and Participations; Binding Effect.



(a) Binding Effect. This Agreement shall become effective when it shall have been
executed by the Borrower and the Administrative Agent and when the Administrative Agent shall have
been notified by each Lender and L/C Issuer that such Lender or L/C Issuer has executed it.
Thereafter, it shall be binding upon and inure to the benefit of, but only to the benefit of the
Borrower (in each case except for Article X), the Administrative Agent, each Lender and L/C
Issuer and, to the extent provided in Section 10.11, each other Indemnitee and Secured
Party and, in each case, their respective successors and permitted assigns. Except as expressly
provided in any Loan Document (including in Section 10.9), none of the Borrower, any L/C
Issuer or the Administrative Agent shall have the right to assign any rights or obligations
hereunder or any interest herein.



(b) Right to Assign. Each Lender may sell, transfer, negotiate or assign all or a
portion of its rights and obligations hereunder (including all or a portion of its Commitments and
its rights and obligations with respect to Loans and Letters of Credit) to any of the following
Persons (each an “Eligible Assignee”) (i) any existing Lender, (ii) any Affiliate or
Approved Fund of any existing Lender or (iii) any other Person acceptable (which acceptance shall
not be unreasonably withheld or delayed) to the Administrative Agent and, as long as no Event of
Default is continuing, the Borrower; provided, however, that (x) such Sales must be
ratable among the obligations owing to and owed by such Lender with respect to the Facility and (y)
the aggregate outstanding principal amount (determined as of the effective date of the applicable
Assignment) of the Loans, Commitments and L/C Obligations subject to any such Sale shall be an
integral multiple of $1,000,000, unless such Sale is made to an existing Lender or an Affiliate or
Approved Fund of any existing Lender, is of the assignor’s (together with its Affiliates and
Approved Funds) entire interest in such Facility or is made with the prior consent of the Borrower
and the Administrative Agent.



(c) Procedure. The parties to each Sale made in reliance on clause (b) above
(other than those described in clause (e) or (f) below) shall execute and deliver
to the Administrative Agent (which shall keep a copy thereof) an Assignment, together with any
existing Note subject to such Sale (or any affidavit of loss therefor acceptable to the
Administrative Agent), any tax forms required to be delivered pursuant to Section 2.17(f)
and payment by the assignee of an assignment fee in the amount of $3,500. Upon receipt of all the
foregoing, and conditioned upon such receipt and upon the Administrative Agent consenting to such
Assignment, from and after the effective date specified in such Assignment, the Administrative
Agent shall record or cause to be recorded in the Register the information contained in such
Assignment.


 


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(d) Effectiveness. Effective upon the entry of such record in the Register, (i) such
assignee shall become a party hereto and, to the extent that rights and obligations under the Loan
Documents have been assigned to such assignee pursuant to such Assignment, shall have the rights
and obligations of a Lender, (ii) any applicable Note shall be transferred to such assignee through
such entry and (iii) the assignor thereunder shall, to the extent that rights and obligations under
this Agreement have been assigned by it pursuant to such Assignment, relinquish its rights (except
for those surviving the termination of the Commitments and the
payment in full of the Obligations) and be released from its obligations under the Loan
Documents, other than those relating to events or circumstances occurring prior to such assignment
(and, in the case of an Assignment covering all or the remaining portion of an assigning Lender’s
rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto
except that each Lender agrees to remain bound by Article X, Section 11.8
(Right of Setoff) and Section 11.9 (Sharing of Payments) to the extent
provided in Section 10.11 (Additional Beneficiaries of Collateral)).



(e) Grant of Security Interests. In addition to the other rights provided in this
Section 11.2, each Lender may grant a security interest in, or otherwise assign as
collateral, any of its rights under this Agreement, whether now owned or hereafter acquired
(including rights to payments of principal or interest on the Loans), to (A) any federal reserve
bank (pursuant to Regulation A of the Federal Reserve Board), without notice to the Administrative
Agent or (B) any holder of, or trustee for the benefit of the holders of, such Lender’s Securities
by notice to the Administrative Agent; provided, however, that no such holder or
trustee, whether because of such grant or assignment or any foreclosure thereon (unless such
foreclosure is made through an assignment in accordance with clause (b) above), shall be
entitled to any rights of such Lender hereunder and no such Lender shall be relieved of any of its
obligations hereunder.



(f) Participants and SPVs. In addition to the other rights provided in this
Section 11.2, each Lender may, (x) with notice to the Administrative Agent, grant to an SPV
the option to make all or any part of any Loan that such Lender would otherwise be required to make
hereunder (and the exercise of such option by such SPV and the making of Loans pursuant thereto
shall satisfy the obligation of such Lender to make such Loans hereunder) and such SPV may assign
to such Lender the right to receive payment with respect to any Obligation and (y) without notice
to or consent from the Administrative Agent or the Borrower, sell participations to one or more
Persons in or to all or a portion of its rights and obligations under the Loan Documents (including
all its rights and obligations with respect to the Revolving Loans and Letters of Credit);
provided, however, that, whether as a result of any term of any Loan Document or of
such grant or participation, (i) no such SPV or participant shall have a commitment, or be deemed
to have made an offer to commit, to make Loans hereunder, and, except as provided in the applicable
option agreement, none shall be liable for any obligation of such Lender hereunder, (ii) such
Lender’s rights and obligations, and the rights and obligations of the Loan Parties and the Secured
Parties towards such Lender, under any Loan Document shall remain unchanged and each other party
hereto shall continue to deal solely with such Lender, which shall remain the holder of the
Obligations in the Register, except that (A) each such participant and SPV shall be entitled to the
benefit of Sections 2.16 (Breakage Costs; Increased Costs; Capital Requirements)
and 2.17 (Taxes), but


 


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only to the extent such participant or SPV delivers the tax
forms such Lender is required to collect pursuant to  Section 2.17(f) and  then only to the
extent of any amount to which such Lender would be entitled in the absence of any such grant or
participation and (B) each such SPV may receive other payments that would otherwise be made to such
Lender with respect to Loans funded by such SPV to the extent provided in the applicable option
agreement and set forth in a notice provided to the Administrative Agent by such SPV and such
Lender, provided, however, that in no case (including pursuant to clause
(A) or (B) above) shall an SPV or participant have the right to enforce any of the
terms of any Loan Document, and (iii) the consent of such SPV or participant
shall not be required (either directly, as a restraint on such Lender’s ability to consent
hereunder or otherwise) for any amendments, waivers or consents with respect to any Loan Document
or to exercise or refrain from exercising any powers or rights such Lender may have under or in
respect of the Loan Documents (including the right to enforce or direct enforcement of the
Obligations), except for those described in clauses (iii) and (iv) of Section
11.1(a) with respect to amounts, or dates fixed for payment of amounts, to which such
participant or SPV would otherwise be entitled and, in the case of participants, except for those
described in Section 11.1(a)(v) (or amendments, consents and waivers with respect to
Section 10.10 to release all or substantially all of the Collateral). No party hereto shall
institute against any SPV grantee of an option pursuant to this clause (f) any bankruptcy,
reorganization, insolvency, liquidation or similar proceeding, prior to the date that is one year
and one day after the payment in full of all outstanding commercial paper of such SPV; provided,
however, that each Lender having designated an SPV as such agrees to indemnify each Indemnitee
against any Liability that may be incurred by, or asserted against, such Indemnitee as a result of
failing to institute such proceeding (including a failure to get reimbursed by such SPV for any
such Liability). The agreement in the preceding sentence shall survive the termination of the
Commitments and the payment in full of the Obligations.



Section 11.3 Costs and Expenses. Any action taken by any Loan Party under or with respect to any Loan Document, even if
required under any Loan Document or at the request of any Secured Party, shall be at the expense of
such Loan Party, and no Secured Party shall be required under any Loan Document to reimburse any
Loan Party or Group Member therefor except as expressly provided therein. In addition, the Borrower
agrees to pay or reimburse upon demand (a) the Administrative Agent for all reasonable
out-of-pocket costs and expenses incurred by it or any of its Related Persons in connection with
the investigation, development, preparation, negotiation, syndication, execution, interpretation or
administration of, any modification of any term of or termination of, any Loan Document, any
commitment or proposal letter therefor, any other document prepared in connection therewith or the
consummation and administration of any transaction contemplated therein (including periodic audits
in connection therewith and environmental audits and assessments), in each case including the
reasonable fees, charges and disbursements of legal counsel to the Administrative Agent or such
Related Persons, fees, costs and expenses incurred in connection with DebtX or any other E-System
and allocated to the Facility by the Administrative Agent in its sole discretion and fees, charges
and disbursements of the auditors, appraisers, printers and other of their Related Persons retained
by or on behalf of any of them or any of their Related Persons, (b) the Administrative Agent for
all reasonable costs and expenses incurred by it or any of its Related Persons in connection with
internal audit reviews, field examinations and Collateral examinations (which shall be reimbursed,
in addition to the out-of-pocket costs and expenses of such examiners, at the per diem rate per
individual charged by the Administrative Agent for its examiners) and (c) each of the
Administrative Agent, its Related Persons, and each Lender and L/C Issuer for all costs and
expenses incurred in connection with (i) any refinancing or restructuring of the credit
arrangements provided hereunder in the nature of a “work-out”, (ii) the enforcement or preservation
of any right or remedy under any Loan Document, any Obligation, with respect to the Collateral or
any other related right or remedy or (iii) the commencement, defense, conduct of, intervention in,
or the
taking of any other action with respect to, any proceeding (including any bankruptcy or
insolvency proceeding) related to any Group Member, Loan Document or Obligation (or the response to
and preparation for any subpoena or request for document production relating thereto), including
fees and disbursements of counsel (including allocated costs of internal counsel).


 


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Section 11.4 Indemnities.



(a) The Borrower agrees to indemnify, hold harmless and defend the Administrative Agent, each
Lender, each L/C Issuer, each Person (other than the Borrower) party to a Secured Hedging
Agreement, each Person that each L/C Issuer causes to Issue Letters of Credit hereunder and each of
their respective Related Persons (each such Person being an “Indemnitee”) from and against
all Liabilities (including brokerage commissions, fees and other compensation) that may be imposed
on, incurred by or asserted against any such Indemnitee in any matter relating to or arising out
of, in connection with or as a result of (i) any Loan Document, any Disclosure Document, any
Obligation (or the repayment thereof), any Letter of Credit, the use or intended use of the
proceeds of any Loan or the use of any Letter of Credit, or any securities filing of, or with
respect to, any Group Member, (ii) any commitment letter, proposal letter or term sheet with any
Person or any Contractual Obligation, arrangement or understanding with any broker, finder or
consultant, in each case entered into by or on behalf of any Group Member or any Affiliate of any
of them in connection with any of the foregoing and any Contractual Obligation entered into in
connection with any E-Systems or other Electronic Transmissions, (iii) any actual or prospective
investigation, litigation or other proceeding, whether or not brought by any such Indemnitee or any
of its Related Persons, any holders of Securities or creditors (and including reasonable attorneys’
fees in any case), whether or not any such Indemnitee, Related Person, holder or creditor is a
party thereto, and whether or not based on any securities or commercial law or regulation or any
other Requirement of Law or theory thereof, including common law, equity, contract, tort or
otherwise, or (iv) any other act, event or transaction related, contemplated in or attendant to any
of the foregoing (collectively, the “Indemnified Matters”); provided,
however, that the Borrower shall not have any liability under this Section 11.4 to
any Indemnitee with respect to any Indemnified Matter, and no Indemnitee shall have any liability
with respect to any Indemnified Matter other than (to the extent otherwise liable), to the extent
such liability has resulted primarily from the gross negligence or willful misconduct of such
Indemnitee, as determined by a court of competent jurisdiction in a final non-appealable judgment
or order. Furthermore, the Borrower waives and agrees not to assert against any Indemnitee, and
shall cause each other Loan Party to waive and not assert against any Indemnitee, any right of
contribution with respect to any Liabilities that may be imposed on, incurred by or asserted
against any Related Person.



(b) Without limiting the foregoing, “Indemnified Matters” includes all Environmental
Liabilities, including those arising from, or otherwise involving, any property of any Related
Person or any actual, alleged or prospective damage to property or natural resources or harm or
injury alleged to have resulted from any Release of Hazardous Materials on, upon or into such
property or natural resource or any property on or contiguous to any real property of
any Related Person, whether or not, with respect to any such Environmental Liabilities, any
Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the
successor-in-interest to any Related Person or the owner, lessee or operator of any property of any
Related Person through any foreclosure action, in each case except to the extent such Environmental
Liabilities (i) are incurred solely following foreclosure by any Secured Party or following any
Secured Party having become the successor-in-interest to any Loan Party and (ii) are attributable
solely to acts of such Indemnitee.


 


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Section 11.5 Survival. Any indemnification or other protection provided to any Indemnitee pursuant to any Loan
Document (including pursuant to Section 2.17 (Taxes), Section 2.16
(Breakage Costs; Increased Costs; Capital Requirements), Article X (The
Administrative Agent), Section 11.3 (Costs and Expenses), Section 11.4
(Indemnities) or this Section 11.5) and all representations and warranties made in
any Loan Document shall (A) survive the termination of the Commitments and the payment in full of
other Obligations and (B) inure to the benefit of any Person that at any time held a right
thereunder (as an Indemnitee or otherwise) and, thereafter, its successors and permitted assigns.



Section 11.6 Limitation of Liability for Certain Damages. In no event shall any Indemnitee be liable on any theory of liability for any special,
indirect, consequential or punitive damages (including any loss of profits, business or anticipated
savings). The Borrower hereby waives, releases and agrees (and shall cause each other Loan Party to
waive, release and agree) not to sue upon any such claim for any special, indirect, consequential
or punitive damages, whether or not accrued and whether or not known or suspected to exist in its
favor.



Section 11.7 Lender-Creditor Relationship. The relationship between the Lenders, the L/C Issuers and the Administrative Agent, on the
one hand, and the Loan Parties, on the other hand, is solely that of lender and creditor. No
Secured Party has any fiduciary relationship or duty to any Loan Party arising out of or in
connection with, and there is no agency, tenancy or joint venture relationship between the Secured
Parties and the Loan Parties by virtue of, any Loan Document or any transaction contemplated
therein.



Section 11.8 Right of Setoff.



Each of the Administrative Agent, each Lender, each L/C Issuer and each Affiliate (including
each branch office thereof) of any of them is hereby authorized, without notice or demand (each of
which is hereby waived by the Borrower), at any time and from time to time during the continuance
of any Event of Default and to the fullest extent permitted by applicable Requirements of Law, to
set off and apply any and all deposits (whether general or special, time or demand, provisional or
final) at any time held and other Indebtedness, claims or
other obligations at any time owing by the Administrative Agent, such Lender, such L/C Issuer
or any of their respective Affiliates to or for the credit or the account of the Borrower against
any Obligation of any Loan Party now or hereafter existing, whether or not any demand was made
under any Loan Document with respect to such Obligation and even though such Obligation may be
unmatured. Each of the Administrative Agent, each Lender and each L/C Issuer agrees promptly to
notify the Borrower and the Administrative Agent after any such setoff and application made by such
Lender or its Affiliates; provided, however, that the failure to give such notice
shall not affect the validity of such setoff and application. The rights under this Section
11.8 are in addition to any other rights and remedies (including other rights of setoff) that
the Administrative Agent, the Lenders and the L/C Issuers and their Affiliates and other Secured
Parties may have.


 


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Section 11.9 Sharing of Payments, Etc. If any Lender, directly or through an Affiliate or branch office thereof, obtains any
payment of any Obligation of any Loan Party (whether voluntary, involuntary or through the exercise
of any right of setoff or the receipt of any Collateral or “proceeds” (as defined under the
applicable UCC) of Collateral) other than pursuant to Sections 2.16 (Breakage Costs;
Increased Costs; Capital Requirements), 2.17 (Taxes) and 2.18
(Substitution of Lenders) and such payment exceeds the amount such Lender would have been
entitled to receive if all payments had gone to, and been distributed by, the Administrative Agent
in accordance with the provisions of the Loan Documents, such Lender shall purchase for cash from
other Secured Parties such participations in their Obligations as necessary for such Lender to
share such excess payment with such Secured Parties to ensure such payment is applied as though it
had been received by the Administrative Agent and applied in accordance with this Agreement (or, if
such application would then be at the discretion of the Borrower, applied to repay the Obligations
in accordance herewith); provided, however, that (a) if such payment is rescinded
or otherwise recovered from such Lender or L/C Issuer in whole or in part, such purchase shall be
rescinded and the purchase price therefor shall be returned to such Lender or L/C Issuer without
interest and (b) such Lender shall, to the fullest extent permitted by applicable Requirements of
Law, be able to exercise all its rights of payment (including the right of setoff) with respect to
such participation as fully as if such Lender were the direct creditor of the Borrower in the
amount of such participation.



Section 11.10 Marshaling; Payments Set Aside. No Secured Party shall be under any obligation to marshal any property in favor of any Loan
Party or any other party or against or in payment of any Obligation. To the extent that any Secured
Party receives a payment from the Borrower, from the proceeds of the Collateral, from the exercise
of its rights of setoff, any enforcement action or otherwise, and such payment is subsequently, in
whole or in part, invalidated, declared to be fraudulent or preferential, set aside or required to
be repaid to a trustee, receiver or any other party, then to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied, and all Liens, rights and remedies
therefor, shall be revived and continued in full force and effect as if such payment had not
occurred.



Section 11.11 Notices.



(a) Addresses. All notices, demands, requests, directions and other communications
required or expressly authorized to be made by this Agreement shall, whether or not specified to be
in writing but unless otherwise expressly specified to be given by any other means, be given in
writing and (i) addressed to (A) if to the Borrower, to Assisted Living Concepts, Inc., W140 N8981
Lilly Road, Menomonee Falls, Wisconsin 53051, Attention: John Buono, Chief Financial Officer, Fax:
(262) 502-3714, with copy to Quarles & Brady, LLP, 411 East Wisconsin Avenue, Milwaukee, Wisconsin
53202, Attention: David L. Bourne, Tel: (414) 277-5343, Fax: (414) 978-8743, (B) if to the
Administrative Agent or the Swingline Lender, to U.S. Bank National Association, 777 East Wisconsin
Avenue, Milwaukee, Wisconsin 53202, Attention: Matthew J. Schulz, Vice President, Tel: (414)
765-5724, Fax: (414) 765-4632, with copy to Foley & Lardner LLP, 777 East Wisconsin Avenue,
Milwaukee, Wisconsin 53202, Attention: Edward J. Hammond, Tel: (414) 297-5619, Fax: (414) 297-4900
and (C) otherwise to the party to be notified at its address specified opposite its name on
Schedule II or on the signature page of any applicable Assignment, (ii) posted to DebtX (to
the extent such system is available and set up by or at the direction of the Administrative Agent
prior to posting) in an appropriate location, (iii) posted to any other E-System set up by or at
the direction of the Administrative Agent in an appropriate location or (iv) addressed to such
other address as shall be notified in writing (A) in the case of the Borrower, the Administrative
Agent and the Swingline Lender, to the other parties hereto and (B) in the case of all other
parties, to the Borrower and the Administrative Agent. Transmission by electronic mail (including
E-Fax, even if transmitted to the fax numbers set forth in clause (i) above) shall not be
sufficient or effective to transmit any such notice under this clause (a) unless such
transmission is an available means to post to any E-System.


 


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(b) Effectiveness. All communications described in clause (a) above and all
other notices, demands, requests and other communications made in connection with this Agreement
shall be effective and be deemed to have been received (i) if delivered by hand, upon personal
delivery, (ii) if delivered by overnight courier service, one Business Day after delivery to such
courier service, (iii) if delivered by mail, when deposited in the mails, (iv) if delivered by
facsimile (other than to post to an E-System pursuant to clause (a)(ii) or (a)(iii)
above), upon sender’s receipt of confirmation of proper transmission, and (v) if delivered by
posting to any E-System, on the later of the date of such posting in an appropriate location and
the date access to such posting is given to the recipient thereof in accordance with the standard
procedures applicable to such E-System; provided, however, that no communications
to the Administrative Agent pursuant to Article II or Article X shall be effective
until received by the Administrative Agent.



Section 11.12 Electronic Transmissions.



(a) Authorization. Subject to the provisions of Section 11.11(a), each of the
Administrative Agent, the Borrower, the Lenders, the L/C Issuers and each of their Related Persons
is authorized (but not required) to transmit, post or otherwise make or communicate, in its sole
discretion, Electronic Transmissions in connection with any Loan Document and the transactions
contemplated therein. The Borrower and each Secured Party hereby acknowledges and agrees, and the
Borrower shall cause each other Group Member to acknowledge and agree, that the use of Electronic
Transmissions is not necessarily secure and that there are risks associated with such use,
including risks of interception, disclosure and abuse and each indicates it assumes and accepts
such risks by hereby authorizing the transmission of Electronic Transmissions.


 


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(b) Signatures. Subject to the provisions of Section 11.11(a), (i)(A) no
posting to any E-System shall be denied legal effect merely because it is made electronically, (B)
each E-Signature on any such posting shall be deemed sufficient to satisfy any requirement for a
“signature” and (C) each such posting shall be deemed sufficient to satisfy any requirement for a
“writing”, in each case including pursuant to any Loan Document, any applicable provision of any
UCC, the federal Uniform Electronic Transactions Act, the Electronic Signatures in Global and
National Commerce Act and any substantive or procedural Requirement of Law governing such subject
matter, (ii) each such posting that is not readily capable of bearing either a signature or a
reproduction of a signature may be signed, and shall be deemed signed, by attaching to, or
logically associating with such posting, an E-Signature, upon which each Secured Party and Loan
Party may rely and assume the authenticity thereof, (iii) each such posting containing a signature,
a reproduction of a signature or an E-Signature shall, for all intents and purposes, have the same
effect and weight as a signed paper original and (iv) each party hereto or beneficiary hereto
agrees not to contest the validity or enforceability of any posting on any E-System or E-Signature
on any such posting under the provisions of any applicable Requirement of Law requiring certain
documents to be in writing or signed; provided, however, that nothing herein shall
limit such party’s or beneficiary’s right to contest whether any posting to any E-System or
E-Signature has been altered after transmission.



(c) Separate Agreements. All uses of an E-System shall be governed by and subject to,
in addition to Section 11.11 and this Section 11.12, separate terms and conditions
posted or referenced in such E-System and related Contractual Obligations executed by Secured
Parties and Group Members in connection with the use of such E-System.



(d) LIMITATION OF LIABILITY. ALL E-SYSTEMS AND ELECTRONIC TRANSMISSIONS SHALL BE
PROVIDED “AS IS” AND “AS AVAILABLE”. NONE OF ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PERSONS
WARRANTS THE ACCURACY, ADEQUACY OR COMPLETENESS OF ANY E-SYSTEMS OR ELECTRONIC TRANSMISSION, AND
EACH DISCLAIMS ALL LIABILITY FOR ERRORS OR OMISSIONS THEREIN. NO WARRANTY OF ANY KIND IS MADE BY
THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PERSONS IN CONNECTION WITH ANY E-SYSTEMS OR
ELECTRONIC COMMUNICATION, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS. THE
BORROWER AND EACH SECURED PARTY AGREES
(AND THE BORROWER SHALL CAUSE EACH OTHER LOAN PARTY TO AGREE) THAT THE ADMINISTRATIVE AGENT
HAS NO RESPONSIBILITY FOR MAINTAINING OR PROVIDING ANY EQUIPMENT, SOFTWARE, SERVICES OR ANY TESTING
REQUIRED IN CONNECTION WITH ANY ELECTRONIC TRANSMISSION OR OTHERWISE REQUIRED FOR ANY E-SYSTEM.



Section 11.13 Governing Law. This Agreement, each other Loan Document that does not expressly set forth its applicable
law, and the rights and obligations of the parties hereto and thereto shall be governed by, and
construed and interpreted in accordance with, the law of the State of Wisconsin.


 


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Section 11.14 Jurisdiction.



(a) Submission to Jurisdiction. Any legal action or proceeding with respect to any
Loan Document may be brought in the courts of the State of Wisconsin located in the City of
Milwaukee, Wisconsin, or of the United States of America sitting in the City of Milwaukee,
Wisconsin and, by execution and delivery of this Agreement, the Borrower hereby accepts for itself
and in respect of its property, generally and unconditionally, the jurisdiction of the aforesaid
courts. The parties hereto (and, to the extent set forth in any other Loan Document, each other
Loan Party) hereby irrevocably waive any objection, including any objection to the laying of venue
or based on the grounds of forum non conveniens, that any of them may now
or hereafter have to the bringing of any such action or proceeding in such jurisdictions.



(b) Service of Process. The Borrower (and, to the extent set forth in any other Loan
Document, each other Loan Party) hereby irrevocably waives personal service of any and all legal
process, summons, notices and other documents and other service of process of any kind and consents
to such service in any suit, action or proceeding brought in the United States of America with
respect to or otherwise arising out of or in connection with any Loan Document by any means
permitted by applicable Requirements of Law, including by the mailing thereof (by registered or
certified mail, postage prepaid) to the address of Borrower specified in Section 11.11 (and
shall be effective when such mailing shall be effective, as provided therein). The Borrower (and,
to the extent set forth in any other Loan Document, each other Loan Party) agrees that a final
judgment in any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.



(c) Non-Exclusive Jurisdiction. Nothing contained in this Section 11.14 shall
affect the right of the Administrative Agent or any Lender to serve process in any other manner
permitted by applicable Requirements of Law or commence legal proceedings or otherwise proceed
against any Loan Party in any other jurisdiction.



Section 11.15 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING
WITH RESPECT TO, OR DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH, ANY LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED THEREIN OR RELATED THERETO (WHETHER FOUNDED IN CONTRACT,
TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO OTHER PARTY AND NO RELATED
PERSON OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND
THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THE LOAN DOCUMENTS, AS APPLICABLE, BY THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11.15.



Section 11.16 Severability. Any provision of any Loan Document being held illegal, invalid or unenforceable in any
jurisdiction shall not affect any part of such provision not held illegal, invalid or
unenforceable, any other provision of any Loan Document or any part of such provision in any other
jurisdiction.


 


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Section 11.17 Execution in Counterparts. This Agreement may be executed in any number of counterparts and by different parties in
separate counterparts, each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Signature pages may be detached
from multiple separate counterparts and attached to a single counterpart. Delivery of an executed
signature page of this Agreement by facsimile transmission or Electronic Transmission shall be as
effective as delivery of a manually executed counterpart hereof.



Section 11.18 Entire Agreement. The Loan Documents embody the entire agreement of the parties and supersede all prior
agreements and understandings relating to the subject matter thereof and any prior letter of
interest, commitment letter, fee letter, confidentiality and similar agreements involving any Loan
Party and any of the Administrative Agent, any Lender or any L/C Issuer or any of their respective
Affiliates relating to a financing of substantially similar form, purpose or effect. In the event
of any conflict between the terms of this Agreement and any other Loan Document, the terms of this
Agreement shall govern (unless such terms of such other Loan Documents are necessary to comply with
applicable Requirements of Law, in which case such terms shall govern to the extent necessary to
comply therewith).



Section 11.19 Use of Name. The Borrower agrees, and shall cause each other Loan Party to agree, that it shall not, and
none of its Affiliates shall, issue any press release or other public disclosure (other than any
document filed with any Governmental Authority relating to a public offering of
the Securities of any Loan Party) using the name, logo or otherwise referring to U.S. Bank or
of any of its Affiliates, the Loan Documents or any transaction contemplated therein to which the
Secured Parties are party without at least 2 Business Days’ prior notice to U.S. Bank and without
the prior consent of U.S. Bank except to the extent required to do so under applicable Requirements
of Law and then, only after consulting with U.S. Bank prior thereto.



Section 11.20 Non-Public Information; Confidentiality.



(a) Each Lender and L/C Issuer acknowledges and agrees that it may receive material non-public
information hereunder concerning the Loan Parties and their Affiliates and Securities and agrees to
use such information in compliance with all relevant policies, procedures and Contractual
Obligations and applicable Requirements of Laws (including United States federal and state security
laws and regulations).


 


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(b) Each Lender, L/C Issuer and the Administrative Agent agrees to use all reasonable efforts
to maintain, in accordance with its customary practices, the confidentiality of information
obtained by it pursuant to any Loan Document and designated in writing by any Loan Party as
confidential, except that such information may be disclosed (i) with the Borrower’s consent, (ii)
to Related Persons of such Lender, L/C Issuer or the Administrative Agent, as the case may be, or
to any Person that any L/C Issuer causes to Issue Letters of Credit hereunder, that are advised of
the confidential nature of such information and are instructed to keep such information
confidential, (iii) to the extent such information presently is or hereafter becomes available to
such Lender, L/C Issuer or the Administrative Agent, as the case may be, on a non-confidential
basis from a source other than any Loan Party, (iv) to the extent disclosure is required by
applicable Requirements of Law or other legal process or requested or demanded by any Governmental
Authority, (v) to the extent necessary or customary for inclusion in league table measurements or
in any tombstone or other advertising materials (and the Loan Parties consent to the publication of
such tombstone or other advertising materials by the Administrative Agent, any Lender, any L/C
Issuer or any of their Related Persons), (vi) to the National Association of Insurance
Commissioners or any similar organization, any examiner or any nationally recognized rating agency
or otherwise to the extent consisting of general portfolio information that does not identify
borrowers, (vii) to current or prospective assignees, SPVs grantees of any option described in
Section 11.2(f) or participants, direct or contractual counterparties to any Hedging
Agreement permitted hereunder and to their respective Related Persons, in each case to the extent
such assignees, participants, counterparties or Related Persons agree to be bound by the provisions
of this Section 11.20 and (viii) in connection with the exercise of any remedy under any
Loan Document. In the event of any conflict between the terms of this Section 11.20 and
those of any other Contractual Obligation entered into with any Loan Party (whether or not a Loan
Document), the terms of this Section 11.20 shall govern.



Section 11.21 Patriot Act Notice. Each Lender subject to the USA Patriot Act of 2001 (31 U.S.C. 5318 et seq.) hereby notifies
the Borrower that, pursuant to Section 326 thereof, it is required to obtain,
verify and record information that identifies the Borrower, including the name and address of
the Borrower and other information allowing such Lender to identify the Borrower in accordance with
such act.



[SIGNATURE PAGES FOLLOW]



 


97









 





IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective officers thereunto duly authorized, as of the date first above written.



	 	 	 	 	 
	 	

ASSISTED LIVING CONCEPTS, INC., as Borrower

 	 
	 	By:  	 	 
	 	 	Name:  	John Buono 	 
	 	 	Title:  	Senior Vice President, Chief Financial
Officer and Treasurer 	 



Credit Agreement Signature Page



 


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U.S. BANK NATIONAL ASSOCIATION

as Administrative Agent, L/C Issuer, Swingline

Lender and Lender

 	 
	 	By:  	 	 
	 	 	Name:  	Matthew J. Schulz 	 
	 	 	Title:  	Vice President 	 



Credit Agreement Signature Page



 


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COMPASS BANK

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



Credit Agreement Signature Page



 


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FIRSTMERIT BANK, N.A.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



Credit Agreement Signature Page



 


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HARRIS N.A.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



Credit Agreement Signature Page



 


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RBS CITIZENS, N.A.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



Credit Agreement Signature Page





 


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