Ex-10.1



 





Exhibit
10.1




EXECUTION VERSION




CREDIT AND GUARANTY AGREEMENT




dated as of October 1, 2007




among




HEALTHSPRING, INC.,

as Borrower,




CERTAIN SUBSIDIARIES OF HEALTHSPRING, INC.,

as Guarantors,




VARIOUS LENDERS,




GOLDMAN SACHS CREDIT PARTNERS L.P.,

as Administrative Agent, Lead Arranger and Collateral Agent,




BANK OF AMERICA, N.A.,

CITIBANK, N.A. and

UBS SECURITIES LLC

as Co-Syndication Agents,




and




WACHOVIA BANK, N.A.,

as Documentation Agent




and




FIFTH THIRD BANK,

RAYMOND JAMES BANK, FSB,

AMEGY BANK NATIONAL ASSOCIATION

and U.S. BANK, N.A.

as Senior Managing Agents




 






$400,000,000 Senior Secured Credit Facilities




 






 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	SECTION 1.

	 	DEFINITIONS AND INTERPRETATION
	 	 	2	 
	1.1

	 	Definitions
	 	 	2	 
	1.2

	 	Accounting Terms
	 	 	36	 
	1.3

	 	Interpretation, etc
	 	 	36	 
	 
	 	 	 	 	 	 
	SECTION 2.

	 	LOANS AND LETTERS OF CREDIT
	 	 	37	 
	2.1

	 	Term Loans
	 	 	37	 
	2.2

	 	Revolving Loans
	 	 	37	 
	2.3

	 	Swing Line Loans
	 	 	38	 
	2.4

	 	Issuance of Letters of Credit and Purchase of Participations Therein
	 	 	41	 
	2.5

	 	Pro Rata Shares; Availability of Funds
	 	 	45	 
	2.6

	 	Use of Proceeds
	 	 	46	 
	2.7

	 	Evidence of Debt; Register; Lenders’ Books and Records; Notes
	 	 	46	 
	2.8

	 	Interest on Loans
	 	 	47	 
	2.9

	 	Conversion/Continuation
	 	 	49	 
	2.10

	 	Default Interest
	 	 	49	 
	2.11

	 	Fees
	 	 	50	 
	2.12

	 	Scheduled Payments/Commitment Reductions
	 	 	51	 
	2.13

	 	Voluntary Prepayments/Commitment Reductions
	 	 	52	 
	2.14

	 	Mandatory Prepayments/Commitment Reductions
	 	 	53	 
	2.15

	 	Application of Prepayments/Reductions
	 	 	55	 
	2.16

	 	General Provisions Regarding Payments
	 	 	56	 
	2.17

	 	Ratable Sharing
	 	 	57	 
	2.18

	 	Making or Maintaining Eurodollar Rate Loans
	 	 	58	 
	2.19

	 	Increased Costs; Capital Adequacy
	 	 	60	 
	2.20

	 	Taxes; Withholding, etc.
	 	 	61	 
	2.21

	 	Obligation to Mitigate
	 	 	63	 
	2.22

	 	Defaulting Lenders
	 	 	63	 
	2.23

	 	Removal or Replacement of a Lender
	 	 	64	 
	 
	 	 	 	 	 	 
	SECTION 3.

	 	CONDITIONS PRECEDENT
	 	 	65	 
	3.1

	 	Closing Date
	 	 	65	 
	3.2

	 	Conditions to Each Credit Extension
	 	 	70	 
	 
	 	 	 	 	 	 
	SECTION 4.

	 	REPRESENTATIONS AND WARRANTIES
	 	 	71	 
	4.1

	 	Organization; Requisite Power and Authority; Qualification
	 	 	71	 
	4.2

	 	Equity Interests and Ownership; HMO Subsidiaries
	 	 	71	 
	4.3

	 	Due Authorization
	 	 	72	 
	4.4

	 	No Conflict
	 	 	72	 
	4.5

	 	Governmental Consents
	 	 	72	 
	4.6

	 	Binding Obligation
	 	 	72	 






i









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	4.7

	 	Historical Financial Statements
	 	 	73	 
	4.8

	 	Projections
	 	 	73	 
	4.9

	 	No Material Adverse Change
	 	 	73	 
	4.10

	 	No Restricted Junior Payments
	 	 	73	 
	4.11

	 	Adverse Proceedings, etc
	 	 	73	 
	4.12

	 	Payment of Taxes
	 	 	74	 
	4.13

	 	Properties
	 	 	74	 
	4.14

	 	Environmental Matters
	 	 	74	 
	4.15

	 	No Defaults
	 	 	75	 
	4.16

	 	Material Contracts
	 	 	75	 
	4.17

	 	Governmental Regulation
	 	 	75	 
	4.18

	 	Margin Stock
	 	 	75	 
	4.19

	 	Employee Matters
	 	 	75	 
	4.20

	 	Employee Benefit Plans
	 	 	76	 
	4.21

	 	Certain Fees
	 	 	76	 
	4.22

	 	Solvency
	 	 	76	 
	4.23

	 	Related Agreements
	 	 	76	 
	4.24

	 	Compliance with Statutes, etc
	 	 	77	 
	4.25

	 	Disclosure
	 	 	78	 
	4.26

	 	Anti-Terrorism Laws, Foreign Corrupt Practices Act, etc.
	 	 	78	 
	4.27

	 	Fraud and Abuse
	 	 	79	 
	 
	 	 	 	 	 	 
	SECTION 5.

	 	AFFIRMATIVE COVENANTS
	 	 	79	 
	5.1

	 	Financial Statements and Other Reports
	 	 	79	 
	5.2

	 	Existence; Licensing
	 	 	84	 
	5.3

	 	Payment of Taxes and Claims
	 	 	84	 
	5.4

	 	Maintenance of Properties
	 	 	85	 
	5.5

	 	Insurance
	 	 	85	 
	5.6

	 	Books and Records; Inspections
	 	 	85	 
	5.7

	 	Lender Meetings
	 	 	86	 
	5.8

	 	Compliance with Laws
	 	 	86	 
	5.9

	 	Environmental
	 	 	86	 
	5.10

	 	Subsidiaries
	 	 	88	 
	5.11

	 	Additional Material Real Estate Assets
	 	 	88	 
	5.12

	 	Interest Rate Protection
	 	 	90	 
	5.13

	 	Further Assurances
	 	 	90	 
	5.14

	 	Maintenance of Ratings
	 	 	90	 
	5.15

	 	Post-Closing Actions
	 	 	90	 
	 
	 	 	 	 	 	 
	SECTION 6.

	 	NEGATIVE COVENANTS
	 	 	91	 
	6.1

	 	Indebtedness
	 	 	91	 
	6.2

	 	Liens
	 	 	94	 
	6.3

	 	No Further Negative Pledges
	 	 	96	 
	6.4

	 	Restricted Junior Payments
	 	 	96	 
	6.5

	 	Restrictions on Subsidiary Distributions
	 	 	98	 
	6.6

	 	Investments
	 	 	99	 
	6.7

	 	Financial Covenants
	 	 	100	 






ii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	6.8

	 	Fundamental Changes; Disposition of Assets; Acquisitions
	 	 	102	 
	6.9

	 	Disposal of Subsidiary Interests
	 	 	103	 
	6.10

	 	Sales and Lease Backs
	 	 	103	 
	6.11

	 	Transactions with Shareholders and Affiliates
	 	 	103	 
	6.12

	 	Conduct of Business
	 	 	104	 
	6.13

	 	Amendments or Waivers of Organizational Documents and Certain Related
Agreements
	 	 	104	 
	6.14

	 	Amendments or Waivers of with respect to Certain Indebtedness
	 	 	104	 
	6.15

	 	Fiscal Year
	 	 	104	 
	6.16

	 	Anti-Terrorism Law; Anti-Money Laundering
	 	 	104	 
	6.17

	 	Embargoed Person
	 	 	105	 
	 
	 	 	 	 	 	 
	SECTION 7.

	 	GUARANTY
	 	 	105	 
	7.1

	 	Guaranty of the Obligations
	 	 	105	 
	7.2

	 	Contribution by Guarantors
	 	 	105	 
	7.3

	 	Payment by Guarantors
	 	 	106	 
	7.4

	 	Liability of Guarantors Absolute
	 	 	106	 
	7.5

	 	Waivers by Guarantors
	 	 	108	 
	7.6

	 	Guarantors’ Rights of Subrogation, Contribution, etc
	 	 	109	 
	7.7

	 	Subordination of Other Obligations
	 	 	110	 
	7.8

	 	Continuing Guaranty
	 	 	110	 
	7.9

	 	Authority of Guarantors or Borrower
	 	 	110	 
	7.10

	 	Financial Condition of Borrower
	 	 	110	 
	7.11

	 	Bankruptcy, etc
	 	 	110	 
	7.12

	 	Discharge of Guaranty Upon Sale of Guarantor
	 	 	111	 
	 
	 	 	 	 	 	 
	SECTION 8.

	 	EVENTS OF DEFAULT
	 	 	111	 
	8.1

	 	Events of Default
	 	 	111	 
	 
	 	 	 	 	 	 
	SECTION 9.

	 	AGENTS
	 	 	115	 
	9.1

	 	Appointment of Agents
	 	 	115	 
	9.2

	 	Powers and Duties
	 	 	115	 
	9.3

	 	General Immunity
	 	 	115	 
	9.4

	 	Agents Entitled to Act as Lender
	 	 	117	 
	9.5

	 	Lenders’ Representations, Warranties and Acknowledgment
	 	 	117	 
	9.6

	 	Right to Indemnity
	 	 	117	 
	9.7

	 	Successor Administrative Agent, Collateral Agent and Swing Line Lender
	 	 	118	 
	9.8

	 	Collateral Documents and Guaranty
	 	 	120	 
	9.9

	 	Withholding Taxes
	 	 	121	 
	 
	 	 	 	 	 	 
	SECTION 10.

	 	MISCELLANEOUS
	 	 	121	 
	10.1

	 	Notices
	 	 	121	 
	10.2

	 	Expenses
	 	 	122	 
	10.3

	 	Indemnity
	 	 	123	 
	10.4

	 	Set-Off
	 	 	124	 
	10.5

	 	Amendments and Waivers
	 	 	124	 
	10.6

	 	Successors and Assigns; Participations
	 	 	126	 






iii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	10.7

	 	Independence of Covenants
	 	 	130	 
	10.8

	 	Survival of Representations, Warranties and Agreements
	 	 	130	 
	10.9

	 	No Waiver; Remedies Cumulative
	 	 	130	 
	10.10

	 	Marshalling; Payments Set Aside
	 	 	130	 
	10.11

	 	Severability
	 	 	130	 
	10.12

	 	Obligations Several; Independent Nature of Lenders’ Rights
	 	 	130	 
	10.13

	 	Headings
	 	 	131	 
	10.14

	 	APPLICABLE LAW
	 	 	131	 
	10.15

	 	CONSENT TO JURISDICTION
	 	 	131	 
	10.16

	 	WAIVER OF JURY TRIAL
	 	 	131	 
	10.17

	 	Confidentiality
	 	 	132	 
	10.18

	 	Usury Savings Clause
	 	 	133	 
	10.19

	 	Counterparts
	 	 	133	 
	10.20

	 	Effectiveness
	 	 	134	 
	10.21

	 	Patriot Act
	 	 	134	 
	10.22

	 	Electronic Execution of Assignments
	 	 	134	 
	10.23

	 	No Fiduciary Duty
	 	 	134	 
	10.24

	 	Lender Action
	 	 	134	 






iv









 






	 	 	 	 	 	 	 
	APPENDICES:

	 	 	A-1	 	 	Term Loan Commitments
	 

	 	 	A-2	 	 	Revolving Commitments
	 

	 	 	B	 	 	Notice Addresses
	 
	 	 	 	 	 	 
	SCHEDULES:

	 	 	4.1	 	 	Jurisdictions of Organization
	 

	 	 	4.2	 	 	Equity Interests and Ownership; HMO Subsidiaries
	 

	 	 	4.5	 	 	Government Consents
	 

	 	 	4.13	 	 	Material Real Estate Assets
	 

	 	 	4.16	 	 	Material Contracts
	 

	 	 	5.15	 	 	Post-Closing Actions
	 

	 	 	6.1	 	 	Certain Indebtedness
	 

	 	 	6.2	 	 	Certain Liens
	 

	 	 	6.3	 	 	Negative Pledges
	 

	 	 	6.5	 	 	Certain Restrictions on Subsidiary Distributions
	 

	 	 	6.6	 	 	Certain Investments
	 

	 	 	6.11	 	 	Certain Affiliate Transactions
	 
	 	 	 	 	 	 
	EXHIBITS:

	 	 	A-1	 	 	Funding Notice
	 

	 	 	A-2	 	 	Conversion/Continuation Notice
	 

	 	 	A-3	 	 	Issuance Notice
	 

	 	 	B-1	 	 	Term Loan Note
	 

	 	 	B-2	 	 	Revolving Loan Note
	 

	 	 	B-3	 	 	Swing Line Note
	 

	 	 	C	 	 	Compliance Certificate
	 

	 	 	D-1	 	 	Opinion of Bass, Berry & Sims PLC
	 

	 	 	D-2	 	 	Opinion of General Counsel of Borrower
	 

	 	 	E	 	 	Assignment Agreement
	 

	 	 	F	 	 	Certificate Re Non-bank Status
	 

	 	 	G-1	 	 	Closing Date Certificate
	 

	 	 	G-2	 	 	Solvency Certificate
	 

	 	 	H	 	 	Counterpart Agreement
	 

	 	 	I	 	 	Pledge and Security Agreement
	 

	 	 	J	 	 	Mortgage
	 

	 	 	K	 	 	Landlord Waiver and Consent Agreement
	 

	 	 	L	 	 	Intercompany Note







v









 







CREDIT AND GUARANTY AGREEMENT




     This CREDIT AND GUARANTY AGREEMENT, dated as of October 1, 2007, is entered into by and among
HEALTHSPRING, INC., a Delaware corporation (“Borrower”), CERTAIN SUBSIDIARIES OF BORROWER, as
Guarantors, the Lenders party hereto from time to time, GOLDMAN SACHS CREDIT PARTNERS L.P.
(“GSCP”), as Administrative Agent (together with its permitted successors in such capacity,
"Administrative Agent”) and GSCP, as Collateral Agent (together with its permitted successor in
such capacity, “Collateral Agent”), BANK OF AMERICA, N.A. (“Bank of America”), CITIBANK, N.A.
(“Citibank”) and UBS SECURITIES LLC (“UBS”), as Co-Syndication Agents (in such capacity, each a
“Co-Syndication Agent” and, collectively,
“Co-Syndication Agents”), and WACHOVIA BANK, N.A.
(“Wachovia”), as Documentation Agent (in such capacity, “Documentation Agent”).



RECITALS:




     WHEREAS, capitalized terms used in these Recitals shall have the respective meanings set forth
for such terms in Section 1.1 hereof;



     WHEREAS, Lenders have agreed to extend certain credit facilities to Borrower, in an aggregate
amount not to exceed $400,000,000, consisting of $300,000,000 aggregate principal amount of Term
Loans and up to $100,000,000 aggregate principal amount of Revolving Commitments, the proceeds of
which will be used (a) in the case of the Term Loans, (i) to fund, in part, the Acquisition and
(ii) to pay Transaction Costs, (b) in the case of the Revolving Loans, to refinance up to
$25,000,000 of Existing Indebtedness and (c) in the case of the Revolving Loans, Letters of Credit
and Swing Line Loans, (i) to make capital expenditures as permitted herein, (ii) to make Permitted
Acquisitions, (iii) to provide for the working capital requirements of Borrower and its
Subsidiaries and (iv) for general corporate purposes of Borrower and its Subsidiaries;



     WHEREAS, Borrower has agreed to secure all of its Obligations by granting to Collateral Agent,
for the benefit of Secured Parties, a First Priority Lien on substantially all of its assets,
including a pledge of all of the Equity Interests of each of its Domestic Subsidiaries and 65% of
all the Equity Interests of each of its Foreign Subsidiaries; and



     WHEREAS, Guarantors have agreed to guarantee the obligations of Borrower hereunder and to
secure their respective Obligations by granting to Collateral Agent, for the benefit of Secured
Parties, a First Priority Lien on substantially all of their respective assets, including a pledge
of all of the Equity Interests of each of their respective Domestic Subsidiaries (including
Borrower) and 65% of all the Equity Interests of each of their respective Foreign Subsidiaries.



     NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants
herein contained, the parties hereto agree as follows:



 









 





SECTION 1. DEFINITIONS AND INTERPRETATION




     1.1 Definitions. The following terms used herein, including in the preamble, recitals, exhibits and
schedules hereto, shall have the following meanings:



     “Accounting Change” means any change in accounting principles required by the promulgation of
any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board of the
American Institute of Certified Public Accountants (or successor thereto) or, if applicable, the
SEC.



     “Acquisition” means the acquisition of LMCHP by NewQuest pursuant to the Acquisition
Agreement.



     “Acquisition Agreement” means the Stock Purchase Agreement dated as of August 9, 2007, by and
among LMCHP, the existing stockholders of LMCHP, NewQuest and Borrower.



     “Acquisition Consideration” means the purchase consideration for any Permitted Acquisition and
all other payments by Borrower or any of its Subsidiaries in exchange for, or as part of, or in
connection with, any Permitted Acquisition, whether paid in cash or by exchange of Equity Interests
or of properties or otherwise and whether payable at or prior to the consummation of such Permitted
Acquisition or deferred for payment at any future time, whether or not any such future payment is
subject to the occurrence of any contingency and includes any and all payments representing the
purchase price and any assumptions of Indebtedness, “earn-outs” and other agreements to make any
payment the amount of which is, or the terms of payment of which are, in any respect subject to or
contingent upon the revenues, income, cash flow or profits (or the like) of any person or business;
provided that any such future payment that is subject to a contingency shall be considered
Acquisition Consideration only to the extent of the reserve, if any, required under GAAP at the
time of such sale to be established in respect thereof by Borrower or any of its Subsidiaries.



     “Adjusted Eurodollar Rate” means, for any Interest Rate Determination Date with respect to an
Interest Period for a Eurodollar Rate Loan, the rate per annum obtained by dividing (and rounding
upward to the next whole multiple of 1/100 of 1%) (i) (a) the rate per annum (rounded to the
nearest 1/100 of 1%) equal to the rate determined by Administrative Agent to be the offered rate
which appears on the page of the Reuters Screen which displays an average British Bankers
Association Interest Settlement Rate (such page currently being LIBOR01 page) for deposits (for
delivery on the first day of such period) with a term equivalent to such period in Dollars,
determined as of approximately 11:00 a.m. (London, England time) on such Interest Rate
Determination Date, or (b) in the event the rate referenced in the preceding clause (a) does not
appear on such page or service or if such page or service shall cease to be available, the rate per
annum (rounded to the nearest 1/100 of 1%) equal to the rate determined by Administrative Agent to
be the offered rate on such other page or other service which displays an average British Bankers
Association Interest Settlement Rate for deposits (for delivery on the first day of such period)
with a term equivalent to such period in Dollars, determined as of approximately 11:00 a.m.
(London, England time) on such Interest Rate Determination Date, or (c) in the event the rates
referenced in the preceding clauses (a) and (b) are not available, the rate per annum



2









 




(rounded to the nearest 1/100 of 1%) equal to the offered quotation rate to first class banks
in the London interbank market by Citibank, N.A. for deposits (for delivery on the first day of the
relevant period) in Dollars of amounts in same day funds comparable to the principal amount of the
applicable Eurodollar Rate Loan of Administrative Agent, in its capacity as a Lender, for which the
Adjusted Eurodollar Rate is then being determined with maturities comparable to such period as of
approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date, by (ii)
an amount equal to (a) one minus (b) the Applicable Reserve Requirement.




     “Administrative Agent” as defined in the preamble hereto.



     “Adverse Proceeding” means any action, suit, proceeding, hearing (whether administrative,
judicial or otherwise), governmental investigation or arbitration (whether or not purportedly on
behalf of Borrower or any of its Subsidiaries) at law or in equity, or before or by any
Governmental Authority, domestic or foreign (including any Environmental Claims), whether pending
or, to the knowledge of Borrower or any of its Subsidiaries, threatened in writing against or
affecting Borrower or any of its Subsidiaries or any property of Borrower or any of its
Subsidiaries.



     “Affected Lender” as defined in Section 2.18(b).



     “Affected Loans” as defined in Section 2.18(b).



     “Affiliate” means, as applied to any Person, any other Person directly or indirectly
controlling, controlled by, or under common control with, that Person. For the purposes of this
definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled
by” and “under common control with”), as applied to any Person, means the possession, directly or
indirectly, of the power (i) to vote 10% or more of the Securities having ordinary voting power for
the election of directors of such Person or (ii) to direct or cause the direction of the management
and policies of that Person, whether through the ownership of voting securities or by contract or
otherwise.



     “Agent” means each of Administrative Agent, Co-Syndication Agents, Collateral Agent and
Documentation Agent.



     “Agent Affiliates” as defined in Section 10.1(b).



     “Aggregate Amounts Due” as defined in Section 2.17.



     “Aggregate Payments” as defined in Section 7.2.



     “Agreement” means this Credit and Guaranty Agreement, dated as of October 1, 2007, as it may
be amended, supplemented or otherwise modified from time to time.



     “Anti-Terrorism Laws” as defined in Section 4.26.



     “Applicable Margin” and “Applicable Revolving Commitment Fee Percentage” mean (i) with respect
to Revolving Loans and Term Loans that are Eurodollar Rate Loans and the



3









 




Applicable Revolving Commitment Fee Percentage, (a) from the Closing Date until the date of
delivery of the Compliance Certificate and the financial statements for the period ending March 31,
2008, a percentage, per annum, determined by reference to the following table at the rates set
forth in the top row of the table for each column therein; and (b) thereafter, a percentage, per
annum, determined by reference to the Leverage Ratio in effect from time to time as set forth
below:




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Applicable
	 	 	 	 	 	 	Revolving
	 	 	Applicable Margin for	 	Commitment Fee
	Leverage Ratio	 	Term Loans and Revolving Loans	 	Percentage
	> 1.00:1.00

	 	 	2.50	%	 	 	0.500	%
	< 1.00:1.00 and
> 0.75:1.00

	 	 	2.25	%	 	 	0.375	%
	< 0.75:1.00

	 	 	2.00	%	 	 	0.250	%





and (ii) with respect to Term Loans and Revolving Loans that are Base Rate Loans and with respect
to Swing Line Loans, an amount equal to (a) the Applicable Margin for Eurodollar Rate Loans as set
forth in clause (i)(a) or (i)(b) above, as applicable, minus (b) 1.00% per annum. No
change in the Applicable Margin or the Applicable Revolving Commitment Fee Percentage shall be
effective until three Business Days after the date on which Administrative Agent shall have
received the applicable financial statements and a Compliance Certificate pursuant to Section
5.1(c) calculating the Leverage Ratio. At any time Borrower has not submitted to Administrative
Agent the applicable information as and when required under Section 5.1(c), the Applicable Margin
and the Applicable Revolving Commitment Fee Percentage shall be determined at the highest rate set
forth in each column above. Within one Business Day of receipt of the applicable information under
Section 5.1(c), Administrative Agent shall give each Lender telefacsimile or telephonic notice
(confirmed in writing) of the Applicable Margin and the Applicable Revolving Commitment Fee
Percentage in effect from such date. In the event that any financial statement or certificate
delivered pursuant to Section 5.1 is shown to be inaccurate (at a time when this Agreement is in
effect and unpaid Obligations under this Agreement are outstanding, other than indemnities and
other contingent obligations not yet due and payable) and such inaccuracy, if corrected, would have
led to the application of a higher Applicable Margin or a higher Applicable Revolving Commitment
Fee Percentage for any period (an “Applicable Period”) than the Applicable Margin or Applicable
Revolving Commitment Fee Percentage applied for such Applicable Period, then (i) Borrower shall
immediately deliver to Administrative Agent a correct certificate required by Section 5.1 for such
Applicable Period, (ii) the Applicable Margin and/or the Applicable Revolving Commitment Fee
Percentage shall be determined at the applicable rate set forth in each column above in accordance
with the corrected certificate and (iii) Borrower shall immediately pay to Administrative Agent the
accrued additional interest and/or fees owing as a result of such increased Applicable Margin
and/or Applicable Revolving Commitment Fee Percentage for such Applicable Period. Nothing in this
paragraph shall limit the right of Administrative Agent or any Lender under Section 2.10 or Section
8.




4









 








     “Applicable Reserve Requirement” means, at any time, for any Eurodollar Rate Loan, the maximum
rate, expressed as a decimal, at which reserves (including any basic marginal, special,
supplemental, emergency or other reserves) are required to be maintained with respect thereto as
“Eurocurrency liabilities” (as such term is defined in Regulation D) under regulations issued from
time to time by the Board of Governors or other applicable banking regulator. Without limiting the
effect of the foregoing, the Applicable Reserve Requirement shall reflect any other reserves
required to be maintained by such member banks with respect to (i) any category of liabilities
which includes deposits by reference to which the applicable Adjusted Eurodollar Rate is to be
determined, or (ii) any category of extensions of credit or other assets which include Eurodollar
Rate Loans. A Eurodollar Rate Loan shall be deemed to constitute Eurocurrency liabilities and as
such shall be deemed subject to reserve requirements without benefits of credit for proration,
exceptions or offsets that may be available from time to time to the applicable Lender. The rate
of interest on Eurodollar Rate Loans shall be adjusted automatically on and as of the effective
date of any change in the Applicable Reserve Requirement.



     “Approved Electronic Communications” means any notice, demand, communication, information,
document or other material that any Credit Party provides to Administrative Agent pursuant to any
Credit Document or the transactions contemplated therein which is distributed to the Agents or to
the Lenders by means of electronic communication pursuant to Section 10.1(b).



     “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback,
assignment, conveyance, exclusive license (as licensor or sublicensor), transfer or other
disposition by Borrower or any of its Subsidiaries to, or any exchange of property with, any Person
(other than Borrower or any Guarantor), in one transaction or a series of transactions, of any of
its businesses, assets or properties of any kind, whether real, personal, or mixed and whether
tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including the
Equity Interests of any of Borrower’s Subsidiaries, other than (i) inventory or other assets sold,
leased or licensed out in the ordinary course of business (excluding any such sales, leases or
licenses out by operations or divisions discontinued or to be discontinued), (ii) dispositions of
cash and Cash Equivalents and (iii) sales, leases or licenses out of other assets for aggregate
consideration of less than $500,000 with respect to any transaction or series of related
transactions and less than $2,000,000 in the aggregate during any Fiscal Year.



     “Assignment Agreement” means an Assignment and Assumption Agreement substantially in the form
of Exhibit E, with such amendments or modifications as may be approved by Administrative Agent.



     “Assignment Effective Date” as defined in Section 10.6(b).



     “Authorized Officer” means, as applied to any Person, any individual holding the position of
chairman of the board (if an officer), chief executive officer, president or one of its executive
or senior vice presidents (or the equivalent thereof) and such Person’s chief financial officer or
treasurer.



     “Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now and
hereafter in effect, or any successor statute.



5









 





     “Base Rate” means, for any day, a rate per annum equal to the greater of (i) the Prime Rate in
effect on such day and (ii) the Federal Funds Effective Rate in effect on such day plus 1/2
of 1%. Any change in the Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective on the effective day of such change in the Prime Rate or the
Federal Funds Effective Rate, respectively.



     “Base Rate Loan” means a Loan bearing interest at a rate determined by reference to the Base
Rate.



     “Beneficiary” means each Agent, Issuing Bank, Lender and Lender Counterparty.



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



     “Borrower” as defined in the preamble hereto.



     “Borrower Adjusted EBITDA” means, for any period, an amount determined for Borrower and its
Subsidiaries (other than any HMO Subsidiaries) on a consolidated basis equal to (i) Borrower Net
Income, plus, to the extent reducing Borrower Net Income, the sum, without duplication, of
amounts for (a) interest expense, (b) provisions for taxes based on income, (c) depreciation
expense, (d) amortization expense, (e) Transaction Costs paid on or prior to the date which is 90
days after the Closing Date not to exceed $12,000,000, (f) fees, costs and expenses not to exceed
$2,000,000 in any Fiscal Year of Borrower, directly attributable to the initial expansion of
business into a market where Borrower and its Subsidiaries had no prior operations and incurred
within the first twelve months following such expansion and (g) other non-Cash charges reducing
Borrower Net Income (including non-cash stock-based compensation expense and any such non-Cash
charge to the extent that it represents an unrealized loss with respect to derivatives that is
required by FASB 133, but excluding any such non-Cash charge to the extent that it represents an
accrual or reserve for a potential Cash charge in any future period or amortization of a prepaid
Cash charge that was paid in a prior period), minus (ii) non-Cash gains increasing Borrower
Net Income for such period (including any such non-Cash gain to the extent it represents an
unrealized gain with respect to derivatives that is required by FASB 133, but excluding any such
non-Cash gain to the extent it represents the reversal of an accrual or reserve for a potential
Cash gain in any prior period).



     “Borrower Capital Expenditures” means, for any period, the aggregate of all expenditures of
Borrower and its Subsidiaries (other than any HMO Subsidiaries) during such period determined on a
consolidated basis that, in accordance with GAAP, are or should be included in “purchase of
property and equipment” or similar items reflected in the statement of cash flows of Borrower and
its Subsidiaries (other than any HMO Subsidiaries).



     “Borrower Current Assets” means, as at any date of determination, the total assets of Borrower
and its Subsidiaries (other than any HMO Subsidiaries) on a consolidated basis that may properly be
classified as current assets in conformity with GAAP, excluding Cash and Cash Equivalents.



     “Borrower Current Liabilities” means, as at any date of determination, the total liabilities
of Borrower and its Subsidiaries (other than any HMO Subsidiaries) on a consolidated



6









 




basis that may properly be classified as current liabilities in conformity with GAAP,
excluding the current portion of long term debt.




     “Borrower Interest Expense” means, for any period, total interest expense (including that
portion attributable to Capital Leases in accordance with GAAP and capitalized interest) of
Borrower and its Subsidiaries (other than any HMO Subsidiaries) on a consolidated basis with
respect to all outstanding Indebtedness of Borrower and its Subsidiaries (other than any HMO
Subsidiaries) on a consolidated basis, including all commissions, discounts and other fees and
charges owed with respect to letters of credit and net costs under Interest Rate Agreements, but
excluding, however, (i) any amount not payable in Cash and (ii) any amounts referred to in Section
2.11(d) payable on or before the Closing Date.



     “Borrower Net Income” means, for any period, (i) the net income (or loss) of Borrower and its
Subsidiaries (other than any HMO Subsidiaries) on a consolidated basis for such period taken as a
single accounting period determined in conformity with GAAP, minus (ii) (a) the income (or
loss) of any Person in which any other Person (other than Borrower and its Subsidiaries (other than
any HMO Subsidiaries) on a consolidated basis) has a joint interest, except to the extent of the
amount of dividends or other distributions actually paid to Borrower and its Subsidiaries (other
than any HMO Subsidiaries) by such Person during such period, (b) the income (or loss) of any
Person accrued prior to the date it becomes a Subsidiary of Borrower or is merged into or
consolidated with Borrower or any of its Subsidiaries (other than any HMO Subsidiaries) or that
Person’s assets are acquired by Borrower or any of its Subsidiaries (other than any HMO
Subsidiaries), (c) the income of any Subsidiary of Borrower (other than any HMO Subsidiary) to the
extent that the declaration or payment of dividends or similar distributions by that Subsidiary of
that income is not at the time permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that
Subsidiary, (d) any after-tax gains or losses of Borrower and its Subsidiaries (other than any HMO
Subsidiaries) attributable to Asset Sales or returned surplus assets of any Pension Plan and (d)
(to the extent not included in clauses (a) through (d) above) any net extraordinary gains or net
extraordinary losses.



     “Borrower Working Capital” means, as at any date of determination, the excess of Borrower
Current Assets over Borrower Current Liabilities.



     “Borrower Working Capital Adjustment” means, for any period on a consolidated basis, the
amount (which may be a negative number) by which Borrower Working Capital as of the beginning of
such period exceeds (or is less than) Borrower Working Capital as of the end of such period.



     “Business Day” means (i) any day excluding Saturday, Sunday and any day which is a legal
holiday under the laws of the State of New York or is a day on which banking institutions located
in such state are authorized or required by law or other governmental action to close and (ii) with
respect to all notices, determinations, fundings and payments in connection with the Adjusted
Eurodollar Rate or any Eurodollar Rate Loans, the term “Business Day” shall mean any day which is a
Business Day described in clause (i) and which is also a day for trading by and between banks in
Dollar deposits in the London interbank market.



7









 





     “Capital Lease” means, as applied to any Person, any lease of any property (whether real,
personal or mixed) by that Person as lessee that, in conformity with GAAP, is or should be
accounted for as a capital lease on the balance sheet of that Person.



     “Cash” means money, currency or a credit balance in any demand or Deposit Account.



     “Cash Equivalents” means, as at any date of determination, (i) marketable securities (a)
issued or directly and unconditionally guaranteed as to interest and principal by the United States
Government or (b) issued by any agency of the United States the obligations of which are backed by
the full faith and credit of the United States, in each case maturing within one year after such
date; (ii) marketable direct obligations issued by any state of the United States of America or any
political subdivision of any such state or any public instrumentality thereof, in each case
maturing within one year after such date and having, at the time of the acquisition thereof, a
rating of at least A-1 from S&P or at least P 1 from Moody’s; (iii) commercial paper maturing no
more than one year from the date of creation thereof and having, at the time of the acquisition
thereof, a rating of at least A-1 from S&P or at least P 1 from Moody’s; (iv) certificates of
deposit, time deposits or bankers’ acceptances maturing within one year after such date and issued
or accepted by any Lender or by any commercial bank organized under the laws of the United States
of America or any state thereof or the District of Columbia that (a) is at least “adequately
capitalized” (as defined in the regulations of its primary Federal banking regulator) and (b) has
Tier 1 capital (as defined in such regulations) of not less than $100,000,000; (v) shares of any
money market mutual fund that (a) has substantially all of its assets invested continuously in the
types of investments referred to in clauses (i) and (ii) above, (b) has net assets of not less than
$500,000,000 and (c) has the highest rating obtainable from either S&P or Moody’s and; (vi) with
respect to (a) Borrower or any other Credit Party, marketable debt securities regularly traded on a
national securities exchange or in the over-the-counter market, if and to the extent such debt
security constitutes a permitted investment under the HMO Regulations applicable to any of the HMO
Subsidiaries or (b) any HMO Subsidiary, marketable debt securities regularly traded on a national
securities exchange or in the over-the-counter market and any other security, if and to the extent
such security constitutes a permitted investment under the HMO Regulations applicable to such HMO
Subsidiary.



     “Cash Management Agreements” means those agreements entered into from time to time by Borrower
or its Subsidiaries with a Cash Management Provider in connection with the obtaining of any Cash
Management Services that has been designated by Borrower and such Cash Management Provider by
notice to the Administrative Agent as a Cash Management Agreement.



     “Cash Management Obligations” means all obligations, liabilities, contingent reimbursement
obligations, fees and expenses owing by Borrower or any of its Subsidiaries to any Cash Management
Provider pursuant to or evidenced by the Cash Management Agreements and irrespective of whether for
the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now
existing or hereafter arising; provided that, solely for the purpose of this Agreement and
the other Credit Documents, Cash Management Obligations shall not exceed $10,000,000.



8









 





     “Cash Management Provider” means any Lender or Affiliate of a Lender which provides Cash
Management Services to Borrower or its Subsidiaries; provided that each such Affiliate
shall appoint the Collateral Agent as its agent and agree to be bound by the Credit Documents as a
Secured Party, subject to Section 9.8(c).



     “Cash Management Services” means any cash management, including controlled disbursement,
accounts or related services (including the Automated Clearing House processing of electronic funds
transfers through the direct Federal Reserve Fedline system) provided to Borrower or any of its
Subsidiaries by a Cash Management Provider.



     “Certificate Re Non-bank Status” means a certificate substantially in the form of Exhibit F.



     “Change of Control” means, at any time, (i) any Person or “group” (within the meaning of Rules
13d-3 and 13d-5 under the Exchange Act) (a) shall have acquired beneficial ownership of 35% or more
on a fully diluted basis of the voting and/or economic interest in the Equity Interests of Borrower
or (b) shall have obtained the power (whether or not exercised) to elect a majority of the members
of the board of directors (or similar governing body) of Borrower; (ii) the majority of the seats
(other than vacant seats) on the board of directors (or similar governing body) of Borrower cease
to be occupied by Persons who either (a) were members of the board of directors of Borrower on the
Closing Date or (b) were nominated for election by the board of directors of Borrower, a majority
of whom were directors on the Closing Date or whose election or nomination for election was
previously approved by a majority of such directors and directors approved as provided in this
clause (b); or (iii) any “change of control”, “fundamental event” or similar event under any
Designated Indebtedness, agreement or instrument pursuant to which any Designated Indebtedness is
issued, Subordinated Indebtedness or Subordinated Indebtedness Indenture shall occur.



     “Class” means (i) with respect to Lenders, each of the following classes of Lenders: (a)
Lenders having Term Loan Exposure and (b) Lenders having Revolving Exposure (including Swing Line
Lender) and (ii) with respect to Loans, each of the following classes of Loans: (a) Term Loans and
(b) Revolving Loans (including Swing Line Loans).



     “Closing Date” means the date on which the Term Loans are made.



     “Closing Date Certificate” means a Closing Date Certificate substantially in the form of
Exhibit G-1.



     "CMS” means the Centers for Medicare and Medicaid Services of the United States Department of
Health and Human Services, any successor thereof and any predecessor thereof (including the United
States Health Care Financing Administration).



     “Collateral” means, collectively, all of the real, personal and mixed property (including
Equity Interests) in which Liens are purported to be granted pursuant to the Collateral Documents
as security for the Obligations.



     “Collateral Agent” as defined in the preamble hereto.



9









 





     “Collateral Documents” means the Pledge and Security Agreement, the Mortgages, the
Intellectual Property Security Agreements, the Landlord Personal Property Collateral Access
Agreements, if any, and all other instruments, documents and agreements delivered by any Credit
Party pursuant to this Agreement or any of the other Credit Documents in order to grant to
Collateral Agent, for the benefit of Secured Parties, a Lien on any real, personal or mixed
property of that Credit Party as security for the Obligations.



     “Collateral Questionnaire” means a certificate in form satisfactory to Collateral Agent that
provides information with respect to the personal or mixed property of each Credit Party.



     “Commitment” means any Revolving Commitment or Term Loan Commitment.



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



     “Confidential Healthcare Information” as defined in Section 5.6(c).



     “Consolidated Adjusted EBITDA” means, for any period, an amount determined for Borrower and
its Subsidiaries on a consolidated basis equal to (i) Consolidated Net Income, plus, to the
extent reducing Consolidated Net Income, the sum, without duplication, of amounts for (a) interest
expense, (b) provisions for taxes based on income, (c) depreciation expense, (d) amortization
expense, (e) Transaction Costs paid on or prior to the date which is 90 days after the Closing Date
not to exceed $12,000,000, (f) fees, costs and expenses not to exceed $2,000,000 in any Fiscal Year
of Borrower, directly attributable to the initial expansion of business into a market where
Borrower and its Subsidiaries had no prior operations and incurred within the first twelve months
following such expansion and (g) other non-Cash charges reducing Consolidated Net Income (including
non-cash stock-based compensation expense and any such non-Cash charge to the extent that it
represents an unrealized loss with respect to derivatives that is required by FASB 133, but
excluding any such non-Cash charge to the extent that it represents an accrual or reserve for a
potential Cash charge in any future period or amortization of a prepaid Cash charge that was paid
in a prior period), minus (ii) non-Cash gains increasing Consolidated Net Income for such
period (including any such non-Cash gain to the extent it represents an unrealized gain with
respect to derivatives that is required by FASB 133, but excluding any such non-Cash gain to the
extent it represents the reversal of an accrual or reserve for a potential Cash gain in any prior
period).



     “Consolidated Capital Expenditures” means, for any period, the aggregate of all expenditures
of Borrower and its Subsidiaries during such period determined on a consolidated basis that, in
accordance with GAAP, are or should be included in “purchase of property and equipment” or similar
items reflected in the consolidated statement of cash flows of Borrower and its Subsidiaries.



     “Consolidated Group” means Borrower and its consolidated Subsidiaries, as determined in
accordance with GAAP.



     “Consolidated Net Income” means, for any period, (i) the net income (or loss) of Borrower and
its Subsidiaries on a consolidated basis for such period taken as a single accounting period
determined in conformity with GAAP, minus (ii) (a) the income (or loss) of



10









 




any Person (other than a Subsidiary of Borrower) in which any other Person (other than
Borrower or any of its Subsidiaries) has a joint interest, except to the extent of the amount of
dividends or other distributions actually paid to Borrower or any of its Subsidiaries by such
Person during such period, (b) the income (or loss) of any Person accrued prior to the date it
becomes a Subsidiary of Borrower or is merged into or consolidated with Borrower or any of its
Subsidiaries or that Person’s assets are acquired by Borrower or any of its Subsidiaries, (c) the
income of any Subsidiary of Borrower (other than any HMO Subsidiary) to the extent that the
declaration or payment of dividends or similar distributions by that Subsidiary of that income is
not at the time permitted by operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation applicable to that Subsidiary,
(d) (1) the income of any HMO Subsidiary of Borrower that has not been theretofore distributed to a
Credit Party to the extent that the declaration or payment of dividends or similar distributions by
that Subsidiary of that income is not at the time permitted by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Subsidiary (other than any statute, rule or governmental regulation
generally applicable to HMOs requiring such HMO Subsidiary to maintain a minimum level of Statutory
Net Worth or other similar minimum capital requirements) and (2) (A) in the case of an HMO
Subsidiary that is an RBC HMO, the income of such HMO Subsidiary that has not been theretofore
distributed to a Credit Party to the extent that the retention of such income would be necessary to
cause such HMO Subsidiary to maintain a Statutory Net Worth at the end of such period equal to or
greater than 25% above the upper limit of the Regulatory Action Level in the applicable state and
(B) in the case of an HMO Subsidiary that is not an RBC HMO, the income of such HMO Subsidiary that
has not been theretofore distributed to a Credit Party to the extent that the retention of such
income would be necessary to cause such HMO Subsidiary to maintain a ratio of Statutory Net Worth
to the applicable state’s Statutory Net Worth requirement at the end of such period at a level
equal to or greater than 1.25:1.00, (e) any after-tax gains or losses of Borrower and its
Subsidiaries attributable to Asset Sales or returned surplus assets of any Pension Plan and (f) (to
the extent not included in clauses (a) through (e) above) any net extraordinary gains or net
extraordinary losses.




     “Consolidated Total Debt” means, as at any date of determination, the aggregate stated balance
sheet amount of all Indebtedness of Borrower and its Subsidiaries determined on a consolidated
basis in accordance with GAAP.



     “Contested Collateral Lien Conditions” shall mean, with respect to any Permitted Lien of the
type described in clause (p) of Section 6.2, the following conditions:




     (i) the appropriate Credit Party shall cause any proceeding instituted contesting such
Lien to stay the sale or forfeiture of any portion of the Collateral on account of such
Lien; and




     (ii) at the option and at the request of Administrative Agent, to the extent such Lien
is in an amount in excess of $500,000, the appropriate Credit Party shall maintain cash
reserves in an amount sufficient to pay and discharge such Lien and a reasonable estimate of
all interest and penalties related thereto.



11









 





     “Contract Provider” means any Person or any employee, agent or subcontractor of such Person
who provides professional health care services under or pursuant to any contract with Borrower or
any of its Subsidiaries.



     “Contractual Obligation” means, as applied to any Person, any provision of any Security issued
by that Person or of any indenture, mortgage, deed of trust, contract, undertaking, agreement or
other instrument to which that Person is a party or by which it or any of its properties is bound
or to which it or any of its properties is subject.



     “Contributing Guarantors” as defined in Section 7.2.



     “Conversion/Continuation Date” means the effective date of a continuation or conversion, as
the case may be, as set forth in the applicable Conversion/Continuation Notice.



     “Conversion/Continuation Notice” means a Conversion/Continuation Notice substantially in the
form of Exhibit A-2.



     “Convertible Indebtedness” means any Designated Indebtedness that is convertible by its terms
into Equity Interests of Borrower.



     “Co-Syndication Agent” as defined in the preamble hereto.



     “Counterpart Agreement” means a Counterpart Agreement substantially in the form of Exhibit H
delivered by a Credit Party pursuant to Section 5.10.



     “Credit Date” means the date of a Credit Extension.



     “Credit Document” means any of this Agreement, the Notes, if any, the Collateral Documents,
any documents or certificates executed by Borrower in favor of Issuing Bank relating to Letters of
Credit and all other documents, instruments or agreements executed and delivered by a Credit Party
for the benefit of any Agent, Issuing Bank or any Lender in connection herewith.



     “Credit Extension” means the making of a Loan or the issuing of a Letter of Credit.



     “Credit Party” means each Person (other than any Agent, Issuing Bank or any Lender or any
other representative thereof) from time to time party to a Credit Document.



     “Currency Agreement” means any foreign exchange contract, currency swap agreement, futures
contract, option contract, synthetic cap or other similar agreement or arrangement, each of which
is for the purpose of protecting against foreign currency risks associated with Borrower’s and its
Subsidiaries’ operations and not for speculative purposes.



     “Default” means a condition or event that, after notice or lapse of time or both, would
constitute an Event of Default.



     “Default Excess” means, with respect to any Defaulting Lender, the excess, if any, of such
Defaulting Lender’s Pro Rata Share of the aggregate outstanding principal amount of Loans



12









 




of all Lenders (calculated as if all Defaulting Lenders (including such Defaulting Lender) had
funded all of their respective Defaulted Loans) over the aggregate outstanding principal amount of
all Loans of such Defaulting Lender.




     “Default Period” means, with respect to any Defaulting Lender, the period commencing on the
date of the applicable Funding Default and ending on the earliest of the following dates: (i) the
date on which all Commitments are cancelled or terminated and/or the Obligations are declared or
become immediately due and payable, (ii) the date on which (a) the Default Excess with respect to
such Defaulting Lender shall have been reduced to zero (whether by the funding by such Defaulting
Lender of any Defaulted Loans of such Defaulting Lender or by the non-pro rata application of any
voluntary or mandatory prepayments of the Loans in accordance with the terms of Section 2.13 or
Section 2.14 or by a combination thereof) and (b) such Defaulting Lender shall have delivered to
Borrower and Administrative Agent a written reaffirmation of its intention to honor its obligations
hereunder with respect to its Commitments and (iii) the date on which Borrower, Administrative
Agent and Requisite Lenders waive all Funding Defaults of such Defaulting Lender in writing.



     “Defaulted Loan” as defined in Section 2.22.



     “Defaulting Lender” as defined in Section 2.22.



     “Deposit Account” means a demand, time, savings, passbook or like account with a bank, savings
and loan association, credit union or like organization, other than an account evidenced by a
negotiable certificate of deposit.



     “Designated Indebtedness” means any unsecured Indebtedness of Borrower, no part of the
principal of which is required to be paid (whether by way of mandatory sinking fund, mandatory
redemption or mandatory prepayment), prior to the first anniversary of the Term Loan Maturity Date
(it being understood that any required offer to purchase such Indebtedness as a result of a change
of control or asset sale shall not violate the foregoing restriction) and the terms and conditions
of which are not materially less favorable to Borrower as the terms and conditions customary at the
time for high-yield debt securities issued in a public offering or are otherwise reasonably
satisfactory to Administrative Agent.



     “Disqualified Equity Interests” means any Equity Interest which, by its terms (or by the terms
of any security or other Equity Interests into which it is convertible or for which it is
exchangeable), or upon the happening of any event or condition (i) matures or is mandatorily
redeemable (other than solely for Equity Interests which are not otherwise Disqualified Equity
Interests), pursuant to a sinking fund obligation or otherwise, (ii) is redeemable at the option of
the holder thereof (other than solely for Equity Interests which are not otherwise Disqualified
Equity Interests), in whole or in part, (iii) provides for the scheduled payments or dividends in
cash, or (iv) is or becomes convertible into or exchangeable for Indebtedness or any other Equity
Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that
is 91 days after the Maturity Date of the Term Loans.



     “Documentation Agent” as defined in the preamble hereto.



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



13









 





     “Domestic Subsidiary” means any Subsidiary organized under the laws of the United States of
America, any State thereof or the District of Columbia.



     “Eligible Assignee” means (i) any Lender, any Affiliate of any Lender and any Related Fund
(any two or more Related Funds of any Lender being treated as a single Eligible Assignee for all
purposes hereof) and (ii) any commercial bank, insurance company, investment or mutual fund or
other entity that is an “accredited investor” (as defined in Regulation D under the Securities Act)
and which extends credit or buys loans; provided, no Affiliate of Borrower shall be an
Eligible Assignee.



     “Embargoed Person” as defined in Section 6.17.



     “Environmental Claim” means any notice of violation, claim, action, suit, proceeding, demand,
abatement order or other order or directive (conditional or otherwise), by any Governmental
Authority or any other Person, arising (i) pursuant to or in connection with any actual or alleged
violation of any Environmental Law; (ii) in connection with any Hazardous Material or any actual or
alleged Hazardous Materials Activity; or (iii) in connection with any actual or alleged damage,
injury, threat or harm to health, safety, natural resources or the environment.



     “Environmental Laws” means any and all current or future foreign or domestic, federal or state
(or any subdivision of either of them), statutes, ordinances, orders, rules, regulations,
judgments, Governmental Authorizations, or any other requirements of Governmental Authorities
relating to (i) environmental matters, including those relating to any Hazardous Materials Activity
or (ii) the generation, use, storage, transportation or disposal of Hazardous Materials, in any
manner applicable to Borrower or any of its Subsidiaries or any Facility.



     “Equity Interests” means any and all shares, interests, participations or other equivalents
(however designated) of capital stock of a corporation, any and all equivalent ownership interests
in a Person (other than a corporation), including partnership interests and membership interests
and any and all warrants, rights or options to purchase or other arrangements or rights to acquire
any of the foregoing.



     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to
time and any successor thereto.



     “ERISA Affiliate” means, as applied to any Person, (i) any corporation which is a member of a
controlled group of corporations within the meaning of Section 414(b) of the Internal Revenue Code
of which that Person is a member; (ii) any trade or business (whether or not incorporated) which is
a member of a group of trades or businesses under common control within the meaning of Section
414(c) of the Internal Revenue Code of which that Person is a member; and (iii) any member of an
affiliated service group within the meaning of Section 414(m) or (o) of the Internal Revenue Code
of which that Person, any corporation described in clause (i) above or any trade or business
described in clause (ii) above is a member. Any former ERISA Affiliate of Borrower or any of its
Subsidiaries shall continue to be considered an ERISA Affiliate of Borrower or any such Subsidiary
within the meaning of this definition with respect to the period such entity was an ERISA Affiliate
of Borrower or such Subsidiary and with respect



14









 




to liabilities arising after such period for which Borrower or such Subsidiary could be liable
under the Internal Revenue Code or ERISA.




     “ERISA Event” means (i) a “reportable event” within the meaning of Section 4043 of ERISA and
the regulations issued thereunder with respect to any Pension Plan (excluding those for which the
provision for 30 day notice to the PBGC has been waived by regulation); (ii) the failure to meet
the minimum funding standard of Section 412 of the Internal Revenue Code with respect to any
Pension Plan (whether or not waived in accordance with Section 412(d) of the Internal Revenue Code)
or the failure to make by its due date a required installment under Section 412(m) of the Internal
Revenue Code with respect to any Pension Plan or the failure to make any required contribution to a
Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan pursuant to
Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination
described in Section 4041(c) of ERISA; (iv) the withdrawal by Borrower, any of its Subsidiaries or
any of their respective ERISA Affiliates from any Pension Plan with two or more contributing
sponsors or the termination of any such Pension Plan resulting in liability to Borrower, any of its
Subsidiaries or any of their respective Affiliates pursuant to Section 4063 or 4064 of ERISA; (v)
the institution by the PBGC of proceedings to terminate any Pension Plan, or the occurrence of any
event or condition which might constitute grounds under ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan; (vi) the imposition of liability on
Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates pursuant to Section
4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (vii) the
withdrawal of Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates in a
complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any
Multiemployer Plan if there is any potential liability therefore, or the receipt by Borrower, any
of its Subsidiaries or any of their respective ERISA Affiliates of notice from any Multiemployer
Plan that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA, or that
it intends to terminate or has terminated under Section 4041A or 4042 of ERISA; (viii) the
assertion of a material claim (other than routine claims for benefits) against any Pension Plan
other than a Multiemployer Plan or the assets thereof, or against Borrower, any of its Subsidiaries
or any of their respective ERISA Affiliates in connection with any Pension Plan; (ix) receipt from
the Internal Revenue Service of notice of the failure of any Pension Plan to qualify under Section
401(a) of the Internal Revenue Code, or the failure of any trust forming part of any Pension Plan
to qualify for exemption from taxation under Section 501(a) of the Internal Revenue Code; or (x)
the imposition of a Lien pursuant to Section 401(a)(29) or 412(n) of the Internal Revenue Code or
pursuant to ERISA with respect to any Pension Plan.



     “Eurodollar Rate Loan” means a Loan bearing interest at a rate determined by reference to the
Adjusted Eurodollar Rate.



     "Event of Default” means each of the conditions or events set forth in Section 8.1.



     “Excess Cash Flow” means, for any period, an amount (if positive) equal to: (i) the sum,
without duplication, of the amounts for such period of (a) Borrower Adjusted EBITDA, (b) the
Borrower Working Capital Adjustment and (c) cash payments made to Borrower or its Subsidiaries
(other than HMO Subsidiaries) pursuant to, and in accordance with, Sections 3.3 and 3.6 of the
Acquisition Agreement, minus (ii) the sum, without duplication, of the amounts



15









 




for such period paid in cash from operating cash flow of (a) scheduled repayments by Borrower
and its Subsidiaries (other than HMO Subsidiaries) of Indebtedness (excluding repayments of
Revolving Loans or Swing Line Loans except to the extent the Revolving Commitments are permanently
reduced in connection with such repayments), (b) Borrower Capital Expenditures (net of any proceeds
of (y) any related financings with respect to such expenditures and (z) any sales of assets used to
finance such expenditures), (c) Borrower Interest Expense, (d) provisions for current taxes based
on income of Borrower and its Subsidiaries and payable in cash by Borrower and its Subsidiaries
(other than HMO Subsidiaries) with respect to such period and (e) cash payments made by Borrower or
its Subsidiaries (other than HMO Subsidiaries) pursuant to, and in accordance with, Sections 3.3
and 3.6 of the Acquisition Agreement.




     “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time and any
successor statute.



     “Exclusion Event” means an event or related events resulting in the exclusion of Borrower or
any of its Subsidiaries from participation in any Medical Reimbursement Program.



     “Executive Order” as defined in Section 4.26.



     “Existing Indebtedness” means all Indebtedness of Borrower and its Subsidiaries existing as of
the Closing Date (including all Indebtedness under the Credit Agreement dated as of April 21, 2006
among Borrower, certain of its subsidiaries, UBS AG, Stamford Branch, as administrative agent, and
other parties thereto, as amended).



     “Facility” means any real property (including all buildings, fixtures or other improvements
located thereon) now, hereafter or heretofore owned, leased, operated or used by Borrower or any of
its Subsidiaries or any of their respective predecessors or Affiliates.



     “Fair Share Contribution Amount” as defined in Section 7.2.



     “Fair Share” as defined in Section 7.2.



     “Family Care” means health care programs designed for uninsured segments of the population
(other than Medicaid-eligible or SCHIP-eligible segments of the population) that are operated by or
financed in part by federal and state government.



     “Federal Funds Effective Rate” means for any day, the rate per annum (expressed, as a decimal,
rounded upwards, if necessary, to the next higher 1/100 of 1%) equal to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the
Business Day next succeeding such day; provided, (i) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day and (ii) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate charged to Administrative Agent, in its capacity as a Lender, on such day on such
transactions as reasonably determined by Administrative Agent.



16









 





     “Financial Officer Certification” means, with respect to the financial statements for which
such certification is required, the certification of the chief financial officer of Borrower that
such financial statements fairly present, in all material respects, the financial condition of
Borrower and its Subsidiaries as at the dates indicated and the results of their operations and
their cash flows for the periods indicated, subject to changes resulting from audit and normal year
end adjustments.



     “Financial Plan” as defined in Section 5.1(i).



     “First Priority” means, with respect to any Lien purported to be created in any Collateral
pursuant to any Collateral Document, that such Lien is the only Lien to which such Collateral is
subject, other than any Permitted Lien.



     “Fiscal Quarter” means a fiscal quarter of any Fiscal Year.



     “Fiscal Year” means the fiscal year of Borrower and its Subsidiaries ending on December 31 of
each calendar year.



     “Flood Hazard Property” means any Real Estate Asset subject to a mortgage in favor of
Collateral Agent, for the benefit of the Secured Parties and located in an area designated by the
Federal Emergency Management Agency as having special flood or mud slide hazards.



     “Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.



     “Funding Default” as defined in Section 2.22.



     “Funding Guarantors” as defined in Section 7.2.



     “Funding Notice” means a notice substantially in the form of Exhibit A-1.



     “GAAP” means, subject to the limitations on the application thereof set forth in Section 1.2,
United States generally accepted accounting principles in effect as of the date of determination
thereof.



     “Governmental Acts” means any act or omission, whether rightful or wrongful, of any present or
future de jure or de facto government or Governmental Authority.



     “Governmental Authority” means any federal, state, municipal, national or other government,
governmental department, commission, board, bureau, court, agency or instrumentality or political
subdivision thereof or any entity, officer or examiner exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to any government or any court, in each
case whether associated with the United States, a state of the United States, or a foreign entity
or government.



     “Governmental Authorization” means any permit, license, authorization, plan, directive,
consent order or consent decree of or from any Governmental Authority.



     “Grantor” as defined in the Pledge and Security Agreement.



17









 





     “Guaranteed Obligations” as defined in Section 7.1.



     “Guarantor” means each wholly-owned Domestic Subsidiary of Borrower, other than the HMO
Subsidiaries.



     “Guaranty” means the guaranty of each Guarantor set forth in Section 7.



     “Hazardous Materials” means any chemical, material or substance, exposure to which is
prohibited, limited or regulated by any Governmental Authority or which may or could pose a hazard
to the health and safety of the owners, occupants or any Persons in the vicinity of any Facility or
to the indoor or outdoor environment.



     “Hazardous Materials Activity” means any past or current activity, event or occurrence
involving any Hazardous Materials, including the use, manufacture, possession, storage, holding,
presence, existence, Release, threatened Release, discharge, placement, generation, transportation,
processing, treatment, abatement, removal, remediation, disposal, disposition or handling of any
Hazardous Materials and any corrective action or response action with respect to any of the
foregoing.



     “Hedge Agreement” means an Interest Rate Agreement or a Currency Agreement entered into with a
Lender Counterparty and satisfactory to Administrative Agent.



     “HHS” means the United States Department of Health and Human Services and any successor
thereof.



     “Highest Lawful Rate” means the maximum lawful rate of interest or loan charges, if any, that
at any time or from time to time may be contracted for, charged, or received under the laws
applicable to any Lender which are presently in effect or, to the extent allowed by law, under such
applicable laws which may hereafter be in effect and which allow a higher maximum lawful rate of
interest or loan charges than applicable laws now allow.



     “HIPAA” means the Health Insurance Portability and Accountability Act of 1996, Pub. L.
104-191, Aug. 21, 1996, 110 Stat. 1936, and regulations promulgated pursuant thereto regarding
privacy, security and transmission of health information, all as amended from time to time, and any
successor statute and regulations.



     “Historical Financial Statements” means as of the Closing Date, (i) the audited financial
statements of Borrower and its Subsidiaries, for the immediately preceding three Fiscal Years prior
to the Closing Date, consisting of consolidated balance sheets and the related consolidated
statements of income, stockholders’ equity and cash flows for such Fiscal Years, (ii) the audited
financial statements of LMCHP for the immediately preceding two Fiscal Years prior to the Closing
Date, consisting of balance sheets and the related statements of income and cash flows for such
Fiscal Years, (iii) the unaudited financial statements of Borrower and its Subsidiaries as at the
Fiscal Quarter ending June 30, 2007, consisting of a consolidated balance sheet and the related
consolidated statements of income and cash flows for the six month period, ending on such date and
(iv) the unaudited financial statements of LMCHP as at the Fiscal Quarter ending June 30, 2007,
consisting of a balance sheet and the related statements of income and cash flows for the six month
period, ending on such date. In the case of clause (iii) above,



18









 




the chief financial officer of Borrower shall certify that such financial statements fairly
present, in all material respects, the financial condition of Borrower and its Subsidiaries as at
the dates indicated and the results of their operations and their cash flows for the periods
indicated, subject to changes resulting from audit and normal year end adjustments. In the case of
clause (iv) above, the chief financial officer of LMCHP shall certify that such financial
statements fairly present, in all material respects, the financial condition of LMCHP as at the
dates indicated and the results of operations and cash flows for the periods indicated, subject to
changes resulting from audit and normal year end adjustments.




     “HMO” means any health maintenance organization, managed care organization, any Person doing
business as a health maintenance organization or managed care organization, or any Person required
to qualify or be licensed as a health maintenance organization or managed care organization under
applicable federal or state law (including, without limitation, HMO Regulations).



     “HMO Business” means the business of owning and operating an HMO or other similar regulated
entity or business.



     “HMO Event” means any material non-compliance by Borrower or any of its HMO Subsidiaries with
any of the terms and provisions of the HMO Regulations pertaining to its fiscal soundness, solvency
or financial condition; or the assertion in writing, after the date hereof, by an HMO Regulator
that it intends to take administrative action against Borrower or any of its HMO Subsidiaries to
revoke or modify any license, charter or permit or to enforce the fiscal soundness, solvency or
financial provisions or requirements of the HMO Regulations against Borrower or any of its HMO
Subsidiaries.



     “HMO Regulations” means all laws, regulations, directives and administrative orders applicable
under federal or state law to any HMO Subsidiary whether or not specifically applicable to an HMO
(and any regulations, orders and directives promulgated or issued pursuant to any of the foregoing)
and Subchapter XI of Title 42 of the United States Code and the rules and regulations of any
accrediting authority having jurisdiction over any HMO Subsidiary.



     “HMO Regulator” means any Person charged with the administration, oversight or enforcement of
an HMO Regulation, whether primarily, secondarily or jointly.



     “HMO Subsidiary” means each Subsidiary of Borrower that is (i) an HMO or other similar
regulated entity or business, or (ii) an insurance company licensed and regulated as such by a
Governmental Authority.



     “Increased Cost Lenders” as defined in Section 2.23.



     “Indebtedness” as applied to any Person, means, without duplication, (i) all indebtedness for
borrowed money; (ii) that portion of obligations with respect to Capital Leases that is properly
classified as a liability on a balance sheet in conformity with GAAP; (iii) notes payable and
drafts accepted representing extensions of credit whether or not representing obligations for
borrowed money; (iv) any obligation owed for all or any part of the deferred purchase price of
property or services, including any earn-out obligations other than those earn-out obligations
payable solely in Qualified Equity Interests (excluding any such obligations incurred under



19









 




ERISA), which purchase price is (a) due more than six months from the date of incurrence of
the obligation in respect thereof or (b) evidenced by a note or similar written instrument; (v) all
indebtedness secured by any Lien on any property or asset owned or held by that Person regardless
of whether the indebtedness secured thereby shall have been assumed by that Person or is
nonrecourse to the credit of that Person; (vi) the face amount of any letter of credit issued for
the account of that Person or as to which that Person is otherwise liable for reimbursement of
drawings; (vii) Disqualified Equity Interests, (viii) the direct or indirect guaranty, endorsement
(otherwise than for collection or deposit in the ordinary course of business), co making,
discounting with recourse or sale with recourse by such Person of the obligation of another; (ix)
any obligation or agreement of such Person the primary purpose or intent of which is to provide
assurance to an obligee that the subject Indebtedness of the obligor thereof will be paid or
discharged, or that the holders thereof will be protected (in whole or in part) against loss in
respect thereof; (x) any liability of such Person for Indebtedness of another through any agreement
(contingent or otherwise) (a) to purchase, repurchase or otherwise acquire such Indebtedness or any
security therefor, or to provide funds for the payment or discharge of such Indebtedness (whether
in the form of loans, advances, stock purchases, capital contributions or otherwise) or (b) to
maintain the solvency or any balance sheet item, level of income or financial condition of another
if, in the case of any agreement described under subclauses (a) or (b) of this clause (x), the
primary purpose or intent thereof is as described in clause (ix) above; and (xi) all obligations of
such Person in respect of any exchange-traded or over the counter derivative transaction, including
any Interest Rate Agreement and Currency Agreement, whether entered into for hedging or speculative
purposes; provided, in no event shall obligations under (x) any Interest Rate Agreement or
any Currency Agreement be deemed “Indebtedness” for any purpose under Section 6.7 and (y) any
Related Convertible Debt Derivative Transaction be deemed “Indebtedness” for any purpose under this
Agreement.




     “Indemnified Liabilities” means, collectively, any and all liabilities, obligations, losses,
damages (including natural resource damages), penalties, claims (including Environmental Claims),
actions, judgments, suits, costs (including the reasonable costs of any investigation, study,
sampling, testing, abatement, cleanup, removal, remediation or other response action necessary to
remove, remediate, clean up or abate any Hazardous Materials Activity for which Borrower or a
Subsidiary is responsible), expenses and disbursements of any kind or nature whatsoever (including
the reasonable fees and disbursements of counsel for Indemnitees in connection with any
investigative, administrative or judicial proceeding or hearing commenced or threatened by any
Person, whether or not any such Indemnitee shall be designated as a party or a potential party
thereto, and any fees or expenses incurred by Indemnitees in enforcing this indemnity), whether
direct, indirect or consequential and whether based on any federal, state or foreign laws,
statutes, rules or regulations (including securities and commercial laws, statutes, rules or
regulations and Environmental Laws), on common law or equitable cause or on contract or otherwise,
that may be imposed on, incurred by, or asserted against any such Indemnitee, in any manner
relating to or arising out of (i) this Agreement or the other Credit Documents or the transactions
contemplated hereby or thereby (including the Lenders’ agreement to make Credit Extensions or the
use or intended use of the proceeds thereof, or any enforcement of any of the Credit Documents
(including any sale of, collection from or other realization upon any of the Collateral or the
enforcement of the Guaranty)); (ii) the commitment letter (and any related fee or engagement
letter) delivered by any Agent or any Lender to Borrower with respect to the transactions
contemplated by this Agreement; or (iii) any Environmental Claim or any



20









 




Hazardous Materials Activity relating to or arising from, directly or indirectly, any past or
present activity, operation, land ownership, or practice of Borrower or any of its Subsidiaries.




     “Indemnitee” as defined in Section 10.3.



     “Installment” as defined in Section 2.12.



     “Intellectual Property” as defined in the Pledge and Security Agreement.



     “Intellectual Property Asset” means, at the time of determination, any interest (fee, license
or otherwise) then owned by any Credit Party in any Intellectual Property.



     “Intellectual Property Security Agreements” has the meaning assigned to that term in the
Pledge and Security Agreement.



     “Intercompany Note” means a promissory note substantially in the form of Exhibit L evidencing
Indebtedness owed among the Credit Parties and their Subsidiaries.



     “Interest Payment Date” means with respect to (i) any Loan that is a Base Rate Loan, each
March 31, June 30, September 30 and December 31 of each year, commencing on the first such date to
occur after the Closing Date and the final maturity date of such Loan; and (ii) any Loan that is a
Eurodollar Rate Loan, the last day of each Interest Period applicable to such Loan;
provided, in the case of each Interest Period of longer than three months “Interest Payment
Date” shall also include each date that is three months, or an integral multiple thereof, after the
commencement of such Interest Period.



     “Interest Period” means, in connection with a Eurodollar Rate Loan, an interest period of one,
two, three or six months (or, if available to all applicable Lenders, nine or twelve months), as
selected by Borrower in the applicable Funding Notice or Conversion/Continuation Notice, commencing
on the Credit Date or Conversion/Continuation Date thereof, as the case may be; provided,
(a) if an Interest Period would otherwise expire on a day that is not a Business Day, such Interest
Period shall expire on the next succeeding Business Day unless no further Business Day occurs in
such month, in which case such Interest Period shall expire 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, subject to clauses (c) and (d), of this definition, end on the last
Business Day of a calendar month; (c) no Interest Period with respect to any portion of any Term
Loan shall extend beyond the Term Loan Maturity Date; and (d) no Interest Period with respect to
any portion of the Revolving Loans shall extend beyond the Revolving Commitment Termination Date.



     “Interest Rate Agreement” means any interest rate swap agreement, interest rate cap agreement,
interest rate collar agreement, interest rate hedging agreement or other similar agreement or
arrangement, each of which is for the purpose of minimizing or protecting against the risk of
fluctuations in interest rates associated with Borrower’s and its Subsidiaries’ operations and not
for speculative purposes.



21









 





     “Interest Rate Determination Date” means, with respect to any Interest Period, the date that
is two Business Days prior to the first day of such Interest Period.



     “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended to the date hereof
and from time to time hereafter and any successor statute.



     “Investment” means (i) any direct or indirect purchase or other acquisition by Borrower or any
of its Subsidiaries of, or of a beneficial interest in, any of the Securities of any other Person
(other than a Guarantor); (ii) any direct or indirect redemption, retirement, purchase or other
acquisition for value, by any Subsidiary of Borrower from any Person (other than Borrower or any
Guarantor), of any Equity Interests of such Person; and (iii) any direct or indirect loan, advance
(other than advances to employees for moving, entertainment and travel expenses, drawing accounts
and similar expenditures in the ordinary course of business), extension of credit (by way of
guarantee or otherwise) or capital contributions by Borrower or any of its Subsidiaries to any
other Person (other than Borrower or any Guarantor), including all indebtedness and accounts
receivable from that other Person that are not current assets or did not arise from sales to that
other Person in the ordinary course of business. The amount of any Investment shall be the original
cost of such Investment plus the cost of all additions thereto, without any adjustments for
increases or decreases in value, or write ups, write downs or write offs with respect to such
Investment.



     “Issuance Notice” means an Issuance Notice substantially in the form of Exhibit A-3.



     “Issuing Bank” means, as the context may require, (i) Citibank, N.A., in its capacity as
issuer of Letters of Credit issued by it; (ii) any other Lender that may become an Issuing Bank
pursuant to Section 2.4(h) in its capacity as issuer of Letters of Credit issued by such Lender; or
(iii) collectively, all of the foregoing.



     “Joint Venture” means a joint venture, partnership or other similar arrangement, whether in
corporate, partnership or other legal form; provided, in no event shall any corporate
Subsidiary of any Person be considered to be a Joint Venture to which such Person is a party.



     “Landlord Consent and Estoppel” means, with respect to any Leasehold Property constituting a
Material Real Estate Asset, a letter, certificate or other instrument in writing from the lessor
under the related lease, pursuant to which, among other things, the landlord consents to the
granting of a collateral assignment with respect to such Leasehold Property by the Credit Party
tenant, such Landlord Consent and Estoppel to be in form and substance acceptable to Collateral
Agent in its reasonable discretion.



     “Landlord Personal Property Collateral Access Agreement” means a Landlord Waiver and Consent
Agreement substantially in the form of Exhibit K with such amendments or modifications as may be
approved by Collateral Agent.



     “Leasehold Property” means any leasehold interest of any Credit Party as lessee under any
lease of real property, other than any such leasehold interest designated from time to time by
Collateral Agent in its sole discretion as not being required to be included in the Collateral.



22









 





     “Lender” means each financial institution listed on the signature pages hereto as a Lender and
any other Person that becomes a party hereto pursuant to an Assignment Agreement.



     “Lender Counterparty” means each Lender, each Agent and each of their respective Affiliates
counterparty to a Hedge Agreement (including any Person who is an Agent or a Lender (and any
Affiliate thereof) as of the Closing Date but subsequently, whether before or after entering into a
Hedge Agreement, ceases to be an Agent or a Lender, as the case may be); provided that each
such Affiliate shall appoint the Collateral Agent as its agent and agrees to be bound by the Credit
Documents as a Secured Party, subject to Section 9.8(c).



     “Letter of Credit” means a commercial or standby letter of credit issued or to be issued by
Issuing Bank pursuant to this Agreement.



     “Letter of Credit Sublimit” means the lesser of (i) $5,000,000 and (ii) the aggregate unused
amount of the Revolving Commitments then in effect.



     “Letter of Credit Usage” means, as at any date of determination, the sum of (i) the maximum
aggregate amount which is, or at any time thereafter may become, available for drawing under all
Letters of Credit then outstanding and (ii) the aggregate amount of all drawings under Letters of
Credit honored by Issuing Bank and not theretofore reimbursed by or on behalf of Borrower.



     “Leverage Ratio” means the ratio as of the last day of any Fiscal Quarter of (i) Consolidated
Total Debt as of such day to (ii) Consolidated Adjusted EBITDA for the four Fiscal Quarter period
ending on such date.



     “Licensed Intellectual Property” means any interest of any Credit Party as licensee or
sublicensee under any license of intellectual property, other than any such interest that has been
designated from time to time by Collateral Agent as not being required to be included in the
Collateral.



     “Licensor Consent and Estoppel” means, with respect to any Licensed Intellectual Property, a
letter, certificate or other instrument in writing from the licensor under the related license,
pursuant to which, among other things, the licensor consents to the granting of a Security Interest
on such Licensed Property by the Credit Party, such Licensor Consent and Estoppel to be in form and
substance acceptable to Collateral Agent in its reasonable discretion.



     “Lien” means (i) any lien, mortgage, pledge, assignment, security interest, charge or
encumbrance of any kind (including any agreement to give any of the foregoing, any conditional sale
or other title retention agreement and any lease or license in the nature thereof) and any option,
trust or other preferential arrangement having the practical effect of any of the foregoing and
(ii) in the case of Securities, any purchase option, call or similar right of a third party with
respect to such Securities.



     “Liquidity” means at any time the sum of (i) the aggregate unused portion of the Revolving
Commitments at such time and (ii) the aggregate amount of unrestricted Cash and Cash Equivalents
included in the consolidated balance sheet of Borrower and its Subsidiaries (other than any HMO
Subsidiaries) as of such date that, in each case, are free and clear of all



23









 




Liens, other than Liens in favor of Collateral Agent for the benefit of the Secured Parties
and nonconsensual Liens permitted by Section 6.2.




     “LMCHP” means Leon Medical Centers Health Plans, Inc., a Florida corporation.



     “Loan” means a Term Loan, a Revolving Loan or a Swing Line Loan.



     “Loan
Transactions” as defined in Section 10.17.



     “Margin Stock” as defined in Regulation U of the Board of Governors as in effect from time to
time.



     “Material Adverse Effect” means a material adverse effect with respect to (i) the business,
operations, properties, assets or condition (financial or otherwise) of Borrower and its
Subsidiaries taken as a whole; (ii) the ability of the Credit Parties, taken as a whole, to fully
and timely perform the Obligations; (iii) the legality, validity, binding effect or enforceability
against a Credit Party of a material Credit Document to which it is a party; or (iv) the rights,
remedies and benefits available to, or conferred upon, any Agent and any Lender or any Secured
Party under the Credit Documents, taken as a whole.



     “Material Contract” means any contract or other arrangement to which Borrower or any of its
Subsidiaries is a party (other than the Credit Documents) for which breach, nonperformance,
cancellation or failure to renew could reasonably be expected to have a Material Adverse Effect.



     “Material Real Estate Asset” means (i) any fee owned Real Estate Asset having a fair market
value in excess of $2,500,000 as of the date of the acquisition thereof, (ii) any other fee owned
Real Estate Asset that the Requisite Lenders have determined is material to the business,
operations, properties, assets or condition (financial or otherwise) of Borrower and its
Subsidiaries, taken as a whole and (iii) each Leasehold Property as to which the leasehold interest
has a fair market value in excess of $2,500,000 as of the date of the acquisition of such leasehold
interest.



     “Medicaid” means that means-tested entitlement program under Title XIX, P.L. 89-87, of the
Social Security Act, which provides federal grants to states for medical assistance based on
specific eligibility criteria, as set forth at Section 1396, et seq. of Title 42 of the United
Sates Code, as amended.



     “Medicaid Regulations” means, collectively, (i) all federal statutes (whether set forth in
Title XIX of the Social Security Act or elsewhere) regarding the medical assistance program
established by Title XIX of the Social Security Act and any statutes succeeding thereto; (ii) all
applicable provisions of all federal rules, regulations, manuals and orders of all Governmental
Authorities promulgated pursuant to or in connection with the statutes described in clause (i)
above and all applicable federal administrative, reimbursement and other guidelines of all
Governmental Authorities having the force of law promulgated pursuant to or in connection with the
statutes described in clause (i) above; (iii) all applicable state statutes and plans for medical
assistance enacted in connection with the statutes and provisions described in clauses (i) and (ii)
above; and (iv) all applicable provisions of all rules, regulations, manuals and orders of all



24









 




Governmental Authorities promulgated pursuant to or in connection with the statutes described
in clause (iii) above and all applicable state administrative, reimbursement and other guidelines
of all Governmental Authorities having the force of law promulgated pursuant to or in connection
with the statutes described in clause (ii) above, in each case as may be amended, supplemented or
otherwise modified from time to time.




     “Medical Reimbursement Programs” means a collective reference to the Medicare, Medicaid, SCHIP
and Family Care programs and any other health care program operated by or financed in whole or in
part by any foreign or domestic federal, state or local government and any other non-government
funded third-party payor programs.



     “Medical Reimbursement Program Provider Agreements” means an agreement entered into with a
Medical Reimbursement Program to provide services for program patients in accordance with the terms
thereof and applicable law.



     “Medicare” means that government-sponsored entitlement program under Title XVIII, P.L. 89-87,
of the Social Security Act, which provides for a health insurance system for eligible elderly and
disabled individuals, as set forth at Section 1395, et seq. of Title 42 of the United States Code,
as amended.



     “Medicare Regulations” means, collectively, all federal statutes (whether set forth in Title
XVIII of the Social Security Act or elsewhere) regarding the health insurance program for the aged
and disabled established by Title XVIII of the Social Security Act and any statutes succeeding
thereto; together with all applicable provisions of all rules, regulations, manuals and orders and
administrative, reimbursement and other guidelines having the force of law of all Governmental
Authorities (including, without limitation, CMS, the OIG, HHS, or any person succeeding to the
functions of any of the foregoing) promulgated pursuant to or in connection with any of the
foregoing having the force of law, as each may be amended, supplemented or otherwise modified from
time to time.



     “Moody’s” means Moody’s Investor Services, Inc.



     “Mortgage” means a Mortgage substantially in the form of Exhibit J, as it may be amended,
supplemented or otherwise modified from time to time.



     “Multiemployer Plan” means any Pension Plan which is a “multiemployer plan” as defined in
Section 3(37) of ERISA.



     “NAIC” means The National Association of Insurance Commissioners and any successor thereto.



     “Narrative Report” means, with respect to the financial statements for which such narrative
report is required, a narrative report describing the operations of Borrower and its Subsidiaries
in the form prepared for presentation to senior management thereof for the applicable Fiscal
Quarter or Fiscal Year and for the period from the beginning of the then current Fiscal Year to the
end of such period to which such financial statements relate or, if applicable, in the form
included in Borrower’s Quarterly Report on Form 10-Q or Annual Report on Form 10-K, in each case,
filed with the SEC.



25









 





     “Net Asset Sale Proceeds” means, with respect to any Asset Sale, an amount equal to: (i) Cash
payments (including any Cash received by way of deferred payment pursuant to, or by monetization
of, a note receivable or otherwise, but only as and when so received) received by Borrower or any
of its Subsidiaries from such Asset Sale, minus (ii) any bona fide costs incurred in
connection with such Asset Sale, including (a) income or gains taxes payable by the seller as a
result of any gain recognized in connection with such Asset Sale, (b) payment of the outstanding
principal amount of, premium or penalty, if any and interest on any Indebtedness (other than the
Loans) that is secured by a Lien on the Equity Interests or assets in question and that is required
to be repaid under the terms thereof as a result of such Asset Sale and (c) a reasonable reserve
for any indemnification payments (fixed or contingent) attributable to the seller’s indemnities and
representations and warranties to the purchaser in respect of such Asset Sale undertaken by
Borrower or any of its Subsidiaries in connection with such Asset Sale.



     “Net Cash Proceeds” means, (i) with respect to any Asset Sale, the Net Asset Sale Proceeds and
(ii) with respect to any Recovery Event, the Net Insurance/Condemnation Proceeds.



     “Net Insurance/Condemnation Proceeds” means, with respect to any Recovery Event, an amount
equal to: (i) any Cash payments or proceeds received by Borrower or any of its Subsidiaries in
connection with such Recovery Event, minus (ii) (a) any actual and reasonable costs
incurred by Borrower or any of its Subsidiaries in connection with the adjustment or settlement of
any claims of Borrower or such Subsidiary in respect of such Recovery Event and (b) any bona fide
costs incurred in connection with any taking or sale of such assets as referred to in clause (ii)
of the definition of Recovery Event, including in each case any income taxes payable as a result of
any gain recognized in connection therewith.



     “NewQuest” means NewQuest, LLC, a Texas limited liability company and a wholly-owned
subsidiary of Borrower.



     “Nonpublic Information” means information which has not been disseminated in a manner making
it available to investors generally, within the meaning of Regulation FD.



     “Non-US Lender” as defined in Section 2.20(c).



     “Note” means a Term Note, a Revolving Loan Note or a Swing Line Note.



     “Notice” means a Funding Notice, an Issuance Notice, or a Conversion/ Continuation Notice.



     “Obligations” means (i) all obligations of every nature of each Credit Party, including
obligations from time to time owed to the Agents (including former Agents), the Lenders or any of
them and Lender Counterparties, under any Credit Document or Hedge Agreement, whether for
principal, interest (including interest which, but for the filing of a petition in bankruptcy with
respect to such Credit Party, would have accrued on any Obligation, whether or not a claim is
allowed against such Credit Party for such interest in the related bankruptcy proceeding),
reimbursement of amounts drawn under Letters of Credit, payments for early termination of Hedge
Agreements, fees, expenses, indemnification or otherwise and (ii) all Cash Management Obligations.



26









 





     “Obligee Guarantor” as defined in Section 7.7.



     “OFAC” as defined in Section 4.26.



     “OIG” means the Office of Inspector General of HHS and any successor thereof.



     “Organizational Documents” means (i) with respect to any corporation, its certificate or
articles of incorporation or organization, as amended, and its by-laws, as amended, (ii) with
respect to any limited partnership, its certificate of limited partnership, as amended and its
partnership agreement, as amended, (iii) with respect to any general partnership, its partnership
agreement, as amended and (iv) with respect to any limited liability company, its certificate of
formation or articles of organization, as amended, and its operating agreement, as amended. In the
event any term or condition of this Agreement or any other Credit Document requires any
Organizational Document to be certified by a secretary of state or similar governmental official,
the reference to any such “Organizational Document” shall only be to a document of a type
customarily certified by such governmental official.



     “Patriot Act” as defined in Section 3.1(w).



     “PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.



     “Pension Plan” means any employee pension benefit plan (as defined in Section 3(2) of ERISA),
other than a Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code or
Section 302 of ERISA.



     “Permitted Acquisition” means (a) the Acquisition, and (b) any acquisition by Borrower or any
of its wholly-owned Domestic Subsidiaries, whether by purchase, merger or otherwise, of all or
substantially all of the assets of, all of the Equity Interests of, or a business line or unit or a
division of, any Person; provided,




     (i) immediately prior to and after giving effect thereto, no Default or Event of
Default shall have occurred and be continuing or would result therefrom;




     (ii) all transactions in connection therewith shall be consummated, in all material
respects, in accordance with all applicable laws and in conformity with all applicable
Governmental Authorizations;




     (iii) in the case of the acquisition of Equity Interests, all of the Equity Interests
(except for any such Securities in the nature of directors’ qualifying shares required
pursuant to applicable law) acquired or otherwise issued by such Person or any newly formed
Subsidiary of Borrower in connection with such acquisition shall be owned 100% by Borrower
or a Guarantor and Borrower shall have taken, or caused to be taken, as of the date such
Person becomes a Subsidiary of Borrower, each of the actions set forth in Sections 5.10
and/or 5.11, as applicable;




     (iv) Borrower and its Subsidiaries shall be in compliance with the financial covenants
set forth in Section 6.7 on a pro forma basis after giving effect to



27









 





such acquisition as of the last day of the Fiscal Quarter most recently ended for which
financial statements have been delivered pursuant to Section 5.1 (as determined in
accordance with Section 6.7(d));




     (v) in the case of any Permitted Acquisition with respect to which the Acquisition
Consideration is greater than $35,000,000, Borrower shall have delivered to Administrative
Agent (A) at least 10 Business Days prior to the closing date for such proposed acquisition,
(i) a Compliance Certificate evidencing compliance with Section 6.7 as required under clause
(iv) above and (ii) all other relevant financial information with respect to such acquired
assets, including the aggregate consideration for such acquisition and any other information
required to demonstrate compliance with Section 6.7 and (B) promptly upon request by
Administrative Agent, (i) a copy of the purchase agreement related to the proposed Permitted
Acquisition (and any related documents reasonably requested by Administrative Agent) and
(ii) quarterly and annual financial statements of the Person whose Equity Interests or
assets are being acquired for the twelve month (12) month period immediately prior to such
proposed Permitted Acquisition, including any audited financial statements that are
available;




     (vi) any Person or assets or division as acquired in accordance herewith (x) shall be
in same business or lines of business in which Borrower and/or its Subsidiaries are engaged
as of the Closing Date or a business reasonably related thereto, and (y) shall be domiciled
and/or located in the United States;




     (vii) Borrower’s Liquidity (after giving effect to the consummation of the respective
Permitted Acquisition and any financing thereof) shall equal or exceed $50,000,000; and




     (viii) the Board of Directors of the Person to be acquired shall not have indicated
publicly its opposition to the consummation of such acquisition (which opposition has not
been publicly withdrawn).



     “Permitted Liens” means each of the Liens permitted pursuant to Section 6.2.



     “Person” means and includes natural persons, corporations, limited partnerships, general
partnerships, limited liability companies, limited liability partnerships, joint stock companies,
Joint Ventures, associations, companies, trusts, banks, trust companies, land trusts, business
trusts or other organizations, whether or not legal entities and Governmental Authorities.



     “Platform” as defined in Section 5.1(n).



     “Pledge and Security Agreement” means the Pledge and Security Agreement to be executed by
Borrower and each Guarantor substantially in the form of Exhibit I, as it may be amended,
supplemented or otherwise modified from time to time.



     “Prime Rate” means the rate of interest quoted in The Wall Street Journal, Money Rates Section
as the Prime Rate (currently defined as the base rate on corporate loans posted by at least 75% of
the nation’s thirty (30) largest banks), as in effect from time to time. The Prime Rate is a



28









 




reference rate and does not necessarily represent the lowest or best rate actually charged to
any customer. Agent or any other Lender may make commercial loans or other loans at rates of
interest at, above or below the Prime Rate.




     “Principal Office” means, for each of Administrative Agent, Swing Line Lender and Issuing
Bank, such Person’s “Principal Office” as set forth on Appendix B, or such other office or office
of a third party or sub-agent, as appropriate, as such Person may from time to time designate in
writing to Borrower, Administrative Agent and each Lender.



     “Projections” as defined in Section 4.8.



     "Pro Rata Share” means (i) with respect to all payments, computations and other matters
relating to the Term Loan of any Lender, the percentage obtained by dividing (a) the Term Loan
Exposure of that Lender by (b) the aggregate Term Loan Exposure of all Lenders; and (ii) with
respect to all payments, computations and other matters relating to the Revolving Commitment or
Revolving Loans of any Lender or any Letters of Credit issued or participations purchased therein
by any Lender or any participations in any Swing Line Loans purchased by any Lender, the percentage
obtained by dividing (a) the Revolving Exposure of that Lender by (b) the aggregate Revolving
Exposure of all Lenders. For all other purposes with respect to each Lender, “Pro Rata Share”
means the percentage obtained by dividing (A) an amount equal to the sum of the Term Loan Exposure
and the Revolving Exposure of that Lender by (B) an amount equal to the sum of the aggregate Term
Loan Exposure and the aggregate Revolving Exposure of all Lenders.



     “Qualified Equity Interests” of any Person shall mean any Equity Interests of such person that
are not Disqualified Equity Interests.



     “RBC HMO” as defined in Section 6.7(a).



     “Real Estate Asset” means, at any time of determination, any interest (fee, leasehold or
otherwise) then owned by any Credit Party in any real property.



     “Record Document” means, with respect to any Leasehold Property, (i) the lease evidencing such
Leasehold Property or a memorandum thereof, executed and acknowledged by the owner of the affected
real property, as lessor, or (ii) if such Leasehold Property was acquired or subleased from the
holder of a Recorded Leasehold Interest, the applicable assignment or sublease document, executed
and acknowledged by such holder, in each case in form sufficient to give such constructive notice
upon recordation and otherwise in form reasonably satisfactory to Collateral Agent.



     “Recorded Leasehold Interest” means a Leasehold Property with respect to which a Record
Document has been recorded in all places necessary or desirable, in Collateral Agent’s reasonable
judgment, to give constructive notice of such Leasehold Property to third party purchasers and
encumbrancers of the affected real property.



     “Recovery Event” means any settlement of or payment (i) in respect of any property or casualty
insurance claim in respect of a covered loss thereunder or (ii) as a result of the taking of any
assets of Borrower or any of its Subsidiaries by any Person pursuant to the power of eminent



29









 




domain, condemnation or otherwise, or pursuant to a sale of any such assets to a purchaser
with such power under threat of such a taking.




     “Refunded Swing Line Loans” as defined in Section 2.3(b)(iv).



     “Register” as defined in Section 2.7(b).



     “Regulation D” means Regulation D of the Board of Governors, as in effect from time to time.



     “Regulation FD” means Regulation FD as promulgated by the US Securities and Exchange
Commission under the Securities Act and Exchange Act as in effect from time to time.



     “Regulatory Action Level” means the regulatory action level risk-based capital threshold, as
defined by NAIC, or, in any state that has not adopted the NAIC definition, as defined by the
applicable state Governmental Authority.



     “Reimbursement Date” as defined in Section 2.4(d).



     “Reinvestment Deferred Amount” means, with respect to any Reinvestment Event, the aggregate
Net Cash Proceeds received by Borrower or its Subsidiaries in connection therewith that are not
applied pursuant to Section 2.15(b) as a result of the delivery of a Reinvestment Notice.



     “Reinvestment Event” means any Asset Sale or Recovery Event in respect of which Borrower has
delivered a Reinvestment Notice.



     “Reinvestment Notice” means a written notice executed by an Authorized Officer (i) stating
that Borrower (directly or indirectly through a Subsidiary) intends and expects to use all or a
specified portion of the Net Cash Proceeds of an Asset Sale or Recovery Event to repair or replace
the assets which were the subject of such Asset Sale or Recovery Event or to acquire Useful Assets
and (ii) certifying that no Default or Event of Default has occurred and is continuing at such
time.



     “Reinvestment Prepayment Amount” means, with respect to any Reinvestment Event, the
Reinvestment Deferred Amount relating thereto less any amount expended prior to the relevant
Reinvestment Prepayment Date to repair or replace the assets which were the subject of the relevant
Asset Sale or Recovery Event or to acquire Useful Assets.



     “Reinvestment Prepayment Date” means, with respect to any Reinvestment Event, the earlier of
(i) the date occurring twelve months after such Reinvestment Event or, if Borrower or its
Subsidiaries enter into a legally binding commitment to reinvest the relevant Reinvestment Deferred
Amount prior to the date occurring twelve months after such Reinvestment Event, then the date
occurring eighteen months after such Reinvestment Event and (ii) the date on which Borrower or its
Subsidiaries shall have determined not to use all or any portion of the relevant Reinvestment
Deferred Amount to repair or replace the assets which were the subject of the relevant Asset Sale
or Recovery Event or to acquire Useful Assets, but in the case of this clause



30









 




(ii) only with respect to the portion of the applicable Reinvestment Deferred Amount as to
which such determination has been made.




     “Related Agreements” means, collectively, the Acquisition Agreement and other agreements and
documents related thereto.



     “Related Convertible Debt Derivative Transaction” means one or more options or other
derivative transactions entered into by the Borrower in connection with the issuance by the
Borrower of Convertible Indebtedness, each of which relates to the Equity Interests into which such
Convertible Indebtedness may be converted.



     “Related Fund” means, with respect to any Lender that is an investment fund, any other
investment fund that invests in commercial loans and is managed or advised by the same investment
advisor as such Lender or by an Affiliate of such investment advisor.



     “Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping,
deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous Material
into the indoor or outdoor environment (including the abandonment or disposal of any barrels,
containers or other closed receptacles containing any Hazardous Material), including the movement
of any Hazardous Material through the air, soil, surface water or groundwater.



     “Replacement Lender” as defined in Section 2.23.



     “Required Advances” means advances required by HMO Regulators to be made by Borrower or any of
its Subsidiaries to a Contract Provider.



     “Required Prepayment Date” as defined in Section 2.15(c).



     “Requirement of Law” shall mean, collectively, any and all requirements of any Governmental
Authority including any and all laws, judgments, orders, decrees, ordinances, rules, regulations,
statutes or case law (including all applicable HMO Regulations, Medicare Regulations and Medicaid
Regulations).



     “Requisite Lenders” means one or more Lenders having or holding Term Loan Exposure and
Revolving Exposure and representing more than 50% of the sum of (i) the aggregate Term Loan
Exposure of all Lenders and (ii) the aggregate Revolving Exposure of all Lenders.



     “Restricted Junior Payment” means (i) any dividend or other distribution, direct or indirect,
on account of any shares of any class of stock of Borrower now or hereafter outstanding, except a
dividend payable solely in shares of Qualified Equity Interests; (ii) any redemption, retirement,
sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of
any shares of any class of stock of Borrower now or hereafter outstanding; (iii) any payment made
to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to
acquire shares of any class of stock of Borrower now or hereafter outstanding; and (iv) any payment
or prepayment of principal of, premium, if any, or interest on, or redemption, purchase,
retirement, defeasance (including in substance or legal defeasance), sinking fund, cash



31









 




settlement or similar payment with respect to any earn-out obligation or any Designated
Indebtedness, Subordinated Indebtedness or any Related Convertible Debt Derivative Transaction.




     “Revolving Commitment” means the commitment of a Lender to make or otherwise fund any
Revolving Loan and to acquire participations in Letters of Credit and Swing Line Loans hereunder
and “Revolving Commitments” means such commitments of all Lenders in the aggregate. The amount of
each Lender’s Revolving Commitment, if any, is set forth on Appendix A-2 or in the applicable
Assignment Agreement, subject to any adjustment or reduction pursuant to the terms and conditions
hereof. The aggregate amount of the Revolving Commitments as of the Closing Date is $100,000,000.



     “Revolving Commitment Period” means the period from the Closing Date to but excluding the
Revolving Commitment Termination Date.



     “Revolving Commitment Termination Date” means the earliest to occur of (i) October 3, 2007, if
the Term Loans are not made on or before that date, (ii) the fifth anniversary of the Closing Date,
(iii) the date the Revolving Commitments are permanently reduced to zero pursuant to Section
2.13(b) or 2.14 and (iv) the date of the termination of the Revolving Commitments pursuant to
Section 8.1.



     “Revolving Exposure” means, with respect to any Lender as of any date of determination, (i)
prior to the termination of the Revolving Commitments, that Lender’s Revolving Commitment; and (ii)
after the termination of the Revolving Commitments, the sum of (a) the aggregate outstanding
principal amount of the Revolving Loans of that Lender, (b) in the case of Issuing Bank, the
aggregate Letter of Credit Usage in respect of all Letters of Credit issued by that Lender (net of
any participations by Lenders in such Letters of Credit), (c) the aggregate amount of all
participations by that Lender in any outstanding Letters of Credit or any unreimbursed drawing
under any Letter of Credit, (d) in the case of Swing Line Lender, the aggregate outstanding
principal amount of all Swing Line Loans (net of any participations therein by other Lenders) and
(e) the aggregate amount of all participations therein by that Lender in any outstanding Swing Line
Loans.



     “Revolving Lender” means each Lender that has a Revolving Commitment or that holds Revolving
Loans.



     “Revolving Loan” means a Loan made by a Lender to Borrower pursuant to Section 2.2(a).



     “Revolving Loan Note” means a promissory note in the form of Exhibit B-2, as it may be
amended, supplemented or otherwise modified from time to time.



     “RS Advances” means advances made by HMO Subsidiaries in the ordinary course of business to
Contract Providers on a per member per month basis designed to cover such Contract Providers’
anticipated professional risk, which advances are then adjusted on a periodic basis (and in any
event no less than quarterly) between the HMO Subsidiaries and the Contract Providers based on
actual experience measured against pre-determined sharing ratios.



32









 





     “S&P” means Standard & Poor’s Ratings Group, a division of The McGraw Hill Corporation.



     “SAP” means, with respect to each HMO Subsidiary, the statutory accounting principles and
procedures prescribed or permitted by applicable HMO Regulations for such HMO Subsidiary, applied
on a consistent basis, as interpreted by the state in which the applicable HMO Subsidiary operates.



     “SCHIP” means the State Childrens’ Health Insurance Program, a federal/state matching program
that provides health care coverage to children not otherwise covered by Medicaid or other insurance
programs and that may be administered by states through their Medicaid programs.



     “SEC” means the Securities and Exchange Commission, any successor thereto and any analogous
Governmental Authority succeeding to the functions thereof.



     “Secured Parties” has the meaning assigned to that term in the Pledge and Security Agreement.



     “Securities” means any stock, shares, partnership interests, voting trust certificates,
certificates of interest or participation in any profit sharing agreement or arrangement, options,
warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured,
convertible, subordinated or otherwise, or in general any instruments commonly known as
“securities” or any certificates of interest, shares or participations in temporary or interim
certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire,
any of the foregoing.



     “Securities Act” means the Securities Act of 1933, as amended from time to time and any
successor statute.



     “Social Security Act” means the Social Security Act of 1965 as set forth in Title 42 of the
United States Code, as amended, and any successor statute thereto, as interpreted by the rules and
regulations promulgated thereunder.



     “Solvency Certificate” means a Solvency Certificate of the chief financial officer of Borrower
substantially in the form of Exhibit G-2.



     “Solvent” means, with respect to any Credit Party, that as of the date of determination, both
(i) (a) the sum of such Credit Party’s debt (including contingent liabilities) does not exceed the
present fair saleable value of such Credit Party’s present assets; (b) such Credit Party’s capital
is not unreasonably small in relation to its business as contemplated on the Closing Date and
reflected in the Projections or with respect to any transaction contemplated or undertaken after
the Closing Date; and (c) such Person has not incurred and does not intend to incur, or believe
that it will incur, debts beyond its ability to pay such debts as they become due (whether at
maturity or otherwise); and (ii) such Person is “solvent” within the meaning given that term and
similar terms under the Bankruptcy Code and applicable laws relating to fraudulent transfers and
conveyances. For purposes of this definition, the amount of any contingent liability at any time
shall be computed as the amount that, in light of all of the facts and circumstances existing at



33









 




such time, represents the amount that can reasonably be expected to become an actual or
matured liability (irrespective of whether such contingent liabilities meet the criteria for
accrual under Statement of Financial Accounting Standard No. 5).




     “Stark I and II” means Section 1877 of the Social Security Act as set forth at Section 1395nn
of Title 42 of the United States Code, as amended and any successor statute thereto, as interpreted
by the rules and regulations issued thereunder, in each case as in effect from time to time.



     “Statutory Net Worth” means, for an HMO Subsidiary, the difference between (i) total admitted
assets and (ii) total liabilities, in each case as calculated according to the applicable state’s
interpretation of SAP or other similar state-mandated accounting principles.



     “Subject Transaction” as defined in Section 6.7(d).



     “Subordinated Indebtedness” means any unsecured Indebtedness of Borrower, no part of the
principal of which is required to be paid (whether by way of mandatory sinking fund, mandatory
redemption or mandatory prepayment), prior to the first anniversary of the Term Loan Maturity Date
(it being understood that any required offer to purchase such Indebtedness as a result of a change
of control or asset sale shall not violate the foregoing restriction) and the terms and conditions
of which (including subordination provisions) are otherwise reasonably satisfactory to
Administrative Agent.



     “Subordinated Indebtedness Indenture” means any indenture or other agreement pursuant to which
any Subordinated Indebtedness is issued.



     “Subsidiary” means, with respect to any Person, any corporation, partnership, limited
liability company, association, Joint Venture or other business entity of which more than 50% of
the total voting power of shares of stock or other ownership interests entitled (without regard to
the occurrence of any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions) having the power to
direct or cause the direction of the management and policies thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof; provided, in determining the percentage of ownership
interests of any Person controlled by another Person, no ownership interest in the nature of a
“qualifying share” of the former Person shall be deemed to be outstanding.



     “Swing Line Lender” means Citibank, N.A. in its capacity as Swing Line Lender hereunder,
together with its permitted successors and assigns in such capacity.



     “Swing Line Loan” means a Loan made by Swing Line Lender to Borrower pursuant to Section 2.3.



     “Swing Line Note” means a promissory note in the form of Exhibit B-3, as it may be amended,
supplemented or otherwise modified from time to time.



     “Swing Line Sublimit” means the lesser of (i) $5,000,000 and (ii) the aggregate unused amount
of Revolving Commitments then in effect.



34









 





     “Tax” means any present or future tax, levy, impost, duty, assessment, charge, fee, deduction
or withholding of any nature and whatever called, by whomsoever, on whomsoever and wherever
imposed, levied, collected, withheld or assessed; provided, “Tax on the overall net income”
of a Person shall be construed as a reference to a tax imposed by the jurisdiction in which that
Person is organized or in which that Person’s applicable principal office (and/or, in the case of a
Lender, its lending office) is located or in which that Person (and/or, in the case of a Lender,
its lending office) is deemed to be doing business on all or part of the net income, profits or
gains (whether worldwide, or only insofar as such income, profits or gains are considered to arise
in or to relate to a particular jurisdiction, or otherwise) of that Person (and/or, in the case of
a Lender, its applicable lending office).



     “Term Loan” means a Term Loan made by a Lender to Borrower pursuant to Section 2.1(a).



     “Term Loan Commitment” means the commitment of a Lender to make or otherwise fund a Term Loan,
and “Term Loan Commitments” means such commitments of all Lenders in the aggregate. The amount of
each Lender’s Term Loan Commitment, if any, is set forth on Appendix A-1 or in the applicable
Assignment Agreement, subject to any adjustment or reduction pursuant to the terms and conditions
hereof. The aggregate amount of the Term Loan Commitments as of the Closing Date is $300,000,000.



     “Term Loan Exposure” means, with respect to any Lender, as of any date of determination, the
outstanding principal amount of the Term Loans of such Lender; provided, at any time prior
to the making of the Term Loans, the Term Loan Exposure of any Lender shall be equal to such
Lender’s Term Loan Commitment.



     “Term Loan Maturity Date” means the earlier of (i) the fifth anniversary of the Closing Date
and (ii) the date that all Term Loans shall become due and payable in full hereunder, whether by
acceleration or otherwise.



     “Term Loan Note” means a promissory note in the form of Exhibit B-1, as it may be amended,
supplemented or otherwise modified from time to time.



     “Terminated Lender” as defined in Section 2.23.



     “Title Policy” as defined in Section 5.11.



     “Total Utilization of Revolving Commitments” means, as at any date of determination, the sum
of (i) the aggregate principal amount of all outstanding Revolving Loans (other than Revolving
Loans made for the purpose of repaying any Refunded Swing Line Loans or reimbursing Issuing Bank
for any amount drawn under any Letter of Credit, but not yet so applied), (ii) the aggregate
principal amount of all outstanding Swing Line Loans and (iii) the Letter of Credit Usage.



     “Transaction Costs” means the fees, costs and expenses payable by Borrower or any of
Borrower’s Subsidiaries on or before the Closing Date in connection with the transactions
contemplated by the Credit Documents and the Related Agreements.



35









 





     “Type of Loan” means (i) with respect to either Term Loans or Revolving Loans, a Base Rate
Loan or a Eurodollar Rate Loan and (ii) with respect to Swing Line Loans, a Base Rate Loan.



     “UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in
effect in any applicable jurisdiction.



     “U.S. Lender” as defined in Section 2.20(c).



     “Useful Assets” means, in the case of an Asset Sale, assets of the general type used or useful
in the business of Borrower and its Subsidiaries and, in the case of a Recovery Event, long term or
otherwise non-current productive assets of the general type used or useful in the business of
Borrower and its Subsidiaries.



     “Waivable Mandatory Prepayment” as defined in Section 2.15(c).



     1.2 Accounting Terms. Except as otherwise expressly provided herein, all accounting terms not
otherwise defined herein shall have the meanings assigned to them in conformity with GAAP. Except
as otherwise expressly provided herein, financial statements and other information required to be
delivered by Borrower to the Lenders pursuant to Section 5.1(a) and 5.1(b) shall be prepared in
accordance with GAAP as in effect at the time of such preparation (and delivered together with the
reconciliation statements provided for in Section 5.1(e), if applicable). Subject to the
foregoing, calculations in connection with the definitions, covenants and other provisions hereof
shall utilize accounting principles and policies in conformity with those used to prepare the
Historical Financial Statements. Notwithstanding the foregoing, in the event that any Accounting
Change shall occur and such change results in a change in the method of calculation of financial
covenants, standards or terms in this Agreement, then Borrower and Administrative Agent agree to
enter into negotiations in good faith in order to amend such provisions of this Agreement so as to
reflect equitably such Accounting Change with the desired result that the criteria for evaluating
Borrower’s financial condition shall be the same after such Accounting Change as if such Accounting
Change had not occurred. Until such time as such amendment shall have been executed and delivered
by Borrower and the Required Lenders, all financial covenants, standards and terms in this
Agreement shall continue to be calculated or construed as if such Accounting Change had not
occurred.



     1.3 Interpretation, etc. Any of the terms defined herein may, unless the context otherwise requires, be
used in the singular or the plural, depending on the reference. References herein to any Section,
Appendix, Schedule or Exhibit shall be to a Section, an Appendix, a Schedule or an Exhibit, as the
case may be, hereof unless otherwise specifically provided. The use herein of the word “include”
or “including”, when following any general statement, term or matter, shall not be construed to
limit such statement, term or matter to the specific items or matters set forth immediately
following such word or to similar items or matters, whether or not non-limiting language (such as
“without limitation” or “but not limited to” or words of similar import) is used with reference
thereto, but rather shall be deemed to refer to all other items or matters that fall within the
broadest possible scope of such general statement, term or matter. The terms lease and license
shall include sub-lease and sub-license, as applicable.



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SECTION 2. LOANS AND LETTERS OF CREDIT




     2.1 Term Loans.



          (a) Loan Commitments. Subject to the terms and conditions hereof, each Lender severally agrees
to make, on the Closing Date, a Term Loan to Borrower in an amount equal to such Lender’s Term Loan
Commitment. Borrower may make only one borrowing under the Term Loan Commitment, which shall be on
the Closing Date. Any amount borrowed under this Section 2.1(a) and subsequently repaid or prepaid
may not be reborrowed. Subject to Sections 2.13(a) and 2.14, all amounts owed hereunder with
respect to the Term Loans shall be paid in full no later than the Term Loan Maturity Date. Each
Lender’s Term Loan Commitment shall terminate immediately and without further action on the Closing
Date after giving effect to the funding of such Lender’s Term Loan Commitment on such date.



     (b) Borrowing Mechanics for Term Loans.




     (i) Borrower shall deliver to Administrative Agent a fully executed Funding Notice no
later than three days prior to the Closing Date. Promptly upon receipt by Administrative
Agent of such Funding Notice, Administrative Agent shall notify each Lender of the proposed
borrowing.




     (ii) Each Lender shall make its Term Loan available to Administrative Agent not later
than 12:00 noon (New York City time) on the Closing Date, by wire transfer of same day funds
in Dollars, at the Principal Office designated by Administrative Agent. Upon satisfaction
or waiver of the conditions precedent specified herein, Administrative Agent shall make the
proceeds of the Term Loans available to Borrower on the Closing Date by causing an amount of
same day funds in Dollars equal to the proceeds of all such Loans received by Administrative
Agent from Lenders to be credited to the account of Borrower at the Principal Office
designated by Administrative Agent or to such other account as may be designated in writing
to Administrative Agent by Borrower.



     2.2 Revolving Loans.



          (a) Revolving Commitments. During the Revolving Commitment Period, subject to the terms and
conditions hereof, each Lender severally agrees to make Revolving Loans to Borrower in Dollars in
an aggregate amount up to but not exceeding such Lender’s Revolving Commitment; provided,
that no more than $25,000,000 in the aggregate shall be available on the Closing Date and
provided further, that after giving effect to the making of any Revolving Loans in
no event shall the Total Utilization of Revolving Commitments exceed the Revolving Commitments then
in effect. Amounts borrowed pursuant to this Section 2.2(a) may be repaid and reborrowed during
the Revolving Commitment Period. Each Lender’s Revolving Commitment shall expire on the Revolving
Commitment Termination Date, and all



37









 




Revolving Loans and all other amounts owed hereunder with respect to the Revolving Loans and the
Revolving Commitments shall be paid in full no later than such date.




          (b) Borrowing Mechanics for Revolving Loans.




     (i) Except pursuant to 2.4(d), Revolving Loans that are Base Rate Loans shall be made
in an aggregate minimum amount of $1,000,000 and integral multiples of $1,000,000 in excess
of that amount and Revolving Loans that are Eurodollar Rate Loans shall be in an aggregate
minimum amount of $5,000,000 and integral multiples of $1,000,000 in excess of that amount.




     (ii) Whenever Borrower desires that Lenders make Revolving Loans, Borrower shall
deliver to Administrative Agent a fully executed and delivered Funding Notice no later than
10:00 a.m. (New York City time) at least three Business Days in advance of the proposed
Credit Date in the case of a Eurodollar Rate Loan and at least one Business Day in advance
of the proposed Credit Date in the case of a Revolving Loan that is a Base Rate Loan.
Except as otherwise provided herein, a Funding Notice for a Revolving Loan that is a
Eurodollar Rate Loan shall be irrevocable on and after the related Interest Rate
Determination Date and Borrower shall be bound to make a borrowing in accordance therewith.




     (iii) Notice of receipt of each Funding Notice in respect of Revolving Loans, together
with the amount of each Lender’s Pro Rata Share thereof, if any, together with the
applicable interest rate, shall be provided by Administrative Agent to each applicable
Lender by telefacsimile with reasonable promptness, but (provided, Administrative
Agent shall have received such notice by 10:00 a.m. (New York City time)) not later than
2:00 p.m. (New York City time) on the same day as Administrative Agent’s receipt of such
Notice from Borrower.




     (iv) Each Lender shall make the amount of its Revolving Loan available to
Administrative Agent not later than 12:00 noon (New York City time) on the applicable Credit
Date by wire transfer of same day funds in Dollars, at the Principal Office designated by
Administrative Agent. Except as provided herein, upon satisfaction or waiver of the
conditions precedent specified herein, Administrative Agent shall make the proceeds of such
Revolving Loans available to Borrower on the applicable Credit Date by causing an amount of
same day funds in Dollars equal to the proceeds of all such Revolving Loans received by
Administrative Agent from Lenders to be credited to the account of Borrower at the Principal
Office designated by Administrative Agent or such other account as may be designated in
writing to Administrative Agent by Borrower.



     2.3 Swing Line Loans.



          (a) Swing Line Loans Commitment. During the Revolving Commitment Period, subject to the terms
and conditions hereof, Swing Line Lender hereby agrees to make Swing Line Loans to Borrower in
Dollars in the aggregate amount up to but not exceeding the Swing Line Sublimit; provided,
that after giving effect to the making of any Swing



38









 




Line Loan, in no event shall the Total Utilization of Revolving Commitments exceed the Revolving
Commitments then in effect. Amounts borrowed pursuant to this Section 2.3 may be repaid and
reborrowed during the Revolving Commitment Period. Swing Line Lender’s Revolving Commitment shall
expire on the Revolving Commitment Termination Date, and all Swing Line Loans and all other amounts
owed hereunder with respect to the Swing Line Loans and the Revolving Commitments shall be paid in
full no later than such date.




          (b) Borrowing Mechanics for Swing Line Loans.




     (i) Swing Line Loans shall be made in an aggregate minimum amount of $500,000 and
integral multiples of $100,000 in excess of that amount.




     (ii) Whenever Borrower desires that Swing Line Lender make a Swing Line Loan, Borrower
shall deliver to Administrative Agent a Funding Notice no later than 12:00 noon (New York
City time) on the proposed Credit Date.




     (iii) Swing Line Lender shall make the amount of its Swing Line Loan available to
Administrative Agent not later than 2:00 p.m. (New York City time) on the applicable Credit
Date by wire transfer of same day funds in Dollars, at Administrative Agent’s Principal
Office. Except as provided herein, upon satisfaction or waiver of the conditions precedent
specified herein, Administrative Agent shall make the proceeds of such Swing Line Loans
available to Borrower on the applicable Credit Date by causing an amount of same day funds
in Dollars equal to the proceeds of all such Swing Line Loans received by Administrative
Agent from Swing Line Lender to be credited to the account of Borrower at Administrative
Agent’s Principal Office, or to such other account as may be designated in writing to
Administrative Agent by Borrower.




     (iv) With respect to any Swing Line Loans which have not been voluntarily prepaid by
Borrower pursuant to Section 2.13, Swing Line Lender may at any time in its sole and
absolute discretion, deliver to Administrative Agent (with a copy to Borrower), no later
than 11:00 a.m. (New York City time) at least one Business Day in advance of the proposed
Credit Date, a notice (which shall be deemed to be a Funding Notice given by Borrower)
requesting that each Lender holding a Revolving Commitment make Revolving Loans that are
Base Rate Loans to Borrower on such Credit Date in an amount equal to the amount of such
Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is
given which Swing Line Lender requests Lenders to prepay. Anything contained in this
Agreement to the contrary notwithstanding, (1) the proceeds of such Revolving Loans made by
the Lenders other than Swing Line Lender shall be immediately delivered by Administrative
Agent to Swing Line Lender (and not to Borrower) and applied to repay a corresponding
portion of the Refunded Swing Line Loans and (2) on the day such Revolving Loans are made,
Swing Line Lender’s Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be
paid with the proceeds of a Revolving Loan made by Swing Line Lender to Borrower, and such
portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing
Line Loans and shall no longer be due under the Swing Line Note of Swing Line Lender but
shall instead constitute part of Swing Line Lender’s



39









 





outstanding Revolving Loans to Borrower and shall be due under the Revolving Loan Note
issued by Borrower to Swing Line Lender. If any portion of any such amount paid (or deemed
to be paid) to Swing Line Lender should be recovered by or on behalf of Borrower from Swing
Line Lender in bankruptcy, by assignment for the benefit of creditors or otherwise, the loss
of the amount so recovered shall be ratably shared among all Lenders in the manner
contemplated by Section 2.17.




     (v) If for any reason Revolving Loans are not made pursuant to Section 2.3(b)(iv) in an
amount sufficient to repay any amounts owed to Swing Line Lender in respect of any
outstanding Swing Line Loans on or before the third Business Day after demand for payment
thereof by Swing Line Lender, each Lender holding a Revolving Commitment shall be deemed to
have purchased and hereby agrees to purchase a participation in such outstanding Swing Line
Loans and in an amount equal to its Pro Rata Share of the applicable unpaid amount together
with accrued interest thereon. Upon one Business Day’s notice from Swing Line Lender, each
Lender holding a Revolving Commitment shall deliver to Swing Line Lender an amount equal to
its respective participation in the applicable unpaid amount in same day funds at the
Principal Office of Swing Line Lender. In order to evidence such participation each Lender
holding a Revolving Commitment agrees to enter into a participation agreement at the request
of Swing Line Lender in form and substance reasonably satisfactory to Swing Line Lender. In
the event any Lender holding a Revolving Commitment fails to make available to Swing Line
Lender the amount of such Lender’s participation as provided in this paragraph, Swing Line
Lender shall be entitled to recover such amount on demand from such Lender together with
interest thereon for three Business Days at the rate customarily used by Swing Line Lender
for the correction of errors among banks and thereafter at the Base Rate, as applicable.




     (vi) Notwithstanding anything contained herein to the contrary, (1) each Lender’s
obligation to make Revolving Loans for the purpose of repaying any Refunded Swing Line Loans
pursuant to the second preceding paragraph and each Lender’s obligation to purchase a
participation in any unpaid Swing Line Loans pursuant to the immediately preceding paragraph
shall be absolute and unconditional and shall not be affected by any circumstance, including
(A) any set-off, counterclaim, recoupment, defense or other right which such Lender may have
against Swing Line Lender, any Credit Party or any other Person for any reason whatsoever;
(B) the occurrence or continuation of a Default or Event of Default; (C) any adverse change
in the business, operations, properties, assets, condition (financial or otherwise) or
prospects of any Credit Party; (D) any breach of this Agreement or any other Credit Document
by any party thereto; or (E) any other circumstance, happening or event whatsoever, whether
or not similar to any of the foregoing; provided that such obligations of each
Lender are subject to the condition that Swing Line Lender believed in good faith that all
conditions under Section 3.2 to the making of the applicable Refunded Swing Line Loans or
other unpaid Swing Line Loans were satisfied at the time such Refunded Swing Line Loans or
unpaid Swing Line Loans were made, or the satisfaction of any such condition not satisfied
had been waived by the Requisite Lenders prior to or at the time such Refunded Swing Line
Loans or other unpaid Swing Line Loans were made; and (2) Swing Line Lender shall not be
obligated to make any Swing Line Loans (A) if it has elected not to



40









 





do so after the occurrence and during the continuation of a Default or Event of Default
or (B) at a time when a Funding Default exists unless Swing Line Lender has entered into
arrangements satisfactory to it and Borrower to eliminate Swing Line Lender’s risk with
respect to the Defaulting Lender’s participation in such Swing Ling Loan, including by cash
collateralizing such Defaulting Lender’s Pro Rata Share of the outstanding Swing Line Loans.



     2.4 Issuance of Letters of Credit and Purchase of Participations Therein.



          (a) Letters of Credit. During the Revolving Commitment Period, subject to the terms and
conditions hereof, Issuing Bank agrees to issue Letters of Credit for the account of Borrower in
the aggregate amount up to but not exceeding the Letter of Credit Sublimit; provided, (i)
each Letter of Credit shall be denominated in Dollars; (ii) the stated amount of each Letter of
Credit shall not be less than $100,000 or such lesser amount as is acceptable to Issuing Bank;
(iii) after giving effect to such issuance, in no event shall the Total Utilization of Revolving
Commitments exceed the Revolving Commitments then in effect; (iv) after giving effect to such
issuance, in no event shall the Letter of Credit Usage exceed the Letter of Credit Sublimit then in
effect; (v) in no event shall any standby Letter of Credit have an expiration date later than the
earlier of (1) the Revolving Commitment Termination Date and (2) the date which is one year from
the date of issuance of such standby Letter of Credit; and (vi) in no event shall any commercial
Letter of Credit (x) have an expiration date later than the earlier of (1) the Revolving Loan
Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such
commercial Letter of Credit or (b) be issued if such commercial Letter of Credit is otherwise
unacceptable to Issuing Bank in its reasonable discretion. Subject to the foregoing, Issuing Bank
may agree that a standby Letter of Credit will automatically be extended for one or more successive
periods not to exceed one year each, unless Issuing Bank elects not to extend for any such
additional period; provided, Issuing Bank shall not extend any such Letter of Credit if it
has received written notice that an Event of Default has occurred and is continuing at the time
Issuing Bank must elect to allow such extension; provided, further, in the event a Funding
Default exists, Issuing Bank shall not be required to issue any Letter of Credit unless Issuing
Bank has entered into arrangements satisfactory to it and Borrower to eliminate Issuing Bank’s risk
with respect to the participation in Letters of Credit of the Defaulting Lender, including by cash
collateralizing such Defaulting Lender’s Pro Rata Share of the Letter of Credit Usage.



          (b) Notice of Issuance. Whenever Borrower desires the issuance of a Letter of Credit, it shall
deliver to Administrative Agent an Issuance Notice no later than 12:00 noon (New York City time) at
least three Business Days (in the case of standby letters of credit) or five Business Days (in the
case of commercial letters of credit), or in each case such shorter period as may be agreed to by
Issuing Bank in any particular instance, in advance of the proposed date of issuance. Upon
satisfaction or waiver of the conditions set forth in Section 3.2, Issuing Bank shall issue the
requested Letter of Credit only in accordance with Issuing Bank’s standard operating procedures.
Upon the issuance of any Letter of Credit or amendment or modification to a Letter of Credit,
Issuing Bank shall promptly notify each Lender with a Revolving Commitment of such issuance, which
notice shall be accompanied by a copy of such



41









 




Letter of Credit or amendment or modification to a Letter of Credit and the amount of such
Lender’s respective participation in such Letter of Credit pursuant to Section 2.4(e).




          (c) Responsibility of Issuing Bank With Respect to Requests for Drawings and Payments. In
determining whether to honor any drawing under any Letter of Credit by the beneficiary thereof,
Issuing Bank shall be responsible only to examine the documents delivered under such Letter of
Credit with reasonable care so as to ascertain whether they appear on their face to be in
accordance with the terms and conditions of such Letter of Credit. As between Borrower and Issuing
Bank, Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit
issued by Issuing Bank, by the respective beneficiaries of such Letters of Credit. In furtherance
and not in limitation of the foregoing, Issuing Bank shall not be responsible for: (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party
in connection with the application for and issuance of any such Letter of Credit, even if it should
in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii)
failure of the beneficiary of any such Letter of Credit to comply fully with any conditions
required in order to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise,
whether or not they be in cipher; (v) errors in interpretation of technical terms; (vi) any loss or
delay in the transmission or otherwise of any document required in order to make a drawing under
any such Letter of Credit or of the proceeds thereof; (vii) the misapplication by the beneficiary
of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or (viii)
any consequences arising from causes beyond the control of Issuing Bank, including any Governmental
Acts, and none of the above shall affect or impair, or prevent the vesting of, any of Issuing
Bank’s rights or powers hereunder. Without limiting the foregoing and in furtherance thereof, any
action taken or omitted by Issuing Bank under or in connection with the Letters of Credit or any
documents and certificates delivered thereunder, if taken or omitted in good faith, shall not give
rise to any liability on the part of Issuing Bank to Borrower. Notwithstanding anything to the
contrary contained in this Section 2.4(c), Borrower shall retain any and all rights it may have
against Issuing Bank for any liability arising solely out of the gross negligence or willful
misconduct of Issuing Bank.



          (d) Reimbursement by Borrower of Amounts Drawn or Paid Under Letters of Credit. In the event
Issuing Bank has determined to honor a drawing under a Letter of Credit, it shall immediately
notify Borrower and Administrative Agent, and Borrower shall reimburse Issuing Bank on or before
the Business Day immediately following the date on which such drawing is honored (the
“Reimbursement Date”) in an amount in Dollars and in same day funds equal to the amount of such
honored drawing; provided, anything contained herein to the contrary notwithstanding, (i)
unless Borrower shall have notified Administrative Agent and Issuing Bank prior to 10:00 a.m. (New
York City time) on the date such drawing is honored that Borrower intends to reimburse Issuing Bank
for the amount of such honored drawing with funds other than the proceeds of Revolving Loans,
Borrower shall be deemed to have given a timely Funding Notice to Administrative Agent requesting
Lenders with Revolving Commitments to



42









 




make Revolving Loans that are Base Rate Loans on the Reimbursement Date in an amount in Dollars
equal to the amount of such honored drawing and (ii) subject to satisfaction or waiver of the
conditions specified in Section 3.2, Lenders with Revolving Commitments shall, on the Reimbursement
Date, make Revolving Loans that are Base Rate Loans in the amount of such honored drawing, the
proceeds of which shall be applied directly by Administrative Agent to reimburse Issuing Bank for
the amount of such honored drawing; and provided further, if for any reason proceeds of Revolving
Loans are not received by Issuing Bank on the Reimbursement Date in an amount equal to the amount
of such honored drawing, Borrower shall reimburse Issuing Bank, on demand, in an amount in same day
funds equal to the excess of the amount of such honored drawing over the aggregate amount of such
Revolving Loans, if any, which are so received. Nothing in this Section 2.4(d) shall be deemed to
relieve any Lender with a Revolving Commitment from its obligation to make Revolving Loans on the
terms and conditions set forth herein and Borrower shall retain any and all rights it may have
against any such Lender resulting from the failure of such Lender to make such Revolving Loans
under this Section 2.4(d).




          (e) Lenders’ Purchase of Participations in Letters of Credit. Immediately upon the issuance of
each Letter of Credit, each Lender having a Revolving Commitment shall be deemed to have purchased
and hereby irrevocably agrees to purchase from Issuing Bank a participation in such Letter of
Credit and any drawings honored thereunder in an amount equal to such Lender’s Pro Rata Share (with
respect to the Revolving Commitments) of the maximum amount which is or at any time may become
available to be drawn thereunder. In the event that Borrower shall fail for any reason to
reimburse Issuing Bank as provided in Section 2.4(d), Issuing Bank shall promptly notify each
Lender with a Revolving Commitment of the unreimbursed amount of such honored drawing and of such
Lender’s respective participation therein based on such Lender’s Pro Rata Share of the Revolving
Commitments. Each Lender with a Revolving Commitment shall make available to Issuing Bank an
amount equal to its respective participation, in Dollars and in same day funds, at the office of
Issuing Bank specified in such notice, not later than 12:00 noon (New York City time) on the first
business day (under the laws of the jurisdiction in which such office of Issuing Bank is located)
after the date notified by Issuing Bank. In the event that any Lender with a Revolving Commitment
fails to make available to Issuing Bank on such business day the amount of such Lender’s
participation in such Letter of Credit as provided in this Section 2.4(e), Issuing Bank shall be
entitled to recover such amount on demand from such Lender together with interest thereon at the
rate customarily used by Issuing Bank for the correction of errors among banks for three Business
Days and thereafter at the Base Rate. Nothing in this Section 2.4(e) shall be deemed to prejudice
the right of any Lender with a Revolving Commitment to recover from Issuing Bank any amounts made
available by such Lender to Issuing Bank pursuant to this Section in the event that it is
determined that the payment with respect to a Letter of Credit in respect of which payment was made
by such Lender constituted gross negligence or willful misconduct on the part of Issuing Bank. In
the event Issuing Bank shall have been reimbursed by other Lenders pursuant to this Section 2.4(e)
for all or any portion of any drawing honored by Issuing Bank under a Letter of Credit, such
Issuing Bank shall distribute to each Lender which has paid all amounts payable by it under this
Section 2.4(e) with respect to such honored drawing such Lender’s Pro Rata Share of all payments
subsequently received by Issuing Bank from Borrower in reimbursement of such honored drawing when
such payments are received. Any



43









 




such distribution shall be made to a Lender at its primary address set forth below its name on
Appendix B or at such other address as such Lender may request.




          (f) Obligations Absolute. The obligation of Borrower to reimburse Issuing Bank for drawings
honored under the Letters of Credit issued by it and to repay any Revolving Loans made by Lenders
pursuant to Section 2.4(d) and the obligations of Lenders under Section 2.4(e) shall be
unconditional and irrevocable and shall be paid strictly in accordance with the terms hereof under
all circumstances including any of the following circumstances: (i) any lack of validity or
enforceability of any Letter of Credit; (ii) the existence of any claim, set-off, defense or other
right which Borrower or any Lender may have at any time against a beneficiary or any transferee of
any Letter of Credit (or any Persons for whom any such transferee may be acting), Issuing Bank,
Lender or any other Person or, in the case of a Lender, against Borrower, whether in connection
herewith, the transactions contemplated herein or any unrelated transaction (including any
underlying transaction between Borrower or one of its Subsidiaries and the beneficiary for which
any Letter of Credit was procured); (iii) any draft or other document presented under any Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; (iv) payment by Issuing Bank under any Letter of
Credit against presentation of a draft or other document which does not substantially comply with
the terms of such Letter of Credit; (v) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Borrower or any of its Subsidiaries;
(vi) any breach hereof or any other Credit Document by any party thereto; (vii) any other
circumstance or happening whatsoever, whether or not similar to any of the foregoing; or (viii) the
fact that an Event of Default or a Default shall have occurred and be continuing; provided,
in each case, that payment by Issuing Bank under the applicable Letter of Credit shall not have
constituted gross negligence or willful misconduct of Issuing Bank under the circumstances in
question.



          (g) Indemnification. Without duplication of any obligation of Borrower under Section 10.2 or
10.3, in addition to amounts payable as provided herein, Borrower hereby agrees to protect,
indemnify, pay and save harmless Issuing Bank from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable fees, expenses and
disbursements of counsel) which Issuing Bank may incur or be subject to as a consequence, direct or
indirect, of (i) the issuance of any Letter of Credit by Issuing Bank, other than as a result of
(1) the gross negligence or willful misconduct of Issuing Bank or (2) the wrongful dishonor by
Issuing Bank of a proper demand for payment made under any Letter of Credit issued by it, or (ii)
the failure of Issuing Bank to honor a drawing under any such Letter of Credit as a result of any
Governmental Act.



          (h) Additional Issuing Banks. Borrower may, at any time and from time to time, designate one
or more additional Revolving Lender(s) to act as an issuing bank under the terms of this Agreement,
with the consent of Administrative Agent (which consent shall not be unreasonably withheld) and
such Revolving Lender(s). Any Revolving Lender designated as an issuing bank pursuant to this
paragraph (h) shall be deemed (in addition to being a Revolving Lender) to be the Issuing Bank with
respect to Letters of Credit issued or to be issued by such Revolving Lender, and all references
herein and in the other Loan Documents to the term



44









 




“Issuing Bank” shall, with respect to such Letters of Credit, be deemed to refer to such Revolving
Lender in its capacity as Issuing Bank, as the context shall require.




          (i) Resignation or Removal of an Issuing Bank. Any Issuing Bank may resign as Issuing
Bank hereunder at any time upon at least 30 days’ prior notice to Lenders, Administrative Agent and
Borrower. Administrative Agent shall notify Lenders of any such resignation and any corresponding
replacement of any Issuing Bank. At the time any such resignation or replacement shall become
effective, Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Bank
pursuant to Section 2.11. From and after the effective date of any such resignation or replacement
or addition, as applicable, (i) the successor or additional Issuing Bank shall have all the rights
and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit to be
issued by it thereafter and (ii) references herein to the term “Issuing Bank” shall be deemed to
refer to such successor or such addition or to any previous Issuing Bank, or to such successor or
such addition and all previous Issuing Banks, as the context shall require. After the resignation
or replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto
and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement
with respect to Letters of Credit issued by it prior to such resignation or replacement, but shall
not be required to issue additional Letters of Credit. If at any time there is more than one
Issuing Bank hereunder, Borrower may, in its discretion, select which Issuing Bank is to issue any
particular Letter of Credit.



     2.5 Pro Rata Shares; Availability of Funds.



          (a) Pro Rata Shares. All Loans shall be made and all participations purchased, by Lenders
simultaneously and proportionately to their respective Pro Rata Shares, it being understood that no
Lender shall be responsible for any default by any other Lender in such other Lender’s obligation
to make a Loan requested hereunder or purchase a participation required hereby nor shall any Term
Loan Commitment or any Revolving Commitment of any Lender be increased or decreased as a result of
a default by any other Lender in such other Lender’s obligation to make a Loan requested hereunder
or purchase a participation required hereby.



          (b) Availability of Funds. Unless Administrative Agent shall have been notified by any Lender
prior to the applicable Credit Date that such Lender does not intend to make available to
Administrative Agent the amount of such Lender’s Loan requested on such Credit Date, Administrative
Agent may assume that such Lender has made such amount available to Administrative Agent on such
Credit Date and Administrative Agent may, in its sole discretion, but shall not be obligated to,
make available to Borrower a corresponding amount on such Credit Date. If such corresponding
amount is not in fact made available to Administrative Agent by such Lender, Administrative Agent
shall be entitled to recover such corresponding amount on demand from such Lender together with
interest thereon, for each day from such Credit Date until the date such amount is paid to
Administrative Agent, at the customary rate set by Administrative Agent for the correction of
errors among banks for three Business Days and thereafter at the Base Rate. If such Lender does
not pay such corresponding amount forthwith upon Administrative Agent’s demand therefor,
Administrative Agent shall promptly notify



45









 




Borrower and Borrower shall immediately pay such corresponding amount to Administrative Agent
together with interest thereon, for each day from such Credit Date until the date such amount is
paid to Administrative Agent, at the rate payable hereunder for Base Rate Loans for such Class of
Loans. Nothing in this Section 2.5(b) shall be deemed to relieve any Lender from its obligation to
fulfill its Term Loan Commitments and Revolving Commitments hereunder or to prejudice any rights
that Borrower may have against any Lender as a result of any default by such Lender hereunder.




     2.6 Use of Proceeds. The proceeds of the Term Loans shall be used to fund, in part, the Acquisition
and to pay Transaction Costs. The Revolving Loans, if any, made on the Closing Date shall be
applied by Borrower to repay Existing Indebtedness. The proceeds of the Revolving Loans, Swing Line
Loans and Letters of Credit made after the Closing Date shall be applied by Borrower for working
capital and general corporate purposes of Borrower and its Subsidiaries, including permitted
Consolidated Capital Expenditures and Permitted Acquisitions. No portion of the proceeds of any
Credit Extension shall be used in any manner that causes or might cause such Credit Extension or
the application of such proceeds to violate Regulation T, Regulation U or Regulation X of the Board
of Governors or any other regulation thereof or to violate the Exchange Act.



     2.7 Evidence of Debt; Register; Lenders’ Books and Records; Notes.



          (a) Lenders’ Evidence of Debt. Each Lender shall maintain on its internal records an account
or accounts evidencing the Obligations of Borrower to such Lender, including the amounts of the
Loans made by it and each repayment and prepayment in respect thereof. Any such recordation shall
be presumed correct and binding on Borrower, absent manifest error; provided, that the
failure to make any such recordation, or any error in such recordation, shall not affect any
Lender’s Revolving Commitments or Borrower’s Obligations in respect of any applicable Loans; and
provided further, in the event of any inconsistency between the Register and any Lender’s records,
the recordations in the Register shall govern.



          (b)Register. Administrative Agent (or its agent or sub-agent appointed by it) shall maintain
at the Principal Office a register for the recordation of the names and addresses of Lenders and
the Revolving Commitments and Loans of each Lender from time to time (the “Register”). The
Register shall be available for inspection by Borrower or any Lender (with respect to any entry
relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior
notice. Administrative Agent shall record, or shall cause to be recorded, in the Register the
Revolving Commitments and the Loans in accordance with the provisions of Section 10.6 and each
repayment or prepayment in respect of the principal amount of the Loans, and any such recordation
shall be presumed correct and binding on Borrower and each Lender, absent manifest error;
provided, failure to make any such recordation, or any error in such recordation, shall not
affect any Lender’s Revolving Commitments or Borrower’s Obligations in respect of any Loan.
Borrower hereby designates GSCP to serve as Borrower’s agent solely for purposes of maintaining the
Register as provided in this Section 2.7, and



46









 




Borrower hereby agrees that, to the extent GSCP serves in such capacity, GSCP and its officers,
directors, employees, agents, sub-agents and affiliates shall constitute “Indemnitees.”




          (c) Notes. If so requested by any Lender by written notice to Borrower (with a copy to
Administrative Agent) at least two Business Days prior to the Closing Date, or at any time
thereafter, Borrower shall execute and deliver to such Lender (and/or, if applicable and if so
specified in such notice, to any Person who is an assignee of such Lender pursuant to Section 10.6)
on the Closing Date (or, if such notice is delivered after the Closing Date, promptly after
Borrower’s receipt of such notice) a Note or Notes to evidence such Lender’s Term Loan, Revolving
Loan or Swing Line Loan, as the case may be.



     2.8 Interest on Loans.



          (a) Except as otherwise set forth herein, each Class of Loan shall bear interest on the unpaid
principal amount thereof from the date made through repayment (whether by acceleration or
otherwise) thereof as follows:




     (i) in the case of Term Loans and Revolving Loans:




     (1) if a Base Rate Loan, at the Base Rate plus the Applicable Margin;
or




     (2) if a Eurodollar Rate Loan, at the Adjusted Eurodollar Rate plus the
Applicable Margin; and




     (ii) in the case of Swing Line Loans, at the Base Rate plus the Applicable
Margin.



          (b) The basis for determining the rate of interest with respect to any Loan (except a Swing
Line Loan, which can be made and maintained as a Base Rate Loan only), and the Interest Period with
respect to any Eurodollar Rate Loan, shall be selected by Borrower and notified to Administrative
Agent and Lenders pursuant to the applicable Funding Notice or Conversion/Continuation Notice, as
the case may be; provided, until the date that Lead Arranger notifies Borrower that the
primary syndication of the Loans and Revolving Commitments has been completed, as determined by
Lead Arranger, the Term Loans shall be maintained as either (1) Eurodollar Rate Loans having an
Interest Period of no longer than one month or (2) Base Rate Loans. If on any day a Loan is
outstanding with respect to which a Funding Notice or Conversion/Continuation Notice has not been
delivered to Administrative Agent in accordance with the terms hereof specifying the applicable
basis for determining the rate of interest, then for that day such Loan shall be a Base Rate Loan.



          (c) In connection with Eurodollar Rate Loans there shall be no more than five (5) Interest
Periods outstanding at any time. In the event Borrower fails to specify between a Base Rate Loan
or a Eurodollar Rate Loan in the applicable Funding Notice or Conversion/Continuation Notice, such
Loan (if outstanding as a Eurodollar Rate Loan) will be automatically converted into a Base Rate
Loan on the last day of the then current Interest Period



47









 




for such Loan (or if outstanding as a Base Rate Loan will remain as, or (if not then
outstanding) will be made as, a Base Rate Loan). In the event Borrower fails to specify an
Interest Period for any Eurodollar Rate Loan in the applicable Funding Notice or
Conversion/Continuation Notice, Borrower shall be deemed to have selected an Interest Period of one
month. As soon as practicable after 10:00 a.m. (New York City time) on each Interest Rate
Determination Date, Administrative Agent shall determine (which determination shall, absent
manifest error, be presumed correct and binding upon all parties) the interest rate that shall
apply to the Eurodollar Rate Loans for which an interest rate is then being determined for the
applicable Interest Period and shall promptly give notice thereof (in writing or by telephone
confirmed in writing) to Borrower and each Lender.




          (d) Interest payable pursuant to Section 2.8(a) shall be computed (i) in the case of Base Rate
Loans on the basis of a 365 day or 366 day year, as the case may be and (ii) in the case of
Eurodollar Rate Loans, on the basis of a 360 day year, in each case for the actual number of days
elapsed in the period during which it accrues. In computing interest on any Loan, the date of the
making of such Loan or the first day of an Interest Period applicable to such Loan or, with respect
to a Term Loan, the last Interest Payment Date with respect to such Term Loan or, with respect to a
Base Rate Loan being converted from a Eurodollar Rate Loan, the date of conversion of such
Eurodollar Rate Loan to such Base Rate Loan, as the case may be, shall be included and the date of
payment of such Loan or the expiration date of an Interest Period applicable to such Loan or, with
respect to a Base Rate Loan being converted to a Eurodollar Rate Loan, the date of conversion of
such Base Rate Loan to such Eurodollar Rate Loan, as the case may be, shall be excluded;
provided, if a Loan is repaid on the same day on which it is made, one day’s interest shall
be paid on that Loan.



          (e) Except as otherwise set forth herein, interest on each Loan (i) shall accrue on a daily
basis and shall be payable in arrears on each Interest Payment Date with respect to interest
accrued on and to each such payment date; (ii) shall accrue on a daily basis and shall be payable
in arrears upon any prepayment of that Loan, whether voluntary or mandatory, to the extent accrued
on the amount being prepaid; and (iii) shall accrue on a daily basis and shall be payable in
arrears at maturity of the Loans, including final maturity of the Loans; provided, however,
with respect to any voluntary prepayment of a Base Rate Loan, accrued interest shall instead be
payable on the applicable Interest Payment Date.



          (f) Borrower agrees to pay to Issuing Bank, with respect to drawings honored under any Letter
of Credit, interest on the amount paid by Issuing Bank in respect of each such honored drawing from
the date such drawing is honored to but excluding the date such amount is reimbursed by or on
behalf of Borrower at a rate equal to (i) for the period from the date such drawing is honored to
but excluding the applicable Reimbursement Date, the rate of interest otherwise payable hereunder
with respect to Revolving Loans that are Base Rate Loans and (ii) thereafter, a rate which is 2%
per annum in excess of the rate of interest otherwise payable hereunder with respect to Revolving
Loans that are Base Rate Loans.



          (g) Interest payable pursuant to Section 2.8(f) shall be computed on the basis of a 365/366
day year for the actual number of days elapsed in the period during which it accrues and shall be
payable on demand or, if no demand is made, on the date on which the related drawing under a Letter
of Credit is reimbursed in full. Promptly upon receipt by Issuing



48









 




Bank of any payment of interest pursuant to Section 2.8(f), Issuing Bank shall distribute to
each Lender, out of the interest received by Issuing Bank in respect of the period from the date
such drawing is honored to but excluding the date on which Issuing Bank is reimbursed for the
amount of such drawing (including any such reimbursement out of the proceeds of any Revolving
Loans), the amount that such Lender would have been entitled to receive in respect of the letter of
credit fee that would have been payable in respect of such Letter of Credit for such period if no
drawing had been honored under such Letter of Credit. In the event Issuing Bank shall have been
reimbursed by Lenders for all or any portion of such honored drawing, Issuing Bank shall distribute
to each Lender which has paid all amounts payable by it under Section 2.4(e) with respect to such
honored drawing such Lender’s Pro Rata Share of any interest received by Issuing Bank in respect of
that portion of such honored drawing so reimbursed by Lenders for the period from the date on which
Issuing Bank was so reimbursed by Lenders to but excluding the date on which such portion of such
honored drawing is reimbursed by Borrower.




     2.9 Conversion/Continuation.



          (a) Subject to Section 2.18 and so long as no Default or Event of Default shall have occurred
and then be continuing, Borrower shall have the option:




     (i) to convert at any time all or any part of any Term Loan or Revolving Loan equal to
$5,000,000 and integral multiples of $1,000,000 in excess of that amount from one Type of
Loan to another Type of Loan; provided, a Eurodollar Rate Loan may only be converted
on the expiration of the Interest Period applicable to such Eurodollar Rate Loan unless
Borrower shall pay all amounts due under Section 2.18 in connection with any such
conversion; or




     (ii) upon the expiration of any Interest Period applicable to any Eurodollar Rate Loan,
to continue all or any portion of such Loan equal to $5,000,000 and integral multiples of
$1,000,000 in excess of that amount as a Eurodollar Rate Loan.



          (b) Borrower shall deliver a Conversion/Continuation Notice to Administrative Agent no later
than 10:00 a.m. (New York City time) at least one Business Day in advance of the proposed
conversion date (in the case of a conversion to a Base Rate Loan) and at least three Business Days
in advance of the proposed conversion/continuation date (in the case of a conversion to, or a
continuation of, a Eurodollar Rate Loan). Except as otherwise provided herein, a
Conversion/Continuation Notice for conversion to, or continuation of, any Eurodollar Rate Loans (or
telephonic notice in lieu thereof) shall be irrevocable on and after the related Interest Rate
Determination Date and Borrower shall be bound to effect a conversion or continuation in accordance
therewith.



     2.10 Default Interest. Upon the occurrence and during the continuance of an Event of Default under
Section 8.1(a), the principal amount of all Loans outstanding and, to the extent permitted by
applicable law, any interest payments on the Loans or any fees or other amounts owed hereunder,
shall thereafter bear interest (including post petition interest in any proceeding under the
Bankruptcy Code or other applicable bankruptcy laws) payable on demand at a rate that is 2% per
annum in excess of the interest rate otherwise payable hereunder with respect to



49









 




the applicable Loans (or, in the case of any such fees and other amounts, at a rate which is 2% per
annum in excess of the interest rate otherwise payable hereunder for Base Rate Loans that are
Revolving Loans); provided, in the case of Eurodollar Rate Loans, upon the expiration of
the Interest Period in effect at the time any such increase in interest rate is effective such
Eurodollar Rate Loans shall thereupon become Base Rate Loans and shall thereafter bear interest
payable upon demand at a rate which is 2% per annum in excess of the interest rate otherwise
payable hereunder for Base Rate Loans. Payment or acceptance of the increased rates of interest
provided for in this Section 2.10 is not a permitted alternative to timely payment and shall not
constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies
of Administrative Agent or any Lender.




     2.11 Fees.



          (a) Borrower agrees to pay to Lenders having Revolving Exposure:




     (i) commitment fees equal to (1) the average of the daily difference between (a) the
Revolving Commitments and (b) the aggregate principal amount of (x) all outstanding
Revolving Loans plus (y) the Letter of Credit Usage, times (2) the Applicable
Revolving Commitment Fee Percentage; and




     (ii) letter of credit fees equal to (1) the Applicable Margin for Revolving Loans that
are Eurodollar Rate Loans, times (2) the average aggregate daily maximum amount available to
be drawn under all such Letters of Credit (regardless of whether any conditions for drawing
could then be met and determined as of the close of business on any date of determination).


All fees referred to in this Section 2.11(a) shall be paid to Administrative Agent at its Principal
Office and upon receipt, Administrative Agent shall promptly distribute to each Lender its Pro Rata
Share thereof.




          (b) Borrower agrees to pay directly to Issuing Bank, for its own account, the following fees:




     (i) a fronting fee equal to 0.250% (or such other amount as may be agreed to by
Borrower and such Issuing Bank), per annum, times the average aggregate daily maximum amount
available to be drawn under all Letters of Credit (determined as of the close of business on
any date of determination); and




     (ii) such documentary and processing charges for any issuance, amendment, transfer or
payment of a Letter of Credit as are in accordance with Issuing Bank’s standard schedule for
such charges and as in effect at the time of such issuance, amendment, transfer or payment,
as the case may be.



          (c) All fees referred to in Section 2.11(a) and 2.11(b)(i) shall be calculated on the basis of
a 360 day year and the actual number of days elapsed and shall be payable quarterly in arrears on
March 31, June 30, September 30 and December 31 of each year



50









 




during the Revolving Commitment Period, commencing on the first such date to occur after the
Closing Date and on the Revolving Commitment Termination Date.




          (d) In addition to any of the foregoing fees, Borrower agrees to pay to Agents such other fees
in the amounts and at the times separately agreed upon.



     2.12 Scheduled Payments/Commitment Reductions.



          (a) The principal amounts of the Term Loans shall be repaid in consecutive quarterly
installments (each, an “Installment”) in the aggregate amounts set forth below:



	 	 	 	 	 
	Installment Date	 	Principal Amount
	December 31, 2007

	 	$	3,750,000.00	 
	March 31, 2008

	 	$	3,750,000.00	 
	June 30, 2008

	 	$	3,750,000.00	 
	September 30, 2008

	 	$	3,750,000.00	 
	December 31, 2008

	 	$	7,500,000.00	 
	March 31, 2009

	 	$	7,500,000.00	 
	June 30, 2009

	 	$	7,500,000.00	 
	September 30, 2009

	 	$	7,500,000.00	 
	December 31, 2009

	 	$	7,500,000.00	 
	March 31, 2010

	 	$	7,500,000.00	 
	June 30, 2010

	 	$	7,500,000.00	 
	September 30, 2010

	 	$	7,500,000.00	 
	December 31, 2010

	 	$	11,250,000.00	 
	March 31, 2011

	 	$	11,250,000.00	 
	June 30, 2011

	 	$	11,250,000.00	 
	September 30, 2011

	 	$	11,250,000.00	 
	December 31, 2011

	 	$	45,000,000.00	 
	March 31, 2012

	 	$	45,000,000.00	 
	June 30, 2012

	 	$	45,000,000.00	 
	Term Loan Maturity Date

	 	$	45,000,000.00	 






          (b) Notwithstanding the foregoing, (i) such Installments shall be reduced in connection with
any voluntary or mandatory prepayments of the Term Loans, as the case may be, in accordance with
Sections 2.13, 2.14 and 2.15, as applicable; and (ii) the Term Loans, together with all other
amounts owed hereunder with respect thereto, shall, in any event, be paid in full no later than the
Term Loan Maturity Date.



51









 





     2.13 Voluntary Prepayments/Commitment Reductions.



          (a) Voluntary Prepayments.




     (i) Any time and from time to time:




     (1) with respect to Base Rate Loans, Borrower may prepay any such Loans on any
Business Day in whole or in part, in an aggregate minimum amount of $1,000,000 and
integral multiples of $1,000,000 in excess of that amount;




     (2) with respect to Eurodollar Rate Loans, Borrower may prepay any such Loans
on any Business Day in whole or in part in an aggregate minimum amount of $5,000,000
and integral multiples of $1,000,000 in excess of that amount; and




     (3) with respect to Swing Line Loans, Borrower may prepay any such Loans on any
Business Day in whole or in part in an aggregate minimum amount of $500,000 and in
integral multiples of $100,000 in excess of that amount.




     (ii) All such prepayments shall be made:




     (1) upon not less than one Business Day’s prior written or telephonic notice in
the case of Base Rate Loans;




     (2) upon not less than three Business Days’ prior written or telephonic notice
in the case of Eurodollar Rate Loans; and




     (3) upon written or telephonic notice on the date of prepayment, in the case of
Swing Line Loans;


in each case given to Administrative Agent or Swing Line Lender, as the case may be, by 12:00 noon
(New York City time) on the date required and, if given by telephone, promptly confirmed in writing
to Administrative Agent (and Administrative Agent will promptly transmit such telephonic or
original notice for Term Loans or Revolving Loans, as the case may be, by telefacsimile or
telephone to each Lender) or Swing Line Lender, as the case may be. Upon the giving of any such
notice, the principal amount of the Loans specified in such notice shall become due and payable on
the prepayment date specified therein. Any such voluntary prepayment shall be applied as specified
in Section 2.15(a).




          (b) Voluntary Commitment Reductions.




     (i) Borrower may, upon not less than three Business Days’ prior written or telephonic
notice confirmed in writing to Administrative Agent (which original written or telephonic
notice Administrative Agent will promptly transmit by telefacsimile or telephone to each
applicable Lender), at any time and from time to time terminate in



52









 





whole or permanently reduce in part, without premium or penalty, the Revolving
Commitments in an amount up to the amount by which the Revolving Commitments exceed the
Total Utilization of Revolving Commitments at the time of such proposed termination or
reduction; provided, any such partial reduction of the Revolving Commitments shall
be in an aggregate minimum amount of $5,000,000 and integral multiples of $1,000,000 in
excess of that amount.




     (ii) Borrower’s notice to Administrative Agent shall designate the date (which shall be
a Business Day) of such termination or reduction and the amount of any partial reduction and
such termination or reduction of the Revolving Commitments shall be effective on the date
specified in Borrower’s notice and shall reduce the Revolving Commitment of each Lender
proportionately in accordance with its Pro Rata Share thereof.



     2.14 Mandatory Prepayments/Commitment Reductions.



          (a) Asset Sales. No later than the first Business Day following the date of receipt
by Borrower or any of its Subsidiaries of any Net Asset Sale Proceeds, Borrower shall prepay the
Loans as set forth in Section 2.15(b) in an aggregate amount equal to such Net Asset Sale Proceeds,
unless (i) a Reinvestment Notice shall be delivered in respect thereof, (ii) the aggregate Net
Asset Sale Proceeds from the Closing Date through the applicable date of determination that have
not been applied to the prepayment of Loans do not exceed $5,000,000 and (iii) no Event of Default
shall have occurred and be continuing at such time; provided that, notwithstanding the
foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment
Amount with respect to the relevant Reinvestment Event shall be applied as set forth in Section
2.15(b).



          (b) Insurance/Condemnation Proceeds. No later than the first Business Day following
the date of receipt by Borrower or any of its Subsidiaries of Net Insurance/Condemnation Proceeds
from a Recovery Event, Borrower shall prepay the Loans as set forth in Section 2.15(b) in an
aggregate amount equal to such Net Insurance/Condemnation Proceeds, unless (i) a Reinvestment
Notice shall be delivered in respect thereof, (ii) the aggregate Net Insurance/Condemnation
Proceeds from the Closing Date through the applicable date of determination that have not been
applied to the prepayment of Loans do not exceed $5,000,000 and (iii) no Event of Default shall
have occurred and be continuing at such time; provided that, notwithstanding the foregoing,
on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with
respect to the relevant Reinvestment Event shall be applied as set forth in Section 2.15(b).



          (c) Issuance of Equity Securities. On the date of receipt by Borrower or any of its
Subsidiaries of any Cash proceeds from a capital contribution to, or the issuance of any Equity
Interests of, Borrower or any of its Subsidiaries (other than (i) pursuant to any employee stock or
stock option compensation plan, (ii) a capital contribution by Borrower or any of its Subsidiaries
to another Subsidiary of Borrower or (iii) the issuance of Equity Interests of Borrower or any of
its Subsidiaries to Borrower or another Subsidiary of Borrower), Borrower shall prepay the Loans as
set forth in Section 2.15(b) in an aggregate amount equal to 50% of



53









 




such proceeds, net of underwriting discounts and commissions and other reasonable costs and
expenses associated therewith, including reasonable legal fees and expenses; provided that
during any period in which the Leverage Ratio (determined for any such period by reference to the
Compliance Certificate delivered pursuant to Section 5.1(c) calculating the Leverage Ratio as of
the last day of the most recently ended Fiscal Quarter) shall be 1.00:1.00 or less, Borrower shall
only be required to make the prepayments and/or reductions otherwise required hereby in an amount
equal to 25% of such net proceeds.




          (d) Issuance of Debt. No later than the first Business Day following receipt by
Borrower or any of its Subsidiaries of any Cash proceeds from the incurrence of any Indebtedness of
Borrower or any of its Subsidiaries (other than any Indebtedness permitted to be incurred pursuant
to Section 6.1 (other than clause (c) of Section 6.1)), Borrower shall prepay the Loans as set
forth in Section 2.15(b) in an aggregate amount equal to 100% of such proceeds (net of (i)
underwriting discounts and commissions and other reasonable costs and expenses associated
therewith, including reasonable legal fees and expenses and (ii) the bona fide costs and expenses
incurred in connection with the consummation of any Related Convertible Debt Derivative Transaction
in an amount not to exceed 15% of such proceeds).



          (e) Excess Cash Flow. In the event that there shall be Excess Cash Flow for any
Fiscal Year (commencing with the Fiscal Year ending December 31, 2008), Borrower shall, no later
than 105 days after the end of such Fiscal Year, prepay the Loans as set forth in Section 2.15(b)
in an aggregate amount equal to (i) 50% of such Excess Cash Flow minus (ii) voluntary
repayments of the Loans (excluding repayments of Revolving Loans or Swing Line Loans except to the
extent the Revolving Commitments are permanently reduced in connection with such repayments);
provided, that if, as of the last day of the most recently ended Fiscal Year, the Leverage
Ratio (determined for any such period by reference to the Compliance Certificate delivered pursuant
to Section 5.1(c) calculating the Leverage Ratio as of the last day of such Fiscal Year) shall be
1.00:1.00 or less, Borrower shall only be required to make the prepayments and/or reductions
otherwise required hereby in an amount equal to (i) 25% of such Excess Cash Flow minus (ii)
voluntary repayments of the Loans (excluding repayments of Revolving Loans or Swing Line Loans
except to the extent the Revolving Commitments are permanently reduced in connection with such
repayments).



          (f) Revolving Loans and Swing Loans. Borrower shall from time to time prepay first,
the Swing Line Loans and second, the Revolving Loans to the extent necessary so that the Total
Utilization of Revolving Commitments shall not at any time exceed the Revolving Commitments then in
effect.



          (g) Prepayment Certificate. Concurrently with any prepayment of the Loans and/or
reduction of the Revolving Commitments pursuant to Sections 2.14(a) through 2.14(e), Borrower shall
deliver to Administrative Agent a certificate of an Authorized Officer demonstrating the
calculation of the amount of the applicable net proceeds or Excess Cash Flow, as the case may be.
In the event that Borrower shall subsequently determine that the actual amount received exceeded
the amount set forth in such certificate, Borrower shall promptly make an additional prepayment of
the Loans and/or the Revolving Commitments shall be permanently reduced in an amount equal to such
excess and Borrower shall concurrently



54









 




therewith deliver to Administrative Agent a certificate of an Authorized Officer demonstrating
the derivation of such excess.




     2.15 Application of Prepayments/Reductions.



          (a) Application of Voluntary Prepayments by Type of Loans. Any prepayment of any Loan
pursuant to Section 2.13(a) shall be applied as specified by Borrower in the applicable notice of
prepayment; provided that in the event Borrower fails to specify the Loans to which any
such prepayment shall be applied, such prepayment shall be applied as follows:



        first, to repay outstanding Swing Line Loans to the full extent thereof;



        second, to repay outstanding Revolving Loans to the full extent thereof; and



        third, to prepay the Term Loans and reduce the scheduled remaining Installments of principal
of the Term Loans on a pro rata basis.



          (b) Application of Mandatory Prepayments by Type of Loans. Any amount required to be
paid pursuant to Sections 2.14(a) through 2.14(e) shall be applied as follows:



        first, to prepay the Term Loans and reduce the remaining scheduled Installments of principal
of the Term Loans on a pro rata basis;



        second, to prepay the Swing Line Loans to the full extent thereof;



        third, to prepay the Revolving Loans to the full extent thereof;



        fourth, to prepay outstanding reimbursement obligations with respect to Letters of Credit; and



        fifth, to cash collateralize Letters of Credit.



          (c) Waivable Mandatory Prepayment. Anything contained herein to the contrary
notwithstanding, in the event Borrower is required to make any mandatory prepayment (a “Waivable
Mandatory Prepayment”) of the Term Loans, not less than three Business Days prior to the date (the
“Required Prepayment Date”) on which Borrower is required to make such Waivable Mandatory
Prepayment, Borrower shall notify Administrative Agent of the amount of such prepayment and
Administrative Agent will promptly thereafter notify each



55









 




Lender holding an outstanding Term Loan of the amount of such Lender’s Pro Rata Share of such
Waivable Mandatory Prepayment and such Lender’s option to refuse such amount. Each such Lender may
exercise such option by giving written notice to Borrower and Administrative Agent of its election
to do so on or before the first Business Day prior to the Required Prepayment Date (it being
understood that any Lender which does not notify Borrower and Administrative Agent of its election
to exercise such option on or before the first Business Day prior to the Required Prepayment Date
shall be deemed to have elected, as of such date, not to exercise such option). On the Required
Prepayment Date, Borrower shall pay to Administrative Agent the amount of the Waivable Mandatory
Prepayment, in an amount equal to that portion of the Waivable Mandatory Prepayment payable to
those Lenders that have elected not to exercise such option, to prepay the Term Loans of such
Lenders (which prepayment shall be applied to the scheduled Installments of principal of the Term
Loans in accordance with Section 2.15(b)). Amounts equal to that portion of the Waivable Mandatory
Prepayment otherwise payable to those Lenders that have elected to exercise such option shall be
retained by Borrower and may be used for general corporate purposes not otherwise prohibited
hereunder.




          (d) Application of Prepayments of Loans to Base Rate Loans and Eurodollar Rate Loans.
Considering separately each Class of Loans being prepaid, any prepayment thereof shall be applied
first to Base Rate Loans to the full extent thereof before application to Eurodollar Rate Loans, in
each case in a manner which minimizes the amount of any payments required to be made by Borrower
pursuant to Section 2.18(c).



     2.16 General Provisions Regarding Payments.



          (a) All payments by Borrower of principal, interest, fees and other Obligations shall be made
in Dollars in same day funds, without defense, setoff or counterclaim, free of any restriction or
condition and delivered to Administrative Agent not later than 12:00 noon (New York City time) on
the date due at the Principal Office designated by Administrative Agent for the account of Lenders;
for purposes of computing interest and fees, funds received by Administrative Agent after that time
on such due date shall be deemed to have been paid by Borrower on the next succeeding Business Day.



          (b) All payments in respect of the principal amount of any Loan (other than voluntary
prepayments of Revolving Loans) shall be accompanied by payment of accrued interest on the
principal amount being repaid or prepaid and all such payments (and, in any event, any payments in
respect of any Loan on a date when interest is due and payable with respect to such Loan) shall be
applied to the payment of interest then due and payable before application to principal.



          (c) Administrative Agent (or its agent or sub-agent appointed by it) shall promptly distribute
to each Lender at such address as such Lender shall indicate in writing, such Lender’s applicable
Pro Rata Share of all payments and prepayments of principal and interest due hereunder, together
with all other amounts due thereto, including all fees payable with respect thereto, to the extent
received by Administrative Agent.



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          (d) Notwithstanding the foregoing provisions hereof, if any Conversion/ Continuation Notice is
withdrawn as to any Affected Lender or if any Affected Lender makes Base Rate Loans in lieu of its
Pro Rata Share of any Eurodollar Rate Loans, Administrative Agent shall give effect thereto in
apportioning payments received thereafter.



          (e) Subject to the provisos set forth in the definition of “Interest Period” as they may apply
to Revolving Loans, whenever any payment to be made hereunder with respect to any Loan shall be
stated to be due on a day that is not a Business Day, such payment shall be made on the next
succeeding Business Day and, with respect to Revolving Loans only, such extension of time shall be
included in the computation of the payment of interest hereunder or of the Revolving Commitment
fees hereunder.



          (f) [Reserved].



          (g) Administrative Agent shall deem any payment by or on behalf of Borrower hereunder that is
not made in same day funds prior to 12:00 noon (New York City time) to be a non-conforming payment.
Any such payment shall not be deemed to have been received by Administrative Agent until the later
of (i) the time such funds become available funds and (ii) the applicable next Business Day.
Administrative Agent shall give prompt telephonic notice to Borrower and each applicable Lender
(confirmed in writing) if any payment is non-conforming. Any non-conforming payment may constitute
or become a Default or Event of Default in accordance with the terms of Section 8.1(a). Interest
shall continue to accrue on any principal as to which a non-conforming payment is made until such
funds become available funds (but in no event less than the period from the date of such payment to
the next succeeding applicable Business Day) at the rate determined pursuant to Section 2.10 from
the date such amount was due and payable until the date such amount is paid in full.



          (h) If an Event of Default shall have occurred and not otherwise been waived and the maturity
of the Obligations shall have been accelerated pursuant to Section 8.1, all payments or proceeds
received by Agents hereunder in respect of any of the Obligations shall be applied in accordance
with the application arrangements described in Section 9.2 of the Pledge and Security Agreement.



     2.17 Ratable Sharing. Lenders hereby agree among themselves that if any of them shall, whether by
voluntary payment (other than a voluntary prepayment of Loans made and applied in accordance with
the terms hereof), through the exercise of any right of set-off or banker’s lien, by counterclaim
or cross action or by the enforcement of any right under the Credit Documents or otherwise, or as
adequate protection of a deposit treated as cash collateral under the Bankruptcy Code, receive
payment or reduction of a proportion of the aggregate amount of principal, interest, amounts
payable in respect of Letters of Credit, fees and other amounts then due and owing to such Lender
hereunder or under the other Credit Documents (collectively, the “Aggregate Amounts Due” to such
Lender) which is greater than the proportion received by any other Lender in respect of the
Aggregate Amounts Due to such other Lender, then the Lender receiving such proportionately greater
payment shall (a) notify Administrative Agent and each other Lender of the receipt of such payment
and (b) apply a portion of such payment to purchase participations (which it shall be deemed to
have purchased from each seller of a participation simultaneously upon the receipt by such seller
of its portion of such payment) in the Aggregate



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Amounts Due to the other Lenders so that all such recoveries of Aggregate Amounts Due shall be
shared by all Lenders in proportion to the Aggregate Amounts Due to them; provided, if all
or part of such proportionately greater payment received by such purchasing Lender is thereafter
recovered from such Lender upon the bankruptcy or reorganization of Borrower or otherwise, those
purchases shall be rescinded and the purchase prices paid for such participations shall be returned
to such purchasing Lender ratably to the extent of such recovery, but without interest. Borrower
expressly consents to the foregoing arrangement and agrees that any holder of a participation so
purchased may exercise any and all rights of banker’s lien, set-off or counterclaim with respect to
any and all monies owing by Borrower to that holder with respect thereto as fully as if that holder
were owed the amount of the participation held by that holder.




     2.18 Making or Maintaining Eurodollar Rate Loans.



          (a) Inability to Determine Applicable Interest Rate. In the event that Administrative
Agent shall have determined (which determination shall be presumed correct absent manifest error
and binding upon all parties hereto), on any Interest Rate Determination Date with respect to any
Eurodollar Rate Loans, that by reason of circumstances affecting the London interbank market
adequate and fair means do not exist for ascertaining the interest rate applicable to such Loans on
the basis provided for in the definition of Adjusted Eurodollar Rate, Administrative Agent shall on
such date give notice (by telefacsimile or by telephone confirmed in writing) to Borrower and each
Lender of such determination, whereupon (i) no Loans may be made as, or converted to, Eurodollar
Rate Loans until such time as Administrative Agent notifies Borrower and Lenders that the
circumstances giving rise to such notice no longer exist and (ii) any Funding Notice or
Conversion/Continuation Notice given by Borrower with respect to the Loans in respect of which such
determination was made shall be deemed to be rescinded by Borrower.



          (b) Illegality or Impracticability of Eurodollar Rate Loans. In the event that on any
date any Lender shall have determined (which determination shall be presumed correct absent
manifest error and binding upon all parties hereto but shall be made only after consultation with
Borrower and Administrative Agent) that the making, maintaining or continuation of its Eurodollar
Rate Loans (i) has become unlawful as a result of compliance by such Lender in good faith with any
law, treaty, governmental rule, regulation, guideline or order (or would conflict with any such
treaty, governmental rule, regulation, guideline or order not having the force of law even though
the failure to comply therewith would not be unlawful), or (ii) has become impracticable, as a
result of contingencies occurring after the date hereof which materially and adversely affect the
London interbank market or the position of such Lender in that market, then and in any such event,
such Lender shall be an “Affected Lender” and it shall on that day give notice (by telefacsimile or
by telephone confirmed in writing) to Borrower and Administrative Agent of such determination
(which notice Administrative Agent shall promptly transmit to each other Lender). Thereafter (1)
the obligation of the Affected Lender to make Loans as, or to convert Loans to, Eurodollar Rate
Loans shall be suspended until such notice shall be withdrawn by the Affected Lender, (2) to the
extent such determination by the Affected Lender relates to a Eurodollar Rate Loan then being
requested by Borrower pursuant to a Funding Notice or a Conversion/Continuation Notice, the
Affected Lender shall make such Loan as (or continue such Loan as or convert such Loan to, as the
case may be) a Base Rate Loan, (3)



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the Affected Lender’s obligation to maintain its outstanding Eurodollar Rate Loans (the
“Affected Loans”) shall be terminated at the earlier to occur of the expiration of the Interest
Period then in effect with respect to the Affected Loans or when required by law and (4) the
Affected Loans shall automatically convert into Base Rate Loans on the date of such termination.
Notwithstanding the foregoing, to the extent a determination by an Affected Lender as described
above relates to a Eurodollar Rate Loan then being requested by Borrower pursuant to a Funding
Notice or a Conversion/Continuation Notice, Borrower shall have the option, subject to the
provisions of Section 2.18(c), to rescind such Funding Notice or Conversion/Continuation Notice as
to all Lenders by giving notice (by telefacsimile or by telephone confirmed in writing) to
Administrative Agent of such rescission on the date on which the Affected Lender gives notice of
its determination as described above (which notice of rescission Administrative Agent shall
promptly transmit to each other Lender). Except as provided in the immediately preceding sentence,
nothing in this Section 2.18(b) shall affect the obligation of any Lender other than an Affected
Lender to make or maintain Loans as, or to convert Loans to, Eurodollar Rate Loans in accordance
with the terms hereof.




          (c) Compensation for Breakage or Non-Commencement of Interest Periods. Borrower shall
compensate each Lender, upon written request by such Lender (which request shall set forth the
basis for requesting such amounts), for all reasonable losses, expenses and liabilities (including
any interest paid by such Lender to Lenders of funds borrowed by it to make or carry its Eurodollar
Rate Loans and any loss, expense or liability sustained by such Lender in connection with the
liquidation or re-employment of such funds but excluding loss of anticipated profits) which such
Lender may sustain: (i) if for any reason (other than a default by such Lender) a borrowing of any
Eurodollar Rate Loan does not occur on a date specified therefor in a Funding Notice or a
telephonic request for borrowing, or a conversion to or continuation of any Eurodollar Rate Loan
does not occur on a date specified therefor in a Conversion/Continuation Notice or a telephonic
request for conversion or continuation; (ii) if any prepayment or other principal payment of, or
any conversion of, any of its Eurodollar Rate Loans occurs on a date prior to the last day of an
Interest Period applicable to that Loan; or (iii) if any prepayment of any of its Eurodollar Rate
Loans is not made on any date specified in a notice of prepayment given by Borrower.



          (d) Booking of Eurodollar Rate Loans. Any Lender may make, carry or transfer
Eurodollar Rate Loans at, to, or for the account of any of its branch offices or the office of an
Affiliate of such Lender.



          (e) Assumptions Concerning Funding of Eurodollar Rate Loans. Calculation of all
amounts payable to a Lender under this Section 2.18 and under Section 2.19 shall be made as though
such Lender had actually funded each of its relevant Eurodollar Rate Loans through the purchase of
a Eurodollar deposit bearing interest at the rate obtained pursuant to clause (i) of the definition
of Adjusted Eurodollar Rate in an amount equal to the amount of such Eurodollar Rate Loan and
having a maturity comparable to the relevant Interest Period and through the transfer of such
Eurodollar deposit from an offshore office of such Lender to a domestic office of such Lender in
the United States of America; provided, however, each Lender may fund each of its
Eurodollar Rate Loans in any manner it sees fit and the foregoing assumptions shall be utilized
only for the purposes of calculating amounts payable under this Section 2.18 and under Section
2.19.



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     2.19 Increased Costs; Capital Adequacy.



          (a) Compensation For Increased Costs and Taxes. Subject to the provisions of Section
2.20 (which shall be controlling with respect to the matters covered thereby), in the event that
any Lender (which term shall include Issuing Bank for purposes of this Section 2.19(a)) shall
determine (which determination shall, absent manifest error, be presumed correct and binding upon
all parties hereto) that any law, treaty or governmental rule, regulation or order, or any change
therein or in the interpretation, administration or application thereof (including the introduction
of any new law, treaty or governmental rule, regulation or order), or any determination of a court
or governmental authority, in each case that becomes effective after the date hereof, or compliance
by such Lender with any guideline, request or directive issued or made after the date hereof by any
central bank or other governmental or quasi governmental authority (whether or not having the force
of law): (i) subjects such Lender (or its applicable lending office) to any additional Tax (other
than any Tax on the overall net income of such Lender) with respect to this Agreement or any of the
other Credit Documents or any of its obligations hereunder or thereunder or any payments to such
Lender (or its applicable lending office) of principal, interest, fees or any other amount payable
hereunder; (ii) imposes, modifies or holds applicable any reserve (including any marginal,
emergency, supplemental, special or other reserve), special deposit, compulsory loan, FDIC
insurance or similar requirement against assets held by, or deposits or other liabilities in or for
the account of, or advances or loans by, or other credit extended by, or any other acquisition of
funds by, any office of such Lender (other than any such reserve or other requirements with respect
to Eurodollar Rate Loans that are reflected in the definition of Adjusted Eurodollar Rate); or
(iii) imposes any other condition (other than with respect to a Tax matter) on or affecting such
Lender (or its applicable lending office) or its obligations hereunder or the London interbank
market; and the result of any of the foregoing is to increase the cost to such Lender of agreeing
to make, making or maintaining Loans hereunder or to reduce any amount received or receivable by
such Lender (or its applicable lending office) with respect thereto; then, in any such case,
Borrower shall pay to such Lender, within five Business Days after receipt of the statement
referred to in the next sentence, such additional amount or amounts (in the form of an increased
rate of, or a different method of calculating, interest or otherwise as such Lender in its sole
discretion shall determine) as may be necessary to compensate such Lender for any such increased
cost or reduction in amounts received or receivable hereunder. Such Lender shall deliver to
Borrower (with a copy to Administrative Agent) a written statement, setting forth in reasonable
detail the basis for calculating the additional amounts owed to such Lender under this Section
2.19(a), which statement shall be conclusive and binding upon all parties hereto absent manifest
error.



          (b) Capital Adequacy Adjustment. In the event that any Lender (which term shall
include Issuing Bank for purposes of this Section 2.19(b)) shall have determined that the adoption,
effectiveness, phase in or applicability after the Closing Date of any law, rule or regulation (or
any provision thereof) regarding capital adequacy, or any change therein or in the interpretation
or administration thereof by any Governmental Authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Lender (or its applicable
lending office) with any guideline, request or directive regarding capital adequacy (whether or not
having the force of law) of any such Governmental Authority, central bank or comparable agency, has
or would have the effect of reducing the rate of return on



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the capital of such Lender or any corporation controlling such Lender as a consequence of, or
with reference to, such Lender’s Loans or Revolving Commitments or Letters of Credit, or
participations therein or other obligations hereunder with respect to the Loans or the Letters of
Credit to a level below that which such Lender or such controlling corporation could have achieved
but for such adoption, effectiveness, phase in, applicability, change or compliance (taking into
consideration the policies of such Lender or such controlling corporation with regard to capital
adequacy), then from time to time, within five Business Days after receipt by Borrower from such
Lender of the statement referred to in the next sentence, Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender or such controlling corporation on an
after tax basis for such reduction. Such Lender shall deliver to Borrower (with a copy to
Administrative Agent) a written statement, setting forth in reasonable detail the basis for
calculating the additional amounts owed to Lender under this Section 2.19(b), which statement shall
be conclusive and binding upon all parties hereto absent manifest error.




     2.20 Taxes; Withholding, etc.



          (a) Payments to Be Free and Clear. All sums payable by or on behalf of any Credit
Party hereunder and under the other Credit Documents shall (except to the extent required by law)
be paid free and clear of and without any deduction or withholding on account of, any Tax (other
than a Tax on the overall net income of any Lender) imposed, levied, collected, withheld or
assessed by or within the United States of America or any political subdivision in or of the United
States of America or any other jurisdiction from or to which a payment is made by or on behalf of
any Credit Party or by any federation or organization of which the United States of America or any
such jurisdiction is a member at the time of payment.



          (b) Withholding of Taxes. If any Credit Party or any other Person is required by law
to make any deduction or withholding on account of any such Tax from any sum paid or payable by any
Credit Party to Administrative Agent or any Lender (which term shall include Issuing Bank for
purposes of this Section 2.20(b)) under any of the Credit Documents: (i) Borrower shall notify
Administrative Agent of any such requirement or any change in any such requirement as soon as
Borrower becomes aware of it; (ii) Borrower shall pay any such Tax before the date on which
penalties attach thereto, such payment to be made (if the liability to pay is imposed on any Credit
Party) for its own account or (if that liability is imposed on Administrative Agent or such Lender,
as the case may be) on behalf of and in the name of Administrative Agent or such Lender; (iii) the
sum payable by such Credit Party in respect of which the relevant deduction, withholding or payment
is required shall be increased to the extent necessary to ensure that, after the making of that
deduction, withholding or payment, Administrative Agent or such Lender, as the case may be,
receives on the due date a net sum equal to what it would have received had no such deduction,
withholding or payment been required or made; and (iv) within thirty days after paying any sum from
which it is required by law to make any deduction or withholding and within thirty days after the
due date of payment of any Tax which it is required by clause (ii) above to pay, Borrower shall
deliver to Administrative Agent evidence satisfactory to the other affected parties of such
deduction, withholding or payment and of the remittance thereof to the relevant taxing or other
authority; provided, no such additional amount shall be required to be paid to any Lender
(other than a Lender that becomes a Lender pursuant to Section 2.23) under clause (iii) above
except to the extent that any change



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after the date hereof (in the case of each Lender listed on the signature pages hereof on the
Closing Date) or after the effective date of the Assignment Agreement pursuant to which such Lender
became a Lender (in the case of each other Lender) in any such requirement for a deduction,
withholding or payment as is mentioned therein shall result in an increase in the rate of such
deduction, withholding or payment from that in effect at the date hereof or at the date of such
Assignment Agreement, as the case may be, in respect of payments to such Lender; provided
that additional amounts shall be payable to a Lender to the extent such Lender’s assignor was
entitled to receive such additional amounts.




          (c) Evidence of Exemption From U.S. Withholding Tax. Each Lender that is not a United
States Person (as such term is defined in Section 7701(a)(30) of the Internal Revenue Code) for
U.S. federal income tax purposes (a “Non-US Lender”) shall deliver to Administrative Agent for
transmission to Borrower, on or prior to the Closing Date (in the case of each Lender listed on the
signature pages hereof on the Closing Date) or on or prior to the date of the Assignment Agreement
pursuant to which it becomes a Lender (in the case of each other Lender) and at such other times as
may be necessary in the determination of Borrower or Administrative Agent (each in the reasonable
exercise of its discretion), (i) two original copies of Internal Revenue Service Form W-8BEN,
W-8ECI and/or W-8IMY (or, in each case, any successor forms), properly completed and duly executed
by such Lender, and such other documentation required under the Internal Revenue Code and
reasonably requested by Borrower to establish that such Lender is not subject to deduction or
withholding of United States federal income tax with respect to any payments to such Lender of
principal, interest, fees or other amounts payable under any of the Credit Documents, or (ii) if
such Lender is not a “bank” or other Person described in Section 881(c)(3) of the Internal Revenue
Code, a Certificate Re Non-bank Status together with two original copies of Internal Revenue
Service Form W-8BEN (or any successor form), properly completed and duly executed by such Lender,
and such other documentation required under the Internal Revenue Code and reasonably requested by
Borrower to establish that such Lender is not subject to deduction or withholding of United States
federal income tax with respect to any payments to such Lender of interest payable under any of the
Credit Documents. Each Lender that is a United States person (as such term is defined in Section
7701(a)(30) of the Internal Revenue Code) for United States federal income tax purposes (a “U.S.
Lender”) and is not an exempt recipient within the meaning of Treasury Regulation Section
1.6049-4(c) shall deliver to Administrative Agent and Borrower on or prior to the Closing Date (or,
if later, on or prior to the date on which such Lender becomes a party to this Agreement) two
original copies of Internal Revenue Service Form W-9 (or any successor form), properly completed
and duly executed by such Lender, certifying that such U.S. Lender is entitled to an exemption from
United States backup withholding tax, or otherwise prove that it is entitled to such an exemption.
Each Lender required to deliver any forms, certificates or other evidence with respect to United
States federal income tax withholding matters pursuant to this Section 2.20(c) hereby agrees, from
time to time after the initial delivery by such Lender of such forms, certificates or other
evidence, whenever a lapse in time or change in circumstances renders such forms, certificates or
other evidence obsolete or inaccurate in any material respect, that such Lender shall promptly
deliver to Administrative Agent for transmission to Borrower two new original copies of Internal
Revenue Service Form W-8BEN, W-8ECI and/or W-8IMY (or, in each case, any successor form), or a
Certificate Re Non-bank Status and two original copies of Internal Revenue Service Form W-8BEN (or
any successor form), as the case may be, properly completed and duly executed by such Lender, and
such other documentation required



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under the Internal Revenue Code and reasonably requested by Borrower to confirm or establish
that such Lender is not subject to deduction or withholding of United States federal income tax
with respect to payments to such Lender under the Credit Documents, or notify Administrative Agent
and Borrower of its inability to deliver any such forms, certificates or other evidence. Borrower
shall not be required to pay any additional amount to any Non-US Lender under Section 2.20(b)(iii)
if such Lender shall have failed (1) to deliver the forms, certificates or other evidence referred
to in the first sentence of this Section 2.20(c), or (2) to notify Administrative Agent and
Borrower of its inability to deliver any such forms, certificates or other evidence, as the case
may be; provided, if such Lender shall have satisfied the requirements of the first
sentence of this Section 2.20(c) on the Closing Date or on the date of the Assignment Agreement
pursuant to which it became a Lender, as applicable, nothing in this last sentence of Section
2.20(c) shall relieve Borrower of its obligation to pay any additional amounts pursuant this
Section 2.20 in the event that, as a result of any change in any applicable law, treaty or
governmental rule, regulation or order, or any change in the interpretation, administration or
application thereof, such Lender is no longer properly entitled to deliver forms, certificates or
other evidence at a subsequent date establishing the fact that such Lender is not subject to
withholding as described herein.




     2.21 Obligation to Mitigate. Each Lender (which term shall include Issuing Bank for purposes of this
Section 2.21) agrees that, as promptly as practicable after the officer of such Lender responsible
for administering its Loans or Letters of Credit, as the case may be, becomes aware of the
occurrence of an event or the existence of a condition that would cause such Lender to become an
Affected Lender or that would entitle such Lender to receive payments under Section 2.18, 2.19 or
2.20, it will, to the extent not inconsistent with the internal policies of such Lender and any
applicable legal or regulatory restrictions, use reasonable efforts to (a) make, issue, fund or
maintain its Credit Extensions, including any Affected Loans, through another office of such
Lender, or (b) take such other measures as such Lender may deem reasonable, if as a result thereof
the circumstances which would cause such Lender to be an Affected Lender would cease to exist or
the additional amounts which would otherwise be required to be paid to such Lender pursuant to
Section 2.18, 2.19 or 2.20 would be materially reduced and if, as determined by such Lender in its
sole discretion, the making, issuing, funding or maintaining of such Revolving Commitments, Loans
or Letters of Credit through such other office or in accordance with such other measures, as the
case may be, would not otherwise adversely affect such Revolving Commitments, Loans or Letters of
Credit or the interests of such Lender; provided, such Lender will not be obligated to
utilize such other office pursuant to this Section 2.21 unless Borrower agrees to pay all
incremental expenses incurred by such Lender as a result of utilizing such other office as
described above. A certificate as to the amount of any such expenses payable by Borrower pursuant
to this Section 2.21 (setting forth in reasonable detail the basis for requesting such amount)
submitted by such Lender to Borrower (with a copy to Administrative Agent) shall be conclusive
absent manifest error.



     2.22 Defaulting Lenders. Anything contained herein to the contrary notwithstanding, in the event that
any Lender, other than at the direction or request of any regulatory agency or authority, defaults
(a “Defaulting Lender”) in its obligation to fund (a “Funding Default”) any Revolving Loan or its
portion of any unreimbursed payment under Section 2.3(b)(iv) or 2.4(e) (in each case, a “Defaulted
Loan”), then (a) during any Default Period with respect to such Defaulting Lender, such Defaulting
Lender shall be deemed not to be a "Lender” for purposes of



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voting on any matters (including the granting of any consents or waivers) with respect to any of
the Credit Documents; (b) to the extent permitted by applicable law, until such time as the Default
Excess with respect to such Defaulting Lender shall have been reduced to zero, (i) any voluntary
prepayment of the Revolving Loans shall, if Borrower so directs at the time of making such
voluntary prepayment, be applied to the Revolving Loans of other Lenders as if such Defaulting
Lender had no Revolving Loans outstanding and the Revolving Exposure of such Defaulting Lender were
zero and (ii) any mandatory prepayment of the Revolving Loans shall, if Borrower so directs at the
time of making such mandatory prepayment, be applied to the Revolving Loans of other Lenders (but
not to the Revolving Loans of such Defaulting Lender) as if such Defaulting Lender had funded all
Defaulted Loans of such Defaulting Lender, it being understood and agreed that Borrower shall be
entitled to retain any portion of any mandatory prepayment of the Revolving Loans that is not paid
to such Defaulting Lender solely as a result of the operation of the provisions of this clause (b);
(c) such Defaulting Lender’s Revolving Commitment and outstanding Revolving Loans and such
Defaulting Lender’s Pro Rata Share of the Letter of Credit Usage shall be excluded for purposes of
calculating the Revolving Commitment fee payable to Lenders in respect of any day during any
Default Period with respect to such Defaulting Lender, and such Defaulting Lender shall not be
entitled to receive any Revolving Commitment fee pursuant to Section 2.11 with respect to such
Defaulting Lender’s Revolving Commitment in respect of any Default Period with respect to such
Defaulting Lender; and (d) the Total Utilization of Revolving Commitments as at any date of
determination shall be calculated as if such Defaulting Lender had funded all Defaulted Loans of
such Defaulting Lender. No Revolving Commitment of any Lender shall be increased or otherwise
affected and, except as otherwise expressly provided in this Section 2.22, performance by Borrower
of its obligations hereunder and the other Credit Documents shall not be excused or otherwise
modified as a result of any Funding Default or the operation of this Section 2.22. The rights and
remedies against a Defaulting Lender under this Section 2.22 are in addition to other rights and
remedies which Borrower may have against such Defaulting Lender with respect to any Funding Default
and which Administrative Agent or any Lender may have against such Defaulting Lender with respect
to any Funding Default.




     2.23 Removal or Replacement of a Lender. Anything contained herein to the contrary notwithstanding, in
the event that: (a) (i) any Lender (an “Increased Cost Lender”) shall give notice to Borrower that
such Lender is an Affected Lender or that such Lender is entitled to receive payments under Section
2.18, 2.19 or 2.20, (ii) the circumstances which have caused such Lender to be an Affected Lender
or which entitle such Lender to receive such payments shall remain in effect and (iii) such Lender
shall fail to withdraw such notice within five Business Days after Borrower’s request for such
withdrawal; or (b) (i) any Lender shall become a Defaulting Lender, (ii) the Default Period for
such Defaulting Lender shall remain in effect and (iii) such Defaulting Lender shall fail to cure
the default as a result of which it has become a Defaulting Lender within five Business Days after
Borrower’s request that it cure such default; or (c) in connection with any proposed amendment,
modification, termination, waiver or consent with respect to any of the provisions hereof as
contemplated by Section 10.5, the consent of Requisite Lenders shall have been obtained but the
consent of one or more of such other Lenders (each a “Non-Consenting Lender”) whose consent is
required shall not have been obtained; then, with respect to each such Increased Cost Lender,
Defaulting Lender or Non-Consenting Lender (the “Terminated Lender”), Borrower may, by giving
written notice to Administrative Agent and any Terminated Lender of its election to do so, elect to
cause such



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Terminated Lender (and such Terminated Lender hereby irrevocably agrees) to assign its outstanding
Loans and its Revolving Commitments, if any, in full to one or more Eligible Assignees (each a
“Replacement Lender”) in accordance with the provisions of Section 10.6 and Borrower shall pay the
fees, if any, payable thereunder in connection with any such assignment from an Increased Cost
Lender or a Non-Consenting Lender and the Defaulting Lender shall pay the fees, if any, payable
thereunder in connection with any such assignment from such Defaulting Lender; provided
that (1) on the date of such assignment, the Replacement Lender shall pay to Terminated Lender an
amount equal to the sum of (A) an amount equal to the principal of and all accrued interest on, all
outstanding Loans of the Terminated Lender, (B) an amount equal to all unreimbursed drawings that
have been funded by such Terminated Lender, together with all then unpaid interest with respect
thereto at such time and (C) an amount equal to all accrued but theretofore unpaid fees owing to
such Terminated Lender pursuant to Section 2.11; (2) on the date of such assignment, Borrower shall
pay any amounts payable to such Terminated Lender pursuant to Section 2.18(c), 2.19 or 2.20 or
otherwise as if it were a prepayment and (3) in the event such Terminated Lender is a
Non-Consenting Lender, each Replacement Lender shall consent, at the time of such assignment, to
each matter in respect of which such Terminated Lender was a Non-Consenting Lender;
provided, Borrower may not make such election with respect to any Terminated Lender that is
also an Issuing Bank unless, prior to the effectiveness of such election, Borrower shall have
caused each outstanding Letter of Credit issued thereby to be cancelled. Upon the prepayment of
all amounts owing to any Terminated Lender and the termination of such Terminated Lender’s
Revolving Commitments, if any, such Terminated Lender shall no longer constitute a “Lender” for
purposes hereof; provided, any rights of such Terminated Lender to indemnification
hereunder shall survive as to such Terminated Lender. Each Lender agrees that if Borrower
exercises its option hereunder to cause an assignment by such Lender as a Non-Consenting Lender or
Terminated Lender, such Lender shall, promptly after receipt of written notice of such election,
execute and deliver all documentation necessary to effectuate such assignment in accordance with
Section 10.6. In the event that a Lender does not comply with the requirements of the immediately
preceding sentence within one Business Day after receipt of such notice, each Lender hereby
authorizes and directs Administrative Agent to execute and deliver such documentation as may be
required to give effect to an assignment in accordance with Section 10.6 on behalf of a
Non-Consenting Lender or Terminated Lender and any such documentation so executed by Administrative
Agent shall be effective for purposes of documenting an assignment pursuant to Section 10.6.




SECTION 3. CONDITIONS PRECEDENT




     3.1 Closing Date. The obligation of each Lender to make a Credit Extension on the Closing Date is
subject to the satisfaction, or waiver in accordance with Section 10.5, of the following conditions
on or before the Closing Date:



          (a) Credit Documents. Administrative Agent shall have received copies of each Credit
Document originally executed and delivered by each applicable Credit Party in a quantity reasonably
deemed sufficient by Administrative Agent.



          (b) Organizational Documents; Incumbency. Administrative Agent shall have received:



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     (i) (1) copies of each Organizational Document executed and delivered by each Credit
Party, as applicable and, to the extent applicable, certified as of a recent date by the
appropriate governmental official, each dated the Closing Date or a recent date prior
thereto; (2) signature and incumbency certificates of the officers of such Person executing
the Credit Documents to which it is a party; (3) resolutions of the Board of Directors or
similar governing body of each Credit Party approving and authorizing the execution,
delivery and performance of this Agreement and the other Credit Documents and the Related
Agreements to which it is a party or by which it or its assets may be bound as of the
Closing Date, certified as of the Closing Date by its secretary or an assistant secretary as
being in full force and effect without modification or amendment; (4) a good standing
certificate from the applicable Governmental Authority of each Credit Party’s jurisdiction
of incorporation, organization or formation and in each jurisdiction in which it is
qualified as a foreign corporation or other entity to do business, each dated a recent date
prior to the Closing Date; and (5) such other documents as Administrative Agent may
reasonably request; and




     (ii) (1) a certificate of the secretary or assistant secretary of each HMO Subsidiary
dated the Closing Date, certifying that attached thereto is a true and complete copy of each
Organizational Document of such HMO Subsidiary certified (to the extent applicable) as of a
recent date by the Secretary of State of the state of its organization and (2) a good
standing certificate from the applicable Governmental Authority of each HMO Subsidiary (in
so-called “long-form” if available), in each case, dated a recent date prior to the Closing
Date.



          (c) Organizational and Capital Structure. The organizational structure and capital
structure of Borrower and its Subsidiaries, after giving effect to Acquisition, shall be as set
forth on Schedule 4.1.



          (d) Consummation of Transactions Contemplated by Related Agreements.




     (i) (1) All conditions to the Acquisition set forth in the Acquisition Agreement shall
have been satisfied or the fulfillment of any such conditions shall have been waived, with
the consent of Administrative Agent if the Administrative Agent reasonably determines such
waiver is material and adverse to the Lenders, (2) the Acquisition shall have been
consummated in accordance with the terms of the Acquisition Agreement in all material
respects and (3) the aggregate cash consideration paid to the shareholders of LMCHP on the
Closing Date in connection with the Acquisition shall not exceed $355,000,000.




     (ii) Administrative Agent shall have received a fully executed or conformed copy of the
Acquisition Agreement and any material documents executed in connection therewith, together
with copies of each of the opinions of counsel, if any, delivered to the parties under the
Acquisition Agreement, accompanied by a letter from each such counsel (to the extent not
inconsistent with such counsel’s established internal policies) authorizing Lenders to rely
upon such opinion to the same extent as though it were addressed to Lenders. Each Related
Agreement shall be in full force and effect, and



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no provision thereof shall have been modified or waived in any respect determined by
Administrative Agent to be material and adverse to the Lenders without the consent of
Administrative Agent.



          (e) Existing Indebtedness. On the Closing Date, Borrower and its Subsidiaries shall
have (i) repaid in full all Existing Indebtedness (other than any Existing Indebtedness listed on
Schedule 6.1), (ii) terminated any commitments to lend or make other extensions of credit
thereunder, (iii) delivered to Administrative Agent all documents or instruments necessary to
release all Liens securing such Indebtedness or other obligations of Borrower and its Subsidiaries
thereunder being repaid on the Closing Date and (iv) made arrangements satisfactory to
Administrative Agent with respect to the cancellation of any letters of credit outstanding
thereunder or the issuance of Letters of Credit to support the obligations of Borrower and its
Subsidiaries with respect thereto.



          (f) Transaction Costs. Borrower shall have delivered to Administrative Agent
Borrower’s reasonable best estimate of the Transaction Costs (other than fees payable to any
Agent).



          (g) Governmental Authorizations and Consents. Each Credit Party shall have obtained
all Governmental Authorizations and all material consents of other Persons, in each case that are
necessary or advisable, including those required by the Florida Office of Insurance Regulation in
connection with the transactions contemplated by the Credit Documents and the Related Agreements
and each of the foregoing shall be in full force and effect and in form and substance reasonably
satisfactory to Administrative Agent. All applicable waiting periods shall have expired without
any action being taken or threatened by any competent authority which would restrain, prevent or
otherwise impose material and adverse conditions on the transactions contemplated by the Credit
Documents or the Related Agreements or the financing thereof and no action, request for stay,
petition for review or rehearing, reconsideration, or appeal with respect to any of the foregoing
shall be pending and the time for any applicable agency to take action to set aside its consent on
its own motion shall have expired.



          (h) [Reserved].



          (i) Personal Property Collateral. In order to create in favor of Collateral Agent,
for the benefit of Secured Parties, a valid, perfected First Priority security interest in the
personal property Collateral, the Credit Parties shall have delivered to Collateral Agent:




     (i) evidence satisfactory to Collateral Agent of the compliance by each Credit Party
with its obligations under the Pledge and Security Agreement and the other Collateral
Documents (including their obligations to execute and deliver UCC financing statements,
originals of securities, instruments and chattel paper and any agreements governing deposit
and/or securities accounts as provided therein);




     (ii) a completed Collateral Questionnaire executed by an Authorized Officer of each
Credit Party, together with all attachments contemplated thereby;



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     (iii) fully executed and notarized Intellectual Property Security Agreements, in proper
form for filing or recording in all appropriate places in all applicable jurisdictions,
memorializing and recording the encumbrance of the Intellectual Property Assets listed in
Schedule 5.2 to the Pledge and Security Agreement;




     (iv) opinions of counsel (which counsel shall be reasonably satisfactory to Collateral
Agent) with respect to the creation and perfection of the security interests in favor of
Collateral Agent in such Collateral and such other matters governed by the laws of each
jurisdiction in which any Credit Party is located as Collateral Agent may reasonably
request, in each case in form and substance reasonably satisfactory to Collateral Agent;




     (v) evidence that each Credit Party shall have taken or caused to be taken any other
action, executed and delivered or caused to be executed and delivered any other agreement,
document and instrument (including (i) the use of commercially reasonable efforts to obtain
a Landlord Personal Property Collateral Access Agreement executed by the landlord of any
Leasehold Property and by the applicable Credit Party and (ii) the delivery of any
intercompany notes evidencing Indebtedness permitted to be incurred pursuant to Section
6.1(b)) and made or caused to be made any other filing and recording (other than as set
forth herein) reasonably required by Collateral Agent; and




     (vi) evidence satisfactory to Collateral Agent that Borrower has retained, at its sole
cost and expense, a service provider acceptable to Collateral Agent for the tracking of all
of UCC financing statements of Borrower and the Guarantors and that will provide
notification to Collateral Agent of, among other things, the upcoming lapse or expiration
thereof.



          (j) [Reserved].



          (k) Financial Statements; Projections. Lenders shall have received from Borrower (i)
the Historical Financial Statements, (ii) pro forma consolidated balance sheets of Borrower and its
Subsidiaries as of the Closing Date and reflecting the consummation of the Acquisition, the related
financings and the other transactions contemplated by the Credit Documents to occur on or prior to
the Closing Date, which pro forma financial statements shall be in form reasonably satisfactory to
Administrative Agent and (iii) the Projections.



          (l) Evidence of Insurance. Collateral Agent shall have received a certificate from
Borrower’s insurance broker or other evidence satisfactory to it that all insurance required to be
maintained pursuant to Section 5.5 is in full force and effect, together with endorsements naming
the Collateral Agent, for the benefit of Secured Parties, as additional insured and loss payee
thereunder to the extent required under Section 5.5.



          (m) Opinions of Counsel to Credit Parties. Lenders and their respective counsel shall
have received originally executed copies of the favorable written opinions of (i) Bass, Berry &
Sims PLC, counsel for the Credit Parties, in the form of Exhibit D-1 and as to such other matters
as Administrative Agent may reasonably request, (ii) the general counsel of Borrower and its
Subsidiaries substantially to the effect set forth in Exhibit D-2 and as to such



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other matters as Administrative Agent may reasonably request and (iii) local counsel in such
jurisdictions as Administrative Agent may reasonably request in form and substance reasonably
satisfactory to Administrative Agent and, in each case, dated the Closing Date and otherwise in
form and substance reasonably satisfactory to Administrative Agent (and each Credit Party hereby
instructs such counsel to deliver such opinions to Agents and Lenders).




          (n) Fees. Borrower shall have paid to Agents the fees payable on the Closing Date
referred to in Section 2.11(d).



          (o) Solvency Certificate. On the Closing Date, Administrative Agent shall have
received a Solvency Certificate from Borrower.



          (p) Closing Date Certificate. Borrower shall have delivered to Administrative Agent
an originally executed Closing Date Certificate, together with all attachments thereto.



          (q) Credit Rating. The credit facilities provided for under this Agreement shall have
been assigned a credit rating by both S&P and Moody’s and Borrower shall have obtained corporate
family ratings from both S&P and Moody’s.



          (r) [Reserved].



          (s) No Litigation. There shall not exist any action, suit, investigation, litigation,
proceeding, hearing or other legal or regulatory developments, pending or threatened in any court
or before any arbitrator or Governmental Authority that, in the reasonable opinion of
Administrative Agent, singly or in the aggregate, materially impairs the Acquisition, the financing
thereof or any of the other transactions contemplated by the Credit Documents or the Related
Agreements, or that could have a Material Adverse Effect.



          (t) Completion of Proceedings. All partnership, corporate and other proceedings taken
or to be taken in connection with the transactions contemplated hereby and all documents incidental
thereto not previously found acceptable by Administrative Agent and its counsel shall be
satisfactory in form and substance to Administrative Agent and such counsel, and Administrative
Agent and such counsel shall have received all such counterpart originals or certified copies of
such documents as Administrative Agent may reasonably request.



          (u) Letter of Direction. Administrative Agent shall have received a duly executed
letter of direction from Borrower addressed to Administrative Agent, on behalf of itself and
Lenders, directing the disbursement on the Closing Date of the proceeds of the Loans made on such
date.



          (v) Maximum Leverage Ratio. After giving effect to the Acquisition, the ratio of (i)
Consolidated Total Debt as of the Closing Date to (ii) pro forma Consolidated Adjusted EBITDA
(which, for purposes of this clause (v), shall include the Consolidated Net Income of each of the
HMO Subsidiaries and shall be calculated in accordance with Section 6.7(d) for the latest
twelve-month period for which financial statements are then available), shall not be greater than
2.00:1.00.



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          (w) Patriot Act. At least 10 days prior to the Closing Date, the Lead Arranger shall
have received all documentation and other information required by bank regulatory authorities under
applicable “know-your-customer” and anti-money laundering rules and regulations, including the
U.S.A. Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001) the “Patriot
Act”).



     3.2 Conditions to Each Credit Extension.



          (a) Conditions Precedent. The obligation of each Lender to make any Loan, or Issuing
Bank to issue any Letter of Credit, on any Credit Date, including the Closing Date, are subject to
the satisfaction, or waiver in accordance with Section 10.5, of the following conditions precedent:




     (i) Administrative Agent shall have received a fully executed and delivered Funding
Notice or Issuance Notice, as the case may be;




     (ii) after making the Credit Extensions requested on such Credit Date, the Total
Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in
effect;




     (iii) as of such Credit Date, the representations and warranties contained herein and
in the other Credit Documents shall be true and correct on and as of that Credit Date to the
same extent as though made on and as of that date, except to the extent such representations
and warranties specifically relate to an earlier date, in which case such representations
and warranties shall have been true and correct on and as of such earlier date;




     (iv) as of such Credit Date, no event shall have occurred and be continuing or would
result from the consummation of the applicable Credit Extension that would constitute an
Event of Default or a Default; and




     (v) on or before the date of issuance of any Letter of Credit, Administrative Agent
shall have received all other information required by the applicable Issuance Notice and
such other documents or information as Issuing Bank may reasonably require in connection
with the issuance of such Letter of Credit.



          (b) Notices. Any Notice shall be executed by an Authorized Officer in a writing
delivered to Administrative Agent. In lieu of delivering a Notice, Borrower may give
Administrative Agent telephonic notice by the required time of any proposed borrowing,
conversion/continuation or issuance of a Letter of Credit, as the case may be; provided
each such notice shall be promptly confirmed in writing by delivery of the applicable Notice to
Administrative Agent on or before the applicable date of borrowing, continuation/conversion or
issuance. Neither Administrative Agent nor any Lender shall incur any liability to Borrower in
acting upon any telephonic notice referred to above that Administrative Agent believes in good
faith to have been given by a duly authorized officer or other person authorized on behalf of
Borrower or for otherwise acting in good faith.



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SECTION 4. REPRESENTATIONS AND WARRANTIES




     In order to induce Lenders and Issuing Bank to enter into this Agreement and to make each
Credit Extension to be made thereby, each Credit Party represents and warrants to each Lender and
Issuing Bank, on the Closing Date and on each Credit Date, that the following statements are true
and correct (it being understood and agreed that the representations and warranties made on the
Closing Date are deemed to be made concurrently with the consummation of the Acquisition
contemplated hereby):



     4.1 Organization; Requisite Power and Authority; Qualification.



          (a) Each of Borrower and its Subsidiaries (i) is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization as identified in Schedule 4.1, (ii) has
all requisite power and authority to own and operate its properties, to carry on its business as
now conducted and as proposed to be conducted, to enter into the Credit Documents to which it is a
party and to carry out the transactions contemplated thereby and (iii) is qualified to do business
and in good standing in every jurisdiction where its assets are located and wherever necessary to
carry out its business and operations, except in jurisdictions where the failure to be so qualified
or in good standing has not had and could not be reasonably expected to have, a Material Adverse
Effect.



          (b) Except to the extent a failure to do so could not reasonably be expected to result in a
Material Adverse Effect, each Credit Party and each HMO Subsidiary: (i) has obtained and maintains
in good standing without restriction all required licenses and certificates of authority, (ii) to
the extent prudent and customary in the industry in which it is engaged, has obtained and maintains
in good standing without restriction, accreditation from all applicable recognized accrediting
agencies, (iii) has entered into and maintains in good standing without restriction its status
under each Medical Reimbursement Program Provider Agreement to which it is a party, (iv) has
implemented and maintains a compliance program designed to provide effective internal controls to
promote adherence to and to prevent and detect material violations of, any applicable HMO
Regulations, Medicaid Regulations and Medicare Regulations and (v) has implemented and maintains
policies consistent with HIPAA on or before the date that any provision thereof becomes applicable
to Borrower or any of its Subsidiaries. The Credit Parties require each Contract Provider to
provide evidence, in accordance with re-credentialing requirements, that such Contract Provider is
duly licensed by each Governmental Authority having jurisdiction over the provision of such service
by such Contract Provider in the locations where the Credit Parties and the HMO Subsidiaries
conduct business, to the extent such licensing is required to enable Contract Provider to provide
the professional services provided by such Contract Provider.



     4.2 Equity Interests and Ownership; HMO Subsidiaries.



          (a) The Equity Interests of each of Borrower’s Subsidiaries have been duly authorized and
validly issued are fully paid and non-assessable. Except as set forth on Schedule 4.2, as of the
date hereof, there is no existing option, warrant, call, right, commitment



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or other agreement to which Borrower or any of its Subsidiaries is a party requiring, and
there is no membership interest or other Equity Interest of any of Borrower’s Subsidiaries
outstanding which upon conversion or exchange would require, the issuance by such Subsidiary of any
additional membership interests or other Equity Interests or other Securities convertible into,
exchangeable for or evidencing the right to subscribe for or purchase, a membership interest or
other Equity Interest. Schedule 4.2 correctly sets forth the ownership interest of Borrower and
each of its Subsidiaries in their respective Subsidiaries as of the Closing Date after giving
effect to the Acquisition.




          (b) The Credit Parties have no HMO Subsidiaries other than those specifically disclosed in
Schedule 4.2 (as such schedule may be supplemented from time to time in accordance with Section
5.10).



     4.3 Due Authorization. The execution, delivery and performance of the Credit Documents have been duly
authorized by all necessary action on the part of each Credit Party that is a party thereto.



     4.4 No Conflict. The execution, delivery and performance by the Credit Parties of the Credit Documents
to which they are parties and the consummation of the transactions contemplated by the Credit
Documents do not and will not (a) violate (i) any provision of any law or any governmental rule or
regulation applicable to Borrower or any of its Subsidiaries, (ii) any of the Organizational
Documents of Borrower or any of its Subsidiaries, or (iii) any order, judgment or decree of any
court or other agency of government binding on Borrower or any of its Subsidiaries; (b) conflict
with, result in a breach of or constitute (with due notice or lapse of time or both) a default
under any Contractual Obligation of Borrower or any of its Subsidiaries except to the extent such
conflict, breach or default could not reasonably be expected to have a Material Adverse Effect; (c)
result in or require the creation or imposition of any Lien upon any of the properties or assets of
Borrower or any of its Subsidiaries (other than any Liens created under any of the Credit Documents
in favor of Collateral Agent, on behalf of Secured Parties); or (d) require any approval of
stockholders, members or partners or any approval or consent of any Person under any Contractual
Obligation of Borrower or any of its Subsidiaries, except for such approvals or consents which will
be obtained on or before the Closing Date and except for any such approvals or consents the failure
of which to obtain will not have a Material Adverse Effect.



     4.5 Governmental Consents. The execution, delivery and performance by the Credit Parties of the Credit
Documents to which they are parties and the consummation of the transactions contemplated by the
Credit Documents do not and will not require any registration with, consent or approval of, or
notice to, or other action to, with or by, any Governmental Authority, except (a) as otherwise set
forth in the Acquisition Agreement, (b) as required by HMO Regulations and described on Schedule
4.5 and (c) for filings and recordings with respect to the Collateral to be made or otherwise
delivered to Collateral Agent for filing and/or recordation as of the Closing Date.



     4.6 Binding Obligation. Each Credit Document has been duly executed and delivered by each Credit Party
that is a party thereto and is the legally valid and binding obligation of such Credit Party,
enforceable against such Credit Party in accordance with its respective terms, except as may be
limited by bankruptcy, insolvency, reorganization,



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moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable
principles relating to enforceability.




     4.7 Historical Financial Statements. The Historical Financial Statements were prepared in conformity
with GAAP (or, as applicable with respect to LMCHP and HMO Subsidiaries, SAP) and fairly present,
in all material respects, the financial position, on a consolidated basis, of the entities
described in such financial statements as at the respective dates thereof and the results of
operations and cash flows, on a consolidated basis, of the entities described therein for each of
the periods then ended, subject, in the case of any such unaudited financial statements, to changes
resulting from audit and normal year end adjustments. As of the Closing Date, neither Borrower nor
any of its Subsidiaries has any contingent liability or liability for taxes, long term lease or
unusual forward or long term commitment that is not reflected in the Historical Financial
Statements or the notes thereto and which in any such case is material in relation to the business,
operations, properties, assets or condition (financial or otherwise) of Borrower and any of its
Subsidiaries taken as a whole.



     4.8 Projections. On and as of the Closing Date, the projections of Borrower and its Subsidiaries for
the period of Fiscal Year 2007 through and including Fiscal Year 2012 included in the Private
Supplement dated September 11, 2007 to the Confidential Information Memorandum dated September 2007
delivered to prospective Lenders (the “Projections”) are based on good faith estimates and
assumptions made by the management of Borrower; provided that the Projections are not to be
viewed as facts, and actual results during the period or periods covered by the Projections may
differ from such Projections and the differences may be material; provided further, as of the
Closing Date, management of Borrower believed in good faith that the Projections were reasonable
and attainable.



     4.9 No Material Adverse Change. Since December 31, 2006, no event, circumstance or change has occurred
that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect,
other than any events, developments or occurrences (but not any future updates, developments or
other changes in or to any such events, developments or occurrences) that have been disclosed by
Borrower after December 31, 2006 and prior to September 28, 2007 in any public filing on Form 10-K,
Form 10-Q or Form 8-K.



     4.10 No Restricted Junior Payments. Since December 31, 2006, neither Borrower nor any of its
Subsidiaries has directly or indirectly declared, ordered, paid or made, or set apart any sum or
property for, any Restricted Junior Payment or agreed to do so except as permitted pursuant to
Section 6.4.



     4.11 Adverse Proceedings, etc. There are no Adverse Proceedings, individually or in the aggregate, that
could reasonably be expected to have a Material Adverse Effect. Neither Borrower nor any of its
Subsidiaries (a) is in violation of any applicable laws (including Environmental Laws) that,
individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect,
or (b) is subject to or in default with respect to any final judgments, writs, injunctions,
decrees, rules or regulations of any court or any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or foreign, that,
individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.



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     4.12 Payment of Taxes. Except as otherwise permitted under Section 5.3, all federal income and all
other material tax returns and reports of Borrower and its Subsidiaries required to be filed by any
of them have been timely filed, and all taxes shown on such tax returns to be due and payable and
all material assessments, fees and other governmental charges upon Borrower and its Subsidiaries
and upon their respective properties, assets, income, businesses and franchises which are due and
payable have been paid when due and payable. Borrower knows of no proposed tax assessment against
Borrower or any of its Subsidiaries to which the Borrower or such Subsidiary objects and which is
not being actively contested by Borrower or such Subsidiary in good faith and by appropriate
proceedings; provided, such reserves or other appropriate provisions, if any, as shall be
required in conformity with GAAP shall have been made or provided therefor.



     4.13 Properties.



          (a) Title. Each of Borrower and its Subsidiaries has (i) good, sufficient and legal
title to (in the case of fee interests in real property), (ii) valid leasehold interests in (in the
case of leasehold interests in real or personal property), (iii) to Borrower’s knowledge, valid
licensed rights in (in the case of licensed interests in all material intellectual property) and
(iv) good title to (in the case of all other personal property), all of their respective properties
and assets reflected in their respective Historical Financial Statements referred to in Section 4.7
and in the most recent financial statements delivered pursuant to Section 5.1, in each case except
for assets disposed of since the date of such financial statements in the ordinary course of
business or as otherwise permitted under Section 6.8. Except as permitted by this Agreement, all
such properties and assets are free and clear of Liens.



          (b) Real Estate. As of the Closing Date, Schedule 4.13 contains a true, accurate and
complete list of (i) all Material Real Estate Assets and (ii) all leases, subleases or assignments
of leases (together with all amendments, modifications, supplements, renewals or extensions of any
thereof) affecting each Material Real Estate Asset of any Credit Party, regardless of whether such
Credit Party is the landlord or tenant (whether directly or as an assignee or successor in
interest) under such lease, sublease or assignment. Each agreement listed in clause (ii) of the
immediately preceding sentence is in full force and effect, Borrower does not have knowledge of any
default that has occurred and is continuing thereunder and each such agreement constitutes the
legally valid and binding obligation of each applicable Credit Party, enforceable against such
Credit Party in accordance with its terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights
generally or by equitable principles.



     4.14 Environmental Matters. Neither Borrower nor any of its Subsidiaries nor any of their respective
Facilities or operations are subject to any outstanding written order, consent decree or settlement
agreement with any Person relating to any Environmental Law, any Environmental Claim, or any
Hazardous Materials Activity that, individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect. Neither Borrower nor any of its Subsidiaries has received any
letter or request for information under Section 104 of the Comprehensive Environmental Response,
Compensation and Liability Act (42 U.S.C. § 9604) or any comparable state law. There are and, to
each of Borrower’s and its Subsidiaries’ knowledge, have been, no conditions, occurrences, or
Hazardous Materials Activities which could reasonably



74









 




be expected to form the basis of an Environmental Claim against Borrower or any of its Subsidiaries
that, individually or in the aggregate, could reasonably be expected to have a Material Adverse
Effect. Neither Borrower nor any of its Subsidiaries nor, to any Credit Party’s knowledge, any
predecessor of Borrower or any of its Subsidiaries has filed any notice under any Environmental Law
indicating past or present treatment of Hazardous Materials at any Facility, and none of Borrower’s
or any of its Subsidiaries’ operations involves the generation, transportation, treatment, storage
or disposal of hazardous waste, as defined under 40 C.F.R. Parts 260-270 or any state equivalent.
Compliance with all current or reasonably foreseeable future requirements pursuant to or under
Environmental Laws could not be reasonably expected to have, individually or in the aggregate, a
Material Adverse Effect. No event or condition has occurred or is occurring with respect to
Borrower or any of its Subsidiaries relating to any Environmental Law, any Release of Hazardous
Materials, or any Hazardous Materials Activity which individually or in the aggregate has had, or
could reasonably be expected to have, a Material Adverse Effect.




     4.15 No Defaults. Neither Borrower nor any of its Subsidiaries is in default in the performance,
observance or fulfillment of any of the obligations, covenants or conditions contained in any of
its Contractual Obligations and no condition exists which, with the giving of notice or the lapse
of time or both, could constitute such a default, except where the consequences, direct or
indirect, of such default or defaults, if any, could not reasonably be expected to have a Material
Adverse Effect.



     4.16 Material Contracts. Schedule 4.16 contains a true, correct and complete list of all the Material
Contracts in effect on the Closing Date. All Material Contracts are in full force and effect, and
Borrower has no knowledge of the existence of any current defaults thereunder that, individually or
in the aggregate, could reasonably be expected to have a Material Adverse Effect.



     4.17 Governmental Regulation. Neither Borrower nor any Guarantor is subject to regulation under the
Federal Power Act or the Investment Company Act of 1940 or under any other federal or state statute
or regulation which may limit its ability to incur Indebtedness or which may otherwise render all
or any portion of the Obligations unenforceable. Neither Borrower nor any of its Subsidiaries is a
“registered investment company” or a company “controlled” by a “registered investment company” or a
“principal underwriter” of a “registered investment company” as such terms are defined in the
Investment Company Act of 1940.



     4.18 Margin Stock. Neither Borrower nor any of its Subsidiaries owns any Margin Stock.



     4.19 Employee Matters. Neither Borrower nor any of its Subsidiaries is engaged in any unfair labor
practice that could reasonably be expected to have a Material Adverse Effect. There is (a) no
unfair labor practice complaint pending against Borrower or any of its Subsidiaries, or to the best
knowledge of Borrower, threatened against any of them before the National Labor Relations Board and
no grievance or arbitration proceeding arising out of or under any collective bargaining agreement
that is so pending against Borrower or any of its Subsidiaries or to the best knowledge of
Borrower, threatened against any of them, (b) no strike or work stoppage in existence or threatened
involving Borrower or any of its Subsidiaries and (c)



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to the best knowledge of Borrower, no union representation question existing with respect to the
employees of Borrower or any of its Subsidiaries and, to the best knowledge of Borrower, no union
organization activity that is taking place, except (with respect to any matter specified in clause
(a), (b) or (c) above, either individually or in the aggregate) such as is not reasonably likely to
have a Material Adverse Effect.




     4.20 Employee Benefit Plans. Borrower, each of its Subsidiaries and each of their respective ERISA
Affiliates are in compliance with all applicable provisions and requirements of ERISA and the
Internal Revenue Code and the regulations and published interpretations thereunder with respect to
each Pension Plan or Multiemployer Plan and have performed all their obligations under each Pension
Plan or Multiemployer Plan. Each Pension Plan or Multiemployer Plan which is intended to qualify
under Section 401(a) of the Internal Revenue Code has received a favorable determination letter
from the Internal Revenue Service indicating that such Pension Plan or Multiemployer Plan is so
qualified and nothing has occurred subsequent to the issuance of such determination letter which
would cause such Pension Plan or Multiemployer Plan to lose its qualified status. No liability to
the PBGC (other than required premium payments), the Internal Revenue Service, any Pension Plan or
Multiemployer Plan or any trust established under Title IV of ERISA in connection with a Pension
Plan or a Multiemloyer Plan has been or is expected to be incurred by Borrower, any of its
Subsidiaries or any of their ERISA Affiliates. No ERISA Event has occurred or is reasonably
expected to occur. The present value of the aggregate benefit liabilities under each Pension Plan
sponsored, maintained or contributed to by Borrower, any of its Subsidiaries or any of their ERISA
Affiliates (determined as of the end of the most recent plan year on the basis of the actuarial
assumptions specified for funding purposes in the most recent actuarial valuation for such Pension
Plan), did not exceed the aggregate current value of the assets of such Pension Plan. As of the
most recent valuation date for each Multiemployer Plan for which the actuarial report is available,
the potential liability of Borrower, its Subsidiaries and their respective ERISA Affiliates for a
complete withdrawal from such Multiemployer Plan (within the meaning of Section 4203 of ERISA),
when aggregated with such potential liability for a complete withdrawal from all Multiemployer
Plans, based on information available pursuant to Section 4221(e) of ERISA is zero. Borrower, each
of its Subsidiaries and each of their ERISA Affiliates have complied with the requirements of
Section 515 of ERISA with respect to each Multiemployer Plan and are not in material “default” (as
defined in Section 4219(c)(5) of ERISA) with respect to payments to a Multiemployer Plan.



     4.21 Certain Fees. No broker’s or finder’s fee or commission will be payable with respect to the
transactions contemplated by the Related Agreements, except as payable to the Agents, the Lenders
and their Affiliates.



     4.22 Solvency. The Credit Parties are and, upon the incurrence of any Obligation by any Credit Party on
any date on which this representation and warranty is made, will be, Solvent.



     4.23 Related Agreements.



          (a) Delivery. Borrower has delivered to Administrative Agent complete and correct
copies of (i) each material Related Agreement and of all exhibits and schedules thereto as of the
date hereof and (ii) copies of any material amendment, restatement, supplement



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or other modification to or waiver of each material Related Agreement entered into after the
date hereof.




          (b) Conditions Precedent. On the Closing Date, (i) all of the conditions to effecting
or consummating the Acquisition set forth in the Acquisition Agreement have been duly satisfied or,
with the consent of Administrative Agent (to the extent required hereunder), waived and (ii) the
Acquisition has been consummated in all material respects in accordance with the Related Agreements
and all applicable laws. All representations and warranties of Borrower and its Subsidiaries set
forth in the Acquisition Agreement were true and correct in all material respects as of the time
such representations and warranties were made, unless stated to relate to a specific earlier date,
in which case such representations and warranties shall be true and correct in all material
respects as of such earlier date. To the knowledge of Borrower, all representations and warranties
of LMCHP set forth in the Acquisition Agreement were true and correct in all material respects as
of the time such representations and warranties were made, unless stated to relate to a specific
earlier date, in which case such representations and warranties shall be true and correct in all
material respects as of such earlier date.



     4.24 Compliance with Statutes, etc. Each of Borrower and its Subsidiaries is in compliance with all
Requirements of Law and all applicable restrictions imposed by all Governmental Authorities in
respect of the conduct of its business and the ownership of its property (including compliance with
all applicable HMO Regulations, Medicare Regulations, Medicaid Regulations and Environmental Laws
with respect to any Real Estate Asset or governing its business and the requirements of any permits
issued under such Environmental Laws with respect to any such Real Estate Asset or the operations
of Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect. Without
limiting the generality of the foregoing with respect to Borrower and each of its Subsidiaries:



          (a) neither Borrower nor any of its Subsidiaries nor any individual, to Borrower’s knowledge,
employed by Borrower or any of its Subsidiaries would reasonably be expected to have criminal
culpability or to be excluded from participation in any Medical Reimbursement Program for
individual, to Borrower’s knowledge, or corporate actions or failures to act where such culpability
or exclusion has resulted or could reasonably be expected to result in an Exclusion Event that
could reasonably be expected to have a Material Adverse Effect;



          (b) no officer continuing to be employed by Borrower or any of its Subsidiaries may reasonably
be expected to have individual culpability for matters under investigation by the OIG or other
Governmental Authority unless such officer has been, within a reasonable period of time after
discovery of such actual or potential culpability, either suspended or removed from positions of
responsibility related to those activities under challenge by the OIG or other Governmental
Authority;



          (c) current billing policies, arrangements, protocols and instructions comply with
requirements of Medical Reimbursement Programs and are administered by properly trained personnel,
except where any such failure to comply would not reasonably be



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expected to result in an Exclusion Event that could reasonably be expected to have a Material
Adverse Effect; and




          (d) current medical director compensation arrangements comply with state and federal anti-kick
back, fraud and abuse and Stark I and II requirements, except where any such failure to comply
would not reasonably be expected to result in an Exclusion Event that could reasonably be expected
to have a Material Adverse Effect.



     4.25 Disclosure. No representation or warranty of any Credit Party contained in any Credit Document or
in any other documents, certificates or written statements furnished to any Agent or Lender by or
on behalf of Borrower or any of its Subsidiaries for use in connection with the transactions
contemplated hereby, taken as a whole, contains any untrue statement of a material fact or omits to
state a material fact (known to Borrower, in the case of any document not furnished by Borrower or
its Subsidiaries) necessary in order to make the statements contained herein or therein not
misleading in light of the circumstances in which the same were made. Notwithstanding the
foregoing, any projections and pro forma financial information contained in such materials are
based upon good faith estimates and assumptions believed by Borrower to be reasonable at the time
made, it being recognized by Lenders that such projections as to future events are not to be viewed
as facts and that actual results during the period or periods covered by any such projections may
differ from the projected results. There are no facts known (or which should upon the reasonable
exercise of diligence be known) to Borrower (other than matters of a general economic nature) that,
individually or in the aggregate, could reasonably be expected to result in a Material Adverse
Effect and that have not been disclosed herein or in such other documents, certificates and
statements furnished to Lenders for use in connection with the transactions contemplated hereby.



     4.26 Anti-Terrorism Laws, Foreign Corrupt Practices Act, etc.



          (a) No Credit Party and, to the knowledge of the Credit Parties, none of its Affiliates is in
violation of any Requirement of Law relating to terrorism or money laundering (“Anti-Terrorism
Laws”), including Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001
(the “Executive Order”), and the Patriot Act.



          (b) No Credit Party, and to the knowledge of the Credit Parties, no Affiliate or broker or
other agent of any Credit Party acting or benefiting in any capacity in connection with the Loans
is any of the following:




     (i) a person that is listed in the annex to, or is otherwise subject to the provisions
of, the Executive Order;




     (ii) a person owned or controlled by, or acting for or on behalf of, any person that is
listed in the annex to, or is otherwise subject to the provisions of, the Executive Order;




     (iii) a person with which any Lender is prohibited from dealing or otherwise engaging
in any transaction by any Anti-Terrorism Law;



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     (iv) a person that commits, threatens or conspires to commit or supports “terrorism” as
defined in the Executive Order; or




     (v) a person that is named as a “specially designated national and blocked person” on
the most current list published by the U.S. Treasury Department Office of Foreign Assets
Control (“OFAC”) at its official website or any replacement website or other replacement
official publication of such list.



          (c) No Credit Party and, to the knowledge of the Credit Parties, no broker or other agent of
any Credit Party acting in any capacity in connection with the Loans (i) conducts any business or
engages in making or receiving any contribution of funds, goods or services to or for the benefit
of any person described in paragraph (b) above, (ii) deals in, or otherwise engages in any
transaction relating to, any property or interests in property blocked pursuant to the Executive
Order, or (iii) engages in or conspires to engage in any transaction that evades or avoids, or has
the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in
any Anti-Terrorism Law.



          (d) No part of the proceeds of the Loans will be used, directly or indirectly, for any
payments to any governmental official or employee, political party, official of a political party,
candidate for political office, or anyone else acting in an official capacity, in order to obtain,
retain or direct business or obtain any improper advantage, in violation of the United States
Foreign Corrupt Practices Act of 1977, as amended.



     4.27 Fraud and Abuse. To the knowledge of the Authorized Officers of the Credit Parties, neither
Borrower nor any of its Subsidiaries nor any of their respective officers, directors or Contract
Providers have engaged in any activities that are prohibited under any applicable provision of the
Social Security Act and the regulations promulgated thereunder, including HIPAA, Medicare
Regulations, Medicaid Regulations or binding rules of professional conduct, except to the extent
that the same, individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.



SECTION 5. AFFIRMATIVE COVENANTS




     Each Credit Party covenants and agrees that, so long as any Commitment is in effect and until
payment in full of all Obligations and cancellation or expiration of all Letters of Credit, each
Credit Party shall perform and shall cause each of its Subsidiaries to perform, all covenants in
this Section 5.



     5.1 Financial Statements and Other Reports. Borrower will deliver to Administrative Agent (for the
benefit of the Lenders):



          (a) Quarterly Financial Statements. (i) As soon as available and in any event within
45 days after the end of each Fiscal Quarter (other than the last Fiscal Quarter) of each Fiscal
Year, commencing with the Fiscal Quarter in which the Closing Date occurs, the consolidated balance
sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter



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and the related consolidated statements of income and cash flows of Borrower and its
Subsidiaries for such Fiscal Quarter and for the period from the beginning of the then current
Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding periods of the previous Fiscal Year and the
corresponding figures from the Financial Plan for the current Fiscal Year, all in reasonable
detail, together with a Financial Officer Certification and a Narrative Report with respect thereto
(it being understood that the information required by this clause (i) may be furnished in the form
of a Form 10-Q and with the accompanying certifications required by the applicable Requirements of
Law for filing Forms 10-Q with the SEC);





     (ii) Within 15 days of the required date for delivery to the applicable state after the
end of each Fiscal Quarter of Borrower, quarterly financial statements of each HMO
Subsidiary prepared in accordance with SAP;



          (b) Annual Financial Statements. (i) As soon as available and in any event within 90
days after the end of each Fiscal Year, commencing with the Fiscal Year in which the Closing Date
occurs, (1) the consolidated balance sheet of Borrower and its Subsidiaries as at the end of such
Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows
of Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative
form the corresponding figures for the previous Fiscal Year and the corresponding figures from the
Financial Plan for the Fiscal Year covered by such financial statements, in reasonable detail,
together with a Financial Officer Certification and a Narrative Report with respect thereto; and
(2) a report thereon of KPMG LLP or other independent certified public accountants of recognized
national standing selected by Borrower and reasonably satisfactory to Administrative Agent (which
report shall be unqualified as to going concern and scope of audit and shall state that such
consolidated financial statements fairly present, in all material respects, the consolidated
financial position of Borrower and its Subsidiaries as at the dates indicated and the results of
their operations and their cash flows for the periods indicated in conformity with GAAP applied on
a basis consistent with prior years (except as otherwise disclosed in such financial statements)
and that the examination by such accountants in connection with such consolidated financial
statements has been made in accordance with generally accepted auditing standards (it being
understood that the information required by this clause (i) may be furnished in the form of a Form
10-K and with the accompanying certificates required by the applicable Requirements of Law for
filing Forms 10-K with the SEC).




     (ii) Within 15 days of the required date for delivery to the applicable state after the
end of each Fiscal Year of Borrower, annual financial statements of each HMO Subsidiary
prepared in accordance with SAP;



          (c) Compliance Certificate. Together with each delivery of financial statements of
Borrower and its Subsidiaries pursuant to Sections 5.1(a) and 5.1(b), a duly executed and completed
Compliance Certificate;



          (d) Notice of Certain Investments and Required Advances. Concurrently with the
delivery of financial statements under Section 5.1(a), (i) written notification of Investments
during such fiscal quarter by any member of the Consolidated Group



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in any HMO Subsidiary that, individually or in the aggregate in any fiscal year of Borrower,
exceed 10% of the Regulatory Action Level or, in any state that has not adopted the NAIC
definition, the relevant state’s reserve requirements, as applicable, (in each case as determined
in accordance with SAP at the immediately preceding fiscal-year-end determination thereof) of such
HMO Subsidiary; provided that, to the extent such Investments, individually or in the
aggregate, materially deviate from the Financial Plan delivered pursuant to Section 5.1(i), written
notification of such Investments shall be provided not later than fifteen days following the end of
the calendar month during which such Investments are made and (ii) evidence of any requirement by
an HMO Regulator for any member of the Consolidated Group to make a Required Advance in excess of
$100,000;




          (e) Statements of Reconciliation after Change in Accounting Principles. If, as a
result of any Accounting Change, the consolidated financial statements of Borrower and its
Subsidiaries delivered pursuant to Section 5.1(a) or 5.1(b) will differ in any material respect
from the consolidated financial statements that would have been delivered pursuant to such
subdivisions had no such change in accounting principles and policies been made, then, together
with the first delivery of such financial statements after such change, one or more statements of
reconciliation for all such prior financial statements in form and substance satisfactory to
Administrative Agent; provided that this Section 5.1(e) shall not be applicable following
an amendment of this Agreement contemplated by Section 1.2;



          (f) Notice of Default. Promptly upon any Authorized Officer of Borrower obtaining
knowledge (i) of any condition or event that constitutes a Default or an Event of Default or that
notice has been given to Borrower with respect thereto; (ii) that any Person has given any notice
to Borrower or any of its Subsidiaries or taken any other action with respect to any event or
condition set forth in Section 8.1(b); or (iii) of the occurrence of any event or change that has
caused or evidences, either in any case or in the aggregate, a Material Adverse Effect, a
certificate of its Authorized Officer specifying the nature and period of existence of such
condition, event or change, or specifying the notice given and action taken by any such Person and
the nature of such claimed Event of Default, Default, default, event or condition and what action
Borrower has taken, is taking and proposes to take with respect thereto;



          (g) Notice of Litigation. Promptly upon any Authorized Officer of Borrower obtaining
knowledge of (i) the institution of, or non-frivolous threat of, any Adverse Proceeding not
previously disclosed in writing by Borrower to Lenders, or (ii) any material development in any
Adverse Proceeding that, in the case of either clause (i) or (ii), could reasonably be expected to
be adversely determined, and if adversely determined could be reasonably expected to have a
Material Adverse Effect, or seeks to enjoin or otherwise prevent the consummation of, or to recover
any damages or obtain relief as a result of, the transactions contemplated hereby, written notice
thereof together with such other information as may be reasonably available to Borrower to enable
Lenders and their counsel to evaluate such matters;



          (h) ERISA. (i) Promptly upon becoming aware of the occurrence of or forthcoming
occurrence of any ERISA Event, a written notice specifying the nature thereof, what action
Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates has taken, is taking
or proposes to take with respect thereto and, when known, any action taken or threatened by the
Internal Revenue Service, the Department of Labor or the PBGC with respect thereto; and



81









 




(ii) with reasonable promptness, copies of (1) each Schedule B (Actuarial Information) to the
annual report (Form 5500 Series) filed by Borrower, any of its Subsidiaries or any of their
respective ERISA Affiliates with the Internal Revenue Service with respect to each Pension Plan;
(2) all notices received by Borrower, any of its Subsidiaries or any of their respective ERISA
Affiliates from a Multiemployer Plan sponsor concerning an ERISA Event; and (3) copies of such
other documents or governmental reports or filings relating to any Pension Plan or Multiemployer
Plan as Administrative Agent shall reasonably request;




          (i) Financial Plan. As soon as practicable and in any event no later than thirty days
after the beginning of each Fiscal Year, a consolidated plan and financial forecast for such Fiscal
Year (a “Financial Plan”), including (i) a forecasted consolidated balance sheet and forecasted
consolidated statements of income and cash flows of Borrower and its Subsidiaries for such Fiscal
Year, together with a pro forma Compliance Certificate for such Fiscal Year and an explanation of
the assumptions on which such forecasts are based and (ii) forecasted consolidated statements of
income and cash flows of Borrower and its Subsidiaries for each month of such Fiscal Year and (iii)
a forecast demonstrating projected compliance with the requirements of Sections 6.7(a) and (b) for
such Fiscal Year;



          (j) Insurance Report. As soon as practicable and in any event by the last day of each
Fiscal Year, a certificate from Borrower’s insurance broker(s) in form reasonably satisfactory to
Administrative Agent outlining all material insurance coverage maintained as of the date of such
certificate by Borrower and its Subsidiaries;



          (k) Information Regarding Collateral. (a) Borrower will furnish to Collateral Agent
prompt written notice of any change (i) in any Credit Party’s corporate name, (ii) in any Credit
Party’s identity or corporate structure, (iii) in any Credit Party’s jurisdiction of organization
or (iv) in any Credit Party’s Federal Taxpayer Identification Number or state organizational
identification number. Borrower agrees not to effect or permit any change referred to in the
preceding sentence unless all filings have been made under the Uniform Commercial Code or otherwise
that are required in order for Collateral Agent to continue at all times following such change to
have a valid, legal and perfected security interest in all the Collateral as contemplated in the
Collateral Documents. Borrower also agrees promptly to notify Collateral Agent if any material
portion of the Collateral is damaged or destroyed;



          (l) Annual Collateral Verification. Each year, at the time of delivery of annual
financial statements with respect to the preceding Fiscal Year pursuant to Section 5.1(b), Borrower
shall deliver to Collateral Agent a certificate of an Authorized Officer (i) either confirming that
there has been no change in such information since the date of the Collateral Questionnaire
delivered on the Closing Date or the date of the most recent certificate delivered pursuant to this
Section and/or identifying such changes and (ii) certifying that all Uniform Commercial Code
financing statements (including fixture filings, as applicable) and all supplemental intellectual
property security agreements or other appropriate filings, recordings or registrations, have been
filed of record in each governmental, municipal or other appropriate office in each jurisdiction
identified pursuant to clause (i) above (or in such Collateral Questionnaire) to the extent
necessary to effect, protect and perfect the security interests under the Collateral Documents for
a period of not less than 18 months after the date of such certificate



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(except as noted therein with respect to any continuation statements to be filed within such
period);




          (m) Other Information. (i) Promptly upon their becoming available, copies of (1) all
financial statements, reports, notices and proxy statements sent or made available generally by
Borrower to its security holders acting in such capacity or by any Subsidiary of Borrower to its
security holders other than Borrower or another Subsidiary of Borrower, (2) all regular and
periodic reports and all registration statements and prospectuses, if any, filed by Borrower or any
of its Subsidiaries with any securities exchange or with the Securities and Exchange Commission or
any governmental or private regulatory authority, (3) all press releases and other statements made
available generally by Borrower or any of its Subsidiaries to the public concerning material
developments in the business of Borrower or any of its Subsidiaries and (ii) such other information
and data with respect to Borrower or any of its Subsidiaries as from time to time may be reasonably
requested by Administrative Agent or any Lender;



          (n) Certification of Public Information. Concurrently with the delivery of any
document or notice required to be delivered pursuant to this Section 5.1, Borrower shall indicate
in writing whether such document or notice contains Nonpublic Information. Borrower and each
Lender acknowledge that certain of the Lenders may be “public-side” Lenders (Lenders that do not
wish to receive material non-public information with respect to Borrower, its Subsidiaries or their
securities) and, if documents or notices required to be delivered pursuant to this Section 5.1 or
otherwise are being distributed through IntraLinks/IntraAgency, SyndTrak or another relevant
website or other information platform (the “Platform”), any document or notice that Borrower has
indicated contains Nonpublic Information shall not be posted on that portion of the Platform
designated for such public-side Lenders. If Borrower has not indicated whether a document or
notice delivered pursuant to this Section 5.1 contains Nonpublic Information, Administrative Agent
reserves the right to post such document or notice solely on that portion of the Platform
designated for Lenders who wish to receive material nonpublic information with respect to Borrower,
its Subsidiaries and their securities;



          (o) Reinsurance Schedule. Within 120 days after the end of each Fiscal Year of
Borrower, a schedule setting forth in reasonable detail the reinsurance arrangements maintained by
each of the HMO Subsidiaries of Borrower as of the end of such Fiscal Year (with any changes
subsequent to the end of such Fiscal Year described therein);



          (p) Provider Status. Notice of the institution of any investigation or proceeding to
terminate (or that could reasonably be expected to result in the termination of) the contract of
any of the HMO Subsidiaries to be a Medicare Advantage Program contractor or state Medicaid Program
contractor or its status under any Medical Reimbursement Program or any investigation or proceeding
that could reasonably be expected to result in an Exclusion Event;



          (q) Notice of Exclusion Event. Promptly after receipt thereof, notice of intent to
exclude, any notice of proposal to exclude issued by the OIG or any other Exclusion Event (together
with a copy of any such notice);



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          (r) Loss of Accreditation, Participation, License or Certificate of Authority.
Promptly after receipt thereof, notice of receipt of any loss or threatened loss of accreditation,
loss of participation under any reimbursement program or loss of applicable health care license or
certificate of authority of any HMO Subsidiary and any other material deficiency notices,
compliance orders or adverse reports issued by any HMO Regulator or other Governmental Authority
that, if not promptly complied with or cured, could result in a suspension or forfeiture of any
license, certification, or accreditation necessary for such HMO Subsidiary to carry on its business
as then conducted or a termination of any insurance or reimbursement program available to any HMO
Subsidiary (in each case together with a copy of any such notice);



          (s) Non-Compliance with HMO Regulations. Promptly after receipt thereof, notice of
receipt of any correspondence from an HMO Regulator asserting that Borrower or any of its
Subsidiaries is not in compliance in all material respects with HMO Regulations or threatening
action against Borrower or any of its Subsidiaries under the HMO Regulations (together with a copy
of such correspondence); and



          (t) HMO Events. Promptly after occurrence thereof, notice of the occurrence of any
HMO Event upon any Authorized Officer of Borrower becoming aware thereof.



     5.2 Existence; Licensing. Except as otherwise permitted under Section 6.8, each Credit Party will and
will cause each of its Subsidiaries to, at all times:



          (a) Except as permitted by Section 6.8, preserve and keep in full force and effect its
existence and all rights and franchises, licenses and permits material to its business;
provided, no Credit Party (other than Borrower with respect to existence) or any of its
Subsidiaries shall be required to preserve any such existence, right or franchise, licenses and
permits if such Person’s board of directors (or similar governing body) shall determine that the
preservation thereof is no longer desirable in the conduct of the business of the Borrower and its
Subsidiaries and that the loss thereof is not disadvantageous in any material respect to the
Borrower and its Subsidiaries or to Lenders; and



          (b) Preserve and maintain (i) the licensing and certification of each HMO Subsidiary pursuant
to the HMO Regulations, (ii) all certifications and authorizations necessary to ensure that the HMO
Subsidiaries are eligible for all reimbursements available under the HMO Regulations to the extent
applicable and (iii) all licenses, permits, authorizations and qualifications required under the
HMO Regulations in connection with the ownership or operation of HMOs except, in each case, to the
extent that a failure to do so could not reasonably be expected to have a Material Adverse Effect.



     5.3 Payment of Taxes and Claims. Each Credit Party will and will cause each of its Subsidiaries to,
pay all federal income taxes and all other material Taxes imposed upon it or any of its properties
or assets or in respect of any of its income, businesses or franchises before any penalty or fine
accrues thereon and all claims (including claims for labor, services, materials and supplies) for
sums that have become due and payable and that by law have or may become a Lien upon any of its
properties or assets, prior to the time when any penalty or fine shall be



84









 




incurred with respect thereto; provided, no such Tax or claim need be paid if it is being
contested in good faith by appropriate proceedings promptly instituted and diligently conducted, so
long as (a) adequate reserves or other appropriate provision, as shall be required in conformity
with GAAP, shall have been made therefor and (b) in the case of a Tax or claim which has or may
become a Lien against any of the Collateral, such contest proceedings conclusively operate to stay
the sale of any portion of the Collateral to satisfy such Tax or claim. No Credit Party will, nor
will it permit any of its Subsidiaries to, file or consent to the filing of any consolidated income
tax return with any Person (other than Borrower or any of its Subsidiaries).




     5.4 Maintenance of Properties. Each Credit Party will and will cause each of its Subsidiaries to,
maintain or cause to be maintained in good repair, working order and condition, ordinary wear and
tear excepted, all material properties used or useful in the business of Borrower and its
Subsidiaries and from time to time will make or cause to be made all appropriate repairs, renewals
and replacements thereof, except to the extent that a failure to do so could not reasonably be
expected to have a Material Adverse Effect.



     5.5 Insurance. Borrower will maintain or cause to be maintained, with financially sound and reputable
insurers, such public liability insurance, third party property damage insurance and casualty
insurance with respect to liabilities, losses or damage in respect of the assets, properties and
businesses of Borrower and its Subsidiaries as may customarily be carried or maintained under
similar circumstances by Persons of established reputation engaged in similar businesses, in each
case in such amounts (giving effect to self insurance), with such deductibles, covering such risks
and otherwise on such terms and conditions as shall be customary for such Persons. Without
limiting the generality of the foregoing, Borrower will maintain or cause to be maintained (a)
flood insurance with respect to each Flood Hazard Property that is located in a community that
participates in the National Flood Insurance Program, in each case in compliance with any
applicable regulations of the Board of Governors of the Federal Reserve System and (b) replacement
value casualty insurance on the tangible Collateral under such policies of insurance, with such
insurance companies, in such amounts, with such deductibles and covering such risks as are at all
times carried or maintained under similar circumstances by Persons of established reputation
engaged in similar businesses. Each such policy of insurance shall (i) name Collateral Agent, on
behalf of Secured Parties, as an additional insured thereunder as its interests may appear, (ii) in
the case of each casualty insurance policy, contain a loss payable clause or endorsement,
satisfactory in form and substance to Collateral Agent, that names Collateral Agent, on behalf of
the Secured Parties, as the loss payee thereunder and provide for at least thirty days’ prior
written notice to Collateral Agent of any modification or cancellation of such policy.



     5.6 Books and Records; Inspections.



          (a) Each Credit Party will and will cause each of its Subsidiaries to (i) keep proper books of
record and accounts in which full, true and correct entries in conformity with GAAP and in all
material respects with all Requirements of Law are made of all dealings and transactions in
relation to its business and activities and (ii) maintain such books of record and accounts in
material conformity with all applicable requirements of any Governmental Authority having
regulatory jurisdiction over Borrower or such Subsidiary; and



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          (b) Each Credit Party will and will cause each of its Subsidiaries to, permit any authorized
representatives designated by any Lender to visit and inspect any of the properties of any Credit
Party and any of its respective Subsidiaries, to inspect, copy and take extracts from its and their
financial and accounting records and to discuss its and their affairs, finances and accounts with
its and their officers and independent public accountants, all upon reasonable notice and at such
reasonable times during normal business hours and as often as may reasonably be requested;
provided that (i) this Section 5.6(b) shall not apply to HMO Subsidiaries to the extent
prohibited by any Requirements of Law, (ii) a representative of Borrower shall be given the
opportunity to be present for any communication with Borrower’s independent accountants, (iii) the
Credit Parties shall not be required to pay the expenses of more than one such visit and inspection
during any Fiscal Year of Borrower unless any Default or Event of Default has occurred and is
continuing and (iv) each Lender shall coordinate with Administrative Agent the frequency and timing
of any such visits and inspections so as to reasonably minimize the burden and expense imposed on
the Credit Parties.



          (c) During the course of the aforementioned visits, inspections and discussions,
representatives of Administrative Agent and the Lenders may encounter individually identifiable
healthcare information or other confidential information relating to healthcare patients
(collectively, the “Confidential Healthcare Information”). Unless otherwise required by law,
Administrative Agent and the Lenders, and their respective representatives, shall not disclose,
compile, aggregate, remove from the properties of Borrower or any of its Subsidiaries or record in
any manner any Confidential Healthcare Information, and shall not require Borrower or any of its
Subsidiaries to violate any laws, regulations or ordinances intended to protect the privacy rights
of healthcare patients, including, without limitation, HIPAA.



     5.7 Lender Meetings. Borrower will, upon the request of Administrative Agent or Requisite Lenders,
participate in a meeting of Administrative Agent and Lenders once during each Fiscal Year to be
held at Borrower’s corporate offices (or at such other location as may be agreed to by Borrower and
Administrative Agent) at such time as may be agreed to by Borrower and Administrative Agent.



     5.8 Compliance with Laws. Each Credit Party will comply and shall cause each of its Subsidiaries and
all other Persons, if any, on or occupying any Facilities to comply, with the requirements of all
applicable laws, rules, regulations and orders of any Governmental Authority (including all
Environmental Laws), noncompliance with which could reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect.



     5.9 Environmental.



          (a) Environmental Disclosure. Borrower will deliver to Administrative Agent and
Lenders:




     (i) as soon as practicable following receipt thereof, copies of all environmental
audits, investigations, analyses and reports of any kind or character other than routine
sampling, monitoring or similar activities required by a Governmental Authority, whether
prepared by personnel of Borrower or any of its Subsidiaries or by independent consultants,
Governmental Authorities or any other Persons, with respect to significant environmental
matters at any Facility or with respect to any Environmental



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Claims that, individually or in the aggregate, have a reasonable possibility of
resulting in a Material Adverse Effect;




     (ii) promptly upon the occurrence thereof, written notice describing in reasonable
detail (1) any Release required to be reported by Borrower or any Subsidiary to any federal,
state or local governmental or regulatory agency under any applicable Environmental Laws,
(2) any remedial action taken by Borrower or any Subsidiary at or concerning a Facility in
response to (A) any Release of Hazardous Materials, the existence of which has a reasonable
possibility of resulting in one or more Environmental Claims having, individually or in the
aggregate, a Material Adverse Effect, or (B) any Environmental Claims that, individually or
in the aggregate, have a reasonable possibility of resulting in a Material Adverse Effect
and (3) Borrower’s discovery of any occurrence or condition on any real property adjoining
or in the vicinity of any Facility that reasonably could cause such Facility or any part
thereof to be subject to any material restrictions on the ownership, occupancy,
transferability or use thereof under any Environmental Laws that could reasonably be
expected to have a Material Adverse Effect;




     (iii) as soon as practicable following the sending or receipt thereof by Borrower or
any of its Subsidiaries, a copy of any and all written communications with respect to (1)
any Environmental Claims that, individually or in the aggregate, have a reasonable
possibility of giving rise to a Material Adverse Effect, (2) any Release required to be
reported by Borrower or any Subsidiary to any federal, state or local governmental or
regulatory agency and (3) any request for information from any governmental agency that
reasonably suggests such agency is investigating whether Borrower or any of its Subsidiaries
may be potentially responsible for any Release of Hazardous Materials Activity;




     (iv) prompt written notice describing in reasonable detail (1) any proposed acquisition
of stock, assets, or property by Borrower or any of its Subsidiaries that could reasonably
be expected to (A) expose Borrower or any of its Subsidiaries to, or result in,
Environmental Claims that could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect or (B) affect the ability of Borrower or any of its
Subsidiaries to maintain in full force and effect all material Governmental Authorizations
required under any Environmental Laws for their respective operations and (2) any proposed
action to be taken by Borrower or any of its Subsidiaries to modify current operations in a
manner that could reasonably be expected to subject Borrower or any of its Subsidiaries to
any additional material obligations or requirements under any Environmental Laws; and




     (v) with reasonable promptness, such other documents and information as from time to
time may be reasonably requested by Administrative Agent in relation to any matters
disclosed pursuant to this Section 5.9(a).



          (b) Hazardous Materials Activities, Etc. Each Credit Party shall promptly take and
shall cause each of its Subsidiaries promptly to take, the actions necessary to (i) cure any
violation of applicable Environmental Laws by such Credit Party or its Subsidiaries that could
reasonably be expected to have, individually or in the aggregate, a Material Adverse



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Effect and (ii) make an appropriate response to any Environmental Claim against such Credit
Party or any of its Subsidiaries and discharge any obligations it may have to any Person thereunder
where failure to do so could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.




     5.10 Subsidiaries.



          (a) In the event that any Person becomes a wholly-owned Domestic Subsidiary (other than an HMO
Subsidiary) of Borrower, Borrower shall (i) promptly cause such Domestic Subsidiary to become a
Guarantor hereunder and a Grantor under the Pledge and Security Agreement by executing and
delivering to Administrative Agent and Collateral Agent a Counterpart Agreement and (ii) take all
such actions and execute and deliver, or cause to be executed and delivered, all such documents,
instruments, agreements and certificates as are similar to those described in Sections 3.1(b),
3.1(i), and 3.1(m).



          (b) In the event that any Person becomes an HMO Subsidiary and the Equity Interests of such
HMO Subsidiary are owned by Borrower or by any Domestic Subsidiary thereof (other than an HMO
Subsidiary), Borrower shall, or shall cause such Domestic Subsidiary to, deliver all such
documents, instruments, agreements and certificates as are similar to those described in Section
3.1(b) and Borrower shall take, or shall cause such Domestic Subsidiary to take, all of the actions
referred to in Section 3.1(i) necessary to grant and to perfect a First Priority Lien in favor of
Collateral Agent, for the benefit of Secured Parties, under the Pledge and Security Agreement in
100% of such Equity Interests.



          (c) In the event that any Person becomes a Foreign Subsidiary of Borrower and the Equity
Interests of such Foreign Subsidiary are owned by Borrower or by any Domestic Subsidiary thereof
(other than an HMO Subsidiary), Borrower shall, or shall cause such Domestic Subsidiary to,
deliver, all such documents, instruments, agreements and certificates as are similar to those
described in Section 3.1(b) and Borrower shall take, or shall cause such Domestic Subsidiary to
take, all of the actions referred to in Section 3.1(i) necessary to grant and to perfect a First
Priority Lien in favor of Collateral Agent, for the benefit of Secured Parties, under the Pledge
and Security Agreement in 65% of such Equity Interests.



          (d) With respect to each Subsidiary described in clauses (a)—(c) above, Borrower shall
promptly send to Administrative Agent written notice setting forth with respect to such Person (i)
the date on which such Person became a Subsidiary of Borrower and (ii) all of the data required to
be set forth in Schedules 4.1 and 4.2 with respect to the Subsidiaries of Borrower; and such
written notice shall be deemed to supplement Schedule 4.1 and 4.2 for all purposes hereof.


Notwithstanding the foregoing, Collateral Agent shall not take a security interest in those assets
as to which Administrative Agent shall determine, in its discretion, that the cost of obtaining
such Lien is excessive in relation to the benefit to the Lenders of the security afforded thereby.




     5.11 Additional Material Real Estate Assets.



          (a) In the event that any Credit Party acquires a Material Real Estate Asset or a Real Estate
Asset owned or leased on the Closing Date becomes a Material Real



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Estate Asset and such interest has not otherwise been made subject to the Lien of the
Collateral Documents in favor of Collateral Agent, for the benefit of Secured Parties, then such
Credit Party shall promptly take all such actions and execute and deliver, or cause to be executed
and delivered, all such mortgages, documents, instruments, agreements, opinions and certificates
specified in clause (b) below with respect to each such Material Real Estate Asset that Collateral
Agent shall reasonably request to create in favor of Collateral Agent, for the benefit of Secured
Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First
Priority security interest in such Material Real Estate Asset. In addition to the foregoing,
Borrower shall, at the request of Collateral Agent, deliver, from time to time, to Collateral Agent
such appraisals as are required by law or regulation of Real Estate Assets with respect to which
Collateral Agent has been granted a Lien.




          (b) In order to create in favor of Collateral Agent, for the benefit of Secured Parties, a
valid and, subject to any filing and/or recording referred to herein or permitted hereby, perfected
First Priority security interest in certain Material Real Estate Assets as provided in clause (a)
above, Collateral Agent shall have received from Borrower or the applicable Guarantor:




     (i) a fully executed and notarized Mortgage, in proper form for recording in all
appropriate places in all applicable jurisdictions, encumbering each owned Material Real
Estate Asset;




     (ii) an opinion of counsel (which counsel shall be reasonably satisfactory to
Collateral Agent) in the state in which such owned Material Real Estate Asset is located
with respect to the enforceability of the form(s) of Mortgage to be recorded in such state
and such other matters as Collateral Agent may reasonably request, in each case in form and
substance reasonably satisfactory to Collateral Agent;




     (iii) in the case of each Leasehold Property that is a Material Real Estate Asset, (1)
a collateral assignment of the lease, in form and substance reasonably satisfactory to
Collateral Agent, (2) a Landlord Consent and Estoppel and (3) evidence that such Leasehold
Property is a Recorded Leasehold Interest;




     (iv) (a) an ALTA mortgagee title insurance policy or unconditional commitment therefor
issued by one or more title companies reasonably satisfactory to Collateral Agent with
respect to each Material Real Estate Asset (each, a “Title Policy”), in an amount not less
than the fair market value of each Material Real Estate Asset, together with a title report
issued by a title company with respect thereto and copies of all recorded documents listed
as exceptions to title or otherwise referred to therein, each in form and substance
reasonably satisfactory to Collateral Agent and (B) evidence satisfactory to Collateral
Agent that such Credit Party has paid to the title company or to the appropriate
governmental authorities all expenses and premiums of the title company and all other sums
required in connection with the issuance of such Title Policy and all recording and stamp
taxes (including mortgage recording and intangible taxes) payable in connection with
recording the Mortgages for such Material Real Estate Asset in the appropriate real estate
records;



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     (v) a flood certification with respect to such Material Real Estate Asset and evidence
of flood insurance with respect to each Flood Hazard Property that is located in a community
that participates in the National Flood Insurance Program, in each case in compliance with
any applicable regulations of the Board of Governors, in form and substance reasonably
satisfactory to Collateral Agent;




     (vi) an ALTA survey of each Material Real Estate Asset that is not a Leasehold
Property, certified to Collateral Agent and dated not more than thirty days prior to the
Closing Date; and




     (vii) reports and other information regarding environmental matters related to such
Material Real Estate Asset as may be reasonably requested by Administrative Agent.



     Notwithstanding the foregoing clauses (a) and (b), the Collateral Agent shall not take a
security interest in or require any title insurance or similar items with respect to those assets
as to which the Administrative Agent shall determine, in its discretion, that the cost of obtaining
such Lien (including any mortgage, stamp, intangibles or other tax, title insurance or similar
items) is excessive in relation to the benefit to the Lenders of the security afforded thereby.



     5.12 Interest Rate Protection. No later than ninety (90) days following the Closing Date and at all
times thereafter until the third anniversary of the Closing Date, Borrower shall obtain and cause
to be maintained protection against fluctuations in interest rates pursuant to one or more Interest
Rate Agreements in form and substance reasonably satisfactory to Administrative Agent, in order to
ensure that no less than 50% of the aggregate principal amount of the total Term Loans net of
interest bearing cash and Cash Equivalents of Borrower and its Subsidiaries then outstanding is
either (i) subject to such Interest Rate Agreements or (ii) Indebtedness that bears interest at a
fixed rate.



     5.13 Further Assurances. At any time or from time to time upon the request of Administrative Agent,
each Credit Party will, at its expense, promptly execute, acknowledge and deliver such further
documents and do such other acts and things as Administrative Agent or Collateral Agent may
reasonably request in order to effect fully the purposes of the Credit Documents. In furtherance
and not in limitation of the foregoing, each Credit Party shall take such actions as Administrative
Agent or Collateral Agent may reasonably request from time to time to ensure that the Obligations
are guarantied by the Guarantors and are secured by the assets of Borrower and the Guarantors and
all of the outstanding Equity Interests of Borrower and its Subsidiaries (subject to limitations
contained in the Credit Documents with respect to Foreign Subsidiaries) as contemplated hereby and
by the other Credit Documents.



     5.14 Maintenance of Ratings. Unless otherwise consented to by Administrative Agent or Requisite
Lenders, at all times, Borrower shall use commercially reasonable efforts to maintain corporate
family and facility ratings issued by Moody’s and S&P with respect to its senior secured debt with
respect to this Agreement.



     5.15
Post-Closing Actions. Notwithstanding anything to the contrary contained in this Agreement or the
other Credit Documents, the parties hereto acknowledge and agree that



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Borrower and its Subsidiaries shall be required to take the actions specified in Schedule 5.15 as
promptly as practicable, and in any event within the time periods set forth in Schedule 5.15 or
such other time periods as Administrative Agent may agree in its discretion. The provisions of
Schedule 5.15 shall be deemed incorporated by reference herein as fully as if set forth herein in
their entirety. All provisions of this Agreement and the other Credit Documents (including,
without limitation, all conditions precedent, representations, warranties, certificates, borrowing
notices, covenants, events of default and other agreements herein and therein) shall be deemed
modified to the extent necessary to effect the foregoing (and to permit the taking of the actions
described above within the time periods required above, rather than as otherwise provided in the
Credit Documents); provided that (a) to the extent any representation and warranty would
not be true because the foregoing actions were not taken on the Closing Date, the respective
representation and warranty shall be required to be true and correct in all material respects at
the time the respective action is taken (or was required to be taken) in accordance with the
foregoing provisions of this Section 5.15 and (b) all representations and warranties relating to
the Collateral Documents shall be required to be true immediately after the actions required to be
taken by this Section 5.15 have been taken (or were required to be taken). The parties hereto
acknowledge and agree that the failure to take any of the actions required above within the
relevant time periods required above shall give rise to an immediate Event of Default pursuant to
this Agreement.




SECTION 6. NEGATIVE COVENANTS




     Each Credit Party covenants and agrees that, so long as any Commitment is in effect and until
payment in full of all Obligations and cancellation or expiration of all Letters of Credit, such
Credit Party shall perform and shall cause each of its Subsidiaries to perform, all covenants in
this Section 6.



     6.1 Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or
indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly
liable with respect to any Indebtedness, except:



          (a) the Obligations;



          (b) Indebtedness of any Guarantor to Borrower or to any other Guarantor, or of Borrower to any
Guarantor; provided, (i) all such Indebtedness shall be evidenced by the Intercompany Note,
which shall be subject to a First Priority Lien pursuant to the Pledge and Security Agreement, (ii)
all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in
full of the Obligations pursuant to the terms of the Intercompany Note and (iii) any payment by any
such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the
amount of any Indebtedness owed by such Subsidiary to Borrower or to any of its Subsidiaries for
whose benefit such payment is made;



          (c) Subordinated Indebtedness of Borrower (and guarantee obligations of any Guarantor in
respect of such Subordinated Indebtedness so long as such guarantee obligations are subordinated to
the same extent as the obligations of Borrower in respect of such



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Subordinated Indebtedness) and Designated Indebtedness of Borrower not to exceed $300,000,000
in the aggregate at any time outstanding; provided that (i) both immediately prior and
after giving effect to the incurrence thereof, no Default or Event of Default shall exist or result
therefrom and (ii) the Cash proceeds from the incurrence of such Subordinated Indebtedness or
Designated Indebtedness shall be offered to prepay the Loans as required by Section 2.14(d);




          (d) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements
providing for indemnification, adjustment of purchase price or similar obligations (including
Indebtedness consisting of the deferred purchase price of property acquired in a Permitted
Acquisition), or from guaranties or letters of credit, surety bonds or performance bonds securing
the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with
Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower
or any of its Subsidiaries;



          (e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety,
statutory, appeal or similar obligations incurred in the ordinary course of business;



          (f) Indebtedness in respect of netting services, overdraft protections and otherwise in
connection with deposit accounts; provided, such Indebtedness shall be extinguished within
ten days after the incurrence thereof;



          (g) guaranties in the ordinary course of business of the obligations of suppliers, customers,
franchisees and licensees of Borrower and its Subsidiaries;



          (h) guaranties by Borrower of Indebtedness of a Guarantor or guaranties by a Guarantor of
Indebtedness of Borrower or another Guarantor with respect, in each case, to Indebtedness otherwise
permitted to be incurred pursuant to this Section 6.1; provided, that if the Indebtedness
that is being guarantied is unsecured and/or subordinated to the Obligations, the guaranty shall
also be unsecured and/or subordinated to the Obligations;



          (i) Indebtedness described in Schedule 6.1, but not any extensions, renewals or replacements
of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements
evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii)
refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not
less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or
extended and the average life to maturity thereof is greater than or equal to that of the
Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the
immediately preceding clause (i) or (ii) above shall not (1) include Indebtedness of an obligor
that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (2)
exceed in a principal amount the Indebtedness being renewed, extended or refinanced or (3) be
incurred, created or assumed if any Default or Event of Default has occurred and is continuing or
would result therefrom;



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          (j) Subordinated Indebtedness of Borrower issued to sellers in connection with the financing
of any Permitted Acquisitions in an aggregate amount not to exceed $50,000,000 at any time
outstanding;



          (k) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an
aggregate amount not to exceed at any time $10,000,000; provided, any such Indebtedness
shall be secured only by the asset(s) acquired in connection with the incurrence of such
Indebtedness;



          (l) (i) Indebtedness of a Person or Indebtedness attaching to assets of a Person that, in
either case, becomes a Subsidiary or Indebtedness attaching to assets that are acquired by Borrower
or any of its Subsidiaries, in each case after the Closing Date as the result of a Permitted
Acquisition, in an aggregate amount not to exceed $35,000,000 at any one time outstanding,
provided that (1) such Indebtedness existed at the time such Person became a Subsidiary or
at the time such assets were acquired and, in each case, was not created in anticipation thereof
and (2) such Indebtedness is not guaranteed in any respect by Borrower or any Subsidiary (other
than by any such person that so becomes a Subsidiary) and (ii) any refinancing, refunding, renewal
or extension of any Indebtedness specified in subclause (i) above, provided, that (x) the
principal amount of any such Indebtedness is not increased above the principal amount thereof
outstanding immediately prior to such refinancing, refunding, renewal or extension, (y) the direct
and contingent obligors with respect to such Indebtedness are not changed and (z) such Indebtedness
shall not be secured by any assets other than the assets securing the Indebtedness being renewed,
extended or refinanced;



          (m) Indebtedness of any HMO Subsidiary to (i) any other wholly-owned HMO Subsidiary or (ii)
Borrower or any Guarantor to extent permitted as an Investment pursuant to clauses (i), (l) and (q)
of Section 6.6;



          (n) Indebtedness incurred in the ordinary course of business and owed to any Person providing
property, casualty or liability insurance to Borrower or its Subsidiaries, so long as such
Indebtedness shall not be in excess of the amount of the unpaid cost of and shall be incurred only
to defer the cost of such insurance for a period of twelve months after the date on which such
Indebtedness is incurred and such Indebtedness shall only be outstanding during such twelve-month
period;



          (o) subordinated (on terms reasonably satisfactory to the Administrative Agent) Indebtedness
of Borrower or any Guarantor consisting of promissory notes issued to current or former directors,
consultants, managers, officers and employees or their spouses or estates to purchase or redeem an
Equity Interest of Borrower issued to such person not to exceed $5,000,000 in aggregate principal
amount per fiscal year and $10,000,000 in aggregate principal amount prior to the Term Loan
Maturity Date; provided that such amount shall be reduced dollar-for-dollar by payments
made pursuant to Section 6.4(c) (other than payments made with proceeds from issuances of Qualified
Equity Interests attributed thereto);



          (p) Indebtedness of Borrower or any Guarantor under Hedge Agreements; provided that if
such Hedge Agreements relate to interest rates, (i) such Hedge Agreements relate to payment
obligations on Indebtedness otherwise permitted to be incurred by



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the Loan Documents and (ii) the notional principal amount of such Hedge Agreements at the time
incurred does not exceed the principal amount of the Indebtedness to which such Hedge Agreements
relate; and




          (q) other unsecured Indebtedness of Borrower and its Subsidiaries in an aggregate amount not
to exceed at any time $50,000,000.



     6.2 Liens. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or
indirectly, create, incur, assume or permit to exist any Lien on or with respect to any property or
asset of any kind (including any document or instrument in respect of goods or accounts receivable)
of Borrower or any of its Subsidiaries, whether now owned or hereafter acquired or licensed, or any
income, profits or royalties therefrom, or file or permit the filing of, or permit to remain in
effect, any financing statement or other similar notice of any Lien with respect to any such
property, asset, income, profits or royalties under the UCC of any State or under any similar
recording or notice statute or under the intellectual property laws, rules or procedures, except:



          (a) Liens in favor of Collateral Agent for the benefit of Secured Parties granted pursuant to
any Credit Document;



          (b) Liens for Taxes, assessments and governmental charges not yet due and payable or
delinquent and Liens for Taxes, assessments and governmental charges if the corresponding liability
is being contested in good faith by appropriate proceedings promptly instituted and diligently
conducted;



          (c) statutory Liens of landlords, banks (and rights of set-off), carriers, warehousemen,
mechanics, repairmen, workmen and materialmen and other Liens imposed by law (other than any such
Lien imposed pursuant to Section 401(a)(29) or 412(n) of the Internal Revenue Code or by ERISA), in
each case incurred in the ordinary course of business (i) for amounts not yet overdue or (ii) for
amounts that are overdue and that (in the case of any such amounts overdue for a period in excess
of five days) are being contested in good faith by appropriate proceedings, so long as such
reserves or other appropriate provisions, if any, as shall be required by GAAP shall have been made
for any such contested amounts;



          (d) Liens incurred in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government
contracts, trade contracts, performance and return of money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money or other Indebtedness), so long as no
foreclosure, sale or similar proceedings have been commenced with respect to any portion of the
Collateral on account thereof;



          (e) easements, rights of way, restrictions, encroachments and other minor defects or
irregularities in title, in each case which do not and will not interfere in any material respect
with the ordinary conduct of the business of Borrower and its Subsidiaries;



          (f) any interest or title of a lessor or sublessor under any lease of real estate permitted
hereunder;



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          (g) Liens solely on any cash earnest money deposits made by Borrower or any of its
Subsidiaries in connection with any letter of intent or purchase agreement permitted hereunder;



          (h) purported Liens evidenced by the filing of precautionary UCC financing statements relating
solely to operating leases of personal property entered into in the ordinary course of business;



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



          (j) any zoning or similar law or regulation or right reserved to or vested in any governmental
office or agency to control or regulate the use of any real property;



          (k) non-exclusive outbound licenses of patents, copyrights, trademarks and other intellectual
property rights granted by Borrower or any of its Subsidiaries in the ordinary course of business
and not interfering in any respect with the ordinary conduct of or materially detracting from the
value of the business of Borrower and its Subsidiaries;



          (l) Liens described in Schedule 6.2 and any Lien granted as a replacement or substitute
therefor; provided that any such replacement or substitute Lien (i) does not secure an
aggregate amount of Indebtedness, if any, greater than that secured on the Closing Date and (ii)
does not encumber any property other than the property subject thereto on the Closing Date;



          (m) Liens securing Indebtedness permitted pursuant to Section 6.1(k); provided, any
such Lien shall encumber only the assets acquired with the proceeds of such Indebtedness;



          (n) Liens securing Indebtedness permitted pursuant to Section 6.1(n); provided any
such Lien shall encumber only the rights and interests under the insurance policy that secures such
Indebtedness;



          (o) Liens of sellers of goods to Borrower or any of its Subsidiaries arising under Article 2
of the UCC in effect in the relevant jurisdiction in the ordinary course of business, covering only
the goods sold and covering only the unpaid purchase price not yet due and payable for such goods
and related expenses;



          (p) Liens arising out of judgments, attachments or awards not resulting in an Event of Default
and in respect of which Borrower or its Subsidiaries shall in good faith be prosecuting an appeal
or proceedings for review and in respect of which there shall have been obtained a subsisting stay
of execution pending such appeal or proceedings and, in the case of any such Lien that has or may
become a Lien against any of the Collateral, such Lien and the contest thereof shall satisfy the
Contested Collateral Lien Conditions;



          (q) Leases or licenses of the assets or properties of Borrower or any of its Subsidiaries, in
each case entered into in the ordinary course of Borrower’s or such



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Subsidiary’s business and not interfering in any material respect with the ordinary conduct of
or materially detracting from the value of the business of Borrower and its Subsidiaries;




          (r) Liens on property of a Person existing at the time such Person is acquired or merged with
or into or consolidated with Borrower or any of its Subsidiaries to the extent permitted hereunder
(and not created in anticipation or contemplation thereof); provided that such Liens do not
extend to property not subject to such Liens at the time of acquisition (other than improvements
thereon);



          (s) Liens deemed to exist in connection with Investments permitted under Section 6.6 which are
the subject of repurchase obligations incurred in the ordinary course of business;



          (t) Liens of a collecting bank arising in the ordinary course of business under Section 4-210
of the UCC in effect in the relevant jurisdiction covering only the items being collected upon; and



          (u) other Liens on assets other than the Collateral securing Indebtedness in an aggregate
amount not to exceed $15,000,000 at any time outstanding.



     6.3 No Further Negative Pledges. Except with respect to (a) specific property encumbered to secure
payment of particular Indebtedness or to be sold pursuant to an executed agreement with respect to
a permitted Asset Sale, (b) restrictions by reason of customary provisions restricting assignments,
subletting or other transfers contained in leases, licenses and similar agreements entered into in
the ordinary course of business (provided that such restrictions are limited to the
property or assets secured by such Liens or the property or assets subject to such leases, licenses
or similar agreements, as the case may be) and (c) restrictions identified on Schedule 6.3 no
Credit Party nor any of its Subsidiaries shall enter into any agreement prohibiting the creation or
assumption of any Lien upon any of its properties or assets, whether now owned or hereafter
acquired, to secure the Obligations.



     6.4 Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries or
Affiliates through any manner or means or through any other Person to, directly or indirectly,
declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum
for any Restricted Junior Payment except that:



          (a) Borrower may make regularly scheduled payments of interest in respect of any Subordinated
Indebtedness in accordance with the terms of and only to the extent required by and subject to the
subordination provisions contained in, the Subordinated Indebtedness Indenture under which such
Subordinated Indebtedness was issued;



          (b) Borrower may make regularly scheduled payments of interest and any payments of principal
due and owing as a result of a “change of control”, “fundamental change” or similar event, in each
case, in respect of any Designated Indebtedness in accordance with the terms of and only to the
extent required by the indenture or other agreement pursuant to which such Designated Indebtedness
was issued;



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          (c) Borrower may make payments to repurchase or redeem Qualified Equity Interests of Borrower
held by officers, directors or employees or former officers, directors or employees (or their
transferees, estates or beneficiaries under their estates) of any Credit Party, upon their death,
disability, retirement, severance or termination of employment or service; provided that
the aggregate cash consideration paid for all such redemptions and payments shall not exceed, in
any fiscal year, $5,000,000 plus any cash proceeds from sales or issuances of Qualified
Equity Interests of Borrower at substantially the same time as such repurchase or redemption and,
shall not exceed in the aggregate since the Closing Date, $10,000,000 plus any cash
proceeds from sales or issuances of Qualified Equity Interests at substantially the same time as
such repurchase or redemption, plus, in each case the proceeds of any “key-man” life
insurance policies; provided further that such amount shall be reduced dollar-for-dollar by
payments made in respect of Indebtedness incurred pursuant to Section 6.1(o);



          (d) Borrower may make payments to repurchase or otherwise acquire common Equity Interests of
Borrower in an aggregate amount not to exceed $50,000,000 on or after the Closing Date;
provided that (i) Borrower may not use the proceeds of any Loan to effect such repurchase
or other acquisition, (ii) no Default or Event of Default then exists or would result therefrom,
(iii) Borrower’s Liquidity (after giving effect to the consummation of such repurchase or other
acquisition) shall be not less than $50,000,000 and (iv) with respect to any individual or series
of related repurchases and acquisitions involving payments in excess of $10,000,000, a certificate
of a Responsible Officer is delivered to Administrative Agent at least three Business Days prior to
such repurchase or other acquisition certifying compliance with this Section 6.4(d);



          (e) so long as no Default or Event of Default shall have occurred and be continuing or would
result therefrom, Borrower may make payments to satisfy earn-out obligations incurred in the
ordinary course of business in an aggregate amount not to exceed $5,000,000 in any Fiscal Year of
Borrower;



          (f) Borrower may make cash payments in lieu of the issuance of fractional shares in connection
with the exercise of warrants, options or other securities convertible into or exchangeable for the
Equity Interests of Borrower;



          (g) Borrower may repurchase Equity Interests of Borrower deemed to occur upon the exercise of
stock options if such Equity Interests represent a portion of the exercise price of such options;



          (h) so long as no Default or Event of Default shall have occurred and be continuing or would
occur as a result thereof, Borrower may make cash dividend payments to its shareholders in an
aggregate amount not to exceed the excess of the aggregate Net Cash Proceeds from sales or
issuances of Qualified Capital Stock made in connection with such dividend over the amount of such
Net Cash Proceeds required to be applied as a mandatory prepayment in accordance with Section
2.14(c);



          (i) Borrower may make distributions in the form of Qualified Equity Interests with respect to
any Convertible Indebtedness of Borrower in accordance with the terms thereof;



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          (j) Borrower may make distributions in the form of cash settlements with respect to any
Related Convertible Debt Derivative Transaction in accordance with the terms thereof, and only to
the extent required thereby, so long as the Borrower has received a cash payment in connection with
such cash settlement of not less than the amount of such distribution within 90 days prior to the
making of such distribution; and



          (k) Borrower may make distributions in the form of cash settlements with respect to the early
conversion of any Convertible Indebtedness of Borrower in an amount:




     (i) not to exceed $15,000,000 in the aggregate at any time after the Closing Date; and




     (ii) in excess of $15,000,000 in the aggregate at any time after the Closing Date
provided that (1) the Leverage Ratio on a pro forma basis after giving effect to
each distribution as of the last day of the Fiscal Quarter most recently ended for which
financial statements have been delivered pursuant to Section 5.1 shall be no greater than
1.50:1.00, (2) Borrower’s Liquidity (after giving effect to the consummation of such
distribution) shall equal or exceed $50,000,000; and (3) with respect to any individual or
series of related distributions involving cash settlements in excess of $10,000,000, a
certificate of a Responsible Officer is delivered to Administrative Agent at least three
Business Days prior to such distribution certifying compliance with this Section 6.4(k)(ii);


provided further that in the case of clauses (i) and (ii) of this Section 6.4(k),
(x) no Default or Event of Default shall have occurred and be continuing at the time of each such
distribution or exist immediately after giving effect thereto and (y) Borrower and its Subsidiaries
shall be in compliance with the financial covenants set forth in Section 6.7 on a pro forma basis
after giving effect to such distribution as of the last day of the Fiscal Quarter most recently
ended for which financial statements have been delivered pursuant to Section 5.1.




     6.5 Restrictions on Subsidiary Distributions. Except as provided herein and in the other Loan
Documents, no Credit Party shall, nor shall it permit any of its Subsidiaries to, create or
otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of
any kind on the ability of any Subsidiary of Borrower to (a) pay dividends or make any other
distributions on any of such Subsidiary’s Equity Interests owned by Borrower or any other
Subsidiary of Borrower, (b) repay or prepay any Indebtedness owed by such Subsidiary to Borrower or
any other Subsidiary of Borrower, (c) make loans or advances to Borrower or any other Subsidiary of
Borrower, or (d) transfer, lease or license any of its property or assets to Borrower or any other
Subsidiary of Borrower other than (i) restrictions in agreements evidencing Indebtedness permitted
by Section 6.1(k) that impose restrictions on the property so acquired, (ii) restrictions by reason
of customary provisions restricting assignments, subletting or other transfers contained in leases,
licenses, Joint Venture agreements and similar agreements entered into in the ordinary course of
business, (iii) restrictions that are or were created by virtue of any transfer of, agreement to
transfer or option or right with respect to any property, assets or Equity Interests not otherwise
prohibited under this Agreement, (iv) restrictions described on Schedule 6.5, (v) restrictions
pursuant to applicable Requirements of Law; (vi) restrictions on deposits imposed by suppliers or
landlords under contracts entered into in the ordinary course of business; (vii) any instrument or
agreement assumed in connection with any Permitted



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Acquisition, which encumbrance or restriction is not applicable to any Person, or the properties or
assets of any Person, other than the person or the properties or assets of the Person so acquired,
so long as such agreement or instrument was not entered into in connection with or in contemplation
of such Permitted Acquisition or (viii) any encumbrances or restrictions imposed by any amendments
or refinancings that are otherwise permitted by the Loan Documents of the contracts, instruments or
obligations referred to in clause (vii) above; provided that such amendments or
refinancings are not materially more restrictive with respect to such encumbrances and restrictions
than those prior to such amendment or refinancing.




     6.6 Investments. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or
indirectly, make or own any Investment in any Person, including any Joint Venture, except:



          (a) Investments in Cash and Cash Equivalents;



          (b) equity Investments owned as of the Closing Date in any Subsidiary and Investments made
after the Closing Date in Borrower and any Guarantor;



          (c) Investments (i) in any Securities received in satisfaction or partial satisfaction thereof
from financially troubled account debtors, (ii) deposits, prepayments and other credits to
suppliers and others made in the ordinary course of business consistent with the past practices of
Borrower and its Subsidiaries and (iii) represented by the endorsement of negotiable instruments
held for collection in the ordinary course of business;



          (d) intercompany loans and advances to the extent permitted under Section 6.1(b);



          (e) Consolidated Capital Expenditures with respect to Borrower and the Guarantors permitted by
Section 6.7(c);



          (f) loans and advances to directors, officers and employees of Borrower and its Subsidiaries
made in the ordinary course of business in an aggregate principal amount not to exceed $5,000,000
at any time outstanding;



          (g) Permitted Acquisitions permitted pursuant to Section 6.8;



          (h) Investments described in Schedule 6.6;



          (i) Investments in an aggregate amount not to exceed $10,000,000 at any time outstanding in
HealthSpring Life and Health Insurance Company, Inc., a Texas Insurance Company, at all times while
such Person remains a Subsidiary of Borrower;



          (j) (i) Required Advances, (ii) RS Advances and (iii) other advances to Contract Providers in
an aggregate amount not to exceed $2,500,000 at any time outstanding;



          (k) to the extent constituting an Investment, any Related Convertible Debt Derivative
Transaction entered into by Borrower;



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          (l) intercompany Investments by Borrower or any Guarantor in any Person, that, prior to such
Investment, is an HMO Subsidiary (including, without limitation, guarantees with respect to
obligations of any such HMO Subsidiary, loans made to any such HMO Subsidiary and Investments
resulting from mergers with or sales of assets to any such HMO Subsidiary) in an aggregate amount
not to exceed (i) the amount outstanding on the Closing Date, plus (ii) $10,000,000,
plus (iii) the amount dividended, distributed or otherwise paid to any Credit Party by an
HMO Subsidiary that are reinvested in a different HMO Subsidiary within 180 days of such dividend,
distribution or other payment, plus (iv) other amounts as required by applicable
Requirements of Law (including minimum capital requirements); provided that Investments
pursuant to clauses (ii), (iii) and (iv) above may not be made if at such time a Default or an
Event of Default has occurred and is continuing under Section 8.1(a), (f) or (g);



          (m) Hedge Agreements entered into by Borrower or its Subsidiaries and permitted pursuant to
Section 6.1(q);



          (n) Investments made by Borrower or any Guarantor as a result of consideration received in
connection with an Asset Sale made in compliance with Section 6.8;



          (o) guarantees and other contingent obligations permitted under Section 6.1;



          (p) accounts receivable owing to any of them if created or acquired in the ordinary course of
business and payable or dischargeable in accordance with customary terms; and



          (q) other Investments in Subsidiaries of Borrower other than Guarantors in an aggregate amount
not to exceed $10,000,000 at any time outstanding.



     Notwithstanding the foregoing, in no event shall any Credit Party make any Investment which
results in or facilitates in any manner any Restricted Junior Payment not otherwise permitted under
the terms of Section 6.4.



     6.7 Financial Covenants.



          (a) Statutory Net Worth Ratio. As of the end of each Fiscal Quarter:




     (i) For each HMO Subsidiary operating in a state that requires risk-based capital
reporting (each such HMO Subsidiary being a “RBC HMO”), each such RBC HMO shall maintain a
Statutory Net Worth equal to or greater than 10% above the upper limit of the Regulatory
Action Level in such state; and




     (ii) For HMO Subsidiaries operating in states that do not require risk-based capital
reporting, each such HMO Subsidiary shall maintain a ratio of Statutory Net Worth to the
applicable state’s Statutory Net Worth requirement at a level equal to or greater than
1.10:1.00, provided that in no event will the amount required



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pursuant to this clause (ii) be greater than the amount which would be required if
clause (i)(A) above were applicable to such HMO Subsidiary;


provided in each case that, so long as each HMO Subsidiary maintains at least the
applicable minimum Statutory Net Worth threshold of the state in which it operates, (1)
unrestricted Cash and Cash Equivalents of Borrower and (2) any unused availability under the
Revolving Commitments may be included in the computation of Statutory Net Worth if necessary to
comply with the applicable Statutory Net Worth ratio. Compliance with the applicable Statutory Net
Worth Ratio will be determined at the end of each Fiscal Quarter (using as the denominator in each
case, for the first three Fiscal Quarters of each year, the prescribed level as of the end of the
preceding Fiscal Year and for the last Fiscal Quarter of each Fiscal Year, the prescribed level as
of the end of such Fiscal Year).




          (b) Leverage Ratio. Borrower shall not permit the Leverage Ratio as of the last day
of any Fiscal Quarter, beginning with the Fiscal Quarter ending March 31, 2008, to exceed the
correlative ratio indicated:



	 	 	 
	Fiscal	 	 
	Quarter Ending	 	Leverage Ratio
	March 31, 2008

	 	1.75:1.00
	June 30, 2008

	 	1.75:1.00
	September 30, 2008

	 	1.50:1.00
	December 31, 2008

	 	1.50:1.00
	March 31, 2009

	 	1.50:1.00
	June 30, 2009

	 	1.25:1.00
	September 30, 2009

	 	1.25:1.00
	December 31, 2009

	 	1.25:1.00
	Thereafter

	 	1.00:1.00






          (c) Maximum Consolidated Capital Expenditures. Borrower shall not and shall not
permit its Subsidiaries to, make or incur Consolidated Capital Expenditures in an aggregate amount
in excess of $20,000,000 in any Fiscal Year of Borrower; provided, such amount for any
Fiscal Year shall be increased by an amount equal to the excess, if any, (but in no event more than
$10,000,000) of such amount over the actual amount of Consolidated Capital Expenditures for such
previous Fiscal Year.



          (d) Certain Calculations. With respect to any period during which a Permitted
Acquisition or an Asset Sale has occurred (each, a “Subject Transaction”), for purposes of
determining compliance with the financial covenants set forth in this Section 6.7 (but not, except
with respect to the Acquisition, for purposes of determining the Applicable Margin or Applicable
Revolving Commitment Fee Percentage), Consolidated Adjusted EBITDA shall be calculated with respect
to such period on a pro forma basis (including pro forma adjustments



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arising out of events which are directly attributable to a specific transaction, are factually
supportable and are expected to have a continuing impact, in each case determined on a basis (i)
consistent with Article 11 of Regulation S-X promulgated under the Securities Act and as
interpreted by the staff of the Securities and Exchange Commission or (ii) reflecting cost savings
directly attributable to such Subject Transaction and that are related to actions implemented or to
be implemented, that are of a type reasonably expected to be realized within one year of the date
of such Subject Transaction and that are supportable and quantifiable by the underlying accounting
records of such business or otherwise factually supportable and reasonably identifiable, in each
case, as certified by the chief financial officer of Borrower and otherwise reasonably satisfactory
to Administrative Agent) using the historical (audited, if available) financial statements of any
business so acquired or to be acquired or sold or to be sold and the consolidated financial
statements of Borrower and its Subsidiaries which shall be reformulated as if such Subject
Transaction and any Indebtedness incurred or repaid in connection therewith, had been consummated
or incurred or repaid at the beginning of such period (and assuming that such Indebtedness bears
interest during any portion of the applicable measurement period prior to the relevant acquisition
at the weighted average of the interest rates applicable to outstanding Loans incurred during such
period).




     6.8 Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it
permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or
liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell,
lease or license, exchange, transfer or otherwise dispose of, in one transaction or a series of
transactions, all or any part of its business, assets or property of any kind whatsoever, whether
real, personal or mixed and whether tangible or intangible, whether now owned or hereafter
acquired, leased or licensed, or acquire by purchase or otherwise (other than purchases or other
acquisitions of inventory, materials, equipment and other fixed or capital assets in the ordinary
course of business) the business, property or fixed assets of, or stock or other evidence of
beneficial ownership of, any Person or any division or line of business or other business unit of
any Person, except:



          (a) any Subsidiary of Borrower may be merged with or into Borrower or any Guarantor, or be
liquidated, wound up or dissolved, or all or any part of its business, property or assets may be
conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of
transactions, to Borrower or any Guarantor; provided, in the case of such a merger,
Borrower or such Guarantor (and in any event, if Borrower is party to such transaction, Borrower),
as applicable, shall be the continuing or surviving Person;



          (b) sales or other dispositions of assets that do not constitute Asset Sales;



          (c) Asset Sales, the proceeds of which (valued at the principal amount thereof in the case of
non-Cash proceeds consisting of notes or other debt Securities and valued at fair market value in
the case of other non-Cash proceeds) (i) are less than $1,000,000 with respect to any single Asset
Sale or series of related Asset Sales and (ii) when aggregated with the proceeds of all other Asset
Sales made within the same Fiscal Year, are less than $5,000,000; provided (1) the
consideration received for such assets shall be in an amount at least equal to the fair market
value thereof (determined in good faith by the board of directors of Borrower (or



102









 




similar governing body)), (2) no less than 75% thereof shall be paid in Cash and (3) the Net
Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);




          (d) disposals of obsolete, worn-out or surplus property;



          (e) (i) the Acquisition and (ii) Permitted Acquisitions, the Acquisition Consideration
(exclusive of any amount financed with the proceeds of the issuance of Qualified Equity Interests)
for which constitutes (1) less than $50,000,000 in the aggregate in any Fiscal Year and (2) less
than $150,000,000 in the aggregate from the Closing Date to the date of determination;



          (f) Investments made in accordance with Section 6.6;



          (g) leases or subleases of real or personal property in the ordinary course of business and
not interfering in any material respect with the ordinary conduct of or materially detracting from
the value of the business of Borrower and its Subsidiaries; and



          (h) sales of non-core assets acquired in a Permitted Acquisition; provided that such
sales shall be consummated within 270 days of the Permitted Acquisition provided
further (i) the consideration received for such assets shall be in an amount at least equal
to the fair market value thereof (determined in good faith by the board of directors of Borrower
(or similar governing body)), (ii) no less than 75% thereof shall be paid in Cash and (iii) the Net
Asset Sale Proceeds thereof shall be applied as and to the extent required by Section 2.14(a).



     6.9 Disposal of Subsidiary Interests. Except for any sale of all of its interests in the Equity
Interests of any of its Subsidiaries in compliance with the provisions of Section 6.8, no Credit
Party shall, nor shall it permit any of its Subsidiaries to, (a) directly or indirectly sell,
assign, pledge or otherwise encumber or dispose of any Equity Interests of any of its Subsidiaries,
except to qualify directors if required by applicable law; or (b) permit any of its Subsidiaries
directly or indirectly to sell, assign, pledge or otherwise encumber or dispose of any Equity
Interests of any of its Subsidiaries, except, in the case of clauses (a) and (b), to another Credit
Party (subject to the restrictions on such disposition otherwise imposed hereunder), or to qualify
directors if required by applicable law.



     6.10 Sales and Lease Backs. No Credit Party shall, nor shall it permit any of its Subsidiaries to,
directly or indirectly, become or remain liable as lessee or as a guarantor or other surety with
respect to any lease of any property (whether real, personal or mixed), whether now owned or
hereafter acquired, which such Credit Party (a) has sold or transferred or is to sell or to
transfer to any other Person (other than Borrower or any of its Subsidiaries), or (b) intends to
use for substantially the same purpose as any other property which has been or is to be sold or
transferred by such Credit Party to any Person (other than Borrower or any of its Subsidiaries) in
connection with such lease.



     6.11 Transactions with Shareholders and Affiliates. No Credit Party shall, nor shall it permit any
of its Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction
(including the purchase, sale, lease or exchange of any property or the rendering of any service)
with any Affiliate of Borrower on terms that are less favorable to Borrower or that Subsidiary, as
the case may be, than those that might be obtained at the time from a Person who



103









 




is not such a holder or Affiliate; provided, the foregoing restriction shall not apply
to (a) any transaction solely among Borrower and/or one or more Guarantors; (b) reasonable and
customary fees paid to members of the board of directors (or similar governing body) of Borrower
and its Subsidiaries; (c) compensation arrangements for officers and other employees of Borrower
and its Subsidiaries entered into in the ordinary course of business; (d) transactions described in
Schedule 6.11; (e) Restricted Junior Payments permitted by Section 6.4; (f) Indebtedness permitted
by clauses (b), (d), (h) and (m) of Section 6.1 and Investments permitted by clauses (d), (f), (g),
(l) and (q) of Section 6.4; (g) sales of Qualified Capital Stock of Borrower to Affiliates of
Borrower not otherwise prohibited by the Credit Documents and the granting of registration and
other customary rights in connection therewith; and (h) any transaction with an Affiliate where the
only consideration paid is Qualified Capital Stock of Borrower.




     6.12 Conduct of Business. From and after the Closing Date, no Credit Party shall, nor shall it permit
any of its Subsidiaries to, engage in any business other than (a) the businesses engaged in by such
Credit Party on the Closing Date and similar or related businesses and other businesses that, in
the good faith judgment of the Board of Directors of Borrower, support or enhance the aforesaid
businesses and (b) such other lines of business as may be consented to by Requisite Lenders.



     6.13 Amendments or Waivers of Organizational Documents and Certain Related Agreements. No Credit Party
shall nor shall it permit any of its Subsidiaries to, agree to any material amendment, restatement,
supplement or other modification to, or waiver of, any of its Organizational Documents or any of
its material rights under any Related Agreement after the Closing Date in a manner that is adverse
to the Lenders without in each case obtaining the prior written consent of Requisite Lenders to
such amendment, restatement, supplement or other modification or waiver.



     6.14 Amendments or Waivers of with respect to Certain Indebtedness. No Credit Party shall, nor shall it
permit any of its Subsidiaries to, amend or otherwise change the terms of any Designated
Indebtedness or Subordinated Indebtedness, or make any payment consistent with an amendment thereof
or change thereto, if the effect of such amendment or change is to increase the interest rate on
such Designated Indebtedness or Subordinated Indebtedness, change (to earlier dates) any dates upon
which payments of principal or interest are due thereon, change any event of default or condition
to an event of default with respect thereto (other than to eliminate any such event of default or
increase any grace period related thereto), change the redemption, prepayment or defeasance
provisions thereof, or change the subordination provisions of any Subordinated Indebtedness (or of
any guaranty thereof), if the effect of such amendment or change, together with all other
amendments or changes made, is to increase materially the obligations of the obligor thereunder or
to confer any additional rights on the holders of such Designated Indebtedness or Subordinated
Indebtedness (or a trustee or other representative on their behalf) which would be adverse to any
Credit Party or Lenders.



     6.15 Fiscal Year. No Credit Party shall, nor shall it permit any of its Subsidiaries to change its
Fiscal Year end from December 31.



     6.16 Anti-Terrorism Law; Anti-Money Laundering. No Credit Party shall, nor shall it permit any of its
Subsidiaries to, directly or indirectly, (a) knowingly conduct any



104









 




business or engage in making or receiving any contribution of funds, goods or services to or for
the benefit of any person described in Section 4.26, (b) knowingly deal in, or otherwise engage in
any transaction relating to, any property or interests in property blocked pursuant to the
Executive Order or any other Anti-Terrorism Law, or (c) knowingly engage in or conspire to engage
in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to
violate, any of the prohibitions set forth in any Anti-Terrorism Law (and the Credit Parties shall
deliver to the Lenders any certification or other evidence requested from time to time by any
Lender in its reasonable discretion, confirming the Credit Parties’ compliance with this Section
6.16).




     6.17 Embargoed Person. No Credit Party shall, nor shall it permit any of its Subsidiaries to, knowingly
cause or permit (a) any of the funds or properties of the Credit Parties that are used to repay the
Loans to constitute property of, or be beneficially owned directly or indirectly by, any person
subject to sanctions or trade restrictions under United States law
(“Embargoed Person” or “Embargoed Persons”) that is identified on (i) the “List of Specially Designated Nationals and
Blocked Persons” maintained by OFAC and/or on any other similar list maintained by OFAC pursuant to
any authorizing statute including, but not limited to, the International Emergency Economic Powers
Act, 50 U.S.C. §§ 1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any
Executive Order or Requirement of Law promulgated thereunder, with the result that the investment
in the Credit Parties (whether directly or indirectly) is prohibited by a Requirement of Law, or
the Loans made by the Lenders would be in violation of a Requirement of Law, or (ii) the Executive
Order, any related enabling legislation or any other similar Executive Orders or (b) any Embargoed
Person to have any direct or indirect interest, of any nature whatsoever in the Credit Parties,
with the result that the investment in the Credit Parties (whether directly or indirectly) is
prohibited by a Requirement of Law or the Loans are in violation of a Requirement of Law.



SECTION 7. GUARANTY




     7.1 Guaranty of the Obligations. Subject to the provisions of Section 7.2, Guarantors jointly and
severally hereby irrevocably and unconditionally guaranty to Administrative Agent for the ratable
benefit of the Beneficiaries the due and punctual payment in full of all Obligations when the same
shall become due, whether at stated maturity, by required prepayment, declaration, acceleration,
demand or otherwise (including amounts that would become due but for the operation of the automatic
stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. §
362(a)) (collectively, the “Guaranteed Obligations”).



     7.2
Contribution by Guarantors. All Guarantors desire to allocate among themselves (collectively, the “Contributing Guarantors”), in a fair and equitable manner, their obligations arising under this
Guaranty. Accordingly, in the event any payment or distribution is made on any date by a Guarantor
(a “Funding Guarantor”) under this Guaranty such that its Aggregate Payments exceeds its Fair Share
as of such date, such Funding Guarantor shall be entitled to a contribution from each of the other
Contributing Guarantors in an amount sufficient to cause each Contributing Guarantor’s Aggregate
Payments to equal its Fair Share as of such date. “Fair Share” means, with respect to a
Contributing Guarantor as of any date of determination, an amount equal to (a) the ratio of (i) the
Fair Share Contribution Amount with



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respect to such Contributing Guarantor to (ii) the aggregate of the Fair Share Contribution Amounts
with respect to all Contributing Guarantors multiplied by (b) the aggregate amount paid or
distributed on or before such date by all Funding Guarantors under this Guaranty in respect of the
obligations Guaranteed. “Fair Share Contribution Amount” means, with respect to a Contributing
Guarantor as of any date of determination, the maximum aggregate amount of the obligations of such
Contributing Guarantor under this Guaranty that would not render its obligations hereunder or
thereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of Title
11 of the United States Code or any comparable applicable provisions of state law;
provided, solely for purposes of calculating the “Fair Share Contribution Amount” with
respect to any Contributing Guarantor for purposes of this Section 7.2, any assets or liabilities
of such Contributing Guarantor arising by virtue of any rights to subrogation, reimbursement or
indemnification or any rights to or obligations of contribution hereunder shall not be considered
as assets or liabilities of such Contributing Guarantor. “Aggregate Payments” means, with respect
to a Contributing Guarantor as of any date of determination, an amount equal to (1) the aggregate
amount of all payments and distributions made on or before such date by such Contributing Guarantor
in respect of this Guaranty (including in respect of this Section 7.2), minus (2) the
aggregate amount of all payments received on or before such date by such Contributing Guarantor
from the other Contributing Guarantors as contributions under this Section 7.2. The amounts
payable as contributions hereunder shall be determined as of the date on which the related payment
or distribution is made by the applicable Funding Guarantor. The allocation among Contributing
Guarantors of their obligations as set forth in this Section 7.2 shall not be construed in any way
to limit the liability of any Contributing Guarantor hereunder. Each Guarantor is a third party
beneficiary to the contribution agreement set forth in this Section 7.2.




     7.3 Payment by Guarantors. Subject to Section 7.2, Guarantors hereby jointly and severally agree, in
furtherance of the foregoing and not in limitation of any other right which any Beneficiary may
have at law or in equity against any Guarantor by virtue hereof, that upon the failure of Borrower
to pay any of the Guaranteed Obligations when and as the same shall become due, whether at stated
maturity, by required prepayment, declaration, acceleration, demand or otherwise (including amounts
that would become due but for the operation of the automatic stay under Section 362(a) of the
Bankruptcy Code, 11 U.S.C. § 362(a)), Guarantors will upon demand pay, or cause to be paid, in
Cash, to Administrative Agent for the ratable benefit of Beneficiaries, an amount equal to the sum
of the unpaid principal amount of all Guaranteed Obligations then due as aforesaid, accrued and
unpaid interest on such Guaranteed Obligations (including interest which, but for Borrower’s
becoming the subject of a case under the Bankruptcy Code, would have accrued on such Guaranteed
Obligations, whether or not a claim is allowed against Borrower for such interest in the related
bankruptcy case) and all other Guaranteed Obligations then owed to Beneficiaries as aforesaid.



     7.4 Liability of Guarantors Absolute. Each Guarantor agrees that its obligations hereunder are
irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance
which constitutes a legal or equitable discharge of a guarantor or surety other than payment in
full of the Guaranteed Obligations. In furtherance of the foregoing and without limiting the
generality thereof, each Guarantor agrees as follows:



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          (a) this Guaranty is a guaranty of payment when due and not of collectability. This Guaranty
is a primary obligation of each Guarantor and not merely a contract of surety;



          (b) Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default
notwithstanding the existence of any dispute between Borrower and any Beneficiary with respect to
the existence of such Event of Default;



          (c) the obligations of each Guarantor hereunder are independent of the obligations of Borrower
and the obligations of any other guarantor (including any other Guarantor) of the obligations of
Borrower and a separate action or actions may be brought and prosecuted against such Guarantor
whether or not any action is brought against Borrower or any of such other guarantors and whether
or not Borrower is joined in any such action or actions;



          (d) payment by any Guarantor of a portion, but not all, of the Guaranteed Obligations shall in
no way limit, affect, modify or abridge any Guarantor’s liability for any portion of the Guaranteed
Obligations which has not been paid. Without limiting the generality of the foregoing, if
Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor’s covenant
to pay a portion of the Guaranteed Obligations, such judgment shall not be deemed to release such
Guarantor from its covenant to pay the portion of the Guaranteed Obligations that is not the
subject of such suit and such judgment shall not, except to the extent satisfied by such Guarantor,
limit, affect, modify or abridge any other Guarantor’s liability hereunder in respect of the
Guaranteed Obligations;



          (e) any Beneficiary, upon such terms as it deems appropriate, without notice or demand and
without affecting the validity or enforceability hereof or giving rise to any reduction,
limitation, impairment, discharge or termination of any Guarantor’s liability hereunder, from time
to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change
the time, place, manner or terms of payment of the Guaranteed Obligations; (ii) settle, compromise,
release or discharge, or accept or refuse any offer of performance with respect to, or
substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate
the payment of the same to the payment of any other obligations; (iii) request and accept other
guaranties of the Guaranteed Obligations and take and hold security for the payment hereof or the
Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind,
waive, alter, subordinate or modify, with or without consideration, any security for payment of the
Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any other obligation
of any Person (including any other Guarantor) with respect to the Guaranteed Obligations; (v)
enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in
respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, or
exercise any other right or remedy that such Beneficiary may have against any such security, in
each case as such Beneficiary in its discretion may determine consistent herewith or the applicable
Hedge Agreement and any applicable security agreement, including foreclosure on any such security
pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale
is commercially reasonable and even though such action operates to impair or extinguish any right
of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower or any
security for the Guaranteed Obligations;



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and (vi) exercise any other rights available to it under the Credit Documents or any Hedge
Agreements; and




          (f) this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable
and, to the extent permitted by applicable law, shall not be subject to any reduction, limitation,
impairment, discharge or termination for any reason (other than payment in full of the Guaranteed
Obligations), including the occurrence of any of the following, whether or not any Guarantor shall
have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or
agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by
operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right,
power or remedy (whether arising under the Credit Documents or any Hedge Agreements, at law, in
equity or otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto,
or with respect to any other guaranty of or security for the payment of the Guaranteed Obligations;
(ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of
the terms or provisions (including provisions relating to events of default) hereof, any of the
other Credit Documents, any of the Hedge Agreements or any agreement or instrument executed
pursuant thereto, or of any other guaranty or security for the Guaranteed Obligations, in each case
whether or not in accordance with the terms hereof or such Credit Document, such Hedge Agreement or
any agreement relating to such other guaranty or security; (iii) the Guaranteed Obligations, or any
agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any
respect; (iv) the application of payments received from any source (other than payments received
pursuant to the other Credit Documents or any of the Hedge Agreements or from the proceeds of any
security for the Guaranteed Obligations, except to the extent such security also serves as
collateral for indebtedness other than the Guaranteed Obligations) to the payment of indebtedness
other than the Guaranteed Obligations, even though any Beneficiary might have elected to apply such
payment to any part or all of the Guaranteed Obligations; (v) any Beneficiary’s consent to the
change, reorganization or termination of the corporate structure or existence of Borrower or any of
its Subsidiaries and to any corresponding restructuring of the Guaranteed Obligations; (vi) any
failure to perfect or continue perfection of a security interest in any collateral which secures
any of the Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower may
allege or assert against any Beneficiary in respect of the Guaranteed Obligations, including
failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations,
accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do
any other act or thing, which may or might in any manner or to any extent vary the risk of any
Guarantor as an obligor in respect of the Guaranteed Obligations.



     7.5 Waivers by Guarantors. To the extent permitted by applicable law, each Guarantor hereby waives,
for the benefit of Beneficiaries: (a) any right to require any Beneficiary, as a condition of
payment or performance by such Guarantor, to (i) proceed against Borrower, any other guarantor
(including any other Guarantor) of the Guaranteed Obligations or any other Person, (ii) proceed
against or exhaust any security held from Borrower, any such other guarantor or any other Person,
(iii) proceed against or have resort to any balance of any Deposit Account or credit on the books
of any Beneficiary in favor of Borrower or any other Person, or (iv) pursue any other remedy in the
power of any Beneficiary whatsoever; (b) any defense arising by reason of the incapacity, lack of
authority or any disability or other defense of Borrower or any other Guarantor including any
defense based on or arising out of the lack of



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validity or the unenforceability of the Guaranteed Obligations or any agreement or instrument
relating thereto or by reason of the cessation of the liability of Borrower or any other Guarantor
from any cause other than payment in full of the Guaranteed Obligations; (c) any defense based upon
any statute or rule of law which provides that the obligation of a surety must be neither larger in
amount nor in other respects more burdensome than that of the principal; (d) any defense based upon
any Beneficiary’s errors or omissions in the administration of the Guaranteed Obligations, except
behavior which amounts to gross negligence or willful misconduct; (e) (i) any principles or
provisions of law, statutory or otherwise, which are or might be in conflict with the terms hereof
and any legal or equitable discharge of such Guarantor’s obligations hereunder, (ii) the benefit of
any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement
hereof, (iii) any rights to set-offs, recoupments and counterclaims and (iv) promptness, diligence
and any requirement that any Beneficiary protect, secure, perfect or insure any security interest
or lien or any property subject thereto; (f) notices, demands, presentments, protests, notices of
protest, notices of dishonor and notices of any action or inaction, including acceptance hereof,
notices of default hereunder, the Hedge Agreements or any agreement or instrument related thereto,
notices of any renewal, extension or modification of the Guaranteed Obligations or any agreement
related thereto, notices of any extension of credit to Borrower and notices of any of the matters
referred to in Section 7.4 and any right to consent to any thereof; and (g) any defenses or
benefits that may be derived from or afforded by law which limit the liability of or exonerate
guarantors or sureties, or which may conflict with the terms hereof.




     7.6 Guarantors’ Rights of Subrogation, Contribution, etc. Until the Guaranteed Obligations shall have
been indefeasibly paid in full and the Revolving Commitments shall have terminated and all Letters
of Credit shall have expired or been cancelled, each Guarantor hereby waives any claim, right or
remedy, direct or indirect, that such Guarantor now has or may hereafter have against Borrower or
any other Guarantor or any of its assets in connection with this Guaranty or the performance by
such Guarantor of its obligations hereunder, in each case whether such claim, right or remedy
arises in equity, under contract, by statute, under common law or otherwise and including (a) any
right of subrogation, reimbursement or indemnification that such Guarantor now has or may hereafter
have against Borrower with respect to the Guaranteed Obligations, (b) any right to enforce, or to
participate in, any claim, right or remedy that any Beneficiary now has or may hereafter have
against Borrower and (c) any benefit of and any right to participate in, any collateral or security
now or hereafter held by any Beneficiary. In addition, until the Guaranteed Obligations shall have
been indefeasibly paid in full and the Revolving Commitments shall have terminated and all Letters
of Credit shall have expired or been cancelled, each Guarantor shall withhold exercise of any right
of contribution such Guarantor may have against any other guarantor (including any other Guarantor)
of the Guaranteed Obligations, including any such right of contribution as contemplated by Section
7.2. Each Guarantor further agrees that, to the extent the waiver or agreement to withhold the
exercise of its rights of subrogation, reimbursement, indemnification and contribution as set forth
herein is found by a court of competent jurisdiction to be void or voidable for any reason, any
rights of subrogation, reimbursement or indemnification such Guarantor may have against Borrower or
against any collateral or security and any rights of contribution such Guarantor may have against
any such other guarantor, shall be junior and subordinate to any rights any Beneficiary may have
against Borrower, to all right, title and interest any Beneficiary may have in any such collateral
or security and to any right any Beneficiary may have against such other guarantor. If any amount
shall be paid to any Guarantor on account of any such subrogation,



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reimbursement, indemnification or contribution rights at any time when all Guaranteed Obligations
shall not have been finally and indefeasibly paid in full, such amount shall be held in trust for
Administrative Agent on behalf of Beneficiaries and shall forthwith be paid over to Administrative
Agent for the benefit of Beneficiaries to be credited and applied against the Guaranteed
Obligations, whether matured or unmatured, in accordance with the terms hereof.




     7.7 Subordination of Other Obligations. Any Indebtedness of Borrower or any Guarantor now or hereafter
held by any Guarantor (the “Obligee Guarantor”) is hereby subordinated in right of payment to the
Guaranteed Obligations, and any such Indebtedness collected or received by the Obligee Guarantor
after an Event of Default has occurred and is continuing shall be held in trust for Administrative
Agent on behalf of Beneficiaries and shall forthwith be paid over to Administrative Agent for the
benefit of Beneficiaries to be credited and applied against the Guaranteed Obligations but without
affecting, impairing or limiting in any manner the liability of the Obligee Guarantor under any
other provision hereof.



     7.8 Continuing Guaranty. This Guaranty is a continuing guaranty and shall remain in effect until all
of the Guaranteed Obligations shall have been paid in full and the Revolving Commitments shall have
terminated and all Letters of Credit shall have expired or been cancelled. Each Guarantor hereby
irrevocably waives any right to revoke this Guaranty as to future transactions giving rise to any
Guaranteed Obligations.



     7.9 Authority of Guarantors or Borrower. It is not necessary for any Beneficiary to inquire into the
capacity or powers of any Guarantor or Borrower or the officers, directors or any agents acting or
purporting to act on behalf of any of them.



     7.10 Financial Condition of Borrower. Any Credit Extension may be made to Borrower or continued from
time to time and any Hedge Agreements may be entered into from time to time, in each case without
notice to or authorization from any Guarantor regardless of the financial or other condition of
Borrower at the time of any such grant or continuation or at the time such Hedge Agreement is
entered into, as the case may be. No Beneficiary shall have any obligation to disclose or discuss
with any Guarantor its assessment, or any Guarantor’s assessment, of the financial condition of
Borrower. Each Guarantor has adequate means to obtain information from Borrower on a continuing
basis concerning the financial condition of Borrower and its ability to perform its obligations
under the Credit Documents and the Hedge Agreements and each Guarantor assumes the responsibility
for being and keeping informed of the financial condition of Borrower and of all circumstances
bearing upon the risk of nonpayment of the Guaranteed Obligations. Each Guarantor hereby waives
and relinquishes any duty on the part of any Beneficiary to disclose any matter, fact or thing
relating to the business, operations or conditions of Borrower now known or hereafter known by any
Beneficiary.



     7.11 Bankruptcy, etc. (a) So long as any Guaranteed Obligations remain outstanding, no Guarantor
shall, without the prior written consent of Administrative Agent acting pursuant to the
instructions of Requisite Lenders, commence or join with any other Person in commencing any
bankruptcy, reorganization or insolvency case or proceeding of or against Borrower or any other
Guarantor. The obligations of Guarantors hereunder shall not be reduced, limited, impaired,
discharged, deferred, suspended or terminated by any case or proceeding, voluntary or involuntary,
involving the bankruptcy, insolvency, receivership, reorganization, liquidation or



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arrangement of Borrower or any other Guarantor or by any defense which Borrower or any other
Guarantor may have by reason of the order, decree or decision of any court or administrative body
resulting from any such proceeding.




          (b) Each Guarantor acknowledges and agrees that any interest on any portion of the Guaranteed
Obligations which accrues after the commencement of any case or proceeding referred to in clause
(a) above (or, if interest on any portion of the Guaranteed Obligations ceases to accrue by
operation of law by reason of the commencement of such case or proceeding, such interest as would
have accrued on such portion of the Guaranteed Obligations if such case or proceeding had not been
commenced) shall be included in the Guaranteed Obligations because it is the intention of
Guarantors and Beneficiaries that the Guaranteed Obligations which are guaranteed by Guarantors
pursuant hereto should be determined without regard to any rule of law or order which may relieve
Borrower of any portion of such Guaranteed Obligations. Guarantors will permit any trustee in
bankruptcy, receiver, debtor in possession, assignee for the benefit of creditors or similar Person
to pay Administrative Agent, or allow the claim of Administrative Agent in respect of, any such
interest accruing after the date on which such case or proceeding is commenced.



          (c) In the event that all or any portion of the Guaranteed Obligations are paid by Borrower,
the obligations of Guarantors hereunder shall continue and remain in full force and effect or be
reinstated, as the case may be, in the event that all or any part of such payment(s) are rescinded
or recovered directly or indirectly from any Beneficiary as a preference, fraudulent transfer or
otherwise and any such payments which are so rescinded or recovered shall constitute Guaranteed
Obligations for all purposes hereunder.



     7.12 Discharge of Guaranty Upon Sale of Guarantor. If all of the Equity Interests of any Guarantor or
any of its successors in interest hereunder shall be sold or otherwise disposed of (including by
merger or consolidation) in accordance with the terms and conditions hereof, the Guaranty of such
Guarantor or such successor in interest, as the case may be, hereunder shall automatically be
discharged and released without any further action by any Beneficiary or any other Person effective
as of the time of such Asset Sale.



SECTION 8. EVENTS OF DEFAULT




     8.1 Events of Default. If any one or more of the following conditions or events shall occur:



          (a) Failure to Make Payments When Due. Failure by Borrower to pay (i) when due any
installment of principal of any Loan, whether at stated maturity, by acceleration, by notice of
voluntary prepayment, by mandatory prepayment or otherwise; (ii) when due any amount payable to
Issuing Bank in reimbursement of any drawing under a Letter of Credit; or (iii) any interest on any
Loan or any fee or any other amount due hereunder within five days after the date due; or



          (b) Default in Other Agreements. (i) Failure of any Credit Party or any of their
respective Subsidiaries to pay when due any principal of or interest on or any other



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amount payable in respect of one or more items of Indebtedness (other than Indebtedness
referred to in Section 8.1(a)) in an individual principal amount of $7,500,000 or more or with an
aggregate principal amount of $15,000,000 or more, in each case beyond the grace period, if any,
provided therefor; or (ii) breach or default by any Credit Party with respect to any other material
term of (1) one or more items of Indebtedness in the individual or aggregate principal amounts
referred to in clause (i) above or (2) any loan agreement, mortgage, indenture or other agreement
relating to such item(s) of Indebtedness, in each case beyond the grace period, if any, provided
therefor, if the effect of such breach or default is to cause, or to permit the holder or holders
of that Indebtedness (or a trustee on behalf of such holder or holders), to cause, that
Indebtedness to become or be declared due and payable (or redeemable) prior to its stated maturity
or the stated maturity of any underlying obligation, as the case may be; or




          (c) Breach of Certain Covenants. Failure of any Credit Party to perform or comply
with any term or condition contained in Section 2.6, Section 5.1, Section 5.2 or Section 6; or



          (d) Breach of Representations, etc. Any representation, warranty, certification or
other statement made or deemed made by any Credit Party in any Credit Document or in any statement
or certificate at any time given by any Credit Party or any of its Subsidiaries in writing pursuant
hereto or thereto or in connection herewith or therewith shall be false in any material respect as
of the date made or deemed made; or



          (e) Other Defaults Under Credit Documents. Any Credit Party shall default in the
performance of or compliance with any term contained herein or any of the other Credit Documents,
other than any such term referred to in any other Section of this Section 8.1, and such default
shall not have been remedied or waived within thirty days after the earlier of (i) an Authorized
Officer of such Credit Party becoming aware of such default or (ii) receipt by Borrower of notice
from Administrative Agent or any Lender of such default; or



          (f) Involuntary Bankruptcy; Appointment of Receiver, etc. (i) A court of competent
jurisdiction shall enter a decree or order for relief in respect of Borrower or any of its
Subsidiaries in an involuntary case under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect, which decree or order is not
stayed; or any other similar relief shall be granted under any applicable federal or state law; or
(ii) an involuntary case shall be commenced against Borrower or any of its Subsidiaries under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law now or
hereafter in effect; or a decree or order of a court having jurisdiction in the premises for the
appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having
similar powers over Borrower or any of its Subsidiaries, or over all or a substantial part of its
property, shall have been entered; or there shall have occurred the involuntary appointment of an
interim receiver, trustee or other custodian of Borrower or any of its Subsidiaries for all or a
substantial part of its property; or a warrant of attachment, execution or similar process shall
have been issued against any substantial part of the property of Borrower or any of its
Subsidiaries and any such event described in this clause (ii) shall continue for sixty days without
having been dismissed, bonded or discharged; or



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          (g) Voluntary Bankruptcy; Appointment of Receiver, etc. (i) Borrower or any of its
Subsidiaries shall have an order for relief entered with respect to it or shall commence a
voluntary case under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or
similar law now or hereafter in effect, or shall consent to the entry of an order for relief in an
involuntary case, or to the conversion of an involuntary case to a voluntary case, under any such
law, or shall consent to the appointment of or taking possession by a receiver, trustee or other
custodian for all or a substantial part of its property; or Borrower or any of its Subsidiaries
shall make any assignment for the benefit of creditors; or (ii) Borrower or any of its Subsidiaries
shall be unable, or shall fail generally, or shall admit in writing its inability, to pay its debts
as such debts become due; or the board of directors (or similar governing body) of Borrower or any
of its Subsidiaries (or any committee thereof) shall adopt any resolution or otherwise authorize
any action to approve any of the actions referred to in this Section 8.1(g) or in Section 8.1(f);
or



          (h) Judgments and Attachments. Any money judgment, writ or warrant of attachment or
similar process involving (i) in any individual case an amount in excess of $7,500,000 or (ii) in
the aggregate at any time an amount in excess of $15,000,000 (in either case to the extent not
adequately covered by insurance as to which a solvent and unaffiliated insurance company has
acknowledged coverage) shall be entered or filed against Borrower or any of its Subsidiaries or any
of their respective assets and shall remain undischarged, unvacated, unbonded or unstayed for a
period of sixty days (or in any event later than five days prior to the date of any proposed sale
thereunder); or



          (i) Dissolution. Any order, judgment or decree shall be entered against any Credit
Party decreeing the dissolution or split up of such Credit Party, and such order shall remain
undischarged or unstayed for a period in excess of thirty days; or



          (j) Employee Benefit Plans. (i) There shall occur one or more ERISA Events which
individually or in the aggregate results in or might reasonably be expected to result in liability
of Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates in excess of
$5,000,000 during the term hereof; or (ii) there exists any fact or circumstance that reasonably
could be expected to result in the imposition of a Lien or security interest under Section 412(n)
of the Internal Revenue Code or under ERISA; or



          (k) Change of Control. A Change of Control shall occur; or



          (l) Guaranties, Collateral Documents and other Credit Documents. At any time after
the execution and delivery thereof, (i) the Guaranty for any reason, other than the satisfaction in
full of all Obligations, shall cease to be in full force and effect (other than in accordance with
its terms) or shall be declared to be null and void, or any Guarantor shall repudiate its
obligations thereunder, (ii) this Agreement or any Collateral Document ceases to be in full force
and effect (other than by reason of a release of Collateral in accordance with the terms hereof or
thereof or the satisfaction in full of the Obligations in accordance with the terms hereof) or
shall be declared null and void, or Collateral Agent shall not have or shall cease to have a valid
and perfected Lien in any material Collateral purported to be covered by the Collateral Documents
with the priority required by the relevant Collateral Document, in each case for any reason other
than the failure of Collateral Agent or any Secured Party to take any



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action within its control, or (iii) any Credit Party shall contest the validity or
enforceability of any Credit Document in writing or deny in writing that it has any further
liability, including with respect to future advances by Lenders, under any Credit Document to which
it is a party or shall contest the validity or perfection of any Lien in any Collateral purported
to be covered by the Collateral Documents; or




          (m) Subordination. Any Subordinated Indebtedness or the guarantees thereof shall
cease, for any reason, to be validly subordinated to Borrower’s Obligations hereunder or the
obligations of the Guarantors hereunder in respect thereof, as the case may be, as provided in any
Subordinated Indebtedness Indenture, or any Credit Party, any Affiliate of any Credit Party, the
trustee in respect of any Subordinated Indebtedness, as the case may be, or the holders of at least
25% in aggregate principal amount of the Subordinated Indebtedness, as the case may be, shall so
assert; or



          (n) HMO Event. (i) There occurs an HMO Event with respect to Borrower or any of its
Subsidiaries that could reasonably be expected to have a Material Adverse Effect and such HMO Event
shall remain unremedied for ninety days after the occurrence thereof (or such lesser period of
time, if any, as the HMO Regulator administering the HMO Regulations shall have imposed for the
cure of such HMO Event), (ii) the HMO Subsidiaries, taken as a whole, shall suffer a net loss of
20% or more of their Medicare Advantage plan (or any successor plan thereto) members in the
aggregate (other than as the result of any Asset Sale permitted hereunder), as measured from the
beginning of the previous month or from the close of the immediately preceding Fiscal Year that
could reasonably be expected to have a Material Adverse Effect; or



          (o) Exclusion Event. There shall occur an Exclusion Event that could reasonably be
expected to have a Material Adverse Effect; or



          (p) Criminal Indictment. Borrower becomes subject to a criminal indictment (i) that
could reasonably be expected to have a Material Adverse Effect or (ii) that results in a conviction
or other criminal outcome adverse to Borrower that could reasonably be expected to have a Material
Adverse Effect;


THEN, (1) upon the occurrence of any Event of Default described in Section 8.1(f) or 8.1(g),
automatically and (2) upon the occurrence of any other Event of Default, at the request of (or with
the consent of) Requisite Lenders, upon notice to Borrower by Administrative Agent, (A) the
Revolving Commitment, if any, of each Lender having a Revolving Commitment and the obligation of
Issuing Bank to issue any Letter of Credit shall immediately terminate; (B) each of the following
shall immediately become due and payable, in each case without presentment, demand, protest or
other requirements of any kind, all of which are hereby expressly waived by each Credit Party: (I)
the unpaid principal amount of and accrued interest on the Loans, (II) an amount equal to the
maximum amount that may at any time be drawn under all Letters of Credit then outstanding
(regardless of whether any beneficiary under any such Letter of Credit shall have presented, or
shall be entitled at such time to present, the drafts or other documents or certificates required
to draw under such Letters of Credit) which shall be held by Administrative Agent as security for
Borrower’s reimbursement Obligations in respect of Letters of Credit then outstanding, and (III)
all other Obligations; provided, the foregoing shall not affect in any way





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the obligations of Lenders under Section 2.3(b)(v) or Section 2.4(e); (C) Administrative Agent may
cause Collateral Agent to enforce any and all Liens and security interests created pursuant to
Collateral Documents.




SECTION 9. AGENTS




     9.1 Appointment of Agents. Bank of America, Citibank and UBS are hereby appointed Co-Syndication
Agents hereunder and each Lender hereby authorizes Bank of America, Citibank and UBS to act as
Co-Syndication Agents in accordance with the terms hereof and the other Credit Documents. GSCP is
hereby appointed Administrative Agent and Collateral Agent hereunder and under the other Credit
Documents and each Lender hereby authorizes GSCP to act as Administrative Agent and Collateral
Agent in accordance with the terms hereof and the other Credit Documents. Wachovia is hereby
appointed Documentation Agent hereunder and each Lender hereby authorizes Wachovia to act as
Documentation Agent in accordance with the terms hereof and the other Credit Documents. Each Agent
hereby agrees to act in its capacity as such upon the express conditions contained herein and the
other Credit Documents, as applicable. The provisions of this Section 9 are solely for the benefit
of Agents and Lenders and no Credit Party shall have any rights as a third party beneficiary of any
of the provisions thereof. In performing its functions and duties hereunder, each Agent shall act
solely as an agent of Lenders and does not assume and shall not be deemed to have assumed any
obligation towards or relationship of agency or trust with or for Borrower or any of its
Subsidiaries. Each Co-Syndication Agent and Documentation Agent, without consent of or notice to
any party hereto, may assign any and all of its rights or obligations hereunder to any of its
Affiliates. As of the Closing Date, neither Bank of America, Citibank and UBS, in each party’s
respective capacity as Co-Syndication Agent, nor Wachovia, in its capacity as Documentation Agent,
shall have any obligations but shall be entitled to all benefits of this Section 9.



     9.2 Powers and Duties. Each Lender irrevocably authorizes each Agent to take such action on such
Lender’s behalf and to exercise such powers, rights and remedies hereunder and under the other
Credit Documents as are specifically delegated or granted to such Agent by the terms hereof and
thereof, together with such powers, rights and remedies as are reasonably incidental thereto. Each
Agent shall have only those duties and responsibilities that are expressly specified herein and the
other Credit Documents. Each Agent may exercise such powers, rights and remedies and perform such
duties by or through its agents or employees. No Agent shall have, by reason hereof or any of the
other Credit Documents, a fiduciary relationship in respect of any Lender; and nothing herein or
any of the other Credit Documents, expressed or implied, is intended to or shall be so construed as
to impose upon any Agent any obligations in respect hereof or any of the other Credit Documents
except as expressly set forth herein or therein.



     9.3 General Immunity.



          (a) No Responsibility for Certain Matters. No Agent shall be responsible to any
Lender for the execution, effectiveness, genuineness, validity, enforceability, collectability or
sufficiency hereof or any other Credit Document or for any representations, warranties, recitals or
statements made herein or therein or made in any written or oral statements or in any financial or
other statements, instruments, reports or certificates or any other



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documents furnished or made by any Agent to Lenders or by or on behalf of any Credit Party or
to any Lender in connection with the Credit Documents and the transactions contemplated thereby or
for the financial condition or business affairs of any Credit Party or any other Person liable for
the payment of any Obligations, nor shall any Agent be required to ascertain or inquire as to the
performance or observance of any of the terms, conditions, provisions, covenants or agreements
contained in any of the Credit Documents or as to the use of the proceeds of the Loans or as to the
existence or possible existence of any Event of Default or Default or to make any disclosures with
respect to the foregoing. Anything contained herein to the contrary notwithstanding, Administrative
Agent shall not have any liability arising from confirmations of the amount of outstanding Loans or
the Letter of Credit Usage or the component amounts thereof.




          (b) Exculpatory Provisions. No Agent nor any of its officers, partners, directors,
employees or agents shall be liable to Lenders for any action taken or omitted by any Agent under
or in connection with any of the Credit Documents except to the extent caused by such Agent’s gross
negligence or willful misconduct. Each Agent shall be entitled to refrain from any act or the
taking of any action (including the failure to take an action) in connection herewith or any of the
other Credit Documents or from the exercise of any power, discretion or authority vested in it
hereunder or thereunder unless and until such Agent shall have received instructions in respect
thereof from Requisite Lenders (or such other Lenders as may be required to give such instructions
under Section 10.5) and, upon receipt of such instructions from Requisite Lenders (or such other
Lenders, as the case may be), such Agent shall be entitled to act or (where so instructed) refrain
from acting, or to exercise such power, discretion or authority, in accordance with such
instructions. Without prejudice to the generality of the foregoing, (i) each Agent shall be
entitled to rely and shall be fully protected in relying, upon any communication, instrument or
document believed by it to be genuine and correct and to have been signed or sent by the proper
Person or Persons and shall be entitled to rely and shall be protected in relying on opinions and
judgments of attorneys (who may be attorneys for Borrower and its Subsidiaries), accountants,
experts and other professional advisors selected by it; and (ii) no Lender shall have any right of
action whatsoever against any Agent as a result of such Agent acting or (where so instructed)
refraining from acting hereunder or any of the other Credit Documents in accordance with the
instructions of Requisite Lenders (or such other Lenders as may be required to give such
instructions under Section 10.5).



          (c) Delegation of Duties. Administrative Agent may perform any and all of its duties
and exercise its rights and powers under this Agreement or under any other Credit Document by or
through any one or more sub-agents appointed by Administrative Agent. Administrative Agent and any
such sub-agent may perform any and all of its duties and exercise its rights and powers by or
through their respective Affiliates. The exculpatory, indemnification and other provisions of this
Section 9.3 and of Section 9.6 shall apply to any the Affiliates of Administrative Agent and shall
apply to their respective activities in connection with the syndication of the credit facilities
provided for herein as well as activities as Administrative Agent. All of the rights, benefits and
privileges (including the exculpatory and indemnification provisions) of this Section 9.3 and of
Section 9.6 shall apply to any such sub-agent and to the Affiliates of any such sub-agent and shall
apply to their respective activities as sub-agent as if such sub-agent and Affiliates were named
herein. Notwithstanding anything herein to the contrary, with respect to each sub-agent appointed
by Administrative Agent, (i) such sub-agent shall be a third party beneficiary under this Agreement
with respect to all such rights, benefits



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and privileges (including exculpatory rights and rights to indemnification) and shall have all
of the rights and benefits of a third party beneficiary, including an independent right of action
to enforce such rights, benefits and privileges (including exculpatory rights and rights to
indemnification) directly, without the consent or joinder of any other Person, against any or all
of the Credit Parties and the Lenders, (ii) such rights, benefits and privileges (including
exculpatory rights and rights to indemnification) shall not be modified or amended without the
consent of such sub-agent and (iii) such sub-agent shall only have obligations to Administrative
Agent and not to any Credit Party, Lender or any other Person and no Credit Party, Lender or any
other Person shall have any rights, directly or indirectly, as a third party beneficiary or
otherwise, against such sub-agent.




     9.4 Agents Entitled to Act as Lender. The agency hereby created shall in no way impair or affect any
of the rights and powers of, or impose any duties or obligations upon, any Agent in its individual
capacity as a Lender hereunder. With respect to its participation in the Loans and the Letters of
Credit, each Agent shall have the same rights and powers hereunder as any other Lender and may
exercise the same as if it were not performing the duties and functions delegated to it hereunder
and the term “Lender” shall, unless the context clearly otherwise indicates, include each Agent in
its individual capacity. Any Agent and its Affiliates may accept deposits from, lend money to, own
securities of and generally engage in any kind of banking, trust, financial advisory or other
business with Borrower or any of its Affiliates as if it were not performing the duties specified
herein and may accept fees and other consideration from Borrower for services in connection
herewith and otherwise without having to account for the same to Lenders.



     9.5 Lenders’ Representations, Warranties and Acknowledgment.



          (a) Each Lender represents and warrants that it has made its own independent investigation of
the financial condition and affairs of Borrower and its Subsidiaries in connection with Credit
Extensions hereunder and that it has made and shall continue to make its own appraisal of the
creditworthiness of Borrower and its Subsidiaries. No Agent shall have any duty or responsibility,
either initially or on a continuing basis, to make any such investigation or any such appraisal on
behalf of Lenders or to provide any Lender with any credit or other information with respect
thereto, whether coming into its possession before the making of the Loans or at any time or times
thereafter and no Agent shall have any responsibility with respect to the accuracy of or the
completeness of any information provided to Lenders.



          (b) Each Lender, by delivering its signature page to this Agreement or an Assignment Agreement
and funding its Term Loan and/or Revolving Loans on the Closing Date, shall be deemed to have
acknowledged receipt of and consented to and approved, each Credit Document and each other document
required to be approved by any Agent, Requisite Lenders or Lenders, as applicable on the Closing
Date.



     9.6 Right to Indemnity. Each Lender, in proportion to its Pro Rata Share, severally agrees to
indemnify each Agent, to the extent that such Agent shall not have been reimbursed by any Credit
Party, for and against any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including counsel fees and disbursements) or disbursements of
any kind or nature whatsoever which may be imposed on, incurred by or



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asserted against such Agent in exercising its powers, rights and remedies or performing its duties
hereunder or under the other Credit Documents or otherwise in its capacity as such Agent in any way
relating to or arising out of this Agreement or the other Credit Documents; provided, no
Lender shall be liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Agent’s
gross negligence or willful misconduct. If any indemnity furnished to any Agent for any purpose
shall, in the opinion of such Agent, be insufficient or become impaired, such Agent may call for
additional indemnity and cease, or not commence, to do the acts indemnified against until such
additional indemnity is furnished; provided, in no event shall this sentence require any
Lender to indemnify any Agent against any liability, obligation, loss, damage, penalty, action,
judgment, suit, cost, expense or disbursement in excess of such Lender’s Pro Rata Share thereof;
and provided further, this sentence shall not be deemed to require any Lender to indemnify any
Agent against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost,
expense or disbursement described in the proviso in the immediately preceding sentence.




     9.7 Successor Administrative Agent, Collateral Agent and Swing Line Lender.



          (a) Administrative Agent may resign at any time by giving thirty days’ prior written notice
thereof to Lenders and Borrower and Administrative Agent may be removed at any time with or without
cause by an instrument or concurrent instruments in writing delivered to Borrower and
Administrative Agent and signed by Requisite Lenders. Upon any such notice of resignation or any
such removal, Requisite Lenders shall have the right, upon five Business Days’ notice to Borrower,
to appoint a successor Administrative Agent. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, that successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and
duties of the retiring or removed Administrative Agent and the retiring or removed Administrative
Agent shall promptly (i) transfer to such successor Administrative Agent all sums, Securities and
other items of Collateral held under the Collateral Documents, together with all records and other
documents necessary or appropriate in connection with the performance of the duties of the
successor Administrative Agent under the Credit Documents and (ii) execute and deliver to such
successor Administrative Agent such amendments to financing statements and take such other actions,
as may be necessary or appropriate in connection with the assignment to such successor
Administrative Agent of the security interests created under the Collateral Documents, whereupon
such retiring or removed Administrative Agent shall be discharged from its duties and obligations
hereunder. If the Requisite Lenders have not appointed a successor Administrative Agent,
Administrative Agent shall have the right to appoint a financial institution to act as
Administrative Agent hereunder and in any case, Administrative Agent’s resignation shall become
effective on the thirtieth day after such notice of resignation. If neither the Requisite Lenders
nor Administrative Agent have appointed a successor Administrative Agent, the Requisite Lenders
shall be deemed to succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent; provided that, until a successor Administrative Agent
is so appointed by the Requisite Lenders or Administrative Agent, Administrative Agent, by notice
to Borrower and the Requisite Lenders, may retain its role as Collateral Agent under any Collateral
Document. Except as provided in the immediately preceding sentence, any resignation or removal of
GSCP or its successor as Administrative Agent pursuant to this Section shall also constitute the
resignation or



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removal of GSCP or its successor as Collateral Agent. After any retiring or removed
Administrative Agent’s resignation or removal hereunder as Administrative Agent, the provisions of
this Section 9 shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent hereunder. Any successor Administrative Agent appointed pursuant
to this Section shall, upon its acceptance of such appointment, become the successor Collateral
Agent for all purposes hereunder. If GSCP or its successor as Administrative Agent pursuant to
this Section has resigned as Administrative Agent but retained its role as Collateral Agent and no
successor Collateral Agent has become the Collateral Agent pursuant to the immediately preceding
sentence, GSCP or its successor may resign as Collateral Agent upon notice to Borrower and the
Requisite Lenders at any time.




          (b) In addition to the foregoing, Collateral Agent may resign at any time by giving thirty 30
days’ prior written notice thereof to Lenders and the Grantors and Collateral Agent may be removed
at any time with or without cause by an instrument or concurrent instruments in writing delivered
to the Grantors and Collateral Agent signed by the Requisite Lenders. Upon any such notice of
resignation or any such removal, Requisite Lenders shall have the right, upon five Business Days’
notice to the Administrative Agent, to appoint a successor Collateral Agent. Upon the acceptance
of any appointment as Collateral Agent hereunder by a successor Collateral Agent, that successor
Collateral Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring or removed Collateral Agent under this Agreement and the
Collateral Documents and the retiring or removed Collateral Agent under this Agreement shall
promptly (i) transfer to such successor Collateral Agent all sums, Securities and other items of
Collateral held hereunder or under the Collateral Documents, together with all records and other
documents necessary or appropriate in connection with the performance of the duties of the
successor Collateral Agent under this Agreement and the Collateral Documents and (ii) execute and
deliver to such successor Collateral Agent or otherwise authorize the filing of such amendments to
financing statements and take such other actions, as may be necessary or appropriate in connection
with the assignment to such successor Collateral Agent of the security interests created under the
Collateral Documents, whereupon such retiring or removed Collateral Agent shall be discharged from
its duties and obligations under this Agreement and the Collateral Documents. After any retiring
or removed Collateral Agent’s resignation or removal hereunder as the Collateral Agent, the
provisions of this Agreement and the Collateral Documents shall inure to its benefit as to any
actions taken or omitted to be taken by it under this Agreement or the Collateral Documents while
it was the Collateral Agent hereunder.



          (c) Any resignation or removal of GSCP Administrative Agent pursuant to this Section shall
also constitute the resignation or removal of GSCP or its successor as Swing Line Lender and any
successor Administrative Agent appointed pursuant to this Section shall, upon its acceptance of
such appointment, become the successor Swing Line Lender for all purposes hereunder. In such event
(a) Borrower shall prepay any outstanding Swing Line Loans made by the retiring or removed
Administrative Agent in its capacity as Swing Line Lender, (b) upon such prepayment, the retiring
or removed Administrative Agent and Swing Line Lender shall surrender any Swing Line Note held by
it to Borrower for cancellation and (c) Borrower shall issue, if so requested by successor
Administrative Agent and Swing Line Loan Lender, a new Swing Line Note to the successor
Administrative Agent and Swing Line Lender, in the



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principal amount of the Swing Line Loan Sublimit then in effect and with other appropriate
insertions.




     9.8 Collateral Documents and Guaranty.



          (a) Agents under Collateral Documents and Guaranty. Each Secured Party hereby further
authorizes Administrative Agent or Collateral Agent, as applicable, on behalf of and for the
benefit of Secured Parties, to be the agent for and representative of the Secured Parties with
respect to the Guaranty, the Collateral and the Collateral Documents; provided that neither
Administrative Agent nor Collateral Agent shall owe any fiduciary duty, duty of loyalty, duty of
care, duty of disclosure or any other obligation whatsoever to any holder of Obligations with
respect to any Hedge Agreement. Subject to Section 10.5, without further written consent or
authorization from any Secured Party, Administrative Agent or Collateral Agent, as applicable may
execute any documents or instruments necessary to (i) in connection with a sale or disposition of
assets permitted by this Agreement, release any Lien encumbering any item of Collateral that is the
subject of such sale or other disposition of assets or to which Requisite Lenders (or such other
Lenders as may be required to give such consent under Section 10.5) have otherwise consented or
(ii) release any Guarantor from the Guaranty pursuant to Section 7.12 or with respect to which
Requisite Lenders (or such other Lenders as may be required to give such consent under Section
10.5) have otherwise consented.



          (b) Right to Realize on Collateral and Enforce Guaranty. Anything contained in any of
the Credit Documents to the contrary notwithstanding, Borrower, Administrative Agent, Collateral
Agent and each Secured Party hereby agree that (i) no Secured Party shall have any right
individually to realize upon any of the Collateral or to enforce the Guaranty, it being understood
and agreed that all powers, rights and remedies hereunder may be exercised solely by Administrative
Agent, on behalf of the Secured Parties in accordance with the terms hereof and all powers, rights
and remedies under the Collateral Documents may be exercised solely by Collateral Agent and (ii) in
the event of a foreclosure by Collateral Agent on any of the Collateral pursuant to a public or
private sale or other disposition, Collateral Agent or any Lender may be the purchaser or licensor
of any or all of such Collateral at any such sale or other disposition and Collateral Agent, as
agent for and representative of Secured Parties (but not any Lender or Lenders in its or their
respective individual capacities unless Requisite Lenders shall otherwise agree in writing) shall
be entitled, for the purpose of bidding and making settlement or payment of the purchase price for
all or any portion of the Collateral sold at any such public sale, to use and apply any of the
Obligations as a credit on account of the purchase price for any collateral payable by Collateral
Agent at such sale or other disposition.



          (c) Rights under Hedge Agreements and Cash Management Agreements. No Hedge Agreement
will create (or be deemed to create) in favor of any Lender Counterparty that is a party thereto
and no Cash Management Agreement will create (or be deemed to create) in favor of any Cash
Management Provider that is a party thereto any rights in connection with the management or release
of any Collateral or of the obligations of any Guarantor under the Credit Documents except as
expressly provided in Sections 10.5(c)(v) and 10.5(c)(vi) of this Agreement and Section 9.2 of the
Pledge and Security Agreement.



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     9.9 Withholding Taxes. To the extent required by any applicable law, the Administrative Agent may
withhold from any payment to any Lender an amount equivalent to any applicable withholding tax. If
the Internal Revenue Service or any other Governmental Authority asserts a claim that the
Administrative Agent did not properly withhold tax from amounts paid to or for the account of any
Lender because the appropriate form was not delivered or was not properly executed or because such
Lender failed to notify the Administrative Agent of a change in circumstance which rendered the
exemption from, or reduction of, withholding tax ineffective or for any other reason, such Lender
shall indemnify the Administrative Agent fully for all amounts paid, directly or indirectly, by the
Administrative Agent as tax or otherwise, including any penalties or interest and together with all
expenses (including legal expenses, allocated internal costs and out-of-pocket expenses) incurred.



SECTION 10. MISCELLANEOUS




     10.1 Notices.



          (a) Notices Generally. Any notice or other communication herein required or permitted
to be given to a Credit Party, Co-Syndication Agent, Collateral Agent, Administrative Agent, Swing
Line Lender, Issuing Bank or Documentation Agent, shall be sent to such Person’s address as set
forth on Appendix B or in the other relevant Credit Document and in the case of any Lender, the
address as indicated on Appendix B or otherwise indicated to Administrative Agent in writing.
Except as otherwise set forth in paragraph (b) below, each notice hereunder shall be in writing and
may be personally served, telexed or sent by telefacsimile or United States mail or courier service
and shall be deemed to have been given when delivered in person or by courier service and signed
for against receipt thereof, upon receipt of telefacsimile or telex, or three Business Days after
depositing it in the United States mail with postage prepaid and properly addressed;
provided, no notice to any Agent shall be effective until received by such Agent; provided
further, any such notice or other communication shall at the request of Administrative Agent be
provided to any sub-agent appointed pursuant to Section 9.3(c) hereto as designated by
Administrative Agent from time to time.



          (b) Electronic Communications.




     (i) Notices and other communications to the Lenders and the Issuing Bank hereunder may
be delivered or furnished by electronic communication (including e-mail and Internet or
intranet websites, including the Platform) pursuant to procedures approved by Administrative
Agent, provided that the foregoing shall not apply to notices to any Lender or the
Issuing Bank pursuant to Section 2 if such Lender or the Issuing Bank, as applicable, has
notified Administrative Agent that it is incapable of receiving notices under such Section
by electronic communication. Administrative Agent or Borrower may, in its discretion, agree
to accept notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it, provided that approval of such procedures may
be limited to particular notices or communications. Unless Administrative Agent otherwise
prescribes, (i) notices and other communications sent to an e-mail address shall be deemed
received upon the sender’s receipt of an acknowledgement from the intended recipient (such
as by the



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“return receipt requested” function, as available, return e-mail or other written
acknowledgement), provided that if such notice or other communication is not sent
during the normal business hours of the recipient, such notice or communication shall be
deemed to have been sent at the opening of business on the next Business Day for the
recipient and (ii) notices or communications posted to an Internet or intranet website shall
be deemed received upon the deemed receipt by the intended recipient at its e-mail address
as described in the foregoing clause (i) of notification that such notice or communication
is available and identifying the website address therefor.




     (ii) Each of the Credit Parties understands that the distribution of material through
an electronic medium is not necessarily secure and that there are confidentiality and other
risks associated with such distribution and agrees and assumes the risks associated with
such electronic distribution, except to the extent caused by the willful misconduct or gross
negligence of Administrative Agent.




     (iii) The Platform and any Approved Electronic Communications are provided “as is” and
“as available”. None of the Agents or any of their respective officers, directors,
employees, agents, advisors or representatives (the “Agent Affiliates”) warrant the
accuracy, adequacy, or completeness of the Approved Electronic Communications or the
Platform and each expressly disclaims liability for errors or omissions in the Platform and
the Approved Electronic Communications. No warranty of any kind, express, implied or
statutory, including any warranty of merchantability, fitness for a particular purpose,
non-infringement of third party rights or freedom from viruses or other code defects is made
by the Agent Affiliates in connection with the Platform or the Approved Electronic
Communications.




     (iv) Each of the Credit Parties, the Lenders, the Issuing Banks and the Agents agree
that Administrative Agent may, but shall not be obligated to, store any Approved Electronic
Communications on the Platform in accordance with Administrative Agent’s customary document
retention procedures and policies.



     10.2 Expenses. Whether or not the transactions contemplated hereby shall be consummated, Borrower
agrees to pay promptly (a) all the actual and reasonable costs and expenses of preparation of the
Credit Documents and any consents, amendments, waivers or other modifications thereto; (b) all the
costs of furnishing all opinions by counsel for Borrower and the other Credit Parties; (c) the
reasonable fees, expenses and disbursements of counsel to Agents (in each case including allocated
costs of internal counsel) in connection with the negotiation, preparation, execution and
administration of the Credit Documents and any consents, amendments, waivers or other modifications
thereto and any other documents or matters requested by Borrower; provided that prior to
the occurrence and during the continuance of a Default or an Event of Default, reasonable
attorney’s fees shall be limited to one primary counsel and, if reasonably required by the
Administrative Agent, local or specialist counsel, provided further that no such limitation shall
apply if counsel for the Administrative Agent determines in good faith that there is a conflict
that requires separate representation for any Agent; (d) all the actual costs and reasonable
expenses of creating, perfecting and recording Liens in favor of Collateral Agent, for the benefit
of the Secured Parties, including filing and recording fees, expenses and taxes, stamp or
documentary taxes, search fees, title insurance premiums and



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reasonable fees, expenses and disbursements of counsel to each Agent and of counsel providing any
opinions that any Agent or Requisite Lenders reasonably may request in respect of the Collateral or
the Liens created pursuant to the Collateral Documents; (e) all the actual and reasonable costs and
fees, expenses and disbursements of any auditors, accountants, consultants or appraisers; (f) all
the actual and reasonable costs and expenses (including the reasonable fees, expenses and
disbursements of any appraisers, consultants, advisors and agents employed or retained by
Collateral Agent and its counsel) in connection with the custody or preservation of any of the
Collateral; (g) all other actual and reasonable costs and expenses incurred by each Agent in
connection with the syndication of the Loans and Commitments and the negotiation, preparation and
execution of the Credit Documents and any consents, amendments, waivers or other modifications
thereto and the transactions contemplated thereby; and (h) after the occurrence of a Default or an
Event of Default, all costs and expenses, including reasonable attorneys’ fees (including allocated
costs of internal counsel) and costs of settlement, incurred by any Agent and Lenders in enforcing
any Obligations of or in collecting any payments due from any Credit Party hereunder or under the
other Credit Documents by reason of such Default or Event of Default (including in connection with
the sale, lease or license of, collection from, or other realization upon any of the Collateral or
the enforcement of the Guaranty) or in connection with any refinancing or restructuring of the
credit arrangements provided hereunder in the nature of a “work out” or pursuant to any insolvency
or bankruptcy cases or proceedings.




     10.3 Indemnity.



          (a) In addition to the payment of expenses pursuant to Section 10.2, whether or not the
transactions contemplated hereby shall be consummated, each Credit Party agrees to defend (subject
to Indemnitees’ selection of counsel), indemnify, pay and hold harmless, each Agent and Lender and
the officers, partners, members, directors, trustees, advisors, employees, agents, sub-agents and
Affiliates of each Agent and each Lender (each, an “Indemnitee”), from and against any and all
Indemnified Liabilities; provided, no Credit Party shall have any obligation to any
Indemnitee hereunder with respect to any Indemnified Liabilities to the extent such Indemnified
Liabilities are determined by the final judgment of a court of competent jurisdiction to arise from
the gross negligence or willful misconduct of that Indemnitee. To the extent that the undertakings
to defend, indemnify, pay and hold harmless set forth in this Section 10.3 may be unenforceable in
whole or in part because they are violative of any law or public policy, the applicable Credit
Party shall contribute the maximum portion that it is permitted to pay and satisfy under applicable
law to the payment and satisfaction of all Indemnified Liabilities incurred by Indemnitees or any
of them.



          (b) To the extent permitted by applicable law, no Credit Party shall assert and each Credit
Party hereby waives, any claim against each Lender, each Agent and their respective Affiliates,
directors, trustees, employees, attorneys, agents or sub-agents, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or actual damages)
(whether or not the claim therefor is based on contract, tort or duty imposed by any applicable
legal requirement) arising out of, in connection with, arising out of, as a result of, or in any
way related to, this Agreement or any Credit Document or any agreement or instrument contemplated
hereby or thereby or referred to herein or therein, the transactions contemplated hereby or
thereby, any Loan or the use of the proceeds thereof or any act or



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omission or event occurring in connection therewith and Borrower hereby waives, releases and
agrees not to sue upon any such claim or any such damages, whether or not accrued and whether or
not known or suspected to exist in its favor.




     10.4 Set-Off. In addition to any rights now or hereafter granted under applicable law and not by way of
limitation of any such rights, upon the occurrence of any Event of Default each Lender is hereby
authorized by each Credit Party at any time or from time to time subject to the consent of
Administrative Agent (such consent not to be unreasonably withheld or delayed), without notice to
any Credit Party or to any other Person (other than Administrative Agent), any such notice being
hereby expressly waived, to set-off and to appropriate and to apply any and all deposits (general
or special, including Indebtedness evidenced by certificates of deposit, whether matured or
unmatured, but not including trust accounts) and any other Indebtedness at any time held or owing
by such Lender to or for the credit or the account of any Credit Party against and on account of
the obligations and liabilities of any Credit Party to such Lender hereunder, the Letters of Credit
and participations therein and under the other Credit Documents, including all claims of any nature
or description arising out of or connected hereto, the Letters of Credit and participations therein
or with any other Credit Document, irrespective of whether or not (a) such Lender shall have made
any demand hereunder or (b) the principal of or the interest on the Loans or any amounts in respect
of the Letters of Credit or any other amounts due hereunder shall have become due and payable
pursuant to Section 2 and although such obligations and liabilities, or any of them, may be
contingent or unmatured.



     10.5 Amendments and Waivers.



          (a) Requisite Lenders’ Consent. Subject to the additional requirements of Sections
10.5(b) and 10.5(c), no amendment, modification, termination or waiver of any provision of the
Credit Documents, or consent to any departure by any Credit Party therefrom, shall in any event be
effective without the written concurrence of the Requisite Lenders; provided that
Administrative Agent may, with the consent of Borrower only, amend, modify or supplement this
Agreement to cure any ambiguity, omission, defect or inconsistency, so long as such amendment,
modification or supplement does not adversely affect the rights of any Lender or Issuing Bank.



          (b) Affected Lenders’ Consent. Without the written consent of each Lender (other than
a Defaulting Lender) that would be affected thereby, no amendment, modification, termination, or
consent shall be effective if the effect thereof would:




     (i) extend the scheduled final maturity of any Loan or Note;




     (ii) waive, reduce or postpone any scheduled repayment (but not prepayment);




     (iii) extend the stated expiration date of any Letter of Credit beyond the Revolving
Commitment Termination Date;



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     (iv) reduce the rate of interest on any Loan (other than any waiver of any increase in
the interest rate applicable to any Loan pursuant to Section 2.10) or any fee payable
hereunder;




     (v) extend the time for payment of any such interest or fees;




     (vi) reduce the principal amount of any Loan or any reimbursement obligation in respect
of any Letter of Credit;




     (vii) amend, modify, terminate or waive any provision of Section 2.13(b)(ii), this
Section 10.5(b), Section 10.5(c) or any other provision of this Agreement that expressly
provides that the consent of all Lenders is required;




     (viii) amend the definition of “Requisite Lenders” or “Pro Rata Share”;
provided, with the consent of Requisite Lenders, additional extensions of credit
pursuant hereto may be included in the determination of “Requisite Lenders” or “Pro Rata
Share” on substantially the same basis as the Term Loan Commitments, the Term Loans, the
Revolving Commitments and the Revolving Loans are included on the Closing Date; or




     (ix) release all or substantially all of the Collateral or all or substantially all of
the Guarantors from the Guaranty except as expressly provided in the Credit Documents.



          (c) Other Consents. No amendment, modification, termination or waiver of any
provision of the Credit Documents, or consent to any departure by any Credit Party therefrom,
shall:




     (i) increase any Revolving Commitment of any Lender over the amount thereof then in
effect without the consent of such Lender; provided, no amendment, modification or
waiver of any condition precedent, covenant, Default or Event of Default shall constitute an
increase in any Revolving Commitment of any Lender;




     (ii) amend, modify, terminate or waive any provision hereof relating to the Swing Line
Sublimit or the Swing Line Loans without the consent of Swing Line Lender;




     (iii) alter the required application of any repayments or prepayments as between
Classes pursuant to Section 2.15 without the consent of Lenders holding more than 50% of the
aggregate Term Loan Exposure of all Lenders and Revolving Exposure of all Lenders, as
applicable, of each Class which is being allocated a lesser repayment or prepayment as a
result thereof; provided, Requisite Lenders may waive, in whole or in part, any
prepayment so long as the application, as between Classes, of any portion of such prepayment
which is still required to be made is not altered;



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     (iv) amend, modify, terminate or waive any obligation of Lenders relating to the
purchase of participations in Letters of Credit as provided in Section 2.4(e) without the
written consent of Administrative Agent and of Issuing Bank;




     (v) amend, modify or waive this Agreement or the Pledge and Security Agreement so as to
alter the ratable treatment of Obligations arising under the Credit Documents and
Obligations arising under Hedge Agreements or the definition of “Lender Counterparty”,
“Hedge Agreement”, “Obligations”, or “Secured Obligations” (as defined in any applicable
Collateral Document) in each case in a manner adverse to any Lender Counterparty with
Obligations then outstanding without the written consent of any such Lender Counterparty;




     (vi) amend, modify or waive this Agreement or the Pledge and Security Agreement so as
to alter the ratable treatment of Obligations arising under the Credit Documents and Cash
Management Obligations or the definition of “Cash Management Agreement”, “Cash Management
Obligations”, “Cash Management Provider”, “Cash Management Services”, “Obligations”, or
“Secured Obligations” (as defined in any applicable Collateral Document) in each case in a
manner adverse to any Cash Management Provider with Cash Management Obligations then
outstanding without the written consent of any such Cash Management Provider; or




     (vii) amend, modify, terminate or waive any provision of Section 9 as the same applies
to any Agent, or any other provision hereof as the same applies to the rights or obligations
of any Agent, in each case without the consent of such Agent.



          (d) Execution of Amendments, etc. Administrative Agent may, but shall have no
obligation to, with the concurrence of any Lender, execute amendments, modifications, waivers or
consents on behalf of such Lender. Any waiver or consent 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 Credit
Party in any case shall entitle any Credit Party to any other or further notice or demand in
similar or other circumstances. Any amendment, modification, termination, waiver or consent
effected in accordance with this Section 10.5 shall be binding upon each Lender at the time
outstanding, each future Lender and, if signed by a Credit Party, on such Credit Party.



     10.6 Successors and Assigns; Participations.



          (a) Generally. This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties hereto and the
successors and assigns of Lenders. No Credit Party’s rights or obligations hereunder nor any
interest therein may be assigned or delegated by any Credit Party without the prior written consent
of all Lenders. Nothing in this Agreement, expressed or implied, shall be construed to confer upon
any Person (other than the parties hereto, their respective successors and assigns permitted hereby
and, to the extent expressly contemplated hereby, Affiliates of each of the Agents and Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.



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          (b) Register. Borrower, Administrative Agent and Lenders shall deem and treat the
Persons listed as Lenders in the Register as the holders and owners of the corresponding
Commitments and Loans listed therein for all purposes hereof and no assignment or transfer of any
such Commitment or Loan shall be effective, in each case, unless and until recorded in the Register
following receipt of an Assignment Agreement effecting the assignment or transfer thereof, together
with the required forms and certificates regarding tax matters and any fees payable in connection
with such assignment, in each case, as provided in Section 10.6(d). Each assignment shall be
recorded in the Register on the Business Day the Assignment Agreement is received by Administrative
Agent, if received by 12:00 noon New York City time and on the following Business Day if received
after such time, prompt notice thereof shall be provided to Borrower and a copy of such Assignment
Agreement shall be maintained, as applicable. The date of such recordation of a transfer shall be
referred to herein as the “Assignment Effective Date”. Any request, authority or consent of any
Person who, at the time of making such request or giving such authority or consent, is listed in
the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or
transferee of the corresponding Commitments or Loans.



          (c) Right to Assign. Each Lender shall have the right at any time to sell, assign or
transfer all or a portion of its rights and obligations under this Agreement, including all or a
portion of its Commitment or Loans owing to it or other Obligations (provided, however,
that pro rata assignments shall not be required and each assignment shall be of a uniform and not
varying percentage of all rights and obligations under and in respect of any applicable Loan and
any related Commitments):




     (i) to any Person meeting the criteria of clause (i) of the definition of the term of
“Eligible Assignee” upon the giving of notice to Borrower and Administrative Agent; and




     (ii) to any Person meeting the criteria of clause (ii) of the definition of the term of
“Eligible Assignee” upon giving of notice to Borrower and Administrative Agent and, except
in the case of assignments made by or to GSCP, consented to by each of Borrower and
Administrative Agent (such consent not to be (x) unreasonably withheld or delayed or, (y) in
the case of Borrower, required at any time an Event of Default shall have occurred and then
be continuing); provided, each such assignment pursuant to this Section 10.6(c)(ii)
shall be in an aggregate amount of not less than $2,500,000 (or such lesser amount as may be
agreed to by Borrower and Administrative Agent or as shall constitute the aggregate amount
of the Term Loans, Revolving Commitments and Revolving Loans of the respective assigning
Lender).



          (d) Mechanics. Assignments and assumptions of Loans and Commitments by Lenders shall
be effected by manual execution and delivery to Administrative Agent of an Assignment Agreement.
Assignments made pursuant to the foregoing provision shall be effective as of the Assignment
Effective Date. In connection with all assignments there shall be delivered to Administrative
Agent such forms, certificates or other evidence, if any, with respect to United States federal
income tax withholding matters as the assignee under such Assignment Agreement may be required to
deliver pursuant to Section 2.20(c), together with payment to the Administrative Agent by the
parties to such assignment of a registration and



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processing fee of $3,500 (except that no such registration and processing fee shall be payable
(y) in connection with an assignment by or to GSCP or any Affiliate thereof or (z) in the case of
an Assignee which is already a Lender or is an affiliate or Related Fund of a Lender or a Person
under common management with a Lender).




          (e) Representations and Warranties of Assignee. Each Lender, upon execution and
delivery hereof or upon succeeding to an interest in the Commitments and Loans, as the case may be,
represents and warrants as of the Closing Date or as of the Assignment Effective Date that (i) it
is an Eligible Assignee; (ii) it has experience and expertise in the making of or investing in
commitments or loans such as the applicable Commitments or Loans, as the case may be; and (iii) it
will make or invest in, as the case may be, its Commitments or Loans for its own account in the
ordinary course and without a view to distribution of such Commitments or Loans within the meaning
of the Securities Act or the Exchange Act or other federal securities laws (it being understood
that, subject to the provisions of this Section 10.6, the disposition of such Commitments or Loans
or any interests therein shall at all times remain within its exclusive control).



          (f) Effect of Assignment. Subject to the terms and conditions of this Section 10.6,
as of the “Assignment Effective Date” (i) the assignee thereunder shall have the rights and
obligations of a “Lender” hereunder to the extent of its interest in the Loans and Commitments as
reflected in the Register and shall thereafter be a party hereto and a “Lender” for all purposes
hereof; (ii) the assigning Lender thereunder shall, to the extent that rights and obligations
hereunder have been assigned to the assignee, relinquish its rights (other than any rights which
survive the termination hereof under Section 10.8) and be released from its obligations hereunder
(and, in the case of an assignment covering all or the remaining portion of an assigning Lender’s
rights and obligations hereunder, such Lender shall cease to be a party hereto on the Assignment
Effective Date; provided, anything contained in any of the Credit Documents to the contrary
notwithstanding, (y) Issuing Bank shall continue to have all rights and obligations thereof with
respect to such Letters of Credit until the cancellation or expiration of such Letters of Credit
and the reimbursement of any amounts drawn thereunder and (z) such assigning Lender shall continue
to be entitled to the benefit of all indemnities hereunder as specified herein with respect to
matters arising out of the prior involvement of such assigning Lender as a Lender hereunder); (iii)
the Commitments shall be modified to reflect any Commitment of such assignee and any Revolving
Commitment of such assigning Lender, if any; and (iv) if any such assignment occurs after the
issuance of any Note hereunder, the assigning Lender shall, upon the effectiveness of such
assignment or as promptly thereafter as practicable, surrender its applicable Notes to
Administrative Agent for cancellation and thereupon Borrower shall issue and deliver new Notes, if
so requested by the assignee and/or assigning Lender, to such assignee and/or to such assigning
Lender, with appropriate insertions, to reflect the new Revolving Commitments and/or outstanding
Loans of the assignee and/or the assigning Lender.



          (g) Participations.




     (i) Each Lender shall have the right at any time to sell one or more participations to
any Person (other than Borrower, any of its Subsidiaries or any of its Affiliates) in all or
any part of its Commitments, Loans or in any other Obligation.



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     (ii) The holder of any such participation, other than an Affiliate of the Lender
granting such participation, shall not be entitled to require such Lender to take or omit to
take any action hereunder except with respect to any amendment, modification or waiver that
would (A) extend the final scheduled maturity of any Loan, Note or Letter of Credit (unless
such Letter of Credit is not extended beyond the Revolving Commitment Termination Date) in
which such participant is participating, or reduce the rate or extend the time of payment of
interest or fees thereon (except in connection with a waiver of applicability of any post
default increase in interest rates) or reduce the principal amount thereof, or increase the
amount of the participant’s participation over the amount thereof then in effect (it being
understood that a waiver of any Default or Event of Default or of a mandatory reduction in
the Commitment shall not constitute a change in the terms of such participation and that an
increase in any Commitment or Loan shall be permitted without the consent of any participant
if the participant’s participation is not increased as a result thereof), (B) consent to the
assignment or transfer by any Credit Party of any of its rights and obligations under this
Agreement or (C) release all or substantially all of the Collateral under the Collateral
Documents (except as expressly provided in the Credit Documents) supporting the Loans
hereunder in which such participant is participating.




     (iii) Borrower agrees that each participant shall be entitled to the benefits of
Sections 2.18(c), 2.19 and 2.20 to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to paragraph (c) of this Section; provided, (x)
a participant shall not be entitled to receive any greater payment under Section 2.19 or
2.20 than the applicable Lender would have been entitled to receive with respect to the
participation sold to such participant, unless the sale of the participation to such
participant is made with Borrower’s prior written consent and (y) a participant that would
be a Non-US Lender if it were a Lender shall not be entitled to the benefits of Section 2.20
unless Borrower is notified of the participation sold to such participant and such
participant agrees, for the benefit of Borrower, to comply with Section 2.20 as though it
were a Lender; provided further that, except as specifically set forth in
clauses (x) and (y) of this sentence, nothing herein shall require any notice to Borrower or
any other Person in connection with the sale of any participation. To the extent permitted
by law, each participant also shall be entitled to the benefits of Section 10.4 as though it
were a Lender, provided such Participant agrees to be subject to Section 2.17 as
though it were a Lender.



          (h) Certain Other Assignments and Participations. In addition to any other assignment
or participation permitted pursuant to this Section 10.6 any Lender may assign and/or pledge all or
any portion of its Loans, the other Obligations owed by or to such Lender and its Notes, if any, to
secure obligations of such Lender including any Federal Reserve Bank as collateral security
pursuant to Regulation A of the Board of Governors and any operating circular issued by such
Federal Reserve Bank; provided, that no Lender, as between Borrower and such Lender, shall
be relieved of any of its obligations hereunder as a result of any such assignment and pledge and
provided further, that in no event shall the applicable Federal Reserve Bank,
pledgee or trustee, be considered to be a “Lender” or be entitled to require the assigning Lender
to take or omit to take any action hereunder.



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     10.7 Independence of Covenants. All covenants hereunder shall be given independent effect so that if a
particular action or condition is not permitted by any of such covenants, the fact that it would be
permitted by an exception to, or would otherwise be within the limitations of, another covenant
shall not avoid the occurrence of a Default or an Event of Default if such action is taken or
condition exists.



     10.8 Survival of Representations, Warranties and Agreements. All representations, warranties and
agreements made herein shall survive the execution and delivery hereof and the making of any Credit
Extension. Notwithstanding anything herein or implied by law to the contrary, the agreements of
each Credit Party set forth in Sections 2.18(c), 2.19, 2.20, 10.2, 10.3 and 10.4 and the agreements
of Lenders set forth in Sections 2.17, 9.3(b) and 9.6 shall survive the payment of the Loans, the
cancellation or expiration of the Letters of Credit and the reimbursement of any amounts drawn
thereunder and the termination hereof.



     10.9 No Waiver; Remedies Cumulative. No failure or delay on the part of any Agent or any Lender in the
exercise of any power, right or privilege hereunder or under any other Credit Document shall impair
such power, right or privilege or be construed to be a waiver of any default or acquiescence
therein, nor shall any single or partial exercise of any such power, right or privilege preclude
other or further exercise thereof or of any other power, right or privilege. The rights, powers
and remedies given to each Agent and each Lender hereby are cumulative and shall be in addition to
and independent of all rights, powers and remedies existing by virtue of any statute or rule of law
or in any of the other Credit Documents or any of the Hedge Agreements. Any forbearance or failure
to exercise and any delay in exercising, any right, power or remedy hereunder shall not impair any
such right, power or remedy or be construed to be a waiver thereof, nor shall it preclude the
further exercise of any such right, power or remedy.



     10.10 Marshalling; Payments Set Aside. Neither any Agent nor any Lender shall be under any obligation to
marshal any assets in favor of any Credit Party or any other Person or against or in payment of any
or all of the Obligations. To the extent that any Credit Party makes a payment or payments to
Administrative Agent or Lenders (or to Administrative Agent, on behalf of Lenders), or any Agent or
Lenders enforce any security interests or exercise their rights of setoff and such payment or
payments or the proceeds of such enforcement or setoff or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a
trustee, receiver or any other party under any bankruptcy law, any other state or federal law,
common law or any equitable cause, then, to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied and all Liens, rights and remedies therefor or related
thereto, shall be revived and continued in full force and effect as if such payment or payments had
not been made or such enforcement or setoff had not occurred.



     10.11 Severability. In case any provision in or obligation hereunder or under any other Credit Document
shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or of such provision or obligation in
any other jurisdiction, shall not in any way be affected or impaired thereby.



     10.12 Obligations Several; Independent Nature of Lenders’ Rights. The obligations of Lenders hereunder
are several, and no Lender shall be responsible for the obligations or



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Commitment of any other Lender hereunder. Nothing contained herein or in any other Credit Document
and no action taken by Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as
a partnership, an association, a joint venture or any other kind of entity. The amounts payable at
any time hereunder to each Lender shall be a separate and independent debt and each Lender shall be
entitled to protect and enforce its rights arising out hereof and it shall not be necessary for any
other Lender to be joined as an additional party in any proceeding for such purpose.




     10.13 Headings. Section headings herein are included herein for convenience of reference only and shall
not constitute a part hereof for any other purpose or be given any substantive effect.



     10.14 APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.



     10.15 CONSENT TO JURISDICTION. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY CREDIT PARTY ARISING OUT OF
OR RELATING HERETO OR ANY OTHER CREDIT DOCUMENT, OR ANY OF THE OBLIGATIONS, MAY BE BROUGHT IN ANY
STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY
EXECUTING AND DELIVERING THIS AGREEMENT, EACH CREDIT PARTY, FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, IRREVOCABLY (A) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND
VENUE OF SUCH COURTS; (B) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (C) AGREES THAT SERVICE OF
ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL,
RETURN RECEIPT REQUESTED, TO THE APPLICABLE CREDIT PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH
SECTION 10.1; (D) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (C) ABOVE IS SUFFICIENT TO CONFER
PERSONAL JURISDICTION OVER THE APPLICABLE CREDIT PARTY IN ANY SUCH PROCEEDING IN ANY SUCH COURT AND
OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (E) AGREES THAT AGENTS
AND LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING
PROCEEDINGS AGAINST ANY CREDIT PARTY IN THE COURTS OF ANY OTHER JURISDICTION.



     10.16 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE
OTHER CREDIT DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN
TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS
WAIVER IS INTENDED TO BE ALL-



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ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT
MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL
OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A
MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS
WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS
RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED
THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL
RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY
REFERRING TO THIS SECTION 10.16 AND EXECUTED BY EACH OF THE PARTIES HERETO) AND THIS WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE
OTHER CREDIT DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE
HEREUNDER. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL
BY THE COURT.




     10.17 Confidentiality. Each Agent and each Lender (which term shall for the purposes of this Section
10.17 include the Issuing Bank) shall hold all non-public information regarding Borrower and its
Subsidiaries and their businesses identified as such by Borrower and obtained by such Lender
pursuant to the requirements hereof in accordance with such Lender’s customary procedures for
handling confidential information of such nature, it being understood and agreed by Borrower that,
in any event, each Agent and each Lender may make (i) disclosures of such information to Affiliates
of such Lender or Agent and to their respective agents and advisors (and to other Persons
authorized by a Lender or Agent to organize, present or disseminate such information in connection
with disclosures otherwise made in accordance with this Section 10.17 (provided, such
agents and advisors are advised of and agree to be bound by either the provisions of this Section
10.17 or other provisions at least as restrictive as this Section 10.17)), (ii) disclosures of such
information reasonably required by any bona fide or potential assignee, transferee or participant
in connection with the contemplated assignment, transfer or participation of any Loans or any
participations therein or by any direct or indirect contractual counterparties (or the professional
advisors thereto) to any Cash Management Agreement or to any swap or derivative transaction
relating to Borrower and its obligations (provided, such assignees, transferees,
participants, counterparties and advisors are advised of and agree to be bound by either the
provisions of this Section 10.17 or other provisions at least as restrictive as this Section
10.17), (iii) disclosure to any rating agency when required by it in connection with the rating of
the Credit Partners or their obligations, provided that, prior to any disclosure, such
rating agency shall undertake in writing to preserve the confidentiality of any confidential
information relating to the Credit Parties received by it from any of the Agents or any Lender,
(iv) disclosures in connection with the exercise of any remedies hereunder or under any other
Credit Document and (v) disclosures required or requested by any governmental agency or
representative thereof or by the NAIC or pursuant to legal or judicial process; provided
that



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unless specifically prohibited by applicable law or court order, each Lender and each Agent shall
make reasonable efforts to notify Borrower of any request by any governmental agency or
representative thereof (other than any such request in connection with any examination of the
financial condition or other routine examination of such Lender by such governmental agency) for
disclosure of any such non-public information prior to disclosure of such information. In
addition, each Agent and each Lender may disclose the existence of this Agreement and the
information about this Agreement to market data collectors, similar services providers to the
lending industry and service providers to the Agents and the Lenders in connection with the
administration and management of this Agreement and the other Credit Documents. Notwithstanding
anything to the contrary set forth herein or in any other agreement to which the parties hereto are
parties or by which they are bound, any obligations of confidentiality contained herein and
therein, as they related to the transactions contemplated by this Agreement (the “Loan
Transactions”), shall not apply to the federal tax structure or federal tax treatment of the Loan
Transactions, and each party hereto (and any employee, representative, or agent of any party
hereto) may disclose to any and all persons, without limitation of any kind, the federal tax
structure and federal tax treatment of the Loan Transactions. The preceding sentence is intended
to cause the Loan Transactions not to be treated as having been offered under conditions of
confidentiality for purposes of Section 1.6011-4(b)(3) (or any successor provision) of the Treasury
regulations promulgated under Section 6011 of the Internal Revenue Code and shall be construed in a
manner consistent with such purpose. In addition, each party hereto acknowledges that it has no
proprietary or exclusive rights to any tax concept, tax matter or tax idea related to the Loan
Transactions.




     10.18 Usury Savings Clause. Notwithstanding any other provision herein, the aggregate interest rate
charged with respect to any of the Obligations, including all charges or fees in connection
therewith deemed in the nature of interest under applicable law shall not exceed the Highest Lawful
Rate. If the rate of interest (determined without regard to the preceding sentence) under this
Agreement at any time exceeds the Highest Lawful Rate, the outstanding amount of the Loans made
hereunder shall bear interest at the Highest Lawful Rate until the total amount of interest due
hereunder equals the amount of interest which would have been due hereunder if the stated rates of
interest set forth in this Agreement had at all times been in effect. In addition, if when the
Loans made hereunder are repaid in full the total interest due hereunder (taking into account the
increase provided for above) is less than the total amount of interest which would have been due
hereunder if the stated rates of interest set forth in this Agreement had at all times been in
effect, then to the extent permitted by law, Borrower shall pay to Administrative Agent an amount
equal to the difference between the amount of interest paid and the amount of interest which would
have been paid if the Highest Lawful Rate had at all times been in effect. Notwithstanding the
foregoing, it is the intention of Lenders and Borrower to conform strictly to any applicable usury
laws. Accordingly, if any Lender contracts for, charges, or receives any consideration which
constitutes interest in excess of the Highest Lawful Rate, then any such excess shall be cancelled
automatically and, if previously paid, shall at such Lender’s option be applied to the outstanding
amount of the Loans made hereunder or be refunded to Borrower.



     10.19 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts together shall
constitute but one and the same instrument.



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     10.20 Effectiveness. This Agreement shall become effective upon the execution of a counterpart hereof by
each of the parties hereto and receipt by Borrower and Administrative Agent of written or
telephonic notification of such execution and authorization of delivery thereof.



     10.21 Patriot Act. Each Lender and Administrative Agent (for itself and not on behalf of any Lender)
hereby notifies each Credit Party that pursuant to the requirements of the Patriot Act, it is
required to obtain, verify and record information that identifies each Credit Party, which
information includes the name and address of each Credit Party and other information that will
allow such Lender or Administrative Agent, as applicable, to identify such Credit Party in
accordance with the Patriot Act.



     10.22 Electronic Execution of Assignments. The words “execution,” “signed,” “signature,” and words of
like import in any Assignment Agreement shall be deemed to include electronic signatures or the
keeping of records in electronic form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based recordkeeping system,
as the case may be, to the extent and as provided for in any applicable law, including the Federal
Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures
and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.



     10.23 No Fiduciary Duty. Each Agent, each Lender and their Affiliates (collectively, solely for purposes
of this paragraph, the “Lenders”), may have economic interests that conflict with those of
Borrower. Borrower agrees that nothing in the Credit Documents or otherwise will be deemed to
create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between the
Lenders and Borrower, its stockholders or its affiliates. Borrower acknowledges and agrees that
(i) the transactions contemplated by the Credit Documents are arm’s-length commercial transactions
between the Lenders, on the one hand and Borrower, on the other, (ii) in connection therewith and
with the process leading to such transaction each of the Lenders is acting solely as a principal
and not the agent or fiduciary of Borrower, its management, stockholders, creditors or any other
person, (iii) no Lender has assumed an advisory or fiduciary responsibility in favor of Borrower
with respect to the transactions contemplated hereby or the process leading thereto (irrespective
of whether any Lender or any of its affiliates has advised or is currently advising Borrower on
other matters) or any other obligation to Borrower except the obligations expressly set forth in
the Credit Documents and (iv) Borrower has consulted its own legal and financial advisors to the
extent it deemed appropriate. Borrower further acknowledges and agrees that it is responsible for
making its own independent judgment with respect to such transactions and the process leading
thereto. Borrower agrees that it will not claim that any Lender has rendered advisory services of
any nature or respect, or owes a fiduciary or similar duty to Borrower, in connection with such
transaction or the process leading thereto.



     10.24 Lender Action. Each Lender agrees that it shall not take or institute any actions or proceedings,
judicial or otherwise, for any right or remedy against any Credit Party or any other obligor under
any of the Credit Documents (including the exercise of any right of setoff, rights on account of
any banker’s lien or similar claim or other rights of self-help), or institute any actions or
proceedings, or otherwise commence any remedial procedures, with respect to any



134









 




Collateral or any other property of any such Credit Party, unless expressly provided for herein or
in any other Credit Document, without the prior written consent of the Administrative Agent. The
provisions of this Section 10.24 are for the sole benefit of the Lenders and shall not afford any
right to, or constitute a defense available to, any Credit Party.




[Remainder of page intentionally left blank]








135









 





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



	 	 	 	 	 
	 	HEALTHSPRING, INC.

 	 
	 	By:  	/s/ Kevin
M. McNamara	 
	 	 	Name:  	Kevin M. McNamara	 
	 	 	Title:  	Executive Vice President, Chief Financial
Officer, and Treasurer	 



136









 






	 	 	 	 	 



GULFQUEST, L.P.




HEALTHSPRING EMPLOYER

SERVICES, INC.




HEALTHSPRING MANAGEMENT, INC.




HEALTHSPRING MANAGEMENT OF AMERICA, LLC




HEALTHSPRING USA, LLC




HOUQUEST, L.L.C.




NEWQUEST, LLC




NEWQUEST MANAGEMENT OF

ALABAMA, LLC




NEWQUEST MANAGEMENT OF

FLORIDA, LLC




NEWQUEST MANAGEMENT OF

ILLINOIS, LLC




SIGNATURE HEALTH ALLIANCE, INC.




TENNESSEE QUEST, LLC




TEXQUEST, L.L.C.




	 	 	 	 	 
	 	 	 
	 	By:  	
/s/ Kevin M. McNamara	 
	 	 	Name:  	Kevin M. McNamara	 
	 	 	Title:  	Executive Vice President, Chief Financial
Officer, and Treasurer	 



137









 






	 	 	 	 	 



	 	 	 	 	 
	 	GOLDMAN SACHS CREDIT PARTNERS L.P.,

as Administrative Agent, Collateral Agent, Lead

Arranger and a Lender

 	 
	 	By:  	/s/ Walter
A. Jackson	 
	 	 	Authorized Signatory 	 
	 	 	 	 



138









 






	 	 	 	 	 



	 	 	 	 	 
	 	BANK OF AMERICA, N.A.

as Co-Syndication Agent and a Lender

 	 
	 	By:  	/s/ Suzanne
B. Smith	 
	 	 	Name:  	Suzanne B. Smith	 
	 	 	Title:  	Senior Vice President	 



139









 






	 	 	 	 	 



	 	 	 	 	 
	 	CITIBANK, N.A.,

as Co-Syndication Agent, Issuing Bank, Swing Line

Lender and a Lender

 	 
	 	By:  	/s/ Sarah
Willett	 
	 	 	Name:  	Sarah Willett	 
	 	 	Title:  	Vice President	 



140









 






	 	 	 	 	 



	 	 	 	 	 
	 	UBS SECURITIES LLC

as Co-Syndication Agent

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



	 	 	 	 	 
	 	 	 
	 	By:  	
/s/ Marie Haddand	 
	 	 	Name:  	Marie Haddad	 
	 	 	Title:  	Associate Director	 



141









 






	 	 	 	 	 



	 	 	 	 	 
	 	WACHOVIA BANK, N.A.,

a Lender

 	 
	 	By:  	/s/ Bradford
Vieira	 
	 	 	Name:  	Bradford Vieira	 
	 	 	Title:  	Vice President	 



142









 






	 	 	 	 	 



	 	 	 	 	 
	 	FIFTH THIRD BANK,

as a Lender

 	 
	 	By:  	/s/ John
Stringfield	 
	 	 	Name:  	John Stringfield	 
	 	 	Title:  	Vice President	 



143









 






	 	 	 	 	 



	 	 	 	 	 
	 	RAYMOND JAMES BANK, FSB,

as a Lender

 	 
	 	By:  	/s/ Steven
F. Paley	 
	 	 	Name:  	Steven F. Paley	 
	 	 	Title:  	Vice President	 



144









 






	 	 	 	 	 



	 	 	 	 	 
	 	AMEGY BANK NATIONAL ASSOCIATION,

as a Lender

 	 
	 	By:  	/s/ Howard
Schram	 
	 	 	Name:  	Howard Schram	 
	 	 	Title:  	Senior Vice President	 



145









 






	 	 	 	 	 



	 	 	 	 	 
	 	U.S. BANK, NA.,

as a Lender

 	 
	 	By:  	/s/ Thomas
A. Heckman	 
	 	 	Name:  	Thomas A. Heckman	 
	 	 	Title:  	Vice President	 



146









 






	 	 	 	 	 



	 	 	 	 	 
	 	FIRST TENNESSEE BANK, NA

as a Lender

 	 
	 	By:  	/s/ Kenneth
H. Barbarich	 
	 	 	Name:  	Kenneth H. Barbarich	 
	 	 	Title:  	Senior Vice President	 



147









 






	 	 	 	 	 



	 	 	 	 	 
	 	LASALLE BANK NATIONAL ASSOCIATION,

as a Lender

 	 
	 	By:  	/s/ Kristen
L. Heron	 
	 	 	Name:  	Kristen L. Heron	 
	 	 	Title:  	Vice President	 



148









 






	 	 	 	 	 



	 	 	 	 	 
	 	REGIONS BANK,

as a Lender

 	 
	 	By:  	/s/ Steven
Bosshardt, on behalf of Craig Gardella	 
	 	 	Name:  	Steven Bosshardt, on behalf of Craig Gardella	 
	 	 	Title:  	Banking Officer	 



149









 






	 	 	 	 	 



	 	 	 	 	 
	 	SUNTRUST BANK,

as a Lender

 	 
	 	By:  	/s/ John
W. Teasley	 
	 	 	Name:  	John W. Teasley	 
	 	 	Title:  	Director	 



150









 






	 	 	 	 	 



	 	 	 	 	 
	 	UBS Loan Finance LLC,

as a Lender

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



	 	 	 	 	 
	 	 	 
	 	By:  	
/s/ Irja R. Otsa	 
	 	 	Name:  	Irja R. Otsa	 
	 	 	Title:  	Associate Director	 



151









 






	 	 	 	 	 



APPENDIX A-1

TO CREDIT AND GUARANTY AGREEMENT




Term Loan Commitments




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Pro
	Lender	 	Term Loan Commitment	 	Rata Share
	Goldman Sachs Credit Partners L.P.

	 	$	22,500,000	 	 	 	7.50	%
	Citibank, N.A.

	 	$	30,000,000	 	 	 	10.0	%
	UBS Loan Finance LLC

	 	$	22,500,000	 	 	 	7.50	%
	Bank of America, N.A.

	 	$	26,250,000	 	 	 	8.75	%
	Wachovia Bank, N.A.

	 	$	30,000,000	 	 	 	10.0	%
	Fifth Third Bank

	 	$	30,000,000	 	 	 	10.0	%
	Raymond James Bank, FSB

	 	$	30,000,000	 	 	 	10.0	%
	Amegy Bank National Association

	 	$	22,500,000	 	 	 	7.50	%
	U.S. Bank, N.A.

	 	$	22,500,000	 	 	 	7.50	%
	SunTrust Bank

	 	$	18,750,000	 	 	 	6.25	%
	LaSalle Bank National Association

	 	$	18,750,000	 	 	 	6.25	%
	Regions Bank

	 	$	15,000,000	 	 	 	5.00	%
	First Tennessee Bank, N.A.

	 	$	11,250,000	 	 	 	3.75	%
	Total

	 	$	300,000,000	 	 	 	100.0	%






APPENDIX A-1-1









 






APPENDIX A-2

TO CREDIT AND GUARANTY AGREEMENT




Revolving Commitments




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Pro
	Lender	 	Revolving Commitment	 	Rata Share
	Goldman Sachs Credit Partners L.P.

	 	$	7,500,000	 	 	 	7.50	%
	Citibank, N.A.

	 	$	10,000,000	 	 	 	10.0	%
	UBS Loan Finance LLC

	 	$	7,500,000	 	 	 	7.50	%
	Bank of America, N.A.

	 	$	8,750,000	 	 	 	8.75	%
	Wachovia Bank, N.A.

	 	$	10,000,000	 	 	 	10.0	%
	Fifth Third Bank

	 	$	10,000,000	 	 	 	10.0	%
	Raymond James Bank, FSB

	 	$	10,000,000	 	 	 	10.0	%
	Amegy Bank National Association

	 	$	7,500,000	 	 	 	7.50	%
	U.S. Bank, N.A.

	 	$	7,500,000	 	 	 	7.50	%
	SunTrust Bank

	 	$	6,250,000	 	 	 	6.25	%
	LaSalle Bank National Association

	 	$	6,250,000	 	 	 	6.25	%
	Regions Bank

	 	$	5,000,000	 	 	 	5.00	%
	First Tennessee Bank, N.A.

	 	$	3,750,000	 	 	 	3.75	%
	Total

	 	$	100,000,000	 	 	 	100.0	%






APPENDIX A-2-1









 






APPENDIX B

TO CREDIT AND GUARANTY AGREEMENT




Notice Addresses




HEALTHSPRING, INC.



9009 Carothers Parkway

Suite 501

Franklin, TN 37067

Attention: Chief Financial Officer

Facsimile: (615) 401-4566



in each case, with a copy (which shall not constitute notice) to:



Bass, Berry & Sims PLC

315 Deaderick Street, Suite 2700

Nashville, TN 37238

Attention: J. James Jenkins, Jr.

Facsimile: (615) 742-2736




APPENDIX B-1









 







GOLDMAN SACHS CREDIT PARTNERS L.P.,

Principal Office, Administrative Agent, Collateral Agent, Lead Arranger and as a Lender



Goldman Sachs Credit Partners L.P.

c/o Goldman, Sachs & Co.

30 Hudson Street, 17th Floor

Jersey City, NJ 07302

Attention: SBD Operations

Attention: Pedro Ramirez

Telecopier: (212) 357-4597

Email and for delivery of final financial statements for posting: gsd.link@gs.com



with a copy to:



Goldman Sachs Credit Partners L.P.

1 New York Plaza

New York, New York 10004

Attention: Elizabeth Fischer/Rob Schatzman

Telecopier: (212) 902-3000




APPENDIX B-2









 







BANK OF AMERICA, N.A.,

as Co-Syndication Agent and a Lender



Suzanne B. Smith

414, Union St., Nashville, TN 37219

TN1-100-04-17

Attention: 615-749-3818

Facsimile: 615-749-4951



with a copy to:



Gail Banasiak

414, Union St., Nashville, TN 37219

TN1-100-04-17

Attention: 615-749-4607

Facsimile: 615-749-4951




APPENDIX B-3









 







CITIBANK, N.A.,

as Co-Syndication Agent, Issuing Bank, Swing Line Lender and a Lender



Swing Line Lender’s Principal Office:



399 Park Ave.

16th Floor

New York, NY 10043

Attention: Lauren Wendolowski

Facsimile: 212-994-0847



Issuing Bank’s Principal Office:



Citibank, N.A., C/O it’s Servicer, Citicorp North America, Inc.

3800 Citibank Center, Bldg. B, 3rd Floor

Tampa, FL 33610

Attention: Standby Letter of Credit Dept.

Facsimile: 1-813-604-7187



in each case, with a copy to:



Citibank, N.A.

Attention: Lauren Wendolowski

Facsimile: 212-994-0847




APPENDIX B-4









 







UBS SECURITIES LLC,

as Co-Syndication Agent



677 Washington Blvd.

Stamford, CT 06901



Attention: Brian Gross

Facsimile: 203-719-3888



with a copy to:



677 Washington Blvd.

Stamford, CT 06901



Attention: Frank Luzzi

Facsimile: 203-719-3888





APPENDIX B-5









 







WACHOVIA BANK, N.A.,

as Documentation Agent and a Lender



230 4th Avenue North, 8th Floor

Nashville, TN 37219

Attention: Bradford Vieira, 615-525-2394

Facsimile: 615-525-2399




APPENDIX B-6









 







FIFTH THIRD BANK,

as Senior Managing Agent and a Lender



Sandy Hamrick

424 Church Street

Nashville, TN 37221

Facsimile: 615-687-3067



with a copy to:



John Stringfield

424 Church Street

Nashville, TN 37221

Facsimile: 615-687-3067




APPENDIX B-7









 







RAYMOND JAMES BANK, FSB,

as Senior Managing Agent and a Lender



Raymond James Bank

710 Carillon Parkway

St. Petersburg, FL 33716

Attention: Steven F. Paley, VP

Telephone: 727-567-1720

Facsimile: 727-567-8830




APPENDIX B-8









 







AMEGY BANK NATIONAL ASSOCIATION,

as Senior Managing Agent and a Lender



Howard Schramm

4400 Post Oak Parkway, Houston, TX 77027

713-232-1434 (t) 713-561-0744

Attention: Dana Chargois

Facsimile: 713-693-7467




APPENDIX B-9









 







U.S. BANK, N.A.,

as Senior Managing Agent and a Lender



150 4th Ave. North, 3rd Floor

Nashville, TN 37219

615-251-9214

Attention: Thomas A. Heckman

Facsimile: 615-251-0729




APPENDIX B-10









 







FIRST TENNESSEE BANK, NA,

as a Lender



First Tennessee Bank

511 Union St FL 3

Nashville, TN 37219-1736

Attention: Corey Napier

Facsimile: (615) 734-6117




APPENDIX B-11









 







LASALLE BANK NATIONAL ASSOCIATION,

as a Lender



135 S. LaSalle Street, Suite 826

Chicago, IL 60603

Attention: Kristen L. Heron

Phone: (312) 992-3873

Facsimile: (312) 904-6457



with a copy to:



135 S. LaSalle Street, Suite 826

Chicago, IL 60603

Attention: Bill Verven

Phone: (312) 904-9011

Facsimile: (312) 904-6373




APPENDIX B-12









 







REGIONS BANK,

as a Lender



315 Deaderick Street

Nashville, TN 37237

Attention: Craig Gardella

Facsimile: 615-748-8480




APPENDIX B-13









 







SUNTRUST BANK,

as a Lender



201 Fourth Ave. N., 3rd Floor

Nashville, TN 37219

(615) 748-4555

Attention: Audrey Soskin

Facsimile: (615) 748-5269




APPENDIX B-14









 







UBS LOAN FINANCE LLC,

as a Lender



677 Washington Blvd.

Stamford, CT 06901

Attention: Brian Gross

Facsimile: 203-719-3888



with a copy to:



677 Washington Blvd.

Stamford, CT 06901

Attention: Frank Luzzi

Facsimile: 203-719-3888





APPENDIX B-15