exv10w1



 






Exhibit 10.1


CREDIT AGREEMENT




dated as of August 7, 2006




among




USP DOMESTIC HOLDINGS, INC.,



as Borrower,




THE LENDERS FROM TIME TO TIME PARTY HERETO,




BEAR STEARNS CORPORATE LENDING INC.,



as Administrative Agent,




and




SUNTRUST BANK,



as Collateral Agent and Documentation Agent




 





BEAR, STEARNS & CO. INC. and SUNTRUST CAPITAL MARKETS, INC.,



as Joint Lead Arrangers




and




BEAR, STEARNS & CO. INC., as sole bookrunner















 







TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Page	 
	ARTICLE I DEFINITIONS; CONSTRUCTION	 	 	1	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 
	 	 	 	 	Section 1.1	 	Definitions
	 	 	1	 
	 	 	 	 	Section 1.2	 	Classifications of Term Loans and Borrowings
	 	 	19	 
	 	 	 	 	Section 1.3	 	Accounting Terms and Determination
	 	 	19	 
	 	 	 	 	Section 1.4	 	Terms Generally
	 	 	20	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 
	ARTICLE II AMOUNT AND TERMS OF THE TERM FACILITY	 	 	20	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 
	 	 	 	 	Section 2.1	 	General Description of Term Facility
	 	 	20	 
	 	 	 	 	Section 2.2	 	Term Loans
	 	 	20	 
	 	 	 	 	Section 2.3	 	Funding of Term Loans
	 	 	21	 
	 	 	 	 	Section 2.4	 	Interest Elections
	 	 	21	 
	 	 	 	 	Section 2.5	 	Repayment of Term Loans
	 	 	22	 
	 	 	 	 	Section 2.6	 	Evidence of Indebtedness
	 	 	22	 
	 	 	 	 	Section 2.7	 	Prepayments
	 	 	23	 
	 	 	 	 	Section 2.8	 	Interest on Term Loans
	 	 	25	 
	 	 	 	 	Section 2.9	 	Fees
	 	 	26	 
	 	 	 	 	Section 2.10	 	Computation of Interest and Fees
	 	 	26	 
	 	 	 	 	Section 2.11	 	Inability to Determine Interest Rates
	 	 	26	 
	 	 	 	 	Section 2.12	 	Illegality
	 	 	27	 
	 	 	 	 	Section 2.13	 	Increased Costs
	 	 	27	 
	 	 	 	 	Section 2.14	 	Funding Indemnity
	 	 	28	 
	 	 	 	 	Section 2.15	 	Taxes
	 	 	28	 
	 	 	 	 	Section 2.16	 	Payments Generally; Pro Rata Treatment; Sharing of Set-Offs
	 	 	30	 
	 	 	 	 	Section 2.17	 	Mitigation of Obligations
	 	 	32	 
	 	 	 	 	Section 2.18	 	Replacement of Lenders
	 	 	32	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 
	ARTICLE III CONDITIONS PRECEDENT TO TERM LOANS	 	 	32	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 
	 	 	 	 	Section 3.1	 	Conditions To Effectiveness
	 	 	32	 
	 	 	 	 	Section 3.2	 	Delivery of Documents
	 	 	34	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 
	ARTICLE IV REPRESENTATIONS AND WARRANTIES	 	 	35	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 
	 	 	 	 	Section 4.1	 	Existence; Power
	 	 	35	 
	 	 	 	 	Section 4.2	 	Organizational Power; Authorization
	 	 	35	 
	 	 	 	 	Section 4.3	 	Governmental Approvals; No Conflicts
	 	 	35	 






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TABLE OF
CONTENTS
(continued)


	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Page	 
	 	 	 	 	Section 4.4	 	Financial Statements
	 	 	36	 
	 	 	 	 	Section 4.5	 	Litigation and Environmental Matters
	 	 	36	 
	 	 	 	 	Section 4.6	 	Compliance with Laws and Agreements
	 	 	36	 
	 	 	 	 	Section 4.7	 	Investment Company Act, Etc
	 	 	36	 
	 	 	 	 	Section 4.8	 	Taxes
	 	 	37	 
	 	 	 	 	Section 4.9	 	Margin Regulations
	 	 	37	 
	 	 	 	 	Section 4.10	 	ERISA
	 	 	37	 
	 	 	 	 	Section 4.11	 	Ownership of Property
	 	 	37	 
	 	 	 	 	Section 4.12	 	Disclosure
	 	 	37	 
	 	 	 	 	Section 4.13	 	Labor Relations
	 	 	38	 
	 	 	 	 	Section 4.14	 	Subsidiaries
	 	 	38	 
	 	 	 	 	Section 4.15	 	Foreign Assets Control Regulations, Etc
	 	 	38	 
	 	 	 	 	Section 4.16	 	Solvency
	 	 	39	 
	 	 	 	 	Section 4.17	 	Senior Debt
	 	 	39	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 
	ARTICLE V AFFIRMATIVE COVENANTS	 	 	39	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 
	 	 	 	 	Section 5.1	 	Financial Statements and Other Information
	 	 	39	 
	 	 	 	 	Section 5.2	 	Notices of Material Events
	 	 	41	 
	 	 	 	 	Section 5.3	 	Existence; Conduct of Business
	 	 	42	 
	 	 	 	 	Section 5.4	 	Compliance with Laws, Etc
	 	 	42	 
	 	 	 	 	Section 5.5	 	Payment of Obligations
	 	 	42	 
	 	 	 	 	Section 5.6	 	Books and Records
	 	 	42	 
	 	 	 	 	Section 5.7	 	Visitation, Inspection, Etc
	 	 	42	 
	 	 	 	 	Section 5.8	 	Maintenance of Properties; Insurance
	 	 	42	 
	 	 	 	 	Section 5.9	 	Use of Proceeds
	 	 	43	 
	 	 	 	 	Section 5.10	 	Additional Subsidiaries
	 	 	43	 
	 	 	 	 	Section 5.11	 	Senior Debt
	 	 	43	 
	 	 	 	 	Section 5.12	 	Further Assurances
	 	 	43	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 
	ARTICLE VI FINANCIAL COVENANTS	 	 	44	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 
	 	 	 	 	Section 6.1	 	Ratio of Total Net Debt to EBITDA
	 	 	44	 
	 	 	 	 	Section 6.2	 	Interest Coverage Ratio
	 	 	44	 






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TABLE OF
CONTENTS
(continued)



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Page	 
	ARTICLE VII NEGATIVE COVENANTS	 	 	44	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 
	 	 	 	 	Section 7.1	 	Indebtedness
	 	 	44	 
	 	 	 	 	Section 7.2	 	Negative Pledge
	 	 	45	 
	 	 	 	 	Section 7.3	 	Fundamental Changes
	 	 	46	 
	 	 	 	 	Section 7.4	 	Investments, Loans, Etc
	 	 	46	 
	 	 	 	 	Section 7.5	 	Restricted Payments
	 	 	47	 
	 	 	 	 	Section 7.6	 	Sale of Assets
	 	 	48	 
	 	 	 	 	Section 7.7	 	Transactions with Affiliates
	 	 	48	 
	 	 	 	 	Section 7.8	 	Restrictive Agreements
	 	 	49	 
	 	 	 	 	Section 7.9	 	Sale and Leaseback Transactions
	 	 	49	 
	 	 	 	 	Section 7.10	 	Hedging Agreements
	 	 	49	 
	 	 	 	 	Section 7.11	 	Amendment to Material Documents and the Existing Credit
Agreement
	 	 	49	 
	 	 	 	 	Section 7.12	 	Permitted Subordinated Indebtedness
	 	 	50	 
	 	 	 	 	Section 7.13	 	Accounting Changes
	 	 	51	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 
	ARTICLE VIII EVENTS OF DEFAULT	 	 	51	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 
	 	 	 	 	Section 8.1	 	Events of Default
	 	 	51	 
	 	 	 	 	Section 8.2	 	Receipt of Proceeds
	 	 	54	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 
	ARTICLE IX THE AGENTS	 	 	54	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 
	 	 	 	 	Section 9.1	 	Appointment of Agents
	 	 	54	 
	 	 	 	 	Section 9.2	 	Nature of Duties of Agents
	 	 	54	 
	 	 	 	 	Section 9.3	 	Lack of Reliance on the Agents
	 	 	55	 
	 	 	 	 	Section 9.4	 	Certain Rights of the Agents
	 	 	55	 
	 	 	 	 	Section 9.5	 	Reliance by Agents
	 	 	55	 
	 	 	 	 	Section 9.6	 	The Agents in their Individual Capacities
	 	 	56	 
	 	 	 	 	Section 9.7	 	Indemnification
	 	 	56	 
	 	 	 	 	Section 9.8	 	Successor Administrative Agent
	 	 	56	 
	 	 	 	 	Section 9.9	 	Successor Collateral Agent
	 	 	57	 
	 	 	 	 	Section 9.10	 	Agents Generally
	 	 	57	 
	 	 	 	 	Section 9.11	 	Documentation Agent
	 	 	57	 
	 	 	 	 	Section 9.12	 	The Lead Arrangers
	 	 	57	 






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TABLE OF
CONTENTS
(continued)



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Page	 
	ARTICLE X MISCELLANEOUS	 	 	57	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 
	 	 	 	 	Section 10.1	 	Notices
	 	 	57	 
	 	 	 	 	Section 10.2	 	Waiver; Amendments
	 	 	59	 
	 	 	 	 	Section 10.3	 	Expenses; Indemnification
	 	 	60	 
	 	 	 	 	Section 10.4	 	Successors and Assigns
	 	 	61	 
	 	 	 	 	Section 10.5	 	Governing Law; Jurisdiction; Consent to Service of Process
	 	 	65	 
	 	 	 	 	Section 10.6	 	Waiver of Jury Trial
	 	 	65	 
	 	 	 	 	Section 10.7	 	Right of Setoff
	 	 	66	 
	 	 	 	 	Section 10.8	 	Counterparts; Integration
	 	 	66	 
	 	 	 	 	Section 10.9	 	Survival
	 	 	66	 
	 	 	 	 	Section 10.10	 	Severability
	 	 	66	 
	 	 	 	 	Section 10.11	 	Confidentiality
	 	 	67	 
	 	 	 	 	Section 10.12	 	Releases of Guarantees and Liens
	 	 	67	 







-iv-









 








EXHIBITS




	 	 	 
	Exhibit A:

	 	Form of Term Note
	 
	 	 
	Exhibit B:

	 	Form of Assignment and Acceptance
	 
	 	 
	Exhibit C:

	 	Form of Prepayment Option Notice






SCHEDULES




	 	 	 
	Schedule 1:

	 	Commitments
	 
	 	 
	Schedule 4.5(b):

	 	Environmental Matters
	 
	 	 
	Schedule 4.14:

	 	Subsidiaries
	 
	 	 
	Schedule 7.1:

	 	Indebtedness
	 
	 	 
	Schedule 7.2:

	 	Liens
	 
	 	 
	Schedule 7.4:

	 	Investments







 









 








CREDIT AGREEMENT




     THIS CREDIT AGREEMENT (this “Agreement”) is made and entered into as of August 7,
2006, by and among USP DOMESTIC HOLDINGS, INC., a Delaware corporation (the “Borrower”),
the several banks and other financial institutions from time to time party hereto (the
“Lenders”), BEAR STEARNS CORPORATE LENDING INC., in its capacity as Administrative Agent
for the Lenders (together with any successor thereto appointed pursuant to Section 9.7, the
“Administrative Agent”), SUNTRUST BANK, as Collateral Agent and Documentation Agent, BEAR,
STEARNS & CO. INC. and SUNTRUST CAPITAL MARKETS, INC., as joint lead arrangers, and BEAR, STEARNS &
CO. INC., as sole bookrunner.



W I T N E S S E T H :




     WHEREAS, the Borrower has requested that the Lenders establish a $200,000,000 term loan
facility for the purposes, and on the terms and conditions, as more particularly described herein;
and



     WHEREAS, subject to the terms and conditions of this Agreement, the Lenders severally, to the
extent of their respective Commitments, are willing to establish the requested term loan facility
available to the Borrower.



     NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained,
the Borrower, the Lenders and the Agents agree as follows:



ARTICLE I




DEFINITIONS; CONSTRUCTION




     Section 1.1 Definitions. In addition to the other terms defined herein, the following
terms used herein shall have the meanings herein specified (to be equally applicable to both the
singular and plural forms of the terms defined):



     “Adjusted LIBO Rate” shall mean, with respect to each day during an Interest Period for a
Eurodollar Borrowing, the rate per annum for such day obtained (rounding upward to the nearest
1/100 of 1%) by dividing (i) LIBOR for such Interest Period by (ii) a percentage equal to 1.00
minus the Eurodollar Reserve Percentage.



     “Administrative Agent” shall have the meaning assigned to such term in the opening paragraph
hereof.



     “Administrative Questionnaire” shall mean, with respect to each Lender, an administrative
questionnaire in the form prepared by the Administrative Agent and submitted to the Administrative
Agent duly completed by each Lender.



     “Affiliate” shall mean, as to any Person, any other Person that directly, or indirectly
through one or more intermediaries, Controls, is Controlled by, or is under common Control with,
such Person.



 









 





     “Agents” shall mean the Administrative Agent and the Collateral Agent.



     “Applicable Lending Office” shall mean, for each Lender and for each Type of Term Loan, the
“Lending Office” of such Lender (or an Affiliate of such Lender) designated for such Type of Term
Loan in the Administrative Questionnaire submitted by such Lender or such other office of such
Lender (or an Affiliate of such Lender) as such Lender may from time to time specify to the
Administrative Agent and the Borrower as the office by which its Term Loans of such Type are to be
made and maintained.



     “Applicable Margin” shall mean (a) with respect to Base Rate Loans, a rate equal to 1% per
annum, and (b) with respect to Eurodollar Loans, a rate equal to 1.75% per annum; provided,
that if, as of any date of determination, the Borrower’s Moody’s corporate family credit
rating is lower than Ba2 or the Borrower’s S&P corporate credit rating is lower than BB-
(or carrying an equivalent rating by a nationally recognized rating agency, if both of the two
named rating agencies cease publishing such ratings generally), the Applicable Margins with respect
to Base Rate Loans and Eurodollar Loans shall be increased by an additional 0.25% per annum.



     “Approved Fund” shall have the meaning assigned to such term in Section 10.4.



     “Assignee” shall have the meaning assigned to such term in Section 10.4(b).



     “Assignment and Acceptance” shall mean an assignment and acceptance entered into by a Lender
and an assignee (with the consent of any party whose consent is required by Section
10.4(b)) and accepted by the Administrative Agent, in the form of Exhibit B attached
hereto or any other form approved by the Administrative Agent.



     “Base Rate” shall mean for any day, a rate per annum (rounded upwards, if necessary, to the
next 1/16 of 1%) equal to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 0.50%. For purposes hereof: “Prime
Rate” shall mean the rate of interest per annum publicly announced from time to time by the
Reference Lender as its prime rate in effect at its principal office in New York City (the Prime
Rate not being intended to be the lowest rate of interest charged by the Reference Lender in
connection with extensions of credit to debtors). Any change in the Base Rate due to a change in
the Prime Rate or the Federal Funds Effective Rate shall be effective as of the opening of business
on the effective day of such change in the Prime Rate or the Federal Funds Effective Rate,
respectively.



     “Base Rate Borrowing” means a Borrowing comprised of Base Rate Loans.



     “Base Rate Loan” shall mean a Term Loan that bears interest based upon the Base Rate.



     “Borrower” shall have the meaning in the introductory paragraph hereof.



     “Borrowing” shall mean a borrowing consisting of Term Loans of the same Type which are
converted or continued on the same date and, in case of Eurodollar Loans, as to which a single
Interest Period is in effect.



2









 





     “Business Day” shall mean (i) any day other than a Saturday, Sunday or other day on which
commercial banks in Atlanta, Georgia or New York, New York are authorized or required by law to
close, and (ii) if such day relates to a Borrowing of, a payment or prepayment of principal or
interest on, a conversion of or into, or an Interest Period for, a Eurodollar Loan or a notice with
respect to any of the foregoing, any day on which dealings in Dollars are carried on in the London
interbank market.



     “Capital Expenditures” shall mean for any period, without duplication, (a) the additions to
property, plant and equipment and other capital expenditures of the Borrower and its Subsidiaries
that are (or would be) set forth on a consolidated statement of cash flows of the Borrower for such
period prepared in accordance with GAAP, and (b) Capital Lease Obligations incurred by the Borrower
and its Subsidiaries during such period.



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



     “Casualty Event” means the damage, destruction or condemnation, as the case may be, of
property of any Person or any of its Subsidiaries.



     “Change in Control” shall mean (a) the failure of Parent at any time to directly or indirectly
own beneficially and of record on a fully diluted basis 100% of the outstanding Equity Interests of
Holdings, such Equity Interests to be held free and clear of all Liens (other than Liens granted
under any Loan Document); or (b) the failure of Holdings at any time to directly or indirectly own
beneficially and of record on a fully diluted basis 100% of the outstanding Equity Interests of the
Borrower, such Equity Interests to be held free and clear of all Liens (other than Liens granted
under any Loan Document); (c) any sale, lease, exchange or other transfer (in a single transaction
or a series of related transactions) of all or substantially all of the assets of the Parent to any
Person or “group” (within the meaning of the Securities Exchange Act of 1934 and the rules of the
Securities and Exchange Commission thereunder in effect on the date hereof); (d) the acquisition of
ownership, directly or indirectly, beneficially or of record, by any Person or “group” (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities and Exchange
Commission thereunder as in effect on the date hereof) of 30% or more of the outstanding shares of
the voting stock of the Parent; (e) occupation of a majority of the seats (other than vacant seats)
on the board of directors of the Parent by Persons who were neither (i) nominated by the current
board of directors, or (ii) appointed by directors so nominated; or (f) the occurrence of any
“Change of Control” (or similar term) under (and as defined in) any Subordinated Debt Document.



     “Change in Law” shall mean (i) the adoption of any applicable law, rule or regulation after
the date of this Agreement, (ii) any change in any applicable law, rule or regulation, or any
change in the interpretation or application thereof, by any Governmental Authority after the date
of this Agreement, or (iii) compliance by any Lender (or its Applicable Lending Office) (or for
purposes of Section 2.13(b), by such Lender’s holding company, if applicable) with any
request,



3









 







guideline or directive (whether or not having the force of law) of any Governmental Authority
made or issued after the date of this Agreement.



     “CLO” shall have the meaning assigned to such term in Section 10.4.



     “Closing Date” shall mean the date on which the conditions precedent set forth in Section
3.1 have been satisfied or waived in accordance with Section 10.2.



     “Code” shall mean the Internal Revenue Code of 1986, as amended and in effect from time to
time.



     “Collateral” shall mean all Equity Interests in both presently existing and hereafter arising
wholly-owned Subsidiaries of the Borrower and each of the Guarantors (excluding the stock of Parent
and the stock of USP International Holdings, Inc.).



     “Collateral Agent” shall mean SunTrust Bank, in its capacity as collateral agent for the
Lenders and the Existing R/C Lenders.



     “Commitment” shall mean, with respect to each Lender, the obligation of such Lender to make a
Term Loan to the Borrower on the Closing Date in an aggregate principal amount not exceeding the
amount set forth with respect to such Lender on the Schedule 1 to this Agreement, or in the
case of a Person becoming a Lender after the Closing Date, the amount of the assigned “Commitment”
as provided in the Assignment and Acceptance Agreement executed by such Person as an assignee, as
the same may be changed pursuant to terms hereof. The aggregate amount of the Lenders’ Commitments
on the Closing Date is $200,000,000.



     “Conduit Lender” shall mean any special purpose entity organized and administered by any
Lender for the purpose of making Term Loans otherwise required to be made by such Lender and
designated by such Lender in a written instrument, subject to the consent of the Administrative
Agent (which consent shall not be unreasonably withheld); provided, that the designation by
any Lender of a Conduit Lender shall not relieve the designating Lender of any of its obligations
to fund a Loan under this Agreement if, for any reason, its Conduit Lender fails to fund any such
Loan, and the designating Lender (and not the Conduit Lender) shall have the sole right and
responsibility to deliver all consents and waivers required or requested under this Agreement with
respect to its Conduit Lender, and provided, further, that no Conduit Lender shall
be entitled to receive any greater amount pursuant to Sections 2.13, 2.14, 2.15 or 10.3
than the designating Lender would have been entitled to receive in respect of the extensions of
credit made by such Conduit Lender.



     “Contingent Liability” means any agreement, undertaking or arrangement by which any Person
guarantees, endorses or otherwise becomes or is contingently liable upon (by direct or indirect
agreement, contingent or otherwise, to provide funds for payment, to supply funds to, or otherwise
to invest in, a debtor in connection with such debtor’s Indebtedness, or otherwise to assure a
creditor against loss) the Indebtedness of any other Person (other than by endorsements of
instruments in the course of collection), or guarantees the payment of dividends or other
distributions upon the Equity Interests of any other Person. The amount of any Person’s obligation
under any Contingent Liability shall (subject to any limitations set forth therein) be



4









 







deemed to be the outstanding principal amount of the debt, obligation or other liability
guaranteed thereby.



     “Control” shall mean the power, directly or indirectly, either to (i) vote 5% or more of
securities having ordinary voting power for the election of directors (or persons performing
similar functions) of a Person, or (ii) direct or cause the direction of the management and
policies of a Person, whether through the ability to exercise voting power, by contract or
otherwise. The terms “Controlling”, “Controlled by”, and “under common Control with” have meanings
correlative thereto.



     “Consolidated Subsidiary” means those Subsidiaries whose operations are consolidated in the
consolidated financial statements of the Parent delivered to the Administrative Agent and the
Lenders pursuant to Section 5.1.



     “Debt Issuance” means unsecured Indebtedness of the Borrower, any Guarantor or any
Consolidated Subsidiary in the form of senior notes or other publicly or privately placed
Indebtedness but specifically excluding Permitted Subordinated Debt.



     “Default” shall mean any condition or event that, with the giving of notice or the lapse of
time or both, would constitute an Event of Default.



     “Default Rate” shall mean that the otherwise then applicable rates shall be increased by two
percent (2%) per annum; provided that, for any Eurodollar Borrowings, at the end of
the applicable Interest Period, interest shall accrue at the Base Rate plus the Applicable Margin
plus two percent (2%) per annum.



     “Disposition” (or similar words such as “Dispose”) means any sale, transfer, lease,
contribution or other conveyance (including by way of merger) of, or the granting of options,
warrants or other rights to, any of the Borrower’s or any Guarantor’s assets (including accounts
receivable and Equity Interests of Subsidiaries, but excluding cash) to any other Person (other
than to another Loan Party) in a single transaction or series of transactions.



     “Dollar(s)” and the sign “$” shall mean lawful money of the United States of America.



     “EBITDA” shall mean for the Borrower and its Consolidated Subsidiaries for any applicable
period, the sum of (a) Net Income, plus (b) to the extent deducted in determining Net Income, the
sum of amounts attributable to (i) amortization, (ii) income tax expense, (iii) Interest Expense,
(iv) depreciation of assets, and (v) the to the extent applicable, non-cash equity compensation
costs applicable under and calculated in accordance with Statement of Financial Accounting
Standards No. 123 (revised 2004) [FAS 223 (revised)] as promulgated by the Financial Accounting
Standards Board; provided, that cash payments made in such period or in any future
period in respect of such noncash costs shall be subtracted from Net Income in calculating EBITDA
in the period when such payments are made; provided, further, EBITDA shall be
adjusted to give pro forma effect to (x) Permitted Acquisitions made during such period (such
adjustment to be reasonably satisfactory to the Administrative Agent) as if such Permitted
Acquisitions had been made at the beginning of such period, which pro forma calculations shall
deduct the value of the existing Equity Interests not held by the Borrower or such Consolidated
Subsidiary in the applicable Permitted Acquisition, and (y) permitted dispositions during such



5









 







period (such adjustment to be reasonably satisfactory to the Administrative Agent) as if such
permitted dispositions had been made at the beginning of such period; and provided,
further, in connection with the acquisition of Surgis, Inc., Borrower shall be permitted
certain “add-backs” in an aggregate amount of up to $3,000,000 with such “add-backs” to be
reasonably acceptable to the Administrative Agent.



     “EBITDAR” shall mean, for the Borrower and its Consolidated Subsidiaries for any period, an
amount equal to the sum of (a) EBITDA and (b) Lease Expense.



     “EDGAR” shall mean the Electronic Data Gathering, Analysis, and Retrieval system, which
performs automated collection, validation, indexing, acceptance, and forwarding of submissions by
companies and others who are required by law to file forms with the U.S. Securities and Exchange
Commission.



     “Eligible Transferee” shall mean (a) a Lender; (b) an Affiliate of a Lender or, with respect
to any Lender that is an investment fund that invests in commercial loans, any fund that invests in
bank loans and is managed by the same investment advisor as such Lender; and (c) any other Person
approved by the Administrative Agent; provided, however, that neither the Borrower
nor an Affiliate of the Borrower shall qualify as an Eligible Transferee.



     “Environmental Laws” shall mean all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into
by or with any Governmental Authority, relating in any way to the environment, preservation or
reclamation of natural resources, the management, Release or threatened Release of any Hazardous
Material or to health and safety matters.



     “Environmental Liability” shall mean any liability, contingent or otherwise (including any
liability for damages, costs of environmental investigation and remediation, costs of
administrative oversight, fines, natural resource damages, penalties or indemnities), of the
Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) any actual or
alleged violation of any Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (c) any actual or alleged exposure to
any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials, or (e)
any contract, agreement or other consensual arrangement pursuant to which liability is assumed or
imposed with respect to any of the foregoing.



     “Equity Interests” means, with respect to any Person, any and all shares, partnership, joint
venture or other interests, participations or other equivalents (however designated, whether voting
or non-voting) of such Person’s capital, whether now outstanding or issued after the Closing Date.



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



     “ERISA Affiliate” shall mean any trade or business (whether or not incorporated), which,
together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code
or, solely for the purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a
single employer under Section 414 of the Code.



6









 





     “ERISA Event” shall mean (a) any “reportable event” (as defined in Section 4043 of ERISA or
the regulations issued thereunder with respect to a Plan), other than an event for which the 30-day
notice period is waived; (b) the existence with respect to any Plan of an “accumulated funding
deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived;
(c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application
for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to
the termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC
or a plan administrator appointed by the PBGC of any notice relating to an intention to terminate
any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA
Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA
Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that
a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning
of Title IV of ERISA.



     “Eurodollar Borrowing” means a Borrowing comprised of Eurodollar Loans.



     “Eurodollar Loan” means a Term Loan that bears interest determined by reference to the
Adjusted LIBO Rate.



     “Eurodollar Reserve Percentage” shall mean the aggregate of the maximum reserve percentages
(including, without limitation, any emergency, supplemental, special or other marginal reserves)
expressed as a decimal (rounded upwards to the next 1/100th of 1%) in effect on any day to which
the Administrative Agent is subject with respect to the Adjusted LIBO Rate pursuant to regulations
issued by the Board of Governors of the Federal Reserve System (or any Governmental Authority
succeeding to any of its principal functions) with respect to eurocurrency funding (currently
referred to as “eurocurrency liabilities” under Regulation D). Eurodollar Loans shall be deemed to
constitute eurocurrency funding and to be subject to such reserve requirements without benefit of
or credit for proration, exemptions or offsets that may be available from time to time to any
Lender under Regulation D. The Eurodollar Reserve Percentage shall be adjusted automatically on
and as of the effective date of any change in any reserve percentage.



     “Event of Default” shall have the meaning provided in Section 8.1.



     “Excluded Taxes” shall mean with respect to the Administrative Agent, any Lender or any other
recipient of any payment to be made by or on account of any obligation of the Borrower hereunder,
(a) income or franchise taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its applicable lending office
is located, (b) any branch profits taxes imposed by the United States of America or any similar tax
imposed by any other jurisdiction in which the Borrower is located, and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section
2.18), any withholding tax that is imposed on amounts payable to such Foreign Lender at the
time such Foreign Lender becomes a party to this Agreement (or



7









 







designates a new lending office) or is attributable to such Foreign Lender’s failure to comply
with Section 2.15(e), except to the extent that such Foreign Lender (or its assignor, if
any) was entitled, at the time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax pursuant to Section
2.15(a).



     “Existing Credit Agreement” shall mean that certain Credit Agreement, dated as of February 21,
2006, by and among the Borrower, the Existing R/C Lenders, SunTrust Bank, as administrative agent,
the Collateral Agent, Bank of America, N.A., as syndication agent, and General Electric Capital
Corporation, as documentation agent, as the same may be amended, restated, supplemented or
otherwise modified and in effect from time to time in accordance with the terms hereof and thereof.



     “Existing R/C Lenders” shall mean the lenders under the Existing Credit Agreement from time to
time party thereto.



     “Federal Funds Rate” shall mean, for any day, the rate per annum (rounded upwards, if
necessary, to the next 1/100th of 1%) equal to the weighted average of the rates on overnight
Federal funds transactions with member banks of the Federal Reserve System arranged by Federal
funds brokers, as published by the Federal Reserve Bank of New York on the next succeeding Business
Day or if such rate is not so published for any Business Day, the Federal Funds Rate for such day
shall be the average rounded upwards, if necessary, to the next 1/100th of 1% of the quotations for
such day on such transactions received by the Administrative Agent from three Federal funds brokers
of recognized standing selected by the Administrative Agent.



     “Foreign Lender” shall mean any Lender that is organized under the laws of a jurisdiction
other than that of the Borrower. For purposes of this definition, the United States of America or
any State thereof or the District of Columbia shall constitute one jurisdiction.



     “Foreign Subsidiary” shall mean any Subsidiary that is organized under the laws of a
jurisdiction other than the United States of America, any state thereof or the District of
Columbia.



     “GAAP” shall mean generally accepted accounting principles in the United States applied on a
consistent basis and subject to the terms of Section 1.3.



     “Governmental Authority” shall mean the government of the United States of America, any other
nation or any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government.



     “Guarantee” of or by any Person (the “guarantor”) shall mean any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly and including any obligation, direct or
indirect, of the guarantor (a) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for
the purchase of) any security for the payment thereof, (b) to purchase or lease property,
securities or services



8









 







for the purpose of assuring the owner of such Indebtedness or other obligation of the payment
thereof, (c) to maintain working capital, equity capital or any other financial statement condition
or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or
other obligation or (d) as an account party in respect of any letter of credit issued under the
Existing Credit Agreement or any letter of guaranty issued in support of such Indebtedness or
obligation; provided, that the term “Guarantee” shall not include
endorsements for collection or deposits in the ordinary course of business. The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the primary
obligation in respect of which Guarantee is made or, if not so stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is required to perform
thereunder) as determined by such Person in good faith. The term “Guarantee” used as a
verb has a corresponding meaning.



     “Guarantors” means, jointly and severally, Parent, Holdings, and all current and/or future
wholly-owned Subsidiaries of the Borrower; provided that for the purpose of
determining compliance with the covenants set forth in Article VI and Article VII,
any reference to Parent shall exclude USPE Holdings, Ltd. and subsidiaries of USPE Holdings, Ltd.



     “Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law.



     “Hedging Agreements” shall mean interest rate swap, cap or collar agreements, interest rate
future or option contracts, currency swap agreements, currency future or option contracts,
commodity agreements and other similar agreements or arrangements designed to protect against
fluctuations in interest rates, currency values or commodity values.



     “Holdings” means United Surgical Partners Holdings, Inc., a Delaware corporation.



     “Holdings Guarantee Agreement” shall mean a guaranty agreement executed in form and substance
acceptable to Lenders pursuant to which Holdings guarantees repayment of all Obligations.



     “Holdings Notes” means the 10% Senior Subordinated Notes due December, 2011 in the aggregate
principal amount of $150,000,000 issued by Holdings and governed by the terms of the Holdings Notes
Indenture.



     “Holdings Notes Indenture” means the Indenture, dated as of December 19, 2001, entered into
among Holdings, the guarantors from time to time parties thereto and U.S. Trust Company of Texas,
N.A., as trustee, as amended, supplemented, amended and restated or otherwise modified from time to
time.



     “Indebtedness” of any Person shall mean, without duplication (i) all obligations of such
Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments, (iii) all obligations of such Person in respect of the deferred
purchase price of property or services (other than trade payables incurred in the ordinary course



9









 







of business; provided, that for purposes of Section 8.1(g), trade
payables overdue by more than 120 days shall be included in this definition except to the extent
that any of such trade payables are being disputed in good faith and by appropriate measures), (iv)
all obligations of such Person under any conditional sale or other title retention agreement(s)
relating to property acquired by such Person, (v) all Capital Lease Obligations of such Person,
(vi) all obligations, contingent or otherwise, of such Person in respect of letters of credit,
acceptances or similar extensions of credit, (vii) all Guarantees of such Person of the type of
Indebtedness described in clauses (i) through (vi) above or clauses (ix) through
(xi) below, (viii) all Indebtedness of a third party secured by any Lien on property owned by
such Person, whether or not such Indebtedness has been assumed by such Person, (ix) all obligations
of such Person, contingent or otherwise, to purchase, redeem, retire or otherwise acquire for value
any common stock or preferred stock of such Person, (x) Off-Balance Sheet Liabilities, and (xi)
obligations under any Hedging Agreements.



     “Indemnified Taxes” shall mean Taxes other than Excluded Taxes.



     “Indemnity and Contribution Agreement” shall mean the Amended and Restated Indemnity,
Subrogation and Contribution Agreement, dated as of the date hereof, among the Borrower, the
Subsidiary Loan Parties and the Administrative Agent.



     “Information Memorandum” shall mean the Confidential Information Memorandum dated July 14,
2006 relating to the Borrower and the transactions contemplated by this Agreement and the other
Loan Documents.



     “Interest Expense” shall mean, for the Borrower and its Consolidated Subsidiaries for any
period determined on a consolidated basis in accordance with GAAP, the sum of (i) total interest
expense, including without limitation the interest component of any payments in respect of Capital
Leases Obligations or expensed during such period (whether or not actually paid during such
period), plus (ii) the net amount payable (or minus the net amount receivable) under Hedging
Agreements during such period (whether or not actually paid or received during such period).



     “Interest Period” shall mean with respect to any Eurodollar Borrowing, a period of one, two,
three or six months; provided, that:




     (i) the initial Interest Period for such Borrowing shall commence on the date of such
Borrowing (including the date of any conversion from a Borrowing of another Type) and each
Interest Period occurring thereafter in respect of such Borrowing shall commence on the day
on which the next preceding Interest Period expires;




     (ii) if any Interest Period would otherwise end on a day other than a Business Day,
such Interest Period shall be extended to the next succeeding Business Day, unless, in the
case of a Eurodollar Borrowing, such Business Day falls in another calendar month, in which
case such Interest Period would end on the next preceding Business Day;




     (iii) any Interest Period in respect of a Eurodollar Borrowing which begins on the last
Business Day of a calendar month or on a day for which there is no numerically



10









 







corresponding day in the calendar month at the end of such Interest Period shall end on
the last Business Day of such calendar month; and




     (iv) no Interest Period may extend beyond the Maturity Date.



     “Lease Expense” shall mean, for any period, the aggregate amount of fixed and contingent
rentals payable by the Borrower and its Consolidated Subsidiaries on a consolidated basis with
respect to leases of real and personal property (excluding Capital Lease Obligations) determined in
accordance with GAAP for such period.



     “Lenders” shall have the meaning assigned to such term in the opening paragraph of this
Agreement.



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



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



     “Loan Documents” shall mean, collectively, this Agreement, the Notes (if any), the Parent
Guarantee Agreement, the Holdings Guarantee Agreement, the Subsidiary Guarantee Agreement, the
Indemnity and Contribution Agreement, and the Security Documents.



     “Loan Parties” shall mean the Borrower and the Guarantors.



     “Material Adverse Effect” shall mean, with respect to any event, act, condition or occurrence
of whatever nature (including any adverse determination in any litigation, arbitration, or
governmental investigation or proceeding), whether singly or in conjunction with any other event or
events, act or acts, condition or conditions, occurrence or occurrences whether or not related, a
material adverse change in, or a material adverse effect on, (i) the business, results of
operations, performance, condition (financial or otherwise), assets or liabilities of the Borrower
and of the Borrower and its Subsidiaries taken as a whole, (ii) the ability of the Loan Parties to
perform any of their respective obligations under the Loan Documents, (iii) the rights and



11









 







remedies of any Agent and the Lenders under any of the Loan Documents, or (iv) the legality,
validity or enforceability of any of the Loan Documents.



     “Material Indebtedness” shall mean, without duplication, Indebtedness (other than the Term
Loans) of any one or more of the Borrower and its Subsidiaries and any Loan Party in an aggregate
principal amount exceeding $10,000,000. For purposes of determining Material Indebtedness, the
“principal amount” of the obligations of the Borrower or any Subsidiary or any Loan Party in
respect to any Hedging Agreement at any time shall be the maximum aggregate amount (giving effect
to any netting agreements) that the Borrower or such Subsidiary or such Loan Party would be
required to pay if such Hedging Agreement were terminated at such time.



     “Maturity Date” shall mean the earlier of (i) June 7, 2013, and (ii) the date on which all
amounts outstanding under this Agreement have been declared or have automatically become due and
payable (whether by acceleration or otherwise).



     “Minority Interests” means, with respect to the Consolidated Subsidiaries, the Equity
Interests held by Persons other than the Borrower or any Loan Party, as reflected in the financial
statements of the Borrower and any Loan Party in accordance with GAAP.



     “Moody’s” shall mean Moody’s Investors Service, Inc.



     “Multiemployer Plan” shall have the meaning set forth in Section 4001(a)(3) of ERISA.



     “Net Casualty Proceeds” means, with respect to any Casualty Event, the amount of any insurance
proceeds, or condemnation awards received by the Borrower, any Guarantor and/or any of their
Consolidated Subsidiaries, in connection with such Casualty Event in excess of $1,000,000,
individually or in the aggregate over the course of a fiscal year (net of all reasonable and
customary collection expenses thereof), but excluding any proceeds or awards required to be paid to
a creditor (other than the Lenders or the Existing R/C Lenders) which holds a first priority Lien
permitted by Section 7.2 on the property which is the subject of such Casualty Event.



     “Net Debt Issuance Proceeds” means with respect to any Debt Issuance, the excess of (a) the
gross cash proceeds received by the Borrower, any Guarantor and/or any of their Consolidated
Subsidiaries, from such Debt Issuance, over (b) all reasonable and customary legal,
brokerage and commitment fees and expenses incurred in connection with such Debt Issuance which
have not been paid to Affiliates of the Borrower or any Guarantor, as applicable, in connection
therewith; provided, that proceeds of any indebtedness incurred pursuant to any
Debt Issuance and utilized to refinance in full the Borrower’s obligations under the Existing
Credit Agreement on terms no less favorable to the Lenders and to the Borrower than the terms under
the Existing Credit Agreement as reasonably determined by the Administrative Agent shall not
constitute “Net Debt Issuance Proceeds”.



     “Net Disposition Proceeds” means, with respect to any Disposition, the excess of (a) the gross
cash proceeds received by the Borrower, any Guarantor and/or any of their Consolidated Subsidiaries
from such Disposition and any cash payment received in respect of promissory notes or other
non-cash consideration delivered to such party in respect thereof, over (b) the sum of (i)
all reasonable and customary legal, investment banking, brokerage and accounting fees and



12









 







expenses incurred in connection with such Disposition which have not been paid to Affiliates
of the Borrower or any Guarantor, as applicable, in connection therewith, (ii) all Taxes actually
paid or estimated by such party to be payable in cash within the next twelve (12) months in
connection with such Disposition, (iii) payments made by such party to retire Indebtedness (other
than the Term Loans) where payment of such Indebtedness is required in connection with such
Disposition, and (iv) amounts attributable to Minority Interests; provided that if
the amount of any estimated Taxes pursuant to clause (ii) exceeds the amount of Taxes
actually required to be paid in cash in respect of such Disposition, the aggregate amount of such
excess shall constitute Net Disposition Proceeds; and provided, further, that Net
Disposition Proceeds shall not include any interest in surgery centers currently owned or later
acquired as part of a Permitted Acquisition and then sold to any Consolidated Subsidiary or to a
Non-Consolidated Entity by a Borrower or Guarantor.



     “Net Equity Proceeds” means, with respect to the sale or issuance by Borrower or any Guarantor
to any Person of any common stock, warrants or options or the exercise of any such warrants or
options, the excess of (a) the gross cash proceeds received by such Person from such sale, exercise
or issuance, over (b) all reasonable and customary underwriting commissions and legal,
investment banking, brokerage and accounting and other professional fees, sales commissions and
disbursements actually incurred in connection with such sale or issuance which have not been paid
to Affiliates of the Borrower or any Guarantor, as applicable, in connection therewith; but
excluding for all purposes the sale or issuance by Borrower or any Guarantor of common stock,
warrants, or options arising out of the Borrower’s 2001 Equity-Based Compensation Plan or its
successor thereto.



     “Net Income” shall mean for the Borrower and its Consolidated Subsidiaries, for any period,
the aggregate of all amounts (exclusive of all amounts in respect of extraordinary gains but
including extraordinary losses) which would be included as net income on the consolidated financial
statements of the Borrower and its Consolidated Subsidiaries for such period, provided
that in all events, Minority Interests expense shall be deducted from the calculation of
net income.



     “Non-Consolidated Entities” means each of the operating partnerships, limited liability
companies, limited liability partnerships, joint ventures or similar entities in which the Borrower
or any of its Consolidated Subsidiaries have, directly or indirectly, invested, other than the
Consolidated Subsidiaries.



     “Notice of Conversion/Continuation” shall mean the notice given by the Borrower to the
Administrative Agent in respect of the conversion or continuation of an outstanding Borrowing as
provided in Section 2.4(b) hereof.



     “Obligations” shall mean all amounts owing by the Loan Parties to the Administrative Agent or
any Lender (or, in the case of any Specified Hedging Agreement, any Person that was a Lender or any
affiliate of any Lender at the time such Specified Hedging Agreement was entered into) pursuant to
or in connection with this Agreement, any other Loan Document or any Specified Hedging Agreement,
including without limitation, all principal, interest (including any interest accruing after the
filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like
proceeding relating to any Loan Party, whether or not a claim



13









 







for post-filing or post-petition interest is allowed in such proceeding), all reimbursement
obligations, fees, expenses, indemnification and reimbursement payments, costs and expenses
(including all fees and expenses of counsel to the Administrative Agent and any Lender and any
affiliate thereof party to a Specified Hedging Agreement) incurred pursuant to this Agreement or
any other Loan Document), whether direct or indirect, absolute or contingent, liquidated or
unliquidated, now existing or hereafter arising hereunder or thereunder, together with all
renewals, extensions, modifications or refinancings thereof; provided, that (i) obligations
of the Borrower or any Subsidiary under any Specified Hedging Agreement shall be secured and
guaranteed pursuant to the Loan Documents only to the extent that, and for so long as, the other
Obligations are so secured and guaranteed and (ii) any release of Collateral or Guarantors effected
in the manner permitted by this Agreement shall not require the consent of holders of obligations
under Specified Hedging Agreements.



     “Off-Balance Sheet Liabilities” of any Person shall mean (i) any repurchase obligation or
liability of such Person with respect to accounts or notes receivable sold by such Person, (ii) any
liability of such Person under any sale and leaseback transactions which do not create a liability
on the balance sheet of such Person, (iii) any liability of such Person under any so-called
“synthetic” lease transaction, or (iv) any obligation arising with respect to any other transaction
which is the functional equivalent of or takes the place of borrowing but which does not constitute
a liability on the balance sheet of such Person (excluding in all events Guarantees by the
Borrower, any Subsidiary, and any Loan Party of performance under operating leases).



     “Other Indebtedness” shall mean, at any time, Total Funded Debt less, without duplication, the
sum of (i) Permitted Subordinated Debt, (ii) the outstanding Term Loans and (iii) all amounts
included within Revolving Credit Exposure as defined under the Existing Credit Agreement, including
any replacement, refinancing or increase thereof permitted hereunder.



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



     “Parent” shall mean United Surgical Partners International, Inc., a Delaware corporation.



     “Parent Guarantee Agreement” shall mean a guaranty agreement executed in form and substance
acceptable to Lenders pursuant to which the Parent guarantees repayment of all Obligations.



     “Participant” shall have the meaning set forth in Section 10.4(c).



     “Payment Office” shall mean the office of the Administrative Agent located at 383 Madison
Avenue, New York, New York 10179, or such other location as to which the Administrative Agent shall
have given written notice to the Borrower and the other Lenders.



     “PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA,
and any successor entity performing similar functions.



14









 





     “Permitted Acquisitions” means an acquisition of a Consolidated Subsidiary (whether pursuant
to an acquisition of Equity Interests, assets or otherwise) by the Borrower or any Guarantor from
any Person of a business (or an increase of an existing Equity Interest of a Consolidated
Subsidiary therein) in which the following conditions are satisfied:




     (i) immediately before and after giving effect to such acquisition, no Default shall
have occurred and be continuing or would result therefrom; and




     (ii) in the event an acquisition of a consolidated Subsidiary (whether pursuant to an
acquisition of Equity Interests, assets, or otherwise) is made for consideration in an
amount (including cash paid and the exchange of other assets or property) equal to or in
excess of $1,000,000, the Borrower shall have delivered to the Administrative Agent a
compliance certificate for the period of four full fiscal quarters immediately preceding
such acquisition (prepared in good faith and in a manner and using such methodology which is
consistent with the most recent financial statements delivered pursuant to Section
5.1) giving pro forma effect to the consummation of such acquisition and evidencing
compliance with the covenants set forth in Article VI; and




     (iii) the acquisition has not been opposed by (a) the board of directors (or equivalent
governing body) of the acquired company, or (b) a majority of the physician investors in the
acquired company;



     provided, that the term “Permitted Acquisitions” shall not include any
Physician Transaction.



     “Permitted Encumbrances” shall mean:




     (i) Liens imposed by law for taxes not yet due or which are being contested in good
faith by appropriate proceedings and with respect to which adequate reserves are being
maintained in accordance with GAAP;




     (ii) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics,
materialmen and other Liens imposed by law created in the ordinary course of business for
amounts not yet due or which are being contested in good faith by appropriate proceedings
and with respect to which adequate reserves are being maintained in accordance with GAAP;




     (iii) pledges and deposits made in the ordinary course of business in compliance with
workers’ compensation, unemployment insurance and other social security laws or regulations;




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




     (v) judgment and attachment liens not giving rise to an Event of Default or Liens
created by or existing from any litigation or legal proceeding that are currently



15









 







being contested in good faith by appropriate proceedings and with respect to which
adequate reserves are being maintained in accordance with GAAP; and




     (vi) easements, zoning restrictions, rights-of-way and similar encumbrances on real
property imposed by law or arising in the ordinary course of business that do not secure any
monetary obligations and do not materially detract from the value of the affected property
or materially interfere with the ordinary conduct of business of the Borrower and its
Subsidiaries taken as a whole;



     provided, that the term “Permitted Encumbrances” shall not include any
Lien securing the Obligations.



     “Permitted Investments” shall mean:




     (a) investments in commercial paper maturing in 270 days or less from the date of
issuance which, at the time of acquisition by the Borrower or any Subsidiary, is accorded a
rating of “A2” or better by S&P or “P2” or better by Moody’s or any other United States
nationally recognized credit rating agency of similar standing;




     (b) investments in direct obligations of the United States, any agency or
instrumentality of the United States, the payment or guarantee of which constitutes a full
faith and credit obligation of the United States, maturing 360 days or less from the date of
acquisition thereof (or repurchase agreements fully collateralized by such obligations);




     (c) investments in direct obligations of any State or municipality within the United
States maturing in 360 days or less from the date of acquisition thereof which, in any such
case, at the time of acquisition by the Borrower or any Subsidiary, is accorded one of the
two highest long-term or short-term, as applicable, debt ratings by S&P or Moody’s or any
other United States nationally recognized credit rating agency of similar standing (or
repurchase agreements fully collateralized by such obligations);




     (d) investments in certificates of deposit or bankers’ acceptances issued by a bank or
trust company having capital, surplus and undivided profits aggregating at least
$100,000,000 and having a short-term unsecured debt rating of at least “P-1” by Moody’s or
“A-1” by S&P;




     (e) cash management accounts maintained by the Borrower and deposit accounts of the
Borrower or any of its Subsidiaries in the ordinary course of business; and




     (f) investments in money market funds that either (i) comply with the criteria set
forth in SEC Rule 2a-7 under the Investment Company Act of 1940, or (ii) both (a) provide
for daily liquidity, and (b) have the highest rating by at least one nationally recognized
rating agency.



     “Permitted Subordinated Debt” shall mean any Indebtedness of the Borrower or any Subsidiary
(i) that is expressly subordinated to the Obligations on terms satisfactory to and approved by the
Administrative Agent and the Required Lenders, (ii) that matures by its terms no



16









 







earlier than six (6) months after the Maturity Date with no scheduled principal payments
permitted prior to such maturity, and (iii) that is evidenced by an indenture or other similar
agreement that is in a form satisfactory to and approved by the Administrative Agent and the
Required Lenders.



     “Person” shall mean any individual, partnership, firm, corporation, association, joint
venture, limited liability company, trust or other entity, or any Governmental Authority.



     “Physician Transaction” means a transaction in the ordinary course of business pursuant to
which the Borrower or any Guarantor acquires an increased Equity Interest as a result of the
purchase of a physician’s interest in any Person as a result of the applicable provisions of any
joint venture agreement, partnership agreement, limited liability company agreement, or similar
agreement binding on the Borrower or any Guarantor.



     “Plan” means any employee pension benefit plan (other than a Multiemployer Plan) subject to
the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in
respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would
under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.



     “Pro Rata Share” shall mean, with respect to any Lender at any time, a percentage, the
numerator of which shall be the sum of such Lender’s Term Loans and the denominator of which shall
be the sum of all Lenders’ Term Loans.



     “Reference Lender” shall mean The Bank of New York or another financial institution designated
by the Administrative Agent.



     “Regulation D” shall mean Regulation D of the Board of Governors of the Federal Reserve
System, as the same may be in effect from time to time, and any successor regulations.



     “Reinvested Proceeds” shall mean proceeds realized from any Disposition of assets or Casualty
Event which are used to acquire substantially similar property or assets.



     “Related Parties” shall mean, with respect to any specified Person, such Person’s Affiliates
and the respective directors, officers, employees, trustees, agents and advisors of such Person and
such Person’s Affiliates.



     “Release” means any release, spill, emission, leaking, dumping, injection, pouring, deposit,
disposal, discharge, dispersal, leaching or migration into the environment (including ambient air,
surface water, groundwater, land surface or subsurface strata) or within any building, structure,
facility or fixture.



     “Required Lenders” shall mean, at any time, Lenders holding more than 50% of the aggregate
outstanding Term Loans at such time.



     “Responsible Officer” shall mean any of the president, the chief executive officer, the chief
operating officer, the chief financial officer, the treasurer or a vice president of the Borrower
or such other representative of the Borrower as may be designated in writing by any



17









 







one of the foregoing with the consent of the Administrative Agent; and, with respect to the
financial covenants only, the chief financial officer or the treasurer of the Borrower.



     “Restricted Payment” shall have the meaning set forth in Section 7.5.



     “S&P” shall mean Standard & Poor’s.



     “Security Documents” shall mean collectively, those certain Amended and Restated Pledge and
Security Agreements and any other Pledge and Security Agreements executed by the Loan Parties
granting Collateral Agent, on behalf of the Lenders, the Existing R/C Lenders party to the Existing
Credit Agreement and the holders of Obligations, a first perfected lien and security interest in
the Collateral, together with all required Regulation U forms.



     “Specified Hedging Agreement” shall mean any Hedging Agreement (a) entered into by (i) the
Borrower or any of its Subsidiaries and (ii) any Agent or Lender or any affiliate thereof, as
counterparty and (b) that has been designated by such Agent or Lender, as the case may be, and the
Borrower, by notice to the Administrative Agent, as a Specified Hedging Agreement. The designation
of any Hedging Agreement as a Specified Hedging Agreement shall not create in favor of any Agent,
Lender or affiliate thereof 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 any Loan Document.



     “St. Louis Acquisition” shall mean the acquisition by the Borrower from SurgCenter Development
and related physicians of surgery centers in the Greater St. Louis area, on terms reasonably
acceptable to Administrative Agent and for a total consideration not to exceed $100,000,000 in
calendar year 2006 and up to an additional $50,000,000 in calendar year 2007.



     “Subordinated Debt Documents” shall mean any indenture, agreement or similar instrument
governing any Permitted Subordinated Debt.



     “Subsidiary” shall mean, with respect to any Person (the “parent”), any corporation,
partnership, joint venture, limited liability company, association or other entity the accounts of
which would be consolidated with those of the parent in the parent’s consolidated financial
statements if such financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, partnership, joint venture, limited liability company, association
or other entity (i) of which securities or other ownership interests representing more than fifty
percent (50%) of the equity or more than fifty percent 50% of the ordinary voting power, or in the
case of a partnership, more than fifty percent 50% of the general partnership interests are, as of
such date, owned, Controlled or held, or (ii) that is, as of such date, otherwise Controlled, by
the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries
of the parent. Unless otherwise indicated, all references to “Subsidiary” hereunder shall
mean a Subsidiary of the Borrower.



     “Subsidiary Guarantee Agreement” shall mean the Amended and Restated Subsidiary Guarantee
Agreement made by the Subsidiary Loan Parties in favor of the Collateral Agent for the benefit of
the Lenders, the Existing R/C Lenders and the other holders of Obligations, in form and substance
satisfactory to the Administrative Agent.



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     “Subsidiary Loan Party” shall mean any Consolidated Subsidiary.



     “Taxes” shall mean any and all present or future taxes, levies, imposts, duties, deductions,
charges or withholdings imposed by any Governmental Authority.



     “Term Loan” shall have the meaning set forth in Section 2.2.



     “Term Loan Pro Rata Share” shall mean with respect to all Lenders at any time, a percentage,
the numerator of which shall be the sum of all Lenders’ Term Loans and the denominator of which
shall be the sum of (a) all Lenders’ Term Loans, plus (b) the sum of (i) the outstanding
Revolving Loans, plus (ii) all unpaid LC Disbursements, plus (iii) all outstanding
Letters of Credit, plus (iv) all outstanding Swingline Loans, as all of such terms in this
clause (b) are defined in the Existing Credit Agreement.



     “Term Note” shall mean, if required by any Lender, a promissory note of the Borrower payable
to the order of such Lender in the principal amount of such Lender’s Commitment in substantially
the form of Exhibit A.



     “Total Debt” shall mean, as of any date of determination, total Indebtedness, provided
that for the purpose of this definition, Indebtedness evidenced by Guarantees executed by
any Loan Party for Indebtedness of Non-Consolidated Entities shall be included, and
provided further, Total Debt shall include, without limitation, all (x) Term Loans
under the Loan Documents and (y) Loans and Letter of Credit Exposure under and as defined in the
Existing Credit Agreement.



     “Total Funded Debt” shall mean, at any time, all then currently outstanding obligations,
liabilities and Indebtedness of the Borrower and its Consolidated Subsidiaries, including, without
limitation, the outstanding Term Loans.



     “Total Net Debt” shall mean, as of any date of determination, Total Debt less any cash
balances of the Borrower greater than $25,000,000.



     “Type”, when used in reference to a Term Loan or Borrowing, refers to whether the rate of
interest on such Term Loan, or on the Term Loans comprising such Borrowing, is determined by
reference to the Adjusted LIBO Rate or the Base Rate.



     “Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a complete
or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle
E of Title IV of ERISA.



     Section 1.2 Classifications of Term Loans and Borrowings. For purposes of this
Agreement, Term Loans and Borrowings may be classified and referred to by Type (e.g., a
“Eurodollar Loan” or “Base Rate Loan” or a “Eurodollar Borrowing” or a “Base Rate Borrowing”).



     Section 1.3 Accounting Terms and Determination. Unless otherwise defined or specified
herein, all accounting terms used herein shall be interpreted, all accounting determinations
hereunder shall be made, and all financial statements required to be delivered



19









 







hereunder shall be prepared, in accordance with GAAP as in effect from time to time, applied
on a basis consistent (except for such changes approved by the Borrower’s independent public
accountants) with the most recent audited consolidated financial statement of the Parent delivered
pursuant to Section 5.1(a); provided, that if the Borrower notifies the
Administrative Agent that the Borrower wishes to amend any covenant in Article VI to
eliminate the effect of any change in GAAP on the operation of such covenant (or if the
Administrative Agent notifies the Borrower that the Required Lenders wish to amend Article
VI for such purpose), then the Borrower’s compliance with such covenant shall be determined on
the basis of GAAP in effect immediately before the relevant change in GAAP became effective, until
either such notice is withdrawn or such covenant is amended in a manner satisfactory to the
Borrower and the Required Lenders.



     Section 1.4 Terms Generally. The definitions of terms herein shall apply equally to
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. In the
computation of periods of time from a specified date to a later specified date, the word “from”
means “from and including” and the word “to” means “to but excluding”. Unless the context requires
otherwise (i) any definition of or reference to any agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or other document as it was
originally executed or as it may from time to time be amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications set forth herein),
(ii) any reference herein to any Person shall be construed to include such Person’s successors and
permitted assigns, (iii) the words “hereof”, “herein” and “hereunder” and words of similar import
shall be construed to refer to this Agreement as a whole and not to any particular provision
hereof, (iv) all references to Articles, Sections, Exhibits and Schedules shall be construed to
refer to Articles, Sections, Exhibits and Schedules to this Agreement, and (v) all references to a
specific time shall be construed to refer to the time in the city and state of the Administrative
Agent’s principal office, unless otherwise indicated.



ARTICLE II




AMOUNT AND TERMS OF THE TERM FACILITY




     Section 2.1 General Description of Term Facility. Subject to and upon the terms and
conditions herein set forth, the Lenders hereby establish in favor of the Borrower a term loan
facility pursuant to which the Lenders severally agree (to the extent of each Lender’s Pro Rata
Share up to such Lender’s Commitment) to make a Term Loan to the Borrower in accordance with
Section 2.2.



     Section 2.2 Term Loans. Each of the Lenders severally agrees, on the terms and
conditions hereinafter set forth, to make a single loan (a “Term Loan” and, collectively,
the “Term Loans”) in Dollars to the Borrower on the Closing Date in an amount not to exceed
the Commitment of such Lender at such time. Amounts borrowed under this Section 2.2 and
repaid or prepaid may not be reborrowed.




20









 







     Section 2.3 Funding of Term Loans.




     (a) The Borrower shall give the Administrative Agent irrevocable notice (which notice
must be received by the Administrative Agent prior to 10:00 a.m., one Business Day prior to
the anticipated Closing Date) requesting that the Lenders make the Term Loans on the Closing
Date and specifying the amount to be borrowed. The Term Loans shall initially be Base Rate
Loans and, unless otherwise agreed by the Administrative Agent in its sole discretion, no
Term Loan may be converted into or continued as a Eurodollar Loan having an Interest Period
in excess of one month prior to the date that is 60 days after the Closing Date. Upon
receipt of such notice, the Administrative Agent shall promptly notify each Lender thereof.
Not later than 12:00 noon on the Closing Date, each Lender shall make available to the
Administrative Agent at the Funding Office an amount in immediately available funds equal to
the Term Loan or Term Loans to be made by such Lender. After the Administrative Agent’s
receipt of such funds and upon fulfillment of the applicable conditions set forth in
Article III, the Administrative Agent shall credit the amounts that it receives, in
like funds by the close of business on the Closing Date, to an account maintained by the
Borrower with the Administrative Agent or at the Borrower’s option, by effecting a wire
transfer of such amounts to an account designated by the Borrower to the Administrative
Agent.




     (b) The initial Borrowing shall consist of Term Loans made simultaneously by the
Lenders in accordance with their respective Pro Rata Shares of the aggregate Commitments.
No Lender shall be responsible for any default by any other Lender in its obligations
hereunder, and each Lender shall be obligated to make its Term Loans provided to be made by
it hereunder, regardless of the failure of any other Lender to make its Term Loans
hereunder.



     Section 2.4 Interest Elections.




     (a) The Term Loans may consist of Base Rate Borrowings or Eurodollar Borrowings, or a
combination thereof, as the Borrower may request, subject to Section 2.3(a). The
Borrower may elect to convert such Borrowing into a different Type or to continue such
Borrowing, and in the case of a Eurodollar Borrowing, may elect Interest Periods therefor,
all as provided in this Section 2.4; provided, that any such
conversion or continuation of Eurodollar Loans may only be made on the last day of an
Interest Period with respect thereto unless the Borrower reaffirms its obligation to pay any
amounts owing in respect of such Eurodollar Loan pursuant to Section 2.14.




     (b) To make an election pursuant to this Section, the Borrower shall give the
Administrative Agent prior written notice (or telephonic notice promptly confirmed in
writing) (a “Notice of Conversion/Continuation”) that is to be converted or
continued, as the case may be, (x) prior to 10:00 a.m. one (1) Business Day prior to the
requested date of a conversion into a Base Rate Loan, and (y) prior to 11:00 a.m. three (3)
Business Days prior to a continuation of or conversion into a Eurodollar Loan. Each such
Notice of Conversion/Continuation shall be irrevocable and shall specify: (i) the Term Loans
to which such Notice of Continuation/Conversion applies and if different options are being
elected with respect to different portions thereof, the portions thereof that are to be



21









 







allocated to each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) shall be specified for each resulting Borrowing); (ii)
the effective date of the election made pursuant to such Notice of Continuation/Conversion,
which shall be a Business Day; (iii) whether the resulting Type is to be a Base Rate Loan or
a Eurodollar Loan; and (iv) if the resulting Type is to be a Eurodollar Loan, the Interest
Period applicable thereto after giving effect to such election, which shall be a period
contemplated by the definition of “Interest Period”. If any such Notice of
Continuation/Conversion requests a Eurodollar Loan but does not specify an Interest Period,
the Borrower shall be deemed to have selected an Interest Period of one month. All or any
portion of outstanding Base Rate Loans or Eurodollar Loans may be converted as provided
herein; provided that partial conversions shall be in an aggregate principal amount
of $1,000,000 or a whole multiple of $500,000 in excess thereof.




     (c) If, on the expiration of any Interest Period in respect of any Eurodollar Loan, the
Borrower shall have failed to deliver a Notice of Conversion/Continuation, then, unless such
Eurodollar Loan is repaid as provided herein, the Borrower shall be deemed to have elected
to convert such Eurodollar Loan to a Base Rate Loan. No Term Loan may be converted into, or
continued as, a Eurodollar Loan if a Default or an Event of Default has occurred and is
continuing and the Administrative Agent or the Required Lenders shall have determined in its
or their sole discretion not to permit the continuation or conversion thereof as a
Eurodollar Loan. No conversion of any Eurodollar Loans shall be permitted except on the
last day of the Interest Period in respect thereof, subject to Section 2.4(a).




     (d) Upon receipt of any Notice of Conversion/Continuation, the Administrative Agent
shall promptly notify each Lender of the details thereof and of such Lender’s portion of
each resulting Term Loan.




     (e) The Term Loans may not be outstanding at any time as part of more than five (5)
separate Borrowings comprised of Eurodollar Loans.



     Section 2.5 Repayment of Term Loans. The Term Loans of each Lender shall mature in 28
consecutive quarterly installments payable on the last day of each calendar quarter commencing on
September 30, 2006 with a final installment due on June 7, 2013. The first 27 consecutive
quarterly installments shall be in an amount equal to such Lender’s Pro Rata Share of the aggregate
original principal amount of the Term Loans multiplied by 0.25%, and the last installments payable
on the Maturity Date shall each be in an amount equal to the remaining balance of such Lender’s
Term Loans (in each case which installments shall be reduced as a result of the application of
prepayments in accordance with the order of priority set forth in Section 2.7).



     Section 2.6 Evidence of Indebtedness.




     (a) Each Lender shall maintain in accordance with its usual practice appropriate
records evidencing the indebtedness of the Borrower to such Lender resulting from each Term
Loan made by such Lender from time to time, including the amounts of principal and interest
payable thereon and paid to such Lender from time to time under



22









 







this Agreement. The Administrative Agent shall maintain appropriate records in which
shall be recorded (i) the Commitment of each Lender, (ii) the amount of each Term Loan made
hereunder by each Lender, the Type thereof and the Interest Period applicable thereto, (iii)
the date of each continuation thereof pursuant to Section 2.4, (iv) the date of each
conversion of all or a portion thereof to another Type pursuant to Section 2.4, (v)
the date and amount of any principal or interest due and payable or to become due and
payable from the Borrower to each Lender hereunder in respect of such Term Loans, and (vi)
both the date and amount of any sum received by the Administrative Agent hereunder from the
Borrower in respect of the Term Loans and each Lender’s Pro Rata Share thereof. The entries
made in such records shall be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, that the failure or
delay of any Lender or the Administrative Agent in maintaining or making entries into any
such record or any error therein shall not in any manner affect the obligation of the
Borrower to repay the Term Loans (both principal and unpaid accrued interest) of such Lender
in accordance with the terms of this Agreement.




     (b) At the request of any Lender at any time, the Borrower agrees that it will execute
and deliver to such Lender a Term Note payable to the order of such Lender.



     Section 2.7 Prepayments.




     (a) Optional Prepayments. The Borrower shall have the right at any time and from time
to time to prepay any Borrowing, in whole or in part, without premium or penalty, by giving
irrevocable written notice (or telephonic notice promptly confirmed in writing) to the
Administrative Agent no later than (i) in the case of prepayment of any Eurodollar
Borrowing, 11:00 a.m. not less than three (3) Business Days prior to any such prepayment and
(ii) in the case of any prepayment of any Base Rate Borrowing, 11:00 a.m. not less than one
(1) Business Day prior to the date of such prepayment. Prepayments of any Eurodollar
Borrowing or Base Rate Borrowing shall be in minimum amounts of $1,000,000 and in integral
multiples of $250,000. Each such notice shall be irrevocable and shall specify the proposed
date of such prepayment and the principal amount of each Borrowing or portion thereof to be
prepaid. Upon receipt of any such notice, the Administrative Agent shall promptly notify
each affected Lender of the contents thereof and of such Lender’s Pro Rata Share of any such
prepayment. If such notice is given, the aggregate amount specified in such notice shall be
due and payable on the date designated in such notice, together with accrued interest to
such date on the amount so prepaid in accordance with Section 2.8; provided,
that if a Eurodollar Borrowing is prepaid on a date other than the last day of an
Interest Period applicable thereto, the Borrower shall also pay all amounts required
pursuant to Section 2.14.




     (b) Mandatory Prepayments. At the following times and upon receipt of the same by any
Loan Party, the Borrower shall cause the Administrative Agent to receive for application to
the Term Loans:




     (i) an amount equal to fifty percent (50%) of Net Equity Proceeds within three
(3) Business Days after receipt thereof; provided, that the remaining fifty
percent (50%) either shall be utilized for Permitted Acquisitions or applied to



23









 







prepay the Term Loans, in each case within one hundred eighty (180) days of
receipt thereof; and




     (ii) an amount equal to one hundred (100%) percent of (x) Net Casualty Proceeds
which do not become Reinvested Proceeds within one hundred eighty (180) days of
receipt thereof, (y) Net Debt Issuance Proceeds not used for Permitted Acquisitions
within one hundred eighty (180) days of receipt thereof, and (z) Net Disposition
Proceeds in excess of $10,000,000 in the aggregate which do not become Reinvested
Proceeds within one hundred eighty (180) days after receipt thereof;
provided that the time period of one hundred eighty (180) days shall
be extended to three hundred sixty-five (365) days if Holdings obtains Net
Disposition Proceeds from the sale or transfer of Equity Interests in any of USP
International Holdings, Inc., Global Healthcare Partners, Ltd., United Surgical
Partners Europe, S.L. and/or USPE Holdings, Ltd.


The portion of such Net Casualty Proceeds, Net Debt Issuance Proceeds, Net Equity Proceeds
and Net Disposition Proceeds which are permitted to be reinvested or utilized for Permitted
Acquisitions by the Borrower as provided above shall, immediately upon any Loan Party’s
receipt thereof so long as no Default shall have occurred and be continuing, (1) be applied
by the Borrower to the Term Loans in accordance with clause (d) below, or (2) be
deposited by the Borrower in a cash collateral account in the Borrower’s name maintained
with the Collateral Agent (the “Cash Collateral Account”). So long as no Default
shall have occurred and be continuing, the Borrower may withdraw the applicable proceeds
from the Cash Collateral Account to apply to the Term Loans in accordance with clause
(d) below or for reinvestment or utilization for Permitted Acquisitions, as the case may
be, as provided herein at any time prior to the expiration of the designated period for any
such action as provided above (each, a “Designated Period”). Upon expiration of the
applicable Designated Period and so long as no Default shall have occurred and be
continuing, any proceeds which have not been so reinvested or utilized for Permitted
Acquisitions prior to such time shall be delivered by the Collateral Agent to the
Administrative Agent to be applied to the Term Loans in accordance with clause (d)
below. If, however, a Default shall have occurred and be continuing (A) upon the applicable
Loan Party’s receipt of any such proceeds, then the Borrower shall deliver to the
Administrative Agent the Term Loan Pro Rata Share of such proceeds, or (B) at any time
during any Designated Period, then the Collateral Agent shall withdraw all such proceeds
from the Cash Collateral Account upon the occurrence of such Default and deliver to the
Administrative Agent the Term Loan Pro Rata Share of such proceeds; provided,
that if at any time during the continuance of such Default, the Obligations under
and as defined in the Existing Credit Agreement have been permanently paid in full and there
are no outstanding commitments or Letters of Credit (as defined in the Existing Credit
Agreement) thereunder, then the percentage of such proceeds paid to the Administrative Agent
for application to the Term Loans shall be increased from the Term Loan Pro Rata Share to
one hundred percent (100%) of the amount of such proceeds.





     (c) Notwithstanding anything to the contrary in this Section 2.7, with respect
to the amount of any mandatory prepayment described in clause (b) above (such
amounts,



24









 







the “Prepayment Amount”), the Borrower may at its option, in lieu of applying
such amount to the prepayment of the Term Loans as provided herein, on the date specified in
Section 2.7 for such prepayment, give the Administrative Agent telephonic notice
(promptly confirmed in writing) requesting that the Administrative Agent prepare and provide
to each Lender a notice (each, a “Prepayment Option Notice”) as described below. As
promptly as practicable after receiving such notice from the Borrower, the Administrative
Agent will send to each Lender a Prepayment Option Notice, which shall be in the form of
Exhibit C and shall include a request by the Borrower that the Lenders elect to not
accept their Pro Rata Share of the related Prepayment Amount. Each Lender shall have three
(3) Business Days after receipt of the Prepayment Option Notice (such 3rd Business Day, a
“Mandatory Prepayment Date”) to elect to not receive its Pro Rata Share of the
applicable Prepayment Amount. On the Mandatory Prepayment Date, the Borrower shall pay to
the relevant Lenders the aggregate amount necessary to prepay that portion of the
outstanding relevant Term Loans in respect of which such Lenders have not elected to decline
prepayment as described above; provided, that in the event a Lender does not
return a completed Prepayment Option Notice declining prepayment on or prior to the
applicable Mandatory Prepayment Date, then such Lender shall receive its Pro Rata Share of
the applicable Prepayment Amount on such Mandatory Prepayment Date.




     (d) Each prepayment of the Term Loans by the Borrower pursuant to this Section
2.7 shall be applied to the remaining principal repayment installments of the Term Loans
on a pro rata basis (except as otherwise provided in clause (c) above).



     Section 2.8 Interest on Term Loans.




     (a) The Borrower shall pay interest on each Base Rate Loan at the Base Rate and on each
Eurodollar Loan at the Adjusted LIBO Rate for the applicable Interest Period in effect for
such Term Loan, plus, in each case, the Applicable Margin.




     (b) (i) If all or a portion of the principal amount of any Term Loan shall not be paid
when due (whether at the stated maturity, by acceleration or otherwise), all outstanding
Term Loans (whether or not overdue) shall bear interest at the Default Rate, and (ii) if all
or a portion of any interest payable on any Term Loan or other amount payable hereunder
shall not be paid when due (whether at the stated maturity, by acceleration or otherwise),
such overdue amount shall bear interest at a rate per annum equal to the rate then
applicable to Base Rate Loans plus 2%, in each case, with respect to clauses (i)
and (ii) above, from the date of such non-payment until such amount is paid in full (as
well after as before judgment).




     (c) Interest on the principal amount of all Term Loans shall accrue from and including
the date such Term Loans are made to but excluding the date of any repayment thereof.
Interest on all outstanding Base Rate Loans shall be payable quarterly in arrears on the
last day of each March, June, September and December and on the Maturity Date, as the case
may be, as well as on the date of any prepayment of the Term Loans pursuant to Section
2.7. Interest on all outstanding Eurodollar Loans shall be payable on the last day of
each Interest Period applicable thereto, and, in the case of any Eurodollar Loans



25









 







having an Interest Period in excess of three months or ninety (90) days, respectively,
on each day which occurs every three months or ninety (90) days, as the case may be, after
the initial date of such Interest Period, and on the Maturity Date, as the case may be.
Interest on any Term Loan which is converted into a Term Loan of another Type or which is
repaid or prepaid shall be payable on the date of such conversion or on the date of any such
repayment or prepayment (on the amount repaid or prepaid) thereof. Interest calculated at
the Default Rate shall be payable on demand.




     (d) The Administrative Agent shall determine each interest rate applicable to the Term
Loans hereunder and shall promptly notify the Borrower and the Lenders of such rate in
writing (or by telephone, promptly confirmed in writing). Any such determination shall be
presumed correct for all purposes, absent manifest error.



     Section 2.9 Fees. The Borrower shall pay to the Administrative Agent for its own
account fees in the amounts and at the times previously agreed upon the Borrower and the
Administrative Agent.



     Section 2.10 Computation of Interest and Fees. To the extent permitted by applicable
law, all computations of fees and interest under this Agreement payable in respect of any period
shall be made by the Administrative Agent on the basis of a 360-day year (except with respect to
Base Rate Loans, which shall be made on the basis of a 365- or 366-day year, as the case may be),
in each case for the actual number of days (including the first day but excluding the last day)
occurring in the period for which such fees or interest are payable. Each determination by the
Administrative Agent of an interest amount or fee hereunder shall be made in good faith and, except
for manifest error, shall be presumed correct for all purposes.



     Section 2.11 Inability to Determine Interest Rates. If prior to the commencement of
any Interest Period for any Eurodollar Borrowing,




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




     (b) the Administrative Agent shall have received notice from the Required Lenders that
the Adjusted LIBO Rate does not adequately and fairly reflect the cost to such Lenders (or
Lender, as the case may be) of making, funding or maintaining their (or its, as the case may
be) Eurodollar Loans for such Interest Period;




the Administrative Agent shall give written notice (or telephonic notice, promptly confirmed in
writing) to the Borrower and to the Lenders as soon as practicable thereafter. In the case of
Eurodollar Loans, until the Administrative Agent shall notify the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) the obligations of the Lenders to
continue or convert outstanding Term Loans as or into Eurodollar Loans shall be suspended, and (ii)
all such affected Eurodollar Loans shall be converted into Base Rate Loans on the last day of the
then current Interest Period applicable thereto unless the Borrower prepays such Eurodollar Loans
in accordance with this Agreement.



26









 





     Section 2.12 Illegality. If any Change in Law shall make it unlawful or impossible
for any Lender to make, maintain or fund any Eurodollar Loan and such Lender shall so notify the
Administrative Agent, the Administrative Agent shall promptly give notice thereof to the Borrower
and the other Lenders, whereupon until such Lender notifies the Administrative Agent and the
Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of
such Lender to continue or convert outstanding Term Loans as or into Eurodollar Loans shall be
suspended. Notwithstanding the foregoing, the affected Lender shall, prior to giving such notice
to the Administrative Agent, designate a different Applicable Lending Office if such designation
would avoid the need for giving such notice and if such designation would not otherwise be
disadvantageous to such Lender in the good faith exercise of its discretion.



     Section 2.13 Increased Costs.




     (a) If any Change in Law shall:




     (i) impose, modify or deem applicable any reserve, special deposit or similar
requirement that is not otherwise included in the determination of the Adjusted LIBO
Rate hereunder against assets of, deposits with or for the account of, or credit
extended by, any Lender (except any such reserve requirement reflected in the
Adjusted LIBO Rate); or




     (ii) impose on any Lender or the eurodollar interbank market any other
condition affecting this Agreement or any Eurodollar Loans made by such Lender;




and the result of the foregoing is to increase the cost to such Lender of making, converting
into, continuing or maintaining a Eurodollar Loan or to reduce the amount received or
receivable by such Lender hereunder (whether of principal, interest or any other amount),
then the Borrower shall promptly pay, upon written notice from and demand by such Lender on
the Borrower (with a copy of such notice and demand to the Administrative Agent), to the
Administrative Agent for the account of such Lender, within five (5) Business Days after the
date of such notice and demand, additional amount or amounts sufficient to compensate such
Lender for such additional costs incurred or reduction suffered.




     (b) If any Lender shall have determined that on or after the date of this Agreement any
Change in Law regarding capital requirements has or would have the effect of reducing the
rate of return on such Lender’s capital (or on the capital of such Lender’s parent
corporation) as a consequence of its obligations hereunder to a level below that which such
Lender or such Lender’s parent corporation could have achieved but for such Change in Law
(taking into consideration such Lender’s policies or the policies of such Lender’s parent
corporation with respect to capital adequacy) then, from time to time, within five (5)
Business Days after receipt by the Borrower of written demand by such Lender (with a copy
thereof to the Administrative Agent), the Borrower shall pay to such Lender such additional
amounts as will compensate such Lender or such Lender’s parent corporation for any such
reduction suffered.



27









 






     (c) A certificate of a Lender setting forth the amount or amounts necessary to
compensate such Lender or such Lender’s parent corporation, as the case may be, specified in
paragraph (a) or (b) of this Section shall be delivered to the Borrower (with a copy to the
Administrative Agent) and shall be presumed correct, absent manifest error. The Borrower
shall pay any such Lender such amount or amounts within five (5) Business Days after receipt
thereof.




     (d) Failure or delay on the part of any Lender to demand compensation pursuant to this
Section shall not constitute a waiver of such Lender’s right to demand such compensation.



     Section 2.14 Funding Indemnity. In the event of (a) the payment of any principal of a
Eurodollar Loan other than on the last day of the Interest Period applicable thereto (including as
a result of an Event of Default), (b) the conversion or continuation of a Eurodollar Loan other
than on the last day of the Interest Period applicable thereto, or (c) the failure by the Borrower
to borrow, prepay, convert or continue any Eurodollar Loan on the date specified in any applicable
notice (regardless of whether such notice is withdrawn or revoked), then, in any such event, the
Borrower shall compensate each Lender, within five (5) Business Days after written demand from such
Lender, for any loss, cost or expense attributable to such event. In the case of a Eurodollar
Loan, such loss, cost or expense shall be deemed to include an amount determined by such Lender to
be the excess, if any, of (A) the amount of interest that would have accrued on the principal
amount of such Eurodollar Loan if such event had not occurred at the Adjusted LIBO Rate applicable
to such Eurodollar Loan for the period from the date of such event to the last day of the then
current Interest Period therefor (or in the case of a failure to borrow, convert or continue, for
the period that would have been the Interest Period for such Eurodollar Loan) over (B) the
amount of interest that would accrue on the principal amount of such Eurodollar Loan for the same
period if the Adjusted LIBO Rate were set on the date such Eurodollar Loan was prepaid or converted
or the date on which the Borrower failed to borrow, convert or continue such Eurodollar Loan. A
certificate as to any additional amount payable under this Section 2.14 submitted to the
Borrower by any Lender shall be presumed correct, absent manifest error.



     Section 2.15 Taxes.




     (a) Any and all payments by or on account of any obligation of the Borrower hereunder
shall be made free and clear of and without deduction for any Indemnified Taxes or Other
Taxes; provided, that if the Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be
increased as necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the Administrative Agent, any
Lender shall receive an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions, and (iii) the Borrower
shall pay the full amount deducted to the relevant Governmental Authority in accordance with
applicable law.




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



28









 






     (c) The Borrower shall indemnify the Administrative Agent and each Lender, within five
(5) Business Days after written demand therefor, for the full amount of any Indemnified
Taxes or Other Taxes paid by the Administrative Agent or such Lender, as the case may be, on
or with respect to any payment by or on account of any obligation of the Borrower hereunder
(including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) and any penalties, interest and reasonable expenses
arising therefrom or with respect thereto as a result of the Borrower’s failure to comply
with this Section 2.15(c) in a timely manner, whether or not such Indemnified Taxes
or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender, or by the Administrative Agent on its own behalf or on behalf of a
Lender, shall be presumed correct absent manifest error.




     (d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower to a Governmental Authority, the Borrower shall deliver to the Administrative Agent
the original or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.




     (e) Any Foreign Lender that is entitled to an exemption from or reduction of
withholding tax under the law of the jurisdiction in which the Borrower is located, or any
treaty to which such jurisdiction is a party, with respect to payments under this Agreement
shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or
times prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Borrower as will permit such
payments to be made without withholding or at a reduced rate. Without limiting the
generality of the foregoing, each Foreign Lender agrees that it will deliver to the
Administrative Agent and the Borrower (or in the case of a Participant, to the Lender from
which the related participation shall have been purchased) two copies of either U.S.
Internal Revenue Service Form W-8BEN or Form W-8ECI, or, in the case of a Foreign Lender
claiming exemption from U.S. federal withholding tax under Section 871(h) or 881(c) of the
Code with respect to payments of “portfolio interest”, a statement substantially in the form
of Exhibit G and a Form W-8BEN, or any subsequent versions thereof or successors thereto,
properly completed and duly executed by such Foreign Lender claiming complete exemption
from, or a reduced rate of, U.S. federal withholding tax on all payments by the Borrower
under this Agreement and the other Loan Documents. Such forms shall be delivered by each
Foreign Lender on or before the date it becomes a party to this Agreement (or, in the case
of any Participant, on or before the date such Participant purchases the related
participation). In addition, each Foreign Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Foreign Lender. Each
such Lender shall promptly notify the Borrower and the Administrative Agent at any time that
it determines that it is no longer in a position to provide any previously delivered
certificate to the Borrower (or any other form of certification adopted by the U.S. taxing
authorities for such purpose).



29









 






     (f) For any period with respect to which a Lender has failed to provide the Borrower
with the appropriate form pursuant to Section 2.15(e), such Lender shall not be
entitled to indemnification under this Section 2.15 or Section 10.3 with
respect to any Indemnified Taxes or Other Taxes which would not have been payable had such
form been so provided; provided that if a Lender, which is otherwise exempt
from or subject to a reduced rate of withholding tax, becomes subject to Indemnified Taxes
because of its failure to deliver a form required hereunder, the Borrower shall take such
steps as such Lender shall reasonably request to assist such Lender to recover such
Indemnified Taxes (it being understood, however, that the Borrower shall have no liability
to such Lender in respect of such Indemnified Taxes).



     Section 2.16 Payments Generally; Pro Rata Treatment; Sharing of Set-Offs.




     (a) The Borrower shall make each payment required to be made by it hereunder (whether
of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable
under Section 2.13, Section 2.14 or Section 2.15, or otherwise)
prior to 12:00 noon, on the Business Day when due, in immediately available funds, without
set-off or counterclaim. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on the next
succeeding Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at the Payment Office, except that payments
pursuant to Section 2.13, Section 2.14, Section 2.15 and Section
10.3 shall be made directly to the Persons entitled thereto. The Administrative Agent
shall distribute any such payments received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof. If any payment hereunder shall be
due on a day that is not a Business Day, the date for payment shall be extended to the next
succeeding Business Day, and, in the case of any payment accruing interest, interest thereon
shall be made payable for the period of such extension. All payments hereunder shall be
made in Dollars.




     (b) If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, interest and fees then due
hereunder, such funds shall be distributed and applied: (i) first, to the payment of
all of the fees, indemnification payments, costs and expenses that are due and payable to
the Administrative Agent (solely in its capacity as Administrative Agent) under and in
respect of this Agreement and the other Loan Documents on such date; (ii) second, to
the payment of all of the fees, indemnification payments, costs and expenses that are due
and payable to the Lenders under and in respect of this Agreement and the other Loan
Documents on such date, ratably in accordance with the respective aggregate amounts thereof
owing to the Lenders on such date; (iii) third, to the payment of all of the amounts
that are due and payable to the Lenders under Sections 2.13, 2.14 and 2.15 hereof
and comparable provisions of the other Loan Documents on such date, ratably in accordance
with the respective aggregate amounts thereof owing to the Lenders on such date; (iv)
fourth, to the payment of all of the accrued and unpaid interest on the Obligations
that is due and payable to the Administrative Agent and the Lenders under Section
2.8 on such date, ratably in accordance with the respective aggregate amounts of all
such interest owing to the Lenders on such date; (v) fifth, to the payment of the
principal amount of all



30









 







of the outstanding Term Loans that is due and payable to the Lenders on such date,
ratably in accordance with the respective aggregate amounts of all such outstanding
principal owing to the Lenders on such date; and (vii) sixth, to the payment of the
remaining Obligations, ratably in accordance with the respective aggregate amounts of all
such remaining Obligations and other obligations owing to the Lenders and such Persons on
such date.




     (c) Subject to the provisions of Section 8.2, if any Lender shall, by
exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of
any principal of or interest on any of its Term Loans that would result in such Lender
receiving payment of a greater proportion of the aggregate amount of its Term Loans and
accrued interest thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value) participations in
the Term Loans to the extent necessary so that the benefit of all such payments shall be
shared by the Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Term Loans; provided, that (i) if any
such participations are purchased and all or any portion of the payment giving rise thereto
is recovered, such participations shall be rescinded and the purchase price restored to the
extent of such recovery, without interest, and (ii) the provisions of this paragraph shall
not be construed to apply to any payment made by the Borrower pursuant to and in accordance
with the express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its Term Loans to
any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate
thereof (as to which the provisions of this paragraph shall apply). The Borrower consents
to the foregoing and agrees, to the extent it may effectively do so under applicable law,
that any Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against the Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Borrower in the
amount of such participation.




     (d) Unless the Administrative Agent shall have received notice from the Borrower prior
to the date on which any payment is due to the Administrative Agent for the account of the
Lenders hereunder that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders the amount or amounts due. In
such event, if the Borrower has not in fact made such payment, then each of the Lenders
severally agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender with interest thereon, for each day from and including the date
such amount is distributed to it to but excluding the date of payment to the Administrative
Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank compensation.




     (e) If any Lender shall fail to make any payment required to be made by it pursuant to
Section 2.16(d) or 10.3(b), then the Administrative Agent may, in its
discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter
received by the Administrative Agent for the account of such Lender to satisfy such



31









 







Lender’s obligations under such Sections until all such unsatisfied obligations are
fully paid.



     Section 2.17 Mitigation of Obligations. If any Lender requests compensation under
Section 2.13, or if the Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section 2.15, then
such Lender shall use reasonable efforts to designate a different lending office for funding or
booking its Term Loans hereunder or to assign its rights and obligations hereunder to another of
its offices, branches or affiliates, if, in the sole judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable under Section 2.13 or Section
2.15, as the case may be, in the future, and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The
Borrower hereby agrees to pay all costs and expenses incurred by any Lender in connection with such
designation or assignment.



     Section 2.18 Replacement of Lenders. Upon the occurrence of an event giving rise to
the operation of Section 2.12, Section 2.13 or Section 2.15 with respect to
any Lender which results in such Lender charging to the Borrower increased costs or such other
amounts due thereunder, the Borrower shall have the right, if no Default or Event of Default then
exists, and if no Default or Event of Default will exist immediately after giving effect to such
replacement), to replace such Lender (the “Replaced Lender”) with one or more other
Eligible Transferees (collectively, the “Replacement Lender”) and each of whom shall be
required to be reasonably acceptable to the Administrative Agent; provided, that
(i) at the time of any replacement pursuant to this Section, the Replacement Lender shall enter
into one or more Assignment and Acceptance pursuant to Section 10.4 (and with all fees
payable pursuant to said Section to be paid by the Replacement Lender) pursuant to which the
Replacement Lender shall acquire all of the outstanding Term Loans of the Replaced Lender and, in
connection therewith, shall pay to the Replaced Lender in respect thereof an amount equal to the
sum of (I) an amount equal to the principal of, and all accrued interest on, all outstanding Term
Loans of the Replaced Lender and (II) an amount equal to all accrued, but theretofore unpaid, fees
owing to the Replaced Lender, and (ii) all obligations of the Borrower due and owing to the
Replaced Lender at such time shall be paid in full to such Replaced Lender concurrently with such
replacement. Upon the execution of the respective Assignment and Acceptance, the payment of
amounts referred to in clauses (i) and (ii) above and delivery to the Replacement Lender of the
appropriate Term Note executed by the Borrower, the Replacement Lender shall become a Lender
hereunder and the Replaced Lender shall cease to constitute a Lender hereunder, except with respect
to indemnification provisions under this Agreement, which shall survive as to such Replaced Lender.



ARTICLE III




CONDITIONS PRECEDENT TO TERM LOANS




     Section 3.1 Conditions To Effectiveness. The obligations of the Lenders to make Term
Loans hereunder shall not become effective until the date on which each of the following conditions
is satisfied (or waived in accordance with Section 10.2):



32









 






     (a) The Administrative Agent shall have received all fees and other amounts due and
payable on or prior to the Closing Date, including reimbursement or payment of all
out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to
the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under
any other Loan Document and under any agreement with the Administrative Agent or Bear,
Stearns & Co. Inc., as a lead arranger.




     (b) The Administrative Agent (or its counsel) shall have received the following:




     (i) a counterpart of this Agreement signed by or on behalf of each party
thereto or written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page of this Agreement) that
such party has signed a counterpart of this Agreement;




     (ii) if requested by any Lender, a duly executed Term Note payable to such
Lender;




     (iii) a duly executed Parent Guarantee Agreement, Holdings Guarantee Agreement,
and Subsidiary Guarantee Agreement;




     (iv) duly executed Security Documents, together with appropriate stock
certificates;




     (v) a duly executed amendment to the Existing Credit Agreement, which such
amendment shall be in full force and effect on the Closing Date and otherwise in
form and substance satisfactory to the Administrative Agent;




     (vi) a certificate of the Secretary or Assistant Secretary of each Loan Party,
attaching and certifying copies of its bylaws, partnership agreement or operating
agreement (as the case may be) and of the resolutions of its boards of directors or
equivalent governing body, authorizing the execution, delivery and performance of
the Loan Documents to which it is a party and certifying the name, title and true
signature of each officer of such Loan Party executing the Loan Documents to which
it is a party;




     (vii) certified copies of the articles of incorporation or other charter
documents of each Loan Party, together with certificates of good standing or
existence, as may be available from the Secretary of State of the jurisdiction of
incorporation of each and each other jurisdiction where such Loan Party is required
to be qualified to do business as a foreign corporation;




     (viii) executed legal opinions of: (x) Boult, Cummings, Conners & Berry, PLC,
Tennessee counsel to the Loan Parties; (y) Akin Gump Strauss Hauer & Feld LLP, New
York counsel to the Loan Parties; and (z) Jason Cagle, Esq., general counsel of the
Parent, addressed to the Administrative Agent and the Lenders, the Collateral Agent
and the administrative agent under the Existing



33









 







Credit Agreement, in each case in form and substance satisfactory to the
Administrative Agent;




     (ix) a certificate, dated the Closing Date and signed by a Responsible Officer,
confirming compliance with the conditions set forth in paragraphs (d) and
(e) of this Section 3.1;




     (x) a duly executed funds disbursement agreement;




     (xi) certified copies of all consents, approvals, authorizations,
registrations, or filings required to be made or obtained by each Loan Party in
connection with the Loan Documents and any transaction being financed with the
proceeds of the Term Loans as of the Closing Date;




     (xii) if not already in the possession of the Administrative Agent, the
consolidated financial statements of the Parent for the fiscal years ended 2003,
2004 and 2005, including balance sheets, income and cash flow statements audited by
independent public accountants of recognized national standing and prepared in
conformity with GAAP, and the consolidated financial statements of the Parent for
the fiscal quarter and six (6) month period ending June 30, 2006;




     (xiii) copies of certificates of insurance issued on behalf of insurers of the
Borrower and all Guarantors, describing in reasonable detail the types and amounts
of insurance (property and liability) maintained by the Borrower and all Guarantors,
naming the Collateral Agent as additional insured;




     (xiv) such other financial information as reasonably required by the
Administrative Agent; and




     (xv) such other documents, certificates or information as the Administrative
Agent or the Required Lenders may reasonably request, all in form and substance
reasonably satisfactory to the Administrative Agent or the Required Lenders.




     (c) Each document (including any Uniform Commercial Code financing statement) required
by the Security Documents or under law or reasonably requested by the Administrative Agent
to be filed, registered or recorded in order to create in favor of the Collateral Agent, for
the benefit of the Lenders and the lenders party to the Existing Credit Agreement, a
perfected Lien on the Collateral described therein, prior and superior in right to any other
Person, shall be in proper form for filing, registration or recordation.




     (d) No Default or Event of Default shall have occurred and be continuing.




     (e) All representations and warranties of each Loan Party set forth in the Loan
Documents shall be true and correct in all material respects.



     Section 3.2 Delivery of Documents. All of the Loan Documents, certificates, legal
opinions and other documents and papers referred to in this Article III, unless otherwise



34









 







specified, shall be delivered to the Collateral Agent (with a copy to the Administrative
Agent) or the Administrative Agent, as the case may be, for the account of each of the Lenders and,
except for the Term Notes, in sufficient counterparts or copies for each of the Lenders and shall
be in form and substance satisfactory in all respects to the Administrative Agent.



ARTICLE IV




REPRESENTATIONS AND WARRANTIES




     The Borrower represents and warrants to the Administrative Agent and each Lender as follows:



     Section 4.1 Existence; Power. Each of the Borrower, the Loan Parties, and the
Borrower’s Subsidiaries (i) is duly organized, validly existing and in good standing as a
corporation under the laws of the jurisdiction of its organization, (ii) has all requisite power
and authority to carry on its business as now conducted, and (iii) is duly qualified to do
business, and is in good standing, in each jurisdiction where such qualification is required,
except where a failure to be so qualified could not reasonably be expected to result in a Material
Adverse Effect.



     Section 4.2 Organizational Power; Authorization. The execution, delivery and
performance by each Loan Party of the Loan Documents to which it is a party are within such Loan
Party’s organizational powers and have been duly authorized by all necessary organizational action.
This Agreement has been duly executed and delivered by the Borrower, and constitutes, and each
other Loan Document to which any Loan Party is a party, when executed and delivered by such Loan
Party and the other parties thereto, will constitute, valid and binding obligations of the Borrower
or such Loan Party (as the case may be), enforceable against it in accordance with their respective
terms.



     Section 4.3 Governmental Approvals; No Conflicts. The execution, delivery and
performance by the Borrower of this Agreement, and by each Loan Party of the other Loan Documents
to which it is a party, (a) do not require any consent or approval of, registration or filing with,
or any action by, any Governmental Authority, except those as have been obtained or made and are in
full force and effect or where the failure to do so, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect, (b) will not violate any applicable law
or regulation or the charter, by-laws or other organizational documents of any Loan Party or to the
best of Borrower’s knowledge, will not violate any applicable law or regulation or the charter,
bylaws or other organizational documents of any of Borrower’s Subsidiaries or any order of any
Governmental Authority, (c) will not violate or result in a default under any indenture, material
agreement (including the Existing Credit Agreement and the related loan documentation) or other
material instrument binding on any Loan Party or any of its assets or give rise to a right
thereunder to require any payment to be made by any Loan Party and to the best of Borrower’s
knowledge, will not violate or result in a default under any indenture, material agreement
(including the Existing Credit Agreement and the related loan documentation) or other material
instrument binding on any of the Borrower’s Subsidiaries or any assets of such Subsidiaries or give
rise to a right thereunder to require any payment to be made by any of Borrower’s Subsidiaries, and
(d) will not result in the creation or



35









 







imposition of any Lien on any asset of the Borrower or any of its Subsidiaries or any Loan
Party, except Liens created under the Loan Documents.



     Section 4.4 Financial Statements. The Borrower has furnished to each Lender (a) the
audited consolidated balance sheet of the Parent and its Subsidiaries as of December 31, 2003,
December 31, 2004 and December 31, 2005 and the related consolidated statements of income,
shareholders’ equity and cash flows for the fiscal year then ended prepared by KPMG, LLP, and (b)
the unaudited consolidated balance sheet of the Parent and its Subsidiaries as at the end of the
June 30, 2006, and the related unaudited consolidated statements of income and cash flows for the
fiscal quarter and year-to- date period then ending, certified by a Responsible Officer. Such
financial statements fairly present the consolidated financial condition of the Parent and its
Subsidiaries as of such dates and the consolidated results of operations for such periods in
conformity with GAAP consistently applied, subject to year end audit adjustments and the absence of
footnotes in the case of the statements referred to in clause (b). Since December 31, 2005, there
have been no events, developments or changes with respect to the Parent and its Subsidiaries which
have had or could reasonably be expected to have, singly or in the aggregate, a Material Adverse
Effect.



     Section 4.5 Litigation and Environmental Matters.




     (a) No litigation, investigation or proceeding of or before any arbitrators or
Governmental Authorities is pending against or, to the knowledge of the Borrower, threatened
against or affecting the Borrower or any of its Subsidiaries or any Loan Party (i) as to
which there is a reasonable possibility of an adverse determination that could reasonably be
expected to have, either individually or in the aggregate, a Material Adverse Effect, or
(ii) which in any manner draws into question the validity or enforceability of this
Agreement or any other Loan Document.




     (b) Except for the matters set forth on Schedule 4.5(b), neither the Borrower
nor to the best of Borrower’s knowledge, any of its Subsidiaries nor any Loan Party (i) has
failed to comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (ii) has become
subject to any Environmental Liability, (iii) has received notice of any claim with respect
to any Environmental Liability, or (iv) knows of any basis for any Environmental Liability.



     Section 4.6 Compliance with Laws and Agreements. The Borrower, each Loan Party, and
to the best of Borrower’s knowledge, each Subsidiary of Borrower is in compliance with (a) all
applicable laws, rules, regulations and orders of any Governmental Authority, and (b) all
indentures, agreements or other instruments binding upon it or its properties, except where
non-compliance, either singly or in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect.



     Section 4.7 Investment Company Act, Etc. Neither the Borrower nor any Loan Party nor,
to the best of Borrower’s knowledge, any Subsidiary is (a) an “investment company”, as defined in,
or subject to regulation under, the Investment Company Act of 1940, as amended, (b) a “holding
company”, an “electric utility company”, a “gas utility company”, or an affiliate or



36









 







subsidiary of a “holding company”, each as defined in the Public Utility Holding Company Act
of 2005 and the implementing regulations promulgated thereunder, or (c) otherwise subject to any
other regulatory scheme limiting its ability to incur debt.



     Section 4.8 Taxes. The Borrower and each Loan Party and to the best of Borrower’s
knowledge, each Subsidiary, have timely filed or caused to be filed all Federal income tax returns
and all other material tax returns that are required to be filed by them, and have paid all taxes
shown to be due and payable on such returns or on any assessments made against it or its property
and all other taxes, fees or other charges imposed on it or any of its property by any Governmental
Authority, except (a) to the extent the failure to do so would not have a Material Adverse Effect,
or (b) where the same are currently being contested in good faith by appropriate proceedings and
for which the Borrower or such Subsidiary or such other Loan Party, as the case may be, has set
aside on its books adequate reserves.



     Section 4.9 Margin Regulations. None of the proceeds of any of the Term Loans will be
used for “purchasing” or “carrying” any “margin stock” within the respective meanings of each of
such terms under Regulation U as now and from time to time hereafter in effect (except in a manner
that is permitted by Regulation U) or for any purpose that violates the provisions of Regulation T,
U, or X promulgated by the Board of Governors of the Federal Reserve System.



     Section 4.10 ERISA. No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events for which liability is reasonably
expected to occur, could reasonably be expected to result in a Material Adverse Effect. The
present value of all accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Statement of Financial Accounting Standards No. 87) did not, as of the date of the
most recent financial statements reflecting such amounts, exceed by more than $5,000,000 the fair
market value of the assets of such Plan, and the present value of all accumulated benefit
obligations of all underfunded Plans (based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than $5,000,000 the fair market value of the
assets of all such underfunded Plans.



     Section 4.11 Ownership of Property.




     (a) Each of the Borrower, each Loan Party, and, to the best of Borrower’s knowledge,
each Subsidiary has good title to, or valid leasehold interests in, all of its real and
personal property material to the operation of its business.




     (b) Each of the Borrower, each Loan Party, and, to the best of Borrower’s knowledge,
each Subsidiary owns, or is licensed, or otherwise has the right, to use, all patents,
trademarks, service marks, tradenames, copyrights and other intellectual property material
to its business, and the use thereof by the Borrower and its Subsidiaries does not infringe
on the rights of any other Person, except for any such infringements that, individually or
in the aggregate, would not have a Material Adverse Effect.



     Section 4.12 Disclosure. The Borrower has disclosed to the Lenders all agreements,
instruments, and corporate or other restrictions to which the Borrower or any Loan Party, or, to



37









 







the best of Borrower’s knowledge, each Subsidiary is subject, and all other matters known to
any of them, that, individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. Neither the Information Memorandum nor any of the reports (including
without limitation all reports that any Loan Party is required to file with the Securities and
Exchange Commission), financial statements, certificates or other information (except
forward-looking information and projections) furnished by or on behalf of the Borrower to the
Administrative Agent or to any Lender in connection with the negotiation or syndication of this
Agreement or any other Loan Document or delivered hereunder or thereunder (as modified or
supplemented by any other information so furnished) contains any material misstatement of fact or
omits to state any material fact necessary to make the statements therein, taken as a whole, in
light of the circumstances under which they were made, not misleading. The projections and
forward-looking information contained in the materials referenced above are based upon good faith
estimates and assumptions believed by management of the Borrower to be reasonable at the time made,
it being recognized by the Lenders that such financial information as it relates to future events
is not to be viewed as fact and that actual results during the period or periods covered by such
financial information may differ from the projected results set forth therein by a material amount.



     Section 4.13 Labor Relations. There are no strikes, lockouts or other material labor
disputes or grievances against the Borrower or any Loan Party, or, to the best of Borrower’s
knowledge, each Subsidiary, or, to the Borrower’s knowledge, threatened against or affecting the
Borrower or any of its Subsidiaries or any Loan Party, and no significant unfair labor practice,
charges or grievances are pending against the Borrower or any of its Subsidiaries or any Loan
Party, or to the Borrower’s knowledge, threatened against any of them before any Governmental
Authority. All payments due from the Borrower or any of its Subsidiaries or any Loan Party,
pursuant to the provisions of any collective bargaining agreement have been paid or accrued as a
liability on the books of the Borrower or any Loan Party, or, to the best of Borrower’s knowledge,
each Subsidiary except where the failure to do so could not reasonably be expected to have a
Material Adverse Effect.



     Section 4.14 Subsidiaries. Schedule 4.14 sets forth the name of, the
ownership interest of the Borrower in, the jurisdiction of incorporation of, and the type of, each
Subsidiary and identifies each Subsidiary that is a Guarantor, in each case as of the Closing Date.



     Section 4.15 Foreign Assets Control Regulations, Etc. Neither the making of any Term
Loan nor the use of the proceeds thereof will violate (a) the Trading with the Enemy Act, as
amended, or any of the foreign assets control regulations of the United States Treasury Department
(31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating
thereto, (b) the Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001 (the “Patriot Act”) or (c) Executive Order No.
13,224, 66 Fed. Reg. 49,079 (2001), issued by the President of the United States (Executive Order
Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit or
Support Terrorism). Without limiting the foregoing, neither Borrower nor any of its Subsidiaries
is or will become a “blocked person” as described in Section 1 of such Executive Order or engages
or will engage in any dealings or transactions with, or is otherwise associated with, any such
blocked person.



38









 





     Section 4.16 Solvency. The Borrower and its Consolidated Subsidiaries are now solvent
(with the fair market value of the Borrower’s consolidated assets exceeding its consolidated Total
Debt) and shall remain solvent so long as the principal of or interest on or any Term Loan remains
unpaid or any fee payable hereunder or under any Loan Document remains unpaid.



     Section 4.17 Senior Debt. Under the terms of all existing Permitted Subordinated
Debt, the Obligations constitute senior debt for the purposes set forth in the documents evidencing
such Permitted Subordinated Debt.



ARTICLE V




AFFIRMATIVE COVENANTS




     The Borrower covenants and agrees that so long as the principal of and interest on any Term
Loan or any fee payable hereunder or any under Loan Document remains unpaid:



     Section 5.1 Financial Statements and Other Information. The Borrower will deliver to
the Administrative Agent and each Lender:




     (a) as soon as available and in any event within ninety (90) days after the end of each
fiscal year of Parent, a copy of the annual unqualified audited report for such fiscal year
for the Parent and its Subsidiaries, containing a consolidated balance sheet of the Parent
and its Subsidiaries as of the end of such fiscal year and the related consolidated
statements of income, stockholders’ equity and cash flows (together with all footnotes
thereto) of the Parent and its Subsidiaries for such fiscal year, setting forth in each case
in comparative form the figures for the previous fiscal year, all in reasonable detail and
reported on by KPMG, LLP or other independent public accountants of nationally recognized
standing (without a “going concern” or like qualification, exception or explanation and
without any qualification or exception as to scope of such audit) to the effect that such
financial statements present fairly in all material respects the financial condition and the
results of operations of the Parent and its Subsidiaries for such fiscal year on a
consolidated basis in accordance with GAAP and that the examination by such accountants in
connection with such consolidated financial statements has been made in accordance with
generally accepted auditing standards;




     (b) concurrently with the delivery of the financial statements referred to in clause
(a) above, the consolidated balance sheet of the Borrower and its Consolidated Subsidiaries
as of the end of such fiscal year and the related consolidated statements of income and cash
flows of the Borrower and its Consolidated Subsidiaries for such fiscal year, setting forth
in each case in comparative form the figures for the previous fiscal year;




     (c) as soon as available and in any event within forty-five (45) days after the end of
each of the first three fiscal quarters of each fiscal year of the Parent and the Borrower,
an unaudited consolidated balance sheet of the Parent and its consolidated subsidiaries and
an unaudited consolidated balance sheet of Borrower and its



39









 







Consolidated Subsidiaries as of the end of such fiscal quarter and the related
unaudited consolidated statements of income and cash flows of the Parent and its
consolidated subsidiaries and the Borrower and its Consolidated Subsidiaries, as applicable,
for such fiscal quarter and the then elapsed portion of such fiscal year, setting forth in
each case in comparative form the figures for the corresponding quarter and the
corresponding portion of the previous fiscal year, all certified by the chief financial
officer or treasurer of the Parent and/or Borrower, as applicable, as presenting fairly in
all material respects the financial condition and results of operations of the Parent and
its consolidated subsidiaries and the Borrower and its Consolidated Subsidiaries, as
applicable, on a consolidated basis in accordance with GAAP, subject to normal year-end
audit adjustments and the absence of footnotes;




     (d) concurrently with the delivery of the financial statements referred to in
clauses (a), (b), and (c) above, a certificate of a Responsible Officer, (i)
certifying as to statements consistent with the applicable requirements of the Securities
and Exchange Commission, (ii) certifying as to whether there exists a Default or Event of
Default on the date of such certificate, and if a Default or an Event of Default then
exists, specifying the details thereof and the action which the Parent or Borrower has taken
or proposes to take with respect thereto, (iii) setting forth in reasonable detail
calculations demonstrating Borrower’s compliance with Article VI and the covenants
set forth in Sections 7.1(g), 7.4(g), 7.4(h), 7.5(iv) and 7.6(c), (iv) stating
whether any change in GAAP or the application thereof has occurred since the date of the
Parent’s audited financial statements referred to in Section 4.4 and, if any change
has occurred, specifying the effect of such change on the financial statements accompanying
such certificate; and (v) attaching a certified copy of the balance sheet, income statement,
and statement of cash flows for the Parent and its Subsidiaries and the Borrower and its
Subsidiaries on a consolidated basis for such time period;




     (e) concurrently with the delivery of the financial statements referred to in
clause (a) above, a certificate of the accounting firm that reported on such
financial statements stating whether they obtained any knowledge during the course of their
examination of such financial statements of any Default or Event of Default (which
certificate may be limited to the extent required by accounting rules or guidelines);




     (f) promptly after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or all functions of said
Commission, or with any national securities exchange, or distributed by the Parent to its
shareholders generally, as the case may be, but excluding all filings posted by the Borrower
on EDGAR;




     (g) promptly following any request therefor, such other information regarding the
results of operations, business affairs and financial condition of the Borrower or any
Subsidiary as the Administrative Agent or any Lender may reasonably request;




     (h) as soon as available and in any event within forty-five (45) days after the end of
each fiscal quarter, copies of the quarterly facility reports (detailing EBITDA and



40









 







debt for each facility) prepared by the Borrower for the most recently concluded fiscal
quarter;




     (i) promptly upon receipt thereof, copies of all “management letters” submitted to any
Loan Party by the independent public accountants referred to in clause (a) above in
connection with each audit made by such accountants;




     (j) promptly following the mailing or receipt of any notice or report delivered under
the terms of any Permitted Subordinated Debt, copies of such notice or report;




     (k) unless otherwise delivered hereunder or under the Loan Documents, promptly
following the mailing or receipt of any notice or report delivered under the terms of the
Existing Credit Agreement or any related loan documentation, copies of such notice or
report; and




     (l) no later than five (5) Business Days prior to the effectiveness thereof, copies of
substantially final drafts of any proposed amendment, supplement, waiver or other
modification with respect to the Existing Credit Agreement or the related loan
documentation.



     Section 5.2 Notices of Material Events. The Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the following:




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




     (b) the filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or, to the knowledge of the Borrower, affecting
the Borrower or any Subsidiary or any Loan Party which, if adversely determined, could
reasonably be expected to result in a Material Adverse Effect;




     (c) the occurrence of any event or any other development by which the Borrower or any
of its Consolidated Subsidiaries or any Loan Party (i) fails to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or other
approval required under any Environmental Law, (ii) becomes subject to any Environmental
Liability, (iii) receives notice of any claim with respect to any Environmental Liability,
or (iv) becomes aware of any basis for any Environmental Liability and in each of the
preceding clauses, which individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect;




     (d) the occurrence of any ERISA Event that alone, or together with any other ERISA
Events that have occurred, could reasonably be expected to result in liability of the
Borrower and its Subsidiaries or any Loan Party in an aggregate amount exceeding $5,000,000;
and




     (e) any other development that results in, or could reasonably be expected to result
in, a Material Adverse Effect.



41









 





     Each notice delivered under this Section shall be accompanied by a written statement of a
Responsible Officer setting forth the details of the event or development requiring such notice and
any action taken or proposed to be taken with respect thereto.



     Section 5.3 Existence; Conduct of Business. The Borrower will, and will cause each of
its Consolidated Subsidiaries and each Loan Party to, do or cause to be done all things necessary
to preserve, renew and maintain in full force and effect its legal existence and its respective
rights, licenses, permits, privileges, franchises, patents, copyrights, trademarks and trade names
material to the conduct of its business and will continue to engage in the same business as
presently conducted or such other businesses that are reasonably related thereto; provided,
that nothing in this Section shall prohibit any merger, consolidation, conversion,
liquidation or dissolution permitted under Section 7.3.



     Section 5.4 Compliance with Laws, Etc. The Borrower will, and will cause each of its
Consolidated Subsidiaries and each Loan Party to, comply with all laws, rules, regulations and
requirements of any Governmental Authority applicable to its properties, except where the failure
to do so, either individually or in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect.



     Section 5.5 Payment of Obligations. The Borrower will, and will cause each of its
Consolidated Subsidiaries and each Loan Party to, pay and discharge at or before maturity, all of
its obligations and liabilities (including without limitation all tax liabilities and claims that
could result in a statutory Lien) before the same shall become delinquent or in default, except
where (a) the validity or amount thereof is being contested in good faith by appropriate
proceedings, (b) the Borrower or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP, and (c) the failure to make payment pending such contest
could not reasonably be expected to result in a Material Adverse Effect.



     Section 5.6 Books and Records. The Borrower will, and will cause each of its
Subsidiaries and each Loan Party to, keep proper books of record and account in which full, true
and correct entries shall be made of all dealings and transactions in relation to its business and
activities to the extent necessary to prepare the consolidated financial statements of Borrower in
conformity with GAAP.



     Section 5.7 Visitation, Inspection, Etc. The Borrower will, and will cause each of
its Subsidiaries and each Loan Party to, permit any representative of any Agent or any Lender, to
visit and inspect its properties, to examine its books and records and to make copies and take
extracts therefrom, and to discuss its affairs, finances and accounts with any of its officers and
with its independent certified public accountants, all at such reasonable times and as often as the
Administrative Agent or any Lender may reasonably request after reasonable prior notice to the
Borrower.



     Section 5.8 Maintenance of Properties; Insurance. The Borrower will, and will cause
each of its Consolidated Subsidiaries and each Loan Party to, (a) keep and maintain all property
material to the conduct of its business in good working order and condition, ordinary wear and tear
except where the failure to do so, either individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect, and (b) maintain with financially sound and



42









 







reputable insurance companies, insurance with respect to its respective properties and
business, against loss or damage of the kinds customarily insured against by companies in the same
or similar businesses operating in the same or similar locations.



     Section 5.9 Use of Proceeds. The Borrower will use the proceeds of the Term Loans to
(i) finance the purchase of the Holdings Notes, (ii) repay a portion of the outstanding loans under
the Existing Credit Agreement and (iii) pay fees and expenses related thereto. No part of the
proceeds of any Term Loan will be used, whether directly or indirectly, for any purpose that would
violate any rule or regulation of the Board of Governors of the Federal Reserve System, including
Regulations T, U or X.



     Section 5.10 Additional Subsidiaries. If any additional wholly-owned Subsidiary of
the Borrower or any Guarantor is acquired or formed after the Closing Date, the Borrower will,
within ten (10) Business Days after such Subsidiary is acquired or formed, notify the
Administrative Agent and the Lenders thereof and will cause (a) such Subsidiary to become a
Subsidiary Loan Party by executing agreements in the form of Annex I to the Subsidiary
Guarantee Agreement and Annex I to the Indemnity and Contribution Agreement in form and
substance satisfactory to the Administrative Agent and the Required Lenders, (b) such Subsidiary to
deliver simultaneously therewith similar documents applicable to such Subsidiary required under
Section 3.1 as reasonably requested by the Administrative Agent, and (c) the Equity
Interests of such Subsidiary (if such Subsidiary is wholly-owned) to be pledged to the
Administrative Agent acting on behalf of the Lenders pursuant to amendments to the Security
Documents.



     Section 5.11 Senior Debt. In connection with the issuance by the Borrower or any Loan
Party of Permitted Subordinated Debt, the Borrower or such Loan Party, as applicable, shall take
all steps to cause the Obligations to be defined as, and constitute contractually, senior debt
under the terms of any documentation evidencing Permitted Subordinated Debt.



     Section 5.12 Further Assurances. From time to time the Borrower or any Loan Party, as
applicable, shall execute and deliver, or cause to be executed and delivered, such additional
instruments, certificates or documents, and take all such actions, as the Collateral Agent or the
Administrative Agent may reasonably request for the purposes of implementing or effectuating the
provisions of this Agreement and the other Loan Documents, or of more fully perfecting or renewing
the rights of the Agents and the Lenders (and with respect to Specified Hedging Agreements,
affiliates thereof) with respect to the Collateral (or with respect to any additions thereto or
replacements or proceeds thereof or with respect to any other property or assets hereafter acquired
by any Borrower or any Loan Party which may be deemed to be part of the Collateral) pursuant hereto
or thereto. Upon the exercise by any Agent or any Lender of any power, right, privilege or remedy
pursuant to this Agreement or the other Loan Documents which requires any consent, approval,
recording qualification or authorization of any Governmental Authority, the Borrower will execute
and deliver, or will cause the execution and delivery of, all applications, certifications,
instruments and other documents and papers that the such Agent or such Lenders may be required to
obtain from the Borrower or any of its Subsidiaries for such governmental consent, approval,
recording, qualification or authorization.



43









 





ARTICLE VI




FINANCIAL COVENANTS




     The Borrower covenants and agrees that so long as the principal of and interest on any Term
Loan or any fee payable hereunder or under any Loan Document remains unpaid:



     Section 6.1 Ratio of Total Net Debt to EBITDA. The Borrower and the Loan Parties
shall maintain at all times on a consolidated basis a ratio of Total Net Debt to EBITDA of no
greater than 3.25 to 1 (“Required Threshold”); provided, however, if the
Borrower and/or its Consolidated Subsidiaries consummate Permitted Acquisitions for an aggregate
total consideration of $50,000,000 or more, then in such event the Required Threshold shall
be increased to 3.50 to 1 for the first two full fiscal reporting periods immediately following the
consummation of such Permitted Acquisitions and thereafter, the Required Threshold shall be reduced
to 3.25 to 1. Compliance with this covenant shall be calculated at the end of each fiscal quarter
and measured on a rolling four quarter basis.



     Section 6.2 Interest Coverage Ratio. The Borrower and the Loan Parties shall maintain
on a consolidated basis a ratio of EBITDAR to the sum of (a) Interest Expense, plus (b) Lease
Expense of no less than 2.50 to 1, as calculated on the last day of each fiscal quarter and as
measured on a rolling four quarter basis.



ARTICLE VII




NEGATIVE COVENANTS




     The Borrower covenants and agrees that so long as the principal of and interest on any Term
Loan or any fee payable hereunder or under any Loan Document remains unpaid:



     Section 7.1 Indebtedness. The Borrower will not, and will not permit any of its
Consolidated Subsidiaries or any Loan Party to, create, incur, assume or suffer to exist any
Indebtedness, except:




     (a) Indebtedness created pursuant to the Loan Documents;




     (b) Indebtedness existing on the date hereof and set forth on Schedule 7.1 and
extensions, renewals and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof (immediately prior to giving effect to such extension,
renewal or replacement) or shorten the maturity or the weighted average life thereof;




     (c) unsecured Indebtedness (i) incurred in the ordinary course of business of Borrower
and its Consolidated Subsidiaries (including open accounts extended by suppliers on normal
trade terms in connection with purchases of goods and services which are not overdue for a
period of more than ninety (90) days or, if overdue for more than ninety (90) days, as to
which a dispute exists and adequate reserves in conformity with GAAP have been established
on the books of the Borrower or such Consolidated Subsidiary), and (ii) in respect of
performance, surety or appeal bonds provided in the



44









 







ordinary course of business, but excluding (in each case), Indebtedness incurred
through the borrowing of money or Contingent Liabilities in respect thereof;




     (d) Indebtedness of any Person which becomes a Subsidiary of the Borrower after the
date of this Agreement; provided, that (i) such Indebtedness exists at the
time that such Person becomes a Subsidiary and is not created in contemplation of or in
connection with such Person becoming a Subsidiary, and (ii) such Indebtedness satisfies the
requirements of Section 7.1(g) below;




     (e) Permitted Subordinated Debt;




     (f) Indebtedness in respect of obligations under Hedging Agreements permitted by
Section 7.10;




     (g) Other Indebtedness of the Borrower and its Consolidated Subsidiaries, including any
Indebtedness evidenced by a Guarantee executed by the Borrower and/or its Consolidated
Subsidiaries related to Indebtedness of a Non-Consolidated Entity; but only to the extent
that on the date of the incurrence of such Other Indebtedness and after giving effect
thereto, the ratio of such Other Indebtedness to EBITDA (plus amounts attributable to
Minority Interests), calculated at the end of each fiscal quarter and measured on a rolling
four quarter basis, shall not exceed 1.25 to 1; and




     (h) Indebtedness under the Existing Credit Agreement (including, without limitation,
Indebtedness incurred under Section 2.23 thereof) and, subject to Section
7.11(b), any extensions, renewals and replacements of such Indebtedness that is on terms
no less favorable to the Lenders and to the Borrower than the terms under the Existing
Credit Agreement as reasonably determined by the Administrative Agent.



     Section 7.2 Negative Pledge. The Borrower will not, and will not permit any of its
Consolidated Subsidiaries or any Loan Party to, create, incur, assume or suffer to exist any Lien
on any of its assets or property now owned or hereafter acquired or, except:




     (a) Liens created in favor of the Administrative Agent for the benefit of the Lenders
pursuant to the Loan Documents;




     (b) Permitted Encumbrances;




     (c) any Liens on any property or asset of the Borrower or any Subsidiary existing on
the Closing Date set forth on Schedule 7.2; provided, that such Lien
shall not apply to any other property or asset of the Borrower or any Subsidiary;




     (d) Liens securing Indebtedness, which Indebtedness is permitted pursuant to
Section 7.1(g);




     (e) any Lien (i) existing on any asset of any Person at the time such Person becomes a
Subsidiary of the Borrower, (ii) existing on any asset of any Person at the time such Person
is merged with or into the Borrower or any Subsidiary of the Borrower, or (iii) existing on
any asset prior to the acquisition thereof by the Borrower or any




45










 








Subsidiary of the Borrower; provided, that any such Lien was not
created in the contemplation of any of the foregoing and any such Lien secures only those
obligations which it secures on the date that such Person becomes a Subsidiary or the date
of such merger or the date of such acquisition; and




     (f) extensions, renewals, or replacements of any Lien referred to in paragraphs (a)
through (e) of this Section; provided, that the principal amount of the
Indebtedness secured thereby is not increased and that any such extension, renewal or
replacement is limited to the assets originally encumbered thereby.



     Section 7.3 Fundamental Changes.




     (a) The Borrower will not, and will not permit any Consolidated Subsidiary or any Loan
Party to, merge into or consolidate into any other Person, or permit any other Person to
merge into or consolidate with it, or sell, lease, transfer or otherwise dispose of (in a
single transaction or a series of transactions) all or substantially all of its assets (in
each case, whether now owned or hereafter acquired) or all or substantially all of the stock
of any of its Subsidiaries (in each case, whether now owned or hereafter acquired) or
liquidate or dissolve; provided, that if at the time thereof and immediately
after giving effect thereto, no Default or Event of Default shall have occurred and be
continuing (i) the Borrower or any Subsidiary may merge with a Person if the Borrower (or
such Subsidiary if the Borrower is not a party to such merger) is the surviving Person, (ii)
any Subsidiary may merge into another Subsidiary or may transfer its assets to another
Subsidiary; provided, that if any party to such merger or asset transfer is
a Subsidiary Loan Party, the Subsidiary Loan Party shall be the surviving Person, (iii) any
Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its
assets to the Borrower or to a Subsidiary Loan Party, and (iv) any Subsidiary (other than a
Subsidiary Loan Party) may liquidate or dissolve if the Borrower determines in good faith
that such liquidation or dissolution is in the best interests of the Borrower and is not
materially disadvantageous to the Lenders; provided, that any such merger
involving a Person that is not a wholly-owned Subsidiary immediately prior to such merger
shall not be permitted unless also permitted by Section 7.4.




     (b) The Borrower will not, and will not permit any of its Subsidiaries or any Loan
Party to, engage to any material extent in any business other than businesses of the type
conducted by the Borrower and its Subsidiaries or any Loan Party, as applicable, on the date
hereof and businesses reasonably related thereto.



     Section 7.4 Investments, Loans, Etc. The Borrower will not, and will not permit any
of its Consolidated Subsidiaries or any Loan Party to, purchase, hold or acquire (including
pursuant to any merger with any Person that was not a wholly-owned Subsidiary prior to such
merger), any common stock, evidence of indebtedness or other securities (including any option,
warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or
advances to, Guarantee (excluding, for the purpose of this Section 7.4, Guarantees of the
debt of Non-Consolidated Entities) any obligations of, or make or permit to exist any investment or
any other interest in, any other Person (all of the foregoing being collectively called
“Investments”),



46









 







or purchase or otherwise acquire (in one transaction or a series of transactions) any assets
of any other Person that constitute a business unit, except:




     (a) Investments (other than Permitted Investments and those matters referenced in
clause (g) of this Section 7.4) existing on the date hereof and set forth on
Schedule 7.4 (including Investments in Subsidiaries);




     (b) Permitted Investments;




     (c) Investments made by the Borrower in or to any Loan Party and by any Loan Party to
the Borrower or in or to another Loan Party;




     (d) Hedging Agreements permitted by Section 7.10;




     (e) the St. Louis Acquisition;




     (f) advances to Subsidiaries and Non-Consolidated Entities in the normal course of
business, which when made are expected to be repaid within sixty (60) days of such advance;




     (g) excluding Investments described in clause (e) above, Investments by the
Borrower and its Consolidated Subsidiaries in Non-Consolidated Entities and Permitted
Acquisitions; provided that total cash and non-cash consideration (including
Indebtedness assumed, deferred purchase price obligations, earn-out obligations, and Equity
Interests, warrants, and stock options exchanged in such purchase) for all Permitted
Acquisitions made by the Borrower and its Consolidated Subsidiaries in the aggregate during
any period of four consecutive quarters, together with the amount of all Investments in
Non-Consolidated Entities made in the aggregate by the Borrower and its Consolidated
Subsidiaries during such period, do not exceed, on or prior to February 21, 2007, an amount
equal to 1.25 multiplied by the EBITDA for such four consecutive quarters,
and for the time period thereafter, an amount equal to the EBITDA for such four consecutive
quarters, and provided, further, that (i) no Default has occurred and is
continuing or would result from any investment in Non-Consolidated Entities or Permitted
Acquisitions, as applicable, and (ii) the requirements of Section 5.10 are
fulfilled; and




     (h) advances and loans made by the Borrower to USPE Holdings, Ltd. not to exceed
$20,000,000 in the aggregate and at any one time outstanding;


provided that, notwithstanding any provision herein to the contrary, in no event
shall Borrower or any Loan Party acquire, form, purchase or hold a Foreign Subsidiary.




     Section 7.5 Restricted Payments. The Borrower will not, and will not permit its
Consolidated Subsidiaries or any Loan Party to, declare or make, or agree to pay or make, directly
or indirectly, any dividend on any class of its stock, or make any payment on account of, or set
apart assets for a sinking or other analogous fund for, the purchase, redemption, retirement,
defeasance or other acquisition of, any shares of common stock or Indebtedness subordinated to the
Obligations or any options, warrants, or other rights to purchase such common stock or such
Indebtedness, whether now or hereafter outstanding (each, a “Restricted Payment”), except
for



47









 




(i) dividends payable by the Borrower solely in shares of any class of its common stock, (ii)
Restricted Payments made by any Subsidiary to the Borrower or to another Subsidiary Loan Party,
(iii) cash dividends paid to the Borrower or Parent from any Consolidated Subsidiary, and (iv) so
long as the Borrower is in pro forma compliance with the covenants set forth in Article VI
of this Agreement after giving effect to such payments, the Borrower shall be entitled to pay for
the repurchase or retirement of Equity Interests of any Loan Party for the first year after the
Closing Date in an amount up to 50% of Net Income for the period of four (4) consecutive quarters
most recently ended on or prior to such date and, from and after the first anniversary of the
Closing Date, in an amount up to 50% of cumulative Net Income for the period from and after the
Closing Date; provided, that that in all events no Default or Event of Default has
occurred and is continuing at the time such Restricted Payment is made.




     Section 7.6 Sale of Assets. The Borrower will not, and will not permit any of its
Consolidated Subsidiaries or any Loan Party to, convey, sell, lease, assign, transfer or otherwise
dispose of, any of its assets, business or property, whether now owned or hereafter acquired, or,
in the case of any Subsidiary, issue or sell any shares of such Subsidiary’s common stock to any
Person other than the Borrower, except:




     (a) the sale or other disposition for fair market value of obsolete or worn out
property or other property not necessary for operations disposed of in the ordinary course
of business;




     (b) the sale of inventory and Permitted Investments in the ordinary course of business;




     (c) the sale or other disposition of such assets in an aggregate amount not to exceed
five percent (5%) of the Borrower’s consolidated total assets during any twelve (12) month
period; provided that no Default or Event of Default has occurred and is
continuing as of the date of any such sale or disposition and provided, further,
that proceeds obtained in connection with any asset sale which become Reinvested Proceeds
within one hundred eighty (180) days of receipt thereof shall not be included in the
calculation hereof; and




     (d) the sale or transfer of any Equity Interest held by the Borrower or any
Consolidated Subsidiary in a Non-Consolidated Entity or in any Consolidated Subsidiary,
provided, that in connection with any such sale or transfer, the Borrower
complies with the provisions of Section 2.7(b).



     Section 7.7 Transactions with Affiliates. The Borrower will not, and will not permit
any of its Consolidated Subsidiaries or any Loan Party to, sell, lease or otherwise transfer any
property or assets to, or purchase, lease or otherwise acquire any property or assets from, or
otherwise engage in any other transactions with, any of its Affiliates, except (a) in the ordinary
course of business at prices and on terms and conditions not less favorable to the Borrower or such
Subsidiary than could be obtained on an arm’s-length basis from unrelated third parties, (b) in
transactions between or among the Borrower and its wholly-owned Subsidiaries not involving any
other Affiliates, and (c) pursuant to any Restricted Payment permitted by



48









 







Section 7.5;
provided that for the purpose of this provision, such restrictions shall not
apply to transactions between Borrower and the Non-Consolidated Entities.



     Section 7.8 Restrictive Agreements. The Borrower will not, and will not permit any
Consolidated Subsidiary or any Loan Party to, directly or indirectly, enter into, incur or permit
to exist any agreement that prohibits, restricts or imposes any condition upon (a) the ability of
the Borrower or any Subsidiary or any Loan Party to create, incur or permit any Lien upon any of
its assets or properties, whether now owned or hereafter acquired, or (b) the ability of any
Subsidiary or any Loan Party to pay dividends or other distributions with respect to its common
stock, to make or repay loans or advances to the Borrower or any other Subsidiary, to Guarantee
Indebtedness of the Borrower or any other Subsidiary or to transfer any of its property or assets
to the Borrower or any Subsidiary of the Borrower; provided, that (i) the foregoing
shall not apply to restrictions or conditions imposed by law or by this Agreement or any other Loan
Document, (ii) the foregoing shall not apply to customary restrictions and conditions contained in
agreements relating to the sale of a Subsidiary pending such sale, provided such restrictions and
conditions apply only to the Subsidiary that is sold and such sale is permitted hereunder, (iii)
the foregoing shall not apply to restrictions or conditions contained in the Existing Credit
Agreement and the related loan documentation, (iv) clause (a) shall not apply to
restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by
this Agreement if such restrictions and conditions apply only to the property or assets securing
such Indebtedness, and (v) clause (a) shall not apply to customary provisions in leases
restricting the assignment thereof.



     Section 7.9 Sale and Leaseback Transactions. The Borrower will not, and will not
permit any of the Consolidated Subsidiaries or any Loan Party to, enter into any arrangement,
directly or indirectly, whereby it shall sell or transfer any property, real or personal, used or
useful in its business, whether now owned or hereinafter acquired, and thereafter rent or lease
such property or other property that it intends to use for substantially the same purpose or
purposes as the property sold or transferred; provided that such transaction shall
be permitted if the sale or transfer is for fair market value and the proceeds from the sale or
transfer are paid immediately to the Administrative Agent for repayment of the Term Loans.



     Section 7.10 Hedging Agreements. The Borrower will not, and will not permit any of
the Consolidated Subsidiaries or any Loan Party to, enter into any Hedging Agreement, other than
(i) Specified Hedging Agreements and (ii) other Hedging Agreements, in each case entered into in
the ordinary course of business to hedge or mitigate risks to which the Borrower or any Subsidiary
or any Loan Party is exposed in the conduct of its business or the management of its liabilities.
Solely for the avoidance of doubt, the Borrower acknowledges that a Hedging Agreement entered into
for speculative purposes or of a speculative nature (which shall be deemed to include any Hedging
Agreement under which the Borrower or any of the Subsidiaries or any Loan Party is or may become
obliged to make any payment (i) in connection with the purchase by any third party of any common
stock or any Indebtedness, or (ii) as a result of changes in the market value of any common stock
or any Indebtedness) is not a Hedging Agreement entered into in the ordinary course of business to
hedge or mitigate risks.



     Section 7.11 Amendment to Material Documents and the Existing Credit Agreement.



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     (a) The Borrower will not, and will not permit any Consolidated Subsidiary or any Loan
Party to, amend, modify or waive any of its rights in a manner materially adverse to the
Lenders under (i) its certificate of incorporation, bylaws or other organizational
documents, or (ii) documents evidencing Permitted Subordinated Debt; and the Borrower will
not, and will not permit, any Consolidated Subsidiary or any Loan Party to amend, modify, or
waive any of its rights under any material contract if the amendment, modification, or
waiver would otherwise violate this Agreement or could be expected to result in a Material
Adverse Effect.




     (b) The Borrower will not, and will not permit any Consolidated Subsidiary or any Loan
Party to, directly or indirectly amend, modify or waive any term or provision in the
Existing Credit Agreement or the related loan documentation in any manner which: (i)
increases the applicable interest rate or yield provisions applicable to the obligations
thereunder by more than 1% per annum in the aggregate (excluding increases (A) resulting
from the accrual of interest at the default rate as set forth in the Existing Credit
Agreement as of the date hereof or (B) fluctuations in the Base Rate or Adjusted LIBO Rate
(each as defined in the Existing Credit Agreement)); (ii) makes earlier the dates upon which
payments of principal or interest on the obligations thereunder are due; (iii) adds
additional Loan Parties or adds or makes more restrictive any prepayment obligations,
amortization, fees or other payment obligations, covenants, events of default or other
provisions thereof unless this Agreement and the other Loan Documents are amended
simultaneously therewith on the substantially the same terms; provided, that
nothing in this clause (b) shall restrict the ability of the Borrower to increase
the Aggregate Revolving Commitments (as defined in the Existing Credit Agreement) under and
in accordance with Section 2.23 of the Existing Credit Agreement, as such Existing
Credit Agreement is in effect on the date hereof.




     (c) For the avoidance of doubt, in the event the Existing Credit Agreement or the
related loan documentation is amended to add or include additional collateral as security
for the Obligations as defined therein, then such additional collateral shall also secure
the Obligations hereunder on a pari passu basis.



     Section 7.12 Permitted Subordinated Indebtedness.




     (a) The Borrower will not, and will not permit any of its Consolidated Subsidiaries or
any Loan Party, to (i) prepay, redeem, repurchase or otherwise acquire for value any
Permitted Subordinated Debt, or (ii) make any principal, interest or other payments on any
Permitted Subordinated Debt that is not expressly permitted by the subordination provisions
of the Subordinated Debt Documents.




     (b) The Borrower will not, and will not permit any of its Consolidated Subsidiaries or
any Loan Party to, agree to or permit any amendment, modification or waiver of any provision
of any Subordinated Debt Document if the effect of such amendment, modification or waiver is
to: (i) increase the interest rate on such Permitted Subordinated Debt for change (to
earlier dates) the dates upon which principal and interest are due thereon; (ii) alter the
redemption, prepayment or subordination provisions thereof; (iii) alter the covenants and
events of default in a manner that would make such



50









 







provisions more onerous or restrictive to the Borrower or any such Subsidiary or any
Loan Party; or (iv) otherwise increase the obligations of the Borrower or any Subsidiary or
any Loan Party in respect of such Permitted Subordinated Debt or confer additional rights
upon the holders thereof which individually or in the aggregate would be adverse to the
Borrower or any of its Subsidiaries or any Loan Party or to the Administrative Agent or the
Lenders.



     Section 7.13 Accounting Changes. The Borrower will not, and will not permit any
Subsidiary or any Loan Party to, make any significant change in accounting treatment or reporting
practices, except as required by GAAP or by any rule or regulation of the Securities Exchange
Commission, or change the fiscal year of the Borrower or of any Subsidiary or any Loan Party,
except to change the fiscal year of a Subsidiary to conform its fiscal year to that of the
Borrower.



ARTICLE VIII




EVENTS OF DEFAULT




     Section 8.1 Events of Default. If any of the following events (each an “Event of
Default”) shall occur:




     (a) the Borrower shall fail to pay any principal of any Term Loan when due and payable,
whether by scheduled maturity or at a date fixed for prepayment or by acceleration, demand
or otherwise; or




     (b) the Borrower shall fail to pay any interest on any Term Loan or any fee or any
other amount (other than an amount payable under clause (a) of this Article) payable
under this Agreement or any other Loan Document, when and as the same shall become due and
payable, whether by scheduled maturity or at a date fixed for prepayment or by acceleration,
demand or otherwise, and such failure shall continue unremedied for a period of three (3)
Business Days; or




     (c) any representation or warranty made or deemed made by or on behalf of the Borrower
or any Subsidiary or any Loan Party in or in connection with this Agreement or any other
Loan Document (including the Schedules attached thereto) and any amendments or modifications
hereof or waivers hereunder, or in any certificate, report, financial statement or other
document submitted to the Administrative Agent or the Lenders by any Loan Party or any
representative of any Loan Party pursuant to or in connection with this Agreement or any
other Loan Document shall prove to be incorrect when made or deemed made or submitted; or




     (d) the Borrower shall fail to observe or perform any covenant or agreement contained
in Sections 5.2, 5.3 (with respect to the Borrower’s existence) or
Articles VI or VII, or subject to any applicable notice and cure period, an
event of default shall occur under any other Loan Document; or




     (e) any Loan Party shall fail to observe or perform any covenant or agreement contained
in this Agreement or any other Loan Document (other than those referred to in



51









 







clauses (a), (b) and (d) above), and such failure shall remain unremedied for
thirty (30) days after the earlier of (i) any Responsible Officer of the Borrower or the
Loan Party becomes aware of such failure, or (ii) notice thereof shall have been given to
the Borrower or the Loan Party by the Administrative Agent or any Lender; or




     (f) an event of default or breach occurs under the Existing Credit Agreement or any of
the related loan documentation or any Permitted Subordinated Debt issued by the Borrower,
any Loan Party, or any Subsidiary; or




     (g) the Borrower or any Subsidiary or any Loan Party (whether as primary obligor or as
guarantor or other surety) shall fail to pay any principal of or premium or interest on any
Material Indebtedness that is outstanding, when and as the same shall become due and payable
(whether at scheduled maturity, required prepayment, acceleration, demand or otherwise), and
such failure shall continue after the applicable grace period, if any, specified in the
agreement or instrument evidencing such Material Indebtedness; or any other event shall
occur or condition shall exist under any agreement or instrument relating to such Material
Indebtedness and shall continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is to accelerate, or
permit the acceleration of, the maturity of such Material Indebtedness; or any such Material
Indebtedness shall be declared to be due and payable; or required to be prepaid or redeemed
(other than by a regularly scheduled required prepayment or redemption), purchased or
defeased, or any offer to prepay, redeem, purchase or defease such Material Indebtedness
shall be required to be made, in each case prior to the stated maturity thereof; or




     (h) the Borrower or any Subsidiary or any Loan Party shall (i) commence a voluntary
case or other proceeding or file any petition seeking liquidation, reorganization or other
relief under any federal, state or foreign bankruptcy, insolvency or other similar law now
or hereafter in effect or seeking the appointment of a custodian, trustee, receiver,
liquidator or other similar official of it or any substantial part of its property, (ii)
consent to the institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (i) of this Section, (iii) apply for or
consent to the appointment of a custodian, trustee, receiver, liquidator or other similar
official for the Borrower or any Subsidiary or any Loan Party or for a substantial part of
its assets, (iv) file an answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general assignment for the benefit of
creditors, or (vi) take any action for the purpose of effecting any of the foregoing; or




     (i) an involuntary proceeding shall be commenced or an involuntary petition shall be
filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or
any Subsidiary or any Loan Party or its debts, or any substantial part of its assets, under
any federal, state or foreign bankruptcy, insolvency or other similar law now or hereafter
in effect, or (ii) the appointment of a custodian, trustee, receiver, liquidator or other
similar official for the Borrower or any Subsidiary or any Loan Party or for a substantial
part of its assets, and in any such case, such proceeding or petition shall remain
undismissed for a period of sixty (60) days or an order or decree approving or ordering any
of the foregoing shall be entered; or



52









 






     (j) the Borrower or any Subsidiary or any Loan Party shall become unable to pay, shall
admit in writing its inability to pay, or shall fail to pay, its debts generally as they
become due; or




     (k) an ERISA Event shall have occurred that, in the opinion of the Required Lenders,
when taken together with other ERISA Events that have occurred, could reasonably be expected
to result in liability to the Borrower and its Subsidiaries or any Loan Party in an
aggregate amount exceeding $5,000,000; or




     (l) any judgments or orders for the payment of money in excess of $5,000,000
individually or $10,000,000 in the aggregate shall be rendered against the Borrower and/or
one of more of its Subsidiaries or Loan Parties, and either (i) enforcement proceedings
shall have been commenced by any creditor upon any such judgment or order, or (ii) there
shall be a period of thirty (30) consecutive days during which a stay of enforcement of any
such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect;
or




     (m) one or more non-monetary judgments or orders shall be rendered against the Borrower
and/or one or more of its Subsidiaries or Loan Parties, that, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect, and there shall
be a period of thirty (30) consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or




     (n) a Change in Control shall occur or exist; or




     (o) any provision of the Parent Guarantee Agreement, the Holdings Guarantee Agreement,
the Subsidiary Guarantee Agreement or any Security Document shall for any reason cease to be
valid and binding on, or enforceable against any Loan Party, as applicable, or any Loan
Party shall so state in writing, or any Loan Party shall seek to terminate the Parent
Guarantee Agreement, the Holdings Guarantee Agreement, the Subsidiary Guarantee Agreement or
any Security Document, as applicable;


then, and in every such event (other than an event with respect to the Borrower described in
clause (h) or (i) of this Section) and at any time thereafter during the continuance of
such event, the Administrative Agent may, and upon the written request of the Required Lenders
shall, by notice to the Borrower, take any or all of the following actions, at the same or
different times: (x) declare the principal of and any accrued interest on the Term Loans, and all
other Obligations owing hereunder, to be, whereupon the same shall become due and payable
immediately, without presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; and (y) exercise all remedies contained in any other Loan Document;
and, if an Event of Default specified in either clause (h) or (i) shall occur, the
principal of the Term Loans then outstanding, together with accrued interest thereon, and all fees,
and all other Obligations shall automatically become due and payable, without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the Borrower.




53









 








     Section 8.2 Receipt of Proceeds. Upon the occurrence of a Specified Event, all
payments, proceeds and property delivered to the Administrative Agent or the Lenders by the
Borrower for payment of the Obligations shall be delivered to the Collateral Agent to be applied in
the same manner as the Collateral Agent applies the receipt of proceeds from any Guarantor, and
upon any other Event of Default not constituting a Specified Event, such payments, proceeds and
property shall be delivered to the Administrative Agent for application in accordance with the
terms of this Agreement. For purposes herein, a “Specified Event” shall mean (i) any Event
of Default under Section 8.1(h) or (i) of this Agreement and any Event of Default
(as defined in the Existing Credit Agreement) under Section 8.1(h) or (i) of the Existing
Credit Agreement, (ii) any Event of Default under Section 8.1(a) or (b) of this Agreement
and any Event of Default (as defined in the Existing Credit Agreement) under Section
8.1(a) or (b) of the Existing Credit Agreement, (iii) any acceleration of the Obligations under
this Agreement following an Event of Default and any acceleration of the Obligations under
and as defined in the Existing Credit Agreement following an Event of Default as defined in the
Existing Credit Agreement, and (iv) any exercise of remedies under the Security Documents or the
guarantees in favor of the Collateral Agent delivered pursuant hereto which are undertaken at the
direction of the Required Lenders following an Event of Default and any exercise of
remedies under the Security Documents (as defined in the Existing Credit Agreement) or the
guarantees in favor of the Collateral Agent delivered pursuant to the Existing Credit Agreement
which are undertaken at the direction of the Required Lenders (as defined in the Existing Credit
Agreement) following an Event of Default under the Existing Credit Agreement.



ARTICLE IX




THE AGENTS




     Section 9.1 Appointment of Agents. Each Lender irrevocably appoints Bear Stearns
Corporate Lending Inc. as the Administrative Agent and SunTrust Bank as the Collateral Agent and
authorizes each such Agent to take such actions on its behalf and to exercise such powers as are
delegated to such Agent under this Agreement and the other Loan Documents, together with all such
actions and powers that are reasonably incidental thereto. Each Agent may perform any of its
duties hereunder by or through any one or more sub-agents appointed by such Agent. Each Agent and
any such sub-agent may perform any and all of its duties and exercise its rights and powers through
their respective Related Parties. The exculpatory provisions set forth in this Article shall apply
to any such sub-agent and the Related Parties of each Agent and any such sub-agent and shall apply
to their respective activities in connection with the syndication of the credit facilities provided
for herein as well as activities as such Agent.



     Section 9.2 Nature of Duties of Agents. The Agents shall not have any duties or
obligations except those expressly set forth in this Agreement and the other Loan Documents.
Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or
other implied duties, regardless of whether a Default or an Event of Default has occurred and is
continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any
discretionary powers, except those discretionary rights and powers expressly contemplated by the
Loan Documents that such Agent is required to exercise in writing by the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary under the circumstances as provided
in Section 10.2), and (c) except as expressly set forth in the Loan



54









 







Documents, no Agent shall have any duty to disclose, and shall not be liable for the failure
to disclose, any information relating to the Borrower or any of its Subsidiaries or any Loan Party
that is communicated to or obtained by such Agent or any of its Affiliates in any capacity. No
Agent shall be liable for any action taken or not taken by it with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under
the circumstances as provided in Section 10.2) or in the absence of its own gross
negligence or willful misconduct as determined in a final nonappealable judgment by a court of
competent jurisdiction. The Administrative Agent shall not be deemed to have knowledge of any
Default or Event of Default unless and until written notice thereof is given to the Administrative
Agent by the Borrower or any Lender, and no Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in or in connection
with any Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements, or other terms and conditions set forth in any Loan Document,
(iv) the validity, enforceability, effectiveness, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to be created under or
in connection with, any Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article III or elsewhere in any Loan Document,
other than to confirm receipt of items expressly required to be delivered to such Agent.



     Section 9.3 Lack of Reliance on the Agents. Each of the Lenders acknowledges that it
has, independently and without reliance upon any Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit analysis and decision
to enter into this Agreement. Each of the Lenders also acknowledges that it will, independently
and without reliance upon any Agent or any other Lender and based on such documents and information
as it has deemed appropriate, continue to make its own decisions in taking or not taking of any
action under or based on this Agreement, any related agreement or any document furnished hereunder
or thereunder.



     Section 9.4 Certain Rights of the Agents. If any Agent shall request instructions
from the Required Lenders with respect to any action or actions (including the failure to act) in
connection with this Agreement, such Agent shall be entitled to refrain from such act or taking
such act, unless and until it shall have received instructions from such Lenders; and such Agent
shall not incur liability to any Person by reason of so refraining. Without limiting the
foregoing, no Lender shall have any right of action whatsoever against any Agent as a result of
such Agent acting or refraining from acting hereunder in accordance with the instructions of the
Required Lenders where required by the terms of this Agreement.



     Section 9.5 Reliance by Agents. Each Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request, certificate, consent, statement,
instrument, document or other writing believed by it to be genuine and to have been signed, sent or
made by the proper Person. Each Agent may also rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person and shall not incur any liability for
relying thereon. Each Agent may consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by it and shall not be liable



55









 







for any action taken or not taken by it in accordance with the advice of such counsel,
accountants or experts.



     Section 9.6 The Agents in their Individual Capacities. Each bank serving as an Agent
shall have the same rights and powers under this Agreement and any other Loan Document in its
capacity as Lender as any other Lender and may exercise or refrain from exercising the same as
though it were not an Agent; and the terms “Lenders”, “Required Lenders”, “holders of Term Notes”,
or any similar terms shall, unless the context clearly otherwise indicates, include such Agent in
its individual capacity. Each bank acting as an Agent and its Affiliates may accept deposits from,
lend money to, and generally engage in any kind of business with the Borrower or any Subsidiary or
Affiliate of the Borrower or any Loan Party as if it were not an Agent hereunder.



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



     Section 9.8 Successor Administrative Agent. The Administrative Agent may resign as
Administrative Agent upon 10 days’ notice to the Lenders and the Borrower. If the Administrative
Agent shall resign as Administrative Agent under this Agreement and the other Loan Documents, then
the Required Lenders shall appoint from among the Lenders a successor agent for the Lenders,
whereupon such successor agent shall succeed to the rights, powers and duties of the Administrative
Agent, and the term “Administrative Agent” shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent’s rights, powers and duties as
Administrative Agent shall be terminated, without any other or further act or deed on the part of
such former Administrative Agent or any of the parties to this Agreement or any holders of the Term
Loans. If no successor agent has accepted appointment as Administrative Agent by the date that is
10 days following a retiring Administrative Agent’s notice of resignation, the retiring
Administrative Agent’s resignation shall nevertheless thereupon become effective and the Lenders
shall assume and perform all of the duties of the Administrative Agent hereunder until such time,
if any, as the Required Lenders appoint a successor agent as provided for above. After any
retiring Administrative Agent’s resignation as Administrative Agent, the provisions of this
Section 9 shall inure to its benefit as



56









 







to any actions taken or omitted to be taken by it while it was Administrative Agent under this
Agreement and the other Loan Documents.



     Section 9.9 Successor Collateral Agent. The Collateral Agent may resign at any time
by giving at least 30 days’ prior notice thereof to the Administrative Agent, the Lenders and the
Borrower. Upon any such resignation, the Required Lenders shall have the right to appoint a
successor Collateral Agent reasonably satisfactory to the Borrower. Upon the acceptance of its
appointment as the Collateral Agent hereunder by a successor, such successor Collateral Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges and duties of the
retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties
and obligations under this Agreement and the other Loan Documents. Prior to the effective date of
its resignation, the retiring Collateral Agent agrees to (i) transfer to the successor Collateral
Agent all items of Collateral held by the retiring Collateral Agent under the Loan Documents,
together with all records and other documents necessary or appropriate in connection with the
performance of its duties of the successor Collateral Agent under the Loan Documents, and (ii)
execute and/or deliver to such successor Collateral 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 Collateral Agent of the Liens created under the Loan Documents. After any
retiring Collateral Agent’s resignation hereunder, the provisions of this Article IX shall
continue in effect for the benefit of such retiring Collateral Agent and its representatives and
agents in respect of any actions taken or not taken by any of them while it was serving as the
Collateral Agent.



     Section 9.10 Agents Generally. Except as expressly set forth herein, no Agent shall
have any duties or responsibilities hereunder in its capacity as such.



     Section 9.11 Documentation Agent. The Lender identified on the signature pages of
this Agreement as the “Documentation Agent” shall not have any right, power, obligation, liability,
responsibility or duty under this Agreement (or any other Loan Document) other than those
applicable to all Lenders as such. Without limiting the foregoing, the Lender so identified as
“Documentation Agent” shall not have or be deemed to have any fiduciary relationship with any other
Lender. Each Lender acknowledges that it has not relied, and will not rely, on the Lender so
identified as “Documentation Agent” in deciding to enter into this Agreement and each other Loan
Document to which it is a party or in taking or not taking action hereunder or thereunder.



     Section 9.12 The Lead Arrangers. Each lead arranger, in its capacity as such, shall
have no duties or responsibilities, and shall incur no liability, under this Agreement and the
other Loan Documents.



ARTICLE X




MISCELLANEOUS




     Section 10.1 Notices.



57









 





     (a) Except in the case of notices and other communications expressly permitted to be
given by telephone, all notices and other communications to any party herein to be effective
shall be in writing and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopy, as follows:



	 	 	 
	To the Borrower:

	 	c/o United Surgical Partners International, Inc.
	 

	 	15305 Dallas Parkway, Suite 1600
	 

	 	Addison, Texas 75001
	 

	 	Attention: Chief Financial Officer and General Counsel
	 

	 	Telecopy Number: (972) 267-0084
	 
	 	 
	To the Administrative Agent:

	 	Bear Stearns Corporate Lending Inc.
	 

	 	383 Madison Avenue
	 

	 	New York, New York 10179
	 

	 	Attention: Kevin Cullen
	 

	 	Telecopy Number: (212) 272-4785
	 
	 	 
	with a copy to:

	 	Paul, Hastings, Janofsky & Walker LLP
	 

	 	75 E. 55th Street
	 

	 	New York, New York 10022
	 

	 	Attention: Michele Cohen, Esq.
	 

	 	Telecopy Number: (212) 319-4090
	 
	 	 
	To the Collateral Agent:

	 	SunTrust Bank
	 

	 	P.O. Box 305110
	 

	 	Nashville, Tennessee 37230-5110
	 

	 	Attention: Mark D. Mattson
	 

	 	Telecopy Number: (615) 748-5269
	 
	 	 
	To any other Lender:

	 	the address set forth in the Administrative
	 

	 	Questionnaire





Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All such notices and other
communications shall, when transmitted by overnight delivery, or faxed, be effective when
delivered for overnight (next-day) delivery, or transmitted in legible form by facsimile
machine, respectively, or if mailed, upon the third Business Day after the date deposited
into the mails or if delivered, upon delivery; provided that notices
delivered to any Administrative Agent shall not be effective until actually received by such
Person at its address specified in this Section 10.1.





     (b) Any agreement of the Agents and the Lenders herein to receive certain notices by
telephone or facsimile is solely for the convenience and at the request of the Borrower.
The Agents and the Lenders shall be entitled to rely on the authority of any Person
purporting to be a Person authorized by the Borrower to give such notice and the



58









 







Agents and Lenders shall not have any liability to the Borrower or other Person on
account of any action taken or not taken by the Agents or the Lenders in reliance upon such
telephonic or facsimile notice. The obligation of the Borrower to repay the Term Loans and
all other Obligations hereunder shall not be affected in any way or to any extent by any
failure of the Agents and the Lenders to receive written confirmation of any telephonic or
facsimile notice or the receipt by the Agents and the Lenders of a confirmation which is at
variance with the terms understood by the Agents and the Lenders to be contained in any such
telephonic or facsimile notice.



     Section 10.2 Waiver; Amendments.




     (a) No failure or delay by any Agent in exercising any right or power hereunder or any
other Loan Document, and no course of dealing between the Borrower and any Agent or any
Lender, shall operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power or any abandonment or discontinuance of steps to enforce such right or
power, preclude any other or further exercise thereof or the exercise of any other right or
power hereunder or thereunder. The rights and remedies of the Agents and the Lenders
hereunder and under the other Loan Documents are cumulative and are not exclusive of any
rights or remedies provided by law. No waiver of any provision of this Agreement or any
other Loan Document or consent to any departure by the Borrower therefrom shall in any event
be effective unless the same shall be permitted by paragraph (b) of this Section,
and then such waiver or consent shall be effective only in the specific instance and for the
purpose for which given.




     (b) No amendment or waiver of any provision of this Agreement or the other Loan
Documents, nor consent to any departure by the Borrower therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Borrower and the Required
Lenders or the Borrower and the Administrative Agent with the consent of the Required
Lenders and then such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided that no amendment or
waiver shall: (i) forgive or reduce the principal amount of any Term Loan or reduce the
stated rate of interest thereon hereunder (except in connection with the waiver of
applicability of the Default Rate, which waiver shall be effective with the consent of the
Required Lenders), or extend the scheduled date of any payment of such interest or reduce or
extend the scheduled date of any payment of any fees payable hereunder, without the written
consent of each Lender directly affected thereby; (ii) extend the final scheduled date of
maturity of any Term Loan or extend the scheduled date of any amortization payment in
respect of any Term Loan, without the written consent of each Lender directly affected
thereby; (iii) change Section 2.16(b) or (c) or the definition of “Pro Rata Share”
or “Term Loan Pro Rata Share” in a manner that would alter the pro rata sharing of payments
required thereby, without the written consent of each Lender; (iv) change any of the
provisions of this Section or the definition of “Required Lenders” or any other provision of
this Agreement specifying the number or percentage of Lenders which are required to waive,
amend or modify any rights hereunder or make any determination or grant any consent
hereunder, without the consent of each Lender; (v) release any of the Guarantors or limit
the liability of any of the Guarantors under any guaranty agreement without the written
consent of each Lender; (vi) release all or



59









 







substantially all Collateral securing any of the Obligations without the written
consent of each Lender; (vii) permit the Borrower to assign or otherwise transfer its rights
hereunder or under any Loan Document or any interest herein or therein without the written
consent of each Lender; or (viii) amend or waive any of the conditions specified in
Section 3.1 without the written consent of each Lender; provided,
further, that no such agreement shall amend, modify or otherwise affect the rights,
duties or obligations of any Agent without the prior written consent of such Agent.



     Section 10.3 Expenses; Indemnification.




     (a) The Borrower agrees (i) to pay or reimburse each Agent for all its out-of-pocket
costs and expenses incurred in connection with the development, preparation and execution
of, and any amendment, supplement or modification to, this Agreement and the other Loan
Documents and any other documents prepared in connection herewith or therewith, and the
consummation and administration of the transactions contemplated hereby and thereby,
including the reasonable fees and disbursements of counsel to such Agent and filing and
recording fees and expenses, with statements with respect to the foregoing to be submitted
to the Borrower prior to the Closing Date (in the case of amounts to be paid on the Closing
Date) and from time to time thereafter on a quarterly basis or such other periodic basis as
such Agent shall deem appropriate, (ii) to pay or reimburse each Lender and Agent for all
its costs and expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the other Loan Documents and any such other documents,
including the fees and disbursements of counsel (including the allocated fees and expenses
of in-house counsel) to each Lender and of counsel to such Agent, (iii) to pay, indemnify,
and hold each Lender and Agent harmless from, any and all recording and filing fees and any
and all liabilities with respect to, or resulting from any delay in paying, stamp, excise
and other taxes, if any, that may be payable or determined to be payable in connection with
the execution and delivery of, or consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver or consent
under or in respect of, this Agreement, the other Loan Documents and any such other
documents, and (iv) to pay, indemnify, and hold each Lender and Agent and their respective
officers, directors, employees, affiliates, trustees, advisors, agents and controlling
persons (each, an “Indemnitee”) harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the execution,
delivery, enforcement, performance and administration of this Agreement, the other Loan
Documents (regardless of whether any Loan Party is or is not a party to any such actions or
suits) and any such other documents, including any of the foregoing relating to the use of
proceeds of the Loans or the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of any Loan Party or any property owned by
any Loan Party and the reasonable fees and expenses of legal counsel in connection with
claims, actions or proceedings by any Indemnitee against any Loan Party under any Loan
Document (all the foregoing, collectively, the “Indemnified Liabilities”),
provided, that the Borrower shall have no obligation hereunder to any
Indemnitee with respect to Indemnified Liabilities to the extent such Indemnified
Liabilities are found by a final and nonappealable decision of a court of competent



60









 







jurisdiction to have resulted from the gross negligence or willful misconduct of such
Indemnitee. Without limiting the foregoing, and to the extent permitted by applicable law,
the Borrower agrees not to assert and to cause its Subsidiaries not to assert, and hereby
waives and agrees to cause its Subsidiaries to waive, all rights for contribution or any
other rights of recovery with respect to all claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature, under or related to
Environmental Laws, that any of them might have by statute or otherwise against any
Indemnitee. The agreements in this Section 10.3 shall survive repayment of the
Loans and all other amounts payable hereunder.




     (b) To the extent that the Borrower fails to pay any amount required to be paid to any
Agent under clause (a) hereof, each Lender severally agrees to pay to such Agent
such Lender’s Pro Rata Share (determined as of the time that the unreimbursed expense or
indemnity payment is sought) of such unpaid amount; provided that the
unreimbursed expense or indemnified payment, claim, damage, liability or related expense, as
the case may be, was incurred by or asserted against such Agent in its capacity as such.




     (c) To the extent permitted by applicable law, the Borrower shall not assert, and
hereby waives, any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to actual or direct damages) arising
out of, in connection with or as a result of, this Agreement or any agreement or instrument
contemplated hereby, the transactions contemplated therein, any Term Loan or the use of
proceeds thereof.




     (d) All amounts due under this Section 10.3 shall be payable not later than 10
days after written demand therefor.



     Section 10.4 Successors and Assigns.




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




     (b) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender
may assign to one or more assignees (each, an “Assignee”) all or a portion of its
rights and obligations under this Agreement (including all or a portion of the Term Loans at
the time owing to it) with the prior written consent (such consent not to be unreasonably
withheld) of:




     (i) the Administrative Agent, provided that no consent of the
Administrative Agent shall be required for an assignment (x) by the Administrative
Agent or (y) to an Assignee that is a Lender, an affiliate of a



61









 







Lender or an Approved Fund immediately prior to giving effect to such
assignment,




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




                          (A) except in the case of an assignment to a Lender, an affiliate of a Lender
or an Approved Fund or an assignment of the entire remaining amount of the assigning
Lender’s Term Loans, the amount of the Term Loans of the assigning Lender subject to
each such assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Administrative Agent) shall not be
less than $1,000,000 unless each of the Borrower and the Administrative Agent
otherwise consent, provided that (1) no such consent of the Borrower shall
be required if an Event of Default has occurred and is continuing and (2) such
amounts shall be aggregated in respect of each Lender and its affiliates or Approved
Funds, if any;




                          (B) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing and
recordation fee of $3,500; provided, that in the case of two or more
concurrent assignments to Approved Funds by any Lender, only one such fee shall be
due and payable in connection therewith;




     (C) the Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an administrative questionnaire; and




                          (D) in the case of an assignment by a Lender to a related CLO (as defined
below) managed or administered by such Lender or by an affiliate of such Lender, the
assigning Lender shall retain the sole right to approve any amendment, modification
or waiver of any provision of this Agreement and the other Loan Documents, provided
that the Assignment and Acceptance between such Lender and such CLO may provide that
such Lender will not, without the consent of such CLO, agree to any amendment,
modification or waiver that (1) requires the consent of each Lender directly
affected thereby pursuant to Section 10.2 and (2) directly affects such CLO.




     For the purposes of this Section 10.4, the terms “Approved
Fund” and “CLO” have the following meanings:




     “Approved Fund” means (a) with respect to a Lender, a CLO managed by
such Lender or by an affiliate of such Lender, and (b) with respect to any Lender
that is a fund which invests in bank loans and similar extensions of credit, any
other fund that invests in bank loans and similar extensions of credit and is
managed by the same investment advisor as such Lender or by an affiliate of such
investment advisor.




     “CLO” means any entity (whether a corporation, partnership, trust or
otherwise) that is engaged in making, purchasing, holding or otherwise investing



62









 







in bank loans and similar extensions of credit in the ordinary course and is
administered or managed by a Lender or an affiliate of such Lender.




     (iii) Subject to acceptance and recording thereof pursuant to paragraph
(b)(v) below, from and after the effective date specified in each Assignment and
Acceptance the Assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Acceptance, have the rights and obligations
of a Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released from
its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender’s rights and obligations under this
Agreement, such Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 2.12, 2.13, 2.14 and 10.3). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this Section 10.4 shall be treated for purposes of
this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (c) of this Section.




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




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




     (c) (i) Any Lender may, without the consent of the Borrower or the Administrative
Agent, sell participations to one or more banks or other entities (a “Participant”)
in all or a portion of such Lender’s rights and obligations under this Agreement (including
all or a portion of the Term Loans owing to it); provided that (A) such Lender’s
obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations and (C) the
Borrower, the Agents and the other Lenders shall continue to



63









 







deal solely and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement. Any agreement pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, modification or waiver that
(1) requires the consent of each Lender directly affected thereby pursuant to Section
10.2 and (2) directly affects such Participant. Subject to paragraph (c)(ii) of
this Section, the Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.12, 2.13 and 2.14 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section. To
the extent permitted by law, each Participant also shall be entitled to the benefits of
Section 2.15 as though it were a Lender, provided such Participant shall be subject
to Section 2.15 as though it were a Lender.




     (ii) A Participant shall not be entitled to receive any greater payment under
Sections 2.12, 2.13, 2.14 or 2.15 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant. Any
Participant that is a Foreign Lender shall not be entitled to the benefits of Section
2.15 unless such Participant complies with Section 2.15(e).




     (d) Any Lender may, without the consent of the Borrower or the Administrative Agent,
at any time pledge or assign a security interest in all or any portion of its rights under
this Agreement to secure obligations of such Lender, including any pledge or assignment to
secure obligations to a Federal Reserve Bank, and this Section shall not apply to any such
pledge or assignment of a security interest; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or Assignee for such Lender as a party hereto.




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




     (f) Notwithstanding the foregoing, any Conduit Lender may assign any or all of the
Loans it may have funded hereunder to its designating Lender without the consent of the
Borrower or the Administrative Agent and without regard to the limitations set forth in
Section 10.4(b). Each of the Borrower, each Lender and the Administrative Agent
hereby confirms that it will not institute against a Conduit Lender or join any other Person
in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year
and one day after the payment in full of the latest maturing commercial paper note issued by
such Conduit Lender; provided, however, that each Lender designating any Conduit
Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any
loss, cost, damage or expense arising out of its inability to institute such a proceeding
against such Conduit Lender during such period of forbearance.



64









 





     Section 10.5 Governing Law; Jurisdiction; Consent to Service of Process.




     (a) This Agreement and the other Loan Documents shall be construed in accordance with
and be governed by the law of the State of New York.




     (b) The Borrower hereby irrevocably and unconditionally:




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




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




     (iii) agrees that service of process in any such action or proceeding may be
effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to Holdings or the Borrower,
as the case may be at its address set forth in Section 10.1 or at such other
address of which the Administrative Agent shall have been notified pursuant thereto;




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




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




     (c) Nothing in this Agreement or in any other Loan Document will affect the right of
any party hereto to serve process in any other manner permitted by law.



     Section 10.6 WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN



65









 







INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



     Section 10.7 Right of Setoff. In addition to any rights now or hereafter granted
under applicable law and not by way of limitation of any such rights, each Lender shall have the
right, at any time or from time to time upon the occurrence and during the continuance of an Event
of Default, without prior notice to the Borrower, any such notice being expressly waived by the
Borrower to the extent permitted by applicable law, to set off and apply against all deposits
(general or special, time or demand, provisional or final) of the Borrower at any time held or
other obligations at any time owing by such Lender to or for the credit or the account of the
Borrower against any and all Obligations held by such Lender, irrespective of whether such Lender
shall have made demand hereunder and although such Obligations may be unmatured. Each Lender
agrees promptly to notify the Administrative Agent and the Borrower after any such set-off and any
application made by such Lender; provided that the failure to give such notice
shall not affect the validity of such set-off and application.



     Section 10.8 Counterparts; Integration. This Agreement may be executed by one or more
of the parties to this Agreement on any number of separate counterparts (including by telecopy),
and all of said counterparts taken together shall be deemed to constitute one and the same
instrument. This Agreement, the other Loan Documents, and any separate letter agreement(s)
relating to any fees payable to the Administrative Agent constitute the entire agreement among the
parties hereto and thereto regarding the subject matters hereof and thereof and supersede all prior
agreements and understandings, oral or written, regarding such subject matters.



     Section 10.9 Survival. All covenants, agreements, representations and warranties made
by the Borrower herein and in the certificates or other instruments delivered in connection with or
pursuant to this Agreement shall be considered to have been relied upon by the other parties hereto
and shall survive the execution and delivery of this Agreement and the making of any Term Loans,
regardless of any investigation made by any such other party or on its behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of any Default or
incorrect representation or warranty at the time any credit is extended hereunder, and shall
continue in full force and effect as long as the principal of or any accrued interest on any Term
Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid. The
provisions of Sections 2.13, 2.14, 2.15 and 10.3 and Article
IX shall survive and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Term Loans or the termination of this
Agreement or any provision hereof. All representations and warranties made herein and in the
certificates, reports, notices, and other documents delivered pursuant to this Agreement shall
survive the execution and delivery of this Agreement and the other Loan Documents and the making of
the Term Loans.



     Section 10.10 Severability. Any provision of this Agreement or any other Loan
Document held to be illegal, invalid or unenforceable in any jurisdiction, shall, as to such
jurisdiction, be ineffective to the extent of such illegality, invalidity or unenforceability
without affecting the legality, validity or enforceability of the remaining provisions hereof or
thereof; and



66









 







the illegality, invalidity or unenforceability of a particular provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.



     Section 10.11 Confidentiality. Each of the Administrative Agent and each Lender
agrees to take normal and reasonable precautions to maintain the confidentiality of any information
designated in writing as confidential and provided to it by the Borrower or any Subsidiary, except
that such information may be disclosed (i) to any Related Party of the Administrative Agent or any
such Lender, including without limitation accountants, legal counsel and other advisors, (ii) to
the extent required by applicable laws or regulations or by any subpoena or similar legal process,
(iii) to the extent requested by any regulatory agency or authority having jurisdiction, (iv) to
the extent that such information becomes publicly available other than as a result of a breach of
this Section, or which becomes available to the Administrative Agent, any Lender or any Related
Party of any of the foregoing on a nonconfidential basis from a source other than the Borrower, (v)
in connection with the exercise of any remedy hereunder or any suit, action or proceeding relating
to this Agreement or the enforcement of rights hereunder, (vi) subject to provisions substantially
similar to this Section 10.11, to any actual or prospective assignee or Participant, or
(vii) with the consent of the Borrower. Any Person required to maintain the confidentiality of any
information as provided for in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such information as such Person would accord its own confidential information.



     Section 10.12 Releases of Guarantees and Liens.




     (a) Notwithstanding anything to the contrary contained herein or in any other Loan
Document, the Administrative Agent is hereby irrevocably authorized by each Lender (without
requirement of notice to or consent of any Lender except as expressly required by
Section 10.2) to take any action requested by the Borrower having the effect of
releasing any Collateral or guarantee obligations (i) to the extent necessary to permit
consummation of any transaction not prohibited by any Loan Document or that has been
consented to in accordance with Section 10.2 or (ii) under the circumstances
described in paragraph (b) below.




     (b) At such time as the Term Loans and the other obligations under the Loan Documents
(other than obligations under or in respect of Specified Hedging Agreements) shall have been
paid in full in cash, the Collateral shall be released from the Liens created by the
Security Documents, and the Security Documents and all obligations (other than those
expressly stated to survive such termination) of the Agents and each Loan Party under the
Security Documents shall terminate, all without delivery of any instrument or performance of
any act by any Person.



(remainder of page left intentionally blank)




67









 





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



	 	 	 	 	 	 	 
	 	 	USP DOMESTIC HOLDINGS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	 	 	     Name:	 	 
	 

	 	 	 	     Title:	 	 
	 
	 	 	 	 	 	 
	 	 	BEAR STEARNS CORPORATE LENDING INC.,	 	 
	 	 	as Administrative Agent and Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	     Name:	 	 
	 

	 	 	 	     Title:	 	 






 









 






	 	 	 	 	 	 	 
	 	 	SUNTRUST BANK, as Collateral Agent, Documentation	 	 
	 	 	Agent and Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	 	 	     Name:	 	 
	 

	 	 	 	     Title:	 	 






 









 






Schedule 1




[On file with Administrative Agent.]





 










 







EXHIBIT A




[FORM OF]

TERM NOTE




			
	$                                        
	 	New York, New York

                              , 200       






     FOR VALUE RECEIVED, the undersigned, USP DOMESTIC HOLDINGS, INC., a Delaware corporation (the
“Borrower”), hereby promises to pay to the order of                                         , (the “Lender”) or its
registered assigns, at the Payment Office of the Administrative Agent, on the Maturity Date (as
defined in the Credit Agreement dated as of August 7, 2006 as the same may be amended, supplemented
or otherwise modified from time to time, the “Credit Agreement”), among the Borrower, the Lenders
from time to time party thereto, Bear Stearns Corporate Lending Inc., as Administrative Agent for
the Lenders, and certain other parties thereto, the lesser of the principal sum of
                                                             AND NO/100 DOLLARS ($     
               ) or so much thereof advanced as Term
Loans by the Lender to the Borrower pursuant to the Credit Agreement, outstanding from time to
time, in lawful money of the United States of America in immediately available funds, and to pay
interest from the date hereof on the principal amount thereof from time to time outstanding, in
like funds, at said office, at the rate or rates per annum and payable on such dates as provided in
the Credit Agreement. In addition, should legal action or an attorney-at-law be utilized to
collect any amount due hereunder, the Borrower further promises to pay all costs of collection,
including the reasonable attorneys’ fees of the Administrative Agent and the Lender. Terms not
defined herein shall have the meanings ascribed to such terms in the Credit Agreement.



     The Borrower promises to pay interest, on demand, on any overdue principal and, to the extent
permitted by law, overdue interest from their due dates at a rate or rates provided in the Credit
Agreement.



     All borrowings evidenced by this Term Note and all payments and prepayments of the principal
hereof and the date thereof shall be endorsed by the holder hereof on the schedule attached hereto
and made a part hereof or on a continuation thereof which shall be attached hereto and made a part
hereof, or otherwise recorded by such holder in its internal records; provided that
the failure of the holder hereof to make such a notation or any error in such notation shall not
affect the obligations of the Borrower to make the payments of principal and interest in accordance
with the terms of this Term Note and the Credit Agreement.



     This Term Note is issued in connection with, and is entitled to the benefits of, the Credit
Agreement which, among other things, contains provisions for the acceleration of the maturity
hereof upon the happening of certain events, for prepayment of the principal hereof prior to the
maturity hereof and for the amendment or waiver of certain provisions of the Credit Agreement, all
upon the terms and conditions therein specified.



     THIS TERM NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK.



89









 





     Executed as of the date first above written.



	 	 	 	 	 	 	 
	 	 	USP DOMESTIC HOLDINGS, INC.
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	 	 	Name:
	 

	 	 	 	 	 	Title:






90









 





LOANS AND PAYMENTS




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	Amount and	 	 	Payments of	 	 	Unpaid Principal	 	 	Name of Person	 
	 	Date	 	 	Type of Term Loan	 	 	Principal	 	 	Balance of Term Note	 	 	Making Notation	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 






91









 








EXHIBIT B




[FORM OF] ASSIGNMENT AND ACCEPTANCE




          Reference is made to the Credit Agreement, dated as of August 7, 2006 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”), among USP
DOMESTIC HOLDINGS, INC., a Delaware corporation (the “Borrower”), the several banks and
other financial institutions or entities from time to time parties to the Credit Agreement as
lenders (the “Lenders”), Bear Stearns Corporate Lending Inc., as administrative agent (in
such capacity, the “Administrative Agent”), SunTrust Bank, as collateral agent (in such
capacity, the “Collateral Agent”) and documentation agent, Bear, Stearns & Co. Inc., as
sole bookrunner, and Bear Stearns Corporate Lending Inc. and SunTrust Bank, as joint lead
arrangers. Terms defined in the Credit Agreement and not otherwise defined herein are used herein
with the meanings so defined.




          1. The Assignor identified on Schedule l hereto (the “Assignor”) and the
Assignee identified on Schedule l hereto (the “Assignee”) agree as follows:




          2. The Assignor hereby irrevocably sells and assigns to the Assignee without recourse to the
Assignor, and the Assignee hereby irrevocably purchases and assumes from the Assignor without
recourse to the Assignor, as of the Effective Date (as defined below), the interest described in
Schedule 1 hereto (the “Assigned Interest”) in and to the Assignor’s rights and
obligations under the Credit Agreement with respect to the Term Loans, in the principal amount as
set forth on Schedule 1 hereto.




          3. The Assignor (a) makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in connection with the Credit
Agreement or with respect to the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, any other Loan Document or any other instrument or
document furnished pursuant thereto, other than that the Assignor is the legal and beneficial owner
of the Assigned Interest, free and clear of any adverse claim, lien, encumbrance, security
interest, restriction on transfer, purchase option, call or similar right of a third party; (b)
makes no representation or warranty and assumes no responsibility with respect to the financial
condition of the Borrower, any of its Subsidiaries or any other obligor or the performance or
observance by the Borrower, any of its Subsidiaries or any other obligor of any of their respective
obligations under the Credit Agreement or any other Loan Document or any other instrument or
document furnished pursuant hereto or thereto; and (c) attaches any Term Notes held by it
evidencing the Assigned Interest and (i) requests that the Administrative Agent, upon request by
the Assignee, exchange the attached Term Notes for a new Term Note or Term Notes payable to the
Assignee and (ii) if the Assignor has retained any interest in the Term Loans, requests that the
Administrative Agent exchange the attached Term Notes for a new Term Note or Term Notes payable to
the Assignor, in each case in amounts which reflect the assignment being made hereby (and after
giving effect to any other assignments which have become effective on the Effective Date).




          4. The Assignee (a) represents and warrants that it is legally authorized to enter into this
Assignment and Acceptance; (b) confirms that it has received a copy of the Credit




 









 







Agreement, together with copies of the financial statements delivered pursuant to Section
3.1 thereof and such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Assignment and Acceptance; (c) agrees that it
will, independently and without reliance upon the Assignor, the Agents or any other Lender and
based on such documents and information as it shall deem appropriate at the time, continue to make
its own credit decisions in taking or not taking action under the Credit Agreement, the other Loan
Documents or any other instrument or document furnished pursuant hereto or thereto; (d) appoints
and authorizes the Agents to take such action as agent on its behalf and to exercise such powers
and discretion under the Credit Agreement, the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto as are delegated to the Agents by the terms thereof,
together with such powers as are incidental thereto; and (e) agrees that it will be bound by the
provisions of the Credit Agreement and will perform in accordance with its terms all the
obligations which by the terms of the Credit Agreement are required to be performed by it as a
Lender including, if it is a Foreign Lender, its obligation pursuant to Section 2.15(e) of
the Credit Agreement.




          5. The effective date of this Assignment and Acceptance shall be the Effective Date of
Assignment described in Schedule 1 hereto (the “Effective Date”). Following the
execution of this Assignment and Acceptance, it will be delivered to the Administrative Agent for
acceptance by it and recording by the Administrative Agent pursuant to the Credit Agreement,
effective as of the Effective Date (which shall not, unless otherwise agreed to by the
Administrative Agent, be earlier than five Business Days after the date of such acceptance and
recording by the Administrative Agent).




          6. Upon such acceptance and recording, from and after the Effective Date, the Administrative
Agent shall make all payments in respect of the Assigned Interest (including payments of principal,
interest, fees and other amounts) to the Assignor for amounts which have accrued to the Effective
Date and to the Assignee for amounts which have accrued subsequent to the Effective Date.




          7. From and after the Effective Date, (a) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and under the other Loan Documents and shall be bound by the
provisions thereof and (b) the Assignor shall, to the extent provided in this Assignment and
Acceptance, relinquish its rights and be released from its obligations under the Credit Agreement.




          This Assignment and Acceptance shall be governed by and construed in accordance with the laws of
the State of New York.




          IN WITNESS WHEREOF, the parties hereto have caused this Assignment and Acceptance to be
executed as of the date first above written by their respective duly authorized officers on
Schedule 1 hereto.




 









 








Schedule 1




to Assignment and Acceptance




	 	 	 	 	 	 	 
	Name of Assignor:
	 	 	 	 	 	 
	 	 	 	 	 
	Name of Assignee:
	 	 	 	 	 	 
	 	 	 	 	 
	Effective Date of Assignment:	 	 	 	 
	 

	 	 	 	 

	 	 






	 	 	 	 	 	 
	 
	 	Principal Amount Assigned	 	 	Percentage Assigned1	 
	 	$                                         

	 	 	                    .                    %	 
	 	 
	 	 	 	 
	 





	 	 	 	 	 	 	 	 	 
	 

	 	 

	 	 	 	 

	 	 
	 

	 	[Name of Assignee]
	 	 	 	[Name of Assignor]	 	 






	 	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	By:	 	 	 	 
	 

	 

	 	 	 	 	 

	 	 
	Title:

	 	 	 	 	 	Title:	 	 	 	 








 




			
	1	 	Calculate the percentage that is assigned to
at least 15 decimal places and show as a percentage of the aggregate Term Loans
of all Lenders.




 









 










	 	 	 	 	 	 	 	 	 	 	 
	Accepted:

[ASSIGNOR]	 	 	 	 	 	[Consented To:

[BEAR STEARNS CORPORATE LENDING INC., as
Administrative Agent
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	 	 	By:	 	 
	 	 	 	 	 	 	 	 
	 

	 	Title:
	 	 	 	 	 	 	 	Title:     ]
	 
	 	 	 	 	 	 	 	 	 	 
	[ASSIGNEE]	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 	 	 	 	 






1









 





EXHIBIT C




FORM OF PREPAYMENT OPTION NOTICE




Attention of [                    ]




Telecopy No. [                    ]




[Date]




Ladies and Gentlemen:




          The undersigned, Bear Stearns Corporate Lending Inc., as administrative agent (in such
capacity, the “Administrative Agent”) for the Lenders, refers to the Credit Agreement,
dated as of [___], 2006 (as amended, supplemented or otherwise modified from time to time, the
“Credit Agreement”), among USP Domestic Holdings, Inc., a Delaware corporation (the
“Borrower”), the several banks and other financial institutions or entities from time to
time parties to the Credit Agreement as lenders, the Administrative Agent, SunTrust Bank, as
collateral agent, Bear, Stearns & Co. Inc., as sole bookrunner, and Bear Stearns Corporate Lending
Inc. and SunTrust Bank, as joint lead arrangers. Capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to such terms in the Credit Agreement.




          The Administrative Agent hereby gives notice of the Borrower’s request that you elect to not
accept prepayment of your Pro Rata Share of the total Prepayment Amount pursuant to Section
2.11 of the Credit Agreement. The portion of the Prepayment Amount to be allocated to the Term
Loans held by you and the date on which such prepayment will be made to you (should you elect to
receive such prepayment) are set forth below:




	 	 	 	 	 	 	 
	(A)

	 	Total Prepayment Amount	 	 	 	 
	 

	 	 	 	 

	 	 
	(B)

	 	Portion of Prepayment Amount to be received by you	 	 	 	 
	 

	 	 	 	 

	 	 
	(C)

	 	Mandatory Prepayment Date (3 Business Days after the date
of this Prepayment Option Notice)	 	 	 	 
	 

	 	 	 	 	 	 





          IF YOU DO NOT WISH TO RECEIVE ALL OF THE PREPAYMENT AMOUNT INDICATED ABOVE TO BE ALLOCATED TO
YOU ON THE MANDATORY PREPAYMENT DATE, please sign this notice in the space provided below and
indicate the percentage of the Prepayment Amount otherwise payable which you do not wish to
receive. Please return this notice as so completed via telecopy to the attention of Kevin Cullen
at Bear Stearns Corporate Lending Inc., no later than 10:00 a.m., New York City time, on or
before the Mandatory Prepayment Date, at Telecopy No. (212) 272-4785. IF YOU DO NOT




1









 







RETURN THIS NOTICE, YOU WILL RECEIVE 100% OF THE PREPAYMENT ALLOCATED TO YOU ON THE MANDATORY
PREPAYMENT DATE.




	 	 	 	 	 	 
	 	BEAR STEARNS CORPORATE LENDING INC,

as Administrative Agent	 
	 
	 	 	 	 	 
	 

	By:	 	 	 
	 

	 	 	 	 	 
	 

	 	 	 	Name:	 
	 

	 	 	 	Title:	 
	 
	 	 	 	 	 
	 	[	  
	 	 
	],
	 

	 	 	 
	 	as Lender	 
	 
	 	 	 	 	 
	 

	By:	 	 	 
	 

	 	 	 	 	 
	 

	 	 	 	Name:	 
	 

	 	 	 	Title:	 






	 	 	 
	 

	 	Percentage of Prepayment Amount
	 

	 	Declined: ___%







2