SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT

THIS SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT, dated as of August 31, 2009, by and among NOVAMED, INC., a Delaware corporation (the “Borrower” ), the various financial institutions from time to time party hereto (collectively, the “Lenders” ), NATIONAL CITY BANK, as Sole Bookrunner, Sole Lead Arranger and as Agent (the “Agent” ) for the Lenders, BANK OF AMERICA, N.A., as Syndication Agent and TD BANKNORTH and SIEMENS FINANCIAL SERVICES, INC., as Co-Documentation Agents;

WHEREAS, the Borrower, the Lenders and the Agent entered into that certain Credit Agreement dated as of June 28, 2000 (the “Original Credit Agreement” ) which Original Credit Agreement was amended and restated as of August 29, 2001 pursuant to an Amended and Restated Credit Agreement, was again amended and restated as of October 23, 2001 pursuant to that certain Second Amended and Restated Credit Agreement, was again amended and restated as of June 26, 2003 pursuant to that certain Third Amended and Restated Credit Agreement, was again amended and restated as of October 15, 2004 pursuant to that certain Fourth Amended and Restated Credit Agreement, was again amended and restated as of June 29, 2006 pursuant to that certain Fifth Amended and Restated Credit Agreement and was again amended and restated as of February 7, 2007 pursuant to that certain Sixth Amended and Restated Credit Agreement (the " Sixth Amended and Restated Credit Agreement "); and

WHEREAS, the Borrower has requested that the Lenders and the Agent amend and restate the Sixth Amended and Restated Credit Agreement; and

WHEREAS, the Lenders are willing, on the terms and subject to the conditions hereinafter set forth (including Article V ), to amend and restate the Sixth Amended and Restated Credit Agreement; and

WHEREAS, the proceeds of the Loans hereunder will be used (i) to refinance existing indebtedness, (ii) for working capital purposes and (iii) for general corporate purposes, including to finance Permitted Acquisitions and Capital Expenditures.

NOW, THEREFORE, the parties hereto agree as follows:

SECTION 1.1   Defined Terms .  The following terms (whether or not underscored) when used in this Agreement, including its preamble and recitals, shall, except where the context otherwise requires, have the following meanings (such meanings to be equally applicable to the singular and plural forms thereof).

"Affected Lender" is defined in Section 4.12 .

“Affiliate” of any Person means any other Person which, directly or indirectly, controls, is controlled by or is under common control with such Person (excluding any trustee under, or any committee with responsibility for administering, any Plan).  A Person shall be deemed to be “controlled by” any other Person if such other Person possesses, directly or indirectly, power

(a)           to vote 10% or more of the securities (on a fully diluted basis) having ordinary voting power for the election of directors or managing general partners; or

(b)           to direct or cause the direction of the management and policies of such Person whether by contract or otherwise.

“Agent” means National City Bank and its successors and assigns.

“Agreed EBITDA FORM” is defined in Schedule 1 .

“Agreement” means, on any date, this Seventh Amended and Restated Credit Agreement as originally in effect on the Closing Date and as thereafter from time to time amended, supplemented, amended and restated, or otherwise modified and in effect on such date.

“ASC Facility” means an ambulatory surgery center, surgical facility or other form of outpatient surgical treatment center (including, without limitation, vision correction or laser vision correction center), or any business primarily in the business of owning, operating and/or managing one or more thereof.

" ASC Startup " means any Capital Expenditure or other amount expended the Borrower or any other Credit Party in an ASC Facility which Capital Expenditure would not by definition constitute an Investment or Permitted Acquisition hereunder.

“ASC Subsidiary” means a Subsidiary of the Borrower that is primarily engaged in the business of being an ASC Facility.

“ASC Subsidiary Capital Event” means the purchase by the Borrower or a Wholly-Owned Subsidiary of the Borrower of all or a portion of the equity interests in a Non-Wholly-Owned ASC Subsidiary or Controlled Minority ASC Entity or the redemption by a Non-Wholly-Owned ASC Subsidiary or Minority ASC Entity of all or a portion of the equity interests in such Non-Wholly-Owned ASC Subsidiary or Minority ASC Entity, as applicable.

“Asset Disposition” means any sale, transfer or other disposition of any property of the Borrower or any Subsidiary in a single transaction or in a series of related transactions (other than the sale of inventory and of equipment that is obsolete, worn-out or no longer useable by the Borrower or any of its Subsidiaries, in each case in the ordinary course of business and Permitted Equity Ownership Sales).

“Assignee Lender” is defined in Section 10.11.1 .

“Authorized Officer” means, relative to any Credit Party, those of its officers whose signatures and incumbency shall have been certified to the Agent and the Lenders pursuant to Section 5.1.1 .

" Available Revolving Commitment ": means at any time, an amount equal to the excess, if any, of (a) the Revolving Commitment Amount then in effect over (b) the sum of all Revolving Extensions of Credit then outstanding.

“Base Rate” means, for any day, a fluctuating per annum rate of interest equal to the highest of (i) the interest rate per annum announced from time to time by the Agent at its principal office as its then prime rate, which rate may not be the lowest rate then being charged commercial borrowers by the Agent, (ii) the Federal Funds Effective Rate plus ½ of 1% and (iii) the 1 month LIBOR Rate plus 200 basis points (2%).

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

“Borrower” is defined in the preamble .

“Borrowing” means the Revolving Loans of the same type and, in the case of LIBO Rate Loans, having the same Interest Period made by all Lenders on the same Business Day and pursuant to the same Borrowing Request in accordance with Section 2.2 .

“Borrowing Request” means a loan request and certificate duly executed by an Authorized Officer of the Borrower, substantially in the form of Exhibit B hereto.

“Business Day” means

(a)           any day which is neither a Saturday or Sunday nor a legal holiday on which banks are authorized or required to be closed in Chicago, Illinois; and

(b)           relative to the making, continuing, prepaying or repaying of any LIBO Rate Loans, any day on which dealings in Dollars are carried on in the London  interbank market.

“ Call Option ” means the call options, purchase rights or similar rights with respect to the common stock of the Borrower purchased by the Borrower on the issuance date of the Convertible Notes in connection with such issuance (including any rights of any counterparty to put any shares of common stock of the Borrower to the Borrower thereunder or any similar rights thereunder).

“Capital Expenditures” means, for any period, the aggregate amount of all expenditures of the Borrower and its Subsidiaries for fixed or capital assets made during such period which, in accordance with GAAP, would be classified as capital expenditures.

“Capitalized Lease Liabilities” means all monetary obligations of any Credit Party under any leasing or similar arrangement which, in accordance with GAAP, would be classified as capitalized leases, and, for purposes of this Agreement and each other Loan Document, the amount of such obligations shall be the capitalized amount thereof, determined in accordance with GAAP, and the stated maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be terminated by the lessee without payment of a penalty.

“Cash Equivalent Investment” means, at any time:

(a)  any evidence of Indebtedness, maturing not more than eighteen months after such time, issued or guaranteed by the United States Government;

(b)  commercial paper, maturing not more than nine months from the date of issue, which is issued by:

(i)  a corporation (other than an Affiliate of any Credit Party) organized under the laws of any state of the United States or of the District of Columbia and rated A-l by Standard & Poor’s Corporation or P-l by Moody’s Investors Service, Inc., or

(ii)  any Lender (or its holding company);

(c)  any certificate of deposit or bankers acceptance, maturing not more than one year after such time, which is issued by either:

(i)  a commercial banking institution that is a member of the Federal Reserve System and has a combined capital and surplus and undivided profits of not less than $500,000,000, or

(ii)  any Lender; or

(d)  any repurchase agreement entered into with any Lender (or other commercial banking institution of the stature referred to in clause (c)(i) ) which:

(i)  is secured by a fully perfected security interest in any obligation of the type described in any of clauses (a) through (c) ; and

(ii)  has a market value at the time such repurchase agreement is entered into of not less than 100% of the repurchase obligation of such Lender (or other commercial banking institution) thereunder.

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

“CERCLIS” means the Comprehensive Environmental Response Compensation Liability Information System List.

“Change of Control” means (a) any Person or any two or more Persons acting in concert  acquiring beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange Commission under the Exchange Act), directly or indirectly, of capital stock (or other securities convertible into such capital stock) of the Borrower representing 35% or more of the combined voting power of all capital stock of the Borrower entitled to vote in the election of directors, (b) during any period of 12 consecutive calendar months, the ceasing of those individuals (the “Continuing Directors” ) who (i) were directors of the Borrower, on the first day of each such period or (ii) subsequently became directors of the Borrower, and whose initial election or initial nomination for election subsequent to that date was approved either by (A) a majority of the Continuing Directors then on the board of directors of the Borrower or (B) the shareholders who, in accordance with the provisions of the Articles of Incorporation of the Borrower, are entitled to elect such director, to constitute a majority of the board of directors of the Borrower or (c) the occurrence of any "Fundamental Change" (or comparable term) under, as defined in, the Convertible Note Documents.

“Closing Date” means August 31, 2009.

“CMS” shall mean the Centers for Medicare and Medicaid Services and any successor thereto.

“Code” means the Internal Revenue Code of 1986, and regulations promulgated thereunder.

“Collateral” means all property and interests in property and proceeds thereof now owned or hereafter acquired by any Credit Party in or upon which a Lien now or hereafter exists in favor of the Agent on behalf of the Lenders, whether under this Agreement, Collateral Document or under any other documents executed by any such Credit Party and delivered to the Agent.

“Collateral Documents” means, collectively, (a) the Guarantee and Collateral Agreement, the Intellectual Property Assignments and all other security agreements, pledge agreements, assignments, guarantees and other similar agreements between a Credit Party and the Agent for the benefit of the Lenders now or hereafter delivered to the Lenders or the Agent pursuant to or in connection with the transactions contemplated hereby, and all financing statements (or comparable documents now or hereafter filed in accordance with the Uniform Commercial Code or comparable law) against a Credit Party as debtor in favor of the Agent, for the benefit of the Lenders, as secured party and (b) any amendments, restatements, supplements, modifications, renewals, replacements, consolidations, substitutions and extensions of any of the foregoing.

“Consideration” means with respect to any Permitted Acquisition, the aggregate of (i) the cash paid by the Borrower or any of its Subsidiaries, directly or indirectly, to the seller in connection therewith, (ii) the Indebtedness incurred or assumed by the Borrower or any of its Subsidiaries (including, without limitation, Indebtedness of a person becoming a Credit Party in connection with a Permitted Acquisition, which Indebtedness continues to exist following the consummation of such Permitted Acquisition), whether in favor of the seller or otherwise and whether fixed or contingent, in connection therewith, (iii) any guaranty given or incurred by the Borrower or any of its Subsidiaries in connection therewith, (iv) the fair market value of any equity issued by the Borrower, in connection therewith, and (v) any other consideration given or obligation incurred by the Borrower or any of its Subsidiaries in connection therewith.

"Consolidated Interest Expenses" means, for any period, the total interest expense (including that attributable to capital leases) of the Borrower and its Subsidiaries on a consolidated basis with respect to all outstanding Indebtedness of the Borrower and its Subsidiaries, including, without limitation, all commissions, discounts and other fees and charges owed with respect to letters of credit and unused line fees but excluding any of the foregoing to the extent it constitutes a non-cash item.

“Contingent Liability” means any agreement, undertaking or arrangement which would be reflected in a footnote to a balance sheet as a contingent liability in accordance with GAAP.

“Continuation/Conversion Notice” means a notice of continuation or conversion and certificate duly executed by an Authorized Officer of the Borrower, substantially in the form of Exhibit C hereto.

“Controlled Group” means all members of a controlled group of corporations and all members of a controlled group of trades or businesses (whether or not incorporated) under common control which, together with the Borrower, are treated as a single employer under Section 414(b) or 414(c) of the Code or Section 4001 of ERISA.

"Controlled Minority ASC Entity" means, as of any date of determination, any Minority ASC Entity in which the Borrower or any Credit Party as of such date has operational control over the day to day business decisions of such Minority ASC Entity including, without limitation, veto power over the disposition of the assets of such Minority ASC Entity and operational control over the disbursement of funds held by such Minority ASC Entity.

“ Convertible Note Documents ” means the Convertible Notes, the Indenture dated as of June 17, 2007 between Borrower, as issuer and LaSalle Bank National Association, as trustee (including the First Supplemental Indenture dated as of June 27, 2007 between Borrower, as issuer and LaSalle Bank National Association, as trustee), the Call Options, the Warrants and all other definitive documents, instruments and agreements relating thereto, as amended, modified, supplemented, refinanced and replaced in accordance with the provisions hereof.

“ Convertible Notes ” means the Borrower's $75,000,000 in original principal amount of unsecured convertible senior subordinated notes due 2012, as amended, modified, supplemented, refinanced or replaced in accordance with the provisions hereof.

“Credit Party” means the Borrower and any Subsidiary of the Borrower party to a Loan Document.

“Credit Party Intercompany Loans” is defined in Section 7.2.2 .

“Credit Party Intercompany Notes” is defined in Section 7.2.2 .

“Default” means any condition, occurrence or event which, after notice or lapse of time or both, would constitute an Event of Default.

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

“Domestic Office” means, relative to any Lender, the office of such Lender designated as such below its signature hereto or designated in the Lender Assignment Agreement or such other office of a Lender (or any successor or assign of such Lender) within the United States as may be designated from time to time by notice from such Lender, as the case may be, to each other Person party hereto.  A Lender may have separate Domestic Offices for purposes of making, maintaining or continuing, as the case may be, Base Rate Loans.

“ EBITDA” means, for any applicable computation period, the sum of (i) the Borrower’s Net Income on a consolidated basis from continuing operations, plus (ii) income and franchise taxes paid or accrued during such period, (iii) interest expense paid or accrued during such period, (iv) amortization and depreciation deducted in determining Net Income for such period, (v) non-cash, non-recurring losses, and (vi) non-cash expenses for capital stock-based compensation related to capital stock-based compensation plans that do not represent a cash item in any future period.  For the purpose of determining compliance with Section 7.2.4(b) and (c) , “EBITDA” shall be as adjusted pursuant to the formula described in Schedule 1 .

“Environmental Laws” means all applicable federal, state or local statutes, laws, ordinances, codes, rules, regulations and guidelines (including consent decrees and administrative orders) relating to public health and safety and protection of the environment.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and any successor statute of similar import, together with the regulations thereunder, in each case as in effect from time to time.  References to sections of ERISA also refer to any successor sections.

“Event of Default” is defined in Section 8.1 .

“Federal Funds Effective Rate” means, for any day, an interest rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published for such day (or, if such day is not a Business Day, for the immediately preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations at approximately 11:00 a.m. (EST) on such day on such transactions received by Agent from three Federal funds brokers of recognized standing selected by the Agent in its sole discretion.

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

“Fiscal Year” means any period of twelve consecutive calendar months ending on  December 31; references to a Fiscal Year with a number corresponding to any calendar year ( e.g. the “2006 Fiscal Year”) refer to the Fiscal Year ending on the December 31 occurring during such calendar year.

" Fixed Charges " means, with respect to the Borrower and its Subsidiaries on a consolidated basis, as of any date of determination, (a) Consolidated Interest Expenses (including any interest expense with respect to the Convertible Note Documents) for the period of four fiscal quarters ending on the date of determination plus (b) scheduled principal payments on Indebtedness required to be made in such period plus (c) rent expenses incurred by the Borrower and its Subsidiaries.  Notwithstanding the foregoing, for the Fiscal Quarters ending September 30, 2009, December 31, 2009, March 31, 2010 and June 30, 2010, scheduled principal payments on the Term Loans for purposes of clause (b) above shall be deemed to be an annualized amount equal to $1,000,000 per Fiscal Quarter.

“Fraud and Abuse Laws” means the federal Anti-kickback Statute, Section 1128B(b) of the Social Security Act, 42 U.S.C. Section 1320a-7b(b) (the “Anti-kickback Statue”), the federal Self-Referral Prohibition, Section 1877 of the Social Security Act, 42 U.S.C. Section 1395nn (“Stark II”), the federal False Claims Act, 31 U.S.C. Section 3729 et seq. (“False Claims Act”), and the federal civil monetary penalties act, Section 1128A of the Social Security Act, 42 U.S.C. Section 1320a-7a (“CMPA”), each as from time to time amended; any successor statute(s) thereto; all rules and regulations promulgated thereunder; other similar federal and state laws and regulations; and, all other federal or state laws concerning illegal remuneration, referral of patients, kickbacks, fee splitting, reassignment of claims, and false or fraudulent billing for medical items or services.

“F.R.S. Board” means the Board of Governors of the Federal Reserve System or any successor thereto.

“GAAP”   means generally accepted accounting principles set forth from time to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the U.S. accounting profession), which are applicable to the circumstances as of  the date of determination.

“Guarantee and Collateral Agreement” means the Guarantee and Collateral Agreement dated as of the Closing Date by each Credit Party signatory thereto in favor of Agent and Lenders, as amended, supplemented, restated or otherwise modified from time to time.

“Guarantor” means each Person (other than Borrower) party to the Guarantee and Collateral Agreement.

“Hazardous Material” means

(a)           any “hazardous substance”, as defined by CERCLA;

(b)           any “hazardous waste”, as defined by the Resource Conservation and Recovery Act, as amended;

(c)           any petroleum product; or

(d)           any pollutant or contaminant or hazardous, dangerous or toxic chemical, material or substance within the meaning of any other applicable federal, state or local law, regulation, ordinance or requirement (including consent decrees and administrative orders) relating to or imposing liability or standards of conduct concerning any medical, hazardous, toxic or dangerous waste, substance or material, all as amended or hereafter amended.

“Hedging Agreements” means any Interest Rate Agreement, foreign currency exchange agreement, commodity price protection agreement or other interest or currency exchange rate or commodity price hedging agreement, provided that such agreement is not entered into for speculative purposes, is entered into with the Agent or a Lender.

“herein” , “hereof” , “hereto” , “hereunder” and similar terms contained in this Agreement or any other Loan Document refer to this Agreement or such other Loan Document, as the case may be, as a whole and not to any particular Section, paragraph or provision of this Agreement or such other Loan Document.

“HIPAA” means the Health Insurance Portability and Accountability Act of 1996 and its implementing administrative simplification regulations, specifically, the “Standards for Electronic Transactions,” 65 Fed. Reg. 50,312 (Aug. 17, 2000); “Standards for Privacy of Individually Identifiable Health Information,” 65 Fed. Reg. 82,462 (Dec. 28, 2000), modified at 67 Fed. Reg. 53,182 (Aug. 14, 2002); and the “Security Standards,” 68 Fed. Reg. 8334 (Feb. 20, 2003), each as from time to time amended.

“Impermissible Qualification” means, relative to the opinion or certification of any independent public accountant as to any financial statement of any Credit Party, any qualification or exception to such opinion or certification:

(a)           which is of a “going concern” or similar nature;

(b)           which relates to the limited scope of examination of matters relevant to such financial statement; or

(c)           which relates to the treatment or classification of any item in such financial statement and which, as a condition to its removal, would require an adjustment to such item the effect of which would be to cause such Credit Party to be in default of any of its obligations under Section 7.2.4 .

“including” means including without limiting the generality of any description preceding such term, and, for purposes of this Agreement and each other Loan Document, the parties hereto agree that the rule of ejusdem generis shall not be applicable to limit a general statement, which is followed by or referable to an enumeration of specific matters, to matters similar to the matters specifically mentioned.

“Indebtedness” of any Person means, without duplication:

(a)           all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments; provided, for purposes of clarification, all obligations of the Borrower under the Convertible Note Documents will be considered Indebtedness hereunder ;

(b)           all obligations, contingent or otherwise, relative to the face amount of all letters of credit (including Letters of Credit), whether or not drawn, and banker’s acceptances issued for the account of such Person;

(c)           all obligations of such Person as lessee under leases which have been or should be, in accordance with GAAP, recorded as Capitalized Lease Liabilities;

(d)           all other liabilities for borrowed money in accordance with GAAP included  on the liability side of the balance sheet of such Person as of the date at which Indebtedness is to be determined;

(e)           net liabilities of such Person under all Hedging Agreements;

(f)            whether or not so included as liabilities in accordance with GAAP, all obligations of such Person to pay the deferred purchase price of property or services, and indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse; and

(g)           all Contingent Liabilities of such Person in respect of any of the foregoing.

For all purposes of this Agreement, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture in which such Person is a general partner or a joint venturer, except to the extent payments have been made or are required to be made with respect to such Indebtedness solely by a general partner or a joint venture partner other than a Subsidiary.

“Indemnified Liabilities” is defined in Section 10.4 .

“Indemnified Parties” is defined in Section 10.4 .

“Intellectual Property Assignment” means that certain Intellectual Property Assignment in form and substance satisfactory to the Agent, duly executed and delivered by a Credit Party in favor of the Agent, for the benefit of itself and the Lenders, as the same may be amended, supplemented or otherwise modified from time to time.

“Interest Period” means, relative to any LIBO Rate Loans, the period beginning on (and including) the date on which such LIBO Rate Loan is made or continued as, or converted into, a LIBO Rate Loan pursuant to Section 2.4 or 2.5 and shall end on (but exclude) either (i) the day one week subsequent to such day, or (ii) the day which numerically corresponds to such date one, two, three, six or twelve   months thereafter, if available from all Lenders (or, if such month has no numerically corresponding day, on the last Business Day of such month),  as the Borrower may select in its relevant notice pursuant to Section 2.4 or 2.5 ; provided , however , that

(a)           the Borrower shall not be permitted to select Interest Periods to be in effect at any one time which have expiration dates occurring on more than six   (including the Base Rate tranche) different   dates;

(b)           Interest Periods commencing on the same date for Revolving Loans comprising part of the same Borrowing shall be of the same duration;

(c)           if such Interest Period would otherwise end on a day which is not a Business Day, such Interest Period shall end on the next following Business Day (unless such next following Business Day is the first Business Day of the immediately succeeding calendar month, in which case such Interest Period shall end on the Business Day next preceding such numerically corresponding day);

(d)           no Interest Period with respect to Loans made prior to the Revolving Commitment Termination Date may end later than the date set forth in clause (a) of the definition of “Revolving Commitment Termination Date”;

(e)           no Interest Period for any Loan outstanding on and after the Revolving Commitment Termination Date shall extend beyond the Maturity Date; and

(f)            no Interest Period applicable to a Loan outstanding on and after the Revolving Commitment Termination Date, or portion thereof, shall extend beyond any date upon which is due any scheduled principal payment in respect of the Loans unless the aggregate principal amount of Loans represented by LIBO Rate Loans having Interest Periods that will expire on or before such date, equals or exceeds the amount of such principal payment.

“Interest Rate Agreement” means any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement or other similar agreement or arrangement designed to protect the Borrower or any of its Subsidiaries against fluctuations in interest rates.

“Investment” means, relative to any Person,

(a)           any loan or advance made by such Person to any other Person (excluding commission, travel and similar advances to officers and employees of the Borrower and any other Credit Party made in the ordinary course of business);

(b)           any Contingent Liability of such Person; and

(c)           any ownership or similar interest held by such Person in any other Person.

The amount of any Investment shall be the original principal or capital amount thereof less all returns of principal or equity thereon (and without adjustment by reason of the financial condition of such other Person) and shall, if made by the transfer or exchange of property other than cash, be deemed to have been made in an original principal or capital amount equal to the fair market value of such property.

“LC Notice” has the meaning specified in Section 2.8 .

“Lender Assignment Agreement” means a Lender Assignment Agreement substantially in the form of Exhibit D hereto.

“Lenders” is defined in the preamble .

“Letter of Credit” shall mean a Letter of Credit that is issued pursuant to Section 2.8 .

“Letter of Credit Cash Collateral Account” has the meaning specified in Section 8.4.

“Letter of Credit Expiry Date” shall mean the date which is five Business Days prior to the Revolving Commitment Termination Date.

“Letter of Credit Issuer” shall mean National City.

“Letter of Credit Obligations” shall mean, as at the time of determination thereof, the sum of (a) the aggregate amount of all unpaid and outstanding reimbursement obligations and (b) without duplication, the aggregate stated amount at such time of Letters of Credit then outstanding and undrawn (as such aggregate stated amount shall be adjusted, from time to time, as a result of drawings, the issuance of Letters of Credit, or otherwise).

“Letter of Credit Sublimit” shall mean an aggregate amount of $5,000,000.

“LIBO Rate” is defined in Section 3.2.1 .

“LIBO Rate Loan” means a Loan bearing interest, at all times during an Interest Period applicable to such Loan, at a fixed rate of interest determined by reference to the LIBO Rate (Reserve Adjusted).

“LIBO Rate (Reserve Adjusted)” is defined in Section 3.2.1 .

“LIBOR Office” means, relative to any Lender, the office of such Lender designated as such below its signature hereto or designated in the Lender Assignment Agreement or such other office of a Lender as designated from time to time by notice from such Lender to the Borrower and the Agent, whether or not outside the United States, which shall be making or maintaining LIBO Rate Loans of such Lender hereunder.

“LIBOR Reserve Percentage” is defined in Section 3.2.1 .

“Lien” means any security interest, mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or otherwise), charge against or interest in property to secure payment of a debt or performance of an obligation or other priority or preferential arrangement of any kind or nature whatsoever.

“Loan Document” means this Agreement, the Notes, each Collateral Document, each Hedging Agreement and each other document delivered pursuant to Section 7.1.12 .

“ Loans ” means the Revolving Loans and Term Loans.

“Material Adverse Effect” means a material adverse effect on the financial condition, operations, assets, business, properties or prospects of the Borrower, its Subsidiaries and Minority ASC Entities taken as a whole.

“Maturity Date” means the earliest of:

(a)           August 30, 2012; or

(b)           the date on which any Termination Event occurs.

"Medicaid " means the medical assistance program established by Title XIX of the Social Security Act.

“Medicaid Certification” means a certification by a state agency or other entity responsible for certifying Medicaid providers and suppliers that a health care provider or supplier is in compliance with all the conditions of participation set forth in the Medicaid Regulations.

“Medicaid Provider Agreement” means an agreement entered into between CMS or a state agency or other such entity administering the Medicaid program and a health care provider or supplier under which the health care provider or supplier agrees to provide services for Medicaid patients in accordance with the terms of the agreement and Medicaid Regulations.

“Medicaid Regulations” means, collectively, (i) all federal statutes (whether set forth in Title XIX of the Social Security Act or elsewhere) affecting the medical assistance program established by Title XIX of the Social Security Act and any successor statute(s); (ii) all applicable provisions of all federal rules, regulations, manuals and orders of all governmental authorities promulgated pursuant to or in connection with the statutes described in clause (i) above and all federal administrative, reimbursement and other guidelines of all governmental authorities having the force of law promulgated pursuant to or in connection with the statutes described in clause (i) above; (iii) all state statutes and plans for medical assistance enacted in connection with the statutes and provisions described in clauses (i) and (ii) above; and (iv) all applicable provisions of all rules, regulations, manuals and orders of all governmental authorities promulgated pursuant to or in connection with the statutes described in clause (iii) above and all state administrative, reimbursement and other guidelines of all governmental authorities having the force of law promulgated pursuant to or in connection with the statutes described in clause (iii) above, in each case as may be amended, supplemented or other wise modified from time to time.

" Medicare " means the health insurance program for the aged and disabled established by Title XVIII of the Social Security Act.

“Medicare Certification” means certification by CMS or a state agency or entity under contract with CMS that the health care operation is in compliance with all the conditions of participation set forth in the Medicare Regulation.

“Medicare Provider Agreement” means an agreement entered into between CMS or a state agency or other such entity administering the Medicare program and a health care provider or supplier under which the health care provider or supplier agrees to provide services for Medicare patients in accordance with the terms of the agreement and Medicare Regulations.

“Medicare Regulations” means, collectively, all federal statutes (whether set forth in Title XVIII of the Social Security Act or elsewhere) affecting the health insurance program for the aged and disabled established by Title XVIII of the Social Security Act and any successor statute(s); together with all applicable provisions of all rules, regulations, manuals and orders and administrative, reimbursement and other guidelines of all governmental authorities (including without limitation, the United States Department of Health and Human Services (“HHS”), CMS, the Office of the Inspector General for HHS, or any person succeeding to the functions of any of the foregoing) promulgated pursuant to or in connection with any of the foregoing having the force of law, as each may be amended, supplemented or otherwise modified from time to time.

" Minority ASC Entity " means any ASC Facility which is not a Subsidiary into which the Borrower or a Subsidiary of the Borrower has made an Investment, including, without limitation, by way of a Permitted Acquisition.

" Minority ASC Investments " has the meaning set forth in Section 7.2.5(l) .

“National City” means National City Bank, acting in its individual capacity.

“Net Available Proceeds” means (a) with respect to any Asset Disposition, the sum of cash or readily marketable cash equivalents received (including by way of a cash generating sale or discounting of a note or account receivable) therefrom, whether at the time of such disposition or subsequent thereto, or (b) with respect to any sale or issuance of any debt or equity securities of the Borrower or any Subsidiary, cash or readily marketable cash equivalents received therefrom, whether at the time of such disposition or subsequent thereto, net, in either case, of all legal, title and recording tax expenses, commissions and other fees and all costs and expenses incurred and all federal, state, local and other taxes required to be accrued as a liability as a consequence of such transactions and, in the case of an Asset Disposition, net of all payments made by the Borrower or any of its Subsidiaries, including any prepayment premiums, on any Indebtedness which is secured by such assets pursuant to a Permitted Lien upon or with respect to such assets or which must, by the terms of such Lien, in order to obtain a necessary consent to such Asset Disposition, or by applicable law, be repaid out of the proceeds from such Asset Disposition.

“Net Income” means, for any computation period, with respect to the Borrower, on a consolidated basis, cumulative net income earned during such period as determined in accordance with GAAP (other than net income from any Minority ASC Entity which is restricted from declaring or paying dividends, distributions or otherwise advancing funds to its equityholders whether by contract or otherwise, except to the extent of any such net income actually received which is not in violation of the applicable restriction) ; provided , however , there shall not be included for purposes of calculating Net Income of the Borrower, net income attributable to Minority ASC Entities in excess of 25% of total Net Income.

“Net Worth” means, for any computation period, the consolidated shareholders’ equity of the Borrower determined in accordance with GAAP, which consolidated shareholders’ equity shall be deemed to include the preferred stock of the Borrower and the value of Borrower’s treasury stock, at cost.

“Non-Credit Party Intercompany Loans” is defined in Section 7.2.2 .

“Non-Credit Party Intercompany Notes” is defined in Section 7.2.2 .

“Non-Wholly-Owned ASC Subsidiary” means an ASC Subsidiary in which the Borrower or a Subsidiary of the Borrower owns less than 100% of the equity interests but at least 50.1% of the equity interests.

“Note” means a promissory note of the Borrower payable to any Lender, in the form of Exhibit A hereto (as such promissory note may be amended, endorsed or otherwise modified from time to time), evidencing the aggregate Indebtedness of the Borrower to such Lender resulting from outstanding Loans, and also means all other promissory notes accepted from time to time in substitution therefor or renewal thereof.

“Obligations” means all obligations (monetary or otherwise) of each Credit Party arising under or in connection with this Agreement, the Notes, the Letters of Credit and each other Loan Document.

“Organizational Document” means, relative to any Subsidiary, its certificate of incorporation, its by-laws, its limited liability company agreement, partnership agreement  and all shareholder agreements, voting trusts and similar arrangements applicable to any of its authorized shares of capital stock, partnership interests, or membership interests, as the case may be.

“Original Credit Agreement” has the meaning specified in the Recitals hereto .

“Participant” is defined in Section 10.11 .

“PBGC” means the Pension Benefit Guaranty Corporation and any entity succeeding to any or all of its functions under ERISA.

“Pension Plan” means a “pension plan”, as such term is defined in section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a multiemployer plan as defined in section 4001(a)(3) of ERISA), and to which the Borrower or any corporation, trade or business that is, along with the Borrower, a member of a Controlled Group, may have liability, including any liability by reason of having been a substantial employer within the meaning of section 4063 of ERISA at any time during the preceding five years, or by reason of being deemed to be a contributing sponsor under section 4069 of ERISA.

“Percentage” means, relative to any Lender, the percentage set forth opposite its name on Schedule 10.1 hereto or set forth in the Lender Assignment Agreement, as such percentage may be adjusted from time to time pursuant to Lender Assignment Agreement(s) executed by such Lender and its Assignee Lender(s) and delivered pursuant to Section 10.11 .

“Permitted Acquisition” means the purchase (by asset purchase, stock purchase, membership interest purchase, other equity interest purchase, merger or otherwise, subject to the other requirements of this definition set forth below) by the Borrower or a Wholly-Owned Subsidiary of the Borrower (or, in the case of the purchase of an ASC Facility, by the Borrower or a Subsidiary of the Borrower) of the assets, stock, membership interests or other equity interests of a Target or Practice (it being acknowledged that medical records and certain other professional assets that are required by law to be owned by a Provider are not acquired in these transactions), which purchase meets the following criteria:

(a)       no Default or Event of Default shall have occurred or be continuing both before and after giving effect to such acquisition;

(b)      the Borrower's Senior Leverage Ratio on a pro forma basis (after giving effect to the Permitted Acquisition) is less than 2.25:1.0;

(c)      the aggregate Consideration (including any Indebtedness pursuant to Section 7.2.2(g), (h), (i) and (j) relating to such Permitted Acquisitions) in connection with such Permitted Acquisition shall not exceed (unless otherwise consented to by the Required Lenders) $25,000,000 individually and $40,000,000 for all Permitted Acquisitions consummated during the term of this Agreement ;

(d)      the acquisition shall have been of substantially all of the assets and/or working capital of a Target or, if for stock or other equity interests in a Target, shall be for not less than 20.0% of the equity interests therein, shall either, to the extent permitted by applicable law, be merged with and into the Borrower or a Wholly-Owned Subsidiary of the Borrower, or be a Wholly-Owned Subsidiary of the Borrower; provided , however ¸ with respect to an ASC Facility which is not merged with or into a Borrower or a Wholly-Owned Subsidiary of the Borrower, the stock or other equity interests of the ASC Facility so acquired shall be pledged to the Agent on behalf of the Lenders (and, in the case of any equity interest in a limited liability company or limited partnership, the agreement governing such Person shall not prohibit a collateral assignment of such equity interest);

(e       the acquired Target, on a pro forma basis shall have positive EBITDA for the period of four fiscal quarters ending on the date of any such acquisition;

(f)      the Borrower shall have delivered to the Agent, (i) not later than 5 Business Days prior to the closing of the acquisition pro forma financial statements or certificates demonstrating (in reasonable detail and with appropriate calculations and computations in all respects satisfactory to Agent) continued compliance with all covenants in this Agreement following the inclusion of the target in the Borrower’s consolidated enterprise and (ii) not later than 30 days after the closing of the acquisition a copy of the related acquisition agreement;

(g)      the Borrower shall have delivered to the Agent, not later than 5 Business Days prior to the closing of the acquisition a fully executed Agreed EBITDA Form; and

(h)      after giving effect to such acquisition, the sum of the Available Revolving Commitments shall not be less than $10,000,000.

   “Permitted Asset Disposition” has the meaning specified on Exhibit F hereto.

   “Permitted Equity Ownership Sale” means the sale, transfer or other disposition of the outstanding capital stock, membership interest or other equity interests in an ASC Subsidiary (or Minority ASC Entity) or the issuance of additional equity interests in an ASC Subsidiary (or Minority ASC Entity), so long as:

(i)           after giving effect to such sale, a Credit Party shall own not less than 20.0% of the equity interests (including securities convertible into equity interests) of such ASC Facility;

(ii)          the equity interests in such ASC Subsidiary (or Minority ASC Entity) which are held by the Borrower or a Subsidiary of the Borrower after such sale continue to be pledged to the Lenders pursuant to the Guarantee and Collateral Agreement;

(iii)         the chief financial officer or chief executive officer of the Borrower shall have delivered a certificate, dated the date of such sale, to the Agent certifying (a) that no Default or Event of Default exists or would result from such sale and (b) pro forma financial statements demonstrating compliance with Section 7.2.4 for the trailing twelve-month period prior to such sale; and

(iv)         the proceeds (other than any proceeds received by a Person who is not the Borrower or a Subsidiary of the Borrower) of any such sale are applied in the manner set forth in Section 2.3.2 .

Upon the consummation of any Permitted Equity Ownership Sale and at the request of the Borrower (to comply with a requirement in the purchase and sale documents evidencing such Permitted Equity Ownership Sale), the ASC Subsidiary or Minority ASC Entity which has become a Non-Wholly Owned ASC Subsidiary or Minority ASC Entity as a result of such Permitted Equity Ownership Sale shall be released from the Guarantee and Collateral Agreement and the liens of the Lenders on the assets of such ASC Subsidiary shall be released (except to the extent of the pledge to the Lenders of the equity interests of such ASC Subsidiary retained by the Borrower or a Subsidiary of the Borrower) and the Agent is hereby authorized to execute and file the necessary release documentation to reflect such release.

   “Permitted Liens” means those liens listed in Section 7.2.3 .

   “Permitted Seller Debt” means Indebtedness owed to the Borrower which is incurred by purchasers of the Borrower’s assets in connection with a Permitted Asset Disposition.

   “Permitted Seller Equity” means common stock of the Borrower that is used as consideration payable to the Borrower or any of its Subsidiaries by any party to a Permitted Asset Disposition.

   “Person” means any natural person, corporation, partnership, limited liability company, firm, association, trust, government, governmental agency or any other entity, whether acting in an individual, fiduciary or other capacity.

   “Plan” means any Pension Plan or Welfare Plan.

   “Pledged Collateral” has the meaning specified in the Guarantee and Collateral Agreement.

   “Practice” means any medical or ophthalmology practice, optometry practice or optical dispensary at a single location or various locations.

   “Provider” means any Person who performs professional medical services for a Practice that is either managed by a Subsidiary or the assets of which are owned by a Subsidiary.

    “Quarterly Payment Date” means the last Business Day of each March, June, September, and December.

   “Release” means a “release”, as such term is defined in CERCLA.

   "Replacement Lender" is defined in Section 4.12 .

   “Required Lenders” means any three or more Lenders holding at least 51.0% of the Revolving Commitments (or, if the Revolving Commitments have terminated, outstanding Revolving Loans) and outstanding Term Loans, collectively; provided , if there are only two Lenders then Required Lenders shall mean both Lenders.

   “Resource Conservation and Recovery Act” means the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq ., as in effect from time to time.

   “ Revolver Increase ” has the meaning set forth in Section 2.2.3 .

   “ Revolver Increase Notice ” has the meaning set forth in Section 2.2.3 .

   “Revolving Commitment” means, relative to any Lender, such Lender’s obligation to make Revolving Loans pursuant to Section 2.2.1 .

   “Revolving Commitment Amount” means $50,000,000 plus the amount, if any, of any increase permitted by Section 2.2.3. (after which increase, the Revolving Commitment Amount shall not exceed $95,000,000).  The Revolving Commitment Amount at any time in effect may also be reduced from time to time pursuant to Section 2.3 .

   “Revolving Commitment Termination Date” means the earliest of

(a)          August 30, 2012;

(b)         the date on which the Revolving Commitment Amount is terminated in full or reduced to zero pursuant to Section 2.3 ; and

(c)          the date on which any Termination Event occurs;

Upon the occurrence of any event described in clause (b) or (c) , the Revolving Commitments shall terminate automatically and without further action.

   " Revolving Extensions of Credit "  as to any Revolving Lender at any time, an amount equal to the sum, without duplication, of (a) the aggregate principal amount of all Revolving Loans held by such Lender then outstanding and (b) an amount equal to such Lender's Percentage of the Letter of Credit Obligations then outstanding.

   “Revolving Loan” is defined in Section 2.2.1 .

   “Senior Debt” shall mean Indebtedness of the type described in clauses (a) , (b) , (c), and (d) of the definition Indebtedness (other than Subordinated Debt) of the Borrower on a consolidated basis.

   "Senior Leverage Ratio" means, as of any date of determination, the ratio of (a) Senior Debt (including Letters of Credit) to (b) EBITDA, as measured on a rolling four quarter basis.

   “Solvent” means, when used with respect to a Person, that (a) the fair saleable value of the assets of such Person is in excess of the total amount of the present value of its liabilities (including for purposes of this definition all liabilities whether or not reflected on a balance sheet prepared in accordance with GAAP and whether direct or indirect, fixed or contingent, secured or unsecured, disputed or undisputed), (b) such Person is able to pay its debts or obligations in the ordinary course as they mature and (c) such Person does not have unreasonably small capital to carry out its business as conducted and as proposed to be conducted.  “Solvency” shall have a correlative meaning.

   “Subordinated Debt” means all Indebtedness the repayment of which is subordinated, upon terms satisfactory to the Required Lenders, in right of payment to the payment in full in cash of all Obligations.

   “Subsidiary” of a Person means any corporation, association, partnership, limited liability company, joint venture or other business entity of which more than 50% of the voting stock, membership interests or other equity interests (in the case of Persons other than corporations), is owned or controlled directly or indirectly by the Person, or one or more of the Subsidiaries of the Person, or a combination thereof.

   “Target” means (i) any business that sells, leases or provides medical equipment to doctors, hospitals or other health organizations, (ii) ambulatory surgery centers, surgical facilities or other form of outpatient surgical treatment centers (including, without limitation, vision correction or laser vision correction centers), regardless of the specialty or specialties involved therein, or any business that owns, operates and/or manages one or more thereof, (iii) any  management service center, optical laboratory, buying group or group purchasing organization, companies that own, operate and/or manage vision correction centers (including, without limitation, laser vision correction centers), marketing products and services organization (including providing marketing and lead tracking software, websites, call center services and other marketing services to health care providers and manufacturers), or reasonable extensions thereof (including any company which leases or sells equipment or provides services to any of the foregoing), at a single location or various locations, or (iv) reasonable extensions of any of the foregoing.  Whenever in this Agreement “Target” is used in describing an acquisition by the Borrower or a Subsidiary of the Borrower of equity interests, such reference is to the acquisition of the assets used in the operation of the Target that can lawfully be acquired by the Borrower or a Subsidiary of the Borrower or to the acquisition of the equity interests of a Person that owns, as of the time of purchase, only those assets that can be lawfully acquired by the Borrower or a Subsidiary of the Borrower.

   “Taxes” is defined in Section 4.6 .

(a)          the occurrence of any Default described in clauses (a) through (e) of Section 8.1.9 ;

(b)          the occurrence and continuance of any other Event of Default and either

(i)           the declaration of the Loans to be due and payable pursuant to Section 8.3 , or

(ii)           in the absence of such declaration, the giving of notice by the Agent, acting at the direction of the Required Lenders, to the Borrower that the Revolving Commitments have been terminated;

(c)          the failure to repay or refinance the Convertible Notes due June 15, 2012 on or prior to December 15, 2011.

   “Term Loan Commitment” means, relative to any Lender, such Lender’s obligation to make Term Loans pursuant to Section 2.1 .

   “Term Loan Commitment Amount” means $30,000,000.

   “Term Loans” has the meaning set forth in Section 2.1.

   “Total Funded Debt" of any Person means all Indebtedness of such Person except Indebtedness specified in clause (g) of the definition of Indebtedness; provided, with respect to Indebtedness of any Non-Wholly Owned ASC Subsidiary guaranteed by a Person or Persons other than a Subsidiary, ASC Subsidiary, Minority ASC Entity or Affiliate of a Credit Party, the amount of outstanding Indebtedness of such Non-Wholly Owned ASC Subsidiary included in the calculation of this definition shall equal the greater of (x) the actual amount of such Indebtedness guaranteed by the Borrower or any Subsidiary of the Borrower and (y) an amount equal to the principal amount of such Indebtedness multiplied by that percentage of the outstanding equity interests owned by the Borrower or any Subsidiary of the Borrower.

   "Total Leverage Ratio" has the meaning assigned to it in Section 3.2.1 .

   “Type” means, relative to any Loan, the portion thereof, if any, being maintained as a Base Rate Loan or a LIBO Rate Loan.

   “United States” or “U.S.” means the United States of America, its fifty States and the District of Columbia.

   “ Warrants ” means any call options, warrants, purchase rights or similar rights with respect to the common stock of the Borrower sold by the Borrower on the issuance date of the Convertible Notes in connection with such issuance.

   “Welfare Plan” means a “welfare plan”, as such term is defined in Section 3(1) of ERISA.

   “Wholly-Owned Subsidiary” means any Person in which (other than directors’ qualifying shares required by law) 100% of the equity interests of each class having ordinary voting power, and 100% of the equity interests of every other class, in each case, at the time as of which any determination is being made, is owned, beneficially and of record, by the Borrower or by one or more of the other Wholly-Owned Subsidiaries, or both.

SECTION 1.2   Use of Defined Terms .  Unless otherwise defined or the context otherwise requires, terms for which meanings are provided in this Agreement shall have such meanings when used in the Schedules and in each Note, Borrowing Request, Continuation/Conversion Notice, Loan Document, notice and other communication delivered from time to time in connection with this Agreement or any other Loan Document.

SECTION 1.3   Cross-References . Unless otherwise specified, references in this Agreement and in each other Loan Document to any Article or Section are references to such Article or Section of this Agreement or such other Loan Document, as the case may be, and, unless otherwise specified, references in any Article, Section or definition to any clause are references to such clause of such Article, Section or definition.

SECTION 1.4   Accounting Principles .  Unless the context otherwise clearly requires, all accounting terms not expressly defined herein shall be construed, and all financial computations required under this Agreement shall be made, in accordance with GAAP, consistently applied.  For purposes of clarification, it shall be understood that the financial results of Non-Wholly Owned Subsidiaries and Minority ASC Entities will be reflected in Borrower’s consolidated financial statements in accordance with GAAP.

SECTION 2.1   Term Loan Commitment. On the terms and subject to the conditions of this Agreement, each Lender severally agrees to make a loan to Borrower (relative to such Lender, and of any type, its “ Term Loan ”) on the Closing Date equal to such Lender’s Percentage of the Term Loan Commitment.  Amounts borrowed as a Term Loan which are repaid or prepaid may not be reborrowed.  Each Lender’s Term Loan Commitment shall expire concurrently with the making of the Term Loans on the Closing Date.

SECTION 2.2   Revolving Commitments .  On the terms and subject to the conditions of this Agreement (including Article V ), each Lender severally agrees to make loans pursuant to the Revolving Commitments described in this Section 2.2 .

SECTION 2.2.1   Revolving Commitment of Each Lender .  From time to time on any Business Day occurring prior to the Revolving Commitment Termination Date, each Lender will make loans (relative to such Lender, and of any type, its “Revolving Loans” ) to the Borrower, which, when added to the Letter of Credit Obligations at such time, equal to such Lender’s Percentage of the aggregate amount of the Borrowing requested by the Borrower to be made on such day.  The commitment of each Lender described in this Section 2.2.1 is herein referred to as its “Revolving Commitment” .  On the terms and subject to the conditions hereof, the Borrower may from time to time borrow, prepay and reborrow Loans.

SECTION 2.2.2   Lenders Not Permitted or Required To Make Loans .  No Lender shall be permitted or required to make any Revolving Loan if, after giving effect thereto, the aggregate outstanding principal amount of all Revolving Loans plus Letter of Credit Obligations then outstanding:

SECTION 2.2.3   Revolver Increase .  On and after the Closing Date, Borrower may, at its option at any time in increments of not less than $5,000,000, seek to increase (the " Revolver Increase ") the Revolving Commitment Amount by up to an aggregate of $45,000,000 (after giving effect to all such increases the Revolving Commitment Amount shall not exceed $95,000,000) upon at least 30 days (but not more than 45 days) written notice (“ Revolver Increase Notice ”) to the Agent (which notice Agent shall promptly deliver to the Lenders).  The Revolver Increase Notice shall (a) specify the date upon which the Revolver Increase is requested to occur, (b) be delivered at a time when no Default or Event of Default has occurred and is continuing (and the effectiveness of the Revolver Increase shall be subject to no Default or Event of Default existing of the time of the Revolver Increase) and (c) certify that the Revolver Increase will not violate or conflict with the terms of any Indebtedness or any other contract, agreement, instrument or obligation of any Credit Party. Borrower shall, after giving a Revolver Increase Notice, offer the Revolver Increase (i) first on a pro-rata basis to the Lenders, which each Lender may in its sole and absolute discretion accept or decline (it being understood that any Lender not affirmatively committing in writing to its pro-rata portion shall be deemed to have declined), (ii) second, if any Lender has declined its pro rata share or any part thereof, such remaining amounts on a non pro-rata basis to the Lenders accepting their pro rata share of the Revolver Increase and (iii) third, to other commercial banks or financial institutions.   No increase in the Revolving Commitment Amount shall become effective until all existing and new Lenders committing to the Revolver Increase have delivered to the Agent a writing in form reasonably satisfactory to the Agent pursuant to which such existing Lenders state the amount of their Revolver Increase and any such new Lenders state the amount of their Revolver Commitment and agree to assume and accept the obligations and rights of a Lender hereunder and any such new and increasing Lenders agree to make a Revolving Loan such that the outstanding Revolving Loans of such new Lender or increasing Lender constitute a proportional amount of the aggregate outstanding Revolving Loans and Letter of Credit Obligations based on the Revolver Commitment of such new Lender.  Any Revolving Loan as a result of an increase to the Revolver Commitment pursuant to this Section 2.2.3 shall be subject to the terms and conditions contained in this Agreement.  Upon the increase of the Revolving Commitment Amount pursuant to this Section 2.2.3 , Schedule 10.1 shall be deemed amended and replaced with a new Schedule 10.1 reflecting the new Revolver Commitments hereunder.  Notwithstanding the foregoing, in the event that Borrower elects to permanently reduce or terminate the Revolving Commitment Amount pursuant to Section 2.3.1 , the Revolver Increase, to the extent not already utilized by the Borrower, shall be terminated and cease to be available to the Borrower.  Unless otherwise agreed to by the Borrower, Agent and Lenders providing any Revolver Increase, no closing fees or other transaction costs (other than those expressly called for under this Agreement) shall be required by the Lender in connection with a Revolver Increase.

SECTION 2.3   Reduction of Revolving Commitment Amount .  The Revolving Commitment Amount is subject to reduction from time to time pursuant to this Section 2.3 .

SECTION 2.3.1   Optional Reductions .  The Borrower may, from time to time on any Business Day occurring after the time of the initial Borrowing hereunder, voluntarily reduce the Revolving Commitment Amount; provided , however , that all such reductions shall require at least three Business Days’ prior notice to the Agent and be permanent, and any partial reduction of the Revolving Commitment Amount shall be in a minimum amount of $3,000,000 and in an integral multiple of $1,000,000.

SECTION 2.3.2   Mandatory Reductions and Prepayments .  The Revolving Commitment Amount shall, without any further action, automatically and permanently be reduced to zero on the Revolving Commitment Termination Date and:

   (a)           The Borrower shall prepay the Loans in an amount equal to 100% of the insurance proceeds received by the Borrower or any Subsidiary following a casualty or condemnation involving such Person’s Property, to the extent not applied (or intended to be applied) within 90 days after the consummation or receipt thereof, as applicable, to the purchase of replacement assets or repair of damaged assets;

   (b)           The Borrower shall prepay Loans in an amount equal to 100% of the sum of the Net Available Proceeds realized upon all Asset Dispositions to the extent not applied (or committed to be applied) within 180 days of such Asset Disposition to the purchase of other assets that are not classified as current assets under GAAP and are used or useful in the business of the Company and its Subsidiaries;

   (c)           The Borrower shall prepay Loans in an amount equal to 100% of the sum of the Net Available Proceeds realized upon all debt issuances (other than in connection with a Permitted Acquisition) by the Borrower and its Subsidiaries;

   (d)            The Borrower shall prepay Loans in an amount equal to 80% of the sum of the Net Available Proceeds realized upon all equity issuances (other than in connection with a Permitted Acquisition or any issuance of equity in connection with a redemption of the Convertible Notes permitted by clause (f) of Section 7.2.6 hereof) by the Borrower;

   (e)           The Borrower shall notify the Agent of the amount of any required prepayment at least three (3) Business Days before it is made.  The Borrower shall pay any accrued interest on the Loans which are being prepaid pursuant to this Section 2.3.2 and shall pay any break funding costs associated with such required prepayment; and

   (f)           Notwithstanding anything contained herein to the contrary, Borrower shall prepay Loans in an amount equal to 100% of the sum of the Net Available Proceeds realized upon all Permitted Asset Dispositions.

   Any prepayments pursuant to Section 2.3.2 shall be applied in the following order: first , to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to Agent or a Lender; second , to payment of that portion of the Obligations constituting Term Loans; third , to payment of that portion of the Obligations constituting Revolving Loans; fourth , to payment of any remaining Obligations.  Prepayments of principal will be applied to the Obligations in inverse order of maturity.

   Any prepayments pursuant to Sections 2.3.1 or 2.3.2 hereof shall be without penalty or premium of any kind other than break funding and other charges expressly provided by this Agreement with respect to LIBOR breakage costs; provided , however , at the reasonable request of the Borrower and to avoid any break funding charges with respect to LIBOR breakage costs associated with any prepayment, any amounts to be prepaid pursuant to Section 2.3.2 shall be deposited by the Borrower in an escrow account under the control of the Agent to return an interest rate equal to the average deposit rate payable by the Agent for commercial deposits of like size and duration as determined by the Agent in its sole discretion, such amounts to be applied in the manner set forth in this Section 2.3.2 at the expiration of the Interest Period for the Loans as to which break funding charges would otherwise have applied.

SECTION 2.4   Borrowing Procedure .  By delivering a Borrowing Request to the Agent on or before 12:00 noon (EST), on a Business Day, the Borrower may from time to time irrevocably request, on the date of the requested Borrowing in the case of Base Rate Loans and on not less than three nor more than five Business Days’ notice in the case of LIBO Rate Loans, that a Borrowing be made in a minimum amount of (i)  $500,000  if such Loan is a LIBO Rate Loan or (ii) the lesser of the unused amount of the Revolving Commitments or $100,000, if such Loan is a Base Rate Loan and an integral multiple of $100,000, to the extent such additional amount is permitted to be borrowed hereunder.  On the terms and subject to the conditions of this Agreement, each Borrowing shall be comprised of the type of Revolving Loans, and shall be made on the Business Day, specified in such Borrowing Request.  On or before 2:00 p.m. (EST ) on such Business Day, each Lender shall deposit with the Agent same day funds in an amount equal to such Lender’s Percentage of the requested Borrowing.  Such deposit will be made to an account which the Agent shall specify from time to time by notice to the Lenders.  To the extent funds are received from the Lenders, the Agent shall make such funds available to the Borrower by wire transfer to the accounts the Borrower shall have specified in its Borrowing Request.  No Lender’s obligation to make any Revolving Loan shall be affected by any other Lender’s failure to make any Revolving Loan.

SECTION 2.5   Continuation and Conversion Elections .  By delivering a Continuation/Conversion Notice to the Agent on or before 10:00 a.m., Chicago  time, on a Business Day, the Borrower may from time to time irrevocably elect, on not less than three and not more than five Business Days’ notice that all, or any portion in an aggregate minimum amount of $500,000 and an integral multiple of $100,000, of any Loans be, in the case of Base Rate Loans, converted into LIBO Rate Loans or, in the case of LIBO Rate Loans, be converted into a Base Rate Loan or continued as a LIBO Rate Loan  (in the absence of delivery of a Continuation/ Conversion Notice with respect to any LIBO Rate Loan at least three Business Days before the last day of the then current Interest Period with respect thereto, such LIBO Rate Loan shall, on such last day, automatically convert to a Base Rate Loan); provided , however , that (i) each such conversion or continuation shall be pro rated among the applicable outstanding Loans of all Lenders, and (ii) no portion of the outstanding principal amount of any Loans may be continued as, or be converted into, LIBO Rate Loans when any Event of Default has occurred and is continuing.

SECTION 2.6   Funding .  Each Lender may, if it so elects, fulfill its obligation to make, continue or convert LIBO Rate Loans hereunder by causing one of its foreign branches or Affiliates (or an international banking facility created by such Lender) to make or maintain such LIBO Rate Loan; provided , however , that such LIBO  Rate Loan shall nonetheless be deemed to have been made and to be held by such Lender, and the obligation of the Borrower to repay such LIBO Rate Loan shall nevertheless be to such Lender for the account of such foreign branch, Affiliate or international banking facility.  In addition, the Borrower hereby consents and agrees that, for purposes of any determination to be made for purposes of Sections 4.1 , 4.2 , 4.3 or 4.4 , it shall be conclusively assumed that each Lender elected to fund all LIBO Rate Loans by purchasing Dollar deposits in its LIBOR Office’s interbank eurodollar market.

SECTION 2.7   Notes .  Each Lender’s Loans under its Revolving Commitment and Term Loan Commitment shall be evidenced by a Note payable to the order of such Lender in a maximum principal amount equal to such Lender’s Percentage of the original Revolving Commitment Amount and Term Loan Commitment Amount, as applicable.  The Borrower hereby irrevocably authorizes each Lender to make (or cause to be made) appropriate notations on the grid attached to such Lender’s Note (or on any continuation of such grid), which notations, if made, shall evidence, inter alia , the date of, the outstanding principal of, and the interest rate and Interest Period applicable to the Loans evidenced thereby.  Such notations shall be conclusive and binding on the Borrower absent manifest error; provided , however , that the failure of any Lender to make any such notations shall not limit or otherwise affect any Obligations of the Borrower or any other Credit Party.

SECTION 2.8   Letters of Credit .

SECTION 2.8.1   Issuance of Letters of Credit .  From and after the date hereof, the Letter of Credit Issuer agrees, upon the terms and conditions set forth in this Agreement, and subject to the satisfaction of such policy standards and conditions relating to the issuance of standby letters of credit generally as may be established by the Letter of Credit Issuer from time to time, to issue standby letters of credit, for the account of the Borrower, from time to time from the Closing Date   to the Letter of Credit Expiry Date; provided that the Borrower shall not request and the Letter of Credit Issuer shall not issue, any Letter of Credit which would cause the aggregate Letter of Credit Obligations (after giving effect to the issuance of such Letter of Credit) to exceed the amount of the lesser of (i) the Letter of Credit Sublimit and (ii) the unused aggregate Revolving Commitment.

SECTION 2.8.2   Participating Interests .  Immediately upon the issuance by the Letter of Credit Issuer of a Letter of Credit, each Lender shall be deemed to have irrevocably and unconditionally purchased and received from the Letter of Credit Issuer, without recourse, representation or warranty, an undivided participation interest equal to its Percentage of the face amount of such Letter of Credit and each draw paid by the Letter of Credit Issuer thereunder.  Each Lender’s obligation to pay its proportionate share of all draws under the Letters of Credit, absent gross negligence or willful misconduct by the Letter of Credit Issuer in honoring any such draw, shall be absolute, unconditional and irrevocable and in each case shall be made without counterclaim or set-off by such Lender.

SECTION 2.8.3   Reimbursement Upon Drawing .  (a) The Borrower agrees to  reimburse the Letter of Credit Issuer for the amount of each draft drawn on a Letter of Credit within one Business Day after the date such draft is so drawn.  The Borrower agrees to reimburse the Letter of Credit Issuer immediately when due, under all circumstances, including, without limitation, any of the following circumstances:  (w) any lack of validity or enforceability of this Agreement or any instrument executed pursuant hereto; (x) the existence of any claim, set-off, defense or other right which the Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), any Lender or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower and the beneficiary named in any Letter of Credit); (y) the validity, sufficiency or genuineness of any document which the Letter of Credit Issuer reasonably has determined in good faith complies on its face with the terms of the applicable Letter of Credit, even if such document should later prove, without the knowledge of the Letter of Credit Issuer, to have been forged, fraudulent, invalid or insufficient in any respect or any statement therein shall have been untrue or inaccurate in any respect; or (z) the surrender or material impairment of any security for the performance or observance of any of the terms hereof.

(b)           If the Borrower does not pay any such reimbursement obligations when due, the Borrower shall be deemed to have immediately requested that the Lenders make a Base Rate Loan under this Agreement in a principal amount equal to such unreimbursed reimbursement obligations.  The Agent shall promptly notify the Lenders of such deemed request and, without the necessity of compliance with the requirements of Sections 2.2 and 5.2 , each Lender shall make available to the Agent its Loan.  The proceeds of such Loans shall be paid over by the Agent to the Letter of Credit Issuer for the account of the Borrower in satisfaction of such unreimbursed reimbursement obligations, which shall thereupon be deemed satisfied by the proceeds of, and replaced by, such Loan.

(c)           If the Letter of Credit Issuer makes a payment on account of any Letter of Credit and is not concurrently reimbursed therefor by the Borrower and if for any reason a Loan may not be made pursuant to Section 2.8.3(b) , then as promptly as practical during normal banking hours on the date of its receipt of such notice or, if not practicable on such date, not later than 1:00 p.m. (EST) on the Business Day immediately succeeding such date of notification, each Lender shall deliver to the Agent for the account of the Letter of Credit Issuer, in immediately available funds, the purchase price for such Lender’s interest in such unreimbursed  reimbursement obligations, which shall be an amount equal to such Lender’s pro-rata share of such payment.  Each Lender shall, upon demand by the Letter of Credit Issuer, pay the Letter of Credit Issuer interest on such Lender’s pro-rata share of such draw from the date of payment by the Letter of Credit Issuer on account of such Letter of Credit until the date of delivery of such funds to the Letter of Credit Issuer by such Lender at a rate per annum, computed for actual days elapsed based on a 360-day year, equal to the Federal Funds Effective Rate for such period; provided , that such payments shall be made by the Lenders only in the event and to the extent that the Letter of Credit Issuer is not reimbursed in full by the Borrower for interest on the amount of any draw on the Letters of Credit.

SECTION 2.8.4   Request for Letter of Credit .  Each Letter of Credit shall be issued upon receipt by the Letter of Credit Issuer and the Agent from the Borrower of an irrevocable request thereof (an “LC Notice” ) not later than 12:00 noon (EST) three (3) Business Days prior the issuance date.  Each LC Notice for a Letter of Credit issued shall be in form and substance satisfactory to the Letter of Credit Issuer.

SECTION 3.1   Repayments and Prepayments .

SECTION 3.1.1   Prepayment of Loans .  The Borrower

(a)          may, from time to time on any Business Day prior to the Maturity Date, make a voluntary prepayment, in whole or in part, of the outstanding principal amount of any Loans; provided , however , that:

(i)  in the case of any partial prepayment of the Term Loan, such prepayment shall be applied to the remaining amortization payments on the Term Loan in the inverse order of maturity;

(ii)  unless the Borrower complies with Section 4.4 , no such prepayment of any LIBO  Rate Loan may be made on any day other than the last day of the Interest Period for such Loan; and

(b)          shall, immediately upon any acceleration of the Maturity Date of any Loans pursuant to Section 8.2 or Section 8.3 , repay all Loans, unless, pursuant to Section 8.3 , only a portion of all Loans is so accelerated.

Each prepayment of any Loans made pursuant to this Section 3.1.1 shall be without premium or penalty, except as may be required by Section 4.4 .  No voluntary prepayment of principal of any Revolving Loans pursuant to this Section 3.1.1 shall cause a reduction in the Revolving Commitment Amount.

SECTION 3.1.2   Repayment of Revolving Loans .  On the Maturity Date, the Borrower shall repay the principal of the Revolving Loans then outstanding.

SECTION 3.1.3   Repayment of Term Loans. The Term Loans shall be paid, for the account of each Lender according to its Percentage thereof, in the installments and on the dates set forth below:

SECTION 3.2   Interest Provisions .  Interest on the outstanding principal amount of Loans shall accrue and be payable in accordance with this Section 3.2 .

   SECTION 3.2.1   Interest Rates .  Borrower promises to pay interest on the unpaid principal amount of each Loan for the period commencing on the date of such Loan until such Loan is paid in full as follows:  (a) at all times while such Loan is a Base Rate Loan, at a rate per annum equal to the sum of the Base Rate from time to time in effect plus the Applicable Margin from time to time in effect for Base Rate Loans; and (b) at all times while such Loan is a LIBO Rate Loan, at a rate per annum equal to the sum of the LIBO Rate (Reserve Adjusted) applicable to each Interest Period for such Loan plus the Applicable Margin from time to time in effect for LIBO Rate Loans; provided that (i) at any time an Event of Default exists, if requested by Required Lenders, the Applicable Margin corresponding to each Loan shall be increased by 2% (and, in the case of Obligations not subject to an Applicable Margin, such Obligations shall bear interest at the Base Rate plus 2%), (ii) any such increase may thereafter be rescinded by Required Lenders, notwithstanding Section 10.1 , and (iii) upon the occurrence of an Event of Default under Section 8.1. 1or 8.1.9 , any such increase shall occur automatically. In no event shall interest payable by Borrower to Agent and Lenders hereunder exceed the maximum rate permitted under applicable law, and if any provision of this Agreement is in contravention of any such law, such provision shall be deemed modified to limit such interest to the maximum rate permitted under such law.

   The “LIBO Rate (Reserve Adjusted)” means, relative to any Loan to be made, continued or maintained as, or converted into, a LIBO Rate Loan for any Interest Period, a rate per annum (rounded upwards, if necessary, to the nearest 1/16 of 1%) determined pursuant to the following formula:

   LIBO Rate           =               LIBO Rate      

   (Reserve Adjusted)          1.00 - LIBOR Reserve Percentage

   The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate Loans will be determined by the Agent on the basis of the LIBOR Reserve Percentage in effect on, and the applicable rates furnished to and received by the Agent from National City, two Business Days before the first day of such Interest Period.

   “LIBO Rate” means, relative to any Interest Period for LIBO Rate Loans, the rate of interest published each Business Day in The Wall Street Journal “Money Rates” listing under the caption “London Interbank Offered Rates” for the applicable Interest Period (or, if no such rate is published therein for any reason, then the LIBO Rate shall be the Eurodollar rate for the applicable Interest Period as published in another publication determined by the Agent two Business Days prior to the beginning of such Interest Period.

   “LIBOR Reserve Percentage” means, relative to any Interest Period for LIBO Rate Loans, the reserve percentage (expressed as a decimal) equal to the maximum aggregate reserve requirements (including all basic, emergency, supplemental, marginal and other reserves and taking into account any transitional adjustments or other scheduled changes in reserve requirements) specified under regulations issued from time to time by the F.R.S. Board and then applicable to assets or liabilities consisting of and including “Eurocurrency Liabilities”, as currently defined in Regulation D of the F.R.S. Board.

   All LIBO Rate Loans shall bear interest from and including the first day of the applicable Interest Period to (but not including) the last day of such Interest Period at the interest rate determined as applicable to such LIBOR Rate Loan.

   “Applicable Margin” means on any date the applicable percentage set forth below based upon the Level as shown in the certificate then most recently delivered to the Lenders pursuant to Section 7.1.1(d) :

; provided , however that if the Borrower shall have failed to deliver to the Lenders by the date required hereunder any certificate pursuant to Section 7.1.1(d) , then from the date such certificate was required to be delivered until the date of such delivery the Applicable Margin shall be deemed to be Level V.  Each change in the Applicable Margin shall take effect with respect to all outstanding Loans on the first Business Day of the month immediately succeeding the day on which such certificate is received by the Agent.  Notwithstanding the foregoing, no reduction in the Applicable Margin shall be effected if a Default or an Event of  Default shall have occurred and be continuing on the date when such change would otherwise occur, it being understood that on the first Business Day of the month immediately succeeding the day on which such Default or Event of Default is either waived or cured (assuming no other Default or Event of Default shall be then pending), the Applicable Margin shall be reduced (on a prospective basis) in accordance with the then most recently delivered certificate.

If, as a result of any restatement of or other adjustment to the financial statements of the Borrower or for any other reason (other than as a result of a change in accounting rules), Agent determines that (i) the Total Leverage Ratio as calculated in any certificate delivered by Borrower after the Closing Date pursuant to Section 7.1.1(d) , as of any applicable date was inaccurate in any material respect and (ii) a proper calculation of the Total Leverage Ratio would have resulted in a different Applicable Margin for any period, then (A) if the proper calculation of the Total Leverage Ratio would have resulted in a higher Applicable Margin for such period, Borrower shall automatically and retroactively be obligated to pay to Agent for the benefit of the applicable Lenders, promptly on written demand by Agent, an amount equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for such period; and (B) if the proper calculation of the Total Leverage Ratio would have resulted in a lower Applicable Margin for such period, neither the Agent nor the Lenders shall have any obligation to repay any interest or fees to Borrower or any other Credit Party; provided that if, as a result of any restatement or other event a proper calculation of the Total Leverage Ratio would have resulted in a higher Applicable Margin for one or more periods and a lower Applicable Margin for one or more other periods (due to the shifting of income or expenses from one period to another period or any similar reason), then the amount payable by Borrower pursuant to clause (A) above shall be based upon the excess, if any, of the amount of interest and fees that should have been paid for all applicable periods over the amount of interest and fees paid for all such periods.

    “Level” means, and includes, Level I, Level II, Level III, Level IV or Level V, whichever is in effect at the relevant time.

   “Level I” shall exist at any time the Total Leverage Ratio is less than 3.00:1.0.

   “Level II” shall exist at any time the Total Leverage Ratio is greater than or equal to 3.00:1.0 but less than 3.50:1.0.

   “Level III” shall exist at any time the Total Leverage Ratio is greater than or equal to 3.50:1.0 but less than 4.00:1.0.

   “Level IV” shall exist at any time the Total Leverage Ratio is greater than or equal to 4.00:1.0 but less than 4.50:1.0.

   “Level V” shall exist at any time the Total Leverage Ratio is greater than or equal to 4.50:1.0.

   “Total Leverage Ratio” means, with respect to any period, the ratio of (i) Total Funded Debt to  (ii) EBITDA, as of the end of the relevant period.

SECTION 3.2.2   Payment Dates .  Interest accrued on each Loan shall be payable, without duplication:

(a)           on the Revolving Commitment Termination Date;

(b)           on the Maturity Date;

(c)           on the date of any payment or prepayment, in whole or in part, of principal outstanding on such Loan;

(d)           with respect to Base Rate Loans, on each Quarterly Payment Date occurring after the Closing Date;

(e)           with respect to LIBO Rate Loans, the last day of each applicable Interest Period and, in the case of an Interest Period in excess of three months, on the dates which are successively three months after the commencement of such Interest Period;

(f)           with respect to any Base Rate Loans converted into LIBO Rate Loans on a day when interest would not otherwise have been payable pursuant to clause (c) , on the date of such conversion; and

(g)           on that portion of any Loans the Maturity Date of which is accelerated pursuant to Section 8.2 or Section 8.3 , immediately upon such acceleration.

Interest accrued on Loans or other monetary Obligations arising under this Agreement or any other Loan Document after the date such amount is due and payable (whether on the  Maturity Date, upon acceleration or otherwise) shall be payable upon demand.

SECTION 3.3   Fees .  The Borrower agrees to pay the fees set forth in this Section 3.3 .  All such fees shall be non-refundable.

SECTION 3.3.1   Revolving Commitment Fee .  The Borrower agrees to pay to the Agent for the account of each Lender, for the period (including any portion thereof when its Revolving Commitment is suspended by reason of the Borrower’s inability to satisfy any condition of Article V ) commencing on the Closing Date and continuing through the Revolving Commitment Termination Date, a commitment fee at the rate equal to the Applicable Margin for Commitment Fees per annum (computed on the basis of a 360-day year for the actual days elapsed) on such Lender’s Percentage of the sum of the average daily unused portion of the Revolving Commitment Amount.  Such commitment fees shall be payable by the Borrower in arrears on each Quarterly Payment Date, commencing with the first such day following the Closing Date and on the Revolving Commitment Termination Date.

SECTION 3.3.2   Letter of Credit Fees .  (a) The Borrower agrees to pay the Agent, for the account of each Lender pro-rata on the basis of its Revolving Commitment, a fee in respect of each Letter of Credit computed at the Applicable Margin for LIBO Rate Loans on the average daily stated amount of such Letter of Credit (computed on the basis of a 360-day year for the actual days elapsed), such fee to be due and payable quarterly in arrears on each Quarterly Payment Date and on the Revolving Commitment Termination Date.

(b) The Borrower shall pay to the Letter of Credit Issuer a letter of credit fronting fee for each Letter of Credit issued by the Letter of Credit Issuer equal to 1/8 of 1% of the face amount (or increased face amount) of such Letter of Credit.  Such Letter of Credit fronting fee shall be due and payable on each date of issuance (or date of increase) of a Letter of Credit.

(c)  The Borrower agrees to pay directly to the Letter of Credit Issuer upon each issuance of, drawing under, and/or amendment of, a Letter of Credit issued by it in such amount as shall at the time of such issuance, drawing or amendment be the administrative charge which the Letter of Credit Issuer is customarily charging for issuances of, drawing under or amendments of, letters of credit issued by it.

SECTION 3.3.3   Agency Fees .  The Borrower shall pay to the Agent the fees agreed to by Agent and the Borrower in a fee letter dated May 7, 2009, or as otherwise agreed to in writing by the Borrower and the Agent, when and as due.

SECTION 4.1   LIBO Rate Lending Unlawful .  If any Lender shall determine (which determination shall, upon notice thereof to the Borrower and the Lenders, be conclusive and binding on the Borrower) that the introduction of or any change in or in the interpretation of any law makes it unlawful, or any central bank or other governmental authority asserts that it is unlawful, for such Lender to make, continue or maintain any Loan as, or to convert any Loan into, a LIBO Rate Loan of a certain type, subject to the provisions of Section 4.11 hereof, the obligations of all Lenders to make, continue, maintain or convert any such Loans shall, upon such determination, forthwith be suspended until such Lender shall notify the Agent that the circumstances causing such suspension no longer exist, and all LIBO Rate Loans of such type shall automatically convert into Base Rate Loans at the end of the then current Interest Periods with respect thereto or sooner, if required by such law or assertion.

SECTION 4.2   Deposits Unavailable .  If the Agent shall have determined that

(a)           Dollar certificates of deposit or Dollar deposits, as the case may be, in the relevant amount and for the relevant Interest Period are not available to a Lender in its  relevant market; or

(b)           by reason of circumstances affecting a Lender’s relevant market, adequate means do not exist for ascertaining the interest rate applicable hereunder to LIBO Rate Loans of such type,

then, upon notice from the Agent to the Borrower and the Lenders, subject to the provisions of Section 4.11 hereof, the obligations of all Lenders under Section 2.4 and Section 2.5 to make or continue any Loans as, or to convert any Loans into, LIBO Rate Loans of such type shall forthwith be suspended until the Agent shall notify the Borrower and the Lenders that the circumstances causing such suspension no longer exist.

SECTION 4.3   Increased LIBO Rate Loan Costs, etc .  The Borrower agrees to reimburse each Lender for any increase in the cost to such Lender of, or any reduction in the amount of any sum receivable by such Lender in respect of, making, continuing or maintaining (or of its obligation to make, continue or maintain) any Loans as, or of converting (or of its obligation to convert) any Loans into, LIBO Rate Loans, subject to the provisions of Section 4.11 hereof.  Such Lender shall promptly notify the Agent and the Borrower in writing of the occurrence of any such event, such notice to state, in reasonable detail, the reasons therefor and the additional amount required fully to compensate such Lender for such increased cost or reduced amount.  Such additional amounts shall be payable by the Borrower directly to such Lender within five days of its receipt of such notice, and such notice shall, in the absence of manifest error, be conclusive and binding on the Borrower; provided , however , in no event shall Borrower be obligated to pay increased costs for a period greater than 180 days prior to the date of receipt of such notice.

SECTION 4.4   Funding Losses .  In the event any Lender shall incur any loss or expense (including any loss or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to make, continue or maintain any portion of the principal amount of any Loan as, or to convert any portion of the principal amount of any Loan into, a LIBO Rate Loan) as a result of;

(a)           any conversion or repayment or prepayment of the principal amount of any LIBO Rate Loans on a date other than the scheduled last day of the Interest Period applicable thereto, whether pursuant to Section 3.1 or otherwise;

(b)           any Loans not being made as LIBO Rate Loans in accordance with the Borrowing Request therefor; or

(c)           any Loans not being continued as, or converted into, LIBO Rate Loans in accordance with the Continuation/ Conversion Notice therefor;

then, subject to the provisions of Section 4.11 hereof, upon the written notice of such Lender (which notice shall be delivered within thirty days of the incurrence thereof by such Lender) to the Borrower (with a copy to the Agent), the Borrower shall, within five days of its receipt thereof, pay directly to such Lender such amount as will (in the reasonable determination of such Lender) reimburse such Lender for such loss or expense.  Such written notice (which shall include calculations in reasonable detail) shall, in the absence of manifest error, be conclusive and binding on the Borrower.

SECTION 4.5   Increased Capital Costs .  If any change in, or the introduction, adoption, effectiveness, interpretation, reinterpretation or phase-in of, any law or regulation, directive, guideline, decision or request (whether or not having the force of law) of any court, central bank, regulator or other governmental authority affects or would affect the amount of capital required or expected to be maintained by any Lender or any Person controlling such Lender, and such Lender determines (in its sole and absolute discretion) that the rate of return on its or such controlling Person’s capital as a consequence of its Revolving Commitment or the Loans made by such Lender is reduced to a level below that which such Lender or such controlling Person could have achieved but for the occurrence of any such circumstance, then, in any such case upon notice from time to time by such Lender to the Borrower, subject to the provisions of Section 4.11 hereof, the Borrower shall immediately pay directly to such Lender additional amounts sufficient to compensate such Lender or such controlling Person for such reduction in rate of return.  A statement of such Lender as to any such additional amount or amounts (including calculations thereof in reasonable detail) shall, in the absence of manifest error, be conclusive and binding on the Borrower.  In determining such amount, such Lender may use any method of averaging and attribution that it (in its sole and absolute discretion) shall deem applicable; provided , however , in no event shall Borrower be obligated to pay increased costs for a period greater than 180 days prior to the date of receipt of the notice required by this Section 4.5 .

SECTION 4.6   Taxes .  All payments by the Borrower of principal of, and interest on, the Loans and all other amounts payable hereunder shall be made free and clear of and without deduction for any present or future income, excise, stamp or franchise taxes and other taxes, fees, duties, withholdings or other charges of any nature whatsoever imposed by any taxing authority, but excluding franchise taxes and taxes imposed on or measured by any Lender’s net income or receipts (such non-excluded items being called “Taxes” ).  In the event that any withholding or deduction from any payment to be made by the Borrower hereunder is required in respect of any Taxes pursuant to any applicable law, rule or regulation, then the Borrower will:

(a)           pay directly to the relevant authority the full amount required to be so withheld or deducted;

(b)           promptly forward to the Agent an official receipt or other documentation satisfactory to the Agent evidencing such payment to such authority; and

(c)           pay to the Agent for the account of the Lenders such additional amount or amounts as is necessary to ensure that the net amount actually received by each Lender will equal the full amount such Lender would have received had no such withholding or deduction been required.

Moreover, if any Taxes are directly asserted against the Agent or any Lender with respect to any payment received by the Agent or such Lender hereunder, the Agent or such Lender may pay such Taxes and the