CREDIT AGREEMENT dated as of June 8, 2020 among MOLINA HEALTHCARE, INC., as the Borrower, THE LENDERS FROM TIME TO TIME PARTY HERETO, TRUIST BANK, as Administrative Agent, Swingline Lender and Issuing Bank SUNTRUST ROBINSON HUMPHREY, INC. BARCLAYS...
Exhibit 10.1 |
DEAL CUSIP: 00000XXX0
REVOLVER CUSIP: 00000XXX0
dated as of
June 8, 2020
among
XXXXXX HEALTHCARE, INC.,
as the Borrower,
THE LENDERS FROM TIME TO TIME PARTY HERETO,
TRUIST BANK,
as Administrative Agent, Swingline Lender and Issuing Bank
SUNTRUST XXXXXXXX XXXXXXXX, INC.
BARCLAYS BANK PLC
BOFA SECURITIES, INC.
DEUTSCHE BANK SECURITIES INC.
MUFG UNION BANK, N.A..
and
XXXXX FARGO SECURITIES, LLC,
as Joint Lead Arrangers and Bookrunners
TABLE OF CONTENTS
Page |
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ARTICLE I DEFINITIONS; CONSTRUCTION
|
1 |
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Section 1.1.
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Definitions
|
1
|
Section 1.2.
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Classifications of Loans and Borrowings
|
37
|
Section 1.3.
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Accounting Terms and Determination
|
37
|
Section 1.4.
|
Terms Generally
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38
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Section 1.5.
|
Letter of Credit Amounts
|
38
|
Section 1.6.
|
Times of Day
|
38
|
Section 1.7.
|
LIBOR
|
38
|
Section 1.8.
|
Limited Condition Acquisitions
|
38
|
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS
|
40 |
|
Section 2.1.
|
General Description of Facilities
|
40
|
Section 2.2.
|
Revolving Loans
|
40
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Section 2.3.
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Procedure for Revolving Borrowings
|
40
|
Section 2.4.
|
Swingline Commitment
|
40
|
Section 2.5.
|
Reserved
|
42
|
Section 2.6.
|
Funding of Borrowings
|
42
|
Section 2.7.
|
Interest Elections
|
43
|
Section 2.8.
|
Optional Reduction and Termination of Commitments
|
44
|
Section 2.9.
|
Repayment of Loans
|
44
|
Section 2.10.
|
Evidence of Indebtedness
|
44
|
Section 2.11.
|
Optional Prepayments
|
45
|
Section 2.12.
|
Mandatory Prepayments
|
45
|
Section 2.13.
|
Interest on Loans
|
45
|
Section 2.14.
|
Fees
|
46
|
Section 2.15.
|
Computation of Interest and Fees
|
47
|
Section 2.16.
|
Inability to Determine Interest Rates
|
47
|
Section 2.17.
|
Illegality
|
49
|
Section 2.18.
|
Increased Costs
|
49
|
Section 2.19.
|
Funding Indemnity
|
50
|
Section 2.20.
|
Taxes
|
51
|
Section 2.21.
|
Payments Generally; Pro Rata Treatment; Sharing of Set-offs
|
55
|
Section 2.22.
|
Letters of Credit
|
57
|
Section 2.23.
|
Increase of Commitments; Additional Lenders
|
61
|
Section 2.24.
|
Mitigation of Obligations
|
63
|
Section 2.25.
|
Replacement of Lenders
|
63
|
Section 2.26.
|
Reallocation and Cash Collateralization of Defaulting Lender Commitment
|
64
|
Section 2.27.
|
Extension
|
65
|
ARTICLE III CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT
|
66 |
|
Section 3.1.
|
Conditions to Effectiveness
|
66
|
Section 3.1.
|
Conditions to Effectiveness
|
66
|
Section 3.2.
|
Each Credit Event
|
68
|
Section 3.3.
|
Delivery of Documents
|
68
|
Section 3.4.
|
Termination of Existing Credit Facility
|
68
|
i
ARTICLE IV REPRESENTATIONS AND WARRANTIES
|
69 |
|
Section 4.1.
|
Existence; Power
|
69
|
Section 4.2.
|
Organizational Power; Authorization
|
69
|
Section 4.3.
|
Governmental Approvals; No Conflicts
|
69
|
Section 4.4.
|
Financial Statements
|
70
|
Section 4.5.
|
Litigation and Environmental Matters
|
70
|
Section 4.6.
|
Compliance with Laws and Agreements
|
71
|
Section 4.7.
|
No Default
|
71
|
Section 4.8.
|
Investment Company Act, Etc
|
71
|
Section 4.9.
|
Taxes
|
71
|
Section 4.10.
|
Margin Regulations
|
71
|
Section 4.11.
|
ERISA
|
72
|
Section 4.12.
|
Ownership of Property
|
72
|
Section 4.13.
|
Disclosure
|
72
|
Section 4.14.
|
Labor Relations
|
73
|
Section 4.15.
|
Subsidiaries
|
73
|
Section 4.16.
|
Solvency
|
73
|
Section 4.17.
|
Licensing and Accreditation
|
73
|
Section 4.18.
|
Anti-Corruption Laws and Sanctions
|
74
|
Section 4.18.
|
Anti-Corruption Laws and Sanctions
|
74
|
Section 4.19.
|
Subordination of Subordinated Debt
|
74
|
Section 4.20.
|
Medicare and Medicaid Notices and Filings Related to Business
|
74
|
Section 4.21.
|
No Affected Financial Institutions
|
75
|
ARTICLE V AFFIRMATIVE COVENANTS
|
75 |
|
Section 5.1.
|
Financial Statements and Other Information
|
75
|
Section 5.2.
|
Notices of Material Events
|
77
|
Section 5.3.
|
Existence; Conduct of Business
|
78
|
Section 5.4.
|
Compliance with Laws, Etc
|
78
|
Section 5.5.
|
Payment of Obligations
|
78
|
Section 5.6.
|
Books and Records
|
79
|
Section 5.7.
|
Visitation, Inspection, Etc
|
79
|
Section 5.8.
|
Maintenance of Properties; Insurance
|
79
|
Section 5.9.
|
Use of Proceeds; Margin Regulations
|
79
|
Section 5.10.
|
Guarantees by Material Domestic Subsidiaries
|
79
|
Section 5.11.
|
Material Licenses
|
80
|
Section 5.12.
|
Unrestricted Subsidiaries
|
80
|
ARTICLE VI FINANCIAL COVENANTS
|
81 |
|
Section 6.1.
|
Consolidated Net Leverage Ratio
|
81
|
Section 6.2.
|
Consolidated Interest Coverage Ratio
|
81
|
ARTICLE VII NEGATIVE COVENANTS
|
81 |
|
Section 7.1.
|
Indebtedness and Preferred Equity
|
81
|
Section 7.2.
|
Negative Pledge
|
83
|
Section 7.3.
|
Fundamental Changes
|
84
|
Section 7.4.
|
Investments, Loans, Etc
|
84
|
Section 7.5.
|
Restricted Payments
|
85
|
Section 7.6.
|
Sale of Assets
|
87
|
Section 7.7.
|
Transactions with Affiliates
|
87
|
ii
Section 7.8.
|
Restrictive Agreements
|
87
|
Section 7.9.
|
Reserved
|
87
|
Section 7.10.
|
Hedging Transactions
|
87
|
Section 7.11.
|
Reserved
|
88
|
Section 7.12.
|
Amendment to Organization Documents
|
88
|
Section 7.13.
|
Amendments and Prepayment of Other Indebtedness
|
88
|
Section 7.14.
|
Accounting Changes
|
88
|
Section 7.15.
|
Government Regulation
|
88
|
Section 7.16.
|
Ownership of Subsidiaries
|
89
|
Section 7.16.
|
Ownership of Subsidiaries
|
89
|
Section 7.17.
|
Use of Proceeds
|
89
|
Section 7.17.
|
Use of Proceeds
|
89
|
ARTICLE VIII EVENTS OF DEFAULT
|
89 |
|
Section 8.1.
|
Events of Default
|
89
|
Section 8.2.
|
Application of Funds
|
92
|
ARTICLE IX THE ADMINISTRATIVE AGENT
|
93 |
|
Section 9.1.
|
Appointment of Administrative Agent
|
93
|
Section 9.2.
|
Nature of Duties of Administrative Agent
|
94
|
Section 9.3.
|
Lack of Reliance on the Administrative Agent
|
95
|
Section 9.4.
|
Certain Rights of the Administrative Agent
|
95
|
Section 9.5.
|
Reliance by Administrative Agent
|
95
|
Section 9.6.
|
The Administrative Agent in its Individual Capacity
|
95
|
Section 9.7.
|
Successor Administrative Agent
|
96
|
Section 9.8.
|
Withholding Tax
|
97
|
Section 9.9.
|
Administrative Agent May File Proofs of Claim
|
97
|
Section 9.10.
|
Authorization to Execute Other Loan Documents
|
98
|
Section 9.11.
|
Guaranty Matters
|
98
|
Section 9.12.
|
Documentation Agent; Syndication Agent
|
98
|
Section 9.13.
|
Right to Enforce Guarantee
|
98
|
Section 9.14.
|
Hedging Obligations and Bank Product Obligations
|
98
|
ARTICLE X THE GUARANTY
|
98 |
|
Section 10.1.
|
The Guaranty
|
98
|
Section 10.2.
|
Obligations Unconditional
|
99
|
Section 10.3.
|
Reinstatement
|
100
|
Section 10.4.
|
Certain Additional Waivers
|
100
|
Section 10.5.
|
Remedies
|
100
|
Section 10.6.
|
Rights of Contribution
|
100
|
Section 10.7.
|
Guarantee of Payment; Continuing Guarantee
|
100
|
Section 10.8.
|
Keepwell
|
100
|
ARTICLE XI MISCELLANEOUS
|
101 |
|
Section 11.1.
|
Notices
|
101
|
Section 11.2.
|
Waiver; Amendments
|
103
|
Section 11.3.
|
Expenses; Indemnification
|
105
|
Section 11.4.
|
Successors and Assigns
|
107
|
Section 11.5.
|
Governing Law; Jurisdiction; Consent to Service of Process
|
111
|
Section 11.6.
|
WAIVER OF JURY TRIAL
|
112
|
iii
Section 11.7.
|
Right of Setoff
|
112
|
Section 11.8.
|
Counterparts; Integration
|
112
|
Section 11.9.
|
Survival
|
112
|
Section 11.10.
|
Severability
|
113
|
Section 11.11.
|
Confidentiality
|
113
|
Section 11.12.
|
Interest Rate Limitation
|
114
|
Section 11.13.
|
Waiver of Effect of Corporate Seal
|
114
|
Section 11.14.
|
Patriot Act
|
114
|
Section 11.15.
|
No Advisory or Fiduciary Responsibility
|
114
|
Section 11.16.
|
Electronic Execution of Assignments and Certain Other Documents
|
115
|
Section 11.17.
|
Acknowledgement and Consent to Bail-In of Affected Financial Institutions
|
115
|
Section 11.18.
|
Certain ERISA Matters
|
115
|
Section 11.19.
|
Acknowledgement Regarding any Supported QFCs
|
116
|
iv
Schedules
|
||
Schedule I
|
-
|
Commitment Amounts
|
Schedule 2.22
|
-
|
Existing Letters of Credit
|
Schedule 4.15
|
-
|
Loan Parties and Subsidiaries
|
Schedule 7.1
|
-
|
Outstanding Indebtedness
|
Schedule 7.2
|
-
|
Existing Liens
|
Schedule 7.4
|
-
|
Existing Investments
|
Exhibits
|
||
Exhibit 2.3
|
-
|
Form of Notice of Revolving Borrowing
|
Exhibit 2.4
|
-
|
Form of Notice of Swingline Borrowing
|
Exhibit 2.7
|
-
|
Form of Notice of Conversion/Continuation
|
Exhibit 2.10
|
-
|
Form of Note
|
Exhibits 2.20 (1-4)
|
- |
Forms of U.S. Tax Compliance Certificates
|
Exhibit 5.1
|
-
|
Form of Compliance Certificate
|
Exhibit 5.10
|
-
|
Form of Guarantor Joinder Agreement
|
Exhibit 11.4
|
-
|
Form of Assignment and Acceptance
|
v
THIS CREDIT AGREEMENT (this βAgreementβ)
is made and entered into as of June 8, 2020, by and among XXXXXX HEALTHCARE, INC., a Delaware corporation (the βBorrowerβ), the Lenders (defined herein), and
TRUIST BANK, in its capacity as administrative agent for the Lenders (the βAdministrative Agentβ), as issuing bank (the βIssuing Bankβ) and as swingline lender (the βSwingline Lenderβ).
WHEREAS, the Borrower, the lenders party thereto and Truist Bank, as administrative agent, are parties to that
certain Credit Agreement dated as of June 12, 2015 (as amended from time to time, the βExisting Credit Agreementβ);
WHEREAS, the Borrower has requested that the Existing Credit Agreement be amended and restated in its entirety; and
Section 1.1. Definitions. In addition to the other terms defined herein, the following terms used herein shall have the meanings herein specified (to be equally applicable
to both the singular and plural forms of the terms defined):
β364 Day Bridge Senior Unsecured
Indebtednessβ shall mean any unsecured bridge facilities incurred by the Borrower with a maturity date no greater than 364 days after the date of issuance thereof for purposes of (x) consummating any Permitted Acquisition or Investment
permitted hereunder or (y) repayment of any existing Indebtedness, so long as, (a) at the time any such unsecured bridge facility is incurred, the aggregate amount of all unsecured bridge facilities does not exceed 25% of Consolidated Adjusted EBITDA
for the for the period of the four fiscal quarters most recently ended for which the Borrower has delivered financial statements pursuant to Section 5.1(a) or
(b) and (b) at all times when any unsecured bridge facility is outstanding, the Borrower shall have Qualified Cash and availability under the Aggregate
Revolving Commitments of at least 120% of all outstanding 364 Day Bridge Senior Unsecured Indebtedness.
β2022 Senior Notesβ shall
mean those certain 5.375% Senior Notes due 2022 issued pursuant to that certain Indenture dated as of November 10, 2015 by and between the Borrower and U.S. Bank National Association as Trustee.
β2025 Senior Notesβ
shall mean those certain 4.875% Senior Notes due 2025 issued pursuant to that certain Indenture dated as of June 6, 2017 by and between the Borrower and U.S. Bank National Association as Trustee.
β2028 Senior Notesβ
shall mean those certain 4.375% Senior Notes due 2028 issued pursuant to that certain Indenture dated as of June 2, 2020 by and between the Borrower and U.S. Bank National Association as Trustee.
βACAβ shall mean both
the Patient Protection and Affordable Care Act of 2010 and the Health Care and Education Affordability Reconciliation Act of 2010.
βAcquisitionβ shall mean
(a) any Investment by the Borrower or any of its Restricted Subsidiaries in any other Person pursuant to which such Person shall become a Subsidiary or shall be merged with the Borrower or any of its Subsidiaries or (b) any acquisition by the
Borrower or any of its Subsidiaries of the assets of any Person (other than a Restricted Subsidiary) that constitute all or a substantial portion of the assets of such Person or a division or business unit of such Person.
βAdditional Lenderβ
shall have the meaning set forth in Section 2.23.
βAdditional Letters of Creditβ
shall have the meaning set forth in Section 7.1(g).
βAdjusted LIBORβ shall
mean, with respect to each Interest Period for a Eurodollar Loan, (i) the rate per annum equal to the London interbank offered rate for
deposits in U.S. Dollars appearing on Reuters screen page LIBOR 01 (or on any successor or substitute page of such service or any successor to such service, or such other commercially available source providing such quotations as may be designated
by the Administrative Agent from time to time) at approximately11:00 A.M. (London time) two (2) Business Days prior to the first day of such Interest Period, with a maturity comparable to such Interest Period, divided by (ii) a percentage equal to
100% minus the then stated maximum rate of all reserve requirements (including any marginal, emergency, supplemental, special or other reserves
and without benefit of credits for proration, exceptions or offsets that may be available from time to time) applicable to any member bank of the Federal Reserve System in respect of Eurocurrency liabilities as defined in Regulation D (or any
successor category of liabilities under Regulation D); provided, that if the rate referred to in clause (i) above is not available at any such
time for any reason, then the rate referred to in clause (i) shall instead be the interest rate per annum, as determined by the Administrative
Agent, to be the arithmetic average of the rates per annum at which deposits in U.S. Dollars in an amount equal to the amount of such
Eurodollar Loan are offered by major banks in the London interbank market to the Administrative Agent at approximately 11:00 A.M. (London time), two (2) Business Days prior to the first day of such Interest Period. Notwithstanding anything to the
contrary in the foregoing, Adjusted LIBOR shall in no event be less than 0.50% per annum.
βAdministrative Agentβ
shall mean Truist Bank in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.
βAdministrative Questionnaireβ
shall mean, with respect to each Lender, an administrative questionnaire in the form provided by the Administrative Agent and submitted to the Administrative Agent duly completed by such Lender.
2
βAffiliateβ shall
mean, as to any Person, any other Person that directly, or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person. For the purposes of this definition, βControlβ shall mean the power, directly or indirectly, either to
(i) vote 5% or more of the securities having ordinary voting power for the election of directors (or persons performing similar functions) of a Person
or (ii) direct or cause the direction of the
management and policies of a Person, whether through the ability to exercise voting power, by control or otherwise. The terms βControllingβ, βControlled byβ, and βunder common Control withβ have the meanings correlative thereto.
βAggregate Revolving Commitmentsβ
shall mean the Revolving Commitments of all the Lenders at any time outstanding. On the Closing Date, the aggregate amount of the Aggregate Revolving Commitments is $1,000,000,000.
βAgreementβ shall mean
this Credit Agreement.
βAnti-Corruption Lawsβ
shall mean all laws, rules, and regulations of any jurisdiction applicable to the Borrower or its Subsidiaries from time to time concerning or relating to bribery or corruption.
βAnti-Kickback Statuteβ
shall mean the Anti-kickback Statute as set forth in Section 1320a-7b of Title 42 of the United States Code, as amended, and any statute succeeding thereto.
βApplicable Lending Officeβ
shall mean, for each Lender and for each Type of Loan, the βLending Officeβ of such Lender (or an Affiliate of such Lender) designated for such Type of Loan in the Administrative Questionnaire submitted by such Lender or such other office of such
Lender (or an Affiliate of such Lender) as such Lender may from time to time specify to the Administrative Agent and the Borrower as the office by which its Loans of such Type are to be made and maintained.
βApplicable Marginβ
shall mean, as of any date, with respect to interest on all Loans outstanding on any date or the letter of credit fee, as the case may be, a percentage per annum determined by reference to the applicable Consolidated Net Leverage Ratio in effect
on such date as set forth in the table below; provided, that a change in the Applicable Margin resulting from a change in the Consolidated Net Leverage
Ratio shall be effective on the second Business Day after which the Borrower delivers each of the financial statements required by Section 5.1(a) and (b) and the Compliance Certificate required by Section 5.1(c); provided further, that if at any time the Borrower shall have failed to deliver such financial statements and such Compliance Certificate when so required, the
Applicable Margin shall be at Level 1 as set forth in the table below until the second Business Day after which such financial statements and Compliance Certificate are delivered, at which time the Applicable Margin shall be determined as
provided above. Notwithstanding the foregoing, the Applicable Margin from the Closing Date until the second Business Day after which the financial statements and Compliance Certificate for the Fiscal Quarter ending September 30, 2020 are
required to be delivered shall be at Level 5 as set forth in the table below. In the event that any financial statement or Compliance Certificate delivered hereunder is shown to be inaccurate (regardless of whether this Agreement or the
Commitments are in effect when such inaccuracy is discovered), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin based upon the pricing grid set forth in the table below (the βAccurate Applicable Marginβ) for any period that such financial statement or Compliance Certificate covered, then (i) the Borrower shall immediately deliver to
the Administrative Agent a correct financial statement or Compliance Certificate, as the case may be, for such period, (ii) the Applicable Margin shall be adjusted such that after giving effect to the corrected financial statements or Compliance
Certificate, as the case may be, the Applicable Margin shall be reset to the Accurate Applicable Margin based upon the pricing grid set forth in the table below for such period and (iii) the Borrower shall immediately pay to the Administrative
Agent, for the account of the Lenders, the accrued additional interest owing as a result of such Accurate Applicable Margin for such period. The provisions of this definition shall not limit the rights of the Administrative Agent and the
Lenders with respect to Section 2.13(c) or Article VIII.
3
Level
|
Consolidated Net Leverage Ratio
|
Eurodollar
Loans and
Letter of Credit
Fee
|
Base Rate
Loans |
Commitment
Fee |
1
|
>3.50:1.00
|
2.75%
|
1.75%
|
0.40%
|
2
|
<3.50:1.00 but >3.00:1.00
|
2.50%
|
1.50%
|
0.40%
|
3
|
<3.00:1.00 but >2.50:1.00
|
2.25%
|
1.25%
|
0.35%
|
4
|
<2.50:1.00 but >2.00:1.00
|
2.00%
|
1.00%
|
0.30%
|
5
|
<2.00:1.00
|
1.75%
|
0.75%
|
0.30%
|
βApproved Fundβ shall mean
any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business and that is administered or
managed by (i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that administers or manages a Lender.
βArrangersβ shall mean
SunTrust Xxxxxxxx Xxxxxxxx, Inc., BofA Securities, Inc., Xxxxx Fargo Securities LLC, Barclays Bank PLC, Deutsche Bank Securities Inc. and MUFG Union Bank, N.A. each in their capacities as joint lead arrangers and joint bookrunners.
βAsset Saleβ shall mean
the sale, transfer, license, lease or other disposition of any property by the Borrower or any Restricted Subsidiary, including any sale and leaseback transaction and any sale, assignment, transfer or other disposal, with or without recourse, of any
notes or accounts receivable or any rights and claims associated therewith, but excluding (a) the sale of inventory in the ordinary course of business; (b) the sale or disposition for Fair Market Value of obsolete or worn out property or other
property not necessary for operations of the Borrower or any Restricted Subsidiary disposed of in the ordinary course of business; (c) the disposition of property (including the cancellation of Indebtedness permitted by Section 7.4(d)) to the Borrower or any Restricted Subsidiary; provided, that if the transferor
of such property is a Loan Party then the transferee thereof must be a Loan Party; (d) the disposition of accounts receivable in connection with the collection or compromise thereof; (e) licenses, sublicenses, leases or subleases granted to others in
the ordinary course of business or not interfering in any material respect with the business of the Borrower or any Restricted Subsidiary; (f) the sale or disposition of Permitted Investments for Fair Market Value in the ordinary course of business
and (g) the disposition of shares of Capital Stock of any Subsidiary in order to qualify members of the governing body of such Subsidiary if required by applicable Law.
βAssignment and Acceptanceβ
shall mean an assignment and acceptance entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 11.4(b))
and accepted by the Administrative Agent, in the form of Exhibit 11.4 attached hereto or any other form approved by the Administrative Agent.
βAudited Financial Statementsβ
shall mean the audited consolidated balance sheet of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2019, and the related consolidated statements of income or operations, stockholdersβ equity and cash flows of the Borrower
and its Subsidiaries for such fiscal year, including the notes thereto.
4
βAvailability Periodβ shall mean the period from the Closing Date to but excluding the Revolving Commitment Termination Date.
βBail-In Actionβ shall
mean the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an Affected Financial Institution.
βBail-In Legislationβ
shall mean: (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing Law for such EEA Member Country from time to time which is
described in the applicable EU Bail-In Legislation Schedule; and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act of 2009 (as amended from time to time), and any other Law applicable in the United Kingdom relating to
the resolution of unsound or failing banks, investment firms or other financial institutions, or any affiliates of any of the foregoing (other than through liquidation, administration, or other insolvency proceedings).
βBank Product Amountβ
shall have the meaning set forth in the definition of βBank Product Providerβ.
βBank Product Obligationsβ
shall mean, collectively, all obligations and other liabilities of any Loan Party to any Bank Product Provider arising with respect to any Bank Products.
βBank Product Providerβ
shall mean any Person that (a) (i) at the time it provides any Bank Products to any Loan Party, is a Lender or an Affiliate of a Lender or (ii) has provided any Bank Products to any Loan Party that exist on the Closing Date, and such Person is a
Lender or an Affiliate of a Lender on the Closing Date and (b) except when the Bank Product Provider is Truist Bank and its Affiliates, has provided prior written notice to the Administrative Agent which has been acknowledged by the Borrower of (x)
the existence of such Bank Product, (y) the maximum dollar amount of obligations arising thereunder (the βBank Product Amountβ) and (z) the methodology to be
used by such parties in determining the obligations under such Bank Product from time to time. In no event shall any Bank Product Provider acting in such capacity be deemed a Lender for purposes hereof to the extent of and as to Bank Products
except that each reference to the term βLenderβ in Article IX and Section
11.4 shall be deemed to include such Bank Product Provider and in no event shall the approval of any such person in its capacity as Bank Product Provider be required in connection with the release or termination of any security
interest or Lien of the Administrative Agent. The Bank Product Amount may be changed from time to time upon written notice to the Administrative Agent by the applicable Bank Product Provider. The Bank Product Amount may not be increased, and no
new agreements for Bank Products may be established at any time that a Default or Event of Default exists.
βBank Productsβ shall
mean any of the following services provided to any Loan Party by any Bank Product Provider: (a) any treasury or other cash management services, including deposit accounts, automated clearing house (ACH) origination and other funds transfer,
depository (including cash vault and check deposit), zero balance accounts and sweeps, return items processing, controlled disbursement accounts, positive pay, lockboxes and lockbox accounts, account reconciliation and information reporting,
payables outsourcing, payroll processing, trade finance services, investment accounts and securities accounts, and (b) card services, including credit card (including purchasing card and commercial card), prepaid cards, including payroll, stored
value and gift cards, merchant services processing, and debit card services.
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βBase Rateβ shall mean
the highest of (a) the rate which the Administrative Agent announces from time to time as its prime lending rate, as in effect from time to time, (b) the Federal Funds Rate, as in effect from time to time, plus one-half of one percent (Β½%) per annum and (c) a rate per annum equal to Adjusted LIBOR for a term of one month plus one percent (1.00%) per annum (any changes in such rates to be effective as of the date of any change in such rate). The Administrative Agentβs prime lending rate is a reference rate
and does not necessarily represent the lowest or best rate actually charged to any customer. The Administrative Agent may make commercial loans or other loans at rates of interest at, above, or below the Administrative Agentβs prime lending
rate.
βBenchmark Replacementβ shall mean the sum of: (a) the alternate benchmark rate (which may include Term SOFR) that has been selected by the
Administrative Agent and the Borrower giving due consideration to (i) any selection or recommendation of a replacement rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing
market convention for determining a rate of interest as a replacement to the Screen Rate for U.S. dollar-denominated syndicated credit facilities and (b) the Benchmark Replacement Adjustment; provided that, if the Benchmark Replacement as so
determined would be less than zero, the Benchmark Replacement will be deemed to be zero for the purposes of this Agreement.
βBenchmark Replacement Adjustmentβ
shall mean, with respect to any replacement of the Screen Rate with an Unadjusted Benchmark Replacement for each applicable Interest Period, the spread adjustment, or method for calculating or determining such spread adjustment (which may be a
positive or negative value or zero), that has been selected by the Administrative Agent and the Borrower giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread
adjustment, for the replacement of the Screen Rate with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for
calculating or determining such spread adjustment, for the replacement of the Screen Rate with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated syndicated credit facilities at such time.
βBenchmark Replacement Conforming
Changesβ shall mean, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of βBase Rate,β the definition of βInterest Period,β timing and frequency of
determining rates and making payments of interest and other administrative matters) that the Administrative Agent decides, after consultation with the Borrower, may be appropriate to reflect the adoption and implementation of such Benchmark
Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not
administratively feasible or if the Administrative Agent determines that no market practice for the administration of the Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably
necessary in connection with the administration of this Agreement).
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βBenchmark Replacement Dateβ
shall mean the earlier to occur of the following events with respect to the Screen Rate:
(a) in the case of clause (a) or (b) of the definition of βBenchmark Transition Event,β the later of (x) the date of the public statement or publication of information referenced therein and (y) the date on which the administrator
of the Screen Rate permanently or indefinitely ceases to provide the Screen Rate; or
(b) in the case of clause (c) of the definition of βBenchmark Transition Event,β the date of the public statement or publication of information referenced therein.
βBenchmark Transition Eventβ
shall mean the occurrence of one or more of the following events with respect to the Screen Rate:
(a) a public statement or publication of information by or on behalf of the administrator of the Screen Rate announcing that such administrator has ceased or will cease to provide the Screen Rate, permanently or indefinitely,
provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Screen Rate;
(b) a public statement or publication of information by the regulatory supervisor for the administrator of the Screen Rate, the U.S. Federal Reserve System, an insolvency official with jurisdiction over the administrator for the
Screen Rate, a resolution authority with jurisdiction over the administrator for the Screen Rate, or a court or an entity with similar insolvency or resolution authority over the administrator for the Screen Rate, which states that the
administrator of the Screen Rate has ceased or will cease to provide the Screen Rate permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide
the Screen Rate; or
(c) a public statement or publication of information by the regulatory supervisor for the administrator of the Screen Rate announcing that the Screen Rate is no longer representative.
βBenchmark Transition Start
Dateβ shall mean (a) in the case of a Benchmark Transition Event, the earlier of (i) the applicable Benchmark Replacement Date and (ii) if such Benchmark Transition Event is a public statement or publication of information of a
prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or, if the expected date of such prospective event is fewer than 90 days after such statement or publication,
the date of such statement or publication) and (b) in the case of an Early Opt-in Election, the date specified by the Administrative Agent or the Required Lenders, as applicable, by notice to the Borrower, the Administrative Agent (in the case
of such notice by the Required Lenders) and the Lenders.
βBenchmark Unavailability
Periodβ shall mean, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to the Screen Rate and solely to the extent that the Screen Rate has not been replaced with a Benchmark
Replacement, the period (x) beginning at the time that such Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the Screen Rate for all purposes hereunder in accordance with Section 2.16(b)-(e) and (y) ending at the time that a Benchmark Replacement has replaced the Screen Rate for all purposes hereunder pursuant to Section 2.16(b)-(e).
βBeneficial Ownership
Certificationβ shall mean a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
βBeneficial Ownership
Regulationβ shall mean 31 C.F.R. Β§ 1010.230.
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βBenefit Planβ
shall mean any of (a) an βemployee benefit planβ (as defined in ERISA) that is subject to Title I of ERISA, (b) a βplanβ as defined in Section 4975 of the Code or (c) any person whose assets include (for purposes of ERISA Section 3(42) or
otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such βemployee benefit planβ or βplanβ.
βBHC Act Affiliateβ
of a party shall mean an βaffiliateβ (as such term is defined under, and interpreted in accordance with, 12 U.S.C. Β§β1841(k)) of such party.
βBorrowerβ shall
have the meaning set forth in the introductory paragraph hereof.
βBorrowingβ shall mean a borrowing consisting of (a) Loans of the same Class and Type, made, converted or continued on the same date and in the case of
Eurodollar Loans, as to which a single Interest Period is in effect, or (b) a Swingline Loan.
βBridge Senior Unsecured
Indebtednessβ shall mean senior unsecured Indebtedness that complies with Section 7.1(k) other than clauses (iv) and (v) thereof; provided that (a) at the initial maturity of such Indebtedness, such Indebtedness shall automatically convert to a term loan or exchange notes that, in
each case, complies with clause (iv) of Section 7.1(k) and (b) the only prepayments such Indebtedness may have are customary mandatory redemption,
mandatory repurchase or other mandatory prepayments of principal (x) in connection with a change of control and (y) with the proceeds of any issuance of Capital Stock or any issuance of Indebtedness or any sale or other disposition of
property (including casualty events), in each case to the extent such proceeds are not required to be applied to prepay the Loans.
βBusiness Dayβ
shall mean any day other than (a) a Saturday, Sunday or other day on which commercial banks in Charlotte, North Carolina or New York, New York are authorized or required by Law to close and (b) if such day relates to a Borrowing of, a payment
or prepayment of principal or interest on, a conversion of or into, or an Interest Period for, a Eurodollar Loan or a notice with respect to any of the foregoing, any day on which banks are not open for dealings in dollar deposits in the
London interbank market.
βCapital Expendituresβ
shall mean for any period, without duplication, (a) the additions to property, plant and equipment and other capital expenditures of the Borrower and its Restricted Subsidiaries that are (or would be) set forth on a consolidated statement of
cash flows of the Borrower for such period and (b) Finance Lease Liabilities incurred by the Borrower and its Restricted Subsidiaries during such period.
βCapital Stockβ
shall mean all shares, options, warrants, general or limited partnership interests, membership interests or other equivalents (regardless of how designated) of or in a corporation, partnership, limited liability company or equivalent entity
whether voting or nonvoting, including common stock, preferred stock or any other βequity securityβ (as such term is defined in Rule 3a11β1 of the General Rules and Regulations promulgated by the SEC under the Securities Exchange Act of
1934).
βCash Collateralizeβ
shall mean, in respect of any obligations, to provide and pledge (as a first priority perfected security interest) cash collateral for such obligations in Dollars, to the Administrative Agent pursuant to documentation in form and substance,
reasonably satisfactory to the Administrative Agent (and βCash Collateralizationβ and βCash Collateralβ have a corresponding meaning).
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βChange in Controlβ
shall mean the occurrence of one or more of the following events: (a) any sale, lease, exchange or other transfer (in a single transaction or a series of related transactions) of all or substantially all of the assets of the Borrower to any
Person or βgroupβ (within the meaning of the Securities Exchange Act of 1934 and the rules of the SEC thereunder in effect on the date hereof), (b) the acquisition of ownership, directly or indirectly, beneficially or of record, by any
Person or βgroupβ (within the meaning of the Securities Exchange Act of 1934 and the rules of the SEC thereunder as in effect on the date hereof), other than the Xxxxxx Family, of 30% or more of the outstanding shares of the voting stock of
the Borrower, (c) the acquisition of ownership, directly or indirectly, beneficially or of record, by the Xxxxxx Family of 50% or more of the outstanding shares of the voting stock of the Borrower, (d) during any period of 24 consecutive
months, a majority of the members of the board of directors or other equivalent governing body of the Borrower cease to be composed of individuals who are Continuing Directors or (e) the occurrence of a fundamental change (or any comparable
term) under, and as defined in, any agreement, document or instrument governing or otherwise relating to the Existing Notes or any other Material Indebtedness (other than Permitted Subordinated Debt).
βChange in Lawβ
shall mean (a) the adoption of any applicable Law after the date of this Agreement, (b) any change in any applicable Law after the date of this Agreement, or (c) compliance by any Lender (or its Applicable Lending Office) or the Issuing
Bank (or for purposes of Section 2.18(b), by the Parent Company of such Lender or the Issuing Bank, if applicable) with any request, guideline or
directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement. Notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer
Protection Act, and all requests, rules, guidelines and directives promulgated thereunder, and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking
Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, in each case, are deemed to have been introduced or adopted after the date hereof, regardless of
the date enacted or adopted.
βClassβ, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans or
Swingline Loans and, when used in reference to any Commitment, refers to whether such Commitment is a Revolving Commitment or a Swingline Commitment.
βClosing Dateβ
shall mean the date hereof.
βCMSβ shall mean
the Centers for Medicare & Medicaid Services or any successor or predecessor thereof.
βCodeβ shall
mean the Internal Revenue Code of 1986, as amended and in effect from time to time.
βCommitmentβ
shall mean a Revolving Commitment, a Swingline Commitment or an Incremental Term Loan Commitment or any combination thereof (as the context shall permit or require).
βCommitment Feeβ
shall have the meaning set forth in Section 2.14(b).
βCommodity Exchange Actβ
shall mean the Commodity Exchange Act (7 U.S.C. Β§ 1 et seq.), as amended from time to time, and any successor statute.
βCompliance Certificateβ
shall mean a certificate from the principal executive officer or the principal financial officer of the Borrower in the form of, and containing the certifications set forth in, the certificate attached hereto as Exhibit 5.1.
9
βConnection Income Taxesβ
shall mean Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
βConsolidated Adjusted
EBITDAβ shall mean, for the Borrower and its Restricted Subsidiaries for any period, determined on a consolidated basis, an amount equal to the sum of (a) Consolidated Net Income for such period plus (b) to the extent deducted in determining Consolidated Net Income for such period (except for the synergies component of clause (v) and the βrun rateβ
component of clause (vii)), without duplication, (i) Consolidated Interest Expense for such period, (ii) income tax expense for such period (other than any income tax, including any portion of the Health Insurance Providers Fee imposed by
Section 9010 of the ACA, which is subject to indemnification or reimbursement from any Person other than the Borrower or any of its Restricted Subsidiaries), (iii) depreciation and amortization for such period, (iv) non-cash charges
associated with stock-based compensation expenses pursuant to the financial reporting guidance of the Financial Accounting Standards Board concerning stock-based compensation as in effect from time to time, (v) any costs and synergies
directly attributable to any Permitted Acquisition that occurred during such period (calculated on a basis that is consistent with Regulation S-X under the Securities Act of 1933) which are reflective of actual or reasonably anticipated
and factually supportable synergies and cost savings expected to be realized or achieved in the twelve months following such Permitted Acquisition; provided,
however, that for purposes of calculating Consolidated Adjusted EBITDA for any period, any such adjustments made pursuant to this clause (v) shall
not increase Consolidated Adjusted EBITDA by more than 20% of Consolidated Adjusted EBITDA for such period as calculated before giving effect to any such adjustments in this clause (v) and any adjustments in clause (vii), (vi) other
extraordinary or non-recurring non-cash expenses (including any expenses as a result of any premium deficiency reserve, goodwill impairment or impairment of intangible assets, including, without limitation, impairment of capitalized
software) and (vii) cash costs and expenses and βrun rateβ cost savings related to corporate restructuring or improvement plans incurred in such period; provided,
that, such βrun rateβ cost savings are certified by the Borrowerβs chief financial officer; and provided, further, that, (A) such cost savings
have resulted from actions taken by the Borrower and its Restricted Subsidiaries and are factually supportable and reasonably likely to result in cost savings to be realized or achieved in the twelve months following such action and (B)
for purposes of calculating Consolidated Adjusted EBITDA for any period, any such adjustments made pursuant to this clause (vii) shall not increase Consolidated Adjusted EBITDA by more than 10% of Consolidated Adjusted EBITDA for such
period as calculated before giving effect to any such adjustments in this clause (vii), minus (c) to the extent added in Consolidated
Net Income, any extraordinary or non-recurring non-cash income (including as a result of any premium deficiency reserve related to any health plan operated by the Borrower or any of its Restricted Subsidiaries).
βConsolidated Fixed
Charge Coverage Ratioβ shall mean the ratio of (a) Consolidated Adjusted EBITDA to (b) Consolidated Fixed Charges, in each case measured as of the last day of the most recently ended four consecutive Fiscal Quarters for
which financial statements are required to have been delivered pursuant to Section 5.1(a) or (b).
βConsolidated Fixed
Chargesβ shall mean the sum of (a) Consolidated Interest Expense plus (b) all cash Restricted Payments (excluding items eliminated in consolidation) on any series of preferred stock or Disqualified Stock of the Borrower and
its Restricted Subsidiaries for the applicable period.
βConsolidated Interest
Coverage Ratioβ shall mean, as of any date, the ratio of (a) Consolidated Adjusted EBITDA to (b) Consolidated Interest Expense paid in cash in each case measured as of the last day of the most recently ended four
consecutive Fiscal Quarters for which financial statements are required to have been delivered pursuant to Section 5.1(a) or (b).
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βConsolidated Interest
Expenseβ shall mean, for the Borrower and its Restricted Subsidiaries for any period determined on a consolidated basis, the sum of (a) total interest expense, including without limitation, (i) non-cash interest expense
with respect to the Existing Notes and (ii) the interest component of any payments in respect of Finance Lease Liabilities capitalized or expensed during such period (whether or not actually paid during such period) plus (b) the net amount payable (or minus the net amount
receivable) with respect to Hedging Transactions during such period (whether or not actually paid or received during such period).
βConsolidated Net
Incomeβ shall mean, for the Borrower and its Restricted Subsidiaries for any period determined on a consolidated basis, the net income (or loss) of the Borrower and its Restricted Subsidiaries for such period but
excluding therefrom (to the extent otherwise included therein) (a) any extraordinary gains or losses, (b) any gains attributable to write-ups of assets and (c) any equity interest of the Borrower or any Restricted Subsidiary of the
Borrower in the unremitted earnings of any Person that is not a Restricted Subsidiary.
βConsolidated Net
Leverage Ratioβ shall mean the ratio of (a) Consolidated Total Debt as of such date minus up to $500 million of
Qualified Cash minus up to $500 million of Specified Cash, measured as of the last day of the most recently ended four consecutive
Fiscal Quarters for which financial statements are required to have been delivered pursuant to Section 5.1(a) or (b) to (b) Consolidated Adjusted EBITDA for the four consecutive Fiscal Quarters for which financial statements are required to have been delivered pursuant to Section 5.1(a) or (b).
βConsolidated Total
Assetsβ shall mean the total assets of the Borrower and its Restricted Subsidiaries calculated in accordance with GAAP on a consolidated basis as of the last day of the most recent fiscal quarter preceding such date of
determination for which financial statements of the Borrower have been delivered pursuant to Section 5.1(a) or (b).
βConsolidated Total
Debtβ shall mean, as of any date, all Indebtedness of the Borrower and its Restricted Subsidiaries measured on a consolidated basis as of such date, but excluding Indebtedness of the type described in subsection (i) of
the definition thereto.
βContract Providerβ
shall mean any Person or any employee, agent or subcontractor of such Person who provides professional health care services under or pursuant to any contract or other arrangement with the Borrower or any Subsidiary.
βContractual Obligationβ
shall mean, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
βContinuing Directorβ shall mean, with respect to any period, any individuals (A) who were members of the board of directors or other equivalent governing body
of the Borrower on the first day of such period, (B) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (A) above constituting at the time of such election or
nomination at least a majority of that board or equivalent governing body, or (C) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (A) and (B) above
constituting at the time of such election or nomination at least a majority of that board or equivalent governing body.
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βCovered Entityβ
shall mean any of the following: (a) a βcovered entityβ as that term is defined in, and interpreted in accordance with, 12 C.F.R. Β§β252.82(b); (b) a βcovered bankβ as that term is defined in, and interpreted in accordance with, 12
C.F.R. Β§β47.3(b); and (c) a βcovered FSIβ as that term is defined in, and interpreted in accordance with, 12 C.F.R. Β§β382.2(b).
βCovered Partyβ
shall have the meaning provided in Section 11.19
βDebtor Relief Lawsβ
shall mean the Bankruptcy Code of the United States of America, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or
similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect.
βDefaultβ
shall mean any condition or event that, with the giving of notice or the lapse of time or both, would constitute an Event of Default.
βDefault Interestβ
shall have the meaning set forth in Section 2.13(c).
βDefault Rightβ
has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§β252.81, 47.2 or 382.1, as applicable.
βDefaulting Lenderβ
shall mean, subject to Section 2.26(b), at any time, any Lender as to which the Administrative Agent has notified the Borrower that (a) such
Lender has failed for three (3) or more Business Days to comply with its obligations under this Agreement to make a Loan (unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result
of such Lenderβs determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied)
and/or to make a payment to the Issuing Bank in respect of a Letter of Credit or to the Swingline Lender in respect of a Swingline Loan (each a βfunding
obligationβ), (b) such Lender has notified the Administrative Agent or the Borrower, or has stated publicly, that it will not comply with any such funding obligation hereunder (unless such writing or public statement
relates to such Lenderβs obligation to fund a Loan hereunder and states that such position is based on such Lenderβs determination that a condition precedent to funding (which condition precedent, together with any applicable default,
shall be specifically identified in such writing or public statement) cannot be satisfied), (c) such Lender has, for three (3) or more Business Days, failed to confirm in writing to the Administrative Agent, in response to a written
request of the Administrative Agent, that it will comply with its funding obligations hereunder, (d) a Lender Insolvency Event has occurred and is continuing with respect to such Lender, or (e) such Lender has become the subject of a
Bail-In Action. The Administrative Agent will promptly send to all parties hereto a copy of any notice to the Borrower provided for in this definition.
βDesignated Non-cash
Considerationβ shall mean any non-cash consideration received by the Borrower or one or more of its Restricted Subsidiaries in connection with an Asset Sale that is designated as Designated Non-cash Consideration
pursuant to a certificate by a Responsible Officer of the Borrower at the time of such Asset Sale. Any particular item of Designated Non-cash Consideration will cease to be considered to be outstanding once it has been sold for cash
or Permitted Investments.
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βDisqualified Stockβ
shall mean any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case at the option of the holder of the Capital Stock), or upon the happening of
any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Capital Stock, in whole or in part, on or prior to the date that is 91 days after
the Latest Maturity Date; provided, however,
that only the portion of Capital Stock which so matures or is mandatorily redeemable, is so convertible or exchangeable at the option of the holder thereof or is so redeemable at the option of the holder thereof prior to such date
shall be deemed to be Disqualified Stock; provided, further,
however, that if such Capital Stock is issued to any employee or to any plan for the benefit of employees of the Borrower or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute
Disqualified Stock solely because it may be required to be repurchased by the Borrower in order to satisfy applicable statutory or regulatory obligations or as a result of such employeeβs termination, death or disability; provided, further, that any class of Capital Stock of
such Person that by its terms authorizes such Person to satisfy its obligations thereunder by delivery of Capital Stock that is not Disqualified Stock shall not be deemed to be Disqualified Stock.
βDollar(s)β
and the sign β$β shall mean lawful money of the United States of America.
βDomestic
Subsidiaryβ shall mean any Restricted Subsidiary that is organized under the laws of any political subdivision of the United States.
βEarly Opt-in
Electionβ shall mean the occurrence of:
(a) (i) a determination by the Administrative Agent or (ii) a notification by the Required Lenders to the Administrative Agent (with a copy to the Borrower) that the Required Lenders have determined that
U.S. dollar-denominated syndicated credit facilities being executed at such time, or that include language similar to that contained in Section
2.16(b)-(e) are being executed or amended, as applicable, to incorporate or adopt a new benchmark interest rate to replace the Screen Rate, and
(b) (i) the election by the Administrative Agent or (ii) the election by the Required Lenders to declare that an Early Opt-in Election has occurred and the provision, as applicable, by the Administrative
Agent of written notice of such election to the Borrower and the Lenders or by the Required Lenders of written notice of such election to the Administrative Agent.
βEEA Financial
Institutionβ shall mean (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA
Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clause (a) or
(b) of this definition and is subject to consolidated supervision with its parent.
βEEA Member Countryβ
shall mean any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
βEEA Resolution
Authorityβ shall mean any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any
EEA Financial Institution.
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βEnvironmental
Lawsβ shall mean all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by or with any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural resources, the management, Release or threatened Release of any Hazardous Material or to health and safety matters.
βEnvironmental
Liabilityβ shall mean any liability, contingent or otherwise (including any liability for damages, costs of environmental investigation and remediation, costs of administrative oversight, fines, natural resource
damages, penalties or indemnities), of the Borrower or any Restricted Subsidiary directly or indirectly resulting from or based upon (a) any actual or alleged violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c) any actual or alleged exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials or (e) any contract,
agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
βERISAβ
shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor statute.
βERISA Affiliateβ
shall mean any trade or business (whether or not incorporated), which, together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for the purposes of Section 302 of ERISA and
Section 412 of the Code, is treated as a single employer under Section 414 of the Code.
βERISA Eventβ shall mean (a) any βreportable eventβ, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the failure of any Plan to meet the minimum funding standard applicable to the Plan for a plan year under Section 412 of the Code or Section 302 of
ERISA, whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator appointed
by the PBGC of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates of any liability with respect to
the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate
of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.
βEU Bail-In
Legislation Scheduleβ shall mean the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
βEurodollarβ
when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bears interest at a rate determined by reference to the Adjusted LIBOR.
βEvent of Defaultβ
shall have the meaning set forth in Article VIII.
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βExcluded Swap
Obligationβ shall mean, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Guarantor of, or the grant by such Guarantor of a security interest
to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official
interpretation of any thereof) by virtue of such Guarantorβs failure for any reason to constitute an βeligible contract participantβ as defined in the Commodity Exchange Act and the regulations thereunder at the time the
Guaranty of such Guarantor, or the grant by such Guarantor of a security interest, becomes effective with respect to such Swap Obligation; provided
that, for the avoidance of doubt, in determining whether any Guarantor is an βeligible contract participantβ under the Commodity Exchange Act, the keepwell agreement set forth in Section 10.8 shall be taken into account. If a Swap Obligation arises under a Master Agreement governing more than one Hedging Transaction, such exclusion shall apply only to the
portion of such Swap Obligation that is attributable to Hedging Transactions for which such Guaranty or security interest is or becomes excluded in accordance with the first sentence of this definition.
βExcluded Taxesβ shall mean any of the following Taxes imposed on or with respect to a Recipient or required to be withheld
or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized
under the Laws of, or having its principal office or, in the case of any Lender, its Applicable Lending Office in the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes
(b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a Law in effect on the date
on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section
2.25) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.20,
amounts with respect to such Taxes were payable either to such Lenderβs assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to
such Recipientβs failure to comply with Section 2.20(g) and (d) any U.S. federal withholding Taxes imposed under FATCA.
βExclusion
Eventβ shall mean an event or related events resulting in the exclusion of the Borrower or any of its Restricted Subsidiaries from participation in any Medical Reimbursement Program.
βExisting
Letters of Creditβ shall mean the letters of credit issued and outstanding under the Existing Credit Agreement as set forth on Schedule
2.22.
βExisting Notesβ
shall mean each of the 2022 Senior Notes, the 2025 Senior Notes and the 2028 Senior Notes.
βExtended
Commitmentsβ shall have the meaning set forth in the definition of βExtension Permitted Amendmentβ.
βExtended Loansβ
shall have the meaning set forth in the definition of βExtension Permitted Amendmentβ.
βExtending
Lendersβ shall have the meaning set forth in Section 2.27(a).
βExtension
Agreementβ shall mean an Extension Agreement, in form and substance reasonably satisfactory to the Administrative Agent, among the Borrower, the Administrative Agent and one or more Extending Lenders, effecting an
Extension Permitted Amendment and such other amendments hereto and to the other Loan Documents as are contemplated by Section 2.27.
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βExtension
Offerβ shall have the meaning set forth in Section 2.27(a).
βExtension
Permitted Amendmentβ shall mean an amendment to this Agreement and the other Loan Documents, effected in connection with an Extension Offer pursuant to Section 2.27, providing for an extension of the Revolving Commitment Termination Date or maturity date applicable to the Extending Lendersβ Loans and/or Commitments of the applicable
Extension Request Class (such Loans or Commitments being referred to as the βExtended Loansβ or βExtended Commitmentsβ, as applicable) and, in connection therewith, (a) any increase or decrease in the rate of interest accruing on such Extended Loans, (b) any
increase in the fees payable to, or the inclusion of new fees to be payable to, the Extending Lenders in respect of such Extension Offer or their Extended Loans or Extended Commitments, (c) such amendments to this Agreement
and the other Loan Documents as shall be appropriate, in the reasonable judgment of the Administrative Agent, to provide the rights and benefits of this Agreement and other Loan Documents to each new βclassβ of loans and/or
commitments resulting therefrom and (d) any additional amendments to the terms of this Agreement applicable to the applicable Loans and/or Commitments of the Extending Lenders that are (i) less favorable to such Extending
Lenders than the terms of this Agreement prior to giving effect to such Extension Permitted Amendments (as determined in good faith by the Borrower) or (ii) applicable only to periods after the Latest Maturity Date (determined
prior to giving effect to such Extension Permitted Amendment).
βExtension
Request Classβ shall have the meaning set forth in Section 2.27(a).
βFair Market
Valueβ shall mean, with respect to any Asset Sale, Restricted Payment or other item, the price that would be negotiated in an armβs-length transaction for cash between a willing seller and a willing and able
buyer, neither of which is under any compulsion to complete the transaction, as such price is determined in good faith by an officer of the Borrower.
βFATCAβ
shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future
regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.
βFederal
Funds Rateβ shall mean, for any day, the rate per annum (rounded upwards, if necessary, to the next 1/100th of 1%) equal to the weighted average of the rates on overnight federal funds transactions
with member banks of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the next succeeding Business Day or, if such rate is not so published for any Business Day, the Federal Funds Rate for
such day shall be the average rounded upwards, if necessary, to the next 1/100th of 1% of the quotations for such day on such transactions received by the Administrative Agent from three federal funds brokers of recognized
standing selected by the Administrative Agent. Notwithstanding anything to the contrary in the foregoing, if the Federal Funds Rate is less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
βFederal
Reserve Bank of New Yorkβs Websiteβ shall mean the website of the Federal Reserve Bank of New York at xxxx://xxx.xxxxxxxxxx.xxx, or any successor source.
βFee Letterβ
shall mean that certain fee letter dated as of May 27, 2020, executed by SunTrust Xxxxxxxx Xxxxxxxx, Inc. and Truist Bank and accepted by the Borrower.
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βFinance
Lease Liabilitiesβ of any Person shall mean all obligations of such Person to pay rent or other amounts under any lease (or other arrangement conveying the right to use) of real or personal property, or a
combination thereof, which obligations are required to be classified and accounted for as finance leases on a balance sheet of such Person, and the amount of such obligations shall be the capitalized amount thereof. For the
avoidance of doubt, βFinance Lease Liabilitiesβ are subject to Section 1.3(b).
βFiscal
Quarterβ shall mean any fiscal quarter of the Borrower.
βFiscal
Yearβ shall mean any fiscal year of the Borrower.
βForeign
Lenderβ shall mean (a) if the Borrower is a U.S. Person, a Lender that is not a U.S.
Person, and (b) if the Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.
βForeign
Subsidiaryβ shall mean any Restricted Subsidiary that is not a Domestic Subsidiary.
βGAAPβ
shall mean generally accepted accounting principles in the United States applied on a consistent basis and subject to the terms of Section 1.3.
βGovernmental
Authorityβ shall mean the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body,
court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the
European Union or the European Central Bank).
βGuaranteeβ
of or by any Person (the βguarantorβ) shall mean any obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the βprimary obligorβ) in any manner,
whether directly or indirectly and including any obligation, direct or indirect, of the guarantor (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to
purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (ii) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or
other obligation of the payment thereof, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (iv) as an account party in respect of any letter of credit or letter of guaranty issued in support of such Indebtedness or obligation; provided, that the term βGuaranteeβ shall not include endorsements for collection or deposit in the ordinary course of business. The amount of any Guarantee shall be deemed to be
an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee is made or, if not so stated or determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as determined by such Person in good faith. The term βGuaranteeβ used as a verb has a corresponding meaning.
βGuarantor
Joinder Agreementβ shall mean a joinder agreement substantially in the form of Exhibit 5.10 executed and delivered by
a Restricted Subsidiary in accordance with the provisions of Section 5.10 or any other documents as the Administrative Agent shall
deem appropriate for such purpose.
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βGuarantorsβ
shall mean, collectively, (a) each Person that joins as a Guarantor pursuant to Section 5.10 or otherwise after the Closing Date,
(b) with respect to (i) any Hedging Obligations between any Loan Party (other than the Borrower) and any Lender-Related Hedge Provider that are permitted to be incurred pursuant to Section 7.10 and any Bank Product Obligations owing by any Loan Party (other than the Borrower), the Borrower and (ii) the payment and performance by each
Specified Loan Party of its obligations under its Guaranty with respect to all Swap Obligations, the Borrower, and (c) the successors and permitted assigns of the foregoing.
βGuarantyβ
shall mean the Guaranty made by the Guarantors in favor of the Administrative Agent, for the benefit of the holders of the Obligations, pursuant to Article X.
βHazardous
Materialsβ shall mean all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
βHedging
Obligationsβ of any Person shall mean any and all obligations of such Person, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired under (a) any and all Hedging
Transactions, (b) any and all cancellations, buy backs, reversals, terminations or assignments of any Hedging Transactions and (c) any and all renewals, extensions and modifications of any Hedging Transactions and any and
all substitutions for any Hedging Transactions.
βHedging
Transactionβ of any Person shall mean (a) any transaction (including an agreement with respect to any such transaction) now existing or hereafter entered into by such Person that is a rate swap transaction,
swap option, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap or option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option, spot transaction, credit protection transaction, credit swap, credit default swap, credit default option,
total return swap, credit spread transaction, repurchase transaction, reverse repurchase transaction, buy/sell-back transaction, securities lending transaction, or any other similar transaction (including any option with
respect to any of these transactions) or any combination thereof, whether or not any such transaction is governed by or subject to any master agreement and (b) any and all transactions of any kind, and the related
confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange
Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a βMaster Agreementβ), including any such obligations or liabilities under any Master Agreement.
βHHSβ
shall mean the United States Department of Health and Human Services and any successor thereof.
βHIPAAβ
shall mean the Health Insurance Portability and Accountability Act of 1996, Pub. L. 104-191, Aug. 21, 1996, 110 Stat. 1936, and regulations promulgated pursuant thereto.
βHITECH
Actβ shall mean the Health Information Technology for Economic and Clinical Health Act, Title XIII of Division A and Title IV of Division B of the American Recovery and Reinvestment Act of 2009 (ARRA), Pub.
L. 111-5, Feb. 17, 2009, and regulations promulgated pursuant thereto.
βHMOβ
shall mean any health maintenance organization or managed care organization, including without limitation any organized delivery system or utilization review organization, any Person doing business as a health maintenance
organization or managed care organization, or any Person required to qualify or be licensed as a health maintenance organization or managed care organization under applicable law (including HMO Regulations).
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βHMO
Businessβ shall mean the business of operating an HMO or other similar regulated entity or business.
βHMO
Eventβ shall mean (i) any non-compliance by the Borrower or any of its HMO Subsidiaries with any of the material terms and provisions of the HMO Regulations pertaining to its fiscal soundness, solvency or
financial conditions that is materially adverse to the Borrower and its Restricted Subsidiaries taken as a whole; or (ii) the assertion in writing, after the date hereof, by any HMO Regulator that it intends to take
administrative action against the Borrower or any of its HMO Subsidiaries to revoke or modify in a manner materially adverse to the Borrower and its Restricted Subsidiaries, taken as a whole, any material license,
material charter or material permit or to enforce the fiscal soundness, solvency or financial provisions or requirements of the HMO Regulations against the Borrower or any or its HMO Subsidiaries.
βHMO
Regulationsβ shall mean all laws, rules, regulations, directives and administrative orders applicable under Federal or state law to any HMO Subsidiary, including Part 422 of Chapter IV of Title 42 of the
Code of Federal Regulations and Subchapter XI of Chapter 6A of Title 42 of the United Stated Code Annotated (and any regulations, orders and directives promulgated or issued pursuant thereto, including Part 417 of
Chapter IV of Title 42 of the Code of Federal Regulations).
βHMO
Regulatorβ shall mean any Person charged with the administration, oversight or enforcement of any HMO Regulation, whether primarily, secondarily or jointly.
βHMO
Subsidiaryβ shall mean (a) any Restricted Subsidiary that is designated as an HMO Subsidiary on Schedule 4.15,
(b) any other Domestic Subsidiary that shall become capitalized or licensed as an HMO, shall conduct HMO Business or shall provide managed care services and (c) any other Domestic Subsidiary, substantially all the assets
of which consist of Capital Stock of a HMO Subsidiary described in clause (a) or (b) above.
βIncremental
Term Loanβ shall have the meaning set forth in Section 2.23.
βIncremental
Term Loan Commitmentβ shall mean, with respect to Persons identified as an βIncremental Term Loan Lenderβ in the applicable supplement or joinder in form and substance satisfactory to the Administrative
Agent, together with their respective successors and assigns, the commitment of such Person to make the Incremental Term Loan hereunder pursuant to such supplement or joinder; provided that, at any time after the funding of the Incremental Term Loan, determination of βRequired Lendersβ shall include the outstanding principal amount of the
Incremental Term Loan.
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βIndebtednessβ
of any Person shall mean, without duplication (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (c) all
obligations of such Person in respect of the deferred purchase price of property or services (other than trade payables incurred in the ordinary course of business; provided, that for purposes of Section 8.1(g), trade payables overdue by more than 120 days shall be included in this definition except to the extent that any of such trade payables are being
disputed in good faith and by appropriate measures), (d) all obligations of such Person under any conditional sale or other title retention agreement(s) relating to property acquired by such Person, (e) all Finance
Lease Liabilities of such Person, (f) all obligations, contingent or otherwise, of such Person in respect of letters of credit, acceptances or similar extensions of credit, (g) all obligations of such Person,
contingent or otherwise, to purchase, redeem, retire or otherwise acquire for value any Capital Stock of such Person, (h) Off-Balance Sheet Liabilities, (i) the Hedge Termination Value of all Hedging Obligations, (j)
all Guarantees of such Person of the type of Indebtedness described in clauses (a) through (i) above and (k) all Indebtedness of a third party secured by any Lien on property owned by such Person, whether or not such
Indebtedness has been assumed by such Person. 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 that the terms of such Indebtedness provide that such Person is not liable therefor.
βIndemnified
Taxesβ shall mean (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent
not otherwise described in (a), Other Taxes.
βInsurance
Subsidiaryβ shall mean (a) any Restricted Subsidiary that is engaged in the insurance business, assumes financial risk and that is regulated by the relevant Governmental Authority and (b) any other
Domestic Subsidiary, substantially all the assets of which consist of Capital Stock of an Insurance Subsidiary described in clause (a) above.
βInterest
Periodβ shall mean with respect to any Eurodollar Borrowing, a period of one,
two, three or six months (in each case, subject to availability); provided, that
(a) the initial Interest Period for such Borrowing shall commence on the date of such Borrowing (including the date of any conversion from a Borrowing of another Type), and
each Interest Period occurring thereafter in respect of such Borrowing shall commence on the day on which the next preceding Interest Period expires;
(b) if any Interest Period would otherwise end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day, unless such
Business Day falls in another calendar month, in which case such Interest Period would end on the next preceding Business Day;
(c) any Interest Period which begins on the last Business Day of a calendar month or on a day for which there is no numerically corresponding day in the calendar month at
the end of such Interest Period shall end on the last Business Day of such calendar month; and
(d) no Interest Period may extend beyond the later of the Revolving Commitment Termination Date or, if applicable the Latest Maturity Date.
βInterim
Financial Statementsβ shall mean the unaudited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal quarter ended March 31, 2020, including balance sheets and statements
of income or operations, stockholdersβ equity and cash flows.
βInvestmentsβ
shall mean, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) purchase or other acquisition of any Capital Stock of another Person, (b) a loan, advance, other
evidence of indebtedness or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other indebtedness or equity participation or interest in, another Person, or (c) an
Acquisition. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.
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βIRSβ
shall mean the United States Internal Revenue Service.
βIssuer
Documentsβ shall mean with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the Issuing Bank and any Borrower (or any
Subsidiary) or in favor of the Issuing Bank and relating to such Letter of Credit.
βIssuing
Bankβ shall mean Truist Bank in its capacity as the issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit.
βLatest
Maturity Dateβ shall mean, at any date of determination, the latest maturity or expiration date applicable to any Loan or Commitment hereunder at such time, including the latest maturity or expiration
date of any Incremental Term Loan.
βLawsβ
or βLawβ shall mean, collectively, all international, foreign, federal, state and local statutes, treaties, rules,
guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement,
interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case
whether or not having the force of law.
βLC
Commitmentβ shall mean that portion of the Aggregate Revolving Commitments that may be used by the Borrower for the issuance of Letters of Credit in an aggregate face amount not to exceed $100,000,000.
βLC
Disbursementβ shall mean a payment made by the Issuing Bank pursuant to a Letter of Credit.
βLC
Documentsβ shall mean all applications, agreements and instruments relating to the Letters of Credit but excluding the Letters of Credit.
βLC
Exposureβ shall mean, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time, plus (b) the aggregate amount of all LC Disbursements that have not been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of any Lender shall be its Pro
Rata Share of the total LC Exposure at such time. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by
reason of the operation of Rule 3.14 of the International Standby Practices 1998, such Letter of Credit shall be deemed to be βoutstandingβ in the amount so remaining available to be drawn.
βLender
Insolvency Eventβ shall mean that (a) a Lender or its Parent Company is insolvent, or is generally unable to pay its debts as they become due, or admits in writing its inability to pay its debts as
they become due, or makes a general assignment for the benefit of its creditors, (b) a Lender or its Parent Company is the subject of a bankruptcy, insolvency, reorganization, liquidation or similar proceeding, or a
receiver, trustee, conservator, custodian or the like has been appointed for such Lender or its Parent Company, or such Lender or its Parent Company has taken any action in furtherance of or indicating its consent to
or acquiescence in any such proceeding or appointment, or (c) a Lender or its Parent Company has been adjudicated as, or determined by any Governmental Authority having regulatory authority over such Person or its
assets to be, insolvent; provided that, for the avoidance of doubt, a Lender Insolvency Event shall not be deemed to have occurred solely by virtue of the ownership or acquisition of any equity interest in or
control of a Lender or a Parent Company thereof by a Governmental Authority or an instrumentality thereof.
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βLender-Related
Hedge Providerβ shall mean any Person that, (a) (i) at the time it enters into a Hedging Transaction with any Loan Party, is a Lender or an Affiliate of a Lender or (ii) has entered into a Hedging
Transaction with any Loan Party that exists on the Closing Date, and such Person is a Lender or an Affiliate of a Lender on the Closing Date and (b) except when the Lender-Related Hedge Provider is Truist Bank and
its Affiliates, has provided prior written notice to the Administrative Agent which has been acknowledged by the Borrower of (x) the existence of such Hedging Transaction, and (y) the methodology to be used by such
parties in determining the obligations under such Hedging Transaction from time to time. In no event shall any Lender-Related Hedge Provider acting in such capacity be deemed a Lender for purposes hereof to the
extent of and as to Hedging Obligations except that each reference to the term βLenderβ in Article IX and Section 11.4 shall be deemed to include such
Lender-Related Hedge Provider. In no event shall the approval of any such Person in its capacity as Lender-Related Hedge Provider be required in connection with the release or termination of any security interest
or Lien of the Administrative Agent. No new Hedging Transactions may be established at any time that a Default or Event of Default exists.
βLendersβ
shall mean each of the Persons identified as a βLenderβ on the signature pages hereto and each Additional Lender that joins this Agreement pursuant to Section 2.23 and their successors and assigns and shall include, where appropriate, the Swingline Lender.
βLetter
of Creditβ shall mean any stand-by letter of credit issued pursuant to Section 2.22 by the Issuing Bank for
the account of the Borrower or any Subsidiary pursuant to the LC Commitment.
βLetter
of Credit Applicationβ shall mean an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by Issuing Bank.
βLetter
of Credit Feeβ shall have the meaning set forth in Section 2.14(c).
βLienβ
shall mean any mortgage, pledge, security interest, lien (statutory or otherwise), charge, encumbrance, hypothecation, assignment, deposit arrangement, or other arrangement having the practical effect of any of the
foregoing or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any capital
lease having the same economic effect as any of the foregoing).
βLimited
Condition Acquisitionβ means any Acquisition whose consummation is not conditioned on the availability of, or on obtaining, third party financing.
βLoan
Documentsβ shall mean, collectively, this Agreement, the LC Documents, the Fee Letter, all Notices of Borrowing, all Notices of Conversion/Continuation, all Compliance Certificates, all Issuer
Documents, any promissory notes issued hereunder and any and all other instruments, agreements, documents and writings executed in connection with any of the foregoing.
βLoan
Partiesβ shall mean, collectively, the Borrower and each Guarantor.
βLoansβ
shall mean all Revolving Loans, Swingline Loans and Incremental Term Loans (if any) in the aggregate or any of them, as the context shall require.
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βMagellan
Acquisitionβ shall mean the Acquisition of certain assets and equity interests owned directly or indirectly by Magellan Healthcare, Inc. by the Borrower pursuant to that certain Stock and Asset
Purchase Agreement dated as of April 30, 2020 (as amended from time to time) by and between Magellan Health, Inc. and the Borrower.
βMaster
Agreementβ shall have the meaning set forth in the definition of βHedging Transaction.β
βMaterial
Adverse Effectβ shall mean, with respect to any event, act, condition or occurrence of whatever nature (including any adverse determination in any litigation, arbitration, or governmental
investigation or proceeding), whether singularly or in conjunction with any other event or events, act or acts, condition or conditions, occurrence or occurrences whether or not related, resulting in a material
adverse change in, or a material adverse effect on, (a) the business, results of operations, financial condition, assets, liabilities or prospects of the Borrower and its Restricted Subsidiaries taken as a whole,
(b) the ability of the Loan Parties to perform any of their respective obligations under the Loan Documents, (c) the rights and remedies of the Administrative Agent, the Issuing Bank, Swingline Lender, and the
Lenders under any of the Loan Documents or (d) the legality, validity or enforceability of any of the Loan Documents.
βMaterial
Contractβ shall mean any Contractual Obligation of the Borrower or any Restricted Subsidiary if the revenues of the Borrower and its Restricted Subsidiaries attributable to such Contractual
Obligation exceed five percent (5%) of the total revenues of the Borrower and its Restricted Subsidiaries on a consolidated basis for the period of the four fiscal quarters most recently ended for which the
Borrower has delivered financial statements pursuant to Section 5.1(a) or (b).
βMaterial
Domestic Subsidiaryβ shall mean any Domestic Subsidiary of the Borrower (other than an HMO Subsidiary, an Insurance Subsidiary, or any Subsidiary which is required by Law to maintain levels of
solvency, or capital, or net assets that would not be achieved if it provided a full and unconditional guaranty of the Obligations) which, as of the end of the most recent fiscal quarter for which the Borrower
has delivered financial statements pursuant to Section 5.1(a) or (b) (the βTest Dateβ), has (a) revenues in excess of 1.0% of the Borrowerβs
consolidated revenues for the twelve month period preceding the Test Date or (b) total assets in excess of 2.0% of Consolidated Total Assets as of the Test Date; provided, that if at any time all Domestic Subsidiaries (other than an HMO Subsidiary or Insurance Subsidiary) that are not Guarantors account in the aggregate for
greater than (i) ten percent (10%) of the Borrowerβs consolidated revenues for the twelve month period preceding any Test Date or (ii) ten percent (10%) of Consolidated Total Assets as of any Test Date, then the
Borrower shall cause one or more of such Domestic Subsidiaries to become Guarantors pursuant to Section 5.10 such that
immediately thereafter the remaining Domestic Subsidiaries (other than an HMO Subsidiary, an Insurance Subsidiary or any Subsidiary which is required by Law to maintain levels of solvency, or capital, or net
assets that would not be achieved if it provided a full and unconditional guaranty of the Obligations) that are not Guarantors shall not exceed either threshold set forth in clause (i) or (ii) of this proviso.
Notwithstanding the foregoing, Xxxxxx Healthcare Data Center, Inc., a New Mexico corporation (βData Centerβ), shall not
be a Material Domestic Subsidiary so long as Data Center has any amounts subject to tax recapture as a result of its participation in the U.S. federal governmentβs New Market Tax Credit Program.
βMaterial
Indebtednessβ shall mean any Indebtedness (other than the Loans and Letters of Credit) and Hedging Obligations of the Borrower or any of its Restricted Subsidiaries, individually or in an aggregate
committed or outstanding principal amount exceeding $100,000,000. For purposes of determining the amount of attributed Indebtedness from Hedging Obligations, the βprincipal amountβ of any Hedging Obligations at
any time shall be the Net Xxxx-to-Market Exposure of such Hedging Obligations.
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βMaterial
Licenseβ shall mean (i) as to any Person, any license, permit authorization or consent from a Governmental Authority or other Person and any registration, notice of filing with a Governmental
Authority or other Person which if not obtained, held or made would have a Material Adverse Effect, and (ii) as to any other Person who is a party to this Agreement or any of the other Loan Documents, any
license, permit, authorization or consent from a Governmental Authority or other Person and any registration, notice or filing with a Governmental Authority or other Person that is necessary for the execution
or performance by such party, or the validity or enforceability against such party, of this Agreement or such other Loan Document.
βMedicaidβ
shall mean that means-tested entitlement program under Title XIX of the Social Security Act, which provides Federal grants to States for medical assistance based on specific eligibility criteria, as set forth
at Section 1396, et seq. of Title 42 of the United States Code, as amended, and any statute succeeding thereto.
βMedicaid
Regulationsβ shall mean (a) 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 statues succeeding thereto, (b) all applicable provisions of all Federal rules, regulations, manuals and orders of all Governmental Authorities promulgated pursuant to or in
connection with the statues described in clause (a) 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 statues described in clause (a) above, (c) all state statutes and plans for medical assistance enacted in connection with the statutes and provisions described in clauses (a) and (b) above,
and (d) 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 (c) 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 (b) above, in each
case as may be amended, supplemented or otherwise modified from time to time.
βMedical
Reimbursement Programsβ shall mean, collectively, the Medicare, Medicaid and TRICARE programs and any other health care program operated by or financed in whole or in part by any foreign or
domestic Federal, state or local government and any other non-government funded thirty-party payor programs to which the Borrower or any Subsidiary is subject.
βMedicareβ
shall mean that government-sponsored entitlement program under Title XVIII of the Social Security Act, which provides for a health insurance system for eligible elderly and disabled individuals, as set forth at
Section 1395, et seq. of Title 42 of the United States Code, as amended, and any statute succeeding thereto.
βMedicare
Regulationsβ shall mean, collectively, (a) all Federal statues (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 statues succeeding thereto and (b) all applicable provisions of all rules, regulations, manuals and orders and administrative,
reimbursement and other guidelines having the force of law of all Governmental Authorities (including CMS, the OIG, HHS or any person succeeding to the functions of any of the foregoing) promulgated pursuant to
or in connection with any of the foregoing having the force of law, as each may be amended, supplemented or otherwise modified from time to time.
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βMolina Familyβ shall mean, collectively, (a) Xxxxxx X. Xxxxxx, Xxxx Xxxxxx Xxxxxxxxx, Xxxx X. Xxxxxx, Xxxxx X. Xxxx or Xxxxxxxxx Xxxxxx, (b) the spouse and lineal descendants and
spouses of lineal descendants of any Person named in clause (a), (c) the estates and legal representatives of any Person named in clauses (a) or (b), and/or (d) trusts established for the benefit of any
Person named in clauses (a) or (b) and controlled by any Person named in clauses (a) or (b).
βMoodyβsβ shall mean Xxxxxβx Investors Service, Inc. or any successor to the ratings agency business thereof.
βMultiemployer Planβ shall mean any employee benefit plan of the type described in Section 4001(a)(3) of ERISA to which the Borrower makes or is obligated to make contributions or with
respect to which Borrower has any liability (including on account of an ERISA Affiliate).
βNet Xxxx-to-Market Exposureβ of any Person shall mean, as of any date of determination with respect to any Hedging Obligation, the excess (if any) of all unrealized losses over all
unrealized profits of such Person arising from such Hedging Obligation. βUnrealized lossesβ shall mean the fair market value of the cost to such Person of replacing the Hedging Transaction giving rise to
such Hedging Obligation as of the date of determination (assuming the Hedging Transaction were to be terminated as of that date), and βunrealized profitsβ means the fair market value of the gain to such
Person of replacing such Hedging Transaction as of the date of determination (assuming such Hedging Transaction were to be terminated as of that date).
βNon-Defaulting Lenderβ shall mean, at any time, a Lender that is not a Defaulting Lender.
βNon-Recourse Debtβ shall mean, Indebtedness: (a) as to which neither the Borrower nor any of its Restricted Subsidiaries (i) provides credit support of any kind (including any
undertaking, agreement or instrument that would constitute Indebtedness), (ii) is directly or indirectly liable as a guarantor or otherwise, or (iii) constitutes the lender; and (b) as to which the lenders
have been notified in writing that they will not have any recourse to the stock or assets of the Borrower or any of its Restricted Subsidiaries, in each case other than with respect to the pledge of Capital
Stock of any obligor securing such Indebtedness.
βNoteβ shall have the meaning set forth in Section 2.10(b).
βNotices of Borrowingβ shall mean, collectively, the Notices of Revolving Borrowing and the Notices of Swingline Borrowing.
βNotice of Conversion/Continuationβ shall mean the notice given by the Borrower to
the Administrative Agent in respect of the conversion or continuation of an outstanding Borrowing as provided in Section 2.7(b).
βNotice of Revolving Borrowingβ shall have the meaning set forth in Section 2.3.
βNotice of Swingline Borrowingβ shall have the meaning set
forth in Section 2.4.
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βObligationsβ shall mean, collectively, (a) all amounts owing by the Loan Parties to the Administrative Agent, the Issuing Bank, any Lender (including the Swingline Lender) or the
Arrangers pursuant to or in connection with this Agreement or any other Loan Document or otherwise with respect to any Loan or Letter of Credit including without limitation, all principal, interest
(including any interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding), all reimbursement obligations, fees, expenses, indemnification and reimbursement payments, costs and expenses (including all fees and
expenses of counsel to the Administrative Agent, the Issuing Bank and any Lender (including the Swingline Lender) incurred pursuant to this Agreement or any other Loan Document), whether direct or indirect,
absolute or contingent, liquidated or unliquidated, now existing or hereafter arising hereunder or thereunder, (b) all Hedging Obligations owed by any Loan Party to any Lender-Related Hedge Provider
permitted by Section 7.10, and (c) all Bank Product Obligations, together with all renewals, extensions,
modifications or refinancings of any of the foregoing; provided, that βObligationsβ of a Guarantor shall exclude
any Excluded Swap Obligations of such Guarantor.
βOFACβ shall mean the U.S. Department of the Treasuryβs Office of Foreign Assets Control.
βOff-Balance Sheet Liabilitiesβ of any Person shall mean (i) any repurchase obligation or liability of such Person with respect to accounts or notes receivable sold by such Person,
(ii) any liability of such Person under any sale and leaseback transactions, including (x) the sale and leaseback of the Xxxxxx Center located in Long Beach California, and the Ohio health plan office
building located in Columbus, Ohio and (y) any other sale and leaseback transactions, whether or not such transactions create a liability on the balance sheet of such Person, (iii) any Synthetic Lease
Obligation or (iv) any obligation arising with respect to any other transaction which is the functional equivalent of or takes the place of borrowing but which does not constitute a liability on the balance
sheet of such Person.
βOIGβ shall mean the Office of Inspector General of HHS and any successor thereof.
βOrganization Documentsβ shall mean, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive
documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with
respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument,
filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if
applicable, any certificate or articles of formation or organization of such entity.
βOSHAβ shall mean the Occupational Safety and Health Act of 1970, as amended from time to time, and any successor statute.
βOther Connection Taxesβ shall mean, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing
such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security
interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
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βOther Taxesβ shall mean all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the
execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that
are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.25).
βParent Companyβ shall mean, with respect to a Lender, the bank holding company (as defined in Regulation Y), if any, of such Lender, and/or any Person owning, beneficially or of
record, directly or indirectly, a majority of the shares of such Lender.
βParticipantβ shall have the meaning set forth in Section 11.4(d).
βParticipant Registerβ shall have the meaning set forth in Section 11.4(e).
βPayment Officeβ shall mean the office of the Administrative Agent located at 0000 Xxxxxxxxx Xxxx, XX, Xxxxxxx, Xxxxxxx 00000, or such other location as to which the Administrative
Agent shall have given written notice to the Borrower and the other Lenders.
βPBGCβ shall mean the Pension Benefit Guaranty Corporation referred to and
defined in ERISA, and any successor entity performing similar functions.
βPermitted Acquisitionβ shall mean (a) the Magellan Acquisition and (b) an Investment consisting of an Acquisition by the Borrower or any Restricted Subsidiary, provided that (i) subject, in the case of a Limited Condition Acquisition in accordance with Section 1.8, no Default or Event of Default shall have occurred and be continuing or would result from such Acquisition, (ii) the
property acquired (or the property of the Person acquired) in such Acquisition is used or useful in the same or a similar line of business as the Borrower and its Restricted Subsidiaries were engaged in
on the Closing Date (or any reasonable extensions or expansions thereof), (iii) in the case of an Acquisition of the Capital Stock of another Person, the board of directors (or other comparable governing
body) of such other Person shall have duly approved such Acquisition, (iv) subject, in the case of a Limited Condition Acquisition in accordance with Section 1.8, if the consideration for such Acquisition exceeds 10.0% of Consolidated Total Assets immediately prior to giving effect to such Acquisition, the
Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that after giving effect to such Acquisition on a Pro Forma Basis, the Loan Parties would be in
compliance with the financial covenants set forth in Article VI recomputed as of the end of the period of the
four Fiscal Quarters most recently ended for which the Borrower has delivered financial statements pursuant to Section
5.1(a) or (b), (v) subject, in the case of a Limited Condition Acquisition in accordance with Section 1.8, the representations and warranties made by the Loan Parties in each Loan Document shall be true and
correct in all material respects at and as if made as of the date of such Acquisition (after giving effect thereto) and (vi) if such transaction involves the purchase of an interest in a partnership
between any Loan Party as a general partner and entities unaffiliated with the Borrower as the other partners, such transaction shall be effected by having such equity interest acquired by a corporate
holding company directly or indirectly whollyβowned by such Loan Party newly formed for the sole purpose of effecting such transaction.
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βPermitted Encumbrancesβ shall mean:
(a) Liens imposed by Law for taxes not yet due or which are being contested in good faith by appropriate proceedings diligently
conducted and with respect to which adequate reserves are being maintained in accordance with GAAP;
(b) statutory Liens of landlords, carriers, warehousemen, mechanics, materialmen and other Liens imposed by Law in the ordinary
course of business for amounts not yet due or which are being contested in good faith by appropriate proceedings and with respect to which adequate reserves are being maintained in accordance with
GAAP;
(c) pledges and deposits made in the ordinary course of business in compliance with workersβ compensation, unemployment insurance and
other social security Laws or regulations;
(d) deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature, in each case in the ordinary course of business;
(e) judgment and attachment liens not giving rise to a Default or an Event of Default or Liens created by or existing from any
litigation or legal proceeding that are currently being contested in good faith by appropriate proceedings and with respect to which adequate reserves are being maintained in accordance with GAAP;
(f) customary rights of set-off, revocation, refund or chargeback under deposit agreements or under the Uniform Commercial Code or
common law of banks or other financial institutions where Borrower or any of its Restricted Subsidiaries maintains deposits (other than deposits intended as cash collateral) in the ordinary course of
business; and
(g) easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by Law or arising in the ordinary
course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or materially interfere with the ordinary conduct of business of
the Borrower and its Restricted Subsidiaries taken as a whole;
provided, that the term βPermitted Encumbrancesβ shall not include any Lien securing Indebtedness.
βPermitted Investmentsβ shall mean:
(a) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States
(or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States), in each case maturing within one year from the date of acquisition thereof;
(b) commercial paper having the highest rating, at the time of acquisition thereof, of S&P or Moodyβs and in either case maturing
within six months from the date of acquisition thereof;
(c) certificates of deposit, bankersβ acceptances and time deposits maturing within 180 days of the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the Laws of the United States or any state
thereof which has a combined capital and surplus and undivided profits of not less than $500,000,000;
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(d) fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) above and
entered into with a financial institution satisfying the criteria described in clause (c) above;
(e) mutual funds investing solely in any one or more of the Permitted Investments described in clauses (a) through (d) above;
(f) investments by an HMO Subsidiary or Insurance Subsidiary in all cases of the types and in the amounts (i) that qualify as
βAdmitted Assetsβ (or the substantive equivalent thereof under the laws of the relevant jurisdiction) as determined by such HMO Subsidiary or Insurance Subsidiaryβs Primary Regulator, (ii) in the case
of jurisdictions outside the United States, assets that are permissible investments for such HMO Subsidiary or Insurance Subsidiary pursuant to the regulatory regime administrated by the Primary
Regulator and (iii) that at the time such investment was made qualified as βAdmitted Assetsβ (or the substantive equivalent thereof under the laws of the relevant jurisdiction) as determined by such
HMO Subsidiary or Insurance Subsidiaryβs Primary Regulator at such time, but no longer qualify as βAdmitted Assetsβ (or the substantive equivalent thereof under the laws of the relevant jurisdiction),
provided that the aggregate value of Investments permitted to be outstanding at any one time in reliance on
this clause (iii) shall not exceed an amount equal to 10% of the aggregate total fair market value of all βAdmitted Assetsβ (or the substantive equivalent thereof under the laws of the relevant
jurisdiction) as determined by such HMO Subsidiary or Insurance Subsidiaryβs Primary Regulator, in each case measured as of the most recently completed fiscal quarter for which financial statements
prepared in accordance with statutory accounting standards are available; and
(g) investments made in accordance with the Borrowerβs Investment Policy dated as of January 30, 2019, which has been
disclosed to the Administrative Agent.
βPermitted Subordinated Debtβ shall mean any Indebtedness of the Borrower or any Restricted Subsidiary evidenced by the Subordinated Debt Documents or otherwise on terms and
(including without limitation subordination provisions) acceptable to the Administrative Agent and the Required Lenders.
βPersonβ shall mean any individual, partnership, firm, corporation, association, joint venture, limited liability company, trust or other entity, or any Governmental Authority.
βPlanβ shall mean any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of
ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an βemployerβ as defined in Section 3(5) of
ERISA.
βPrimary Regulatorβ shall mean the state regulator having primary jurisdiction over the relevant HMO Subsidiary or Insurance Subsidiary.
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βPro Forma Basisβ shall mean, for purposes of calculating compliance with respect to any Asset Sale, Recovery Event, Acquisition, Restricted Payment or incurrence of
Indebtedness, or any other transaction subject to calculation on a βPro Forma Basisβ as indicated herein, that such transaction shall be deemed to have occurred as of the first day of the period of
four Fiscal Quarters most recently ended for which the Borrower has delivered financial statements pursuant to Section
5.1(a) or (b). For purposes of any such calculation in respect of any Acquisition, (a) any
Indebtedness incurred or assumed in connection with such transaction that is not retired in connection with such transaction (i) shall be deemed to have been incurred as of the first day of the
applicable period and (ii) if such Indebtedness has a floating or formula rate, shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing
the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination, (b) income statement items (whether positive or negative) and Capital Expenditures
attributable to the Person or property acquired shall be included beginning as of the first day of the applicable period and (c) no adjustments for unrealized synergies shall be included.
βPro Forma Compliance Certificateβ shall mean a certificate of a Responsible Officer of the Borrower containing reasonably detailed calculations of the financial
covenants set forth in Article VI recomputed as of the end of the period of the four fiscal quarters most
recently ended for which the Borrower has delivered financial statements pursuant to Section 5.1(a) or (b) after giving effect to the applicable transaction on a Pro Forma Basis.
βPro Rata Shareβ shall mean (a) with respect to any Commitment of any Lender at any time, a percentage, the numerator of which shall be such Lenderβs Commitment (or if
such Commitments have been terminated or expired or the Loans have been declared to be due and payable, such Lenderβs Revolving Credit Exposure), and the denominator of which shall be the sum of such
Commitments of all Lenders (or if such Commitments have been terminated or expired or the Loans have been declared to be due and payable, all Revolving Credit Exposure of all Lenders) and (b) with
respect to all Commitments of any Lender at any time, the numerator of which shall be the sum of such Lenderβs Revolving Commitment (or if such Revolving Commitments have been terminated or expired or
the Loans have been declared to be due and payable, such Lenderβs Revolving Credit Exposure) and the denominator of which shall be the sum of all Lendersβ Revolving Commitments (or if such Revolving
Commitments have been terminated or expired or the Loans have been declared to be due and payable, all Revolving Credit Exposure of all Lenders funded under such Commitments).
βQFCβ has the meaning assigned to the term βqualified financial contractβ in, and shall be interpreted in accordance with, 12 U.S.C. Β§β5390(c)(8)(D).
βQFC Credit Supportβ shall have the meaning provided in Section 11.19.
βQualified Cashβ shall mean cash or Permitted Investments of the Borrower, other than Specified Cash, (a) that does not appear (or would not be required to appear) as
βrestrictedβ on a consolidated balance sheet of the Borrower and (b) that is not subject to a Lien (other than Liens of the type described in Sections 7.2(a) and (i)).
βQualified ECP Guarantorβ shall mean, in respect of any Swap Obligation, each Loan Party that has total assets exceeding $10,000,000 at the time the relevant Guaranty or
grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other Loan Party as constitutes an βeligible contract participantβ under the Commodity Exchange
Act or any regulations promulgated thereunder and can cause another Person to qualify as an βeligible contract participantβ at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of
the Commodity Exchange Act.
βRecipientβ shall mean (a) the Administrative Agent, (b) any Lender and (c) any Issuing Bank as applicable.
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βRecovery Eventβ shall mean any loss of, damage to or destruction of, or any condemnation or other taking for public use of, any property of the Borrower or any
Restricted Subsidiary.
βRegulation Dβ shall mean Regulation D of the Board of Governors of the Federal Reserve System, as the same may be in effect from time to time, and any successor
regulations.
βRegulation Tβ shall mean Regulation T of the Board of Governors of the Federal Reserve System, as the same may be in effect from time to time, and any successor
regulations.
βRegulation Uβ shall mean Regulation U of the Board of Governors of the Federal Reserve System, as the same may be in effect from time to time, and any successor
regulations.
βRegulation Xβ shall mean Regulation X of the Board of Governors of the Federal Reserve System, as the same may be in effect from time to time, and any successor
regulations.
βRegulation Yβ shall mean Regulation Y of the Board of Governors of the Federal Reserve System, as the same may be in effect from time to time, and any successor
regulations.
βRelated Partiesβ shall mean, with respect to any specified Person, such Personβs Affiliates and the respective managers, administrators, trustees, partners, directors,
officers, employees, agents, advisors or other representatives of such Person and such Personβs Affiliates.
βReleaseβ shall mean any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into the
environment (including ambient air, surface water, groundwater, land surface or subsurface strata) or within any building, structure, facility or fixture.
βRelevant Governmental Bodyβ shall mean the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the
Federal Reserve Board and/or the Federal Reserve Bank of New York or any successors thereto.
βRequired Lendersβ shall mean, at any time, Lenders holding more than 50% of the aggregate outstanding Revolving Commitments at such time or, if the Lenders have no
Commitments outstanding, then Lenders holding more than 50% of the aggregate Revolving Credit Exposure; provided
that to the extent that any Lender is a Defaulting Lender, such Defaulting Lender and all of its Revolving Commitments and Revolving Credit Exposure shall be excluded for purposes of
determining Required Lenders.
βResolution Authorityβ shall mean an EEA Resolution Authority, or, with respect to any UK Financial Institution, a UK Resolution Authority.
βResponsible Officerβ shall mean, with respect to any Person, any of the chairman of the board, chief executive officer, chief financial officer, president, chief
accounting officer, chief legal officer, any executive vice president, senior vice president or vice president, the treasurer or the secretary or such other representative of such Person as may be
designated in writing by any one of the foregoing with the consent of the Administrative Agent; and, with respect to the financial covenants only, the chief financial officer, the chief accounting
officer or the treasurer of such Person.
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βRestricted Investmentβ shall mean any Investment other than an Investment permitted under Section
7.4.
βRestricted Paymentβ shall mean (a) any dividend or other distribution (whether in cash, securities or other property) with respect to any Capital Stock of any Person,
or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition,
cancellation or termination of any such Capital Stock or on account of any return of capital to such Personβs stockholders, partners or members (or the equivalent Person thereof), or any option,
warrant or other right to acquire any such dividend or other distribution or payment, (b) any payment on, or with respect to, the purchase, redemption, defeasance, acquisition or retirement for
value of any Permitted Subordinated Debt (excluding any intercompany Indebtedness between or among the Borrower or any of its Restricted Subsidiaries), other than a payment of interest or principal
to the extent permitted under Section 7.13 and (c) any Restricted Investment.
βRestricted Subsidiaryβ shall mean any Subsidiary that is not an Unrestricted Subsidiary.
βRevolving Commitmentβ shall mean, with respect to each Lender, the commitment of such Lender to make Revolving Loans to the Borrower and to acquire participations in
Letters of Credit and Swingline Loans in an aggregate principal amount not exceeding the amount set forth with respect to such Lender on Schedule I, as such schedule may be amended pursuant to Section 2.23, or in the case of a Person becoming a Lender after the Closing Date, the amount of the assigned
βRevolving Commitmentβ as provided in the Assignment and Acceptance executed by such Person as an assignee, or the joinder executed by such Person, in each case as such commitment may subsequently
be increased or decreased pursuant to terms hereof.
βRevolving Commitment Termination Dateβ shall mean the earliest of (i) June 8, 2025, (ii) the date on which the Revolving Commitments are terminated pursuant to Section 2.8 and (iii) the date on which all amounts outstanding under this Agreement have been declared or have
automatically become due and payable (whether by acceleration or otherwise).
βRevolving Credit Exposureβ shall mean, with respect to any Lender at any time, the sum of the outstanding principal amount of such Lenderβs Revolving Loans, LC
Exposure and Swingline Exposure.
βRevolving Loanβ shall mean a loan made by a Lender (other than the Swingline Lender) to the Borrower under its Revolving Commitment, which may either be a Base Rate
Loan or a Eurodollar Loan.
βS&Pβ shall mean Standard & Poorβs Ratings Service, or any successor to the ratings agency business thereof.
βSanctioned Countryβ shall mean, at any time, a country, region or territory that is, or whose government is, the subject or target of any Sanctions.
βSanctioned Personβ shall mean, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC, the U.S. Department of
State, the United Nations Security Council, the European Union, any EU member state or Her Majestyβs Treasury of the United Kingdom, (b) any Person located, organized or resident in a Sanctioned
Country or (c) any Person controlled by any such Person.
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βSanctionsβ shall mean economic or financial sanctions or trade embargoes administered or enforced from time to time by (a) the U.S. government, including those
administered by OFAC or the U.S. Department of State or (b) the United Nations Security Council, the European Union or Her Majestyβs Treasury of the United Kingdom or any other applicable
governmental authority.
βScreen Rateβ shall mean the rate specified in clause (i) of the definition of Adjusted LIBOR.
βSECβ shall mean the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
βSocial Security Actβ shall mean the Social Security Act of 1965 as set forth in Title 42 of the United States Code, as amended, and any successor statute thereto, as
interpreted by the rules and regulations issued thereunder, in each case as in effect from time to time. References of section of the Social Security Act shall be construed to refer to any
successor sections.
βSOFRβ with respect to any day shall mean the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the administrator of
the benchmark (or a successor administrator), on the Federal Reserve Bank of New Yorkβs Website.
βSolventβ shall mean, with respect to any Person on a particular date, that on such date (a) the fair value of the property of such Person is greater than the total
amount of liabilities, including subordinated and contingent liabilities, of such Person; (b) the present fair saleable value of the assets of such Person is not less than the amount that will be
required to pay the probable liability of such Person on its debts and liabilities, including subordinated and contingent liabilities as they become absolute and matured; (c) such Person does not
intend to, and does not believe that it will, incur debts or liabilities beyond such Personβs ability to pay as such debts and liabilities mature; (d) such Person is not engaged in a business or
transaction, and is not about to engage in a business or transaction, for which such Personβs property would constitute an unreasonably small capital; (e) such Person is able to pay its debts and
other liabilities, contingent obligations and other commitments as they mature in the ordinary course of business and (f) such Person does not intend, in any transaction, to hinder, delay or
defraud either present or future creditors or any other person to which such Person is or will become, through such transaction, indebted. The amount of contingent liabilities (such as
litigation, guaranties and pension plan liabilities) at any time shall be computed as the amount that, in light of all the facts and circumstances existing at the time, represents the amount that
would reasonably be expected to become an actual or matured liability.
βSpecified Cashβ shall mean cash of the Borrower that constitutes, and Permitted Investments of the Borrower that are made with, the net cash proceeds of Indebtedness
permitted to be incurred under Section 7.1 (the βSpecified Indebtednessβ), that are either (a) subject to customary escrow arrangements between the Borrower and the holders of such Specified Indebtedness
prior to their use for one of the following purposes: (i) refinancing, tendering for, or otherwise redeeming or repaying Indebtedness of the Borrower or its Restricted Subsidiaries or (ii) to
finance any Permitted Acquisition that has been identified in writing to the Administrative Agent with a closing date that is not later than 365 days after the incurrence of such Specified
Indebtedness or (b) held in a segregated account of the Borrower and subject to a covenant in the documentation for such Specified Indebtedness that restricts the use of such cash or Permitted
Investments of the Borrower to the limited purpose of (i) refinancing, tendering for, or otherwise redeeming or repaying Indebtedness of the Borrower or its Restricted Subsidiaries or (ii) paying
interest on the Specified Indebtedness; provided, that if such cash or Permitted Investments no longer satisfy the conditions in this clause (b), they shall cease to constitute Specified Cash hereunder.
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βSpecified Event of Defaultβ means any Event of Default pursuant to Section
8.1(a), (b), (h) or (i).
βSpecified Loan Partyβ shall mean each Loan Party that is, at the time on which the relevant Guarantee or grant of the relevant security interest under the
Loan Documents by such Loan Party becomes effective with respect to a Swap Obligation, a corporation, partnership, proprietorship, organization, trust or other entity that would not be an
βeligible contract participantβ under the Commodity Exchange Act at such time but for the effect of Section 10.8.
βSubordinated Debt Documentsβ shall mean all indentures, agreements, notes, guaranties and other material agreements governing or evidencing any Permitted
Subordinated Debt and all other material documents relating thereto.
βSubsidiaryβ shall mean, with respect to any Person (the βparentβ),
any corporation, partnership, joint venture, limited liability company, association or other entity the accounts of which would be consolidated with those of the parent in the parentβs
consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, (a) of which securities or other ownership interests representing more than
50% of the equity or more than 50% of the ordinary voting power, or in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or
held, or (b) that is, as of such date, otherwise controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent. Unless
otherwise indicated, all references to βSubsidiaryβ hereunder shall mean a Subsidiary of the Borrower.
βSupported QFCβ shall have the meaning provided in Section 11.19.
βSwap Obligationsβ shall mean with respect to any Guarantor any obligation to pay or perform under any agreement, contract or transaction that constitutes a
βswapβ within the meaning of Section 1a(47) of the Commodity Exchange Act.
βSwingline Commitmentβ shall mean the commitment of the Swingline Lender to make Swingline Loans in an aggregate principal amount at any time outstanding
not to exceed $15,000,000.
βSwingline Exposureβ shall mean, with respect to each Lender, the principal amount of the Swingline Loans in which such Lender is legally obligated either
to make a Base Rate Loan or to purchase a participation in accordance with Section 2.4, which shall
equal such Lenderβs Pro Rata Share of all outstanding Swingline Loans.
βSwingline Lenderβ shall mean Truist Bank in its capacity as provider of Swingline Loans, or any successor swingline lender hereunder.
βSwingline Loanβ shall mean a loan made to the Borrower by the Swingline Lender under the Swingline Commitment.
βSynthetic Leaseβ shall mean a lease transaction under which the parties intend that (i) the lease will be treated as an βoperating leaseβ by the lessee
pursuant to Accounting Standards Codification Sections 840-10 and 840-20, as amended and (ii) the lessee will be entitled to various tax and other benefits ordinarily available to owners (as
opposed to lessees) of like property.
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βSynthetic Lease Obligationsβ shall mean, with respect to any Person, the sum of (i) all remaining rental obligations of such Person as lessee under
Synthetic Leases which are attributable to principal and, without duplication, (ii) all rental and purchase price payment obligations of such Person under such Synthetic Leases assuming such
Person exercises the option to purchase the lease property at the end of the lease term.
βTaxesβ shall mean all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or
other charges imposed by any Governmental Authority, including any interest, additions to tax, or penalties applicable thereto.
βTerm SOFRβ shall mean the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.
βTrading with the Enemy Actβ shall mean the Trading with the Enemy Act of the United States of America (50 U.S.C. App. §§ 1 et seq.), as amended and in
effect from time to time.
βTRICAREβ shall mean the United States Department of Defense health care programs for active duty military, active duty service families, retirees and
their families and other beneficiaries, including TRICARE Prime and TRICARE Standard, and any successor or predecessor thereof.
βTruistβ shall mean Truist Bank and its successors.
βTypeβ, when used in reference to a Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is
determined by reference to the Adjusted LIBOR or the Base Rate.
βUK Financial Institutionβ shall mean any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by
the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial
Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
βUK Resolution Authorityβ shall mean the Bank of England or any other public administrative authority having responsibility for the resolution of any UK
Financial Institution.
βUnadjusted Benchmark Replacementβ shall mean the Benchmark Replacement excluding the Benchmark Replacement Adjustment.
βUnited Statesβ or βU.S.β shall mean the United States of
America.
βUnrestricted Subsidiaryβ shall mean (a) any Subsidiary that is designated by the Borrower as an Unrestricted Subsidiary pursuant to a resolution of the
board of directors (or other comparable governing body) of the Borrower and (b) any Subsidiary of an Unrestricted Subsidiary, but in each case, only to the extent that such Subsidiary:
(a) has no Indebtedness other than Non-Recourse Debt;
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(b) except as permitted by Section 7.7,
is not party to any agreement, contract, arrangement or understanding with the Borrower or any Restricted Subsidiary unless the terms of any such agreement, contract, arrangement or
understanding are not less favorable in any material respect to the Borrower or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates
of the Borrower;
(c) is a Person with respect to which neither the Borrower nor any of its Restricted Subsidiaries has any direct or
indirect obligation to (x) subscribe for additional Capital Stock or (y) maintain or preserve such Personβs financial condition or cause such Person to achieve any specified levels of
operating results; and
(d) has not Guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Borrower
or any of its Restricted Subsidiaries.
Any Subsidiary of a Subsidiary of the Borrower designated
by the board of directors of the Borrower as an Unrestricted Subsidiary shall also be an Unrestricted Subsidiary.
βU.S. Personβ shall mean any Person that is a βUnited States personβ as defined in Section 7701(a)(30) of the Code.
βU.S. Special Resolution Regimeβ shall have the meaning provided in Section 11.19.
βU.S. Tax Compliance Certificateβ shall have the meaning set forth in Section 2.20(g).
βWithdrawal Liabilityβ shall mean liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
βWithholding Agentβ shall mean any Loan Party and the Administrative Agent.
βWrite-Down and Conversion Powersβ shall mean: (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA
Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation
Schedule; and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a
liability of any UK Financial Institution, or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of
that Person or any other Person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it, or to suspend any obligation in respect of that
liability, or any of the powers under that Bail-In legislation that are related or ancillary to any of those powers.
Section 1.2. Classifications of Loans and
Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g. a βRevolving Loanβ) or by Type (e.g. a βEurodollar Loanβ or βBase Rate
Loanβ) or by Class and Type (e.g. βRevolving Eurodollar Loanβ). Borrowings also may be classified and referred to by Class (e.g. βRevolving Borrowingβ) or by Type (e.g. βEurodollar
Borrowingβ) or by Class and Type (e.g. βRevolving Eurodollar Borrowingβ).
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Section 1.3. Accounting Terms and Determination.
(a) Unless otherwise defined or specified herein, all accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial statements required to be delivered hereunder shall be prepared, in accordance with GAAP as in effect from time to time, applied
on a basis consistent with the most recent audited consolidated financial statement of the Borrower delivered pursuant to Section 5.1(a); provided, that if the Borrower notifies the
Administrative Agent that the Borrower wishes to amend any covenant in Article VI to eliminate
the effect of any change in GAAP on the operation of such covenant (or if the Administrative Agent notifies the Borrower that the Required Lenders wish to amend Article VI for such purpose), then the Borrowerβs compliance with such covenant shall be determined on the basis of
GAAP in effect immediately before the relevant change in GAAP became effective, until either such notice is withdrawn or such covenant is amended in a manner satisfactory to the Borrower
and the Required Lenders.
(b) Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein
shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under Accounting Standards Codification Section
825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of any Loan Party or any Subsidiary of any Loan
Party at "fair value", as defined therein. Without limiting the foregoing, leases
shall continue to be classified and accounted for on a basis consistent with that reflected in the Audited Financial Statements for all purposes of this Agreement, notwithstanding any
change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above.
(c) Notwithstanding the above, the parties hereto acknowledge and agree that all calculations of the financial
covenants in Article VI (including for purposes of determining the Applicable Rate and any
transaction that by the terms of this Agreement requires that any financial covenant contained in Article VI be calculated on a Pro Forma Basis) shall be made on a Pro Forma Basis with
respect to any Asset Sale, Recovery Event, an increase in the Revolving Commitments and/or establishment of an Incremental Term Loan, or Acquisition occurring during such period.
Section 1.4. Terms Generally. The
definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words βincludeβ, βincludesβ and βincludingβ shall be deemed to be followed by the phrase βwithout limitationβ. The word βwillβ shall be
construed to have the same meaning and effect as the word βshallβ. In the computation of periods of time from a specified date to a later specified date, the word βfromβ means βfrom and
includingβ and the word βtoβ means βto but excludingβ. Unless the context requires otherwise (i) any definition of or reference to any agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or other document as it was originally executed or as it may from time to time be amended, restated, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (ii) any reference herein to any Person shall be construed to include
such Personβs successors and permitted assigns, (iii) the words βhereofβ, βhereinβ and βhereunderβ and words of similar import shall be construed to refer to this Agreement as a whole
and not to any particular provision hereof, (iv) all references to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles, Sections, Exhibits and Schedules to
this Agreement, (v) all references to a specific time shall be construed to refer to the time in the city and state of the Administrative Agentβs principal office, unless otherwise
indicated and (vi) any reference herein to a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, shall be deemed to
apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability company (or the unwinding of such a division or allocation), as if
it were a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person. Any
limited liability company resulting from a division shall constitute a separate Person hereunder (and each division of any limited liability company that is a Subsidiary, joint venture
or any other like term shall also constitute such a Person or entity).
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Section 1.5. Letter of Credit Amounts.
Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided, however,
that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount
thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such
maximum stated amount is in effect at such time.
Section 1.6. Times of Day. Unless
otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).
Section 1.7. LIBOR. None of the Administrative Agent, the Lenders or the Issuing Lender warrants or
accepts responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to the rates in the definition of βAdjusted
LIBORβ.
Section 1.8. Limited Condition Acquisitions.
Notwithstanding anything to the contrary herein, to the extent that the terms of this Agreement require (a) compliance with any basket, financial ratio or test (including any
Consolidated Net Leverage Ratio test or any Consolidated Interest Coverage Ratio test), (b) the absence of a Default or an Event of Default, or (c) a determination as to whether the
representations and warranties contained in this Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or
therewith, shall be true and correct in all material respects (without duplication of any materiality qualifiers), in each case in connection with the consummation of a Limited
Condition Acquisition and any related incurrence of an Incremental Term Loan, the determination of whether the relevant condition is satisfied may be made, at the election of the
Borrower, (A) on the date of the execution of the definitive agreement with respect to such Limited Condition Acquisition (such date, the βLCA Test Dateβ), or (B) on the date on which such Limited Condition Acquisition is consummated, in either case, after giving effect to
the relevant Limited Condition Acquisition and any related incurrence of an Incremental Term Loan, on a Pro Forma Basis; provided, that, notwithstanding the foregoing, in
connection with any Limited Condition Acquisition: (1) the condition set forth in clause (b)(i)
of the definition of βPermitted Acquisitionβ shall be satisfied if (x) no Default or Event of Default shall have occurred and be continuing as of the applicable LCA Test Date, and (y)
no Specified Event of Default shall have occurred and be continuing at the time of consummation of such Limited Condition Acquisition; (2) if the proceeds of an Incremental Term Loan
are being used to finance such Limited Condition Acquisition, then (x) the conditions set forth in clause (b)(v) of the definition βPermitted Acquisitionβ), Section 2.23(d) and Section 3.2(b) shall be required to be satisfied at the time of closing of the Limited Condition
Acquisition and funding of such Incremental Term Loan but, if the lenders providing such Incremental Term Loan so agree, the representations and warranties which must be accurate at
the time of closing of the Limited Condition Acquisition and funding of such Incremental Term Loan may be
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limited to customary βspecified representationsβ and such other
representations and warranties as may be required by the lenders providing such Incremental Term Loan, and (y) the conditions set forth in Section 2.23(c) shall, if and to the extent the lenders providing such Incremental Term Loan so agree, be satisfied if (I) no Default or
Event of Default shall have occurred and be continuing as of the applicable LCA Test Date, and (II) no Specified Event of Default shall have occurred and be continuing at the time of the
funding of such Incremental Term Loan in connection with the consummation of such Limited Condition Acquisition; and (3) such Limited Condition Acquisition and the related Incremental
Term Loan to be incurred in connection therewith and the use of proceeds thereof shall be deemed incurred and/or applied at the LCA Test Date (until such time as such Incremental Term
Loan is actually incurred or the applicable definitive agreement is terminated without actually consummating the applicable Limited Condition Acquisition) and outstanding thereafter for
purposes of determining compliance on a Pro Forma Basis (other than for purposes of determining compliance on a Pro Forma Basis in connection with the making of any Restricted Payment or
the prepayment of any Indebtedness) with any financial ratio or test (including any Consolidated Net Leverage Ratio test or any Consolidated Interest Coverage Ratio test, or any
calculation of the financial covenants set forth in Article VI) (it being understood and agreed
that for purposes of determining compliance on a Pro Forma Basis in connection with the making of any Restricted Payment or prepayment of any Indebtedness, the Borrower shall demonstrate
compliance with the applicable test both after giving effect to the applicable Limited Condition Acquisition and assuming that such transaction had not occurred). For the avoidance of
doubt, if any of such ratios or amounts for which compliance was determined or tested as of the LCA Test Date are thereafter exceeded or otherwise failed to have been complied with as a
result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated Adjusted EBITDA), at or prior to the consummation of the relevant Limited Condition
Acquisition, such ratios or amounts will not be deemed to have been exceeded or failed to be complied with as a result of such fluctuations solely for purposes of determining whether the
relevant Limited Condition Acquisition is permitted to be consummated or taken. Except as set forth in clause
(2) in the proviso to the first sentence in this Section 1.8 in connection with
the use of the proceeds of an Incremental Term Loan to finance a Limited Condition Acquisition (and, in the case of such clause (2), only if and to the extent the lenders providing such Incremental Term Loan so agree as provided in such clause (2)), it is understood and agreed that this Section 1.8 shall not limit the conditions set forth in Section 3.2
with respect to any proposed Borrowing, in connection with a Limited Condition Acquisition or otherwise.
Section 2.1. General Description of Facilities.
Subject to and upon the terms and conditions herein set forth, (i) the Lenders hereby establish in favor of the Borrower a revolving credit facility pursuant to which each Lender
severally agrees (to the extent of such Lenderβs Revolving Commitment) to make Revolving Loans to the Borrower in accordance with Section 2.2, (ii) the Issuing Bank may issue Letters of Credit in accordance with Section 2.22, (iii) the Swingline Lender may make Swingline Loans in accordance with Section 2.4 and (iv) each Lender agrees to purchase a participation interest in the Letters of Credit and the Swingline Loans pursuant
to the terms and conditions hereof; provided, that in no event shall the aggregate principal
amount of all outstanding Revolving Loans, Swingline Loans and outstanding LC Exposure exceed the Aggregate Revolving Commitments in effect from time to time.
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Section 2.2. Revolving Loans.
Subject to the terms and conditions set forth herein, each Lender severally agrees to make Revolving Loans, ratably in proportion to its Pro Rata Share of the Revolving Commitments,
to the Borrower, from time to time during the Availability Period, in an
aggregate principal amount outstanding at any time that will not result in (a) such Lenderβs Revolving Credit Exposure exceeding such Lenderβs Revolving Commitment or (b) the
aggregate Revolving Credit Exposures of all Lenders exceeding the Aggregate Revolving Commitments. During the Availability Period, the Borrower shall be entitled to borrow, prepay
and reborrow Revolving Loans in accordance with the terms and conditions of this Agreement; provided,
that the Borrower may not borrow or reborrow should there exist a Default or Event of Default.
Section 2.3. Procedure for Revolving
Borrowings. The Borrower shall give the Administrative Agent written notice (or telephonic notice promptly confirmed in writing) of each Revolving Borrowing
substantially in the form of Exhibit 2.3 (a βNotice of Revolving Borrowingβ) (x) prior to 11:00 a.m. on the requested date of each Base Rate Borrowing and (y) prior to 11:00
a.m. three (3) Business Days prior to the requested date of each Eurodollar Borrowing. Each Notice of Revolving Borrowing shall be irrevocable and shall specify: (i) the aggregate principal amount of such Borrowing, (ii) the date of such Borrowing
(which shall be a Business Day), (iii) the Type of such Revolving Loan comprising such Borrowing and (iv) in the case of a Eurodollar Borrowing, the duration of the initial Interest
Period applicable thereto (subject to the provisions of the definition of Interest Period). Each Revolving Borrowing shall consist of Base Rate Loans or Eurodollar Loans or a combination thereof, as the Borrower may request. The aggregate principal amount
of each Eurodollar Borrowing shall be not less than $5,000,000 or a larger multiple of $1,000,000, and the aggregate principal amount of each Base Rate Borrowing shall not be less
than $1,000,000 or a larger multiple of $100,000; provided, that Base Rate Loans made
pursuant to Section 2.4 or Section 2.22(d) may be made in lesser amounts as provided therein. At no time shall the total number of Eurodollar Borrowings outstanding at any time
exceed six. Promptly following the receipt of a Notice of Revolving Borrowing in accordance herewith, the Administrative Agent shall advise each Lender of the details thereof and
the amount of such Lenderβs Revolving Loan to be made as part of the requested Revolving Borrowing.
Section 2.4. Swingline Commitment.
(a) Subject to the terms and conditions set forth herein, the Swingline Lender may, in its sole discretion, make
Swingline Loans to the Borrower, from time to time during the Availability Period, in an aggregate principal amount outstanding at any time not to exceed the lesser of (i) the
Swingline Commitment then in effect and (ii) the difference between the Aggregate Revolving Commitments and the aggregate Revolving Credit Exposures of all Lenders; provided, that the Swingline Lender shall not be required to make a Swingline Loan to refinance
an outstanding Swingline Loan. The Borrower shall be entitled to borrow, repay and reborrow Swingline Loans in accordance with the terms and conditions of this Agreement.
(b) The Borrower shall give the Administrative Agent written notice (or telephonic notice promptly confirmed in
writing) of each Swingline Borrowing substantially in the form of Exhibit 2.4 attached
hereto (βNotice of Swingline Borrowingβ) prior to 10:00 a.m. on the requested date of each
Swingline Borrowing. Each Notice of Swingline Borrowing shall be irrevocable and shall specify: (i) the principal amount of such Swingline Loan, (ii) the date of such Swingline Loan
(which shall be a Business Day) and (iii) the account of the Borrower to which the proceeds of such Swingline Loan should be credited. The Administrative Agent will promptly advise
the Swingline Lender of each Notice of Swingline Borrowing. The aggregate principal amount of each Swingline Loan shall not be less than $100,000 or a larger multiple of $50,000, or such other minimum amounts agreed to by the Swingline Lender and the
Borrower. The Swingline Lender will make the proceeds of each Swingline Loan available to the Borrower in Dollars in immediately available funds at the account specified by the
Borrower in the applicable Notice of Swingline Borrowing not later than 1:00 p.m. on the requested date of such Swingline Loan.
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(c) The Swingline Lender, at any time and from time to time in its sole discretion, may, on behalf of the
Borrower (which hereby irrevocably authorizes and directs the Swingline Lender to act on its behalf), give a Notice of Revolving Borrowing to the Administrative Agent requesting
the Lenders (including the Swingline Lender) to make Base Rate Loans in an amount equal to the unpaid principal amount of any Swingline Loan. Each Lender will make the proceeds of
its Base Rate Loan included in such Borrowing available to the Administrative Agent for the account of the Swingline Lender in accordance with Section 2.6, and such proceeds will be used solely for the repayment of such Swingline Loan.
(d) If for any reason a Base Rate Borrowing may not be (as determined in the sole discretion of the
Administrative Agent), or is not, made in accordance with the foregoing provisions, then each Lender (other than the Swingline Lender) shall purchase an undivided participating
interest in such Swingline Loan in an amount equal to its Pro Rata Share thereof on the date that such Base Rate Borrowing should have occurred. On the date of such required
purchase, each Lender shall promptly transfer, in immediately available funds, the amount of its participating interest to the Administrative Agent for the account of the Swingline
Lender.
(e) Each Lenderβs obligation to make a Base Rate Loan pursuant to Section 2.4(c) or to purchase the participating interests pursuant to Section 2.4(d) shall be absolute and unconditional and shall not be affected by any circumstance, including without limitation (i) any
setoff, counterclaim, recoupment, defense or other right that such Lender or any other Person may have or claim against the Swingline Lender, the Borrower or any other Person for
any reason whatsoever, (ii) the existence of a Default or an Event of Default or the termination of any Lenderβs Revolving Commitment, (iii) the existence (or alleged existence) of
any event or condition which has had or could reasonably be expected to have a Material Adverse Effect, (iv) any breach of this Agreement or any other Loan Document by any Loan
Party, the Administrative Agent or any Lender or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. If such amount is not
in fact made available to the Swingline Lender by any Lender, the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with accrued
interest thereon for each day from the date of demand thereof (i) at the Federal Funds Rate until the second Business Day after such demand and (ii) at the Base Rate at all times
thereafter. Until such time as such Lender makes its required payment, the Swingline Lender shall be deemed to continue to have outstanding Swingline Loans in the amount of the
unpaid participation for all purposes of the Loan Documents. In addition, such Lender shall be deemed to have assigned any and all payments made of principal and interest on its
Loans and any other amounts due to it hereunder, to the Swingline Lender to fund the amount of such Lenderβs participation interest in such Swingline Loans that such Lender failed
to fund pursuant to this Section 2.4, until such amount has been purchased in full.
Section 2.5. Reserved.
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Section 2.6. Funding of Borrowings.
(a) Each Lender will make available each Loan to be made by it hereunder on the proposed date thereof by wire
transfer in immediately available funds by 2:00 p.m. to the Administrative Agent at the Payment Office; provided, that the Swingline Loans will be made as set forth in Section
2.4. The Administrative Agent will make such Loans available to the Borrower by promptly crediting the amounts that it receives, in like funds by the close of
business on such proposed date, to an account maintained by the Borrower with the Administrative Agent or at the Borrowerβs option, by effecting a wire transfer of such amounts
to an account designated by the Borrower to the Administrative Agent.
(b) Unless the Administrative Agent shall have been notified by any Lender prior to 1:00 p.m. on the date of a
Borrowing in which such Lender is to participate that such Lender will not make available to the Administrative Agent such Lenderβs share of such Borrowing, the Administrative
Agent may assume that such Lender has made such amount available to the Administrative Agent on such date, and the Administrative Agent, in reliance on such assumption, may make
available to the Borrower on such date a corresponding amount. If such corresponding amount is not in fact made available to the Administrative Agent by such Lender on the date
of such Borrowing, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest at the Federal Funds Rate
until the second Business Day after such demand and thereafter at the Base Rate. If such Lender does not pay such corresponding amount forthwith upon the Administrative Agentβs
demand therefor, the Administrative Agent shall promptly notify the Borrower, and the Borrower shall immediately pay such corresponding amount to the Administrative Agent
together with interest at the rate specified for such Borrowing. Nothing in this subsection shall be deemed to relieve any Lender from its obligation to fund its Pro Rata Share
of any Borrowing hereunder or to prejudice any rights which the Borrower may have against any Lender as a result of any default by such Lender hereunder.
(c) All Revolving Borrowings shall be made by the Lenders on the basis of their respective Pro Rata Shares. No
Lender shall be responsible for any default by any other Lender in its obligations hereunder, and each Lender shall be obligated to make its Loans provided to be made by it
hereunder, regardless of the failure of any other Lender to make its Loans hereunder.
Section 2.7. Interest Elections.
(a) Each Borrowing initially shall be of the Type specified in the applicable Notice of Borrowing. Thereafter,
the Borrower may elect to convert such Borrowing into a different Type or to continue such Borrowing, all as provided in this Section 2.7. The Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each
such portion shall be allocated ratably among the Lenders holding Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate
Borrowing.
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(b) To make an election pursuant to this Section 2.7, the Borrower shall give the Administrative Agent prior written notice (or telephonic notice promptly confirmed in writing) of each
Borrowing that is to be converted or continued, as the case may be, substantially in the form of Exhibit
2.7 attached hereto (a βNotice of Conversion/Continuationβ) (x) prior
to 10:00 a.m. one (1) Business Day prior to the requested date of a conversion into a Base Rate Borrowing and (y) prior to 11:00 a.m. three (3) Business Days prior to a
continuation of or conversion into a Eurodollar Borrowing. Each such Notice of Conversion/Continuation shall be irrevocable and shall specify (i) the Borrowing to which such
Notice of Conversion/Continuation applies and if different options are being elected with respect to different portions thereof, the portions thereof that are to be allocated
to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) shall be specified for each resulting Borrowing); (ii) the
effective date of the election made pursuant to such Notice of Conversion/Continuation, which shall be a Business Day; (iii) whether the resulting Borrowing is to be a Base
Rate Borrowing or a Eurodollar Borrowing; and (iv) if the resulting Borrowing is to be a Eurodollar Borrowing, the Interest Period applicable thereto after giving effect to
such election, which shall be a period contemplated by the definition of βInterest Periodβ. If any such Notice of Conversion/Continuation requests a Eurodollar Borrowing but
does not specify an Interest Period, the Borrower shall be deemed to have selected an Interest Period of one month. The principal amount of any resulting Borrowing shall
satisfy the minimum borrowing amount for Eurodollar Borrowings and Base Rate Borrowings set forth in Section 2.3.
(c) If, on the expiration of any Interest Period in respect of any Eurodollar Borrowing, the Borrower shall
have failed to deliver a Notice of Conversion/Continuation, then, unless such Borrowing is repaid as provided herein, the Borrower shall be deemed to have elected to convert
such Borrowing to a Base Rate Borrowing. No Borrowing may be converted into, or continued as, a Eurodollar Borrowing if a Default or an Event of Default exists, unless the
Administrative Agent and each of the Lenders shall have otherwise consented in writing. No conversion of any Eurodollar Loans shall be permitted except on the last day of the
Interest Period in respect thereof.
(d) Upon receipt of any Notice of Conversion/Continuation, the Administrative Agent shall promptly notify
each Lender of the details thereof and of such Lenderβs portion of each resulting Borrowing.
Section 2.8. Optional Reduction and
Termination of Commitments.
(a) Unless previously terminated, all Revolving Commitments, Swingline Commitments and LC Commitments shall
terminate on the Revolving Commitment Termination Date.
(b) Upon at least three (3) Business Daysβ prior written notice (or telephonic notice promptly confirmed in
writing) to the Administrative Agent (which notice shall be irrevocable), the Borrower may reduce the Aggregate Revolving Commitments in part or in whole; provided, that (i) any partial reduction shall apply to reduce proportionately and
permanently the Revolving Commitment of each Lender, (ii) any partial reduction pursuant to this Section
2.8 shall be in an amount of at least $5,000,000 and any larger multiple of $1,000,000, and (iii) no such reduction shall be permitted which would reduce the
Aggregate Revolving Commitments to an amount less than the aggregate outstanding Revolving Credit Exposure of all Lenders. Any such reduction in the Aggregate Revolving
Commitments below the principal amount of the Swingline Commitment and the LC Commitment shall result in a dollar-for-dollar reduction in the Swingline Commitment and the LC
Commitment.
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Section 2.9. Repayment of Loans.
The outstanding principal amount of all Revolving Loans and Swingline Loans shall be due and payable (together with accrued and unpaid interest thereon) on the Revolving
Commitment Termination Date.
Section 2.10. Evidence of
Indebtedness.
(a) Each Lender shall maintain in accordance with its usual practice appropriate records evidencing the
Indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender from time to time, including the amounts of principal and interest payable thereon
and paid to such Lender from time to time under this Agreement. The Administrative Agent shall maintain appropriate records in which shall
be recorded (i) the Commitments of each Lender, (ii) the amount of each Loan made hereunder by each Lender, the Class and Type thereof and, in the case of each Eurodollar
Loan, the Interest Period applicable thereto, (iii) the date of each continuation thereof pursuant to Section 2.7, (iv) the date of each conversion of all or a portion thereof to another Type pursuant to Section 2.7, (v) the date and amount of any principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder in respect of such Loans and (vi) both the date and amount of any sum received by the Administrative Agent hereunder from the Borrower in
respect of the Loans and each Lenderβs Pro Rata Share thereof. The entries made in such records shall be prima facie evidence of the existence and amounts of the obligations of the Borrower therein recorded; provided, that the failure or delay of any Lender or the Administrative Agent in maintaining or making
entries into any such record or any error therein shall not in any manner affect the obligation of the Borrower to repay the Loans (both principal and unpaid accrued
interest) of such Lender in accordance with the terms of this Agreement.
(b) This Agreement evidences the obligation of the Borrower to repay the Loans and is being executed as a
βnotelessβ credit agreement. However, at the request of any Lender (including the Swingline Lender) at any time, the Borrower agrees that it will prepare, execute and
deliver to such Lender a promissory note payable to the order of such Lender in the form of Exhibit
2.10 (a βNoteβ). Thereafter, the Loans evidenced by such promissory
note and interest thereon shall at all times (including after assignment permitted hereunder) be represented by one or more promissory notes in such form payable to the order
of the payee named therein (or, if such promissory note is a registered note, to such payee and its registered assigns).
Section 2.11. Optional Prepayments.
The Borrower shall have the right at any time and from time to time to prepay any Borrowing, in whole or in part, without premium or penalty, by giving irrevocable written
notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent no later than (i) in the case of prepayment of any Eurodollar Borrowing, 11:00 a.m.
not less than three (3) Business Days prior to any such prepayment, (ii) in the case of any prepayment of any Base Rate Borrowing, 11:00 a.m. not less than one Business Day
prior to the date of such prepayment, and (iii) in the case of Swingline Borrowings, 11:00 a.m. on the date of such prepayment. Each such notice shall be irrevocable and
shall specify the proposed date of such prepayment and the principal amount of each Borrowing or portion thereof to be prepaid. Upon receipt of any such notice, the
Administrative Agent shall promptly notify each affected Lender of the contents thereof and of such Lenderβs Pro Rata Share of any such prepayment. If such notice is given,
the aggregate amount specified in such notice shall be due and payable on the date designated in such notice, together with accrued interest to such date on the amount so
prepaid in accordance with Section 2.13(d); provided, that if a Eurodollar Borrowing is prepaid on a date other than the last day of an Interest Period
applicable thereto, the Borrower shall also pay all amounts required pursuant to Section 2.19.
Each partial prepayment of any Loan (other than a Swingline Loan) shall be in an amount that would be permitted in the case of an advance of a Revolving Borrowing of the same
Type pursuant to Section 2.3 or in the case of a Swingline Loan pursuant to Section 2.4. Each prepayment of a Revolving Borrowing shall be applied ratably to the
Loans comprising such Revolving Borrowing.
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Section 2.12. Mandatory Prepayments.
If at any time the Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitments, as reduced pursuant to Section 2.8 or otherwise, the Borrower shall immediately repay Swingline Loans and Revolving Loans in an amount equal to
such excess, together with all accrued and unpaid interest on such excess amount and any amounts due under Section 2.19. Each prepayment shall be applied first to the Swingline Loans to the full extent thereof, second to the Base Rate Loans to the
full extent thereof, and finally to Eurodollar Loans to the full extent thereof. If after giving effect to prepayment of all Swingline Loans and Revolving Loans, the
Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitments, the Borrower shall Cash Collateralize its reimbursement obligations with respect to
all Letters of Credit in an amount equal to such excess plus any accrued and unpaid fees thereon.
Section 2.13. Interest on Loans.
(a)
The Borrower shall pay interest on (i) each Base Rate Loan at the Base Rate plus the Applicable Margin in effect from time to time and (ii) each
Eurodollar Loan at the Adjusted LIBOR for the applicable Interest Period in effect for such Loan plus the Applicable Margin in effect from time to time.
(b)
The Borrower shall pay interest on each Swingline Loan at the Base Rate plus the Applicable Margin in effect from time to time.
(i)
Notwithstanding clauses (a) and (b) above, if an Event of Default has
occurred and is continuing, at the option of the Required Lenders, or automatically in the case of an Event of Default under Sections 8.1(a), (h) or (i), the Borrower shall pay interest (βDefault Interestβ) with respect to all Eurodollar Loans at the rate per annum equal to two percent (2.00%) above the
otherwise applicable interest rate for such Eurodollar Loans for the then-current Interest Period until the last day of such Interest Period, and thereafter, and with
respect to all Base Rate Loans and all other Obligations hereunder (other than Loans), at the rate per annum equal to two percent (2.00%) above the otherwise applicable
interest rate for Base Rate Loans.
(ii)
Interest on the principal amount of all Loans shall accrue from and including the date
such Loans are made to but excluding the date of any repayment thereof. Interest on all outstanding Base Rate Loans and Swingline Loans shall be payable quarterly in arrears on the last day of each March, June, September and December
and on the Revolving Commitment Termination Date. Interest on all outstanding Eurodollar Loans shall be payable on the last day of each Interest Period applicable thereto,
and, in the case of any Eurodollar Loans having an Interest Period in excess of three months, on each day which occurs every three months after the initial date of such
Interest Period, and on the Revolving Commitment Termination Date. Interest on any Loan which is converted into a Loan of another Type or which is repaid or prepaid shall
be payable on the date of such conversion or on the date of any such repayment or prepayment (on the amount repaid or prepaid) thereof. All Default Interest shall be
payable on demand.
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(iii)
The Administrative Agent shall determine each interest rate applicable to the Loans
hereunder and shall promptly notify the Borrower and the Lenders of such rate in writing (or by telephone, promptly confirmed in writing). Any such determination shall
be conclusive and binding for all purposes, absent manifest error.
Section 2.14. Fees.
(a)
The Borrower shall pay to the Administrative Agent for its own account fees in the
amounts and at the times previously agreed upon in writing by the Borrower and the Administrative Agent.
(b)
The Borrower agrees to pay to the Administrative Agent for the account of each Lender a
commitment fee (the βCommitment Feeβ), which shall accrue at the Applicable
Margin on the daily amount of the unused Revolving Commitment of such Lender during the Availability Period. For purposes of computing the Commitment Fee with respect to the Revolving Commitments, the Revolving Commitment of each
Lender shall be deemed used to the extent of the outstanding Revolving Loans and LC Exposure, but not Swingline Exposure, of such Lender.
(c)
The Borrower agrees to pay (i) to the Administrative Agent, for the account of each
Lender, a letter of credit fee with respect to its participation in each Letter of Credit (the βLetter of Credit Feeβ), which shall accrue at a rate per annum equal to the Applicable Margin then in effect on the average daily amount of such
Lenderβs LC Exposure attributable to such Letter of Credit during the period from and including the date of issuance of such Letter of Credit to but excluding the date on
which such Letter of Credit expires or is drawn in full (such Letter of Credit Fee shall continue to accrue on any LC Exposure that remains outstanding after the
Revolving Commitment Termination Date) and (ii) to the Issuing Bank for its own account a fronting fee, which shall accrue at the rate set forth in the Fee Letter on the
average daily amount of the LC Exposure during the Availability Period (or until the date that such Letter of Credit is irrevocably cancelled, whichever is later), as
well as the Issuing Bankβs standard fees with respect to issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings thereunder.
Notwithstanding the foregoing, if the Default Interest has been imposed pursuant to Section
2.13(c), the rate per annum used to calculate the letter of credit fee pursuant to clause (i) above shall automatically be increased by two percent (2.00%).
(d)
The Borrower shall pay on the Closing Date to the Administrative Agent and its
affiliates all fees in the Fee Letter that are due and payable on the Closing Date. The Borrower shall pay on the Closing Date to the Lenders all upfront fees previously
agreed in writing.
(e)
Accrued fees under paragraphs (b) and (c) above shall be payable quarterly in arrears on
the last day of each March, June, September and December, commencing on the first such date to occur after the Closing Date and on the Revolving Commitment Termination
Date (and if later, the date the Loans and LC Exposure shall be repaid in their entirety); provided further, that any such fees accruing after the Revolving Commitment Termination
Date shall be payable on demand.
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(f)
Anything herein to the contrary notwithstanding, during such period as a Lender is a
Defaulting Lender, such Defaulting Lender will not be entitled to Commitment Fees during such period pursuant to Section 2.14(b) or Letter of Credit Fees accruing during such period pursuant to Section 2.14(c) (without prejudice to the rights of the Lenders other than Defaulting Lenders in respect of such
fees), provided that (a) to the extent that a portion of the LC Exposure of
such Defaulting Lender is reallocated to the Non-Defaulting Lenders pursuant to Section
2.26, such fees that would have accrued for the benefit of such Defaulting Lender will instead accrue for the benefit of and be payable to such
Non-Defaulting Lenders, pro rata in accordance with their respective Revolving Commitments and (b) to the extent any portion of such LC Exposure
cannot be so reallocated, such fees will instead accrue for the benefit of and be payable to the Issuing Bank. The pro rata payment provisions of Section 2.21 shall automatically be deemed adjusted to reflect the provisions of
this subsection (f).
Section 2.15. Computation of
Interest and Fees.
All computations of interest and fees
hereunder shall be computed on the basis of a year of 360 days and paid for the actual number of days elapsed (including the first day but excluding the last day). Each
determination by the Administrative Agent of an interest rate or fee hereunder shall be made in good faith and, except for manifest error, shall be final, conclusive and
binding for all purposes.
Section 2.16. Inability to
Determine Interest Rates.
(a)
If prior to the commencement of any Interest Period for any Eurodollar Borrowing,
(i)
the Administrative Agent shall have determined (which determination shall be
conclusive and binding upon the Borrower absent manifest error) that, by reason of circumstances affecting the relevant interbank market, adequate means do not exist
for ascertaining the Adjusted LIBOR (including, without limitation, because the Screen Rate is not available or published on a current basis) for such Interest Period,
provided that no Benchmark Transition Event or Early Opt-In Election shall have occurred at such time or for such Interest Period, or
(ii)
the Administrative Agent shall have received notice from the Required Lenders that the
Adjusted LIBOR does not adequately and fairly reflect the cost to such Lenders (or Lender, as the case may be) of making, funding or maintaining their (or its, as the
case may be) Eurodollar Loans for such Interest Period,
the Administrative Agent shall give
written notice (or telephonic notice, promptly confirmed in writing) to the Borrower and to the Lenders as soon as practicable thereafter. Until the Administrative Agent
shall notify the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (A) the obligations of the Lenders to make Eurodollar Loans
or to continue or convert outstanding Loans as or into Eurodollar Loans shall be suspended and (B) all such affected Loans shall be converted into Base Rate Loans on the
last day of the then current Interest Period applicable thereto unless the Borrower prepays such Loans in accordance with this Agreement. Unless the Borrower notifies
the Administrative Agent at least one Business Day before the date of any Eurodollar Borrowing for which a Notice of Revolving Borrowing or Notice of
Conversion/Continuation has previously been given that it elects not to borrow on such date, then such Revolving Borrowing shall be made as a Base Rate Borrowing.
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(b)
Notwithstanding anything to the contrary herein or in any other Loan Document, upon
the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, the Administrative Agent and the Borrower may amend this Agreement to
replace the Screen Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth
(5th) Business Day after the Administrative Agent has posted such proposed amendment to all Lenders and the Borrower so long as the Administrative Agent has not
received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders. Any such amendment with respect to an Early Opt-in
Election will become effective on the date that Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required
Lenders accept such amendment. No replacement of the Screen Rate with a Benchmark Replacement pursuant to these provisions will occur prior to the applicable
Benchmark Transition Start Date.
(c)
In connection with the implementation of a Benchmark Replacement, the Administrative
Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan
Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to
this Agreement.
(d)
The Administrative Agent will promptly notify the Borrower and the Lenders of (i)
any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date and Benchmark Transition Start
Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes and (iv) the commencement or
conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or Lenders pursuant to this Section 2.16(b)-(e), including any determination with respect to a tenor, rate
or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive
and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party hereto, except, in each case, as expressly
required pursuant to this Section 2.16(b)-(e).
(e)
Upon the Borrowerβs receipt of notice of the commencement of a Benchmark
Unavailability Period, the Borrower may revoke any request for a Eurodollar Borrowing of, conversion to or continuation of Eurodollar Loans to be made, converted or
continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing
of or conversion to Base Rate Loans. During any Benchmark Unavailability Period, the component of Base Rate based upon the Adjusted LIBO Rate will not be used in any
determination of Base Rate.
Section 2.17. Illegality.
If any Change in Law shall make it unlawful or impossible for any Lender to perform any of its obligations hereunder or to make, maintain or fund any Eurodollar Loan
and such Lender shall so notify the Administrative Agent, the Administrative Agent shall promptly give notice thereof to the Borrower and the other Lenders, whereupon
until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of such
Lender to make Eurodollar Loans, or to continue or convert outstanding Loans as or into Eurodollar Loans, shall be suspended. In the case of the making of a
Eurodollar Borrowing, such Lenderβs Loan shall be made as a Base Rate Loan as part of the same Borrowing and, with respect to Eurodollar Loans, for the same Interest
Period, and if the affected Eurodollar Loan is then outstanding, such Loan shall be converted to a Base Rate Loan immediately, and, in the case of a Loan that is a
Eurodollar Loan, either (i) on the last day of the then current Interest Period applicable to such Eurodollar Loan if such Lender may lawfully continue to maintain
such Loan to such date or (ii) immediately if such Lender shall determine that it may not lawfully continue to maintain such Eurodollar Loan to such date.
Notwithstanding the foregoing, the affected Lender shall, prior to giving such notice to the Administrative Agent, designate a different Applicable Lending Office if
such designation would avoid the need for giving such notice and if such designation would not otherwise be disadvantageous to such Lender in the good faith exercise
of its discretion.
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Section 2.18. Increased
Costs.
(a)
If any Change in Law shall:
(i)
impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement that is not otherwise included in the determination of the Adjusted LIBOR hereunder against assets of, deposits with or for
the account of, or credit extended or participated in by, any Lender (except any such reserve requirement reflected in the Adjusted LIBOR) or the Issuing Bank;
(ii)
subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes
described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan
principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii)
impose on any Lender or on the Issuing Bank or the eurodollar interbank market any
other condition, cost or expense affecting this Agreement or any Eurodollar Loans made by such Lender or any Letter of Credit or any participation therein;
and the result of either of the
foregoing is to increase the cost to such Lender of making, converting into, continuing or maintaining a Eurodollar Loan or of maintaining its obligation to make any
such Loan or to increase the cost to such Lender or the Issuing Bank of participating in or issuing any Letter of Credit (or of maintaining its obligation to
participate in any Letter of Credit) or to reduce the amount received or receivable by such Lender or the Issuing Bank hereunder (whether of principal, interest or
any other amount), then the Borrower shall promptly pay, upon written notice from and demand by such Lender on the Borrower (with a copy of such notice and demand to
the Administrative Agent), to the Administrative Agent for the account of such Lender, within five (5) Business Days after the date of such notice and demand,
additional amount or amounts sufficient to compensate such Lender or the Issuing Bank, as the case may be, for such additional costs incurred or reduction suffered.
(b)
If any Lender or the Issuing Bank shall have determined that on or after the date
of this Agreement any Change in Law regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lenderβs or the
Issuing Bankβs capital (or on the capital of the Parent Company of such Lender or Issuing Bank) as a consequence of its obligations hereunder or under or in respect
of any Letter of Credit to a level below that which such Lender, the Issuing Bank or the Parent Company of such Lender or Issuing Bank could have achieved but for
such Change in Law (taking into consideration such Lenderβs or the Issuing Bankβs policies or the policies of the Parent Company of such Lender or Issuing Bank with
respect to capital adequacy or liquidity) then, from time to time, within five (5) Business Days after receipt by the Borrower of written demand by such Lender
(with a copy thereof to the Administrative Agent), the Borrower shall pay to such Lender such additional amounts as will compensate such Lender, the Issuing Bank or
the Parent Company of such Lender or the Issuing Bank for any such reduction suffered.
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(c) A certificate of a Lender or the Issuing Bank setting forth
the amount or amounts necessary to compensate such Lender, the Issuing Bank or the Parent Company of such Lender or the Issuing Bank, as the case may be,
specified in paragraph (a) or (b) of this Section 2.18 shall be
delivered to the Borrower (with a copy to the Administrative Agent) and shall be conclusive, absent manifest error. The Borrower shall pay any such Lender or the
Issuing Bank, as the case may be, such amount or amounts within five (5) Business Days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing
Bank to demand compensation pursuant to this Section 2.18 shall not
constitute a waiver of such Lenderβs or the Issuing Bankβs right to demand such compensation.
Section 2.19.
Funding
Indemnity. In the event of (a) the payment of any principal of a Eurodollar Loan other than on the last day of the Interest Period applicable
thereto (including as a result of an Event of Default), (b) the conversion or continuation of a Eurodollar Loan other than on the last day of the Interest Period
applicable thereto, or (c) the failure by the Borrower to borrow, prepay, convert or continue any Eurodollar Loan on the date specified in any applicable notice
(regardless of whether such notice is withdrawn or revoked), then, in any such event, the Borrower shall compensate each Lender, within five (5) Business Days
after written demand from such Lender, for any loss, cost or expense attributable to such event. In the case of a Eurodollar Loan, such loss, cost or expense
shall be deemed to include an amount determined by such Lender to be the excess, if any, of (A) the amount of interest that would have accrued on the principal
amount of such Eurodollar Loan if such event had not occurred at the Adjusted LIBOR applicable to such Eurodollar Loan for the period from the date of such event
to the last day of the then current Interest Period therefor (or in the case of a failure to borrow, convert or continue, for the period that would have been the
Interest Period for such Eurodollar Loan) over (B) the amount of interest that would accrue on the principal amount of such Eurodollar Loan for the same period if
the Adjusted LIBOR were set on the date such Eurodollar Loan was prepaid or converted or the date on which the Borrower failed to borrow, convert or continue such
Eurodollar Loan. A certificate as to any additional amount payable under this Section 2.19
submitted to the Borrower by any Lender (with a copy to the Administrative Agent) shall be conclusive, absent manifest error.
Section 2.20.
Taxes.
(a) For purposes of this Section 2.20, the term βLenderβ includes any Issuing Bank and the term βapplicable Lawβ includes
FATCA.
(b) Any and all payments by or on account of any obligation of
any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable Law. If any applicable Law
(as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a
Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or
withheld to the relevant Governmental Authority in accordance with applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable
Loan Party shall be increased as necessary so that after making such deduction or withholding (including such deductions and withholdings applicable to additional
sums payable under this Section 2.20) the applicable Recipient shall
receive an amount equal to the sum it would have received had no such deduction or withholding been made.
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(c) In addition, the Loan Parties shall timely pay to the
relevant Governmental Authority in accordance with applicable Law, or at the option of the Administrative Agent timely reimburse it for the payment of, any
Other Taxes.
(d) The Loan Parties shall jointly and severally indemnify each
Recipient, within ten (10) Business Days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on
or attributable to amounts payable under this Section 2.20) payable
or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the
amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own
behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(e) Each Lender shall severally indemnify the Administrative
Agent, within ten (10) Business Days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan
Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii)
any Taxes attributable to such Lenderβs failure to comply with the provisions of Section
11.4(e) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are
payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether
or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or
liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent
to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender
from any other source against any amount due to the Administrative Agent under this clause (e).
(f) As soon as practicable after any payment of Taxes by any
Loan Party to a Governmental Authority pursuant to this Section 2.20(f),
such Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(g) (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with
respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the
Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as
will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower
or the Administrative Agent, shall deliver such other documentation prescribed by applicable Law or reasonably requested by the Borrower or the Administrative
Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting
requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other
than such documentation set forth in Section 2.20(g)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lenderβs reasonable judgment such completion, execution or submission
would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
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(ii) Without limiting the generality of the foregoing, in the
event that the Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the
Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter
upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S.
federal backup withholding tax;
(B) any Foreign Lender shall, to the extent it is legally
entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the
date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the
Administrative Agent), whichever of the following is applicable:
(1) in the case of a Foreign Lender claiming the benefits of
an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form
W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the βinterestβ article of such tax treaty and (y)
with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S.
federal withholding Tax pursuant to the βbusiness profitsβ or βother incomeβ article of such tax treaty;
(2) executed originals of IRS Form W-8ECI,
(3) in the case of a Foreign Lender claiming the benefits of
the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit 2.20-1 to the effect that such Foreign Lender is not a βbankβ within the meaning of
Section 881(c)(3)(A) of the Code, a β10 percent shareholderβ of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a βcontrolled foreign
corporationβ described in Section 881(c)(3)(C) of the Code (a βU.S. Tax
Compliance Certificateβ) and (y) executed originals of IRS Form W-8BEN or W-8BEN-E; or
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(4) to the extent a Foreign Lender is not the beneficial
owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, a U.S. Tax Compliance Certificate substantially in
the form of Exhibit 2.20-2 or Exhibit 2.20-3, IRS Form W-9, and/or other certification documents from each beneficial owner,
as applicable; provided that if the Foreign Lender is a
partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide
a U.S. Tax Compliance Certificate substantially in the form of Exhibit 2.20-4
on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally
entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the
date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the
Administrative Agent), executed originals of any other form prescribed by applicable Law as a basis for claiming exemption from or a reduction in U.S. federal
withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable Law to permit the Borrower or the
Administrative Agent to determine the withholding or deduction required to be made; and
(D) if a payment made to a Lender under any Loan Document
would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA
(including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent
at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation
prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the
Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to
determine that such Lender has complied with such Lenderβs obligations under FATCA or to determine the amount to deduct and withhold from such payment.
Solely for purposes of this clause (D), βFATCAβ shall include any amendments made to FATCA after the date of this Agreement.
Each Lender agrees that if
any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or
promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
53
(h) If any Recipient determines, in its sole discretion,
that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.20 (including by the payment of additional amounts pursuant to this Section 2.20), it shall pay to the indemnifying party an amount equal to such refund (but
only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses
(including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such
refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this
paragraph (g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is
required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (g), in no event will the
indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (g) the payment of which would place the indemnified
party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such
refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been
paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its
Taxes that it deems confidential) to the indemnifying party or any other Person.
(i) Each partyβs obligations under this Section 2.20 shall
survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the
Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.
Section
2.21. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) The Borrower shall make each payment required to be
made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Sections 2.18, 2.19
or 2.20, or otherwise) prior to 12:00 noon on the date when due,
in immediately available funds, free and clear of any defenses, rights of set-off, counterclaim, or withholding or deduction of taxes. Any amounts received
after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for
purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the Payment Office, except payments to be made
directly to the Issuing Bank or Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.18, 2.19
and 2.20 and 11.3 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such
payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall
be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment
accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds
shall be applied: first, to Administrative Agentβs fees and
reimbursable expenses then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable
pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to interest and fees then due and payable hereunder, pro rata
to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to the payment of principal of the Loans and unreimbursed LC Disbursements then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
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(c) If any Lender shall, by exercising any right
of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC
Disbursements or Swingline Loans that would result in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving
Credit Exposure and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit Exposure, then
the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure of other Lenders to
the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal
of and accrued interest on their respective Revolving Credit Exposure; provided,
that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be
rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be
construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a
Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure to any assignee or participant, other
than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the
foregoing and agrees, to the extent it may effectively do so under applicable Law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a
direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have
received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing
Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount or amounts
due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees
to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from
and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal
Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
55
(e) Notwithstanding anything herein to the
contrary, any amount paid by the Borrower for the account of a Defaulting Lender under this Agreement (whether on account of principal, interest, fees,
reimbursement of LC Disbursements, indemnity payments or other amounts) will be retained by the Administrative Agent in a segregated non-interest
bearing account until the Revolving Commitment Termination Date, at which time the funds in such account will be applied by the Administrative Agent, to
the fullest extent permitted by Law, in the following order of priority: first
to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent under this Agreement, second to the payment of any amounts owing by such Defaulting Lender to the Issuing Bank
and the Swingline Lender under this Agreement, third to the
payment of interest due and payable to the Lenders hereunder that are not Defaulting Lenders, ratably among them in accordance with the amounts of such
interest then due and payable to them, fourth to the payment
of fees then due and payable to the Lenders hereunder that are not Defaulting Lenders, ratably among them in accordance with the amounts of such fees
then due and payable to them, fifth to pay principal and
unreimbursed LC Disbursements then due and payable to the Lenders hereunder that are not Defaulting Lenders, ratably in accordance with the amounts
thereof then due and payable to them, sixth to the ratable
payment of other amounts then due and payable to the Lenders hereunder that are not Defaulting Lenders, and seventh to pay amounts owing under this Agreement to such Defaulting Lender or as a court of competent
jurisdiction may otherwise direct.
Section
2.22. Letters of Credit.
(a) During the Availability Period, the Issuing
Bank, in reliance upon the agreements of the other Lenders pursuant to Section
2.22(d) and 2.22(e), may, in its sole
discretion, issue, at the request of the Borrower, Letters of Credit for the account of the Borrower or any Subsidiary on the terms and conditions
hereinafter set forth; provided, that (i) each Letter of
Credit shall expire on the earlier of (A) the date one year after the date of issuance of such Letter of Credit (or in the case of any renewal or
extension thereof, one year after such renewal or extension) and (B) the date that is twelve months after the Revolving Commitment Termination Date;
(ii) each Letter of Credit shall be in a stated amount of at least $25,000; and (iii) the Borrower may not request any Letter of Credit, if, after
giving effect to such issuance (A) the aggregate LC Exposure would exceed the LC Commitment, (B) the aggregate Revolving Credit Exposure of all Lenders
would exceed the Aggregate Revolving Commitments or (C) the Revolving Credit Exposure of each Lender would exceed its Revolving Commitment. Each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Issuing Bank without recourse a participation in each Letter of Credit equal to such
Lenderβs Pro Rata Share of the aggregate amount available to be drawn under such Letter of Credit (i) on the Closing Date with respect to all Existing Letters of Credit and (ii) on the date of
issuance with respect to all other Letters of Credit. Each issuance of a Letter of Credit shall be deemed to utilize the Revolving Commitment of each
Lender by an amount equal to the amount of such participation.
(b) To request the issuance of a Letter of
Credit (or any amendment, renewal or extension of an outstanding Letter of Credit), the Borrower shall give the Issuing Bank and the Administrative
Agent irrevocable written notice (which may be in the form of a duly completed Letter of Credit Application) at least three (3) Business Days prior to
the requested date of such issuance specifying the date (which shall be a Business Day) such Letter of Credit is to be issued (or amended, extended or
renewed, as the case may be), the expiration date of such Letter of Credit, the amount of such Letter of Credit, the name and address of the beneficiary
thereof and such other information as shall be necessary to prepare, amend, renew or extend such Letter of Credit. In addition to the satisfaction of
the conditions in Article III, the issuance of such Letter
of Credit (or any amendment which increases the amount of such Letter of Credit) will be subject to the further conditions that such Letter of Credit
shall be in such form and contain such terms as the Issuing Bank shall approve and that the Borrower shall have executed and delivered any Issuer
Documents as the Issuing Bank shall require; provided, that
in the event of any conflict between such applications, agreements or instruments and this Agreement, the terms of this Agreement shall control.
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(c) At least two (2) Business Days prior to
the issuance of any Letter of Credit, the Issuing Bank will confirm with the Administrative Agent (by telephone or in writing) that the Administrative
Agent has received such notice and if not, the Issuing Bank will provide the Administrative Agent with a copy thereof. Unless the Issuing Bank has
received notice from the Administrative Agent on or before 5:00 p.m. the Business Day immediately preceding the date the Issuing Bank is to issue the
requested Letter of Credit (1) directing the Issuing Bank not to issue the Letter of Credit because such issuance is not then permitted hereunder
because of the limitations set forth in Section 2.22(a) or
that one or more conditions specified in Article III are
not then satisfied, then, subject to the terms and conditions hereof, the Issuing Bank shall, on the requested date, issue such Letter of Credit in
accordance with the Issuing Bankβs usual and customary business practices.
(d) The Issuing Bank shall examine all
documents purporting to represent a demand for payment under a Letter of Credit promptly following its receipt thereof. The Issuing Bank shall notify
the Borrower and the Administrative Agent of such demand for payment and whether the Issuing Bank has made or will make a LC Disbursement thereunder;
provided, that any failure to give or delay in giving such
notice shall not relieve the Borrower of its obligation to reimburse the Issuing Bank and the Lenders with respect to such LC Disbursement. The
Borrower shall be irrevocably and unconditionally obligated to reimburse the Issuing Bank for any LC Disbursements paid by the Issuing Bank in respect
of such drawing, without presentment, demand or other formalities of any kind. Unless the Borrower shall have notified the Issuing Bank and the
Administrative Agent prior to 11:00 a.m. on the Business Day immediately prior to the date on which such drawing is honored that the Borrower intends
to reimburse the Issuing Bank for the amount of such drawing in funds other than from the proceeds of Revolving Loans, the Borrower shall be deemed to
have timely given a Notice of Revolving Borrowing to the Administrative Agent requesting the Lenders to make a Base Rate Borrowing on the date on which such drawing is honored in an
exact amount due to the Issuing Bank; provided, that for
purposes solely of such Borrowing, the conditions precedent set forth in Section
3.2 hereof shall not be applicable. The Administrative Agent shall notify the Lenders of such Borrowing in accordance with Section 2.3, and each Lender shall make the proceeds of its
Base Rate Loan included in such Borrowing available to the Administrative Agent for the account of the Issuing Bank in accordance with Section 2.6. The proceeds of such Borrowing shall be applied
directly by the Administrative Agent to reimburse the Issuing Bank for such LC Disbursement.
(e) If for any reason a Base Rate Borrowing
may not be (as determined in the sole discretion of the Administrative Agent), or is not, made in accordance with the foregoing provisions, then each
Lender (other than the Issuing Bank) shall be obligated to fund the participation that such Lender purchased pursuant to subsection (a) in an amount
equal to its Pro Rata Share of such LC
Disbursement on and as of the date which such Base Rate Borrowing should have occurred. Each Lenderβs obligation to fund its participation shall be absolute and unconditional and shall not be
affected by any circumstance, including without limitation (i) any setoff, counterclaim, recoupment, defense or other right that such Lender or any
other Person may have against the Issuing Bank or any other Person for any reason whatsoever, (ii) the existence of a Default or an Event of Default
or the termination of the Aggregate Revolving Commitments, (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any
of its Subsidiaries, (iv) any breach of this Agreement by the Borrower or any other Lender, (v) any amendment, renewal or extension of any Letter of
Credit or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. On the date that such
participation is required to be funded, each Lender shall promptly transfer, in immediately available funds, the amount of its participation to the
Administrative Agent for the account of the Issuing Bank. Whenever, at any time after the Issuing Bank has received from any such Lender the funds
for its participation in a LC Disbursement, the Issuing Bank (or the Administrative Agent on its behalf) receives any payment on account thereof, the
Administrative Agent or the Issuing Bank, as the case may be, will distribute to such Lender its Pro Rata Share of such payment; provided, that if such payment is required to be returned for
any reason to the Borrower or to a trustee, receiver, liquidator, custodian or similar official in any bankruptcy proceeding, such Lender will return
to the Administrative Agent or the Issuing Bank any portion thereof previously distributed by the Administrative Agent or the Issuing Bank to it.
57
(f) To the extent that any Lender shall fail
to pay any amount required to be paid pursuant to paragraphs (d) or (e) of this Section on the due date therefor, such Lender shall pay interest to
the Issuing Bank (through the Administrative Agent) on such amount from such due date to the date such payment is made at a rate per annum equal to
the Federal Funds Rate; provided, that if such Lender
shall fail to make such payment to the Issuing Bank within three (3) Business Days of such due date, then, retroactively to the due date, such
Lender shall be obligated to pay interest on such amount at the rate set forth in Section 2.13(c).
(g) If (i) any Event of Default shall occur
and be continuing on the Business Day that the Borrower receives notice from the Administrative Agent or the Required Lenders demanding that its
reimbursement obligations with respect to the Letters of Credit be Cash Collateralized pursuant to this paragraph, (ii) as of the Revolving
Commitment Termination Date, any LC Exposure remains outstanding for any reason or (iii) the Borrower shall be required to provide Cash Collateral
pursuant to any other section of this Agreement, then, the Borrower shall deposit in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Issuing Bank and the Lenders, an amount in cash equal to 105% of the aggregate LC Exposure of all
Lenders as of such date plus any accrued
and unpaid fees thereon; provided, that such obligation
to Cash Collateralize the reimbursement obligations of the Borrower with respect to the Letters of Credit shall become effective immediately, and
such deposit shall become immediately due and payable, without demand or notice of any kind, upon the occurrence of any Event of Default with
respect to the Borrower described in clause (h) or (i) of Section
8.1. Such deposit shall be held by the Administrative Agent as Cash Collateral for the payment and performance of the obligations of
the Borrower under this Agreement. The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal,
over such account. The Borrower agrees to execute any documents and/or certificates to effectuate the intent of this paragraph. Other than any
interest earned on the investment of such deposits, which investments shall be made at the option and sole discretion of the Administrative Agent
and at the Borrowerβs risk and expense, such deposits shall not bear interest. Interest and profits, if any, on such investments shall accumulate
in such account. Moneys in such account shall be applied by the Administrative Agent to reimburse the Issuing Bank for LC Disbursements for which
it had not been reimbursed and to the extent so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrower for the
LC Exposure at such time or, if the maturity of the Loans has been accelerated, with the consent of the Required Lenders, be applied to satisfy
other obligations of the Borrower under this Agreement and the other Loan Documents. If the Borrower is required to Cash Collateralize its
reimbursement obligations with respect to the Letters of Credit as a result of the occurrence of an Event of Default, such cash collateral so posted
(to the extent not so applied as aforesaid) shall be returned to the Borrower within three (3) Business Days after all Events of Default have been
cured or waived.
58
(h) Upon the request of any
Lender, but no more frequently than quarterly, the Issuing Bank shall deliver (through the Administrative Agent) to each Lender and the Borrower a
report describing the aggregate Letters of Credit then outstanding. Upon the request of any Lender from time to time, the Issuing Bank shall
deliver to such Lender any other information reasonably requested by such Lender with respect to each Letter of Credit then outstanding.
(i) The Borrowerβs obligation to
reimburse LC Disbursements hereunder shall be absolute, unconditional and irrevocable and shall be performed strictly in accordance with the terms
of this Agreement under all circumstances whatsoever and irrespective of any of the following circumstances:
(i) Any lack of validity or
enforceability of any Letter of Credit or this Agreement;
(ii) The existence of any claim,
set-off, defense or other right which the Borrower or any Subsidiary or Affiliate of the Borrower may have at any time against a beneficiary or
any transferee of any Letter of Credit (or any Persons or entities for whom any such beneficiary or transferee may be acting), any Lender
(including the Issuing Bank) or any other Person, whether in connection with this Agreement or the Letter of Credit or any document related hereto
or thereto or any unrelated transaction;
(iii) Any draft or other document
presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate
in any respect;
(iv) Payment by the Issuing Bank
under a Letter of Credit against presentation of a draft or other document to the Issuing Bank that does not comply with the terms of such Letter
of Credit;
(v) Any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 2.22, constitute a legal or equitable discharge of, or provide a right of
setoff against, the Borrowerβs obligations hereunder; or
59
(vi) The existence of a Default
or an Event of Default.
Neither the
Administrative Agent, the Issuing Bank, the Lenders nor any Related Party of any of the foregoing shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to above), or any error, omission, interruption, loss or delay in transmission or delivery of
any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder),
any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Issuing Bank; provided, that the foregoing shall not be construed to
excuse the Issuing Bank from liability to the Borrower to the extent of any actual direct damages (as opposed to special, indirect (including
claims for lost profits or other consequential damages), or punitive damages, claims in respect of which are hereby waived by the Borrower to the
extent permitted by applicable Law) suffered by the Borrower that are caused by the Issuing Bankβs failure to exercise due care when determining
whether drafts or other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree, that in
the absence of gross negligence or willful misconduct on the part of the Issuing Bank (as finally determined by a court of competent
jurisdiction), the Issuing Bank shall be deemed to have exercised due care in each such determination. In furtherance of the foregoing and
without limiting the generality thereof, the parties agree that, with respect to documents presented that appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the Issuing Bank may, in its sole discretion, either accept and make payment upon
such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and
make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(j) Unless otherwise expressly
agreed by the Issuing Bank and the Borrower when a Letter of Credit is issued and subject to applicable Laws, (i) each standby Letter of Credit
shall be governed by the βInternational Standby Practices 1998β (ISP98) (or such later revision as may be published by the Institute of
International Banking Law & Practice on any date any Letter of Credit may be issued), (ii) each documentary Letter of Credit shall be
governed by the Uniform Customs and Practices for Documentary Credits (2007 Revision), International Chamber of Commerce Publication No. 600 (or
such later revision as may be published by the International Chamber of Commerce on any date any Letter of Credit may be issued) and (iii) the
Borrower shall specify the foregoing in each Letter of Credit Application submitted for the issuance of a Letter of Credit.
(k) Conflict with Issuer Documents. In the event of any conflict between the
terms hereof and the terms of any Issuer Document, the terms hereof shall control.
(l) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter
of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Subsidiary, the Borrower shall be
obligated to reimburse the Issuing Bank hereunder for any and all drawings under such Letter of Credit. The Borrower hereby acknowledges that
the issuance of Letters of Credit for the account of Subsidiaries inures to the benefit of the Borrower, and that the Borrowerβs business
derives substantial benefits from the businesses of such Subsidiaries.
Section
2.23. Increase of Commitments; Additional Lenders.
The Borrower
may from time to time, upon at least five daysβ prior written notice to the Administrative Agent (who shall promptly provide a copy of such notice
to each Lender), propose to increase the Aggregate Revolving Commitments or to establish one or more new term loans (each, an βIncremental Term Loanβ); provided, that:
(a) subject, in the case of an
Incremental Term Loan being used to finance a Limited Condition Acquisition, to Section 1.8, the aggregate amount of all increases in the Aggregate Revolving Commitments plus the aggregate initial principal amount
of all Incremental Term Loans after the Closing Date shall not exceed $500,000,000 plus an unlimited amount so long as the Consolidated Net Leverage Ratio is not greater than
3.00:1.00, recomputed as of the end of the period of the four Fiscal Quarters most recently ended for which the Borrower has delivered financial
statements pursuant to Section 5.1(a) or (b), after giving effect to such increase or Incremental
Term Loan on a Pro Forma Basis (assuming the full amount of such increase in the Aggregate Revolving Commitments is fully drawn and without
βnettingβ the cash proceeds thereof);
60
(b) any increase in the
Aggregate Revolving Commitments or establishment of an Incremental Term Loan shall be in a minimum principal amount of $15,000,000 and in
integral multiples of $1,000,000 in excess thereof;
(c) subject, in the case of an
Incremental Term Loan being used to finance a Limited Condition Acquisition, to Section 1.8, no Default or Event of Default shall exist and be continuing at the time of any increase in the
Aggregate Revolving Commitments or establishment of an Incremental Term Loan;
(d) subject, in the case of an
Incremental Term Loan being used to finance a Limited Condition Acquisition, to Section 1.8, the conditions set forth in Section 3.2 shall be satisfied as of the date of any increase in the Aggregate Revolving Commitments or establishment
of any Incremental Term Loan;
(e) subject, in the case of an
Incremental Term Loan being used to finance a Limited Condition Acquisition, to Section 1.8, the Borrower shall have provided to the Administrative Agent a Pro Forma Compliance Certificate,
in form an detail reasonably acceptable to the Administrative Agent, demonstrating compliance with the financial covenants in Article VI recomputed as of the end of the period of
the four Fiscal Quarters most recently ended for which the Borrower has delivered financial statements pursuant to Section 5.1(a) or (b), after giving effect to such increase or Incremental Term Loan on a Pro Forma Basis;
(f) the Administrative Agent
shall have received all documents (including resolutions of the board of directors of the Loan Parties and opinions of counsel to the Loan
Parties) it may reasonably request relating to such increase in the Aggregate Revolving Commitments or such establishment of such Incremental
Term Loan, all in form and substance satisfactory to the Administrative Agent;
(g) with respect to any
Incremental Term Loan, (i) the final maturity date shall be no earlier than (x) the Latest Maturity Date or (y) the maturity date for any
then-existing Incremental Term Loan and (ii) the weighted average life to maturity of such Incremental Term Loan shall not be shorter than the
weighted average life to maturity of any then-existing Incremental Term Loan;
(h) any increase in the
Aggregate Revolving Commitments under this Section 2.23
shall have terms identical to those for the Revolving Loans under this Agreement, except for (i) upfront fees payable to the Lenders providing
commitments for such increase and (ii) arrangement fees payable to the Arrangers or their Affiliates in connection with the establishment of
such increase in the Aggregate Revolving Commitments;
(i) no Lender shall have any
obligation to increase its Revolving Commitment or provide any Incremental Term Loan Commitment, and any decision by a Lender to increase its
Revolving Commitment or provide any Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender;
61
(j) the Borrower may
designate a bank or other financial institution that is not already a Lender to provide all or any portion of any increase in the Aggregate
Revolving Commitments or an Incremental Term Loan Commitment, so long as (i) such Person (an βAdditional Lenderβ) becomes a party to this Agreement pursuant to a lender joinder
agreement or other document in form and substance satisfactory to the Administrative Agent that has been executed by the Borrower and such
Additional Lender, (ii) any such Person proposed by the Borrower to become an Additional Lender must be reasonably acceptable to the
Administrative Agent and, if such Additional Lender is to provide a Revolving Commitment, each of the Issuing Bank and the Swingline Lender;
(k) any increase in the
Aggregate Revolving Commitments or establishment of an Incremental Term Loan shall be pursuant to a commitment agreement, joinder agreement
or other document in form and substance reasonably acceptable to the Administrative Agent, and upon the effectiveness of such commitment
agreement, joinder agreement or other document pursuant to the terms thereof, the Commitments, as applicable, shall automatically be
increased by the amount of the Commitments added through such commitment agreement, joinder agreement or other document and Schedule I shall automatically be deemed amended to
reflect the Commitments of all Lenders after giving effect to the addition of such Commitments; and
(l) with respect to any
increase in the Aggregate Revolving Commitments, (i) each Lender providing a portion of the increase shall make Revolving Loans, the
proceeds of which shall be applied by the Administrative Agent to prepay Revolving Loans of the existing Lenders, in an amount necessary
such that after giving effect thereto each Lender will hold its Pro Rata Share of outstanding Revolving Loans (such payments to existing
Lenders shall be subject to Section 2.19), and
(ii) effective upon such increase, the amount of the participations held by each Lender in each Letter of Credit and each Swingline Loan
then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations
in each such Letter of Credit or such Swingline Loan in proportion to their respective Revolving Commitments.
Section 2.24. Mitigation of Obligations. If any Lender requests compensation under Section 2.18, or if the Borrower is required to pay
any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.20, then such Lender shall use reasonable efforts to designate a
different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its
offices, branches or affiliates, if, in the sole judgment of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable under Section 2.18 or Section 2.20, as the case may be, in the future and
(ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The
Borrower hereby agrees to pay all costs and expenses incurred by any Lender in connection with such designation or assignment.
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Section 2.25. Replacement of Lenders. If (a) any Lender requests compensation
under Section 2.18, (b) the Borrower is
required to pay any additional amount to any Lender or any Governmental Authority of the account of any Lender pursuant to Section 2.20, (c) any Lender notifies the Borrower
and Administrative Agent that it is unable to fund Eurodollar Loans pursuant to Sections 2.16
or 2.17, (d) a Lender (a βNon-Consenting Lenderβ) does not consent to a
proposed change, waiver, discharge or termination with respect to any Loan Document that has been approved by the Required Lenders as
provided in Section 11.2(b) but requires
unanimous consent of all Lender or all the Lenders directly affected thereby (as applicable) or (e) if any Lender is a Defaulting Lender,
then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the restrictions set forth in Section 11.4(b) all its interests, rights and obligations under this
Agreement and the related Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender); provided, that (i) the Borrower shall have received
the prior written consent of the Administrative Agent, which consent shall not be unreasonably withheld, (ii) such Lender shall have
received payment of an amount equal to the outstanding principal amount of all Loans owed to it, accrued interest thereon, accrued fees
and all other amounts payable to it hereunder, from the assignee (in the case of such outstanding principal and accrued interest) and from
the Borrower (in the case of all other amounts), (iii) in the case of a claim for compensation under Section 2.18 or payments required to be made pursuant to Section 2.20, such assignment will result in a
reduction in such compensation or payments, (iv) such assignment does not conflict with applicable Law and (v) in the case of any such
assignment resulting from a Non-Consenting Lenderβs failure to consent to a proposed change, waiver, discharge or termination with respect
to any Loan Document, the applicable assignee consents to the proposed change, waiver, discharge or termination; provided that the failure by such Non-Consenting Lender to execute
and deliver an Assignment and Acceptance shall not impair the validity of the removal of such Non-Consenting Lender and the mandatory
assignment of such Non-Consenting Lenderβs Commitments and outstanding Loans pursuant to this Section 2.25 shall nevertheless be effective without the execution by such
Non-Consenting Lender of an Assignment and Acceptance. A Lender shall not be required to make any such assignment and delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply.
(a) If a Revolving
Lender becomes, and during the period it remains, a Defaulting Lender, the following provisions shall apply, notwithstanding anything to
the contrary in this Agreement:
(i) the LC Exposure
and Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically be reallocated
(effective on the day such Revolving Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Commitments (calculated as if the Defaulting Lenderβs Revolving
Commitment was reduced to zero and each Non-Defaulting Lenderβs Revolving Commitment had been increased proportionately); provided that (A) the sum of each Non-Defaulting
Lenderβs total Revolving Credit Exposure may not in any event exceed the Revolving Commitment of such Non-Defaulting Lender as in effect
at the time of such reallocation and (B) neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will
constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Bank, the Swingline Lender or any other
Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender; and
(ii) to the extent
that any portion (the βunreallocated portionβ)
of the LC Exposure and Swingline Exposure of any Defaulting Lender cannot be reallocated pursuant to clause (i) because of the limitation
described in clause (a)(i)(A), the Borrower will, not later than ten (10) Business Days after demand by the Administrative Agent (at the
direction of the Issuing Bank and/or the Swingline Lender), (A) Cash Collateralize the obligations of the Defaulting Lender to the Issuing
Bank or Swingline Lender in respect of such LC Exposure or Swingline Exposure, as the case may be, in an amount at least equal to the
aggregate amount of the unreallocated portion of the LC Exposure and Swingline Exposure of such Defaulting Lender, (B) in the case of such
Swingline Exposure, prepay and/or Cash Collateralize in full the unreallocated portion thereof, or (C) make other arrangements
satisfactory to the Administrative Agent, the Issuing Bank and the Swingline Lender in their sole discretion to protect them against the
risk of non-payment by such Defaulting Lender.
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(b) If the Borrower,
the Administrative Agent, the Issuing Bank and the Swingline Lender agree in writing in their discretion that any Defaulting Lender has
ceased to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date
specified in such notice and subject to any conditions set forth therein, the LC Exposure and the Swingline Exposure of the other
Lenders shall be readjusted to reflect the inclusion of such Lenderβs Commitment, and such Lender will purchase at par such portion of
outstanding Revolving Loans of the other Lenders and/or make such other adjustments as the Administrative Agent may determine to be
necessary to cause the Revolving Credit Exposure of the Lenders to be on a pro rata basis in accordance with their respective Revolving
Commitments, whereupon such Lender will cease to be a Defaulting Lender and will be a Non-Defaulting Lender (and such Revolving Credit
Exposure of each Lender will automatically be adjusted on a prospective basis to reflect the foregoing). If any cash collateral has
been posted with respect to the LC Exposure or Swingline Exposure of such Defaulting Lender, the Administrative Agent will promptly
return such cash collateral to the Borrower; provided that no adjustments will be made retroactively with respect to fees accrued or
payments made by or on behalf of the Borrower while such Lender was a Defaulting Lender; and provided, further, that except to the
extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Non-Defaulting Lender will
constitute a waiver or release of any claim of any party hereunder arising from such Lenderβs having been a Defaulting Lender.
Section 2.27. Extension.
(a) The Borrower may
on one or more occasions after the Closing Date, by written notice to the Administrative Agent, make one or more offers (each, an βExtension Offerβ) to all the Lenders of one or
more Class of Loans (each class subject to such an Extension Offer, an βExtension Request Classβ) to enter into one or more Extension Permitted Amendments pursuant to procedures
reasonably specified by the Administrative Agent and reasonably acceptable to the Borrower. Such notice shall set forth (i) the terms
and conditions of the requested Extension Permitted Amendment(s) and (ii) the date on which such Extension Permitted Amendment(s) are
requested to become effective (which shall not be less than five (5) Business Days nor more than thirty (30) Business Days after the
date of such notice, unless otherwise agreed to by the Administrative Agent). Extension Permitted Amendments shall become effective only
with respect to the Loans and Commitments of the Lenders of the Extension Request Class that accept the applicable Extension Offer (such
Lenders, the βExtending Lendersβ) and, in the
case of any Extending Lender, only with respect to such Lenderβs Loans and Commitments of such Extension Request Class as to which such
Lenderβs acceptance has been made. The Borrower shall have the right to withdraw any Extension Offer upon written notice to the
Administrative Agent in the event that the aggregate amount of Loans and Commitments of the Extending Lenders is less than the aggregate
amount specified by the Borrower in the Extension Offer to be extended.
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(b) An Extension Permitted Amendment shall be
effected pursuant to an Extension Agreement executed and delivered by the Borrower, each applicable Extending Lender and the
Administrative Agent; provided that no Extension Permitted Amendment shall
become effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness
thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan
Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all
respects, and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such
representation and warranty that specifically relates to an earlier date, in which case such representation and warranty shall be so
true and correct on and as of such earlier date, and (iii) the Borrower shall have delivered to the Administrative Agent such
customary legal opinions, board resolutions, secretaryβs certificates, officerβs certificates and other customary documents as shall
reasonably be requested by the Administrative Agent in connection therewith. The Administrative Agent shall promptly notify each
Lender as to the effectiveness of each Extension Agreement. Each Extension Agreement may, without the consent of any Lender other
than the applicable Extending Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or
appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section 2.27, including any amendments necessary to treat the applicable Loans
and/or Commitments of the accepting Lenders as a new βClassβ of loans and/or commitments hereunder; provided that, except as otherwise agreed to by the Issuing Lender and the
Swingline Lender, (i) the allocation of the participation exposure with respect to any then-existing or subsequently issued or made
Letter of Credit or Swingline Loan as between the commitments of such new βClassβ and the remaining Commitments shall be made on a
ratable basis as between the commitments of such new βClassβ and the remaining Commitments and (ii) the Revolving Commitment
Termination Date, as such term is used in reference to Letters of Credit or Swingline Loans, may not be extended without the prior
written consent of the Issuing Lender and the Swingline Lender, as applicable.
Section 3.1. Conditions to Effectiveness. This Agreement
and the obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of the Issuing Bank to issue any
Letter of Credit hereunder shall be effective upon satisfaction of the following conditions precedent in each case in form and
substance satisfactory to the Administrative Agent and each Lender:
(a) Loan Documents. Receipt by the Administrative
Agent of a counterpart of this Agreement and the other Loan Documents signed by or on behalf of each party hereto or thereto or
written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of such signed signature page) that
such party has signed a counterpart of this Agreement and the other Loan Documents to which such party is a party.
(b) Organization Documents; Resolutions and Certificates.
Receipt by the Administrative Agent of:
(i) a
certificate of the secretary or assistant secretary of each Loan Party, attaching and certifying copies of such Loan Partyβs
Organization Documents and resolutions of its board of directors (or equivalent governing body), authorizing the execution, delivery
and performance of the Loan Documents to which it is a party and certifying the name, title and true signature of each officer of such
Loan Party executing the Loan Documents to which it is a party; and
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(ii) certified
copies of the articles or certificate of incorporation, certificate of organization or limited partnership, or other registered
organizational documents of each Loan Party, together with certificates of good standing or existence, as may be available from the
secretary of state of the jurisdiction of organization of such Loan Party and each other jurisdiction where such Loan Party is
required to be qualified to do business as a foreign corporation.
(c) Opinions of Counsel. Favorable written
opinions of counsel to the Loan Parties addressed to the Administrative Agent, the Issuing Bank and each of the Lenders, and
covering such matters relating to the Loan Parties, the Loan Documents and the transactions contemplated therein in form and
substance satisfactory to the Administrative Agent.
(d) Officerβs Closing Certificate. A
certificate, dated the Closing Date and signed by a Responsible Officer of the Borrower, certifying that after giving effect to the
funding of any Revolving Loans on the Closing Date, the conditions specified in Sections 3.2(a) and (b) are satisfied as of the Closing Date.
(e) Required Consents and Approvals. The
Administrative Agent shall have received evidence that all approvals, consents, exemptions, authorizations, or other actions by, or
notices to, or filings with, any Governmental Authority in connection with the execution, delivery or performance by, or enforcement
against, any Loan Party of this Agreement or any other Loan Document have been obtained.
(f) Patriot Act; Anti-Money Laundering Laws; Beneficial
Ownership. The provision by the Loan Parties of all documentation and other information that the Administrative
Agent or such Lender requests in order to comply with its ongoing obligations under applicable βknow your customerβ and anti-money
laundering rules and regulations, including the Patriot Act and, if Borrower qualifies as a βlegal entity customerβ under the
Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to Borrower.
(g) Fees and Expenses. The Administrative Agent
shall have received payment of all fees, expenses and other amounts due and payable on or prior to the Closing Date, including
without limitation reimbursement or payment of all out-of-pocket expenses of the Administrative Agent and the Arrangers (including
reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower
hereunder, under any other Loan Document and under any agreement with the Administrative Agent or the Arrangers.
(h) Without
limiting the generality of the provisions of Section
3.1, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Credit Agreement shall
be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to
be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice
from such Lender prior to the Closing Date specifying its objection thereto.
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Section 3.2. Each Credit Event. The obligation of each
Lender to make a Loan on the occasion of any Borrowing and of the Issuing Bank to issue, amend, renew or extend any Letter of
Credit is subject to the satisfaction of the following conditions and in the case of an Incremental Term Loan being used to
finance a Limited Condition Acquisition, to Section
1.8:
(a) at
the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter
of Credit, as applicable, no Default or Event of Default shall exist;
(b) at
the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter
of Credit, as applicable, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and
correct in all material respects (other than those representations and warranties that are expressly qualified by a Material
Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects),
except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be
true and correct in all material respects (other than those representations and warranties that are expressly qualified by a
Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all
respects) as of such earlier date;
(c) the
Borrower shall have delivered the required Notice of Borrowing;
(d) to
the extent any 364 Day Bridge Senior Unsecured Indebtedness is outstanding, after giving effect to such Borrowing, the Borrower is
in compliance with clause (b) of the definition of 364 Day Bridge Senior Unsecured Indebtedness; and
(e) if
any Revolving Lender is a Defaulting Lender at the time of any request by the Borrower of a Borrowing of a Swingline Loan or the
issuance, amendment, renewal or extension of a Letter of Credit, as applicable, set forth in this Section 3.2, the Issuing Bank will not be required to issue, amend
or increase any Letter of Credit and the Swingline Lender will not be required to make any Swingline Loans, unless they are
satisfied that 100% of the related LC Exposure and Swingline Exposure is fully covered or eliminated pursuant to Section 2.26.
Each
Borrowing and each issuance, amendment, extension or renewal of any Letter of Credit shall be deemed to constitute a representation
and warranty by the Borrower on the date thereof as to the matters specified in paragraphs (a) and (b) of this Section 3.2.
Section 3.3. Delivery of Documents. All of the Loan
Documents, certificates, legal opinions and other documents and papers referred to in this Article III, unless otherwise specified, shall be delivered to the
Administrative Agent for the account of each of the Lenders and in sufficient counterparts or copies for each of the Lenders and
shall be in form and substance satisfactory in all respects to the Administrative Agent.
Section 3.4. Termination of Existing Credit Facility.
Upon this Agreement becoming effective, the Existing Credit Agreement shall automatically terminate (other than those provisions
that by their terms survive termination of the Existing Credit Agreement), all commitments of the lenders thereunder to fund
additional advances shall terminate automatically, and all amounts outstanding thereunder, together with all accrued and unpaid
interest, fees and other amounts shall be automatically paid in full by the initial Borrowing hereunder.
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The Borrower represents and warrants to the Administrative Agent and each Lender as follows:
Section 4.1. Existence; Power. The Borrower and each
of its Restricted Subsidiaries (a) is duly organized, validly existing and in good standing as a corporation, partnership or
limited liability company under the Laws of the jurisdiction of its organization, (b) has all requisite power and authority to
carry on its business as now conducted, (c) is duly qualified to do business, and is in good standing, in each jurisdiction
where such qualification is required, except where a failure to be so qualified could not reasonably be expected to result in a
Material Adverse Effect, (d) have obtained and maintain in good standing without restriction all required licenses, permits,
authorizations, registrations, approvals and certificates of authority of each Governmental Authority necessary to the conduct
of their business, (e) to the extent prudent and customary in the industry in which it is engaged, have obtained and maintain in
good standing without restriction, accreditation from all applicable recognized accrediting agencies, (f) have implemented and
maintain a compliance program designed to provide effective internal controls to promote adherence to and to prevent and detect
material violations of Laws applicable to the Borrower and any of its Restricted Subsidiaries, including any applicable HMO
Regulations, Medicaid Regulations and Medicare Regulations and (g) have implemented and maintain policies consistent with HIPAA
and the HITECH Act on or before the date that any provision thereof becomes applicable to the Borrower or any Restricted
Subsidiary; except in each case referred to in clauses (d) β (g) hereof to the extent that failure to do so could not reasonably
be expected to have a Material Adverse Effect.
Section 4.2. Organizational Power; Authorization. The
execution, delivery and performance by each Loan Party of the Loan Documents to which it is a party are within such Loan Partyβs
organizational powers and have been duly authorized by all necessary organizational, and if required, shareholder, partner or
member, action. This Agreement has been duly executed and delivered by each Loan Party, and constitutes, and each other Loan
Document to which any Loan Party is party, when executed and delivered by such Loan Party, will constitute a legal, valid and
binding obligation of each Loan Party, enforceable against such Loan Party, in accordance with their respective terms, except as
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting the enforcement of
creditorsβ rights generally and by general principles of equity.
Section 4.3. Governmental Approvals; No Conflicts.
The execution, delivery and performance by each Loan Party of this Agreement, and by each Loan Party of the other Loan Documents
to which it is a party (a) do not require any consent or approval of, registration or filing with, or any action by, any
Governmental Authority, except those as have been obtained or made and are in full force and effect, (b) will not violate the
Organization Documents of any Loan Party or any Law applicable to the Borrower or any of its Restricted Subsidiaries or any
judgment, order or ruling of any Governmental Authority, (c) will not violate or result in a default under any indenture,
agreement or other instrument binding on the Borrower or any of its Restricted Subsidiaries or any of its assets or give rise to
a right thereunder to require any payment to be made by the Borrower or any of its Restricted Subsidiaries, (d) will not result
in the creation or imposition of any Lien on any asset of the Borrower or any of its Restricted Subsidiaries, except Liens (if
any) created under the Loan Documents, (e) will not result in a suspension or revocation of, or limitation on, any material
certificate of authority, license, permit, authorization or other approval applicable to the business, operations or properties
of the Borrower or any Restricted Subsidiary to the extent such suspension, revocation or limitation is material to the business
of the Borrower and its Restricted Subsidiaries, taken as a whole, or material adversely affect the ability of the Borrower and
its Restricted Subsidiaries, taken as a whole, to participate in, or contract with, any material Medical Reimbursement Program.
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Section 4.4. Financial Statements. The Borrower has
furnished to each Lender (a) the Audited Financial Statements and (b) the Interim Financial Statements. Such financial
statements fairly present the consolidated financial condition of the Borrower and its Subsidiaries as of such dates and the
consolidated results of operations for such periods in conformity with GAAP consistently applied, subject to year end audit
adjustments and the absence of footnotes in the case of the statements referred to in clause (b). The financial statements delivered pursuant to Section 5.1(a) and (b) have been prepared in accordance
with GAAP and present fairly (on the basis disclosed in the footnotes to such financial statements) the consolidated financial
condition, results of operations and cash flows of the Borrower and its Subsidiaries as of the dates thereof and for the
periods covered thereby. Since the date of the Audited Financial Statements, there have been no changes with respect to the
Borrower and its Subsidiaries which have had or could reasonably be expected to have, singly or in the aggregate, a Material Adverse Effect.
Section 4.5. Litigation and Environmental Matters.
(a) No litigation, investigation or proceeding of or before any arbitrators or Governmental Authorities is pending
against or, to the knowledge of any Responsible Officer of the Loan Parties, threatened against or affecting the Borrower or
any of its Restricted Subsidiaries (i) as to which there is a reasonable possibility of an adverse determination that could
reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect or (ii) which in any manner
draws into question the validity or enforceability of this Agreement or any other Loan Document.
(b) Neither the Borrower nor any of its Restricted Subsidiaries (i) has failed to comply with any Environmental Law
or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) has
become subject to any Environmental Liability, (iii) has received notice of any claim with respect to any Environmental
Liability or (iv) knows of any basis for any Environmental Liability, except, in each case, for such failures or Environmental
Liabilities that could not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(c) To the knowledge of the Responsible Officers of the Borrower, none of the Borrower or any Restricted
Subsidiary, nor any of their current respective officers, directors, or employees, have engaged (and no Responsible Officer of
a Loan Party has received written notice from a Contract Provider that such Contract Provider has engaged) in any activities
that constitute prohibited acts of fraud under Medicare Regulations or Medicaid Regulations where such activities have
resulted, or the Borrower has reasonably determined in good faith it could reasonably be expected to result, in a Material
Adverse Effect and the Borrower has not taken action within a reasonable period of time after discovery of such activities, to
suspend or remove such persons from responsibilities relating to such activities or to ensure that such activities are no
longer reasonably expected to result in a Material Adverse Effect.
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Section 4.6. Compliance with Laws and Agreements.
The Borrower and each Restricted Subsidiary is in compliance (and no Responsible Officer of any Loan Party has received
notice from a Contract Provider that such Contract Provider is not in compliance) with (a) all material Laws and all
judgments, decrees and orders of any Governmental Authority and (b) all indentures, agreements or other instruments binding
upon it or its properties, except where non-compliance, either individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. Without limiting the foregoing, current billing policies, arrangements,
protocols and instructions of each of the Borrower and its Restricted Subsidiaries comply in all material respects with
requirements of the Medical Reimbursement Programs and are currently administered by properly trained personnel.
Section 4.7. No Default.
(a) Neither the Borrower nor any Restricted Subsidiary is in default under or with respect to any Contractual
Obligation that could reasonably be expected to have a Material Adverse Effect.
(b) No Default has occurred and is continuing.
Section 4.8. Investment
Company Act, Etc.
(a) Neither the Borrower nor any of its Restricted Subsidiaries is an βinvestment companyβ or is βcontrolledβ by
an βinvestment companyβ, as such terms are defined in, or subject to regulation under, the Investment Company Act of 1940,
as amended.
(b) Neither the Borrower nor any of its Restricted Subsidiaries (other than any HMO Subsidiary or Insurance
Subsidiary) is subject to any other regulatory scheme limiting its ability to incur debt or requiring any approval or
consent from or registration or filing with, any Governmental Authority in connection therewith.
Section 4.9. Taxes. The Borrower and its
Restricted Subsidiaries and each other Person for whose taxes the Borrower or any Restricted Subsidiary could become liable
have timely filed or caused to be filed all federal, state and other material tax returns required to be filed by them, and
have paid all federal, state and other material taxes, assessments made against it or its property and all other taxes, fees
or other charges imposed on it or any of its property by any Governmental Authority, except where the same are currently
being contested in good faith by appropriate proceedings and for which the Borrower or such Restricted Subsidiary, as the
case may be, has set aside on its books adequate reserves in accordance with GAAP. The charges, accruals and reserves on
the books of the Borrower and its Restricted Subsidiaries in respect of such taxes are adequate, and no tax liabilities that
could be materially in excess of the amount so provided are anticipated.
Section 4.10. Margin Regulations. None
of the proceeds of any of the Loans or Letters of Credit will be used, directly or indirectly, for βpurchasingβ or
βcarryingβ any βmargin stockβ with the respective meanings of each of such terms under Regulation U or for any purpose that
violates the provisions of the Regulation T, U or X. Neither the Borrower nor its Restricted Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or
carrying βmargin stock.β
Section 4.11. ERISA. No ERISA Event
has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which
liability is reasonably expected to occur, could reasonably be expected to result in a Material Adverse Effect. The present
value of all accumulated benefit obligations under each Plan (based on the assumptions used for purposes of Statement of
Financial Standards No. 87) did not, as of the date of the most recent financial statements reflecting such amounts, exceed
the fair market value of the assets of such Plan, and the present value of all accumulated benefit obligations of all
underfunded Plans (based on the assumptions used for purposes of Statement of Financial Standards No. 87) did not, as of the
date of the most recent financial statements reflecting such amounts, exceed the fair market value of the assets of all such
underfunded Plans.
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Section 4.12. Ownership of Property.
(a) Each of the Borrower and its Restricted Subsidiaries has good title to, or valid leasehold
interests in, all of its real and personal property material to the operation of its business, including all such
properties reflected in the Audited Financial Statements or the most recent audited consolidated balance sheet of the
Borrower delivered pursuant to Section
5.1(a) or purported to have been acquired by the Borrower or any Restricted Subsidiary after said date
(except as sold or otherwise disposed of in the ordinary course of business), in each case free and clear of Liens not
permitted by this Agreement. All leases that individually or in the aggregate are material to the business or operations
of the Borrower and its Restricted Subsidiaries are valid and subsisting and are in full force.
(b) Each of the Borrower and its Restricted Subsidiaries owns, or is licensed, or otherwise has the
right, to use, all patents, trademarks, service marks, trade names, copyrights and other intellectual property material to
its business, and the use thereof by the Borrower and its Restricted Subsidiaries does not infringe in any material
respect on the rights of any other Person.
(c) The properties of the Borrower and its Restricted Subsidiaries are insured with financially sound
and reputable insurance companies which are not Affiliates of the Borrower, in such amounts with such deductibles and
covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in
localities where the Borrower or any applicable Restricted Subsidiary operates.
Section 4.13. Disclosure.
(a) Each Loan Party has disclosed to the Lenders all agreements, instruments, and corporate or other
restrictions to which it or any of its Restricted Subsidiaries is subject, and all other matters known to any of them,
that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. None of the
reports (including without limitation all reports that any Loan Party is required to file with the SEC), financial
statements, certificates or other information furnished by or on behalf of any Loan Party to the Administrative Agent or
any Lender in connection with the negotiation or syndication of this Agreement or any other Loan Document or delivered
hereunder or thereunder (as modified or supplemented by any other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the statements therein, taken as a whole, in
light of the circumstances under which they were made, not misleading; provided, that, with respect to projected financial information, the Borrower
represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the
time.
(b) As of the Closing Date, the information included in the Beneficial Ownership Certification, to the
extent any has been delivered, is true and correct in all respects.
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Section 4.14. Labor Relations.
All payments due from the Borrower or any of its Restricted Subsidiaries pursuant to the provisions of any collective
bargaining agreement have been paid or accrued as a liability on the books of the Borrower or any such Restricted
Subsidiary, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.
Section 4.15. Subsidiaries.
Schedule 4.15 sets forth (i)
the name of, the ownership interest of each Loan Party in, the jurisdiction of incorporation or organization of, and the
type of, each Subsidiary and identifies each Subsidiary that is a Loan Party, in each case as of the Closing Date and
(ii) whether such Subsidiary is an Insurance Subsidiary, HMO Subsidiary or Unrestricted Subsidiary. All issued and
outstanding Capital Stock of the Borrower and each of its Restricted Subsidiaries is duly authorized and validly issued,
fully paid, non-assessable, as applicable, and free and clear of all Liens other than those in favor of the
Administrative Agent, for the benefit of the holders of the Obligations. All such securities were issued in compliance
with all applicable state and federal Laws concerning the issuance of securities. As of the Closing Date, all of the
issued and outstanding Capital Stock of each of the Subsidiaries was owned by the Persons and in the amounts set forth
on Schedule 4.15. Except as
set forth on Schedule 4.15,
as of the Closing Date, there were no pre-emptive or other outstanding rights, options, warrants, conversion rights or
other similar agreements or understandings for the purchase or acquisition of any Capital Stock of the Borrower or any
of its Restricted Subsidiaries.
Section 4.16. Solvency.
After giving effect to the execution and delivery of the Loan Documents, the making of the Loans under this Agreement,
the Borrower is Solvent and the Loan Parties are Solvent on a consolidated basis.
Section 4.17. Licensing and
Accreditation. Except where the failure to do so could not reasonably be expected to have a Material
Adverse Effect, each of the Borrower and the Restricted Subsidiaries, and to the knowledge of the Responsible Officers
of the Loan Parties, each Contract Provider (i) has obtained (or been duly assigned) all required certificates of need
or determinations of need as required by the relevant state Governmental Authority for the acquisition, construction,
expansion of, investment in or operation of its businesses as currently operated; (ii) has obtained and maintains
accreditation from one or more generally recognized accreditation agencies where such accreditation is customary in the
industry in which it is engaged; (iii) in the case of each HMO Subsidiary, has entered into and maintains in good
standing its contract with CMS or such other agreement to be able to provide managed health care services to Medicare or
Medicaid; and (iv) has taken all necessary action to obtain, preserve and maintain each certificate of authority,
license, permit, authorization and other approval of any Governmental Authority required for the conduct of its business
and material to the business of the Borrower and its Restricted Subsidiaries taken as a whole, and all of such
certificates, licenses, permits, authorizations or approvals are in full force and effect and have not been revoked or
suspended or otherwise limited, including action to obtain, preserve and maintain with respect to each HMO Subsidiary
all certificates of authority, licenses, permits, authorizations and other approvals required under the HMO Regulations
or other regulations issued by the applicable Governmental Authority, including approvals required to ensure that such
HMO Subsidiary and Insurance Subsidiary is eligible for all reimbursements available under the HMO Regulations or other
regulations issued by the applicable Governmental Authority, and all of such certificates, licenses, permits,
authorizations or approvals are in full force and effect and have not been revoked or suspended or otherwise limited.
To the knowledge of the Responsible Officers of the Loan Parties, each Contract Provider is duly licensed (where license
is required) by each state or state agency or commission, or any other Governmental Authority having jurisdiction over
the provisions of such services by such Person in the locations in which the Loan Parties conduct business, required to
enable such Person to provide the professional services provided by such Person and otherwise as is necessary to enable
the Loan Parties to operate as currently operated and as presently contemplated to be operated except to the extent that
the failure to do so could not reasonably be expected to have a Material Adverse Effect. To the knowledge of the
Responsible Officers of the Loan Parties, all such required licenses are in full force and effect on the date hereof and
have not been revoked or suspended or otherwise limited except to the extent that the failure to do so could not
reasonably be expected to have a Material Adverse Effect.
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Section 4.18. Anti-Corruption Laws
and Sanctions. The Borrower has implemented and maintains in effect policies and procedures designed to ensure
compliance in all material respects by the Borrower, its Subsidiaries and their respective directors, officers,
employees and agents with Anti-Corruption Laws, and the Borrower, its Subsidiaries and their respective directors,
officers and employees and to the knowledge of the Borrower its agents, are in compliance with Anti-Corruption Laws.
None of (a) the Borrower, any Subsidiary or any of their respective directors, officers or employees, or (b) to the
knowledge of the Borrower, any agent of the Borrower or any Subsidiary that will act in any capacity in connection
with or benefit from the credit facilities established hereby, is a Sanctioned Person. No Borrowing or Letter of
Credit, use of proceeds or other Transactions will violate Anti-Corruption Laws or applicable Sanctions.
Section 4.19. Subordination of
Subordinated Debt. This Agreement, and all amendments, modifications, extensions, renewals, refinancings
and refundings hereof, constitute the βSenior Credit Agreementβ within the meaning of the applicable Subordinated Debt
Document; this Agreement, together with each of the other Loan Documents and all amendments, modifications,
extensions, renewals, refinancings and refundings hereof and thereof, constitute βSenior Loan Documentsβ within the
meaning of the applicable Subordinated Debt Document; and the Loans and all other Obligations of the Borrower to the
Lenders and the Administrative Agent under this Agreement and all other Loan Documents, and all amendments,
modifications, extensions, renewals, refinancings or refundings of any of the foregoing, constitute βSenior
Indebtednessβ of the Borrower within the meaning of the applicable Subordinated Debt Document, and the holders thereof
from time to time shall be entitled to all of the rights of a holder of βSenior Indebtednessβ pursuant to the
applicable Subordinated Debt Document.
Section 4.20. Medicare and Medicaid
Notices and Filings Related to Business. Except where the failure to do so could not reasonably be expected to
have a Material Adverse Effect, each of the Borrower and the HMO Subsidiaries has timely filed (a) all reports and
other filings required to be filed in connection with the Medicare and Medicaid programs in which they participate,
and all such reports and filings are true and complete in all material respects, and (b) all material reports, data
and other information required by any other Governmental Authority with authority to regulate it or its business or
operations in any manner. Except to the extent any such action could not reasonably be expected to result in a
Material Adverse Effect, (i) there are no claims, actions, proceedings or appeals pending (and none of the Borrower or
any Restricted Subsidiary has made any filing that would result in any claims, actions, proceedings or appeals) before
any Governmental Authority with respect to any Medicare or Medicaid reports or claims filed by the Borrower or any
Restricted Subsidiary on or before the date hereof, or with respect to any adjustments, denials, recoupments or
disallowances by any intermediary, carrier, other insurer, commission, board or agency in connection with any cost
reports or claims, and (ii) no validation review, survey, inspection, audit, investigation or program integrity review
related to the Borrower or any Restricted Subsidiary has been conducted by any Governmental Authority or government
contractor in connection with Medicare or Medicaid, and no such reviews are scheduled, pending or, to the knowledge of
the Borrower, threatened against or affecting the Borrower or any Restricted Subsidiary.
Section 4.21. No Affected Financial
Institutions. No Loan Party is an Affected Financial Institution.
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Each Loan Party covenants and agrees that so long as any Lender has a Commitment hereunder, any
Obligation remains unpaid or outstanding, or any Letter of Credit shall remain outstanding, such Loan Party shall and
shall cause each Restricted Subsidiary to:
Section 5.1. Financial
Statements and Other Information. Deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year, a
copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a
consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related
consolidated statements of income or operations, changes in stockholdersβ equity and cash flows (together with all
footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in
comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by independent
public accountants of nationally recognized standing (without a βgoing concernβ or like qualification, exception or
explanation and without any qualification or exception as to scope of such audit) to the effect that such financial
statements present fairly in all material respects the financial condition and the results of operations of the
Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the
examination by such accountants in connection with such consolidated financial statements has been made in
accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end of each Fiscal Quarter, an
unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and
the related unaudited consolidated statements of income or operations, changes in stockholdersβ equity and cash
flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year,
setting forth in each case in comparative form the figures for the corresponding quarter and the corresponding
portion of Borrowerβs previous Fiscal Year, all in reasonable detail and prepared in accordance with GAAP, such
consolidated statements to be certified by the chief executive officer, chief financial officer, treasurer or
controller of the Borrower as presenting fairly the financial condition, results of operations, stockholdersβ equity
and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit
adjustments and the absence of footnotes;
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(c) concurrently with the delivery of the financial statements referred to in clauses (a) and (b) above, a Compliance
Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i)
certifying as to whether there exists a Default or Event of Default on the date of such certificate, and if a
Default or an Event of Default then exists, (ii) setting forth in reasonable detail calculations demonstrating
compliance with the financial covenants set forth in Article VI, (iii) certifying that as of the date thereof, all
representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all
material respects (other than those representations and warranties that are expressly qualified by a Material
Adverse Effect or other materiality, in which case such representations and warranties are true and correct in all
respects), except to the extent that such representations and warranties specifically refer to an earlier date, in
which case they are true and correct in all material respects (other than those representations and warranties
that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations
and warranties shall be true and correct in all respects) as of such earlier date, (iv) stating whether any change
in GAAP or the application thereof has occurred since the date of the Audited Financial Statements (or, if later,
the date of the most recent audited financial statements delivered pursuant to Section 5.1(a)), and if any change
has occurred, specifying the effect of such change on the financial statements accompanying such Compliance
Certificate, (v) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or
Fiscal Quarter from the Subsidiaries identified to the Lenders on the Closing Date or as of the most recent Fiscal
Year or Fiscal Quarter, as the case may be and (vi) if the Borrower has designated any of its Subsidiaries as
Unrestricted Subsidiaries, then the quarterly and annual financial information required by clauses (a) and (b) of this Section 5.1 shall include a
reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, of
the financial condition and results of operations of the Borrower and its Restricted Subsidiaries separate from
the financial condition and results of operations of the Unrestricted Subsidiaries of the Borrower.
(d) as soon as available and in any event within 60 days after the end of the Fiscal
Year, a pro forma budget for the succeeding Fiscal Year, containing (i) an income statement, balance sheet and
statement of cash flow of the Borrower and its Restricted Subsidiaries and (ii) a statement of cash flow of the
Borrower only;
(e) promptly after the same become publicly available, copies of all periodic and
other reports, proxy statements and other materials filed with the SEC, or with any national securities exchange,
or distributed by the Borrower to its stockholders generally, as the case may be;
(f) as soon as available and in any event within 15 days of the required date for
delivery to the applicable state after the end of each fiscal year of the Borrower, annual financial statements of
each HMO Subsidiary and Insurance Subsidiary as filed with the applicable HMO Regulator;
(g) as soon as available and in any event within 15 days of the required date for
delivery to the applicable state after the end of each fiscal quarter of the Borrower, quarterly financial
statements of each HMO Subsidiary and Insurance Subsidiary as filed with the applicable HMO Regulator; and
(h) promptly following any request therefor, such other information regarding the
results of operations, business affairs and financial condition of the Borrower or any Subsidiary as the
Administrative Agent or any Lender may reasonably request.
If at any time the Borrower is required to file periodic reports under Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934, as amended, Borrower may satisfy its obligation to deliver the
financial statements referred to in clauses (a) and (b) above by delivering such financial statements by electronic
mail to such e-mail addresses as the Administrative Agent and Lenders shall have provided to Borrower from time to
time.
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Section 5.2. Notices
of Material Events. Furnish to the Administrative Agent and each Lender prompt written notice of
the following:
(a) the occurrence of any
Default or Event of Default;
(b) the filing or commencement of, or any material development
in, any action, suit, investigation or proceeding by or before any arbitrator or Governmental Authority against
or, to the knowledge of the Borrower, affecting the Borrower or any Restricted Subsidiary which, if adversely
determined, could reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any event or any other development by
which the Borrower or any of its Restricted Subsidiaries (i) fails to comply with any Environmental Law or to
obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii)
becomes subject to any Environmental Liability, (iii) receives notice of any claim with respect to any
Environmental Liability, or (iv) becomes aware of any basis for any Environmental Liability and in each of the
preceding clauses, which individually or in the aggregate, could reasonably be expected to result in a Material
Adverse Effect;
(d) the occurrence of any ERISA Event that alone, or together
with any other ERISA Events that have occurred, could reasonably be expected to result in liability of the
Borrower and its Restricted Subsidiaries in an aggregate amount exceeding $100,000,000;
(e) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect;
(f) not later than five (5) Business Days after receipt of
official written notice, any development that has resulted in, or could reasonably be expected to result in, an
Exclusion Event, including any notice by the OIG of exclusion or proposed exclusion of the Borrower or any
Restricted Subsidiary from any Medical Reimbursement Program in which it participates, and any other development
that has resulted in, or could reasonably be expected to result in, a Material Adverse Effect;
(g) not later than five (5) Business Days after receipt of
official written notice, commencement of any material non-routine audit or investigation of the Borrower or any
Restricted Subsidiary by any regulatory authority, including any Governmental Authority or HMO Regulator, and
commencement of any proceeding or other action against the Borrower or any Restricted Subsidiary, in each case,
that could reasonably be expected to result in a suspension, revocation or termination of any contract of the
Borrower or any Restricted Subsidiary with respect to a Medical Reimbursement Program to the extent such
suspension, revocation or termination is material to the Borrower and its Restricted Subsidiaries taken as a
whole;
(h) receipt by the Borrower or any Restricted Subsidiary of (i)
any notice of suspension or forfeiture of any material certificate of authority or similar license of any HMO
Subsidiary to the extent such suspension or forfeiture is material to the Borrower and its Restricted
Subsidiaries, taken as a whole and (ii) to the extent permitted by law, rule or regulation, any other material
notice of deficiency, compliance order or adverse report issued by any regulatory authority, including any HMO
Regulator, or private insurance company pursuant to a provider agreement that, if not promptly complied with or
cured, could reasonably be expected to result in the suspension or forfeiture of any certification, license,
permit, authorization or other approval necessary for such HMO Subsidiary to carry on its business as then
conducted or in the termination of any insurance or reimbursement program then available to any HMO Subsidiary,
in each case to the extent such suspension, termination or forfeiture is material to the Borrower and its
Restricted Subsidiaries, taken as a whole; and
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(i) following any request therefor, provide information and
documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with
applicable βknow your customerβ and anti-money-laundering rules and regulations, including, without
limitation, the Patriot Act and the Beneficial Ownership Regulation.
Each notice delivered under this Section 5.2 shall be accompanied by a written statement of a Responsible
Officer setting forth the details of the event or development requiring such notice and any action taken or
proposed to be taken with respect thereto.
Section 5.3. Existence;
Conduct of Business.
(a) Do or cause to be done all things necessary to preserve, renew
and maintain in full force and effect its legal existence and its respective rights, licenses, permits,
privileges, franchises, patents, copyrights, trademarks and trade names material to the conduct of its
business; provided,
that nothing in this Section
5.3 shall prohibit any merger, consolidation, liquidation or dissolution permitted under Section 7.3; and
(b) Engage in the business of the type conducted by the Borrower
and its Restricted Subsidiaries on the date hereof and businesses reasonably related thereto.
Section 5.4. Compliance
with Laws, Etc. Comply with all Laws applicable to its business and properties, including
without limitation, all Environmental Laws, ERISA, Titles XVIII and XIX of the Social Security Act, Medicare
Regulations, Medicaid Regulations, the Anti-Kickback Statute, self-referral law requirements, including the
requirements of the Xxxxx Law, HMO Regulations, HIPAA, the HITECH Act, and OSHA, except where the failure to
do so, either individually or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect.
Section 5.5. Payment
of Obligations. Pay and discharge at or before maturity, all of its obligations and
liabilities (including without limitation all taxes, assessments and other governmental charges, levies and
all other claims that could result in a statutory Lien) before the same shall become delinquent or in default,
except where (a) the validity or amount thereof is being contested in good faith by appropriate proceedings,
(b) the Borrower or such Restricted Subsidiary has set aside on its books adequate reserves with respect
thereto in accordance with GAAP and (c) the failure to make payment pending such contest could not reasonably
be expected to result in a Material Adverse Effect.
Section 5.6. Books
and Records. Keep proper books of record and account in which full, true and correct entries
shall be made of all dealings and transactions in relation to its business and activities to the extent
necessary to prepare the consolidated financial statements of the Borrower and its Subsidiaries in conformity
with GAAP.
Section 5.7. Visitation,
Inspection, Etc. Permit any representative of the Administrative Agent or any Lender, to visit
and inspect its properties, to examine its books and records and to make copies and take extracts therefrom,
and to discuss its affairs, finances and accounts with any of its officers and with its independent certified
public accountants, all at such reasonable times and as often as the Administrative Agent or any Lender may
reasonably request after reasonable prior notice to the Borrower; provided, if a Default or an Event of Default has occurred
and is continuing, no prior notice shall be required.
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Section 5.8. Maintenance of Properties; Insurance.
(a) Keep and maintain all property
material to the conduct of its business in good working order and condition, ordinary wear and tear
excepted; and
(b) Maintain with financially sound and
reputable insurance companies not Affiliates of the Borrower, insurance with respect to its properties and
business, and the properties and business of its Restricted Subsidiaries, against loss, damage and risk of
the kinds customarily insured against by companies in the same or similar businesses operating in the same
or similar locations.
Section 5.9. Use of Proceeds; Margin Regulations. Use the proceeds of all Revolving Loans
to refinance Indebtedness under the Existing Credit Agreement, finance working capital needs, Permitted
Acquisitions, capital expenditures and for other general corporate purposes of the Borrower and its
Subsidiaries. No part of the proceeds of any Loan will be used, whether directly or indirectly, for any
purpose that would violate any rule or regulation of the Board of Governors of the Federal Reserve System,
including Regulations T, U or X. All Letters of Credit will be used for general corporate purposes.
The Borrower will not request any Borrowing or Letter of Credit, and the Borrower
shall not use, and the Borrower shall ensure that its Subsidiaries and its or their respective directors,
officers, employees and agents shall not use, the proceeds of any Borrowing or Letter of Credit (i) in
furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or
anything else of value, to any Person in violation of any Anti-Corruption Laws, (ii) for the purpose of
funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person,
or in any Sanctioned Country or (iii) in any manner that would result in the violation of any Sanctions
applicable to any party hereto.
Section 5.10. Guarantees by Material Domestic Subsidiaries. The Borrower shall notify the
Administrative Agent and the Lenders of any Material Domestic Subsidiary that exists as of the date for
which the Borrower delivers financial statements pursuant to Section 5.1(a) or (b) and, within thirty (30) Business Days (or
such longer period approved by the Administrative Agent in its sole discretion) after delivery of such
financial statements, cause such Material Domestic Subsidiary to become a Guarantor. A Material Domestic
Subsidiary shall become a Guarantor by executing and delivering to the Administrative Agent a Guarantor
Joinder Agreement in form and substance reasonably satisfactory to the Administrative Agent, accompanied by
(a) all other Loan Documents related thereto, (b) certified copies of Organization Documents, appropriate
authorizing resolutions of the board of directors of such Subsidiaries, and opinions of counsel comparable
to those delivered pursuant to Section
3.1(c), and (c) such other documents as the Administrative Agent may reasonably request.
Notwithstanding the foregoing, upon the guarantee by any Subsidiary of any Indebtedness incurred pursuant to
Section 7.1(k),
concurrently with the provision of such guarantee, to the extent such Subsidiary is not a Guarantor
hereunder, cause such Subsidiary to become a Guarantor by complying with this Section 5.10.
Section 5.11. Material Licenses. Obtain and maintain all Material Licenses for each
Restricted Subsidiary.
Section 5.12. Unrestricted Subsidiaries.
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(a) The Borrower may designate any of
its Restricted Subsidiaries to be an Unrestricted Subsidiary if that designation would not cause a Default
and if that designation otherwise is consistent with this definition of an Unrestricted Subsidiary. If a
Restricted Subsidiary is designated as an Unrestricted Subsidiary, the Fair Market Value of all
outstanding Investments owned by the Borrower and its Restricted Subsidiaries in the Subsidiary properly
designated shall be deemed to be an Investment made as of the time of the designation and will either
reduce the amount available for Restricted Payments under Section 7.5 or be an Investment permitted under Section 7.4, as
determined by the Borrower; provided that no designation of an Unrestricted Subsidiary may be made in
reliance on Section
7.5(c). Such designation will only be permitted if the Investment would be permitted at
that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Any designation of a Subsidiary of
the Borrower as an Unrestricted Subsidiary shall be evidenced by the Borrowerβs delivery to the
Administrative Agent a certified copy of a resolution of the board of directors of the Borrower giving
effect to such designation and a certificate of a Responsible Officer certifying that such designation
complied with the preceding conditions and was permitted by Section 7.5. If, at any time, any Unrestricted
Subsidiary would fail to meet the requirements of an Unrestricted Subsidiary, it will thereafter cease to
be an Unrestricted Subsidiary for purposes of this Agreement, and any Indebtedness of such Subsidiary will
be deemed to be incurred by a Restricted Subsidiary of the Borrower as of such date and, if such
Indebtedness is not permitted to be incurred as of such date under Section 7.1, the Borrower will be in
default of Section 7.1
unless such Unrestricted Subsidiary is made to meet such requirements.
(c) The Borrower may at any time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary of the Borrower; provided that such
designation will be deemed to be an incurrence of Indebtedness and Liens by a Restricted Subsidiary of the
Borrower of any outstanding Indebtedness and Liens of such Unrestricted Subsidiary, and such designation
will only be permitted if (x) such Indebtedness and Liens are permitted under Sections 7.1 and 7.2, (y) the
Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating
that after giving effect to such designation on a Pro Forma Basis, the Loan Parties would be in compliance
with the financial covenants set forth in Article VI recomputed as of the end of the period of the four
Fiscal Quarters most recently ended for which the Borrower has delivered financial statements pursuant to
Section 5.1(a)
or (b); and
(z) no Default or Event of Default would be in existence following such designation.
Each Loan Party covenants and agrees that so long as any Lender has a Commitment
hereunder, any Obligation remains unpaid or outstanding, or any Letter of Credit shall remain outstanding,
no Loan Party shall, nor shall it permit any Restricted Subsidiary to, directly or indirectly:
Section 6.1. Consolidated Net Leverage Ratio. Permit the Consolidated Net
Leverage Ratio as of the end of each Fiscal Quarter, commencing with the Fiscal Quarter ending June 30,
2020, to be greater than 4.00:1.0.
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Section 6.2. Consolidated Interest Coverage Ratio. Permit the Consolidated
Interest Coverage Ratio as of the end of each Fiscal Quarter, commencing with the Fiscal Quarter ending
June 30, 2020, to be less than 3.50:1.00.
Each Loan Party covenants and agrees that so long as any Lender has a
Commitment hereunder, any Obligation remains unpaid or outstanding, or any Letter of Credit shall remain
outstanding, no Loan Party shall, nor shall it permit any Restricted Subsidiary to, directly or
indirectly:
Section 7.1. Indebtedness and Preferred Equity. Create, incur, assume or
suffer to exist any Indebtedness, except:
(a) Indebtedness created pursuant to
the Loan Documents;
(b) Indebtedness of the Borrower or
any Restricted Subsidiary existing on the date hereof and set forth on Schedule 7.1 and extensions, renewals and
replacements of any such Indebtedness that do not increase the outstanding principal amount thereof
(immediately prior to giving effect to such extension, renewal or replacement) or shorten the maturity
or the weighted average life thereof;
(c) Indebtedness of the Borrower or
any Restricted Subsidiary incurred to finance the acquisition, construction or improvement of any fixed
or capital assets, including Finance Lease Liabilities; provided, that such Indebtedness is incurred prior to
or within 90 days after such acquisition or the completion of such construction or improvements or
extensions, renewals, and replacements of any such Indebtedness that do not increase the outstanding
principal amount thereof (immediately prior to giving effect to such extension, renewal or replacement)
or shorten the maturity or the weighted average life thereof; provided further, that the aggregate
principal amount of such Indebtedness does not exceed at any time outstanding, the greater of (i)
$150,000,000 and (ii) 3.0% of the value of Consolidated Total Assets;
(d) Indebtedness of the Borrower
owing to any Restricted Subsidiary and of any Restricted Subsidiary owing to the Borrower or any other
Restricted Subsidiary; provided,
that any such Indebtedness that is owed by the Borrower or a Restricted Subsidiary that is not a Loan
Party shall be subject to Section
7.4;
(e) Guarantees by the Borrower of
Indebtedness of any Restricted Subsidiary and by any Restricted Subsidiary of Indebtedness of the
Borrower or any other Restricted Subsidiary; provided, that Guarantees by any Loan Party of Indebtedness of
any Restricted Subsidiary that is not a Loan Party shall be subject to Section 7.4;
(f) Hedging Obligations permitted by
Section 7.10;
(g) Indebtedness under letters of
credit not issued under this Agreement in an aggregate amount not to exceed, at the time of incurrence
of any such Indebtedness, $150,000,000 (the βAdditional Letters of Creditβ);
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(h) the Existing Notes;
(i) Indebtedness of Persons
acquired in Permitted Acquisitions (the βAcquired Indebtednessβ) in an aggregate amount not to exceed, at the
time of incurrence of any such Acquired Indebtedness, the greater of (A) $75,000,000 and (B) 1.5% of
Consolidated Total Assets, provided that such Acquired Indebtedness (i) shall exist prior to the
applicable Permitted Acquisition and shall not have been incurred in anticipation of the applicable
Permitted Acquisition, (ii) neither the Borrower nor any of its Restricted Subsidiaries that was not
an obligor with respect to such Indebtedness prior to such Person becoming a Restricted Subsidiary of
the Borrower shall become an obligor for such Indebtedness and (iii) such Indebtedness shall not be
secured by a Lien on any Property of the Borrower or any Restricted Subsidiary that did not secure
such Indebtedness prior to such Person becoming a Restricted Subsidiary of the Borrower;
(j) other secured Indebtedness of
the Borrower and its Restricted Subsidiaries, provided that, (i) no Default or Event of Default shall have
occurred and be continuing or result from the incurrence of such Indebtedness, (ii) the documents
governing such secured Indebtedness shall not contain covenants (including quantitative covenants and
financial covenants) which are more restrictive than the covenants contained in this agreement, (iii)
the final maturity date, any mandatory prepayment or mandatory redemption of such secured Indebtedness
shall be no earlier than ninety-one (91) days after the Latest Maturity Date or the latest maturity
date applicable to any Incremental Term Loan, (iv) the weighted average life to maturity of such
secured Indebtedness shall not be shorter than the weighted average life to maturity of any
Incremental Term Loan outstanding as of the time of the issuance thereof and (v) the aggregate
principal amount of such Indebtedness shall not exceed, at the time of incurrence of any such
Indebtedness, the greater of (A) $75,000,000 and (B) 2.5% of the value of Consolidated Total Assets;
(k) Permitted Subordinated Debt and
unsecured Indebtedness of the Borrower and its Restricted Subsidiaries, provided that (i) after giving effect
thereto on a Pro Forma Basis the Borrower and its Restricted Subsidiaries are in compliance with the
financial covenants as set forth in Article VI recomputed as of the end of the period of the four
Fiscal Quarters most recently ended for which the Borrower has delivered financial statements pursuant
to Section 5.1(a)
or (b),
(ii) no Default or Event of Default shall have occurred and be continuing or result from the
incurrence of such Indebtedness, (iii) the documents governing such unsecured Indebtedness shall not
contain covenants (including quantitative covenants and financial covenants) which are more restricted
than the covenants contained in this Agreement, (iv) the final maturity date, any mandatory prepayment
or mandatory redemption of such unsecured Indebtedness shall be no earlier than ninety-one (91) days
after the Latest Maturity Date or the latest maturity date applicable to any Incremental Term Loan and
(v) the weighted average life to maturity of such unsecured Indebtedness shall not be shorter than the
weighted average life to maturity of any Incremental Term Loan outstanding as of the time of the
issuance thereof; provided,
that clauses (iv) and (v) shall not apply to Bridge Senior Unsecured Indebtedness; and
(l) the 364 Day Bridge Senior
Unsecured Indebtedness.
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Section 7.2. Negative Pledge. Create, incur, assume or suffer
to exist any Lien on any of its assets or property now owned or hereafter acquired or, except:
(a) Liens securing the
Obligations pursuant to the Loan Documents (if any);
(b) Permitted Encumbrances;
(c) any Liens on any property or
assets of the Borrower or its Restricted Subsidiaries existing on the Closing Date set forth on Schedule 7.2;
provided,
that such Lien shall not apply to any other property or asset of the Borrower or any Restricted
Subsidiary;
(d) purchase money Liens upon or
in any fixed or capital assets to secure the purchase price or the cost of construction or
improvement of such fixed or capital assets or to secure Indebtedness incurred solely for the
purpose of financing the acquisition, construction or improvement of such fixed or capital assets
(including Liens securing any Finance Lease Liabilities); provided, that (i) such Lien secured
Indebtedness permitted by Section 7.1(c), (ii) such Lien attaches to such asset concurrently or within
90 days after the acquisition, improvement or completion of the construction thereof, (iii) such
Lien does not extend to any other asset; and (iv) the Indebtedness secured thereby does not exceed
the cost of acquiring, constructing or improving such fixed or capital assets;
(e) extensions, renewals, or
replacements of any Lien referred to in paragraphs (a) through (d) of this Section 7.2; provided,
that the principal amount of the Indebtedness secured thereby is not increased and that any such
extension, renewal or replacement is limited to the assets originally encumbered thereby;
(f) Liens securing Acquired
Indebtedness permitted under Section 7.1(i), provided that (i) such Liens do not at any time encumber any
property other than property of the Person acquired in the applicable Permitted Acquisition at the
time of such Permitted Acquisition and (ii) such Liens shall exist prior to the applicable Permitted
Acquisition and shall not be incurred in anticipation of the applicable Permitted Acquisition;
(g) Liens securing Indebtedness
permitted by Section
7.1(j);
(h) Liens in cash and Permitted
Investments securing the reimbursement and related obligations under Additional Letters of Credit;
(i) normal and customary rights
of setoff upon deposits of cash in favor of banks or other depository institutions; and
(j) customary escrow arrangements
and segregated accounts (to the extent such segregated account is deemed to have incurred an
encumbrance in connection with any covenants applicable to the proceeds contained in such segregated
account), in each case, permitted by the definition of Specified Cash.
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Section 7.3. Fundamental Changes.
(a) Merge into or consolidate
into any other Person, or permit any other Person to merge into or consolidate with it, or sell,
lease, transfer or otherwise dispose of (in a single transaction or a series of transactions) all
or substantially all of its assets (in each case, whether now owned or hereafter acquired) or any
line of business or all or substantially all of the stock of any of its Restricted Subsidiaries
(in each case, whether now owned or hereafter acquired) or liquidate or dissolve; provided,
that if at the time thereof and immediately after giving effect thereto, no Default or Event of
Default shall have occurred and be continuing, (i) the Borrower or any Restricted Subsidiary may
merge with a Person pursuant to a Permitted Acquisition if the Borrower (or such Restricted
Subsidiary if the Borrower is not a party to such merger) is the surviving Person, (ii) any
Restricted Subsidiary may merge into another Restricted Subsidiary, provided, that if any party to such
merger is a Guarantor, the Guarantor shall be the surviving Person, (iii) any Restricted
Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its
assets to any Loan Party, (iv) any Restricted Subsidiary (other than a Guarantor) may liquidate or
dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the
best interests of the Borrower and is not materially disadvantageous to the Lenders and (v) any
HMO Subsidiary and Insurance Subsidiary may merge with any other HMO Subsidiary, Insurance
Subsidiary or Subsidiary of an HMO Subsidiary or Insurance Subsidiary; provided that (x) its assets
are all disposed of pursuant to Section 2.12(a) and (y) any such merger involving a Person that is
not a wholly-owned Restricted Subsidiary immediately prior to such merger shall not be permitted
unless also permitted by Section 7.4.
(b) Engage in any business
other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the
date hereof and businesses reasonably related thereto.
Section 7.4. Investments, Loans, Etc. Make any Investment,
except:
(a) Investments (other than
Permitted Investments) existing on the date hereof and set forth on Schedule 7.4 (including Investments
in Subsidiaries);
(b) Permitted Investments;
(c) Investments in any Person
that is a Loan Party prior to giving effect to such Investment;
(d) Investments by any
Restricted Subsidiary that is not a Loan Party in any other Restricted Subsidiary that is not a
Loan Party;
(e) Guarantees by Borrower or
any Restricted Subsidiary constituting Indebtedness permitted by Section 7.1;
(f) Hedging Transactions
permitted by Section
7.10;
(g) Permitted Acquisitions;
(h) Investments in any HMO
Subsidiary or Insurance Subsidiary (i) reasonably related to causing such HMO Subsidiary or
Insurance Subsidiary to comply with (A) minimum statutory capital requirements applicable to such
HMO Subsidiary or Insurance Subsidiary or (B) the minimum amount of capital required to be
maintained under Material Contracts applicable to such HMO Subsidiary or Insurance Subsidiary or
(ii) in connection with a Permitted Acquisition, but solely to extent necessary for such HMO
Subsidiary or Insurance Subsidiary to consummate such Permitted Acquisition;
83
(i) Guarantees of Contractual
Obligations of any HMO Subsidiary or Excluded Subsidiary entered into in the ordinary course of
business; and
(j) other Investments which
in the aggregate do not exceed the greater of (i) $60,000,000 or (ii) 2.0% of Consolidated Total
Assets at any time outstanding.
Section 7.5. Restricted Payments.
Declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except
for:
(a) dividends payable by the
Borrower solely in shares of any class of its common stock;
(b) Restricted Payments, of
the type referred to in clause (a) of such definition, made by any Restricted Subsidiary to
Persons that own Capital Stock in such Restricted Subsidiary, on a pro rata basis according to
their respective holdings of the type of Capital Stock in respect of which such Restricted
Payment is being made with any other shareholders if such Restricted Subsidiary is not wholly
owned by the Borrower and other wholly owned Restricted Subsidiaries;
(c) any Restricted Payment
(other than Restricted Investments in Unrestricted Subsidiaries), so long as, at the time of
such Restricted Payment (i) no Default or Event of Default has occurred and is continuing and
(ii) after giving effect to such Restricted Payment on a Pro Forma Basis (x) the Loan Parties
would be in compliance with the financial covenants set forth in Article VI recomputed as of the
end of the period of the four Fiscal Quarters most recently ended for which the Borrower has
delivered financial statements pursuant to Section 5.1(a) or (b) and (y) the Consolidated Net
Leverage Ratio recomputed as of the end of the period of the four Fiscal Quarters most recently
ended for which the Borrower has delivered financial statements pursuant to Section 5.1(a)
or (b)
shall be less than 2.50:1.00;
(d) any Restricted Payment,
so long as, at the time of such Restricted Payment (i) no Default or Event of Default has
occurred and is continuing and (ii) the aggregate amount of all Restricted Payments made
pursuant to this clause (d) shall not to exceed $250,000,000 in the aggregate during the term of
this Agreement; and
(e) any other Restricted
Payment, unless,
at the time of and after giving effect to such Restricted Payment on a Pro Forma Basis: (x) no
Default or Event of Default has occurred and is continuing, (y) after giving effect to such
Restricted Payment on a Pro Forma Basis the Consolidated Fixed Charge Coverage Ratio recomputed
as of the end of the period of the four Fiscal Quarters most recently ended for which the
Borrower has delivered financial statements pursuant to Section 5.1(a) or (b) shall
be greater than 2.00:1.0; and (z) such Restricted Payment, together with the aggregate amount of
all Restricted Payments made by the Borrower and the Restricted Subsidiaries after the Closing
Date pursuant to clause (c) and (d), is less than the sum, without duplication, of:
(i) $500,000,000, plus
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(ii) 50% of Consolidated Net
Income for the period (taken as one accounting period) from January 1, 2020 through and
including the date of the most recent balance sheet included in the financial statements
delivered by the Borrower pursuant to Section 5.1(a) or (b) at the time of such
Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less
100% of such deficit), plus
(iii) 100% of the aggregate
net cash proceeds (or the Fair Market Value of property other than cash) received by the
Borrower since the Closing Date as a contribution to its common equity capital or from the
issuance or sale of Capital Stock of the Borrower (other than the issuance of Disqualified
Stock) or from the issuance or sale of convertible or exchangeable Disqualified Stock or
convertible or exchangeable debt securities of the Borrower, in either case, that have been
converted into or exchanged for such Capital Stock of the Borrower (other than Capital Stock
or Disqualified Stock or debt securities sold to a Subsidiary of the Borrower), plus
(iv) to the extent that any
Restricted Investment that was made after the Closing Date is (A) sold for cash or otherwise
cancelled, liquidated or repaid for cash, the cash proceeds received with respect to such
Restricted Investment (less the cost of disposition, if any) or (B) made in an entity that
subsequently becomes a Restricted Subsidiary, an amount equal to the Fair Market Value of the
Restricted Investments owned by the Borrower and its Restricted Subsidiaries in such entity at
the time such entity becomes a Restricted Subsidiary, plus
(v) 100% of the aggregate
net cash proceeds (or the Fair Market Value of property other than cash) received by the
Borrower since the Closing Date by means of (A) the sale (other than to the Borrower or a
Restricted Subsidiary) of the Capital Stock of an Unrestricted Subsidiary or (B) a
distribution or dividend from an Unrestricted Subsidiary (other than in each case to the
extent such Investment constituted an Investment permitted under Section 7.4), in each
case to the extent that such amounts were not otherwise included in the Consolidated Net
Income for such period, plus
(vi) in case, after the
Closing Date, any Unrestricted Subsidiary has been redesignated as a Restricted Subsidiary
under the terms of this Agreement or has been merged, consolidated or amalgamated with or
into, or transfers or conveys assets to, or is liquidated into the Borrower or a Restricted
Subsidiary, an amount equal to the Fair Market Value of the Restricted Investments owned by
the Borrower and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time of
the redesignation, combination or transfer (or of the assets transferred or conveyed, as
applicable).
Section 7.6. Sale of Assets. Make any
Asset Sale, except the sale or other disposition of such assets that (i) have consideration of
at least 75% of which is cash or Permitted Investments; provided, that, any Designated
Non-cash Consideration received by the Borrower or any of its Restricted Subsidiaries in such
Asset Sale having an aggregate Fair Market Value, taken together with all other Designated
Non-cash Consideration received pursuant to this clause (i) that is at that time outstanding
not in excess of the greater of (x) $200,000,000 and (y) 3.5% of Consolidated Total Assets at
the time of the receipt of such Designated Non-cash Consideration (determined based on the
most recently ended fiscal quarter for which internal financial statements are available and
with the Fair Market Value of each item of Designated Non-cash Consideration being measured at
the time received and without giving effect to subsequent changes in value) shall be deemed to
be cash for purposes of this Section 7.6 but for no other purpose and (ii) such
consideration, at the time such Asset Sale is agreed to, is at least equal to the Fair Market
Value of the assets being sold, transferred, leased or disposed of.
85
Section 7.7. Transactions
with Affiliates. Sell, lease or otherwise transfer any property or assets
to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage
in any other transactions with, any of its Affiliates, except (a) in the ordinary course of
business at prices and on terms and conditions not less favorable to the Borrower or such
Restricted Subsidiary than could be obtained on an armβs-length basis from unrelated third
parties, (b) transactions between or among the Loan Parties and (c) any Restricted Payment
permitted by Section 7.5.
Section 7.8. Restrictive
Agreements. Enter into, incur or permit to exist any agreement (other than
any Contractual Obligation binding on any HMO Subsidiary or Insurance Subsidiary) that
prohibits, restricts or imposes any condition upon (a) the ability of the Borrower or any
Restricted Subsidiary to create, incur or permit any Lien upon any of its assets or
properties, whether now owned or hereafter acquired, or (b) the ability of any Restricted
Subsidiary to pay dividends or other distributions with respect to its Capital Stock, to
make or repay loans or advances to the Borrower or any other Restricted Subsidiary, to
Guarantee Indebtedness of the Borrower or any other Restricted Subsidiary or to transfer any
of its property or assets to the Borrower or any Restricted Subsidiary of the Borrower; provided,
that (i) the foregoing shall not apply to restrictions or conditions imposed by Law or
by this Agreement or any other Loan Document, (ii) the foregoing shall not apply to
customary restrictions and conditions contained in agreements relating to the sale of a
Restricted Subsidiary pending such sale, provided such restrictions and conditions apply
only to the Restricted Subsidiary that is sold and such sale is permitted hereunder, (iii)
clause (a) shall not apply to restrictions or conditions imposed by any agreement relating
to secured Indebtedness or Finance Lease Liabilities permitted by this Agreement so long as
such restrictions and conditions apply only to the property or assets securing such
Indebtedness and (iv) clause (a) shall not apply to customary provision in leases
restricting the assignment thereof.
Section 7.9. Reserved.
Section 7.10. Hedging
Transactions. Enter into any Hedging Transaction, other than Hedging
Transactions entered into in the ordinary course of business to hedge or mitigate risks to
which the Borrower or any Restricted Subsidiary is exposed in the conduct of its business or
the management of its liabilities. Solely for the avoidance of doubt, the Borrower
acknowledges that a Hedging Transaction entered into for speculative purposes or of a
speculative nature (which shall be deemed to include any Hedging Transaction under which the
Borrower or any of the Restricted Subsidiaries is or may become obliged to make any payment
(i) in connection with the purchase by any third party of any Capital Stock or any
Indebtedness or (ii) as a result of changes in the market value of any Capital Stock or any
Indebtedness) is not a Hedging Transaction entered into in the ordinary course of business
to hedge or mitigate risks.
Section 7.11. Reserved.
Section 7.12. Amendment to
Organization Documents. Amend, modify or waive any of its rights in a manner
materially adverse to the Lenders or any Loan Party under its Organization Documents.
Section 7.13. Amendments and
Prepayment of Other Indebtedness.
(a) The Borrower will
not, and will not permit any of its Restricted Subsidiaries to, prepay, redeem, repurchase
or otherwise acquire for value any Permitted Subordinated Debt other than payments of
principal, interest or other payments on any Permitted Subordinated Debt to the extent
permitted by the subordination provisions of the Subordinated Debt Documents.
86
(b) The Borrower will
not, and will not permit any of its Restricted Subsidiaries to, make any prepayment of the
Existing Notes, unless before and after giving effect to any prepayment, no Default or
Event of Default shall have occurred and be continuing.
(c) The Borrower will
not, and will not permit any of its Restricted Subsidiaries to, agree to or permit any
amendment, modification or waiver of any provision of any Indebtedness if as amended,
modified or waived, such Indebtedness would not be permitted under Section 7.01.
(d) The Borrower will
not, and will not permit any of its Restricted Subsidiaries to, agree to or permit any
amendment, modification or waiver of any provision of any Subordinated Debt Document if
the effect of such amendment, modification or waiver is to (i) increase the yield on such
Permitted Subordinated Debt or change (to earlier dates) the dates upon which principal
and interest are due thereon, (ii) alter the redemption, prepayment or subordination
provisions thereof, (iii) alter the covenants and events of default in a manner that would
make such provisions more onerous or restrictive to the Borrower or any such Restricted
Subsidiary or (iv) otherwise increase the obligations of the Borrower or any Restricted
Subsidiary in respect of such Permitted Subordinated Debt or confer additional rights upon
the holders thereof which individually or in the aggregate would be adverse to the
Borrower or any of its Restricted Subsidiaries or to the Administrative Agent or the
Lenders.
Section 7.14. Accounting
Changes. Make any significant change in accounting treatment or reporting
practices, except as required or permitted by GAAP, or change the Fiscal Year of the
Borrower or of any of its Restricted Subsidiaries, except to change the fiscal year of a
Restricted Subsidiary to conform its fiscal year to that of the Borrower.
Section 7.15. Government
Regulation. The Borrower will not, and will not permit any of its
Subsidiaries to, (a) be or become subject at any time to any law, regulation or list of
any Governmental Authority of the United States (including, without limitation, the OFAC
list) that prohibits or limits the Lenders or the Administrative Agent from making any
advance or extension of credit to the Borrower or from otherwise conducting business with
the Loan Parties, or (b) fail to provide documentary and other evidence of the identity of
the Loan Parties as may be requested by the Lenders or the Administrative Agent at any
time to enable the Lenders or the Administrative Agent to verify the identity of the Loan
Parties or to comply with any applicable law or regulation, including, without limitation,
Section 326 of the Patriot Act at 31 U.S.C. Section 5318.
Section 7.16. Ownership of
Subsidiaries. Notwithstanding any other provisions of this
Agreement to the contrary, the Borrower will not, and will not permit any of the
Restricted Subsidiaries to permit any Person (other than the Borrower or any wholly owned
Restricted Subsidiary) to own any Capital Stock of any Restricted Subsidiary, except to
qualify directors if required by applicable Law.
Section 7.17. Use of
Proceeds.
87
(a) Use any part of
the proceeds of any Loan, whether directly or indirectly, for any purpose that would
violate any rule or regulation of the Board of Governors of the Federal Reserve System,
including Regulations T, U or X.
(b) Request any
Borrowing or Letter of Credit, or use or allow its respective directors, officers,
employees and agents to use, the proceeds of any Borrowing or Letter of Credit (i) in
furtherance of an offer, payment, promise to pay, or authorization of the payment or
giving of money, or anything else of value, to any Person in violation of any
Anti-Corruption Laws, (ii) for the purpose of funding, financing or facilitating any
activities, business or transaction of or with any Sanctioned Person, or in any
Sanctioned Country or (iii) in any manner that would result in the violation of any
Sanctions applicable to any party.
Section 8.1.
Events of
Default. If any of the following events (each an βEvent of
Defaultβ) shall occur:
(a) any Loan Party
shall fail to pay any principal of any Loan or of any reimbursement obligation in
respect of any LC Disbursement when and as the same shall become due and payable,
whether at the due date thereof or at a date fixed for prepayment or otherwise; or
(b) any Loan Party
shall fail to pay any interest on any Loan or any fee or any other amount (other than an
amount payable under clause (a) of this Section 8.1 or an amount related to a
Bank Product Obligation) payable under this Agreement or any other Loan Document, when
and as the same shall become due and payable, and such failure shall continue unremedied
for a period of three (3) Business Days; or
(c) any
representation or warranty made or deemed made by or on behalf of the Borrower or any
Restricted Subsidiary in or in connection with this Agreement or any other Loan Document
(including the Schedules attached thereto) and any amendments or modifications hereof or
waivers hereunder, or in any certificate, report, financial statement or other document
submitted to the Administrative Agent or the Lenders by any Loan Party or any
representative of any Loan Party pursuant to or in connection with this Agreement or any
other Loan Document shall prove to be incorrect in any material respect (other than a
representation or warranty that is expressly qualified by a Material Adverse Effect or
materiality, in which case such representation or warranty shall prove to be incorrect
in all respects) when made or deemed made or submitted; or
(d) any Loan Party
shall fail to observe or perform any covenant or agreement contained in Section 5.1, 5.2,
5.3,
5.7,
5.8,
5.9
or 5.10
or Articles
VI or VII; provided that, solely with respect to
compliance with Section 6.3 as of the end of any Fiscal Year, if, in connection
with the filing by a Restricted Subsidiary of a statutory financial statement with any
Governmental Authority as required by Law, the Borrower or any Restricted Subsidiary
discovers that such Restricted Subsidiary was not in compliance with Section 6.3
as of the end of such Fiscal Year, then the Borrower will not be in default of Section 6.3
if the Borrower demonstrates to the Administrative Agentβs reasonable satisfaction that
the Borrower has cured all such violations within 5 days after the date on which the
Borrower or such Restricted Subsidiary has filed its statutory financial statements with
such Governmental Authority; or
88
(e) any Loan Party
shall fail to observe or perform any covenant or agreement contained in this Agreement
(other than those referred to in clauses (a), (b) and (d) above) or any other Loan
Document, and such failure shall remain unremedied for 30 days after the earlier of
(i) any officer of any Loan Party becomes aware of such failure, or (ii) notice
thereof shall have been given to any Loan Party by the Administrative Agent or any
Lender; or
(f) the
subordination provisions of the documents evidencing or governing any subordinated
Indebtedness shall, in whole or in part, terminate, cease to be effective or cease to
be legally valid, binding and enforceable against any holder of the applicable
subordinated Indebtedness; or
(g) the Borrower or
any Restricted Subsidiary (whether as primary obligor or as guarantor or other surety)
shall fail to pay any principal of, or premium or interest on, any Material
Indebtedness that is outstanding, when and as the same shall become due and payable
(whether at scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument evidencing or governing such Indebtedness; or
any other event shall occur or condition shall exist under any agreement or instrument
relating to such Indebtedness and shall continue after the applicable grace period, if
any, specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or permit the acceleration of, the maturity of such
Indebtedness; or any such Indebtedness shall be declared to be due and payable, or
required to be prepaid or redeemed (other than by a regularly scheduled required
prepayment or redemption), purchased or defeased, or any offer to prepay, redeem,
purchase or defease such Indebtedness shall be required to be made, in each case prior
to the stated maturity thereof; or
(h) the Borrower or
any Restricted Subsidiary shall (i) commence a voluntary case or other proceeding or
file any petition seeking liquidation, reorganization or other relief under any
federal, state or foreign bankruptcy, insolvency or other similar Law now or hereafter
in effect or seeking the appointment of a custodian, trustee, receiver, liquidator or
other similar official of it or any substantial part of its property, (ii) consent to
the institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (i) of this Section 8.1, (iii)
apply for or consent to the appointment of a custodian, trustee, receiver, liquidator
or other similar official for the Borrower or any such Restricted Subsidiary or for a
substantial part of its assets, (iv) file an answer admitting the material allegations
of a petition filed against it in any such proceeding, (v) make a general assignment
for the benefit of creditors or (vi) take any action for the purpose of effecting any
of the foregoing; or
(i) an involuntary
proceeding shall be commenced or an involuntary petition shall be filed seeking (i)
liquidation, reorganization or other relief in respect of the Borrower or any
Restricted Subsidiary or its debts, or any substantial part of its assets, under any
federal, state or foreign bankruptcy, insolvency or other similar Law now or hereafter
in effect or (ii) the appointment of a custodian, trustee, receiver, liquidator or
other similar official for the Borrower or any Restricted Subsidiary or for a
substantial part of its assets, and in any such case, such proceeding or petition
shall remain undismissed for a period of 60 days or an order or decree approving or
ordering any of the foregoing shall be entered; or
89
(j)
the
Borrower or any Restricted Subsidiary shall become unable to pay or shall admit in
writing its inability to pay its debts as they become due; or
(k)
an
ERISA Event shall have occurred that, in the opinion of the Required Lenders, when
taken together with other ERISA Events that have occurred, could reasonably be
expected to result in liability to the Borrower and the Restricted Subsidiaries in
an aggregate amount exceeding $100,000,000; or
(l)
any judgment or order for the payment of money in excess of
$100,000,000, individually or in the aggregate, shall be rendered against the
Borrower or any Restricted Subsidiary, and either (i) enforcement proceedings shall
have been commenced by any creditor upon such judgment or order or (ii) there shall
be a period of 30 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(m)
any non-monetary judgment or order shall be
rendered against the Borrower or any Restricted Subsidiary that could reasonably be
expected to have a Material Adverse Effect, and there shall be a period of 30
consecutive days during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect; or
(n)
a
Change in Control shall occur or exist; or
(o)
any
default or event of default (after giving effect to any grace period) shall have
occurred and be continuing under the Subordinated Debt Documents or any Subordinated
Debt Document shall cease to be in full force and effect or the validity or
enforceability thereof is disaffirmed by or on behalf of any subordinated lender
party thereto, or any Obligations fail to constitute βSenior Indebtednessβ for
purposes of the applicable Subordinated Debt Document, or all or any part of the
Permitted Subordinated Debt is accelerated, is declared to be due and payable is
required to be prepaid or redeemed, in each case prior to the stated maturity
thereof; or
(p)
any
Loan Document, at any time after its execution and delivery and for any reason other
than as expressly permitted hereunder or thereunder or satisfaction in full of all
the Obligations, ceases to be in full force and effect or ceases to give the
Administrative Agent any material part of the Liens purported to be created thereby;
or any Loan Party or any other Person contests in any manner the validity or
enforceability of any Loan Document; or any Loan Party denies that it has any or
further liability or obligation under any Loan Document, or purports to revoke,
terminate or rescind any Loan Document;
(q)
any
HMO Event has occurred and has remain unremedied for a period of 60 days following
the occurrence thereof (or such shorter period of time, if any, as the HMO Regulator
shall have imposed for the cure of such HMO Event); or
(r)
an
Exclusion Event shall have occurred and could reasonably be expected to result in a
Material Adverse Effect.
90
then, and in every such event (other than an event
with respect to the Borrower described in clause (h) or (i) of this Section
8.1) and at any time thereafter during the continuance of such event,
the Administrative Agent may, and upon the written request of the Required Lenders
shall, by notice to the Borrower, take any or all of the following actions, at the
same or different times: (i) terminate the Commitments, whereupon the Commitment of
each Lender shall terminate immediately, (ii) declare the principal of and any
accrued interest on the Loans, and all other Obligations owing hereunder, to be,
whereupon the same shall become, due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by the
Borrower, (iii) exercise all remedies contained in any other Loan Document, and (iv)
exercise any other remedies available at Law or in equity; and that, if an Event of
Default specified in either clause (h) or (i) shall occur, the Commitments shall
automatically terminate and the principal of the Loans then outstanding, together
with accrued interest thereon, and all fees, and all other Obligations shall
automatically become due and payable, without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrower.
Section
8.2. Application of Funds.
After the exercise of remedies
provided for in Section 8.1 (or immediately after an Event of Default
specified in either clause (h) or (i) of Section 8.1), any amounts received
on account of the Obligations shall be applied by the Administrative Agent in the
following order:
(a)
first,
to the fees and other reimbursable expenses of the Administrative Agent and the
Issuing Bank then due and payable pursuant to any of the Loan Documents, until the
same shall have been paid in full;
(b)
second,
to all reimbursable expenses, if any, of the Lenders then due and payable pursuant
to any of the Loan Documents, until the same shall have been paid in full;
(c)
third,
to the fees due and payable under Sections 2.14(b) and (c)
of this Agreement and interest then due and payable under the terms of this
Agreement, until the same shall have been paid in full;
(d)
fourth,
to the aggregate outstanding principal amount of the Loans, the LC Exposure, the
Bank Product Obligations and the Hedging Obligations that constitute Obligations,
until the same shall have been paid in full, allocated pro rata among any Lender,
any Lender-Related Hedge Provider and any Bank Product Provider, based on their
respective Pro Rata Shares of the aggregate amount of such Revolving Loans, LC
Exposure, Bank Product Obligations and Hedging Obligations;
(e)
fifth,
to additional cash collateral for the aggregate amount of all outstanding Letters
of Credit until the aggregate amount of all cash collateral held by the
Administrative Agent pursuant to this Agreement is equal to 102% of the LC
Exposure after giving effect to the foregoing clause fifth; and
(f)
to
the extent any proceeds remain, to the Borrower or other parties lawfully entitled
thereto.
All amounts allocated to the
Lenders pursuant to the foregoing clauses second through fourth
as a result of amounts owed to the Lenders under the Loan Documents shall be
allocated among, and distributed to, the Lenders pro rata based on their respective
Pro Rata Shares; provided, that all amounts allocated to that portion
of the LC Exposure comprised of the aggregate undrawn amount of all outstanding
Letters of Credit pursuant to clause fourth and fifth
shall be distributed to the Administrative Agent, rather than to the Lenders, and
held by the Administrative Agent in an account in the name of the Administrative
Agent for the benefit of the Issuing Bank and the Revolving Loan Lenders as cash
collateral for the LC Exposure, such account to be administered in accordance with Section
2.22(g).
91
Excluded Swap Obligations with
respect to any Guarantor shall not be paid with amounts received from such
Guarantor or its assets, but appropriate adjustments shall be made with respect to
payments from other Loan Parties to preserve the allocation to Obligations
otherwise set forth above in this Section.
Notwithstanding the foregoing,
Hedging Obligations and Bank Product Obligations may be excluded from the
application described above without any liability to the Administrative Agent, if
the Administrative Agent has not received written notice, together with such
supporting documentation as the Administrative Agent may request, from the
applicable Lender-Related Hedge Provider or Bank Product Provider. Each
Lender-Related Hedge Provider and Bank Product Provider not a party to this
Agreement that has given the notice contemplated by the preceding sentence shall,
by such notice, be deemed to have acknowledged and accepted the appointment of the
Administrative Agent pursuant to the terms of Article IX for
itself and its Affiliates as if a βLenderβ party hereto.
ARTICLE IX
THE ADMINISTRATIVE AGENT
THE ADMINISTRATIVE AGENT
Section
9.1. Appointment of Administrative Agent.
(a) Each Lender irrevocably appoints Truist Bank as the
Administrative Agent and authorizes it to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent under this
Agreement and the other Loan Documents, together with all such actions and
powers that are reasonably incidental thereto. The Administrative Agent may
perform any of its duties hereunder or under the other Loan Documents by or
through any one or more sub-agents or attorneys-in-fact appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent or
attorney-in-fact may perform any and all of its duties and exercise its rights
and powers through their respective Related Parties. The exculpatory provisions
set forth in this Article shall apply to any such sub-agent, attorney-in-fact or
Related Party and shall apply to their respective activities in connection with
the syndication of the credit facilities provided for herein as well as
activities as the Administrative Agent.
(b) The Issuing Bank shall act on behalf of the Lenders with
respect to any Letters of Credit issued by it and the documents associated
therewith until such time and except for so long as the Administrative Agent may
agree at the request of the Required Lenders to act for the Issuing Bank with
respect thereto; provided that the Issuing Bank shall have all the
benefits and immunities (i) provided to the Administrative Agent in this Article
with respect to any acts taken or omissions suffered by the Issuing Bank in
connection with Letters of Credit issued by it or proposed to be issued by it
and the application and agreements for letters of credit pertaining to the
Letters of Credit as fully as if the term βAdministrative Agentβ as used in this
Article included the Issuing Bank with respect to such acts or omissions and
(ii) as additionally provided in this Agreement with respect to the Issuing
Bank.
(c) It is understood and agreed
that the use of the term βagentβ herein
or in any other Loan Document (or any
similar term) with reference to the Administrative Agent is not intended to
connote any fiduciary or other implied (or express) obligations arising under
agency doctrine of any applicable law. Instead such term is used as a matter
of market custom and is intended to create or reflect only an administrative
relationship between contracting parties.
92
Section
9.2. Nature of Duties of Administrative Agent. The
Administrative Agent shall not have any duties or obligations except those
expressly set forth in this Agreement and the other Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall
not be subject to any fiduciary or other implied duties, regardless of whether
a Default or an Event of Default has occurred and is continuing, (b) the
Administrative Agent shall not have any duty to take any discretionary action
or exercise any discretionary powers, except those discretionary rights and
powers expressly contemplated by the Loan Documents that the Administrative
Agent is required to exercise in writing by the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 11.2), provided
that the Administrative Agent shall not be required to take any action that,
in its opinion or the opinion of its counsel, may expose the Administrative
Agent to liability or that is contrary to any Loan Document or applicable law,
including for the avoidance of doubt any action that may be in violation of
the automatic stay under any Debtor Relief Law or that may effect a
forfeiture, modification or termination of property of a Defaulting Lender in
violation of any Debtor Relief Law, and (c) except as expressly set forth in
the Loan Documents, the Administrative Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to the Borrower or any of its Subsidiaries that is communicated to or
obtained by the Administrative Agent or any of its Affiliates in any
capacity. The Administrative Agent shall not be liable for any action taken
or not taken by it, its sub-agents or its attorneys-in-fact with the consent
or at the request of the Required Lenders (or such other number or percentage
of the Lenders as shall be necessary under the circumstances as provided in Section
11.2) or in the absence of its own gross negligence or willful
misconduct. The Administrative Agent shall not be responsible for the
negligence or misconduct of any sub-agents or attorneys-in-fact selected by it
with reasonable care. The Administrative Agent shall not be deemed to have
knowledge of any Default or Event of Default unless and until written notice
thereof (which notice shall include an express reference to such event being a
βDefaultβ or βEvent of Defaultβ hereunder) is given to the Administrative
Agent by the Borrower or any Lender, and the Administrative Agent shall not be
responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with any Loan
Document, (ii) the contents of any certificate, report or other document
delivered hereunder or thereunder or in connection herewith or therewith,
(iii) the performance or observance of any of the covenants, agreements, or
other terms and conditions set forth in any Loan Document, (iv) the validity,
enforceability, effectiveness or genuineness of any Loan Document or any other
agreement, instrument or document, or (v) the satisfaction of any condition
set forth in Article III or elsewhere in any Loan Document,
other than to confirm receipt of items expressly required to be delivered to
the Administrative Agent. The Administrative Agent may consult with legal
counsel (including counsel for the Borrower) concerning all matters pertaining
to such duties.
Section
9.3. Lack of Reliance on the Administrative Agent.
Each of the Lenders, the Swingline Lender and the Issuing Bank acknowledges
that it has, independently and without reliance upon the Administrative Agent,
the Issuing Bank or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each of the Lenders, the Swingline
Lender and the Issuing Bank also acknowledges that it will, independently and
without reliance upon the Administrative Agent, the Issuing Bank or any other
Lender and based on such documents and information as it has deemed
appropriate, continue to make its own credit analysis and decisions in taking
or not taking any action under or based on this Agreement, any related
agreement or any document furnished hereunder or thereunder, and to make such investigations as it deems necessary
to inform itself as to the business, prospects, operations, property,
financial and other condition and creditworthiness of the Loan Parties. Each
Lender represents and warrants that (i) the Loan Documents set forth the
terms of a commercial lending facility and (ii) it is engaged in making,
acquiring or holding commercial loans in the ordinary course and is entering
into this Agreement as a Lender for the purpose of making, acquiring or
holding commercial loans and providing other facilities set forth herein as
may be applicable to such Lender, and not for the purpose of purchasing,
acquiring or holding any other type of financial instrument, and each Lender
agrees not to assert a claim in contravention of the foregoing. Each Lender
represents and warrants that it is sophisticated with respect to decisions
to make, acquire and/or hold commercial loans and to provide other
facilities set forth herein, as may be applicable to such Lender, and either
it, or the Person exercising discretion in making its decision to make,
acquire and/or hold such commercial loans or to provide such other
facilities, is experienced in making, acquiring or holding such commercial
loans or providing such other facilities.
93
Section
9.4. Certain Rights of the Administrative Agent.
If the Administrative Agent shall request instructions from the Required
Lenders with respect to any action or actions (including the failure to act)
in connection with this Agreement, the Administrative Agent shall be
entitled to refrain from such act or taking such act unless and until it
shall have received instructions from such Lenders, and the Administrative
Agent shall not incur liability to any Person by reason of so refraining.
Without limiting the foregoing, no Lender shall have any right of action
whatsoever against the Administrative Agent as a result of the
Administrative Agent acting or refraining from acting hereunder in
accordance with the instructions of the Required Lenders where required by
the terms of this Agreement.
Section
9.5. Reliance by Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not incur
any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, posting or other distribution) believed by it to be genuine and to
have been signed, sent or made by the proper Person. The Administrative
Agent may also rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person and shall not incur any
liability for relying thereon. The Administrative Agent may consult with
legal counsel (including counsel for the Borrower), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or not taken by it in accordance with the advice of such
counsel, accountants or experts.
Section
9.6. The Administrative Agent in its Individual
Capacity. The bank serving as the Administrative Agent shall
have the same rights and powers under this Agreement and any other Loan
Document in its capacity as a Lender as any other Lender and may exercise or
refrain from exercising the same as though it were not the Administrative
Agent; and the terms βLendersβ, βRequired Lendersβ, or any similar terms
shall, unless the context clearly otherwise indicates, include the
Administrative Agent in its individual capacity. The bank acting as the
Administrative Agent and its Affiliates may accept deposits from, lend money
to, and generally engage in any kind of business with the Borrower or any
Subsidiary or Affiliate of the Borrower as if it were not the Administrative
Agent hereunder.
94
Section
9.7. Successor Administrative Agent.
(a) The Administrative Agent
may resign at any time by giving notice thereof to the Lenders and the
Borrower. Upon any such resignation, the Required Lenders shall have the
right to appoint a successor Administrative Agent, subject to approval by
the Borrower provided that no Default or Event of Default shall exist at
such time. If no successor Administrative Agent shall have been so
appointed, and shall have accepted such appointment within 30 days after
the retiring Administrative Agent gives notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent which shall be a commercial bank organized
under the laws of the United States or any state thereof or a bank which
maintains an office in the United States. Any
resignation by the Administrative Agent pursuant to this Section shall
also constitute its resignation as an Issuing Bank and Swingline Lender.
Upon the acceptance of a successorβs appointment as Administrative Agent
hereunder: (i) such successor shall succeed to and become vested with
all of the rights, powers, privileges and duties of the retiring Issuing
Bank and Swingline Lender; (ii) the retiring Issuing Bank and Swingline
Lender shall be discharged from all of their respective duties and
obligations hereunder or under the other Loan Documents; and (iii) the
successor Issuing Lender shall issue letters of credit in substitution
for the Letters of Credit, if any, outstanding at the time of such
succession or make other arrangement satisfactory to the retiring
Issuing Bank to effectively assume the obligations of the retiring
Issuing Bank with respect to such Letters of Credit.
(b) Upon the acceptance of its
appointment as the Administrative Agent hereunder by a successor, such
successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations under this Agreement and the
other Loan Documents. If, within 45 days after written notice is given of
the retiring Administrative Agentβs resignation under this Section, no
successor Administrative Agent shall have been appointed and shall have
accepted such appointment, then on such 45th day (i) the
retiring Administrative Agentβs resignation shall become effective, (ii)
the retiring Administrative Agent shall thereupon be discharged from its
duties and obligations under the Loan Documents and (iii) the Required
Lenders shall thereafter perform all duties of the retiring Administrative
Agent under the Loan Documents until such time as the Required Lenders
appoint a successor Administrative Agent as provided above. After any
retiring Administrative Agentβs resignation hereunder, the provisions of
this Article shall continue in effect for the benefit of such retiring
Administrative Agent and its representatives and agents in respect of any
actions taken or not taken by any of them while it was serving as the
Administrative Agent.
(c) In addition to the
foregoing, if a Lender becomes, and during the period it remains, a
Defaulting Lender, and if any Default has arisen from a failure of the
Borrower to comply with Section 2.26(b), then the
Issuing Bank and the Swingline Lender may, upon prior written notice to
the Borrower and the Administrative Agent, resign as Issuing Bank or as
Swingline Lender, as the case may be, effective at the close of business
Charlotte, North Carolina time on a date specified in such notice (which
date may not be less than five (5) Business Days after the date of such
notice).
Section
9.8. Withholding Tax. To the extent
required by any applicable law, the Administrative Agent may withhold from
any interest payment to any Lender an amount equivalent to any applicable
withholding tax. If the Internal Revenue Service or any authority of the
United States or any other jurisdiction asserts a claim that the
Administrative Agent did not properly withhold tax from amounts paid to or
for the account of any Lender (because the appropriate form was not
delivered or was not properly executed, or because such Lender failed to
notify the Administrative Agent of a change in circumstances that rendered
the exemption from, or reduction of, withholding tax ineffective, or for
any other reason), such Lender shall indemnify the Administrative Agent
(to the extent that the Administrative Agent has not already been
reimbursed by the Borrower and without limiting the obligation of the
Borrower to do so) fully for all amounts paid, directly or indirectly, by
the Administrative Agent as tax or otherwise, including penalties and
interest, together with all expenses incurred, including legal expenses,
allocated staff costs and any out of pocket expenses.
95
Section
9.9. Administrative Agent May File Proofs of
Claim.
(a) In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Loan or any Revolving
Credit Exposure shall then be due and payable as herein expressed or by
declaration or otherwise and irrespective of whether the Administrative
Agent shall have made any demand on the Borrower) shall be entitled and
empowered, by intervention in such proceeding or otherwise:
(i) to file and prove a claim
for the whole amount of the principal and interest owing and unpaid in
respect of the Loans or Revolving Credit Exposure and all other
Obligations that are owing and unpaid and to file such other documents
as may be necessary or advisable in order to have the claims of the
Lenders, the Issuing Bank and the Administrative Agent (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Lenders, the Issuing Bank and the Administrative Agent
and its agents and counsel and all other amounts due the Lenders, the
Issuing Bank and the Administrative Agent under Section 10.3)
allowed in such judicial proceeding; and
(ii) to collect and receive
any monies or other property payable or deliverable on any such claims
and to distribute the same;
(b) Any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in
any such judicial proceeding is hereby authorized by each Lender and the
Issuing Bank to make such payments to the Administrative Agent and, if
the Administrative Agent shall consent to the making of such payments
directly to the Lenders and the Issuing Bank, to pay to the
Administrative Agent any amount due for the reasonable compensation,
expenses, disbursements and advances of the Administrative Agent and its
agents and counsel, and any other amounts due the Administrative Agent
under Section 11.3.
Nothing
contained herein shall be deemed to authorize the Administrative Agent to
authorize or consent to or accept or adopt on behalf of any Lender or the
Issuing Bank any plan of reorganization, arrangement, adjustment or
composition affecting the Obligations or the rights of any Lender or to
authorize the Administrative Agent to vote in respect of the claim of any
Lender in any such proceeding.
Section
9.10. Authorization to Execute Other Loan
Documents. Each Lender hereby authorizes the
Administrative Agent to execute on behalf of all Lenders all Loan
Documents (including, without limitation, any subordination agreements)
other than this Agreement.
Section
9.11. Guaranty Matters. The
Lenders irrevocably authorize the Administrative Agent, at its option
and in its discretion to release any Loan Party from its obligations
under the applicable Loan Documents if such Person ceases to be a
Restricted Subsidiary as a result of a transaction permitted hereunder
or as otherwise consented to by the Lenders pursuant to Section
11.2. Upon request by the Administrative Agent at any
time, the Required Lenders will confirm in writing the Administrative
Agentβs authority to release any Loan Party from its obligations under
the applicable Loan Documents pursuant to this Section. In each case as
specified in this Section, the Administrative Agent is authorized, at
the Borrowerβs expense, to execute and deliver to the applicable Loan
Party such documents as such Loan Party may reasonably request to
release such Loan Party from its obligations under the applicable Loan
Documents, in accordance with the terms of the Loan Documents and this
Section.
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Section
9.12. Documentation Agent;
Syndication Agent. Each party hereto hereby agrees
that any Person designated as a Documentation Agent, Syndication
Agent, Arranger or Bookrunner shall have no duties or obligations
under any Loan Documents to any Lender or any Loan Party, except in
its capacity, as applicable, as the Administrative Agent, a Lender,
the Swingline Lender or the Issuing Bank.
Section
9.13. Right to Enforce Guarantee.
Anything contained in any of the Loan Documents to the contrary
notwithstanding, the Borrower, the Administrative Agent and each
Lender hereby agree that no Lender shall have any right individually
to enforce the Guaranty, it being understood and agreed that all
powers, rights and remedies hereunder may be exercised solely by the
Administrative Agent.
Section
9.14. Hedging Obligations and Bank
Product Obligations. No Bank Product Provider or
Lender-Related Hedge Provider that obtains the benefits of Section 8.2 by virtue of the provisions hereof
or of any other Loan Document shall have any right to notice of any
action or to consent to, direct or object to any action hereunder or
under any other Loan Document other than in its capacity as a Lender
and, in such case, only to the extent expressly provided in the Loan
Documents. Notwithstanding any other provision of this Article to the
contrary, the Administrative Agent shall not be required to verify the
payment of, or that other satisfactory arrangements have been made
with respect to, Bank Product Obligations and Hedging Obligations
unless the Administrative Agent has received written notice of such
Obligations, together with such supporting documentation as the
Administrative Agent may request, from the applicable Bank Product
Provider or Lender-Related Hedge Provider, as the case may be.
Section
10.1. The Guaranty. Each
Person that becomes a Guarantor pursuant to the provisions of this
Agreement agrees to jointly and severally guaranty to the
Administrative Agent, each Lender, each Affiliate of a Lender that
enters into Bank Products or a Hedging Transaction with the Borrower
or any Subsidiary, and each other holder of the Obligations as
hereinafter provided, as primary obligor and not as surety, the prompt
payment of the Obligations in full when due (whether at stated
maturity, as a mandatory prepayment, by acceleration, as a mandatory
cash collateralization or otherwise) strictly in accordance with the
terms thereof. Each such Guarantor hereby further agrees that if any
of the Obligations is not paid in full when due (whether at stated
maturity, as a mandatory prepayment, by acceleration, as a mandatory
cash collateralization or otherwise), such Guarantor will, jointly and
severally, promptly pay the same, without any demand or notice
whatsoever, and that in the case of any extension of time of payment
or renewal of any of the Obligations, the same will be promptly paid
in full when due (whether at extended maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or
otherwise) in accordance with the terms of such extension or renewal.
Notwithstanding
any provision to the contrary contained herein or in any other of the
Loan Documents or the other documents relating to the Obligations, the
obligations of each Guarantor under this Agreement and the other Loan
Documents shall not exceed an aggregate amount equal to the largest
amount that would not render such obligations subject to avoidance under
applicable Debtor Relief Laws.
97
Section 10.2. Obligations Unconditional. The obligations
of the Guarantors under Section 10.1 are
joint and several, absolute and unconditional, irrespective of the
value, genuineness, validity, regularity or enforceability of any of
the Loan Documents or other documents relating to the Obligations,
or any substitution, release, impairment or exchange of any other
guarantee of or security for any of the Obligations, and, to the
fullest extent permitted by applicable Law, irrespective of any
other circumstance whatsoever which might otherwise constitute a
legal or equitable discharge or defense of a surety or guarantor, it
being the intent of this Section 10.2 that
the obligations of the Guarantors hereunder shall be absolute and
unconditional under any and all circumstances. Each Guarantor
agrees that such Guarantor shall have no right of subrogation,
indemnity, reimbursement or contribution against the Borrower or any
other Guarantor for amounts paid under this Article X
until such time as the Obligations have been paid in full and the
Commitments have expired or terminated. Without limiting the
generality of the foregoing, it is agreed that, to the fullest
extent permitted by Law, the occurrence of any one or more of the
following shall not alter or impair the liability of any Guarantor
hereunder, which shall remain absolute and unconditional as
described above:
(a) at any time or
from time to time, without notice to any Guarantor, the time for any
performance of or compliance with any of the Obligations shall be
extended, or such performance or compliance shall be waived;
(b) any of the acts
mentioned in any of the provisions of any of the Loan Documents or
any other document relating to the Obligations shall be done or
omitted;
(c) the maturity of
any of the Obligations shall be accelerated, or any of the
Obligations shall be modified, supplemented or amended in any
respect, or any right under any of the Loan Documents or any other
document relating to the Obligations shall be waived or any other
guarantee of any of the Obligations or any security therefor shall
be released, impaired or exchanged in whole or in part or otherwise
dealt with;
(d) any Lien
granted to, or in favor of, the Administrative Agent or any other
holder of the Obligations as security for any of the Obligations
shall fail to attach or be perfected; or
(e) any of the
Obligations shall be determined to be void or voidable (including
for the benefit of any creditor of any Guarantor) or shall be
subordinated to the claims of any Person (including any creditor of
any Guarantor).
With
respect to its obligations hereunder, each Guarantor hereby expressly
waives diligence, presentment, demand of payment, protest and all
notices whatsoever and any requirement that the Administrative Agent
or any other holder of the Obligations exhaust any right, power or
remedy or proceed against any Person under any of the Loan Documents
or any other document relating to the Obligations or against any other
Person under any other guarantee of, or security for, any of the
Obligations.
Section 10.3. Reinstatement. The obligations of each
Guarantor under this Article X shall be
automatically reinstated if and to the extent that for any reason
any payment by or on behalf of any Person in respect of the
Obligations is rescinded or must be otherwise restored by any holder
of any of the Obligations, whether as a result of any Debtor Relief
Law or otherwise, and each Guarantor agrees that it will indemnify
the Administrative Agent and each other holder of the Obligations on
demand for all reasonable costs and expenses (including the fees,
charges and disbursements of counsel) incurred by the Administrative
Agent or such holder of the Obligations in connection with such
rescission or restoration, including any such costs and expenses
incurred in defending against any claim alleging that such payment
constituted a preference, fraudulent transfer or similar payment
under any Debtor Relief Law.
98
Section 10.4. Certain Additional Waivers. Each
Guarantor agrees that such Guarantor shall have no right of
recourse to security for the Obligations, except through the
exercise of rights of subrogation pursuant to Section 10.2 and through the exercise of
rights of contribution pursuant to Section 10.6.
Section 10.5. Remedies. The Guarantors agree that, to
the fullest extent permitted by Law, as between the Guarantors, on
the one hand, and the Administrative Agent and the other holders
of the Obligations, on the other hand, the Obligations may be
declared to be forthwith due and payable as specified in Section 9.02 (and shall be deemed to have
become automatically due and payable in the circumstances
specified in Section 9.02) for
purposes of Section 10.1
notwithstanding any stay, injunction or other prohibition
preventing such declaration (or preventing the Obligations from
becoming automatically due and payable) as against any other
Person and that, in the event of such declaration (or the
Obligations being deemed to have become automatically due and
payable), the Obligations (whether or not due and payable by any
other Person) shall forthwith become due and payable by the
Guarantors for purposes of Section 10.1.
Section 10.6. Rights of Contribution. The Guarantors
agree among themselves that, in connection with payments made
hereunder, each Guarantor shall have contribution rights against
the other Guarantors as permitted under applicable Law. Such
contribution rights shall be subordinate and subject in right of
payment to the obligations of such Guarantors under the Loan
Documents and no Guarantor shall exercise such rights of
contribution until the Obligations have been paid in full and the
Commitments have terminated.
Section 10.7. Guarantee of Payment; Continuing Guarantee.
The guarantee in this Article X is a
guaranty of payment and not of collection, is a continuing
guarantee, and shall apply to the Obligations whenever arising.
Section 10.8. Keepwell. Each Qualified ECP Guarantor
hereby jointly and severally absolutely, unconditionally and
irrevocably undertakes to provide such funds or other support as
may be needed from time to time by each Specified Loan Party to
honor all of such Specified Loan Partyβs obligations under this
Agreement and the other Loan Documents in respect of Swap
Obligations (provided, however, that each Qualified ECP Guarantor
shall only be liable under this Section 10.8
for the maximum amount of such liability that can be hereby
incurred without rendering its obligations under this Section 10.8 or otherwise under this
Agreement voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer, and not for any greater
amount). The obligations of each Qualified ECP Guarantor under
this Section 10.8 shall remain
in full force and effect until the Obligations have been
indefeasibly paid and performed in full. Each Qualified ECP
Guarantor intends that this Section 10.8
constitute, and this Section 10.8
shall be deemed to constitute, a βkeepwell, support, or other
agreementβ for the benefit of each Specified Loan Party for all
purposes of Section la(18)(A)(v)(II) of the Commodity Exchange
Act.
Section 11.1. Notices.
(a) Written Notices. Except in
the case of notices and other communications expressly permitted
to be given by telephone, all notices and other communications to
any party herein to be effective shall be in writing and shall be
delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopy, as follows:
99
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To any Loan Party: |
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Xxxxxx Healthcare, Inc.
000
Xxxxxxxxx, Xxxxx 000
Xxxx
Xxxxx, XX 00000-0000
Attention:
Xxxxxx X. Xxxx, Chief Financial Officer
Facsimile:
(000) 000-0000
Email:
xxxxxx.xxxx@xxxxxxxxxxxxxxxx.xxx
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To the Administrative Agent: |
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Truist Bank 0000 Xxxxxxxxx Xxxx, XX Xxxxxxx, Xxxxxxx 00000 Attention: Xxxxx Xxxxxx Facsimile: (000) 000-0000 Email: xxxxx.xxxxxx@xxxxxxxx.xxx |
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With copies (for information
purposes only) to: |
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Truist Bank Agency Services 000 Xxxxxxxxx Xxxxxx, X.X./00xx Xxxxx Xxxxxxx, Xxxxxxx 00000 Attention: Xx. Xxxx Xxxxx Facsimile: (000) 000-0000 Email:xxxxxx.xxxxxxxx@xxxxxxxx.xxx |
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To the Issuing Bank: |
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Truist Bank 00 Xxxx Xxxxx, N.E./Mail Code 3706 Xxxxxxx, Xxxxxxx 00000 Attention: Standby Letter of Credit Dept. Facsimile: (000) 000-0000 |
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To the Swingline Lender: |
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Truist Bank Agency Services 000 Xxxxxxxxx Xxxxxx, X.X./00xx Xxxxx Xxxxxxx, Xxxxxxx 00000 Attention: Xx. Xxxx Xxxxx Facsimile: (000) 000-0000 |
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To any other Lender: |
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To the address or facsimile
number, set forth in the Administrative
Questionnaire or the Assignment and Acceptance
executed by such Lender.
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Any party hereto may change its
address or telecopy number for notices and other
communications hereunder by notice to the other parties
hereto. All such notices and other communications shall be
effective upon actual receipt by the relevant Person or, if
delivered by overnight courier service, upon the first
Business Day after the date deposited with such courier
service for overnight (next-day) delivery or, if sent by
telecopy, upon transmittal in legible form by facsimile
machine or, if mailed, upon the third Business Day after the
date deposited into the mail or, if delivered by hand, upon
delivery; provided that
notices delivered to the Administrative Agent, the Issuing
Bank or the Swingline Lender shall not be effective until
actually received by such Person at its address specified in
this Section.
100
Any agreement of the
Administrative Agent, the Issuing Bank and the Lenders
herein to receive certain notices by telephone or
facsimile is solely for the convenience and at the request
of the Borrower. The Administrative Agent, the Issuing
Bank and the Lenders shall be entitled to rely on the
authority of any Person purporting to be a Person
authorized by the Borrower to give such notice and the
Administrative Agent, the Issuing Bank and the Lenders
shall not have any liability to the Borrower or other
Person on account of any action taken or not taken by the
Administrative Agent, the Issuing Bank and the Lenders in
reliance upon such telephonic or facsimile notice. The
obligation of the Borrower to repay the Loans and all
other Obligations hereunder shall not be affected in any
way or to any extent by any failure of the Administrative
Agent, the Issuing Bank and the Lenders to receive written
confirmation of any telephonic or facsimile notice or the
receipt by the Administrative Agent, the Issuing Bank and
the Lenders of a confirmation which is at variance with
the terms understood by the Administrative Agent, the
Issuing Bank and the Lenders to be contained in any such
telephonic or facsimile notice.
(i) Notices
and other communications to the Lenders and the Issuing
Bank hereunder may be delivered or furnished by
electronic communication (including eβmail and Internet
or intranet websites) pursuant to procedures approved by
Administrative Agent, provided
that the foregoing shall not apply to notices to any
Lender or the Issuing Bank pursuant to Article II unless
such Lender, the Issuing Bank, as applicable, and
Administrative Agent have agreed to receive notices
under such Section by electronic communication and have
agreed to the procedures governing such communications.
Administrative Agent or Borrower may, in its discretion,
agree to accept notices and other communications to it
hereunder by electronic communications pursuant to
procedures approved by it; provided
that approval of such procedures may be limited to
particular notices or communications.
(ii) Unless
Administrative Agent otherwise prescribes, (A) notices
and other communications sent to an e-mail address shall
be deemed received upon the senderβs receipt of an
acknowledgement from the intended recipient (such as by
the βreturn receipt requestedβ function, as available,
return e-mail or other written acknowledgement); provided that if
such notice or other communication is not sent during
the normal business hours of the recipient, such notice
or communication shall be deemed to have been sent at
the opening of business on the next Business Day for the
recipient, and (B) notices or communications posted to
an Internet or intranet website shall be deemed received
upon the deemed receipt by the intended recipient at its
e-mail address as described in the foregoing clause (C)
of notification that such notice or communication is
available and identifying the website address therefor.
(iii) The
Borrower agrees that the Administrative Agent may, but
shall not be obligated to, make Communications (as
defined below) available to the Issuing Bank and the
other Lenders by posting the Communications on Debt
Domain, Intralinks, Syndtrak, ClearPar or a
substantially similar Electronic System.
101
(iv) Any Electronic System used by
the Administrative Agent is provided βas isβ and βas
available.β The Agent Parties (as defined below) do
not warrant the adequacy of such Electronic Systems
and expressly disclaim liability for errors or
omissions in the Communications. No warranty of any
kind, express, implied or statutory, including,
without limitation, any warranty of merchantability,
fitness for a particular purpose, non-infringement of
third-party rights or freedom from viruses or other
code defects, is made by any Agent Party in connection
with the Communications or any Electronic System. In
no event shall the Administrative Agent or any of its
Related Parties (collectively, the βAgent Partiesβ)
have any liability to any Loan Party, any Lender, the
Issuing Bank or any other Person or entity for damages
of any kind, including, without limitation, direct or
indirect, special, incidental or consequential
damages, losses or expenses (whether in tort, contract
or otherwise) arising out of any Loan Partyβs or the
Administrative Agentβs transmission of Communications
through an Electronic System. βCommunicationsβ means,
collectively, any notice, demand, communication,
information, document or other material provided by or
on behalf of any Loan Party pursuant to any Loan
Document or the transactions contemplated therein
which is distributed by the Administrative Agent, any
Lender or the Issuing Bank by means of electronic
communications pursuant to this Section, including
through an Electronic System.
Section
11.2. Waiver; Amendments.
(a) No failure or delay by the
Administrative Agent, the Issuing Bank or any Lender
in exercising any right or power hereunder or any
other Loan Document, and no course of dealing between
any Loan Party and the Administrative Agent or any
Lender, shall
operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power or any
abandonment or discontinuance of steps to enforce such
right or power, preclude any other or further exercise
thereof or the exercise of any other right or power
hereunder or thereunder. The rights and remedies of
the Administrative Agent, the Issuing Bank and the
Lenders hereunder and under the other Loan Documents
are cumulative and are not exclusive of any rights or
remedies provided by Law. No waiver of any provision
of this Agreement or any other Loan Document or
consent to any departure by any Loan Party therefrom
shall in any event be effective unless the same shall
be permitted by paragraph (b) of this Section 11.2,
and then such waiver or consent shall be effective
only in the specific instance and for the purpose for
which given. Without limiting the generality of the
foregoing, the making of a Loan or the issuance of a
Letter of Credit shall not be construed as a waiver of
any Default or Event of Default, regardless of whether
the Administrative Agent, any Lender or the Issuing
Bank may have had notice or knowledge of such Default
or Event of Default at the time.
(b) Except as otherwise provided in
this Agreement, including, without limitation, as
provided in Section 2.16 with respect to the
implementation of a Benchmark Replacement Rate or
Benchmark Conforming Changes (as set forth therein),
no amendment or waiver of any provision of this
Agreement or the other Loan Documents (other than the
Fee Letter), nor consent to any departure by the
Borrower therefrom, shall in any event be effective
unless the same shall be in writing and signed by the
Borrower and the Required Lenders or the Borrower and
the Administrative Agent with the consent of the
Required Lenders and then such waiver or consent shall
be effective only in the specific instance and for the
specific purpose for which given; provided, that
(i) no amendment or waiver shall:
(A) increase the Commitment of any
Lender without the written consent of such Lender;
102
(B) reduce the principal amount
of any Loan or LC Disbursement or reduce the rate of
interest thereon, or reduce any fees payable
hereunder, without the written consent of each
Lender affected thereby;
(C) postpone the date fixed for
any payment of any principal of, or interest on, any
Loan or LC Disbursement or interest thereon or any
fees hereunder or reduce the amount of, waive or
excuse any such payment, or postpone the scheduled
date for the termination or reduction of any
Commitment, without the written consent of each
Lender affected thereby;
(D) change Section 2.21(b)
or (c)
in a manner that would alter the pro rata sharing of
payments required thereby or change the provisions
of Section 8.2,
without the written consent of each Lender;
(E) change any of the provisions
of this Section 11.2
or the definition of βRequired
Lendersβ or any other provision
hereof specifying the number or percentage of
Lenders which are required to waive, amend or modify
any rights hereunder or make any determination or
grant any consent hereunder, without the consent of
each Lender;
(F) release the Borrower without
the consent of each Lender, or, release all or
substantially all of the Guarantors or limit the
liability of all or substantially all of the
Guarantors under any Guaranty, without the written
consent of each Lender; or
(G) release all or substantially
all collateral (if any) securing any of the
Obligations, without the written consent of each
Lender; or
(ii) prior to the Revolving
Commitments Termination Date, unless also signed by
Required Lenders, no such amendment or waiver shall,
(i) waive any Default or Event of Default for
purposes of Section
3.2, (ii) amend, change, waive,
discharge or terminate Sections 3.2 or 8.1 in a
manner adverse to such Lenders or (iii) amend,
change, waive, discharge or terminate Article VI
(or any defined term used therein) or this Section 11.2(a)(ii);
provided further, that no such
agreement shall amend, modify or otherwise affect the
rights, duties or obligations of the Administrative
Agent, the Swingline Lender or the Issuing Bank
without the prior written consent of such Person.
Notwithstanding anything to the contrary herein, (i)
no Defaulting Lender shall have any right to approve
or disapprove any amendment, waiver or consent
hereunder, except that (x) the Commitment of such
Lender may not be increased or extended, (y) amounts
payable to such Lender hereunder may not be
permanently reduced without the consent of such Lender
(other than reductions in fees and interest in which
such reduction does not disproportionately affect such
Lender) and (z) any waiver, amendment or modification
requiring the consent of all Lenders or each affected
Lender that by its terms affects any Defaulting Lender
disproportionately adversely relative to other
affected Lenders shall require the consent of such
Defaulting Lender; (ii) this Agreement may be amended
and restated without the consent of any Lender (but
with the consent of the Borrower and the
Administrative Agent) if, upon giving effect to such
amendment and restatement, such Lender shall no longer
be a party to this Agreement (as so amended and
restated), the Commitments of such Lender shall have
terminated (but such Lender shall continue to be
entitled to the benefits of Sections 2.18, 2.19, 2.20
and 11.3), such Lender shall have no other commitment
or other obligation hereunder and shall have been paid
in full all principal, interest and other amounts
owing to it or accrued for its account under this
Agreement; (iii) each Lender is entitled to vote as
such Lender sees fit on any bankruptcy reorganization
plan that affects the Loans, and each Lender
acknowledges that the provisions of Section 1126(c) of
the Bankruptcy Code of the United States supersedes
the unanimous consent provisions set forth herein; and
(iv) the Required Lenders shall determine whether or
not to allow a Loan Party to use cash collateral in
the context of a bankruptcy or insolvency proceeding
and such determination shall be binding on all of the
Lenders.
103
The Lenders hereby
authorize the Administrative Agent to enter into,
and the Lenders agree that this Agreement and the
other Loan Documents shall be amended by, any
agreement implementing an increase in the Aggregate
Revolving Commitments or the establishment of an
Incremental Term Loan to the extent the
Administrative Agent and the Borrower deem necessary
in order to increase the Aggregate Revolving
Commitments or establish the applicable Incremental
Term Loan (it being agreed that modifications to the
definitions of βCommitmentsβ, βLoansβ and βRequired
Lendersβ or other provisions relating to voting
provisions to provide the Persons providing the
applicable increase in the Aggregate Revolving
Commitments or Incremental Term Loan with the
benefit of such provisions will not, by themselves,
be deemed to effect any of the changes described in
Section 11.2(b)).
The Administrative Agent shall promptly notify each
Lender as to the effectiveness of each agreement
implementing an increase in the Aggregate Revolving
Commitments or establishing an Incremental Term
Loan.
Section
11.3. Expenses;
Indemnification.
(a) The Borrower shall pay (i)
all reasonable, out-of-pocket costs and expenses
of the Administrative Agent, the Arrangers and
their Affiliates, including the
reasonable fees, charges and disbursements of
counsel for the Administrative Agent, the
Arrangers and their Affiliates, in connection with
the syndication of the credit facilities provided
for herein, the preparation and administration of
the Loan Documents and any amendments,
modifications or waivers thereof (whether or not
the transactions contemplated in this Agreement or
any other Loan Document shall be consummated),
including the reasonable fees, charges and
disbursements of counsel for the Administrative
Agent, the Arrangers and their Affiliates, (ii)
all reasonable out-of-pocket expenses incurred by
the Issuing Bank in connection with the issuance,
amendment, renewal or extension of any Letter of
Credit or any demand for payment thereunder and
(iii) all out-of-pocket costs and expenses
(including, without limitation, the reasonable
fees, charges and disbursements of outside counsel
and the allocated cost of inside counsel) incurred
by the Administrative Agent, the Arrangers, the
Issuing Bank or any Lender in connection with the
enforcement or protection of its rights in
connection with this Agreement and the other Loan
Documents, including its rights under this Section 11.3,
or in connection with the Loans made or any
Letters of Credit issued hereunder, including all
such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect
of such Loans or Letters of Credit.
104
(b) The Borrower shall
indemnify the Administrative Agent (and any
sub-agent thereof), the Arrangers, each Lender
and the Issuing Bank, and each Related Party of
any of the foregoing Persons (each such Person
being called an βIndemniteeβ)
against, and hold each Indemnitee harmless from,
any and all losses, claims, damages,
liabilities, penalties and related expenses
(including the fees, charges and disbursements
of any counsel for any Indemnitee), and shall
indemnify and hold harmless each Indemnitee from
all fees and time charges and disbursements for
attorneys who may be employees of any
Indemnitee, incurred by any Indemnitee or
asserted against any Indemnitee by any third
party or by the Borrower or any other Loan Party
arising out of, in connection with, or as a
result of (i) the execution or delivery of this
Agreement, any other Loan Document or any
agreement or instrument contemplated hereby or
thereby, the performance by the parties hereto
of their respective obligations hereunder or
thereunder or the consummation of the
transactions contemplated hereby or thereby,
(ii) any Loan or Letter of Credit or the use or
proposed use of the proceeds therefrom
(including any refusal by the Issuing Bank to
honor a demand for payment under a Letter of
Credit if the documents presented in connection
with such demand do not strictly comply with the
terms of such Letter of Credit), (iii) any
actual or alleged presence or Release of
Hazardous Materials on or from any property
owned or operated by the Borrower or any of its
Subsidiaries, or any actual or alleged
Environmental Liability related in any way to
the Borrower or any of its Subsidiaries, or (iv)
any actual or prospective claim, litigation,
investigation or proceeding relating to any of
the foregoing, whether based on contract, tort
or any other theory, whether brought by a third
party or by the Borrower or any other Loan
Party, and regardless of whether any Indemnitee
is a party thereto, provided that such
indemnity shall not, as to any Indemnitee, be
available to the extent that such losses,
claims, damages, liabilities, penalties or
related expenses are determined by a court of
competent jurisdiction by final and
nonappealable judgment to have resulted (x) from
the gross negligence or willful misconduct of
such Indemnitee (including any Related Party of
such Indemnitee) or (y) solely from a claim
brought by the Borrower or any other Loan Party
against an Indemnitee for breach in bad faith of
such Indemniteeβs obligations hereunder or under
any other Loan Document. This Section 11.3(b)
shall not apply with respect to Taxes other than
any Taxes that represent losses, claims,
damages, etc. arising from any non-Tax claim.
(c) To the extent that the
Borrower fails to pay any amount required to be
paid to the Administrative Agent, the Issuing
Bank or the Swingline Lender under clauses (a)
or (b) hereof, each Lender severally agrees to
pay to the Administrative Agent, the Issuing
Bank or the Swingline Lender, as the case may
be, such Lenderβs Pro Rata Share (determined as
of the time that the unreimbursed expense or
indemnity payment is sought) of such unpaid
amount; provided,
that the unreimbursed expense or indemnified
payment, claim, damage, liability or related
expense, as the case may be, was incurred by or
asserted against the Administrative Agent, the
Issuing Bank or the Swingline Lender in its
capacity as such.
(d) To the extent permitted
by applicable Law, each Loan Party shall not
assert, and hereby waives, any claim against any
Indemnitee, on any theory of liability, for
special, indirect, consequential or punitive
damages (as opposed to actual or direct damages)
arising out of, in connection with or as a
result of, this Agreement or any agreement or
instrument contemplated hereby, the transactions
contemplated therein, any Loan or any Letter of
Credit or the use of proceeds thereof.
(e) All amounts due under
this Section
11.3 shall be payable promptly
after written demand therefor.
105
Section 11.4. Successors and
Assigns.
(a) The provisions of
this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their
respective successors and assigns permitted
hereby, except that the Borrower may not
assign or otherwise transfer any of its rights
or obligations hereunder without the prior
written consent of the Administrative Agent
and each Lender, and no Lender may assign or
otherwise transfer any of its rights or
obligations hereunder except (i) to an
assignee in accordance with the provisions of
clause
(b) of this Section, (ii) by
way of participation in accordance with the
provisions of clause (d) of this
Section or (iii) by way of pledge or
assignment of a security interest subject to
the restrictions of clause (f) of this
Section (and any other attempted assignment or
transfer by any party hereto shall be null and
void). Nothing in this Agreement, expressed
or implied, shall be construed to confer upon
any Person (other than the parties hereto,
their respective successors and assigns
permitted hereby, Participants to the extent
provided in clause (d) of this Section and, to
the extent expressly contemplated hereby, the
Related Parties of each of the Administrative
Agent and the Lenders) any legal or equitable
right, remedy or claim under or by reason of
this Agreement.
(b) Any Lender may at
any time assign to one or more assignees all
or a portion of its rights and obligations
under this Agreement (including all or a
portion of its Commitments, Loans, and other
Revolving Credit Exposure at the time owing to
it); provided that any such
assignment shall be subject to the following
conditions:
(i) Minimum
Amounts.
(A) in the case of an
assignment of the entire remaining amount of
the assigning Lenderβs Commitments, Loans and
other Revolving Credit Exposure at the time
owing to it or in the case of an assignment to
a Lender, an Affiliate of a Lender or an
Approved Fund, no minimum amount need be
assigned; and
(B) in any case not
described in paragraph (b)(i)(A) of this
Section, the aggregate amount of the Revolving
Commitment (which for this purpose includes
Revolving Loans and Revolving Credit Exposure
outstanding thereunder or, if the Revolving
Commitment is not then in effect, the
principal outstanding balance of the Revolving
Loans and Revolving Credit Exposure) subject
to each such assignment (determined as of the
date the Assignment and Acceptance with
respect to such assignment is delivered to the
Administrative Agent or, if βTrade Dateβ is
specified in the Assignment and Acceptance, as
of the Trade Date) shall not be less than
$5,000,000 and in minimum increments of
$1,000,000, unless each of the Administrative
Agent and, so long as no Event of Default has
occurred and is continuing, the Borrower
otherwise consents (each such consent not to
be unreasonably withheld or delayed).
(ii) Proportionate
Amounts. Each partial
assignment shall be made as an assignment of a
proportionate part of all the assigning
Lenderβs rights and obligations under this
Agreement with respect to the applicable
Loans, other Revolving Credit Exposure or
Commitments assigned, except that this clause
(ii) shall not prohibit any Lender from
assigning all or a portion of its rights and
obligations in respect of its Revolving
Commitment (and the related Revolving Loans
and other Revolving Credit Exposure
thereunder) on a non-pro rata basis.
(iii) Required
Consents. No consent shall be
required for any assignment except to the
extent required by paragraph (b)(i)(B) of this
Section and, in addition:
(A) the consent of the
Borrower (such consent not to be unreasonably
withheld or delayed) shall be required unless
(x) an Event of Default has
occurred and is continuing at the time of such
assignment or (y) such assignment is to a
Lender, an Affiliate of a Lender or an
Approved Fund;
106
(B) the consent of
the Administrative Agent (such consent not
to be unreasonably withheld or delayed)
shall be required for (x) assignments in
respect of any Revolving Commitment if such
assignment is to a Person that is not a
Lender with a Commitment in respect of the
applicable facility subject to such
assignment, an Affiliate of a Lender or an
Approved Fund and (y) assignments by
Defaulting Lenders; and
(C) the consent of
the Issuing Bank (such consent not to be
unreasonably withheld or delayed) shall be
required for any assignment that increases
the obligation of the assignee to
participate in exposure under one or more
Letters of Credit (whether or not then
outstanding), and the consent of the
Swingline Lender (such consent not to be
unreasonably withheld or delayed) shall be
required for any assignment in respect of
the Revolving Commitments.
(iv) Assignment
and Acceptance. The parties
to each assignment shall deliver to the
Administrative Agent (A) a duly executed
Assignment and Acceptance, (B) a processing
and recordation fee of $3,500, (C) an
Administrative Questionnaire unless the
assignee is already a Lender and (D) the
documents required under Section
2.20 if such assignee is a
Foreign Lender.
(v) No
Assignment to Certain Persons.
No such assignment shall be made to (A) the
Borrower or any of the Borrowerβs Affiliates
or Subsidiaries or (B) to any Defaulting
Lender or any of its Subsidiaries, or any
Person who, upon becoming a Lender
hereunder, would constitute any of the
foregoing Persons described in this clause
(B).
(vi) No
Assignment to Natural Persons.
No such assignment shall be made to a
natural person.
Subject to acceptance and
recording thereof by the Administrative Agent
pursuant to clause (c) of this Section 11.4,
from and after the effective date specified in
each Assignment and Acceptance, the assignee
thereunder shall be a party to this Agreement
and, to the extent of the interest assigned by
such Assignment and Acceptance, have the
rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder
shall, to the extent of the interest assigned
by such Assignment and Acceptance, be released
from its obligations under this Agreement
(and, in the case of an Assignment and
Acceptance covering all of the assigning
Lenderβs rights and obligations under this
Agreement, such Lender shall cease to be a
party hereto) but shall continue to be
entitled to the benefits of Sections 2.18,
2.19,
2.20
and 11.3 with respect to
facts and circumstances occurring prior to the
effective date of such assignment. Any
assignment or transfer by a Lender of rights
or obligations under this Agreement that does
not comply with this paragraph shall be
treated for purposes of this Agreement as a
sale by such Lender of a participation in such
rights and obligations in accordance with clause (d)
of this Section 11.4. If
the consent of the Borrower to an
assignment is required hereunder (including
a consent to an
assignment which does not meet the minimum
assignment thresholds specified above), the
Borrower shall be deemed to
have given its consent five Business
Days after the date
notice thereof has actually been delivered
by the assigning Lender (through
the Administrative Agent)
to the Borrower,
unless such consent is expressly refused by
the Borrower prior
to such fifth Business
Day.
107
(c)
The Administrative Agent, acting
solely for this purpose as an agent of the
Borrower, shall maintain at one of its
offices in Charlotte, North Carolina a
copy of each Assignment and Acceptance
delivered to it and a register for the
recordation of the names and addresses of
the Lenders, and the Commitments of, and
principal amounts (and stated interest) of
the Loans and Revolving Credit Exposure
owing to, each Lender pursuant to the
terms hereof from time to time (the βRegisterβ).
The entries in the Register shall be
conclusive absent manifest error, and the
Borrower, the Administrative Agent and the
Lenders shall treat each Person whose name
is recorded in the Register pursuant to
the terms hereof as a Lender hereunder for
all purposes of this Agreement. The
Register shall be available for inspection
by the Borrower and any Lender at any
reasonable time and from time to time upon
reasonable prior notice.
(d)
Any Lender may at any time,
without the consent of, or notice to, the
Borrower, the Administrative Agent, the
Swingline Lender or the Issuing Bank sell
participations to any Person (other than a
natural person, the Borrower or any of the
Borrowerβs Affiliates or Subsidiaries or a
Defaulting Lender) (each, a βParticipantβ)
in all or a portion of such Lenderβs
rights and/or obligations under this
Agreement (including all or a portion of
its Commitment and/or the Loans owing to
it); provided that
(i) such Lenderβs obligations under this
Agreement shall remain unchanged,
(ii) such Lender shall remain solely
responsible to the other parties hereto
for the performance of such obligations
and (iii) the Borrower, the Administrative
Agent, the Lenders, the Issuing Bank and
the Swingline Lender shall continue to
deal solely and directly with such Lender
in connection with such Lenderβs rights
and obligations under this Agreement.
(e)
Any agreement or instrument
pursuant to which a Lender sells such a
participation shall provide that such
Lender shall retain the sole right to
enforce this Agreement and to approve any
amendment, modification or waiver of any
provision of this Agreement; provided
that such agreement or instrument may
provide that such Lender will not, without
the consent of the Participant, agree to
any amendment, modification or waiver with
respect to the following to the extent
affecting such Participant: (i) increase
the Commitment of any Lender without the
written consent of such Lender, (ii)
reduce the principal amount of any Loan or
LC Disbursement or reduce the rate of
interest thereon, or reduce any fees
payable hereunder, without the written
consent of each Lender affected thereby,
(iii) postpone the date fixed for any
payment of any principal of, or interest
on, any Loan or LC Disbursement or
interest thereon or any fees hereunder or
reduce the amount of, waive or excuse any
such payment, or postpone the scheduled
date for the termination or reduction of
any Commitment, without the written
consent of each Lender affected thereby,
(iv) change Section 2.21(b) or
(c)
in a manner that would alter the pro rata
sharing of payments required thereby,
without the written consent of each
Lender, (v) change any of the provisions
of this Section 11.4 or
the definition of βRequired Lendersβ or
any other provision hereof specifying the
number or percentage of Lenders which are
required to waive, amend or modify any
rights hereunder or make any determination
or grant any consent hereunder, without
the consent of each Lender, (vi) release
any Guarantor or limit the liability of
any such Guarantor under any Guaranty
without the written consent of each Lender
except to the extent such release is
expressly provided under the terms of this
Agreement or (vii) release all or
substantially all collateral (if any)
securing any of the Obligations. The
Borrower agrees that each Participant
shall be entitled to the benefits of Sections
2.18, 2.19,
and 2.20 (subject to
the requirements and limitations therein,
including the requirements under Section
2.20(g) (it being
understood that the documentation required
under Section 2.20(g) shall be delivered
to the participating Lender)) to the same
extent as if it were a Lender and had
acquired its interest by assignment
pursuant to paragraph (b) of this Section
11.4; provided
that such Participant (A) agrees to be
subject to the provisions of Sections
2.24 and 2.25
as if it were an assignee under paragraph
(b) of this Section 11.4; and
(B) shall not be entitled to receive any
greater payment under Sections
2.18 or 2.20,
with respect to any participation, than
its participating Lender would have been
entitled to receive, except to the extent
such entitlement to receive a greater
payment results from a Change in Law that
occurs after the Participant acquired the
applicable participation. Each Lender
that sells a participation agrees, at the
Borrowerβs request and expense, to use
reasonable efforts to cooperate with
Borrower to effectuate the provision of Section
2.25 with respect to any
Participant. To the extent permitted by
Law, each Participant also shall be
entitled to the benefits of Section 11.7
as though it were a Lender, provided such
Participant agrees to be subject to Section
2.21 as though it were a
Lender. Each Lender that sells a
participation shall, acting solely for
this purpose as a non-fiduciary agent of
the Borrower, maintain a register on which
it enters the name and address of each
Participant and the principal amounts (and
stated interest) of each Participantβs
interest in the Loans or other obligations
under the Loan Documents (the βParticipant
Registerβ); provided that
no Lender shall have any obligation to
disclose all or any portion of the
Participant Register (including the
identity of any Participant or any
information relating to a Participantβs
interest in any commitments, loans,
letters of credit or its other obligations
under any Loan Document) to any Person
except to the extent that such disclosure
is necessary to establish that such
commitment, loan, letter of credit or
other obligation is in registered form
under Section 5f.103-1(c) of the United
States Treasury Regulations. The entries
in the Participant Register shall be
conclusive absent manifest error, and such
Lender shall treat each Person whose name
is recorded in the Participant Register as
the owner of such participation for all
purposes of this Agreement notwithstanding
any notice to the contrary. For the
avoidance of doubt, the Administrative
Agent (in its capacity as Administrative
Agent) shall have no responsibility for
maintaining a Participant Register.
108
(f)
Any Lender may at any time
pledge or assign a security interest in
all or any portion of its rights under
this Agreement to secure obligations of
such Lender, including without
limitation any pledge or assignment to
secure obligations to a Federal Reserve
Bank; provided that no
such pledge or assignment shall release
such Lender from any of its obligations
hereunder or substitute any such pledgee
or assignee for such Lender as a party
hereto.
Section
11.5. Governing
Law; Jurisdiction; Consent to
Service of Process.
(a)
This Agreement and the other
Loan Documents and any claims,
controversy, dispute or cause of action
(whether in contract or tort or
otherwise) based upon, arising out of or
relating to this Agreement or any other
Loan Document (except, as to any other
Loan Document, as expressly set forth
therein) and the transactions
contemplated hereby and thereby shall be
construed in accordance with and be
governed by the Law (without giving
effect to the conflict of law principles
thereof) of the State of New York.
(b)
Each Loan Party hereby
irrevocably and unconditionally submits,
for itself and its property, to the
exclusive jurisdiction
of the United States District Court of
the Southern District of New York, and
of the Supreme Court of the State of New
York sitting in New York County and any
appellate court from any thereof, in any
action or proceeding arising out of or
relating to this Agreement or any other
Loan Document or the transactions
contemplated hereby or thereby, or for
recognition or enforcement of any
judgment, and each of the parties hereto
hereby irrevocably and unconditionally
agrees that all claims in respect of any
such action or proceeding may be heard
and determined in such District Court or
New York
state court or, to the extent permitted
by applicable Law, such Federal court.
Each of the parties hereto agrees that a
final judgment in any such action or
proceeding shall be conclusive and may
be enforced in other jurisdictions by
suit on the judgment or in any other
manner provided by Law. Nothing in this
Agreement or any other Loan Document
shall affect any right that the
Administrative Agent, the Issuing Bank
or any Lender may otherwise have to
bring any action or proceeding relating
to this Agreement or any other Loan
Document against any Loan Party or its
properties in the courts of any
jurisdiction.
109
(c)
Each Loan Party irrevocably
and unconditionally waives any
objection which it may now or
hereafter have to the laying of venue
of any such suit, action or proceeding
described in paragraph (b) of this Section
11.5 and brought in any
court referred to in paragraph (b) of
this Section 11.5.
Each of the parties hereto irrevocably
waives, to the fullest extent
permitted by applicable Law, the
defense of an inconvenient forum to
the maintenance of such action or
proceeding in any such court.
(d)
Each party to this Agreement
irrevocably consents to the service of
process in the manner provided for
notices in Section
11.1. Nothing in this
Agreement or in any other Loan
Document will affect the right of any
party hereto to serve process in any
other manner permitted by Law.
Section
11.6. WAIVER
OF JURY TRIAL. EACH
PARTY HERETO IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY (WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY). EACH PARTY
HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER, AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
Section
11.7. Right
of Setoff. In addition
to any rights now or hereafter granted
under applicable Law and not by way of
limitation of any such rights, each
Lender and the Issuing Bank shall have
the right, at any time or from time to
time upon the occurrence and during
the continuance of an Event of
Default, without prior notice to the
Borrower, any such notice being
expressly waived by the Borrower to
the extent permitted by applicable
Law, to set off and apply against all
deposits (general or special, time or
demand, provisional or final) of the
Borrower at any time held or other
obligations at any time owing by such
Lender and the Issuing Bank to or for
the credit or the account of the
Borrower against any and all
Obligations held by such Lender or the
Issuing Bank, as the case may be,
irrespective of whether such Lender or
the Issuing Bank shall have made
demand hereunder and although such
Obligations may be unmatured. Each
Lender and the Issuing Bank agree
promptly to notify the Administrative
Agent and the Borrower after any such
set-off and any application made by
such Lender and the Issuing Bank, as
the case may be; provided,
that the failure to give such notice
shall not affect the validity of such
set-off and application. Each Lender
and the Issuing Bank agrees to apply
all amounts collected from any such
set-off to the Obligations before
applying such amounts to any other
Indebtedness or other obligations owed
by the Borrower and any of its
Subsidiaries to such Lender or Issuing
Bank. Notwithstanding the provisions
of this Section 11.7,
if at any time any Lender, the Issuing
Bank or any of their respective
Affiliates maintains one or more
deposit accounts for the Borrower or
any other Loan Party into which
Medicare and/or Medicaid receivables
are deposited, such Person shall waive
the right of setoff set forth herein.
110
Section
11.8. Counterparts;
Integration. This
Agreement may be executed by one or
more of the parties to this
Agreement on any number of separate
counterparts (including by
telecopy), and all of said
counterparts taken together shall be
deemed to constitute one and the
same instrument. This Agreement,
the Fee Letter, the other Loan
Documents, and any separate letter
agreement(s) relating to any fees
payable to the Administrative Agent
and its Affiliates constitute the
entire agreement among the parties
hereto and thereto and their
affiliates regarding the subject
matters hereof and thereof and
supersede all prior agreements and
understandings, oral or written,
regarding such subject matters.
Delivery of an executed counterpart
of a signature page of this
Agreement and any other Loan
Document by facsimile transmission
or by any other electronic imaging
means (including .pdf), shall be
effective as delivery of a manually
executed counterpart of this
Agreement or such other Loan
Document.
Section
11.9. Survival.
All covenants, agreements,
representations and warranties made
by any Loan Party herein, in the
Loan Documents and in the
certificates or other instruments
delivered in connection with or
pursuant to this Agreement shall be
considered to have been relied upon
by the other parties hereto and
shall survive the execution and
delivery of this Agreement and the
making of any Loans and issuance of
any Letters of Credit, regardless of
any investigation made by any such
other party or on its behalf and
notwithstanding that the
Administrative Agent, the Issuing
Bank or any Lender may have had
notice or knowledge of any Default
or Event of Default or incorrect
representation or warranty at the
time any credit is extended
hereunder, and shall continue in
full force and effect as long as the
principal of or any accrued interest
on any Loan or any fee or any other
amount payable under this Agreement
is outstanding and unpaid or any
Letter of Credit is outstanding and
so long as the Commitments have not
expired or terminated. The
provisions of Sections 2.18,
2.19,
2.20,
and 11.3
and Article IX
shall survive and remain in full
force and effect regardless of the
consummation of the transactions
contemplated hereby, the repayment
of the Loans, the expiration or
termination of the Letters of Credit
and the Commitments or the
termination of this Agreement or any
provision hereof. All
representations and warranties made
herein, in the Loan Documents, in
the certificates, reports, notices,
and other documents delivered
pursuant to this Agreement shall
survive the execution and delivery
of this Agreement and the other Loan
Documents, and the making of the
Loans and the issuance of the
Letters of Credit.
Section
11.10. Severability.
Any provision of this Agreement or
any other Loan Document held to be
illegal, invalid or unenforceable in
any jurisdiction, shall, as to such
jurisdiction, be ineffective to the
extent of such illegality,
invalidity or unenforceability
without affecting the legality,
validity or enforceability of the
remaining provisions hereof or
thereof; and the illegality,
invalidity or unenforceability of a
particular provision in a particular
jurisdiction shall not invalidate or
render unenforceable such provision
in any other jurisdiction.
111
Section 11.11. Confidentiality.
Each of the Administrative Agent,
the Issuing Bank and the Lenders
agrees to take normal and
reasonable precautions to maintain
the confidentiality of any
information relating to the
Borrower or any of its
Subsidiaries or any of their
respective businesses, to the
extent designated in writing as
confidential and provided to it by
the Borrower or any Subsidiary,
other than any such information
that is available to the
Administrative Agent, the Issuing
Bank or any Lender on a
nonconfidential basis prior to
disclosure by the Borrower or any
of its Subsidiaries, except that
such information may be disclosed
(i) to any Related Party of the
Administrative Agent, the Issuing
Bank or any such Lender including
without limitation accountants,
legal counsel and other advisors,
(ii) to the extent required by
applicable Laws or regulations or
by any subpoena or similar legal
process, (iii) to the extent
requested by any regulatory agency
or authority purporting to have
jurisdiction over it (including
any self-regulatory authority such
as the National Association of
Insurance Commissioners), (iv) to
the extent that such information
becomes publicly available other
than as a result of a breach of
this Section
11.11, or which
becomes available to the
Administrative Agent, the Issuing
Bank, any Lender or any Related
Party of any of the foregoing on a
non-confidential basis from a
source other than the Borrower,
(v) in connection with the
exercise of any remedy hereunder
or under any other Loan Documents
or any suit, action or proceeding
relating to this Agreement or any
other Loan Documents or the
enforcement of rights hereunder or
thereunder, (vii) subject to an
agreement containing provisions
substantially the same as those of
this Section
11.11, to (A) any
assignee of or Participant in, or
any prospective assignee of or
Participant in, any of its rights
or obligations under this
Agreement, or (B) any actual or
prospective party (or its Related
Parties) to any swap or derivative
or similar transaction under which
payments are to be made by
reference to the Borrower and its
obligations, this Agreement or
payments hereunder, (viii) any
rating agency, (ix) the CUSIP
Service Bureau or any similar
organization, or (x) with the
consent of the Borrower. Any
Person required to maintain the
confidentiality of any information
as provided for in this Section 11.11
shall be considered to have
complied with its obligation to do
so if such Person has exercised
the same degree of care to
maintain the confidentiality of
such information as such Person
would accord its own confidential
information.
Section 11.12. Interest Rate
Limitation.
Notwithstanding anything herein to
the contrary, if at any time the
interest rate applicable to any
Loan, together with all fees,
charges and other amounts which
may be treated as interest on such
Loan under applicable Law
(collectively, the βChargesβ),
shall exceed the maximum lawful
rate of interest (the βMaximum Rateβ)
which may be contracted for,
charged, taken, received or
reserved by a Lender holding such
Loan in accordance with applicable
Law, the rate of interest payable
in respect of such Loan hereunder,
together with all Charges payable
in respect thereof, shall be
limited to the Maximum Rate and,
to the extent lawful, the interest
and Charges that would have been
payable in respect of such Loan
but were not payable as a result
of the operation of this Section 11.12
shall be cumulated and the
interest and Charges payable to
such Lender in respect of other
Loans or periods shall be
increased (but not above the
Maximum Rate therefor) until such
cumulated amount, together with
interest thereon at the Federal
Funds Rate to the date of
repayment (to the extent permitted
by applicable Law), shall have
been received by such Lender.
Section 11.13. Waiver of
Effect of Corporate Seal.
Each Loan Party represents and
warrants to the Administrative
Agent and the Lenders that neither
it nor any other Loan Party is
required to affix its corporate
seal to this Agreement or any
other Loan Document pursuant to
any Law, agrees that this
Agreement is delivered by Borrower
under seal and waives any
shortening of the statute of
limitations that may result from
not affixing the corporate seal to
this Agreement or such other Loan
Documents.
Section 11.14. Patriot Act.
The Administrative Agent and each
Lender hereby notifies the Loan
Parties that, pursuant to the
requirements of the Patriot Act,
it is required to obtain, verify
and record information that
identifies each Loan Party, which
information includes the name and
address of such Loan Party and
other information that will allow
such Lender or the Administrative
Agent, as applicable, to identify
such Loan Party in accordance with
the Patriot Act.
112
Section
11.15. No
Advisory or Fiduciary
Responsibility.
In connection with
all aspects of each
transaction contemplated
hereby (including in
connection with any amendment,
waiver or other modification
hereof or of any other Loan
Document), Borrower and each
other Loan Party acknowledges
and agrees and acknowledges
its Affiliates' understanding
that that: (i) (A) the
services regarding this
Agreement provided by the
Administrative Agent, the
Arrangers and/or the Lenders
are armβs-length commercial
transactions between
Borrower, each other Loan
Party and their respective
Affiliates, on the one hand,
and the Administrative Agent,
the Arrangers and the Lenders,
on the other hand, (B) each of
Borrower and the other Loan
Parties have consulted their
own legal, accounting,
regulatory and tax advisors to
the extent they have deemed
appropriate, and (C) Borrower
and each other Loan Party is
capable of evaluating and
understanding, and understands
and accepts, the terms, risks
and conditions of the
transactions contemplated
hereby and by the other Loan
Documents; (ii) (A) each of
the Administrative Agent, the
Arrangers and the Lenders is
and has been acting solely as
a principal and, except as
expressly agreed in writing by
the relevant parties, has not
been, is not, and will not be
acting as an advisor, agent or
fiduciary, for Borrower, any
other Loan Party, or any of
their respective Affiliates,
or any other Person and (B)
none of the Administrative
Agent, the Arrangers and any
Lender has any obligation to
Borrower, any other Loan Party
or any of their Affiliates
with respect to the
transaction contemplated
hereby except those
obligations expressly set
forth herein and in the other
Loan Documents; and (iii) the
Administrative Agent, the
Arrangers, the Lenders and
their respective Affiliates
may be engaged in a broad
range of transactions that
involve interests that differ
from those of Borrower, the
other Loan Parties and their
respective Affiliates, and
each of the Administrative
Agent, the Arrangers and the
Lenders has no obligation to
disclose any of such interests
to Borrower, any other Loan
Party of any of their
respective Affiliates. To the
fullest extent permitted by
Law, each of Borrower and the
other Loan Parties hereby
waive and release any claims
that it may have against the
Administrative Agent, the
Arrangers and each Lender with
respect to any breach or
alleged breach of agency or
fiduciary duty in connection
with any aspect of any
transaction contemplated
hereby.
Section
11.16. Electronic
Execution of Assignments and
Certain Other Documents. The
words βexecution,β βsigned,β
βsignature,β and words of like
import in any Assignment and
Acceptance or in any amendment
or other modification hereof
(including waivers and consents)
shall be deemed to include
electronic signatures, the
electronic matching of
assignment terms and contract
formations on electronic
platforms approved by the
Administrative Agent,
or the keeping of records in
electronic form, each of which
shall be of the same legal
effect, validity or
enforceability as a manually
executed signature or the use of
a paper-based recordkeeping
system, as the case may be, to
the extent and as provided for
in any applicable Law, including
the Federal Electronic
Signatures in Global and
National Commerce Act, the New
York State Electronic Signatures
and Records Act, or any other
similar state laws based on the
Uniform Electronic Transactions
Act; provided
that
notwithstanding anything
contained herein to the
contrary the Administrative
Agent is under no obligation
to agree to accept electronic
signatures in any form or in
any format unless expressly
agreed to by the
Administrative Agent pursuant
to procedures approved by it.
Section
11.17. Acknowledgement
and Consent to Bail-In of
Affected Financial
Institutions. Notwithstanding
anything to the contrary in any
Loan Document or in any other
agreement, arrangement or
understanding among any such
parties, each party hereto
acknowledges that any liability
of any Lender that is an
Affected Financial Institution
arising under any Loan Document,
to the extent that such
liability is unsecured, may be
subject to the Write-Down and
Conversion Powers of the
applicable Resolution Authority,
and each party hereto agrees and
consents to, and acknowledges
and agrees to be bound by: (a)
the application of any
Write-Down and Conversion Powers
by the applicable Resolution
Authority to any such
liabilities arising hereunder
that may be payable to it by any
Lender that is an Affected
Financial Institution; and (b)
the effects of any Bail-In
Action on any such liability,
including, if applicable, (i) a
reduction, in full or in part,
or cancellation of any such
liability, (ii) a conversion of
all, or a portion, of such
liability into shares or other
instruments of ownership in such
Affected Financial Institution,
its parent undertaking, or a
bridge institution that may be
issued to, or otherwise
conferred on, it, and that such
shares or other instruments of
ownership will be accepted by it
in lieu of any rights with
respect to any such liability
under this Agreement or any
other Loan Document, or (iii)
the variation of the terms of
such liability in connection
with the exercise of the
Write-Down and Conversion Powers
of the applicable Resolution
Authority.
113
Section
11.18. Certain
ERISA Matters.
(a)
Each
Lender (x) represents and
warrants, as of the date such
Person became a Lender party
hereto, to, and (y) covenants,
from the date such Person
became a Lender party hereto
to the date such Person ceases
being a Lender party hereto,
for the benefit of, the
Administrative Agent, the
Arrangers, and their
respective Affiliates, and
not, for the avoidance of
doubt, to or for the benefit
of the Borrower or any other
Loan Party, that at least one
of the following is and will
be true:
(i)
such
Lender is not using βplan
assetsβ (within the meaning of
Section 3(42) of ERISA or
otherwise) of one or more
Benefit Plans with respect to
such Lenderβs entrance into,
participation in,
administration of and
performance of the connection
with the Loans, the Letters of
Credit, the Commitments or
this Agreement;
(ii)
the
transaction exemption set
forth in one or more PTEs,
such as PTE 84-14 (a class
exemption for certain
transactions determined by
independent qualified
professional asset managers),
PTE 95-60 (a class exemption
for certain transactions
involving insurance company
general accounts), PTE 90-1 (a
class exemption for certain
transactions involving
insurance company pooled
separate accounts), PTE 91-38
(a class exemption for certain
transactions involving bank
collective investment funds)
or PTE 96-23 (a class
exemption for certain
transactions determined by
in-house asset managers), is
applicable with respect to
such Lenderβs entrance into,
participation in,
administration of and
performance of the Loans, the
Letters of Credit, the
Commitments and this
Agreement;
(iii)
(A)
such Lender is an investment
fund managed by a βQualified
Professional Asset Managerβ
(within the meaning of Part VI
of PTE 84-14), (B) such
Qualified Professional Asset
Manager made the investment
decision on behalf of such
Lender to enter into,
participate in, administer and
perform the Loans, the Letters
of Credit, the Commitments and
this Agreement, (C) the
entrance into, participation
in, administration of and
performance of the Loans, the
Letters of Credit, the
Commitments and this Agreement
satisfies the requirements of
sub-sections (b) through (g)
of Part I of PTE 84-14 and (D)
to the best knowledge of such
Lender, the requirements of
subsection (a) of Part I of
PTE 84-14 are satisfied with
respect to such Lenderβs
entrance into, participation
in, administration of and
performance of the Loans, the
Letters of Credit, the
Commitments and this
Agreement; or
(iv)
such
other representation, warranty
and covenant as may be agreed
in writing between the
Administrative Agent, in its
sole discretion, and such
Lender.
In
addition, unless either (1)
sub-clause (i) in the
immediately preceding clause (a)
is true with respect to a Lender
or (2) a Lender has provided
another representation, warranty
and covenant in accordance with
sub-clause (iv) in the
immediately preceding clause
(a), such Lender further (x)
represents and warrants, as of
the date such Person became a
Lender party hereto, to, and (y)
covenants, from the date such
Person became a Lender party
hereto to the date such Person
ceases being a Lender party
hereto, for the benefit of, the
Administrative Agent and not,
for the avoidance of doubt, to
or for the benefit of the
Borrower or any other Loan
Party, that the Administrative
Agent is not a fiduciary with
respect to the assets of such
Lender involved in such Lenderβs
entrance into, participation in,
administration of and
performance of the Loans, the
Letters of Credit, the
Commitments and this Agreement
(including in connection with
the reservation or exercise of
any rights by the Administrative
Agent under this Agreement, any
Loan Document or any documents
related hereto or thereto).
114
Section
11.19. Acknowledgement
Regarding any Supported
QFCs.
(a)
To
the extent that the Loan
Documents provide support,
through a guarantee or
otherwise, for any Swap
Obligation or any other
agreement or instrument that
is a QFC (such support, βQFC
Credit Supportβ;
and each such QFC, a βSupported
QFCβ), the
parties acknowledge and
agree as follows with
respect to the resolution
power of the Federal Deposit
Insurance Corporation under
the Federal Deposit
Insurance Act and Title II
of the Xxxx-Xxxxx Xxxx
Street Reform and Consumer
Protection Act (together
with the regulations
promulgated thereunder, the
βU.S.
Special Resolution
Regimesβ) in
respect of such Supported
QFC and QFC Credit Support
(with the provisions below
applicable notwithstanding
that the Loan Documents and
any Supported QFC may in
fact be stated to be
governed by the laws of the
State of New York and/or of
the United States or any
other state of the United
States.
(b)
In
the event that a Covered
Entity that is a party to a
Supported QFC (each, a βCovered
Partyβ)
becomes subject to a
proceeding under a U.S.
Special Resolution Regime,
the transfer of such
Supported QFC and the
benefit of such QFC Credit
Support (and any interest
and obligation in or under
such Supported QFC and such
QFC Credit Support, and any
rights in property securing
such Supported QFC or such
QFC Credit Support) from
such Covered Party will be
effective to the same extent
as the transfer would be
effective under the U.S.
Special Resolution Regime if
the Supported QFC and such
QFC Credit Support (and any
such interest, obligation
and rights in property) were
governed by the Laws of the
United States or a state of
the United States. In the
event that a Covered Party,
or a BHC Act Affiliate of a
Covered Party, becomes
subject to a proceeding
under a U.S. Special
Resolution Regime, Default
Rights under the Loan
Documents that might
otherwise apply to such
Supported QFC or any QFC
Credit Support that may be
exercised against such
Covered Party are permitted
to be exercised to no
greater extent than such
Default Rights could be
exercised under the U.S.
Special Resolution Regime if
the Supported QFC and the
Loan Documents were governed
by the laws of the United
States or a state of the
United States. Without
limitation of the foregoing,
it is understood and agreed
that rights and remedies of
the parties with respect to
a Defaulting Lender shall in
no event affect the rights
of any Covered Party with
respect to a Supported QFC
or any QFC Credit Support.
[SIGNATURE
PAGES FOLLOW]
115
BORROWER:
|
XXXXXX
HEALTHCARE, INC.,
|
|
a Delaware
corporation
|
|
By: __/s/
Xxxxxx X. Xxxx
|
|
Name: Xxxxxx
X. Xxxx
|
|
Title:
Chief Financial
Officer and
Treasurer
|
ADMINISTRATIVE
AGENT:
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TRUIST BANK,
as
Administrative Agent
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By: __/s/
Xxx Xxxxxxx
|
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Name: Xxx
Xxxxxxx
|
|
Title:
Managing Director
|
|
LENDERS:
|
TRUIST BANK,
|
|
as the Issuing
Bank, as Swingline Lender and as
a Lender
|
|
By: __/s/
Xxx Xxxxxxx
|
|
Name: Xxx
Xxxxxxx
|
|
Title:
Managing Director
|
|
BANK OF
AMERICA, N.A.
|
By: __/s/
Xxxxxxx Xxxxx
|
|
|
Name: Xxxxxxx
Xxxxx
|
|
Title:
Director
|
BARCLAYS BANK
PLC
|
|
By: __/s/
Xxxxxx Xxxxx
|
|
|
Name: Xxxxxx
Xxxxx
|
|
Title:
Director
|
|
|
DEUTSCHE BANK
AG NEW YORK BRANCH
|
|
|
By: __/s/
Xxxxxx Xxxxxxxx
|
|
Name: Xxxxxx
Xxxxxxxx
|
|
Title: Vice
President
|
|
By: __/s/
Xxxx Xxxxx
|
|
Name: Xxxx
Xxxxx
|
|
Title: Vice
President
|
MUFG UNION
BANK, N.A.
|
|
By: __/s/
Xxxxx Xxxxxxx
|
|
|
Name: Xxxxx
Xxxxxxx
|
|
Title:
Director
|
|
|
XXXXX FARGO
BANK, NATIONAL ASSOCIATION
|
|
|
|
By: __/s/
Xxxxxx Xxxxxx
|
|
Name: Xxxxxx
Xxxxxx
|
|
|
Title:
Managing Director
|
CITIZENS BANK,
N.A.
|
|
By: __/s/
Xxxxxxxxxxx X. XxXxxxx
|
|
Name:
Xxxxxxxxxxx X. XxXxxxx
|
|
Title:
Senior Vice President
|
|
FIFTH THIRD
BANK, NATIONAL ASSOCIATION
|
|
By: __/s/
Xxxxxx Xxxxx
|
|
Name: Xxxxxx
Xxxxx
|
|
Title:
Director
|
|
THE HUNTINGTON NATIONAL
BANK
|
|
By: __/s/
Xxxxxx X. Xxxxxxxxx
|
|
Name: Xxxxxx
X. Xxxxxxxxx
|
|
Title:
Senior Vice President
|
|
U.S. BANK
NATIONAL ASSOCIATION
|
|
By: __/s/
Xxxxx Xxxxxxxxx
|
|
Name: Xxxxx
Xxxxxxxxx
|
|
Title: Vice
President
|
|
JPMORGAN CHASE
BANK, N.A.
|
|
By: __/s/
Xxxxxxxx X. Xxxxxx
|
|
Name:
Xxxxxxxx X. Xxxxxx
|
|
Title: Vice
President
|