EXHIBIT 10.1
REVOLVING CREDIT AND TERM LOAN AGREEMENT
DATED AS OF SEPTEMBER 5, 2003
AMONG
AMERICAN HEALTHWAYS, INC.
AS BORROWER
THE LENDERS FROM TIME TO TIME PARTY HERETO
AND
SUNTRUST BANK
AS ADMINISTRATIVE AGENT
AND
NATIONAL CITY BANK
AS DOCUMENTATION AGENT
AND
US BANK, N.A.
AS SYNDICATION AGENT
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SUNTRUST XXXXXXXX XXXXXXXX
A DIVISION OF SUNTRUST CAPITAL MARKETS, INC.
AS LEAD ARRANGER
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS; CONSTRUCTION..................................................... 1
Section 1.1 Definitions................................................................... 1
Section 1.2 Classifications of Loans and Borrowings....................................... 20
Section 1.3 Accounting Terms and Determination............................................ 20
Section 1.4 Terms Generally............................................................... 20
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS........................................... 21
Section 2.1 General Description of Facilities............................................. 21
Section 2.2 Revolving Loans............................................................... 21
Section 2.3 Procedure for Revolving Borrowings............................................ 21
Section 2.4 Swingline Commitment.......................................................... 22
Section 2.5 Procedure for Swingline Borrowing; Etc........................................ 22
Section 2.6 Intentionally Omitted......................................................... 23
Section 2.7 Term Loan Commitments......................................................... 23
Section 2.8 Funding of Borrowings......................................................... 24
Section 2.9 Interest Elections............................................................ 24
Section 2.10 Optional Reduction and Termination of Commitments............................. 25
Section 2.11 Repayment of Loans............................................................ 26
Section 2.12 Evidence of Indebtedness...................................................... 27
Section 2.13 Optional and Mandatory Prepayments............................................ 27
Section 2.14 Interest on Loans............................................................. 28
Section 2.15 Fees.......................................................................... 29
Section 2.16 Computation of Interest and Fees.............................................. 30
Section 2.17 Inability to Determine Interest Rates......................................... 30
Section 2.18 Illegality.................................................................... 31
Section 2.19 Increased Costs............................................................... 31
Section 2.20 Funding Indemnity............................................................. 32
Section 2.21 Taxes......................................................................... 33
Section 2.22 Payments Generally; Pro Rata Treatment; Sharing of Set-offs................... 34
Section 2.23 Mitigation of Obligations..................................................... 36
Section 2.24 Letters of Credit............................................................. 36
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(CONTINUED)
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ARTICLE III CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT........................... 40
Section 3.1 Conditions To Effectiveness................................................... 40
Section 3.2 Each Credit Event............................................................. 42
Section 3.3 Delivery of Documents......................................................... 43
ARTICLE IV REPRESENTATIONS AND WARRANTIES................................................ 43
Section 4.1 Existence; Power.............................................................. 43
Section 4.2 Organizational Power; Authorization........................................... 43
Section 4.3 Governmental Approvals; No Conflicts.......................................... 44
Section 4.4 Financial Statements.......................................................... 44
Section 4.5 Litigation and Environmental Matters.......................................... 44
Section 4.6 Compliance with Laws and Agreements........................................... 45
Section 4.7 Investment Company Act, Etc................................................... 45
Section 4.8 Taxes......................................................................... 45
Section 4.9 Margin Regulations............................................................ 45
Section 4.10 ERISA......................................................................... 45
Section 4.11 Ownership of Property......................................................... 45
Section 4.12 Disclosure.................................................................... 46
Section 4.13 Labor Relations............................................................... 46
Section 4.14 Subsidiaries.................................................................. 46
ARTICLE V AFFIRMATIVE COVENANTS......................................................... 46
Section 5.1 Financial Statements and Other Information.................................... 46
Section 5.2 Notices of Material Events.................................................... 48
Section 5.3 Existence; Conduct of Business................................................ 48
Section 5.4 Compliance with Laws, Etc..................................................... 49
Section 5.5 Payment of Obligations........................................................ 49
Section 5.6 Books and Records............................................................. 49
Section 5.7 Visitation, Inspection, Etc................................................... 49
Section 5.8 Maintenance of Properties; Insurance.......................................... 49
Section 5.9 Use of Proceeds and Letters of Credit......................................... 49
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PAGE
Section 5.10 Additional Subsidiaries....................................................... 50
Section 5.11 Additional Assets............................................................. 50
ARTICLE VI FINANCIAL COVENANTS........................................................... 50
Section 6.1 Ratio of Consolidated Total Funded Debt to Consolidated EBITDA................ 50
Section 6.2 Interest Coverage Ratio....................................................... 50
Section 6.3 Fixed Charge Coverage Ratio................................................... 51
Section 6.4 Consolidated Net Worth........................................................ 51
ARTICLE VII NEGATIVE COVENANTS............................................................ 51
Section 7.1 Indebtedness.................................................................. 51
Section 7.2 Negative Pledge............................................................... 52
Section 7.3 Fundamental Changes........................................................... 53
Section 7.4 Investments, Loans, Etc....................................................... 53
Section 7.5 Restricted Payments........................................................... 54
Section 7.6 Sale of Assets................................................................ 54
Section 7.7 Transactions with Affiliates.................................................. 55
Section 7.8 Restrictive Agreements........................................................ 55
Section 7.9 Sale and Leaseback Transactions............................................... 55
Section 7.10 Hedging Agreements............................................................ 56
Section 7.11 Status of Incorporation....................................................... 56
Section 7.12 Accounting Changes............................................................ 56
Section 7.13 Permitted Subordinated Indebtedness........................................... 56
ARTICLE VIII EVENTS OF DEFAULT............................................................. 56
Section 8.1 Events of Default............................................................. 56
ARTICLE IX THE ADMINISTRATIVE AGENT...................................................... 59
Section 9.1 Appointment of Administrative Agent........................................... 59
Section 9.2 Nature of Duties of Administrative Agent...................................... 60
Section 9.3 Lack of Reliance on the Administrative Agent.................................. 60
Section 9.4 Certain Rights of the Administrative Agent.................................... 60
Section 9.5 Reliance by Administrative Agent.............................................. 61
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Section 9.6 The Administrative Agent in its Individual Capacity........................... 61
Section 9.7 Successor Administrative Agent................................................ 61
ARTICLE X MISCELLANEOUS................................................................. 62
Section 10.1 Notices....................................................................... 62
Section 10.2 Waiver; Amendments............................................................ 63
Section 10.3 Expenses; Indemnification..................................................... 64
Section 10.4 Successors and Assigns........................................................ 66
Section 10.5 Governing Law; Jurisdiction; Consent to Service of Process.................... 68
Section 10.6 WAIVER OF JURY TRIAL.......................................................... 69
Section 10.7 Right of Setoff............................................................... 70
Section 10.8 Counterparts; Integration..................................................... 70
Section 10.9 Survival...................................................................... 70
Section 10.10 Severability.................................................................. 70
Section 10.11 Confidentiality............................................................... 71
Section 10.12 Interest and Loan Charges Not to Exceed Maximum Amounts Allowed by Law........ 71
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Schedules
Schedule I - Applicable Margin and Applicable Percentage
Schedule 4.5(a) - Litigation
Schedule 4.14 - Subsidiaries
Schedule 7.1 - Outstanding Indebtedness
Schedule 7.2 - Existing Liens
Schedule 7.4 - Existing Investments
Exhibits
Exhibit A - Revolving Credit Note
Exhibit B - Term Note
Exhibit C - Swingline Note
Exhibit D - Form of Assignment and Acceptance
Exhibit E - Form of Subsidiary Guarantee Agreement
Exhibit F - Form of Indemnity, Subrogation and Contribution
Agreement
Exhibit 2.3 - Notice of Revolving Borrowing
Exhibit 2.5 - Notice of Swingline Borrowing
Exhibit 2.9 - Form of Continuation/Conversion
Exhibit 3.1(b)(iv) - Form of Secretary's Certificate
Exhibit 3.1(b)(vii) - Form of Officer's Certificate
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REVOLVING CREDIT AND TERM LOAN AGREEMENT
THIS REVOLVING CREDIT AND TERM LOAN AGREEMENT (this "Agreement") is
made and entered into as of September 5, 2003, by and among AMERICAN HEALTHWAYS,
INC., a Delaware corporation (the "Borrower"), SUNTRUST BANK, the several banks
and other financial institutions from time to time party hereto (the "Lenders"),
and SUNTRUST BANK, in its capacity as Administrative Agent for the Lenders (the
"Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders (a) establish a
$40,000,000 revolving credit facility and (b) make term loans in an aggregate
principal amount equal to $60,000,000 to the Borrower;
WHEREAS, subject to the terms and conditions of this Agreement, the
Lenders severally, to the extent of their respective Commitments, are willing to
establish the requested revolving credit facility and severally to make the term
loans to the Borrower.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Borrower, the Lenders and the Administrative
Agent agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
SECTION 1.1 Definitions. In addition to the other terms defined herein,
the following terms used herein shall have the meanings herein specified (to be
equally applicable to both the singular and plural forms of the terms defined):
"ACQUISITION" shall mean (a) any Investment by the Borrower or any of
its Subsidiaries in any other Person pursuant to which such Person shall become
a Subsidiary of the Borrower or any of its Subsidiaries 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 Subsidiary
of the Borrower) that constitute all or substantially all of the assets of such
Person or comprise a business unit of such Person.
"ADJUSTED LIBO RATE" shall mean, with respect to each Interest Period
for a Eurodollar Borrowing, the rate per annum obtained by dividing (i) LIBOR
for such Interest Period by (ii) a percentage equal to 1.00 minus the Eurodollar
Reserve Percentage, to the extent Eurodollar reserves are maintained.
"ADMINISTRATIVE AGENT" shall have the meaning assigned to such term in
the opening paragraph hereof.
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"ADMINISTRATIVE QUESTIONNAIRE" shall mean, with respect to each Lender,
an administrative questionnaire in the form prepared by the Administrative Agent
and submitted to the Administrative Agent duly completed by such Lender.
"AFFILIATE" shall mean, as to any Person, any other Person that
directly, or indirectly through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, such Person.
"AGGREGATE REVOLVING COMMITMENTS" shall mean the sum of the Revolving
Commitments of all Lenders at any time outstanding. On the Closing Date, the
Aggregate Revolving Commitments equal $40,000,000.
"APPLICABLE LENDING OFFICE" shall mean, for each Lender and for each
Type of Loan, the "Lending Office" 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.
"APPLICABLE MARGIN" shall mean with respect to all Loans outstanding on
any date, the Base Rate Margin for Base Rate Loans or the Eurodollar Margin for
Eurodollar Loans, as applicable, equal to a percentage per annum determined by
reference to the applicable ratio of Consolidated Total Funded Debt to EBITDA in
effect on such date (for the four fiscal quarter period then most recently
ended) as set forth on Schedule I attached hereto; provided, that a change in
the Eurodollar Margin or Base Rate Margin resulting from a change in the ratio
of Total Funded Debt to EBITDA shall be effective on the second Business Day
after which the Borrower delivers the financial statements required by Section
5.1(a) or (b), as applicable, 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 certificate, the Eurodollar Margin
and Base Rate Margin shall be at Level IV until such time as such financial
statements and certificate are delivered, at which time the Eurodollar Margin
and Base Rate Margin shall be determined as provided above. Notwithstanding the
foregoing, the Eurodollar Margin and Base Rate Margin from the Closing Date
until the first financial statement and compliance certificate is delivered,
shall be at Level III.
"APPLICABLE PERCENTAGE" shall mean, with respect to the commitment fee
or the letter of credit fee, as the case may be, as of any date, the percentage
per annum determined by reference to the applicable ratio of Consolidated Total
Funded Debt to EBITDA in effect on such date (for the four fiscal quarter period
then most recently ended) as set forth on Schedule I attached hereto; provided,
that a change in the Applicable Percentage resulting from a change in the ratio
of Consolidated Total Funded Debt to EBITDA shall be effective on the second
Business Day after which the Borrower delivers the financial statements required
by Section 5.1(a) or (b), as applicable, 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 certificate, the
Applicable Percentage shall be at Level IV until such time as such financial
statements and certificate are delivered, at which time the Applicable
Percentage shall be determined as provided above. Notwithstanding the foregoing,
the Applicable Percentage for both the
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commitment fee and the letter of credit fee from the Closing Date until the
first financial statement and compliance certificate is delivered, shall be at
Level III.
"ASSET SALE" shall mean any Disposition or series of related
Dispositions of any asset(s) of the Borrower or any of its Subsidiaries,
excluding any such Disposition permitted by Section 7.6.
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.4(b) herein) and accepted by the
Administrative Agent, in the form of Exhibit D attached hereto or any other form
approved by the Administrative Agent.
"AVAILABILITY PERIOD" shall mean the period from the Closing Date to
the Commitment Termination Date.
"BASE RATE" when used in reference to any Loan or Borrowing shall mean
the higher of (i) the per annum rate which the Administrative Agent publicly
announces from time to time to be its prime lending rate, as in effect from time
to time, and (ii) the Federal Funds Rate, as in effect from time to time, plus
one-half of one percent (0.50%), and refers to whether such Loan or Loans
comprising such Borrowing bears interest at a rate determined by reference to
the Base Rate. The Administrative Agent's prime lending rate is a reference rate
and does not necessarily represent the lowest or best rate charged to customers.
The Administrative Agent may make commercial loans or other loans at rates of
interest at, above or below the Administrative Agent's prime lending rate. Each
change in the Administrative Agent's prime lending rate shall be effective from
and including the date such change is publicly announced as being effective.
"BORROWER" shall have the meaning in the introductory paragraph hereof.
"BORROWING" shall mean a borrowing consisting of (i) Loans of the same
Class and Type, made, converted or continued on the same date and in case of
Eurodollar Loans, as to which a single Interest Period is in effect, or (ii) a
Swingline Loan.
"BUSINESS DAY" shall mean (i) any day other than a Saturday, Sunday or
other day on which commercial banks in Atlanta, Georgia or Nashville, Tennessee
are authorized or required by law to close and (ii) if such day relates to a
Borrowing of, a payment or prepayment of principal or interest on, a conversion
of or into, or an Interest Period for, a Eurodollar Loan or a notice with
respect to any of the foregoing, any day on which dealings in Dollars are
carried on in the London interbank market.
"CAPITAL EXPENDITURES" shall mean for any period, without duplication,
(a) the additions to property, plant and equipment and other capital
expenditures of the Borrower and its Subsidiaries that are (or would be) set
forth on a consolidated statement of cash flows of the Borrower for such period
prepared in accordance with GAAP and (b) Capital Lease Obligations incurred by
the Borrower and its Subsidiaries during such period.
"CAPITAL LEASE OBLIGATIONS" of any Person shall mean all obligations of
such Person to pay rent or other amounts under any lease (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified
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and accounted for as capital leases on a balance sheet of such Person under
GAAP, and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"CHANGE IN CONTROL" 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 "group" (within the meaning of the
Securities Exchange Act of 1934 and the rules of the Securities and Exchange
Commission thereunder in effect on the date hereof), (b) the acquisition of
ownership, directly or indirectly, beneficially or of record, by any Person or
"group" (within the meaning of the Securities Exchange Act of 1934 and the rules
of the Securities and Exchange Commission thereunder as in effect on the date
hereof) of 35% or more of the outstanding shares of the voting stock of the
Borrower; or (c) occupation of a majority of the seats (other than vacant seats)
on the board of directors of the Borrower by Persons who were neither (i)
nominated by the current board of directors or (ii) appointed by directors so
nominated.
"CHANGE IN LAW" shall mean (i) the adoption of any applicable law, rule
or regulation after the date of this Agreement, (ii) any change in any
applicable law, rule or regulation, or any change in the interpretation or
application thereof, by any Governmental Authority after the date of this
Agreement, or (iii) compliance by any Lender (or its Applicable Lending Office)
or the Issuing Bank (or for purposes of Section 2.19(b), by such Lender's or the
Issuing Bank's holding company, 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.
"CLASS", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans,
Swingline Loans or Term Loans and when used in reference to any Commitment,
refers to whether such Commitment is a Revolving Commitment, a Swingline
Commitment or a Term Loan Commitment.
"CLOSING DATE" shall mean the date on which the conditions precedent
set forth in Section 3.1 and Section 3.2 have been satisfied or waived in
accordance with Section 10.2.
"CODE" shall mean the Internal Revenue Code of 1986, as amended and in
effect from time to time.
"COMMITMENT" shall mean a Revolving Commitment, a Swingline Commitment
or a Term Loan Commitment or any combination thereof (as the context shall
permit or require).
"COMMITMENT TERMINATION DATE" shall mean the earliest of (i) August 31,
2006, (ii) the date on which the Revolving Commitments are terminated pursuant
to Section 2.10 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).
"CONSOLIDATED EBITDA" shall mean, for the Borrower and its Subsidiaries
for any period, 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, (i) Consolidated Interest Expense, (ii) income tax
expense, (iii) depreciation and amortization and (iv) all other non-cash
charges, determined on a consolidated basis in accordance with GAAP in each case
for
4
such period. EBITDA shall include the pro forma EBITDA of any Acquisition
annualized from the date of acquisition for a period not to exceed four fiscal
quarters so long as the calculation thereof is done in a manner reasonably
calculated to comply with GAAP and such calculation is detailed in the
supporting calculations to a covenant compliance certificate as detailed and
measured to the Administrative Agent's reasonable satisfaction.
"CONSOLIDATED FIXED CHARGES" shall mean, for the Borrower and its
Subsidiaries for any period, the sum (without duplication) of (a) Consolidated
Interest Expense paid in cash for such period, (b) scheduled principal payments
made on Consolidated Total Debt during such period and (c) Restricted Payments
paid during such period.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for the Borrower and its
Subsidiaries for any period determined on a consolidated basis in accordance
with GAAP, the sum of (i) total interest expense, including without limitation
the interest component of any payments in respect of Capital Lease Obligations
capitalized or expensed during such period (whether or not actually paid during
such period) plus (ii) the net amount payable (or minus the net amount
receivable) under Hedging Agreements during such period (whether or not actually
paid or received during such period).
"CONSOLIDATED NET INCOME" shall mean, for any period, the net income
(or loss) of the Borrower and its Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP, but excluding therefrom (to the
extent otherwise included therein) (i) any extraordinary gains or losses, (ii)
any gains attributable to write-ups of assets and (iii) any equity interest of
the Borrower or any Subsidiary of the Borrower in the unremitted earnings of any
Person that is not a Subsidiary, (iv) any income attributable to any minority
interest in a Subsidiary held by a Person other than a Borrower or a Subsidiary
and (v) any income (or loss) of any Person accrued prior to the date it becomes
a Subsidiary or is merged into or consolidated with the Borrower or any
Subsidiary on the date that such Person's assets are acquired by the Borrower or
any Subsidiary.
"CONSOLIDATED NET WORTH" shall mean, as of any date, (i) the total
assets of the Borrower and its Subsidiaries that would be reflected on the
Borrower's consolidated balance sheet as of such date prepared in accordance
with GAAP, after eliminating all amounts properly attributable to minority
interests, if any, in the stock and surplus of Subsidiaries, minus (ii) the sum
of (x) the total liabilities of the Borrower and its Subsidiaries that would be
reflected on the Borrower's consolidated balance sheet as of such date prepared
in accordance with GAAP and (y) the amount of any write-up in the book value of
any assets resulting from a revaluation thereof or any write-up in excess of the
cost of such assets acquired reflected on the consolidated balance sheet of the
Borrower as of such date prepared in accordance with GAAP.
"CONSOLIDATED TOTAL DEBT" shall mean, as of any date of determination,
all Indebtedness of the Borrower and its Subsidiaries that would be reflected on
a consolidated balance sheet of the Borrower prepared in accordance with GAAP as
of such date.
"CONSOLIDATED TOTAL FUNDED DEBT" shall mean at any time, all then
currently outstanding obligations, liabilities and indebtedness of Borrower and
its Subsidiaries on a consolidated basis of the types as described in the
definition of Indebtedness herein (other than as described in
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subsections (vi) and (vii) of such definition), including but not limited to all
loans and letter of credit obligations.
"CONTROL" shall mean the power, directly or indirectly, either to (i)
vote 50% or more of securities having ordinary voting power for the election of
directors (or persons performing similar functions) of a Person or (ii) direct
or cause the direction of the management and policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise. The
terms "CONTROLLING", "CONTROLLED BY", and "UNDER COMMON CONTROL WITH" have
meanings correlative thereto.
"DEFAULT" shall mean any condition or event that, with the giving of
notice or the lapse of time or both, would constitute an Event of Default.
"DEFAULT INTEREST" shall have the meaning set forth in Section 2.14(c).
"DISPOSITION" shall mean any sale, lease, sale and leaseback,
assignment, conveyance, transfer or other disposition of property, and the terms
"Dispose" and "Disposed of" shall have correlative meanings.
"DOLLAR(s)" and the sign "$" shall mean lawful money of the United
States of America.
"ENVIRONMENTAL LAWS" shall mean all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by or with any Governmental
Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the management, Release or threatened Release of any
Hazardous Material or to health and safety matters.
"ENVIRONMENTAL LIABILITY" shall mean any liability, contingent or
otherwise (including any liability for damages, costs of environmental
investigation and remediation, costs of administrative oversight, fines, natural
resource damages, penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (a) any actual or alleged
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
any actual or alleged exposure to any Hazardous Materials, (d) the Release or
threatened Release of any Hazardous Materials or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and any successor statute.
"ERISA AFFILIATE" shall mean any trade or business (whether or not
incorporated), which, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for the purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA EVENT" shall mean (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an
6
"accumulated funding deficiency" (as defined in Section 412 of the Code or
Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section
412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of
the minimum funding standard with respect to any Plan; (d) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA
with respect to the termination of any Plan; (e) the receipt by the Borrower or
any ERISA Affiliate from the PBGC or a plan administrator appointed by the PBGC
of any notice relating to an intention to terminate any Plan or Plans or to
appoint a trustee to administer any Plan; (f) the incurrence by the Borrower or
any of its ERISA Affiliates of any liability with respect to the withdrawal or
partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by
the Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"EURODOLLAR" 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 LIBO Rate.
"EURODOLLAR RESERVE PERCENTAGE" shall mean the aggregate of the maximum
reserve percentages (including, without limitation, any emergency, supplemental,
special or other marginal reserves) expressed as a decimal (rounded upwards to
the next 1/100th of 1%) in effect on any day to which the Administrative Agent
is subject with respect to the Adjusted LIBO Rate pursuant to regulations issued
by the Board of Governors of the Federal Reserve System (or any Governmental
Authority succeeding to any of its principal functions) with respect to
eurocurrency funding (currently referred to as "eurocurrency liabilities" under
Regulation D). Eurodollar Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under Regulation D. The Eurodollar Reserve Percentage shall
be adjusted automatically on and as of the effective date of any change in any
reserve percentage.
"EVENT OF DEFAULT" shall have the meaning provided in Article VIII.
"EXCLUDED TAXES" shall mean with respect to the Administrative Agent,
any Lender, the Issuing Bank or any other recipient of any payment to be made by
or on account of any obligation of the Borrower hereunder, (a) income, excise or
franchise taxes imposed on (or measured by) its net income or assets by the
United States of America, or by the jurisdiction under the laws of which such
recipient is organized or in which its principal office is located or, in the
case of any Lender, in which its Applicable Lending Office is located, or by any
other jurisdiction, (b) any branch profits taxes imposed by the United States of
America or any similar tax imposed by any other jurisdiction in which the
Borrower is located, and (c) in the case of a Foreign Lender (other than an
assignee pursuant to a request by the Borrower under Section 2.23(b)), any
withholding tax that is imposed on amounts payable to such Foreign Lender at the
time such Foreign Lender becomes a party to this Agreement (or designates a new
lending office) or is attributable to such Foreign Lender's failure to comply
with Section 2.21(e), except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of
7
designation of a new lending office (or assignment), to receive additional
amounts from the Borrower with respect to such withholding tax pursuant to
Section 2.21(a).
"FEDERAL FUNDS RATE" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the next 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with member banks
of the Federal Reserve System arranged by Federal funds brokers, as published by
the Federal Reserve Bank of New York on the next succeeding Business Day or if
such rate is not so published for any Business Day, the Federal Funds Rate for
such day shall be the average rounded upwards, if necessary, to the next 1/100th
of 1% of the quotations for such day on such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by the Administrative Agent.
"FIXED CHARGE COVERAGE RATIO" shall mean, for any period of four
consecutive fiscal quarters of the Borrower, the ratio of (a) Consolidated
EBITDA for such period less the actual amount paid by the Borrower and its
Subsidiaries in cash during such period on account of Capital Expenditures and
income taxes to (b) Consolidated Fixed Charges for such period.
"FOREIGN LENDER" shall mean any Lender that is organized under the laws
of a jurisdiction other than that of the Borrower. For purposes of this
definition, the United States of America or any State thereof or the District of
Columbia shall constitute one jurisdiction.
"GAAP" shall mean generally accepted accounting principles in the
United States applied on a consistent basis and subject to the terms of Section
1.3.
"GOVERNMENTAL AUTHORITY" shall mean the government of the United States
of America, any other nation or any political subdivision thereof, whether state
or local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"GUARANTEE" of or by any Person (the "GUARANTOR") shall mean any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly and including any obligation, direct or indirect, of the guarantor
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued in support of
such Indebtedness or obligation; provided, that the term "Guarantee" 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
Guarantee is made or, if not so stated or determinable, the maximum reasonably
anticipated liability in respect thereof
8
(assuming such Person is required to perform thereunder) as determined by such
Person in good faith. The term "Guarantee" used as a verb has a corresponding
meaning.
"HAZARDOUS MATERIALS" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"HEDGING AGREEMENTS" shall mean (a) an agreement (including terms and
conditions incorporated by reference therein) which is a rate swap agreement,
basis swap, forward rate agreement, commodity swap, commodity option, equity or
equity index swap, bond option, interest rate option, foreign exchange
agreement, rate cap agreement, rate floor agreement, rate collar agreement,
currency swap agreement, cross-currency rate swap agreement, currency option or
any other similar agreement (including any option to enter into any of the
foregoing); (b) any combination of the foregoing; or (c) a master agreement for
any of the foregoing together with all supplements.
"INDEBTEDNESS" of any Person shall mean, without duplication (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person in respect of the deferred purchase price of
property or services (other than trade payables incurred in the ordinary course
of business; provided, that for purposes of Section 8.1(f), trade payables
overdue by more than 120 days shall be included in this definition except to the
extent that any of such trade payables are being disputed in good faith and by
appropriate measures), (iv) all obligations of such Person under any conditional
sale or other title retention agreement(s) relating to property acquired by such
Person, (v) all Capital Lease Obligations of such Person, (vi) all obligations,
contingent or otherwise, of such Person in respect of letters of credit,
acceptances or similar extensions of credit, (vii) all Guarantees of such Person
of the type of Indebtedness described in clauses (i) through (vi) above, (viii)
all Indebtedness of a third party secured by any Lien on property owned by such
Person, whether or not such Indebtedness has been assumed by such Person, (ix)
all obligations of such Person, contingent or otherwise, to purchase, redeem,
retire or otherwise acquire for value any common stock of such Person, and (x)
Off-Balance Sheet Liabilities of 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
applicable law or the terms of such Indebtedness provide that such Person is not
liable therefor.
"INDEMNIFIED TAXES" shall mean Taxes other than Excluded Taxes.
"INDEMNITY AND CONTRIBUTION AGREEMENT" shall mean the Indemnity,
Subrogation and Contribution Agreement, substantially in the form of Exhibit F,
among the Borrower, the Subsidiary Loan Parties and the Administrative Agent.
"INFORMATION MEMORANDUM" shall mean the Confidential Information
Memorandum dated July of 2003 relating to the Borrower and the transactions
contemplated by the Loan Documents.
9
"INTEREST COVERAGE RATIO" shall mean for any period of four consecutive
fiscal quarters of the Borrower, the ratio of (i) Consolidated EBITDA for such
period to (ii) Consolidated Interest Expense paid in cash for such period.
"INTEREST PERIOD" shall mean with respect to any Eurodollar Borrowing,
a period of one, two, three or six months, as the Borrower may request (and the
Swingline Lender may agree in accordance with Section 2.5 for a Swingline Loan);
provided, that:
(i) the initial Interest Period for such Borrowing shall
commence on the date of such Borrowing (including the date of any
conversion from a Borrowing of another Type) and each Interest Period
occurring thereafter in respect of such Borrowing shall commence on the
day on which the next preceding Interest Period expires;
(ii) if any Interest Period would otherwise end on a day
other than a Business Day, such Interest Period shall be extended to
the next succeeding Business Day, unless, in the case of a Eurodollar
Borrowing, such Business Day falls in another calendar month, in which
case such Interest Period would end on the next preceding Business Day;
(iii) any Interest Period in respect of a Eurodollar
Borrowing which begins on the last Business Day of a calendar month or
on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period shall end on the last
Business Day of such calendar month;
(iv) each principal installment of the Term Loans shall
have an Interest Period ending on each installment payment date and the
remaining principal balance (if any) of the Term Loans shall have an
Interest Period determined as set forth above; and
(v) no Interest Period may extend beyond the Commitment
Termination Date, or the Maturity Date, as the case may be.
"ISSUING BANK" shall mean SunTrust Bank in its capacity as an issuer of
Letters of Credit pursuant to Section 2.24.
"LC COMMITMENT" 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 the Aggregate Revolving
Commitments.
"LC DISBURSEMENT" shall mean a payment made by the Issuing Bank
pursuant to a Letter of Credit.
"LC DOCUMENTS" shall mean the Letters of Credit and all applications,
agreements and instruments relating to the Letters of Credit.
"LC EXPOSURE" shall mean, at any time, the sum of (i) the aggregate
undrawn amount of all outstanding Letters of Credit at such time, plus (ii) 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.
10
"LENDERS" shall have the meaning assigned to such term in the opening
paragraph of this Agreement and shall include, where appropriate, the Swingline
Lender.
"LETTER OF CREDIT" shall mean any letter of credit issued pursuant to
Section 2.24 by the Issuing Bank for the account of the Borrower pursuant to the
LC Commitment.
"LIBOR" shall mean, for any applicable Interest Period with respect to
any Eurodollar Loan, the rate per annum for deposits in Dollars for a period
equal to such Interest Period appearing on the display designated as Page 3750
on the Dow Xxxxx Markets Service (or such other page on that service or such
other service designated by the British Banker's Association for the display of
such Association's Interest Settlement Rates for Dollar deposits) as of 11:00
a.m. (London, England time) on the day that is two Business Days prior to the
first day of the Interest Period, or if such Page 3750 is unavailable for any
reason at such time, the corresponding rate which appears on the Reuters Screen
ISDA Page as of such date and such time; provided, that if the Administrative
Agent determines that the relevant foregoing sources are unavailable for the
relevant Interest Period, LIBOR shall mean the rate of interest determined by
the Administrative Agent to be the average (rounded upward, if necessary, to the
nearest 1/100th of 1%) of the rates per annum at which deposits in Dollars are
offered to the Administrative Agent two (2) Business Days preceding the first
day of such Interest Period by leading banks in the London interbank market as
of 10:00 a. m. for delivery on the first day of such Interest Period, for the
number of days comprised therein and in an amount comparable to the amount of
the Eurodollar Loan of the Administrative Agent.
"LIEN" shall mean any mortgage, pledge, security interest, lien
(statutory or otherwise), charge, encumbrance, hypothecation, assignment,
deposit arrangement, or other arrangement having the practical effect of the
foregoing or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement and any capital lease having
the same economic effect as any of the foregoing).
"LOAN DOCUMENTS" shall mean, collectively, this Agreement, the Notes,
the LC Documents, all Notices of Borrowing, the Subsidiary Guarantee Agreements,
the Indemnity and Contribution Agreement, the Security Documents and any and all
other instruments, agreements, documents and writings executed in connection
with any of the foregoing.
"LOAN PARTIES" shall mean the Borrower and the Subsidiary Loan Parties.
"LOANS" shall mean all Revolving Loans, Swingline Loans and Term Loans
in the aggregate or any of them, as the context shall require.
"MATERIAL ADVERSE EFFECT" shall mean, with respect to any event, act,
condition or occurrence of whatever nature (including any adverse determination
in any litigation, arbitration, or governmental investigation or proceeding),
whether singly or in conjunction with any other event or events, act or acts,
condition or conditions, occurrence or occurrences whether or not related, a
material adverse change in, or a material adverse effect on, (i) the business,
results of operations, financial condition, assets, liabilities or prospects of
the Borrower and its Subsidiaries taken as a whole, (ii) the ability of the Loan
Parties to perform any of their
11
respective obligations under the Loan Documents, (iii) the rights and remedies
of the Administrative Agent, the Issuing Bank and the Lenders under any of the
Loan Documents or (iv) the legality, validity or enforceability of any of the
Loan Documents.
"MATERIAL INDEBTEDNESS" shall mean Indebtedness (other than the Loans
and Letters of Credit) or obligations in respect of one or more Hedging
Agreements, of any one or more of the Borrower and the Subsidiaries in an
aggregate principal amount exceeding $1,000,000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations of the Borrower
or any Subsidiary in respect of any Hedging Agreement at any time shall be the
maximum aggregate amount (giving effect to any netting agreements) that the
Borrower or such Subsidiary would be required to pay if such Hedging Agreement
were terminated at such time.
"MATURITY DATE" shall mean, with respect to the Term Loans, the earlier
of (i) August 31, 2006 or (ii) the date on which the principal amount of all
outstanding Term Loans have been declared or automatically have become due and
payable (whether by acceleration or otherwise).
"MOODY'S" shall mean Xxxxx'x Investors Service, Inc.
"MULTIEMPLOYER PLAN" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"NET CASH PROCEEDS" shall mean (a) in connection with any Asset Sale or
any Recovery Event, the proceeds thereof in the form of cash and cash
equivalents (including any such proceeds received by way of deferred payment of
principal pursuant to a note or installment receivable or purchase price
adjustment receivable or otherwise, but only as and when received) of such Asset
Sale or Recovery Event, net of reasonable and customary attorneys' fees,
accountants' fees, investment banking fees, amounts required to be applied to
the repayment of Indebtedness secured by a Lien expressly permitted hereunder on
any asset that is the subject of such Asset Sale or Recovery Event (other than
any Lien pursuant to a Security Document) and other reasonable and customary
fees and expenses, in each case, to the extent actually incurred in connection
therewith and net of taxes paid or reasonably estimated to be payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), and (b) in connection with any
issuance or sale of equity securities or debt securities or instruments or the
incurrence of Indebtedness, the cash proceeds and any non-cash consideration
(valued at the initial principal amount thereof in the case of non-cash
consideration consisting of notes or other debt securities and valued at fair
market value (as determined by the Administrative Agent) in the case of other
non-cash consideration) received from such issuance or incurrence, net of
reasonable and customary attorneys' fees, investment banking fees, accountants'
fees, underwriting discounts and commissions and other reasonable and customary
fees and expenses, in each case, to the extent actually incurred in connection
therewith.
"NOTES" shall mean, collectively, the Revolving Credit Notes, the
Swingline Note and the Term Notes.
"NOTICES OF BORROWING" shall mean, collectively, the Notices of
Revolving Borrowing and the Notices of Swingline Borrowing.
12
"NOTICE OF CONVERSION/CONTINUATION" shall mean the notice given by the
Borrower to the Administrative Agent in respect of the conversion or
continuation of an outstanding Borrowing as provided in Section 2.9(b) hereof.
"NOTICE OF REVOLVING BORROWING" shall have the meaning as set forth in
Section 2.3.
"NOTICE OF SWINGLINE BORROWING" shall have the meaning as set forth in
Section 2.5.
"OBLIGATIONS" shall mean all amounts owing by the Borrower to the
Administrative Agent, the Issuing Bank or any Lender (including the Swingline
Lender) pursuant to or in connection with this Agreement, any Loan Documents, or
any Hedging Agreement with a Lender (entered into in connection with interest
rate risks with respect to this Agreement), including without limitation, all
principal, interest (including any interest accruing after the filing of any
petition in bankruptcy or the commencement of any insolvency, reorganization or
like proceeding relating to 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 and any Lender (including the Swingline Lender) incurred pursuant to this
Agreement, any Loan Documents or such Hedging Agreements referred to in this
definition), whether direct or indirect, absolute or contingent, liquidated or
unliquidated, now existing or hereafter arising hereunder or thereunder,
together with all renewals, extensions, modifications or refinancings thereof.
"OFF-BALANCE SHEET LIABILITIES" of any Person shall mean (i) any
repurchase obligation or liability of such Person with respect to accounts or
notes receivable sold by such Person, (ii) any liability of such Person under
any sale and leaseback transactions which do not create a liability on the
balance sheet of such Person, (iii) any liability of such Person under any
so-called "synthetic" lease transaction or (iv) any obligation arising with
respect to any other transaction which is the functional equivalent of or takes
the place of borrowing but which does not constitute a liability on the balance
sheet of such Person.
"OUTSTANDING LETTERS OF CREDIT" shall mean collectively that certain
Letter of Credit No. F841671 issued by SunTrust Bank for the account of Borrower
in the stated amount of $5,000,000 dated July 31, 2003 and that certain Letter
of Credit No. F400569 issued by SunTrust Bank for the account of Borrower in the
stated amount of $365,000 dated June 14, 2003, as amended, each initially issued
under that certain Amended and Restated Revolving Credit Agreement dated
November 22, 2002 among Borrower, SunTrust Bank as Administrative Agent and the
Lenders as defined and named therein. Such Letters of Credit shall be deemed
issued under this Agreement as of the Closing Date.
"OTHER TAXES" shall mean any and all present or future stamp or
documentary taxes or any other excise (which do not constitute Excluded Taxes)
or property taxes (which do not constitute Excluded Taxes), charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document.
"PARTICIPANT" shall have the meaning set forth in Section 10.4(c).
13
"PAYMENT OFFICE" shall mean the office of the Administrative Agent
located at 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, 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.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA, and any successor entity performing similar functions.
"PERMITTED ENCUMBRANCES" shall mean:
(i) Liens imposed by law for taxes not yet due or which
are being contested in good faith by appropriate proceedings and with
respect to which adequate reserves are being maintained in accordance
with GAAP;
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law
created in the ordinary course of business for amounts not yet due or
which are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves are being maintained in
accordance with GAAP;
(iii) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
(iv) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case
in the ordinary course of business;
(v) judgment and attachment liens not giving rise to an
Event of Default or Liens created by or existing from any litigation or
legal proceeding that are currently being contested in good faith by
appropriate proceedings and with respect to which adequate reserves are
being maintained in accordance with GAAP;
(vi) easements, zoning restrictions, rights-of-way and
similar encumbrances on real property imposed by law or arising in the
ordinary course of business that do not secure any monetary obligations
and do not materially detract from the value of the affected property
or materially interfere with the ordinary conduct of business of the
Borrower and its Subsidiaries taken as a whole;
(vii) Capital Lease Obligations to the extent permitted
hereunder;
(viii) Liens securing purchase money indebtedness to the
extent permitted pursuant to Section 7.1 hereunder;
(x) Liens created by the Security Documents or otherwise
provided for in this Agreement for the benefit of the Lenders;
(xi) any Lien in favor of the United States of America or
any department or agency thereof, in favor of any state government or
political subdivision thereof, or in
14
favor of a prime contractor under a government contract of the United
States, or of any political subdivision thereof, and in each case,
resulting from acceptance of partial progress, advance or other
payments in the ordinary course of business under government contracts
of the United States, or of any state government or political
subdivision thereof, or subcontracts thereunder; and
(xii) statutory Liens arising under ERISA created in the
ordinary course of business for amounts not yet due and as to which
adequate reserves have been established in accordance with GAAP.
"PERMITTED INVESTMENTS" shall mean:
(i) 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;
(ii) commercial paper having the highest rating, at the
time of acquisition thereof, of S&P or Moody's and in either case
maturing within six months from the date of acquisition thereof;
(iii) certificates of deposit, bankers' 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;
(iv) fully collateralized repurchase agreements with a
term of not more than 90 days for securities described in clause (i)
above and entered into with a financial institution satisfying the
criteria described in clause (iii) above;
(v) mutual funds investing solely in any one or more of
the Permitted Investments described in clauses (i) through (iv) above.
(vi) investments in obligations the return with respect to
which is excludable from gross income under Section 103 of the Code,
having a maturity of not more than six (6) months or providing the
holder the right to put such obligations for purchase at par upon not
more than twenty-eight (28) days' notice, and which are rated at least
A-1 by S&P or P-1 by Moody's;
(vii) investments in tax free money market funds all of
whose assets consist of securities of the types described in the
foregoing clause (vi) above; and
(viii) investments, redeemable upon not more than seven (7)
days' notice, in money market preferred municipal bond funds that are
rated at least AAA by S&P or Aaa by Moody's.
15
"PERMITTED SUBORDINATED DEBT" shall mean any Indebtedness of the
Borrower or any Subsidiary (i) that is expressly subordinated to the Obligations
on terms reasonably satisfactory to the Administrative Agent, (ii) that matures
by its terms no earlier than six months after the later of the Commitment
Termination Date or the Maturity Date then in effect with no scheduled principal
payments permitted prior to such maturity, and (iii) that is evidenced by an
indenture or other similar agreement that is in a form reasonably satisfactory
to the Administrative Agent.
"PERSON" shall mean any individual, partnership, firm, corporation,
association, joint venture, limited liability company, trust or other entity, or
any Governmental Authority.
"PLAN" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"PRO RATA SHARE" shall mean, with respect to any Lender at any time, a
percentage, the numerator of which shall be the sum of such Lender's Revolving
Commitment and Term Loan Commitment and the denominator of which shall be the
sum of all Lenders' Revolving Commitments and Term Loan Commitments; or if the
Revolving Commitments have been terminated or expired or if the Loans have been
declared to be due and payable, a percentage, the numerator of which shall be
the sum of such Lender's Revolving Credit Exposure and Term Loans, and the
denominator of which shall be the sum of the aggregate Revolving Credit Exposure
and the aggregate outstanding Term Loans of all Lenders.
"RECOVERY EVENT" shall mean any settlement of or payment in respect of
any property or casualty insurance claim or any eminent domain proceeding
relating to any asset of the Borrower or any of its Subsidiaries.
"REGULATION D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System, as the same may be in effect from time to time, and any
successor regulations.
"REINVESTMENT DEFERRED AMOUNT" shall mean, with respect to any
Reinvestment Event, the aggregate Net Cash Proceeds received by the Borrower or
any Subsidiary in connection therewith that are not immediately applied to
prepay Loans or reduce the Revolving Commitments pursuant to Section 2.13 as a
result of the delivery of a Reinvestment Notice.
"REINVESTMENT EVENT" shall mean any Asset Sale or Recovery Event in
respect of which the Borrower has delivered a Reinvestment Notice.
"REINVESTMENT NOTICE" shall mean a written notice executed by a
Responsible Officer of the Borrower stating that no Event of Default has
occurred and is continuing and that the Borrower (directly, or indirectly
through a Subsidiary) intends and expects to use all or a specified portion of
the Net Cash Proceeds of an Asset Sale or Recovery Event to acquire replacement
assets useful in the business of the Borrower and its Subsidiaries.
16
"REINVESTMENT PREPAYMENT AMOUNT" shall mean, with respect to any
Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any
amounts expended prior to the relevant Reinvestment Prepayment Date to acquire
assets useful in the business of the Borrower and its Subsidiaries.
"REINVESTMENT PREPAYMENT DATE" shall mean, with respect to any
Reinvestment Event, the earlier of (a) the date occurring three hundred and
sixty-five (365) days after such Reinvestment Event, and (b) the date on which
the Borrower shall have determined not to acquire assets useful in the business
of the Borrower and its Subsidiaries with all or any portion of the relevant
Reinvestment Deferred Amount.
"RELATED PARTIES" shall mean, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees and
agents of such Person and such Person's Affiliates.
"RELEASE" means any release, spill, emission, leaking, dumping,
injection, pouring, deposit, disposal, discharge, dispersal, leaching or
migration into the environment (including ambient air, surface water,
groundwater, land surface or subsurface strata) or within any building,
structure, facility or fixture.
"REQUIRED LENDERS" shall mean, at any time, Lenders holding more than
50% of the aggregate outstanding Revolving Credit Exposure and Term Loans at
such time, or if the Lenders have no Revolving Credit Exposure or Term Loans
outstanding, then Lenders holding more than 50% of the Aggregate Revolving
Commitments.
"RESPONSIBLE OFFICER" shall mean any of the president, the chief
executive officer, the chief operating officer, the chief financial officer, the
controller or an executive vice president of the Borrower or such other
representative of the Borrower 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 president, the chief executive officer, the chief
financial officer or the controller of the Borrower.
"RESTRICTED PAYMENT" shall have the meaning set forth in Section 7.5.
"RESTRICTED SUBSIDIARIES" shall mean American Healthways Management,
Inc., a Delaware corporation and Arthritis & Osteoporosis Care Center, Inc., a
Delaware corporation, unless and until such time as any such entity shall become
a Subsidiary Loan Party under Section 5.10.
"REVOLVING COMMITMENT" shall mean, with respect to each Lender, the
obligation of such Lender to make Revolving Loans to the Borrower and to
participate in Letters of Credit and Swingline Loans in an aggregate principal
amount not exceeding the amount set forth with respect to such Lender on the
signature pages to this Agreement, or in the case of a Person becoming a Lender
after the Closing Date, the amount of the assigned "Revolving Commitment" as
provided in the Assignment and Acceptance Agreement executed by such Person as
an assignee, as the same may be changed pursuant to terms hereof.
17
"REVOLVING CREDIT EXPOSURE" shall mean, with respect to any Lender at
any time, the sum of the outstanding principal amount of such Lender's Revolving
Loans, such Lender's LC Exposure and such Lender's Swingline Exposure.
"REVOLVING CREDIT NOTE" shall mean a promissory note of the Borrower
payable to the order of a Lender in the principal amount of such Lender's
Revolving Commitment, in substantially the form of Exhibit A.
"REVOLVING LOAN" 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.
"S&P" shall mean Standard & Poor's.
"SECURITY DOCUMENTS" shall mean the Assignment and Security Agreements
executed by the Borrower and all other Loan Parties and the Administrative Agent
dated as of the date hereof, as amended or restated from time to time, and all
financing statements filed in connection with such Security Agreements.
"STATUSONE" shall mean StatusOne Health Systems, Inc., a Delaware
corporation.
"STATUSONE ACQUISITION" shall mean the transaction pursuant to which
the StatusOne Acquisition Subsidiary is merged with and into StatusOne, with
StatusOne being the surviving corporation and a wholly-owned Subsidiary of the
Borrower, all pursuant to and as provided in the StatusOne Merger Agreement.
"STATUSONE ACQUISITION DOCUMENTS" shall mean the StatusOne Merger
Agreement, the Escrow Agreement (as defined in the StatusOne Merger Agreement),
the Earn-Out Agreement (as defined in the StatusOne Merger Agreement) and any
instrument, document or agreement executed pursuant thereto or in connection
therewith.
"STATUSONE ACQUISITION SUBSIDIARY" shall mean AH Mergersub, Inc., a
Delaware corporation and a wholly owned subsidiary of the Borrower.
"STATUSONE MERGER AGREEMENT" shall mean the Agreement and Plan of
Merger dated as of September ___, 2003, by and among the Borrower, the StatusOne
Acquisition Subsidiary, StatusOne and the holders of capital stock of StatusOne
named on the signature pages thereto.
"SUBORDINATED DEBT DOCUMENTS" shall mean any indenture, agreement or
similar instrument governing any Permitted Subordinated Debt.
"SUBSIDIARY" shall mean, with respect to any Person (the "PARENT"), any
corporation, partnership, joint venture, limited liability company, association
or other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of the applicable date, as
well as any other corporation, partnership, joint venture, limited liability
company, association or other entity (i) of which securities or other ownership
interests representing more than 50% of the equity or more than 50% of the
ordinary voting power, or in
18
the case of a partnership, more than 50% of the general partnership interests
are, as of such date, owned, Controlled or held, or (ii) that is, as of such
date, otherwise Controlled, by the parent or one or more subsidiaries of the
parent or by the parent and one or more subsidiaries of the parent. Unless
otherwise indicated, all references to "Subsidiary" hereunder shall mean a
Subsidiary of the Borrower. Notwithstanding the foregoing, the term "Subsidiary"
shall exclude any Restricted Subsidiary.
"SUBSIDIARY GUARANTEE AGREEMENT" shall mean the Subsidiary Guarantee
Agreement, substantially in the form of Exhibit E, made by the Subsidiary Loan
Parties in favor of the Administrative Agent for the benefit of the Lenders.
"SUBSIDIARY LOAN PARTY" shall mean any presently existing or hereafter
created Subsidiary of Borrower.
"SWINGLINE COMMITMENT" shall mean the commitment of the Swingline
Lender to make Swingline Loans in an aggregate principal amount at any time
outstanding not to exceed $5,000,000.
"SWINGLINE EXPOSURE" 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 2.5, which shall equal such Lender's Pro Rata Share of
all outstanding Swingline Loans.
"SWINGLINE LENDER" shall mean SunTrust Bank.
"SWINGLINE LOAN" shall mean a loan made to the Borrower by the
Swingline Lender under the Swingline Commitment.
"SWINGLINE NOTE" shall mean the promissory note of the Borrower payable
to the order of the Swingline Lender in the principal amount of the Swingline
Commitment, substantially the form of Exhibit C.
"SWINGLINE RATE" shall mean the Base Rate, or such other interest rate
(and with respect to a Swingline Loan that is a Eurodollar Loan, for any
Interest Period) as may be mutually agreed between the Swingline Lender and the
Borrower.
"TAXES" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority in respect of the execution, delivery, or enforcement of, or otherwise
with respect to, this Agreement or any other Loan Document or any payment to the
Administrative Agent, the Lenders, or the Issuing Bank hereunder or thereunder.
"TERM LOAN" shall have the meaning set forth in Section 2.7.
"TERM LOAN COMMITMENT" shall mean, with respect to each Lender, the
obligation of such Lender to make a Term Loan hereunder on the Closing Date, in
a principal amount not exceeding the amount set forth with respect to such
Lender on the signature pages to this
19
Agreement. The aggregate principal amount of all Lenders' Term Loan Commitments
is $60,000,000.
"TYPE", 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 LIBO Rate or the Base
Rate.
"WITHDRAWAL LIABILITY" shall mean liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.2 Classifications of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g. a
"Revolving Loan" or "Term Loan") or by Type (e.g. a "Eurodollar Loan" or "Base
Rate Loan") or by Class and Type (e.g. "Revolving Eurodollar Loan"). Borrowings
also may be classified and referred to by Class (e.g. "Revolving Borrowing") or
by Type (e.g. "Eurodollar Borrowing") or by Class and Type (e.g. " Revolving
Eurodollar Borrowing").
SECTION 1.3 Accounting Terms and Determination. Unless otherwise
defined or specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared, in
accordance with GAAP as in effect from time to time, applied on a basis
consistent (except for such changes approved by the Borrower's independent
public accountants) with the most recent audited consolidated financial
statement of the 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 Borrower's compliance with such covenant shall be determined on the
basis of GAAP in effect immediately before the relevant change in GAAP became
effective, until either such notice is withdrawn or such covenant is amended in
a manner satisfactory to the Borrower and the Required Lenders.
SECTION 1.4 Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall". In
the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the word "to" means "to but
excluding". Unless the context requires otherwise (i) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as it was
originally executed or as it may from time to time be amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements
or modifications set forth herein), (ii) any reference herein to any Person
shall be construed to include such Person's successors and permitted assigns,
(iii) the words "hereof", "herein" and "hereunder" and words of similar import
shall be construed to refer to this Agreement as a whole
20
and not to any particular provision hereof, (iv) all references to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles,
Sections, Exhibits and Schedules to this Agreement and (v) all references to a
specific time shall be construed to refer to Central Daylight time or Central
Standard time, as applicable, unless specifically indicated otherwise.
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENTS
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 the Lenders
severally agree (to the extent of each Lender's Pro Rata Share up to such
Lender's Revolving Commitment) to make Revolving Loans to the Borrower in
accordance with Section 2.2, (ii) the Issuing Bank agrees to issue Letters of
Credit in accordance with Section 2.24, (iii) the Swingline Lender agrees to
make Swingline Loans in accordance with Section 2.4, (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 Obligations exceed at any time the Aggregate
Revolving Commitments from time to time in effect; and (v) each Lender severally
agrees to make a Term Loan to the Borrower on the Closing Date in a principal
amount not exceeding such Lender's Term Loan Commitment.
SECTION 2.2 Revolving Loans. Subject to the terms and conditions set
forth herein, each Lender severally agrees to make Revolving Loans 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
Lender's Revolving Credit Exposure exceeding such Lender's Revolving Commitment
or (b) the sum of 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
attached hereto (a "NOTICE OF REVOLVING BORROWING") (x) prior to 11:00 a.m. one
(1) Business Day prior to 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 entirely of Base Rate Loans or Eurodollar
Loans, as the Borrower may request. The aggregate principal amount of each
Revolving Eurodollar Borrowing shall be not less than $2,000,000 or a larger
multiple of $1,000,000, and the aggregate principal amount of each Revolving
Base Rate Borrowing shall not be less than
21
$1,000,000 or a larger multiple of $100,000; provided, that Revolving Base Rate
Loans made pursuant to Section 2.5 or Section 2.24(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 Lender's
Revolving Loan to be made as part of the requested Revolving Borrowing.
SECTION 2.4 Swingline Commitment. Subject to the terms and conditions
set forth herein, the Swingline Lender agrees to 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 sum of 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.
SECTION 2.5 Procedure for Swingline Borrowing; Etc.
(a) The Borrower shall give the Administrative Agent written
notice (or telephonic notice promptly confirmed in writing) of each
Swingline Borrowing ("NOTICE OF SWINGLINE BORROWING") prior to 10:00
a.m. on the requested date of each Swingline Borrowing, unless such
Swingline Borrowing is a Eurodollar Loan and in such case the request
shall be three Business Days prior to such Eurodollar 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 the applicable
Interest Period if it is a Eurodollar Loan 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. Each Swingline Loan
shall accrue interest at the Base Rate or any other interest rate as
agreed between the Borrower and the Swingline Lender and, if a
Eurodollar Loan, shall have an Interest Period (subject to the
definition thereof) as agreed between the Borrower and the Swingline
Lender. The aggregate principal amount of each Swingline Loan shall be
not 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. The Administrative Agent will notify the Lenders
on a quarterly basis if any Swingline Loans occurred during such
quarter.
(b) 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 Revolving
Base Rate Loan included in
22
such Borrowing available to the Administrative Agent for the account of
the Swingline Lender in accordance with Section 2.8, which will be used
solely for the repayment of such Swingline Loan.
(c) If for any reason a Revolving 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 Revolving 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. If such Swingline Loan bears
interest at a rate other than the Base Rate, such Swingline Loan shall
automatically become a Base Rate Loan on the effective date of any such
participation and interest shall become payable on demand.
(d) Each Lender's obligation to make a Revolving Base Rate
Loan pursuant to Section 2.5(b) or to purchase the participating
interests pursuant to Section 2.5(c) 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 Lender's 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
the Borrower, 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 at the Federal Funds Rate. 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 Lender's
participation interest in such Swingline Loans that such Lender failed
to fund pursuant to this Section, until such amount has been purchased
in full.
SECTION 2.6 Intentionally Omitted.
SECTION 2.7 Term Loan Commitments. Subject to the terms and conditions
set forth herein, each Lender severally agrees to make a single loan (each, a
"TERM LOAN") to the Borrower on the Closing Date in a principal amount not to
exceed the Term Loan Commitment of such Lender; provided, that if for any reason
the full amount of such Lender's Term Loan Commitment is not fully drawn on the
Closing Date, the undrawn portion thereof shall automatically be canceled. The
Term Loans may be, from time to time, Base Rate Loans or
23
Eurodollar Loans or a combination thereof; provided, that on the Closing Date
all Term Loans shall be Base Rate Loans. The execution and delivery of this
Agreement by the Borrower and the satisfaction of all conditions precedent
pursuant to Section 3.1 shall be deemed to constitute the Borrower's request to
borrow the Term Loans on the Closing Date.
SECTION 2.8 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 11:00 a.m. to the Administrative Agent at the
Payment Office; provided, that the Swingline Loans will be made as set
forth in Section 2.5. The Administrative Agent will give each Lender
reasonable notice of Borrower's Notice of Revolving Borrowing and 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 Borrower's 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 5 p.m. one (1) Business Day prior to the date of
a Borrowing in which such Lender is participating that such Lender will
not make available to the Administrative Agent such Lender's 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 for up to two (2) days and thereafter at the rate specified
for such Borrowing. If such Lender does not pay such corresponding
amount forthwith upon the Administrative Agent's 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 2.9 Interest Elections.
(a) Each Borrowing initially shall be of the Type specified in
the applicable Notice of Borrowing, and in the case of a Eurodollar
Borrowing, shall have an initial
24
Interest Period as specified in such Notice of Borrowing. Thereafter,
the Borrower may elect to convert such Borrowing into a different Type
or to continue such Borrowing, and in the case of a Eurodollar
Borrowing, may elect Interest Periods therefor, all as provided in this
Section. 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. Swingline Borrowings may not
be converted or continued.
(b) To make an election pursuant to this Section, the Borrower
shall give the Administrative Agent prior written notice (or telephonic
notice promptly confirmed in writing) of each Borrowing (a "NOTICE OF
CONVERSION/CONTINUATION") that is to be converted or continued, as the
case may be, (x) prior to 10:00 a.m. one (1) Business Day prior to the
requested date of a conversion into a Base Rate 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 Continuation/Conversion 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 Continuation/Conversion, 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 "Interest Period". If any
such Notice of Continuation/Conversion 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 Lender's portion of each resulting Borrowing.
25
SECTION 2.10 Optional Reduction and Termination of Commitments.
(a) Unless previously terminated, all Revolving Commitments
and the Swingline Commitment shall terminate on the Commitment
Termination Date. The Term Loan Commitments shall terminate upon the
making of the Term Loans pursuant to Section 2.7.
(b) Upon at least three (3) Business Days' 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 terminate the
Aggregate Revolving Commitments 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 2.10 shall be in an amount of at least
$2,000,000 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 outstanding Revolving Credit
Exposures of all Lenders. Any such reduction in the Aggregate Revolving
Commitments shall result in a proportionate reduction (rounded to the
next lowest integral multiple of $100,000) in the Swingline Commitment.
SECTION 2.11 Repayment of Loans.
(a) The outstanding principal amount of all Revolving Loans
shall be due and payable (together with accrued and unpaid interest
thereon) on the Commitment Termination Date.
(b) The principal amount of each Swingline Borrowing shall be
due and payable (together with accrued interest thereon) on the earlier
of (i) the last day of the Interest Period applicable to such
Borrowing, if any, and (ii) the Commitment Termination Date.
(c) The Borrower unconditionally promises to pay to the
Administrative Agent for the account of each Lender the then unpaid
principal amount of the Term Loan of such Lender in installments
payable on the dates set forth below, with each such installment being
in the aggregate principal amount for all Lenders set forth opposite
such date below:
Installment Date Principal Amount
---------------- ----------------
November 30, 2003 $ 3,000,000
February 29, 2004 $ 3,000,000
May 31, 2004 $ 3,000,000
August 31, 2004 $ 3,000,000
November 30, 2004 $ 3,000,000
February 28, 2005 $ 3,000,000
May 31, 2005 $ 3,000,000
August 31, 2005 $ 3,000,000
November 30, 2005 $ 3,000,000
February 28, 2006 $ 3,000,000
May 31, 2006 $ 3,000,000
26
August 31, 2006 $27,000,000
-----------
provided, that, to the extent not previously paid, the aggregate unpaid
principal balance of the Term Loans shall be due and payable on the Maturity
Date.
SECTION 2.12 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 Revolving Commitment and Term Loan
Commitment of each Lender, (ii) the amount of each Loan made hereunder
by each Lender, the Class and Type thereof and the Interest Period
applicable thereto, (iii) the date of each continuation thereof
pursuant to Section 2.9, (iv) the date of each conversion of all or a
portion thereof to another Type pursuant to Section 2.9, (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 Lender's Pro Rata Share thereof. The entries made in
such records shall be prima facie evidence of the existence and amounts
of the obligations of the Borrower therein recorded; provided, that the
failure or delay of any Lender or the Administrative Agent in
maintaining or making entries into any such record or any error therein
shall not in any manner affect the obligation of the Borrower to repay
the Loans (both principal and unpaid accrued interest) of such Lender
in accordance with the terms of this Agreement.
(b) The Borrower will execute and deliver to each Lender a
Revolving Credit Note and a Term Loan Note and, in the case of the
Swingline Lender only, a Swingline Note, payable to the order of such
Lender.
SECTION 2.13 Optional and Mandatory Prepayments.
(a) 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, not less than one Business Day prior to the date of such
prepayment, and (iii) in the case of Swingline Borrowings, prior to
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 Lender's Pro Rata Share of any such prepayment. If such notice
is given, the aggregate amount specified in such notice shall be due
and payable on the date designated in such notice, together with
accrued interest to such date on the amount so
27
prepaid in accordance with Section 2.14(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 2.20. 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 2.2 or in the case of a Swingline Loan
pursuant to Section 2.5. Each prepayment of a Borrowing shall be
applied ratably to the Loans comprising such Borrowing, and in the case
of a prepayment of a Term Loan Borrowing, to principal installments in
inverse order of maturity.
(b) If on any date the Borrower or any of its Subsidiaries
shall receive Net Cash Proceeds from any offering of equity securities
or the incurrence of any Indebtedness other than Indebtedness permitted
by Section 7.1 (except for Permitted Subordinated Debt issued in excess
of $20,000,000 or which is issued more than six months after the
Closing Date), the Net Cash Proceeds thereof shall immediately be
applied to the prepayment of Loans and the reduction of the Revolving
Commitments as set forth in subsection 2.13(d)
(c) If on any date the Borrower or any of its Subsidiaries
shall receive Net Cash Proceeds in excess of $2,000,000 in any fiscal
year from any Asset Sale or Recovery Event then, unless a Reinvestment
Notice shall have been delivered previously to the Administrative Agent
in respect thereof, such Net Cash Proceeds shall immediately be applied
to the prepayment of Loans and the reduction of the Revolving
Commitments as set forth in subsection 2.13(d); provided, that on each
Reinvestment Prepayment Date, an amount equal to the Reinvestment
Prepayment Amount with respect to the relevant Reinvestment Event shall
be applied to the prepayment of Loans and the reduction of the
Revolving Commitments as set forth in subsection 2.13(d).
(d) Mandatory prepayments pursuant to this Section 2.13 shall
be applied to the Term Loans in inverse order of maturity until fully
repaid and thereafter to the permanent reduction of the Revolving
Commitments. Notwithstanding the foregoing, if at the time of
prepayment an Event of Default has occurred and is continuing, any
mandatory prepayments pursuant to this Section 2.13 shall be applied
ratably to the Term Loans (in inverse order of maturity) and to the
permanent reduction of the Revolving Commitments.
SECTION 2.14 Interest on Loans.
(a) The Borrower shall pay interest on each Base Rate Loan at
the Base Rate in effect from time to time plus, in each case, the Base
Rate Margin in effect from time to time and on each Eurodollar Loan at
the Adjusted LIBO Rate for the applicable Interest Period in effect for
such Loan, plus, in each case, the Eurodollar Margin in effect from
time to time.
(b) The Borrower shall pay interest on each Swingline Loan at
the Swingline Rate.
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(c) While an Event of Default exists or after acceleration, at
the option of the Required Lenders, the Borrower shall pay interest
("DEFAULT INTEREST") with respect to all Eurodollar Loans at the rate
otherwise applicable for the then-current Interest Period plus an
additional 2% per annum 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 in effect for
Base Rate Loans, plus an additional 2% per annum.
(d) 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 shall be payable quarterly in arrears on the last day of each
March, June, September and December and on the Commitment Termination
Date or the Maturity Date, as the case may be. 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 or 90 days,
respectively, on each day which occurs every three months or 90 days,
as the case may be, after the initial date of such Interest Period, and
on the Commitment Termination Date or the Maturity Date, as the case
may be. Interest on each Swingline Loan shall be payable on the
maturity date of such Loan, which shall be the last day of the Interest
Period applicable thereto, and on the Swingline 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.
(e) 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
presumed correct for all purposes, absent manifest error.
SECTION 2.15 Fees.
(a) Administrative Agent's Fee. The Borrower shall pay to the
Administrative Agent for its own account, fees in the amounts and at
the times previously agreed upon the Borrower and the Administrative
Agent.
(b) Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee,
which shall accrue at the Applicable Percentage (on an annualized basis
but determined daily in accordance with Schedule I) on the daily amount
of the unused Revolving Commitment of such Lender during the
Availability Period; provided, that if such Lender continues to have
any Revolving Credit Exposure after the Commitment Termination Date,
then the commitment fee shall continue to accrue on the amount of such
Lender's unused Revolving Commitment from and after the Commitment
Termination Date to the date that all of such Lender's Revolving Credit
Exposure has been paid in full. Accrued commitment fees shall be
payable in arrears on the last day of each March, June, September and
December of each year and on the Commitment Termination Date,
commencing on the first such date after the Closing Date; provided
further, that any commitment fees accruing after the
29
Commitment Termination Date, commencing on the first such date after
the Closing Date; provided further, that any commitment fees accruing
after the Commitment Termination Date shall be payable on demand. For
purposes of computing commitment fees 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
of such Lender, however Swingline Loans shall not be deemed usage of
Revolving Commitments. The Commitment Fee shall initially be at Level
III.
(c) Letter of Credit Fees. 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,
which shall accrue at the Applicable Percentage (on an annualized basis
but determined daily in accordance with Schedule I) then in effect on
the average daily amount of such Lender's LC Exposure (excluding any
portion thereof attributable to unreimbursed LC Disbursements)
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 expires or is drawn in full
(including without limitation any LC Exposure that remains outstanding
after the Commitment Termination Date) and (ii) to the Issuing Bank for
its own account a fronting fee, which shall accrue at the rate of
0.125% per annum on the average daily amount of the LC Exposure
(excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the Availability Period (or until the date that
such Letter of Credit is irrevocably canceled, whichever is later), as
well as the Issuing Bank's standard fees with respect to issuance,
amendment, renewal or extension of any Letter of Credit or processing
of drawings thereunder.
(d) Payments. Accrued fees under subsection (b) and (c)(i) of
this Section, shall be payable quarterly in arrears on the last day of
each March, June, September and December, commencing on September 30,
2003 and on the Commitment Termination Date (and if later, the date the
Loans and LC Exposure shall be repaid in their entirety). Fees under
subsection (c)(ii) of this Section shall be payable in advance on the
date of the issuance of the Letter of Credit for the term of such
Letter of Credit. Interest shall accrue on any unpaid fee at the rate
in effect for Base Rate Loans, plus an additional 2% per annum.
SECTION 2.16 Computation of Interest and Fees.
All computations of interest and fees hereunder shall be made on the
basis of a year of 360 days for the actual number of days (including the first
day but excluding the last day) occurring in the period for which such interest
or fees are payable (to the extent computed on the basis of days elapsed). Each
determination by the Administrative Agent of an interest amount or fee hereunder
shall be made in good faith and, except for manifest error, shall be presumed
correct for all purposes.
SECTION 2.17 Inability to Determine Interest Rates. 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) that, by reason
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of circumstances affecting the relevant interbank market,
adequate means do not exist for ascertaining LIBOR for such
Interest Period, or
(ii) the Administrative Agent shall have received
notice from the Required Lenders that the Adjusted LIBO Rate
does not adequately and fairly reflect the cost to such
Lenders (or Lender, as the case may be) of making, funding or
maintaining their (or its, as the case may be) Eurodollar
Loans for such Interest Period,
the Administrative Agent shall give written notice (or telephonic notice,
promptly confirmed in writing) to the Borrower and to the Lenders as soon as
practicable thereafter. In the case of Eurodollar Loans, until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) the obligations of
the Lenders to make Eurodollar Revolving Loans or to continue or convert
outstanding Loans as or into Eurodollar Loans shall be suspended and (ii) 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
Revolving Borrowing for which a Notice of Revolving Borrowing 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.
SECTION 2.18 Illegality. If any Change in Law shall make it unlawful or
impossible for any Lender to make, maintain or fund any Eurodollar Loan and such
Lender shall so notify the Administrative Agent, the Administrative Agent shall
promptly give notice thereof to the Borrower and the other Lenders, whereupon
until such Lender notifies the Administrative Agent and the Borrower that the
circumstances giving rise to such suspension no longer exist, the obligation of
such Lender to make Eurodollar Revolving 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 Revolving Borrowing, such Lender's Revolving Loan
shall be made as a Base Rate Loan as part of the same Revolving Borrowing for
the same Interest Period and if the affected Eurodollar Loan is then
outstanding, such Loan shall be converted to a Base Rate 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.
SECTION 2.19 Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any
reserve, special deposit or similar requirement that is not
otherwise included in the determination of the Adjusted LIBO
Rate hereunder against assets of, deposits with or for the
account
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of, or credit extended by, any Lender (except any such reserve
requirement reflected in the Adjusted LIBO Rate) or the
Issuing Bank; or
(ii) impose on any Lender or on the Issuing Bank
or the eurodollar interbank market any other condition
affecting this Agreement or any Eurodollar Loans made by such
Lender or any Letter of Credit or any participation therein;
and the result of the foregoing is to increase the actual cost to such
Lender of making, converting into, continuing or maintaining a
Eurodollar Loan or to increase the actual cost to such Lender or the
Issuing Bank of participating in or issuing 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 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 actually incurred or reduction actually 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 requirements has or would have the effect of reducing the rate
of return on such Lender's or the Issuing Bank's capital (or on the
capital of such Lender's or the Issuing Bank's parent corporation) 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 or the Issuing
Bank or such Lender's or the Issuing Bank's parent corporation could
have achieved but for such Change in Law (taking into consideration
such Lender's or the Issuing Bank's policies or the policies of such
Lender's or the Issuing Bank's parent corporation with respect to
capital adequacy) then, from time to time, within five (5) Business
Days after receipt by the Borrower of written demand by such Lender
(with a copy thereof to the Administrative Agent), the Borrower shall
pay to such Lender such additional amounts as will compensate such
Lender or the Issuing Bank or such Lender's or the Issuing Bank's
parent corporation for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting
forth the amount or amounts necessary to compensate such Lender or the
Issuing Bank or such Lender's or the Issuing Bank's parent corporation,
as the case may be, specified in paragraph (a) or (b) of this Section
shall be delivered to the Borrower (with a copy to the Administrative
Agent) and shall be presumed correct, absent manifest error. The
Borrower shall pay any such Lender or the Issuing Bank, as the case may
be, such amount or amounts within 10 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 shall not
constitute a waiver of such Lender's or the Issuing Bank's right to
demand such compensation.
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SECTION 2.20 Funding Indemnity. In the event of (a) the payment of any
principal of a Eurodollar Loan other than on the last day of the Interest Period
applicable thereto (including as a result of an Event of Default), (b) the
conversion or continuation of a Eurodollar Loan other than on the last day of
the Interest Period applicable thereto, or (c) the failure by the Borrower to
borrow, prepay, convert or continue any Eurodollar Loan on the date specified in
any applicable notice (regardless of whether such notice is withdrawn or
revoked), then, in any such event, the Borrower shall compensate each Lender,
within five (5) Business Days after written demand from such Lender, for any
loss, cost or expense attributable to such event. In the case of a Eurodollar
Loan, such loss, cost or expense shall be deemed to include an amount determined
by such Lender to be the excess, if any, of (A) the amount of interest that
would have accrued on the principal amount of such Eurodollar Loan if such event
had not occurred at the Adjusted LIBO Rate applicable to such Eurodollar Loan
for the period from the date of such event to the last day of the then current
Interest Period therefor (or in the case of a failure to borrow, convert or
continue, for the period that would have been the Interest Period for such
Eurodollar Loan) over (B) the amount of interest that would accrue on the
principal amount of such Eurodollar Loan for the same period if the Adjusted
LIBO Rate were set on the date such Eurodollar Loan was prepaid or converted or
the date on which the Borrower failed to borrow, convert or continue such
Eurodollar Loan. A certificate as to any additional amount payable under this
Section 2.20 submitted to the Borrower by any Lender shall be presumed correct,
absent manifest error.
SECTION 2.21 Taxes.
(a) Any and all payments by or on account of any obligation of
the Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided, that if
the Borrower shall be required to deduct any Indemnified Taxes or Other
Taxes from such payments, then (i) the sum payable shall be increased
as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section)
the Administrative Agent, any Lender or the Issuing Bank (as the case
may be) shall receive an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount deducted to
the relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent,
each Lender and the Issuing Bank, within five (5) Business Days after
written demand therefor, for the full amount of any Indemnified Taxes
or Other Taxes paid by the Administrative Agent, such Lender or the
Issuing Bank, as the case may be, on or with respect to any payment by
or on account of any obligation of the Borrower hereunder (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable
to amounts payable under this Section) and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto as a
result of the Borrower's failure to comply with this Section 2.21(c) in
a timely manner, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment
or liability delivered to the Borrower by a Lender or the
33
Issuing Bank, or by the Administrative Agent on its own behalf or on
behalf of a Lender or the Issuing Bank, shall be presumed correct
absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the
Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or
other evidence of such payment reasonably satisfactory to the
Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from
or reduction of withholding tax under the law of the jurisdiction in
which the Borrower is located, or any treaty to which such jurisdiction
is a party, with respect to payments under this Agreement shall deliver
to the Borrower (with a copy to the Administrative Agent), at the time
or times prescribed by applicable law, such properly completed and
executed documentation prescribed by applicable law or reasonably
requested by the Borrower as will permit such payments to be made
without withholding or at a reduced rate. Without limiting the
generality of the foregoing, each Foreign Lender agrees that it will
deliver to the Administrative Agent and the Borrower (or in the case of
a Participant, to the Lender from which the related participation shall
have been purchased) two (2) duly completed copies of Internal Revenue
Service Form 1001 or 4224, or any successor form thereto, as the case
may be, certifying in each case that such Foreign Lender is entitled to
receive payments made by the Borrower hereunder and under the Notes
payable to it, without deduction or withholding of any United States
federal income taxes and (ii) a duly completed Internal Revenue Service
Form W-8 or W-9, or any successor form thereto, as the case may be, to
establish an exemption from United State backup withholding tax. Each
such Foreign Lender shall deliver to the Borrower and the
Administrative Agent such forms on or before the date that it becomes a
party to this Agreement (or in the case of a Participant, on or before
the date such Participant purchases the related participation). In
addition, each such Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such
Lender. Each such Lender shall promptly notify the Borrower and the
Administrative Agent at any time that it determines that it is no
longer in a position to provide any previously delivered certificate to
the Borrower (or any other form of certification adopted by the U.S.
taxing authorities for such purpose).
SECTION 2.22 Payments Generally; Pro Rata Treatment; Sharing of
Set-offs.
(a) The Borrower shall make each payment required to be made
by it hereunder (whether of principal, interest, fees or reimbursement
of LC Disbursements, or of amounts payable under Section 2.19, 2.20 or
2.21, or otherwise) prior to 12:00 noon, on the Business Day when due,
in immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion of
the Administrative Agent, be deemed to have been received on the next
succeeding Business Day for purposes of calculating interest thereon.
All such payments shall be made to the Administrative Agent at the
Payment Office, except payments to be made directly to the Issuing Bank
or Swingline Lender as expressly provided herein and except
34
that payments pursuant to Sections 2.19, 2.20 and 2.21 and 10.3 shall
be made directly to the Persons entitled thereto. The Administrative
Agent shall distribute any such payments received by it for the account
of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is
not a Business Day, the date for payment shall be extended to the next
succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be made payable for the period of such
extension. All payments hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of
principal, unreimbursed LC Disbursements, interest and fees then due
hereunder, such funds shall be applied (i) first, towards payment of
interest and fees then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (ii) second, towards payment of principal
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.
(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 Revolving Loans, Term 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 Loans, Term Loans and participations
in LC Disbursements and Swingline Loans and accrued interest thereon
than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face
value) participations in the Revolving Loans, Term Loans and
participations in LC Disbursements and Swingline Loans 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 Loans, Term Loans and participations in LC Disbursements and
Swingline Loans; provided, that (i) if any such participations are
purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply
to any payment made by the Borrower pursuant to and in accordance with
the express terms of this Agreement or any payment obtained by a Lender
as consideration for the assignment of or sale of a participation in
any of its Loans or participations in LC Disbursements or Swingline
Loans to any assignee or participant, other than to the Borrower or any
Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply). The Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law,
that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such
Lender were a direct creditor of the Borrower in the amount of such
participation.
35
(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 Effective Rate and a rate determined by
the Administrative Agent in accordance with banking industry rules on
interbank compensation.
(e) If any Lender shall fail to make any payment required to
be made by it pursuant to Section 2.5(b) or (c), 2.24(c) or (d), 2.8,
2.22(d) or 10.3(d), then the Administrative Agent may, in its
discretion (notwithstanding any contrary provision hereof), apply any
amounts thereafter received by the Administrative Agent for the account
of such Lender to satisfy such Lender's obligations under such Sections
until all such unsatisfied obligations are fully paid.
SECTION 2.23 Mitigation of Obligations. If any Lender requests
compensation under Section 2.19, 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 2.21, 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 2.19 or Section 2.21, as the case may be, in the future and (ii) would
not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay
all costs and expenses incurred by any Lender in connection with such
designation or assignment.
SECTION 2.24 Letters of Credit.
(a) During the Availability Period, the Issuing Bank, in
reliance upon the agreements of the other Lenders pursuant to Section
2.24(d), agrees to issue, at the request of the Borrower, Letters of
Credit for the account of the Borrower on the terms and conditions
hereinafter set forth; provided, that (i) each Letter of Credit shall
expire no later than five (5) Business Days prior to the Commitment
Termination Date; (ii) each Letter of Credit shall be in a stated
amount of at least $250,000; 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 or (B) the
aggregate LC Exposure plus the aggregate outstanding Revolving Loans
and Swingline Exposure, of all Lenders, would exceed the Aggregate
Revolving Commitments. Upon the issuance of each Letter of Credit each
Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Issuing Bank without recourse a
36
participation in such Letter of Credit equal to such Lender's Pro Rata
Share of the aggregate amount available to be drawn under such Letter
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 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 (which approval shall not
be unreasonably withheld) and that the Borrower shall have executed and
delivered any additional applications, agreements and instruments
relating to such Letter of Credit as the Issuing Bank shall reasonably
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.
(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 the Business Day immediately preceding the date the Issuing
Bank is to issue the requested Letter of Credit 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 2.24(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 Bank's 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
37
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 Revolving 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 Revolving Base Rate Loan included in such Borrowing
available to the Administrative Agent for the account of the Issuing
Bank in accordance with Section 2.8. 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 Revolving 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
Lender's 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.
(f) To the extent that any Lender shall fail to pay any amount
required to be paid pursuant to paragraph (d) of this Section 2.24 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 Default Rate.
38
(g) If 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 the deposit of
cash collateral pursuant to this paragraph, the Borrower shall deposit
in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Lenders, an amount in
cash equal to the LC Exposure as of such date plus any accrued and
unpaid interest thereon; provided, that the obligation to deposit such
cash collateral shall become effective immediately, and such deposit
shall become immediately due and payable, with demand or notice of any
kind, upon the occurrence of any Event of Default with respect to the
Borrower described in clause (g) or (h) of Section 8.1. Such deposit
shall be held by the Administrative Agent as 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. 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 Borrower's 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 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. If the Borrower is
required to provide an amount of cash collateral hereunder as a result
of the occurrence of an Event of Default, such amount (to the extent
not so applied as aforesaid) shall be returned to the Borrower within
three Business Days after all Events of Default have been cured or
waived.
(h) Intentionally Omitted.
(i) The Borrower's 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
39
being untrue or inaccurate in any respect, if such documents
on their face appear to be in order;
(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, constitute a legal or
equitable discharge of, or provide a right of setoff against,
the Borrower's obligations hereunder; or
(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 direct damages (as opposed to consequential 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 Bank's failure to exercise 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 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) Each Letter of Credit shall be subject to the Uniform
Customs and Practices for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No.500, as the same may
be amended from time to time, and, to the extent not inconsistent
therewith, the governing law of this Agreement set forth in Section
10.5.
40
ARTICLE III
CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT
SECTION 3.1 Conditions To Effectiveness. 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 not become effective until
the date on which each of the following conditions is satisfied (or waived in
accordance with Section 10.2).
(a) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Closing Date,
including reimbursement or payment of all out-of-pocket expenses
(including reasonable fees, charges and disbursements of counsel to the
Administrative Agent) required to be reimbursed or paid by the Borrower
hereunder, under any other Loan Document and under any agreement with
the Administrative Agent or SunTrust Capital Markets, Inc., as Lead
Arranger.
(b) The Administrative Agent (or its counsel) shall have
received the following:
(i) a counterpart of this Agreement signed by or on
behalf of each party thereto or written evidence satisfactory
to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement)
that such party has signed a counterpart of this Agreement;
(ii) duly executed Notes payable to each Lender;
(iii) duly executed Subsidiary Guarantee Agreements
and Indemnity and Contribution Agreements;
(iv) duly executed Security Documents, all lien
searches and evidence of perfection of the liens evidenced by
the Security Documents;
(v) a certificate of the Secretary or Assistant
Secretary of each Loan Party, attaching and certifying copies
of its bylaws and of the resolutions of its boards of
directors, 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;
(vi) certified copies of the articles of
incorporation or other charter documents of each Loan Party,
together with certificates of good standing or existence, as
may be available from the Secretary of State of the
jurisdiction of incorporation of such Loan Party and each
other jurisdiction where such Loan Party is required to be
qualified to do business as a foreign corporation;
(vii) a favorable written opinion of Bass, Xxxxx &
Xxxx PLC, counsel to the Loan Parties, addressed to the
Administrative Agent and each of the Lenders, and covering
such matters relating to the Loan Parties, the Loan Documents
and
41
the transactions contemplated therein as the Administrative
Agent or the Required Lenders shall reasonably request;
(viii) a certificate, dated the Closing Date and
signed by a Responsible Officer, confirming compliance with
the conditions set forth in paragraphs (a), (b) and (c) of
Section 3.2;
(ix) insurance certificates evidencing the existing
insurance coverage of Borrower and its Subsidiaries;
(x) the audited financial statements of StatusOne for
its fiscal year ending December 31, 2002 and the unaudited
financial statements of StatusOne for its fiscal quarter
ending June 30, 2003 that are available as of the Closing
Date;
(xi) duly executed Notices of Borrowing, if
applicable;
(xii) a duly executed funds disbursement agreement.
(c) The StatusOne Acquisition shall have been duly consummated
on the Closing Date in accordance with the terms of the StatusOne
Acquisition Documents in all material respects and, after giving effect
thereto, the Borrower shall directly or indirectly own 100% of the
issued and outstanding capital stock of StatusOne. The Administrative
Agent shall have received evidence, reasonably satisfactory to it, of
the completion by the parties to the StatusOne Acquisition Documents of
all actions to be taken prior to or concurrently with the closing of
the transactions contemplated thereby pursuant to the terms thereof,
including without limitation, the satisfaction or, to the extent
consented to in writing by the Administrative Agent, waiver, of all
material conditions to closing set forth in the StatusOne Acquisition
Documents and the payment by each applicable party thereto of all
amounts required to be paid at closing and the satisfaction in full of
all Indebtedness to be repaid in connection with the StatusOne
Acquisition. The Administrative Agent shall have received evidence,
reasonably satisfactory to it, that all material consents and approvals
necessary to complete the StatusOne Acquisition have been obtained, and
such consents and approvals shall be in form and substance reasonably
satisfactory to the Administrative Agent. The StatusOne Acquisition
shall have been consummated for an aggregate purchase price not
exceeding $65,000,000, exclusive of transaction costs and related
expenses before contemplated adjustments. The aggregate amount of all
out-of-pocket transaction costs and related out-of-pocket expenses
incurred in connection with the StatusOne Acquisition shall not exceed
$1,500,000.
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:
(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; and
42
(b) all representations and warranties of each Loan Party set
forth in the Loan Documents shall be true and correct in all material
respects on and as of the date of such Borrowing or the date of
issuance, amendment, extension or renewal of such Letter of Credit, in
each case before and after giving effect thereto, except for (i)
representations and warranties effective as of a specified date, which
shall remain true and correct as of such specified date, and (ii)
changes in facts and circumstances that are not prohibited by the terms
of this Agreement;
(c) since the date of the most recent financial statements of
the Borrower described in Section 5.1(a), there shall have been no
change which has had or could reasonably be expected to have a Material
Adverse Effect; and
(d) the Administrative Agent shall have received such other
documents, certificates, information or legal opinions as the
Administrative Agent or the Required Lenders may reasonably request,
all in form and substance reasonably satisfactory to the Administrative
Agent or the Required Lenders.
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), (b) and (c) 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, except for the
Notes, in sufficient counterparts or copies for each of the Lenders and shall be
in form and substance satisfactory in all respects to the Administrative Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and
each Lender as follows:
SECTION 4.1 Existence; Power. The Borrower and each of its Subsidiaries
(i) is duly organized, validly existing and in good standing as a corporation
under the laws of the jurisdiction of its organization, (ii) has all requisite
power and authority to carry on its business as now conducted, and (iii) is duly
qualified to do business, and is in good standing, in each jurisdiction where
such qualification is required, except where a failure to be so qualified could
not reasonably be expected to result in a Material Adverse Effect.
SECTION 4.2 Organizational Power; Authorization. The execution,
delivery and performance by each Loan Party of the Loan Documents to which it is
a party are within such Loan Party's organizational powers and have been duly
authorized by all necessary organizational action. This Agreement has been duly
executed and delivered by the Borrower, and constitutes, and each other Loan
Document to which any Loan Party is a party, when executed and delivered by such
Loan Party, will constitute, valid and binding obligations of the Borrower or
such Loan Party (as the case may be), enforceable against it in accordance with
their
43
respective terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity.
SECTION 4.3 Governmental Approvals; No Conflicts. The execution,
delivery and performance by the Borrower of this Agreement, and by each Loan
Party of the other Loan Documents to which it is a party (a) do not require any
consent or approval of, registration or filing with, or any action by, any
Governmental Authority, except those as have been obtained or made and are in
full force and effect or where the failure to do so, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect,
(b) will not violate any applicable law or regulation or the charter, by-laws or
other organizational documents of the Borrower or any of its Subsidiaries or any
order of any Governmental Authority, (c) will not violate or result in a default
under any indenture, material agreement or other material instrument binding on
the Borrower or any of its Subsidiaries or any of its material assets or give
rise to a right thereunder to require any payment to be made by the Borrower or
any of its Subsidiaries and (d) will not result in the creation or imposition of
any Lien on any material asset of the Borrower or any of its Subsidiaries,
except Liens (if any) created under the Loan Documents.
SECTION 4.4 Financial Statements. The Borrower has furnished to each
Lender (i) the audited consolidated balance sheet of the Borrower and its
Subsidiaries as of August 31, 2002 and the related consolidated statements of
income, shareholders' equity and cash flows for the fiscal year then ended
prepared by Deloitte & Touche LLP and (ii) the unaudited consolidated balance
sheet of the Borrower and its Subsidiaries as at the end of the May 31, 2003,
and the related unaudited consolidated statements of income and cash flows for
the fiscal quarter and year-to-date period then ending, certified by a
Responsible Officer. Such financial statements fairly present the consolidated
financial condition of the 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 (ii). Since August
31, 2002, 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) Except as set forth on Schedule 4.5(a), no litigation,
investigation or proceeding of or before any arbitrators or
Governmental Authorities is pending against or, to the knowledge of the
Borrower, threatened against or affecting the Borrower or any of its
Subsidiaries (i) as to which there is a reasonable possibility of an
adverse determination that could reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect or (ii)
which in any manner draws into question the validity or enforceability
of this Agreement or any other Loan Document.
(b) Except for any matters that would not constitute a
Material Adverse Effect, neither the Borrower nor any of its
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
44
Environmental Liability, (iii) has received notice of any claim with
respect to any Environmental Liability or (iv) knows of any basis for
any Environmental Liability.
SECTION 4.6 Compliance with Laws and Agreements. The Borrower and each
Subsidiary is in compliance with (a) all applicable laws, rules, regulations and
orders of any Governmental Authority, and (b) all indentures, agreements or
other instruments binding upon it or its properties, except where
non-compliance, either singly or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 4.7 Investment Company Act, Etc. Neither the Borrower nor any
of its Subsidiaries is (a) an "investment company", as defined in, or subject to
regulation under, the Investment Company Act of 1940, as amended, (b) a "holding
company" as defined in, or subject to regulation under, the Public Utility
Holding Company Act of 1935, as amended or (c) otherwise subject to any other
regulatory scheme limiting its ability to incur debt.
SECTION 4.8 Taxes. The Borrower and its Subsidiaries have timely filed
or caused to be filed (or have obtained permitted extensions for) all Federal
income tax returns and, to the knowledge of Borrower, have filed or caused to be
filed (or have obtained permitted extensions for) all other material tax returns
that are required to be filed by them, and have paid all taxes shown to be due
and payable on such returns or on any assessments made against it or its
property and all other taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority, except (i) to the extent the failure to
do so would not have a Material Adverse Effect or (ii) where the same are
currently being contested in good faith by appropriate proceedings and for which
the Borrower or such Subsidiary, as the case may be, has set aside on its books
adequate reserves.
SECTION 4.9 Margin Regulations. None of the proceeds of any of the
Loans or Letters of Credit will be used for "purchasing" or "carrying" any
"margin stock" within the respective meanings of each of such terms under
Regulation U as now and from time to time hereafter in effect or for any purpose
that violates the provisions of the applicable Margin Regulations.
SECTION 4.10 ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial 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.
SECTION 4.11 Ownership of Property.
(a) Each of the Borrower and its Subsidiaries has good title
to, or valid leasehold interests in, all of its real and personal
property material to the operation of its business.
45
(b) Each of the Borrower and its Subsidiaries owns, or is
licensed, or otherwise has the right, to use, all material patents,
trademarks, service marks, tradenames, copyrights and other
intellectual property material to its business, and the use thereof by
the Borrower and its Subsidiaries does not infringe on the rights of
any other Person, except for any such infringements that, individually
or in the aggregate, would not have a Material Adverse Effect.
SECTION 4.12 Disclosure. The Borrower has disclosed to the Lenders all
agreements, instruments, and corporate or other restrictions to which the
Borrower or any of its 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. Neither the Information
Memorandum (with respect to information contained therein concerning the
Borrower and its Subsidiaries) nor any of the reports (including without
limitation all reports that the Borrower is required to file with the Securities
and Exchange Commission), financial statements, certificates or other
information furnished by or on behalf of the Borrower 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.
SECTION 4.13 Labor Relations. There are no strikes, lockouts or other
material labor disputes or grievances against the Borrower or any of its
Subsidiaries, or, to the Borrower's knowledge, threatened against or affecting
the Borrower or any of its Subsidiaries, and no significant unfair labor
practice, charges or grievances are pending against the Borrower or any of its
Subsidiaries, or to the Borrower's knowledge, threatened against any of them
before any Governmental Authority, which individually or in the aggregate would
result in a Material Adverse Effect. All payments due from the Borrower or any
of its 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 Subsidiary, except where the failure to do so could not reasonably
be expected to have a Material Adverse Effect.
SECTION 4.14 Subsidiaries. Schedule 4.14 sets forth the name of, the
ownership interest of the Borrower in, the jurisdiction of incorporation of, and
the type of, each Subsidiary and each Restricted Subsidiary and identifies each
Subsidiary that is a Subsidiary Loan Party, in each case as of the Closing Date.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or the principal of and interest on any Loan or any fee or
any LC Disbursement remains unpaid or any Letter of Credit remains outstanding:
46
SECTION 5.1 Financial Statements and Other Information. The Borrower
will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after
the end of each fiscal year of Borrower, 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, stockholders' 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 Ernst & Young, LLP or other
independent public accountants of nationally recognized standing
(without a "going concern" or like qualification, exception or
explanation and without any qualification or exception as to scope of
such audit) to the effect that such financial statements present fairly
in all material respects the financial condition and the results of
operations of the 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 of the first three fiscal quarters of each fiscal year
of the Borrower, 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 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 Borrower's previous fiscal year, all certified
by a Responsible Officer or treasurer of the Borrower as presenting
fairly in all material respects the financial condition and results of
operations of the Borrower and its Subsidiaries on a consolidated basis
in accordance with GAAP, subject to normal year-end audit adjustments
and the absence of footnotes;
(c) concurrently with the delivery of the financial statements
referred to in clauses (a) and (b) above, a certificate of a
Responsible Officer, (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, specifying the details
thereof and the action which the Borrower has taken or proposes to take
with respect thereto, (ii) setting forth in reasonable detail
calculations demonstrating compliance with Article VI and (iii) stating
whether any change in GAAP or the application thereof has occurred
since the date of the Borrower's audited financial statements referred
to in Section 4.4 and, if any change has occurred, specifying the
effect of such change on the financial statements accompanying such
certificate;
(d) concurrently with the delivery of the financial statements
referred to in clause (a) above, a certificate of the accounting firm
that reported on such financial statements stating whether they
obtained any knowledge during the course of their examination of such
financial statements of any Default or Event of Default (which
certificate may be limited to the extent required by accounting rules
or guidelines);
47
(e) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed with the Securities and Exchange Commission, or any Governmental
Authority succeeding to any or all functions of said Commission, or
with any national securities exchange, or distributed by the Borrower
to its shareholders generally, as the case may be; and
(f) 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.
SECTION 5.2 Notices of Material Events. The Borrower will furnish to
the Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default or Event of Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority
against or, to the knowledge of the Borrower, affecting the Borrower or
any Subsidiary 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 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 Subsidiaries in
an aggregate amount exceeding $300,000; and
(e) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a
written statement of a Responsible Officer setting forth the details of the
event or development requiring such notice and any action taken or proposed to
be taken with respect thereto.
SECTION 5.3 Existence; Conduct of Business. The Borrower will, and will
cause each of its Subsidiaries to, do or cause to be done all things necessary
to preserve, renew and maintain in full force and effect its legal existence and
its respective rights, licenses, permits, privileges, franchises, patents,
copyrights, trademarks and trade names material to the conduct of its business
(to the extent a failure to do so would have a Material Adverse Effect) and will
continue to engage in substantially the same business as presently conducted or
such other businesses that are reasonably related thereto; provided, that
nothing in this Section shall prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 7.3.
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SECTION 5.4 Compliance with Laws, Etc. The Borrower will, and will
cause each of its Subsidiaries to, comply with all laws, rules, regulations and
requirements of any Governmental Authority applicable to its properties, except
where the failure to do so, either individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.5 Payment of Obligations. The Borrower will, and will cause
each of its Subsidiaries to, pay and discharge at or before maturity, all of its
obligations and liabilities (including without limitation all tax liabilities
and claims that could result in a statutory Lien) before the same shall become
delinquent or in default, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (b) the Borrower or
such Subsidiary has set aside on its books adequate reserves with respect
thereto in accordance with GAAP and (c) the failure to make payment pending such
contest could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.6 Books and Records. The Borrower will, and will cause each
of its Subsidiaries to, keep proper books of record and account in which full,
true and correct entries shall be made of all material dealings and transactions
in relation to its business and activities to the extent necessary to prepare
the consolidated financial statements of Borrower in conformity with GAAP.
SECTION 5.7 Visitation, Inspection, Etc. The Borrower will, and will
cause each of its Subsidiaries to, 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.
SECTION 5.8 Maintenance of Properties; Insurance. The Borrower will,
and will cause each of its Subsidiaries to, (a) keep and maintain all property
material to the conduct of its business in good working order and condition,
except for ordinary wear and tear, if the failure to do so, either individually
or it the aggregate, could reasonably be expected to result in a Material
Adverse Effect and (b) maintain with financially sound and reputable insurance
companies, insurance with respect to its properties and business, and the
properties and business of its Subsidiaries, against loss or damage of the kinds
customarily insured against by companies in the same or similar businesses
operating in the same or similar locations.
SECTION 5.9 Use of Proceeds and Letters of Credit. The Borrower will
use the proceeds of the Revolving Credit Loans to refinance the outstanding
Indebtedness evidenced by that certain Amended and Restated Revolving Credit
Agreement dated November 22, 2002 by and among Borrower, SunTrust Bank as
Administrative Agent and the Lenders as defined and named therein and to finance
working capital needs, acquisitions, capital expenditures and for other general
corporate purposes of the Borrower and its Subsidiaries. The Borrower will use
the proceeds of the Term Loans to pay a portion of the purchase price as set
forth in the StatusOne Acquisition Documents. 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
49
the Federal Reserve System, including Regulations T, U or X. All Letters of
Credit will be used for general corporate purposes.
SECTION 5.10 Additional Subsidiaries. If any additional Subsidiary is
acquired or formed after the Closing Date, the Borrower will, within ten (10)
business days after such Subsidiary is acquired or formed, notify the
Administrative Agent and the Lenders thereof and will cause such Subsidiary to
become a Subsidiary Loan Party by executing agreements in the form of Annex I to
Exhibit E and Annex I to Exhibit F in form and substance satisfactory to the
Administrative Agent and the Required Lenders and will cause such Subsidiary to
deliver simultaneously therewith similar documents applicable to such Subsidiary
required under Section 3.1 as reasonably requested by the Administrative Agent.
If a Restricted Subsidiary actively engages in business or acquires assets in
excess of $250,000 after the Closing Date, the Borrower will, within ten (10)
business days after such Restricted Subsidiary engaged in business or has such
assets, notify the Administrative Agent and the Lenders thereof and promptly
thereafter (but in no event more than 15 days after such notice) will cause such
Restricted Subsidiary to become a Subsidiary Loan Party by executing agreements
in the form of Annex I to Exhibit E and Annex I to Exhibit F in form and
substance satisfactory to the Administrative Agent will cause such Restricted
Subsidiary to deliver simultaneously therewith similar documents applicable to a
Subsidiary required under Section 3.1 as reasonably requested by the
Administrative Agent. Such Restricted Subsidiary shall thereafter become a
Subsidiary for all purposes hereunder.
SECTION 5.11 Additional Assets. Within ten (10) days after receipt of
written notice from the Administrative Agent, the Borrower and any Subsidiary
Loan Party shall execute such security agreements, collateral assignments, deeds
of trust, mortgages, pledge agreements, or similar agreements, and take all such
necessary steps (including filings and recordings with appropriate governmental
offices), all at the Borrower's expense, as reasonably requested by the
Administrative Agent, to obtain on behalf of the Lenders a Lien against any
presently existing or hereafter acquired material asset of the Borrower and each
Subsidiary Loan Party.
ARTICLE VI
FINANCIAL COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or the principal of or interest on or any Loan remains
unpaid or any fee or any LC Disbursement remains unpaid or any Letter of Credit
remains outstanding:
SECTION 6.1 Ratio of Consolidated Total Funded Debt to Consolidated
EBITDA. The Borrower and its Subsidiaries will maintain at all times a ratio of
Consolidated Total Funded Debt to Consolidated EBITDA of not greater than 2.00
to 1.0. Borrower's compliance with this ratio shall be measured at the end of
each fiscal quarter of Borrower, and calculated for such quarter and the three
preceding fiscal quarters taken as a whole.
SECTION 6.2 Interest Coverage Ratio. The Borrower will have, as of the
end of each fiscal quarter of the Borrower, commencing with the fiscal quarter
ending after the Closing Date, an Interest Coverage Ratio equal to or greater
than 3.0 to 1.0.
50
SECTION 6.3 Fixed Charge Coverage Ratio. The Borrower will have, as of
the end of each fiscal quarter of the Borrower, commencing with the fiscal
quarter ending after the Closing Date, a Fixed Charge Coverage Ratio of at least
1.75 to 1.0.
SECTION 6.4 Consolidated Net Worth. The Borrower will not permit its
Consolidated Net Worth at any time to be less than an amount equal to
$88,928,759.00, plus 75% of positive Consolidated Net Income on a cumulative
basis for all fiscal quarters of the Borrower, commencing with the fiscal
quarter ending on August 31, 2003; provided, that if Consolidated Net Income is
negative in any fiscal quarter the amount added for such fiscal quarter shall be
zero and such negative Consolidated Net Income shall not reduce the amount of
Consolidated Net Income added from any previous fiscal quarter. The amount of
Consolidated Net Worth set forth above shall be increased by 100% of the amount
by which the Borrower's "total stockholders' equity" is increased as a result of
any Net Cash Proceeds of any public or private equity offering of equity
securities by the Borrower after the Closing Date. Promptly upon the
consummation of such offering, the Borrower shall notify the Administrative
Agent in writing of the amount of such increase in "total stockholders' equity".
In the determination of the financial covenants set forth in this
Article (other than Section 6.4), StatusOne shall be a Subsidiary effective as
of August 31, 2003 and for the four prior fiscal quarters prior to the Closing
Date coinciding with the four prior fiscal quarters of Borrower.
ARTICLE VII
NEGATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or the principal of or interest on any Loan remains unpaid
or any fee or any LC Disbursement remains unpaid or any Letter of Credit remains
outstanding:
SECTION 7.1 Indebtedness. The Borrower will not, and will not permit
any of its Subsidiaries to, create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness created pursuant to the Loan Documents;
(b) Indebtedness existing on the date hereof and set forth on
Schedule 7.1 and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof (immediately prior to giving effect to such extension, renewal
or replacement) or shorten the maturity or the weighted average life
thereof;
(c) Indebtedness of the Borrower owing to any Subsidiary and
of any Subsidiary owing to the Borrower or any other Subsidiary;
provided that any such Indebtedness that is owed to a Subsidiary or by
a Subsidiary shall be a domestic Subsidiary created and existing under
the laws of a State of the United States, and provided, further, that
any such Indebtedness that is owed to a Subsidiary that is not a
Subsidiary Loan Party shall be subject to Section 7.4;
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(d) Indebtedness in respect of obligations under Hedging
Agreements permitted by Section 7.10;
(e) other unsecured Indebtedness in an aggregate principal
amount not to exceed $2,000,000 at any time outstanding;
(f) Capital Lease Obligations and secured purchase money
indebtedness not in excess of $5,000,000 in the aggregate at any time;
and
(g) Indebtedness consisting of the Earn-Out Consideration (as
defined in the StatusOne Merger Agreement) and any other Indebtedness
of the Borrower and its Subsidiaries pursuant to the StatusOne Merger
Agreement or any of the other StatusOne Acquisition Documents; and
(h) Permitted Subordinated Debt in an aggregate principal
amount not to exceed $30,000,000 at any time outstanding.
SECTION 7.2 Negative Pledge. The Borrower will not, and will not permit
any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien on
any of their respective assets or property now owned or hereafter acquired or,
except:
(a) Liens created in favor of the Administrative Agent for the
benefit of the Lenders pursuant to the Loan Documents;
(b) Permitted Encumbrances;
(c) a Lien securing a Hedging Agreement in favor of a current
Lender, entered into in connection with interest rate risks with
respect to this Agreement, which ranks pari passu with the Security
Documents;
(d) any Liens on any property or asset of the Borrower or any
Subsidiary existing on the Closing Date set forth on Schedule 7.2;
provided, that such Lien shall not apply to any other property or asset
of the Borrower or any Subsidiary;
(e) purchase money Liens upon or in any fixed or capital
assets to secure the purchase price or the cost of such fixed or
capital assets or to secure Indebtedness incurred solely for the
purpose of financing the acquisition of such fixed or capital assets
(including Liens securing any Capital Lease Obligations); provided,
that (i) such Lien secures Indebtedness permitted by Section 7.1(f),
(ii) such Lien attaches to such asset concurrently or within 90 days
after the acquisition thereof; (iii) such Lien does not extend to any
other asset; and (iv) the Indebtedness secured thereby does not exceed
the cost of acquiring such fixed or capital assets;
(f) any Lien (i) existing on any asset of any Person at the
time such Person becomes a Subsidiary of the Borrower, (ii) existing on
any asset of any Person at the time such Person is merged with or into
the Borrower or any Subsidiary of the Borrower or (iii) existing on any
asset prior to the acquisition thereof by the Borrower or any
Subsidiary of the Borrower; provided, that any such Lien was not
created in the
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contemplation of any of the foregoing and any such Lien secures only
those obligations which it secures on the date that such Person becomes
a Subsidiary or the date of such merger or the date of such
acquisition; and
(g) extensions, renewals, or replacements of any Lien referred
to in paragraphs (a) through (f) of this Section; provided, that the
principal amount of the Indebtedness secured thereby is not increased
and that any such extension, renewal or replacement is limited to the
assets originally encumbered thereby.
SECTION 7.3 Fundamental Changes.
(a) The Borrower will not, and will not permit any Subsidiary
to, merge into or consolidate into any other Person, or permit any
other Person to merge into or consolidate with it, or sell, lease,
transfer or otherwise dispose of (in a single transaction or a series
of transactions) all or substantially all of its assets (in each case,
whether now owned or hereafter acquired) or all or substantially all of
the stock of any of its Subsidiaries (in each case, whether now owned
or hereafter acquired) or liquidate or dissolve; provided, that if at
the time thereof and immediately after giving effect thereto, no
Default or Event of Default shall have occurred and be continuing (i)
the Borrower or any Subsidiary may merge with a Person if the Borrower
(or such Subsidiary if the Borrower is not a party to such merger) is
the surviving Person or if the surviving Person is a Subsidiary of the
Borrower thereafter and complies with Section 5.10, (ii) any Subsidiary
may merge into another Subsidiary; provided, that if any party to such
merger is a Subsidiary Loan Party, the Subsidiary Loan Party shall be
the surviving Person, (iii) any Subsidiary may sell, transfer, lease or
otherwise dispose of all or substantially all of its assets to the
Borrower or to a Subsidiary Loan Party and (iv) any Subsidiary (other
than a Subsidiary Loan Party) may liquidate or dissolve if the Borrower
determines in good faith that such liquidation or dissolution is in the
best interests of the Borrower and is not materially disadvantageous to
the Lenders; provided, that any such merger involving a Person that is
not a wholly-owned Subsidiary immediately prior to such merger shall
not be permitted unless the corresponding Investment (as defined in
Section 7.4), if any, is also permitted by Section 7.4.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, engage to any material extent in any business other
than businesses of the type conducted by the Borrower and its
Subsidiaries on the date hereof and businesses reasonably related
thereto.
SECTION 7.4 Investments, Loans, Etc. The Borrower will not, and will
not permit any of its Subsidiaries to, purchase, hold or acquire (including
pursuant to any merger with any Person that was not a wholly-owned Subsidiary
prior to such merger), any common stock, evidence of indebtedness or other
securities (including any option, warrant, or other right to acquire any of the
foregoing) of, make or permit to exist any loans or advances to, Guarantee any
obligations of, or make or permit to exist any investment or any other interest
in, any other Person (all of the foregoing being collectively called
"INVESTMENTS"), or purchase or otherwise acquire (in one transaction or a series
of transactions) any assets of any other Person that constitute a business unit,
except:
53
(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) Guarantees constituting Indebtedness permitted by Section
7.1;
(d) loans or advances to employees, officers or directors of
the Borrower or any Subsidiary in the ordinary course of business for
travel, relocation and related expenses;
(e) Hedging Agreements permitted by Section 7.10;
(f) The StatusOne Acquisition; and
(g) Investments in or an Acquisition of any Person in which
the consideration paid or exchanged in such Investment is not in excess
of whichever of the following applies: (i) $10,000,000 (and not in
excess of $5,000,000 for any one Acquisition) in any fiscal year, if
the sole consideration paid or exchanged is cash; (ii) in any fiscal
year an amount equal to fifteen percent (15%) of Consolidated Net
Worth, as calculated as of the end of the prior fiscal year, if the
sole consideration paid or exchanged is stock; and (iii) in any fiscal
year $10,000,000 in cash and fifteen percent (15%) of Consolidated Net
Worth, as calculated as of the end of the prior fiscal year, if the
consideration paid or exchanged consists of a combination of cash and
stock. The Borrower shall provide the Administrative Agent with all
relevant documentation concerning an Investment or Acquisition
permitted by this subsection at least 15 days prior to such Investment
or Acquisition.
Notwithstanding any provisions in this Section to the contrary, the Borrower
will not, and will not permit its Subsidiaries to, make Investments in a
Restricted Subsidiary after the date of this Agreement.
SECTION 7.5 Restricted Payments. The Borrower will not, and will not
permit its Subsidiaries to, declare or make, or agree to pay or make, directly
or indirectly, any dividend on any class of its stock, or make any payment on
account of, or set apart assets for a sinking or other analogous fund for, the
purchase, redemption, retirement, defeasance or other acquisition of, any shares
of common stock or Indebtedness subordinated to the Obligations of the Borrower
or any options, warrants, or other rights to purchase such common stock or such
Indebtedness, whether now or hereafter outstanding (each, a "RESTRICTED
PAYMENT"), except for (i) dividends payable by the Borrower solely in shares of
any class of its common stock, (ii) Restricted Payments made by any Subsidiary
ratably to the Borrower, any other Subsidiaries of the Borrower and any other
minority shareholders of a Subsidiary of Borrower and (iii) cash redemptions of
the common stock of the Borrower; provided, that (a) no Default or Event of
Default has occurred and is continuing at the time such dividend is paid or
redemption is made, and (b) no more than $5,000,000 in the aggregate is paid for
redemption of stock during the term hereof. Notwithstanding any provisions in
this Section to the contrary, the Borrower will not, and will not permit its
Subsidiaries to, make a Restricted Payment to a Restricted Subsidiary.
54
SECTION 7.6 Sale of Assets. The Borrower will not, and will not permit
any of its Subsidiaries to, convey, sell, lease, assign, transfer or otherwise
dispose of, any of its assets, business or property, whether now owned or
hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares
of such Subsidiary's common stock to any Person other than the Borrower or a
Subsidiary of the Borrower, except:
(a) the sale or other disposition for fair market value of
obsolete or worn out property or other property not necessary for
operations disposed of in the ordinary course of business;
(b) the sale of inventory and Permitted Investments in the
ordinary course of business;
(c) the sale or other disposition of assets in a transaction
permitted under Section 7.3(a); and
(d) other sales or Dispositions of assets with a fair market
value that does not exceed in the aggregate $2,000,000 in any four
fiscal quarter period.
SECTION 7.7 Transactions with Affiliates. The Borrower will not, and
will not permit any of its Subsidiaries to, sell, lease or otherwise transfer
any property or assets to, or purchase, lease or otherwise acquire any property
or assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (a) in the ordinary course of business at prices and on terms
and conditions not less favorable to the Borrower or such Subsidiary than could
be obtained on an arm's-length basis from unrelated third parties, (b)
transactions between or among the Borrower and its Subsidiaries not involving
any other Affiliates and (c) any Restricted Payment permitted by Section 7.5.
SECTION 7.8 Restrictive Agreements. The Borrower will not, and will not
permit any Subsidiary to, directly or indirectly, enter into, incur or permit to
exist any agreement that prohibits, restricts or imposes any condition upon (a)
the ability of the Borrower or any Subsidiary to create, incur or permit any
Lien upon any of its assets or properties, whether now owned or hereafter
acquired, or (b) the ability of any Subsidiary to pay dividends or other
distributions with respect to its common stock, to make or repay loans or
advances to the Borrower or any other Subsidiary, to Guarantee Indebtedness of
the Borrower or any other Subsidiary or to transfer any of its property or
assets to the Borrower or any Subsidiary of the Borrower; provided, that (i) the
foregoing shall not apply to restrictions or conditions imposed by law or by
this Agreement or any other Loan Document, (ii) the foregoing shall not apply to
customary restrictions and conditions contained in agreements relating to the
sale of a Subsidiary pending such sale, provided such restrictions and
conditions apply only to the Subsidiary that is sold and such sale is permitted
hereunder, (iii) clause (a) shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions and conditions apply only to the property or
assets securing such Indebtedness and (iv) clause (a) shall not apply to
customary provisions in real property or equipment leases restricting the
assignment thereof.
55
SECTION 7.9 Sale and Leaseback Transactions. The Borrower will not, and
will not permit any of the Subsidiaries to, enter into any arrangement, directly
or indirectly, whereby it shall sell or transfer any property, real or personal,
used or useful in its business, whether now owned or hereinafter acquired, and
thereafter rent or lease such property or other property that it intends to use
for substantially the same purpose or purposes as the property sold or
transferred.
SECTION 7.10 Hedging Agreements. The Borrower will not, and will not
permit any of the Subsidiaries to, enter into any Hedging Agreement, other than
Hedging Agreements approved by the Administrative Agent in its reasonable
discretion.
SECTION 7.11 Status of Incorporation. The Borrower will not permit any
Subsidiary to change its state of incorporation.
SECTION 7.12 Accounting Changes. Subject to Section 1.3, the Borrower
will not, and will not permit any Subsidiary to, make any significant change in
accounting treatment or reporting practices, except as required by GAAP, or
change the fiscal year of the Borrower or of any Subsidiary, except to change
the fiscal year of a Subsidiary to conform its fiscal year to that of the
Borrower.
SECTION 7.13 Permitted Subordinated Indebtedness.
(a) The Borrower will not, and will not permit any of its
Subsidiaries to (i) prepay, redeem, repurchase or otherwise acquire for
value any Permitted Subordinated Debt, or (ii) make any principal,
interest or other payments on any Permitted Subordinated Debt that is
not expressly permitted by the subordination provisions of the
Subordinated Debt Documents.
(b) The Borrower will not, and will not permit any of its
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
interest rate 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 in a manner adverse to the Administrative Agent or the Lenders;
(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 Subsidiary; or (iv) otherwise increase the obligations of the
Borrower or any Subsidiary in respect of such Permitted Subordinated
Debt or confer additional rights upon the holders thereof which
individually or in the aggregate would be materially adverse to the
Borrower or any of its Subsidiaries or to the Administrative Agent or
the Lenders.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1 Events of Default. If any of the following events (each an
"Event of Default") shall occur:
56
(a) the Borrower shall fail to pay any principal of any Loan
or of any reimbursement obligation in respect of any LC Disbursement on
the date such payment became due and payable, whether at the due date
thereof or at a date fixed for prepayment or otherwise; or
(b) the Borrower 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 Article) 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 days; or
(c) any representation or warranty made or deemed made by or
on behalf of the Borrower or any 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 when made or deemed made or
submitted; or
(d) the Borrower shall fail to observe or perform any covenant
or agreement contained in Sections 5.2, 5.3 (with respect to the
Borrower's existence) or Articles VI or VII; or
(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), and such failure shall
remain unremedied for 30 days after the earlier of (i) any Responsible
Officer of the Borrower becomes aware of such failure, or (ii) written
notice thereof shall have been given to the Borrower by the
Administrative Agent or any Lender; or
(f) the Borrower or any 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 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
(g) the Borrower or any Subsidiary shall (i) commence a
voluntary case or other proceeding or file any petition seeking
liquidation, reorganization or other relief under
57
any federal, state or foreign bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of a
custodian, trustee, receiver, liquidator or other similar official of
it or any substantial part of its property, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner,
any proceeding or petition described in clause (i) of this Section,
(iii) apply for or consent to the appointment of a custodian, trustee,
receiver, liquidator or other similar official for the Borrower or any
such 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
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Borrower or any
Subsidiary or its debts, or any substantial part of its assets, under
any federal, state or foreign bankruptcy, insolvency or other similar
law now or hereafter in effect or (ii) the appointment of a custodian,
trustee, receiver, liquidator or other similar official for the
Borrower or any Subsidiary or 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
(i) the Borrower or any Subsidiary shall become unable to pay,
shall admit in writing its inability to pay, or shall fail to pay, its
debts generally as they become due; or
(j) 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 Subsidiaries in an aggregate amount exceeding
$1,000,000; or
(k) any judgment or order for the payment of money in excess
of $1,000,000 in the aggregate shall be rendered against the Borrower
or any 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
(l) any non-monetary judgment or order shall be rendered
against the Borrower or any 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
(m) a Change in Control shall occur or exist; or
(n) any provision of any Subsidiary Guarantee Agreement shall
for any reason cease to be valid and binding on, or enforceable
against, any Subsidiary Loan Party, or any Subsidiary Loan Party shall
so state in writing, or any Subsidiary Loan Party shall seek to
terminate its Subsidiary Guarantee Agreement; or
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(o) an Event of Default shall occur under any other agreements
evidencing Indebtedness owed to any of the Lenders or under any Hedging
Agreement executed with any of the Lenders (taking into account any
applicable notice and cure or grace period provisions thereof);
then, and in every such event (other than an event with respect to the Borrower
described in clause (g) or (h) of this Section) and at any time thereafter
during the continuance of such event, the Administrative Agent may, and upon the
written request of the Required Lenders shall, by notice to the Borrower, take
any or all of the following actions, at the same or different times: (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 and
(iii) exercise all remedies contained in any other Loan Document; and that, if
an Event of Default specified in either clause (g) or (h) 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.
ARTICLE IX
THE ADMINISTRATIVE AGENT
SECTION 9.1 Appointment of Administrative Agent.
(a) Each Lender irrevocably appoints SunTrust 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 by or through any one or more sub-agents appointed by
the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all of its duties and exercise its rights
and powers through their respective Related Parties. The exculpatory
provisions set forth in this Article shall apply to any such sub-agent
and the Related Parties of the Administrative Agent and any such
sub-agent and shall apply to their respective activities in connection
with the syndication of the credit facilities provided for herein as
well as activities as 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 IX 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
59
as the term "Administrative Agent" as used in this Article IX 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.
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 10.2), 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
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 10.2) or in the absence of its own gross negligence or
willful misconduct. The Administrative Agent shall not be deemed to have
knowledge of any Default or Event of Default unless and until written notice
thereof is given to the Administrative Agent by the Borrower or any Lender, and
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. In the event the Administrative Agent
shall have actual knowledge of a Default or Event of Default as set forth in
this Section, it shall give reasonable notice thereof to the Lenders.
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 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 or any
other Lender and based on such documents and information as it has deemed
appropriate, continue to make its own decisions in taking or not taking of any
action under or based on this Agreement, any related agreement or any document
furnished hereunder or thereunder.
SECTION 9.4 Certain Rights of the Administrative Agent. If the
Administrative Agent shall request instructions from the Required Lenders with
respect to any action or actions
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(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 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 "Lenders", "Required
Lenders", "holders of Notes", 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.
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 the 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 and the Issuing
Bank, appoint a successor Administrative Agent, which shall be a
commercial bank organized under the laws of the United States of
America or any state thereof or a bank which maintains an office in the
United States, having a combined capital and surplus of at least
$500,000,000.
(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
61
days after written notice is given of the retiring Administrative
Agent's resignation under this Section 9.7 no successor Administrative
Agent shall have been appointed and shall have accepted such
appointment, then on such 45th day (i) the retiring Administrative
Agent's 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 Agent's resignation hereunder, the provisions
of this Article IX 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.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Notices.
(a) Except in the case of notices and other communications
expressly permitted to be given by telephone, all notices and other
communications to any party herein to be effective shall be in writing
and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopy, as follows:
To the Borrower: American Healthways, Inc.
0000 Xxxxx Xxxxx Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxx,
Senior Vice President and
Controller
Facsimile Number:
(000) 000-0000
To the Administrative Agent: SunTrust Bank
000 Xxxxxx Xxxxxx Xxxxx
X.X. Xxx 000000
Mail Code: TN Nashville 1907
Xxxxxxxxx, Xxxxxxxxx
00000-0000
Attention: Xxxx Xxxxxxxx,
Director
Facsimile Number:
(000) 000-0000
With a copy to: SunTrust Capital Markets, Inc.
000 Xxxxxxxxx Xxxxxx, X. E./
25th Floor
Atlanta, Georgia 30308
Attention: Agency
Services Facsimile Number:
(000) 000-0000
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To the Issuing Bank: SunTrust Bank
000 Xxxxxx Xxxxxx Xxxxx
X.X. Xxx 000000
Mail Code: TN Nashville 1907
Xxxxxxxxx, Xxxxxxxxx
00000-0000
Attention: Xxxx Xxxxxxxx,
Director
Facsimile Number:
(000) 000-0000
To the Swingline Lender: SunTrust Bank
000 Xxxxxx Xxxxxx Xxxxx
X.X. Xxx 000000
Mail Code: TN Nashville 1907
Xxxxxxxxx, Xxxxxxxxx
00000-0000
Attention: Xxxx Xxxxxxxx,
Director
Facsimile Number:
(000) 000-0000
To any other Lender: the address set forth in the
Administrative Questionnaire
Any party hereto may change its address or telecopy number for notices
and other communications hereunder by notice to the other parties
hereto. All such notices and other communications shall, when
transmitted by overnight delivery, or faxed, be effective when
delivered for overnight (next-day) delivery, or transmitted in legible
form by facsimile machine, respectively, or if mailed, upon the third
Business Day after the date deposited into the mails or if delivered,
upon delivery; provided, that notices delivered to 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 10.1.
(b) Any agreement of the Administrative Agent 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 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 and 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 or 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 and the Lenders to receive written
confirmation of any telephonic or facsimile notice or the receipt by
the Administrative Agent and the Lenders of a confirmation which is at
variance with the terms understood by the Administrative Agent and the
Lenders to be contained in any such telephonic or facsimile notice.
SECTION 10.2 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
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course of dealing between the Borrower 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 the Borrower therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) of this Section, and then such
waiver or consent shall be effective only in the specific instance and
for the purpose for which given. 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) No amendment or waiver of any provision of this Agreement
or the other Loan Documents, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Borrower and the Required Lenders
or the Borrower and the Administrative Agent with the consent of the
Required Lenders and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which
given; provided, that no amendment or waiver shall: (i) 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 or the definition of "Required Lenders" 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 agreement without the written consent
of each Lender; (vii) release all or substantially all collateral (if
any) securing any of the Obligations without the written consent of
each Lender; provided further, that no such agreement shall amend,
modify or otherwise affect the rights, duties or obligations of the
Administrative Agent, the Swingline Lender or the Issuing Bank without
the prior written consent of such Person.
SECTION 10.3 Expenses; Indemnification.
(a) The Borrower shall pay (i) all reasonable, out-of-pocket
costs and expenses of the Administrative Agent and its Affiliates,
including the reasonable fees, charges and
64
disbursements of counsel for the Administrative Agent and its
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), (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 Issuing Bank or any
Lender (provided that the Borrower shall not be obligated to pay fees
and expenses for more than one counsel, other than special local
counsel, for the Lenders) in connection with the enforcement or
protection of its rights in connection with this Agreement, including
its rights under this Section, 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.
(b) The Borrower shall indemnify the Administrative Agent, the
Issuing Bank and each Lender, and each Related Party of any of the
foregoing (each, an "INDEMNITEE") against, and hold each of them
harmless from, any and all costs, losses, liabilities, claims, damages
and related expenses, including the fees, charges and disbursements of
any counsel for any Indemnitee, which may be reasonably incurred by or
asserted against any Indemnitee arising out of, in connection with or
as a result of (i) the execution or delivery of this Agreement or any
other agreement or instrument contemplated hereby, the performance by
the parties hereto of their respective obligations hereunder or the
consummation of any of the transactions contemplated hereby, (ii) any
Loan or Letter of Credit or any actual 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 by the Borrower or
any Subsidiary or any Environmental Liability related in any way to the
Borrower or any Subsidiary 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 and
regardless of whether any Indemnitee is a party thereto; provided, that
the Borrower shall not be obligated to indemnify any Indemnitee for any
of the foregoing arising out of such Indemnitee's gross negligence or
willful misconduct as determined by a court of competent jurisdiction
in a final and nonappealable judgment.
(c) The Borrower shall pay, and hold the Administrative Agent
and each of the Lenders harmless from and against, any and all present
and future stamp, documentary, and other similar taxes with respect to
this Agreement and any other Loan Documents, any collateral described
therein, or any payments due thereunder, and save the Administrative
Agent and each Lender harmless from and against any and all liabilities
with respect to or resulting from any delay or omission to pay such
taxes.
65
(d) 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), (b) or (c) hereof, each Lender
severally agrees to pay to the Administrative Agent, the Issuing Bank
or the Swingline Lender, as the case may be, such Lender's Pro Rata
Share (determined as of the time that the unreimbursed expense or
indemnity payment is sought) of such unpaid amount; provided, that the
unreimbursed expense or indemnified payment, claim, damage, liability
or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent, the Issuing Bank or the Swingline
Lender in its capacity as such.
(e) To the extent permitted by applicable law, the Borrower
shall not assert, and hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to actual or direct damages) arising out
of, in connection with or as a result of, this Agreement or any
agreement or instrument contemplated hereby, the transactions
contemplated therein, any Loan or any Letter of Credit or the use of
proceeds thereof.
(f) All amounts due under this Section shall be payable
promptly after written demand therefor.
SECTION 10.4 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Borrower may not assign or
transfer any of its rights hereunder without the prior written consent
of each Lender (and any attempted assignment or transfer by the
Borrower without such consent shall be null and void).
(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 and
the other Loan Documents (including all or a portion of its Commitment
and the Loans and LC Exposure at the time owing to it); provided, that
(i) except in the case of an assignment to a Lender or an Affiliate of
a Lender, each of the Borrower and the Administrative Agent (and, in
the case of an assignment of all or a portion of a Commitment or any
Lender's obligations in respect of its LC Exposure or Swingline
Exposure, the Issuing Bank or the Swingline Lender, as applicable) must
give their prior written consent (which consent shall not be
unreasonably withheld or delayed), (ii) except in the case of an
assignment to a Lender or an Affiliate of a Lender or an assignment of
the entire amount of the assigning Lender's Commitment hereunder or an
assignment while an Event of Default has occurred and is continuing,
the amount of the Commitment of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $2,500,000 (unless the
Borrower and the Administrative Agent shall otherwise consent), (iii)
each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement and the other Loan Documents, (iv) the assigning
Lender and the assignee shall execute and deliver to the Administrative
Agent an Assignment and Acceptance, together with a processing and
66
recordation fee payable by the assigning Lender or the assignee (as
determined between such Persons) in an amount equal to $1,000 and (v)
such assignee, if it is not a Lender, shall deliver a duly completed
Administrative Questionnaire to the Administrative Agent; provided,
that any consent of the Borrower otherwise required hereunder shall not
be required if an Event of Default has occurred and is continuing. Upon
the execution and delivery of the Assignment and Acceptance and payment
by such assignee to the assigning Lender of an amount equal to the
purchase price agreed between such Persons, such assignee shall become
a party to this Agreement and any other Loan Documents to which such
assigning Lender is a party and, to the extent of such interest
assigned by such Assignment and Acceptance, shall have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
shall be released from its obligations hereunder to a corresponding
extent (and, in the case of an Assignment and Acceptance covering all
of the assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 2.18, 2.19 and 2.20 and 10.3. Upon
the consummation of any such assignment hereunder, the assigning
Lender, the Administrative Agent and the Borrower shall make
appropriate arrangements to have new Notes issued if so requested by
either or both the assigning Lender or the assignee. Any assignment or
other transfer by a Lender that does not fully comply with the terms of
this clause (b) shall be treated for purposes of this Agreement as a
sale of a participation pursuant to clause (c) below.
(c) Any Lender may at any time, without the consent of the
Borrower, the Administrative Agent, the Issuing Bank or the Swingline
Lender, sell participations to one or more banks or other entities (a
"Participant") in all or a portion of such Lender's rights and
obligations under this Agreement (including all or a portion of its
Commitment, the Loans owing to it and its LC Exposure); provided, that
(i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of its obligations hereunder,
and (iii) the Borrower, the Administrative Agent, the Swingline Lender,
the Issuing Bank and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender's rights
and obligations under this Agreement and the other Loan Documents. Any
agreement between such Lender and the Participant with respect to such
participation shall provide that such Lender shall retain the sole
right and responsibility to enforce this Agreement and the other Loan
Documents and the sole right to approve any amendment, modification,
consent or waiver regarding this Agreement and the other Loan
Documents; provided, that such participation agreement may provide that
such Lender will not, without the consent of the Participant, agree to
any amendment, modification, consent or waiver regarding this Agreement
described in the first proviso of Section 10.2(b) that affects the
Participant. The Borrower agrees that each Participant shall be
entitled to the benefits of Sections 2.18, 2.19 and 2.20 to the same
extent as if it were a Lender hereunder and had acquired its interest
by assignment pursuant to paragraph (b); provided, that no Participant
shall be entitled to receive any greater payment under Section 2.18,
2.19 or 2.20 than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant
unless the sale of such participation is made with the Borrower's prior
written consent. To the extent permitted by law, the Borrower agrees
that each Participant shall be entitled to the benefits of Section 2.21
as though it were a Lender, provided, that such Participant agrees
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to share with the Lenders the proceeds thereof in accordance with
Section 2.21 as fully as if it were a Lender hereunder, further
provided that no Participant shall be entitled to receive any greater
payment under Section 2.21 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such
Participant unless the sale of such participation is made with the
Borrower's prior written consent. A Participant that would be a Foreign
Lender if it were a Lender shall not be entitled to the benefits of
Section 2.20 unless the Borrower is notified of such participation sold
to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 2.20(e) as though it were a Lender
hereunder.
(d) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement and
its Notes (if any) to secure its obligations to a Federal Reserve Bank
without complying with this Section; provided, that no such pledge or
assignment shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party
hereto.
(e) Notwithstanding anything to the contrary contained herein,
any Lender (a "Granting Lender") may grant to a special purpose funding
vehicle (an "SPV"), identified as such in writing from time to time by
the Granting Lender to the Administrative Agent and the Borrower, the
option to provide to the Borrower all or any part of any Loan that such
Granting Lender would otherwise be obligated to make to the Borrower
pursuant to this Agreement; provided, that (i) nothing herein shall
constitute a commitment by any SPV to make any Loan and (ii) if an SPV
elects not to exercise such option or otherwise fails to provide all or
any part of any Loan, the Granting Lender shall be obligated to make
such Loan pursuant to the terms hereof. The making of a Loan by an SPV
hereunder shall utilize the Commitment of the Granting Lender to the
same extent, and as if such Loan were made by such Granting Lender.
Each party hereto hereby agrees that no SPV shall be liable for any
indemnity or similar payment obligation under this Agreement (all
liability for which shall remain with the Granting Lender). In
furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior
to the date that is one year and one day after the payment in full of
all outstanding commercial paper or other senior indebtedness of any
SPV, it will not institute against, or join any other person in
instituting against, such SPV any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of
the United States or any State. Notwithstanding anything to the
contrary in this Section 10.4, any SPV may (i) with notice to, but
without the prior written consent of, the Borrower and the
Administrative Agent and without paying any processing fee therefor,
assign all or a portion of its interests in any Loans to the Granting
Lender or to any financial institutions (consented to by the Borrower
and the Administrative Agent) providing liquidity and/or credit support
to or for the account of such SPV to support the funding or maintenance
of Loans and (ii) disclose on a confidential basis any non-public
information relating to its Loans to any rating agency, commercial
paper dealer or provider of any surety, guarantee or credit or
liquidity enhancement to such SPV. As this Section 10.4(e) applies to
any particular SPV, this Section may not be amended without the written
consent of such SPV.
SECTION 10.5 Governing Law; Jurisdiction; Consent to Service of
Process.
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(a) This Agreement and the other Loan Documents 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
Tennessee.
(b) The Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the non-exclusive jurisdiction
of the United States District Court of the Middle District of
Tennessee, and of any state court in Davidson County, Tennessee 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
Tennessee 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 the Borrower or its properties in the courts of any
jurisdiction.
(c) The Borrower 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 and brought in any court referred to in paragraph (b) of this
Section. 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 10.1.
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 10.6 WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
69
SECTION 10.7 Right of Setoff. In addition to any rights now or
hereafter granted under applicable law and not by way of limitation of any such
rights, each Lender 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.
SECTION 10.8 Counterparts; Integration. This Agreement may be executed
by one or more of the parties to this Agreement on any number of separate
counterparts (including by telecopy), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. This
Agreement, the other Loan Documents, and any separate letter agreement(s)
relating to any fees payable to the Administrative Agent constitute the entire
agreement among the parties hereto and thereto regarding the subject matters
hereof and thereof and supersede all prior agreements and understandings, oral
or written, regarding such subject matters.
SECTION 10.9 Survival. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any 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 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 2.19, 2.20, 2.21, 10.3 and Article IX
shall survive and remain in full force and effect regardless of the consummation
of the transactions contemplated hereby, the repayment of the 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 and in the certificates, reports, notices and other
documents delivered pursuant to this Agreement shall survive the execution and
delivery of this Agreement and the other Loan Documents, and the making of the
Loans and the issuance of the Letters of Credit.
SECTION 10.10 Severability. Any provision of this Agreement or any
other Loan Document held to be illegal, invalid or unenforceable in any
jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of
such illegality, invalidity or unenforceability without affecting the legality,
validity or enforceability of the remaining provisions hereof or thereof; and
70
the illegality, invalidity or unenforceability of a particular provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
SECTION 10.11 Confidentiality. Each of the Administrative Agent, the
Issuing Bank and each Lender agrees to take normal and reasonable precautions to
maintain the confidentiality of any information designated in writing as
confidential and provided to it by the Borrower or any Subsidiary, except that
such information may be disclosed (i) to any Related Party of the Administrative
Agent, 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 having
jurisdiction, (iv) to the extent that such information becomes publicly
available other than as a result of a breach of this Section, or which becomes
available to the Administrative Agent, the Issuing Bank, any Lender or any
Related Party of any of the foregoing on a nonconfidential basis from a source
other than the Borrower, (v) in connection with the exercise of any remedy
hereunder or any suit, action or proceeding relating to this Agreement or the
enforcement of rights hereunder, and (ix) subject to provisions substantially
similar to this Section 10.11, to any actual or prospective assignee or
Participant, or (vi) with the consent of the Borrower. Any Person required to
maintain the confidentiality of any information as provided for in this Section
shall be considered to have complied with its obligation to do so if such Person
has exercised the same degree of care to maintain the confidentiality of such
information as such Person would accord its own confidential information.
SECTION 10.12 Interest and Loan Charges Not to Exceed Maximum Amounts
Allowed by Law. Anything in this Agreement, the Notes, the Security Documents or
any of the other Loan Documents to the contrary notwithstanding, in no event
whatsoever, whether by reason of advancement of proceeds of the Loans,
acceleration of the maturity of the unpaid balance of the Loans or otherwise,
shall the interest and loan charges agreed to be paid to any Lender for the use
of the money advanced or to be advanced hereunder exceed the maximum amounts
collectible under applicable laws in effect from time to time. It is understood
and agreed by the parties that, if for any reason whatsoever the interest or
loan charges paid or contracted to be paid by Borrower in respect of the Loans
shall exceed the maximum amounts collectible under applicable laws in effect
from time to time, then ipso facto, the obligation to pay such interest and/or
loan charges shall be reduced to the maximum amounts collectible under
applicable laws in effect from time to time, and any amounts collected by any
Lender that exceed such maximum amounts shall be applied to the reduction of the
principal balance of the Loans and/or refunded to Borrower so that at no time
shall the interest or loan charges paid or payable in respect of the Loans
exceed the maximum amounts permitted from time to time by applicable law.
(remainder of page left intentionally blank)
71
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers
as of the day and year first above written.
AMERICAN HEALTHWAYS, INC.
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
-------------------------------
Title: Executive Vice President and
------------------------------
Chief Financial Officer
------------------------------
SUNTRUST BANK
as Administrative Agent, as Issuing
Bank, as Swingline Lender and as a
Lender
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Director
Revolving Commitment: $ 8,000,000
Swingline Commitment: $ 5,000,000
Term Loan Commitment: $12,000,000
00
XXXXXXXX XXXX XXXX XX XXXXXXXX
By: /s/ Xxxxx Xxxx
---------------------------------
Name: Xxxxx Xxxx
-------------------------------
Title: Banking Officer
------------------------------
Revolving Commitment: $6,000,000
Term Loan Commitment: $9,000,000
73
US BANK, N.A.
By: /s/ X. X. Xxxxxxx
---------------------------------
Name: X. X. Xxxxxxx
-------------------------------
Title: SVP
------------------------------
Revolving Commitment: $6,000,000
Term Loan Commitment: $9,000,000
74
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxxxx X. Xxxx
-------------------------------
Title: SVP
------------------------------
Revolving Commitment: $4,000,000
Term Loan Commitment: $6,000,000
75
THE CIT GROUP/EQUIPMENT FINANCING,
INC.
By: /s/ X X Xxxxxx
---------------------------------
Name: X X Xxxxxx
-------------------------------
Title: Assistant Vice President
------------------------------
Revolving Commitment: $4,000,000
Term Loan Commitment: $6,000,000
76
FIFTH THIRD BANK
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxx
-------------------------------
Title: VP
------------------------------
Revolving Commitment: $4,000,000
Term Loan Commitment: $6,000,000
00
XXXXX XXXXXXXX XXXX N.A.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
-------------------------------
Title: Senior Vice President
------------------------------
Revolving Commitment: $4,000,000
Term Loan Commitment: $6,000,000
78
BANK OF NASHVILLE
By: /s/ Xxxxx X. Xxxxxxx, III
---------------------------------
Name: Xxxxx X. Xxxxxxx, III
-------------------------------
Title: Vice President
------------------------------
Revolving Commitment: $4,000,000
Term Loan Commitment: $6,000,000
79
