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EXHIBIT 10.16
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PEDIATRIX MEDICAL GROUP
AMENDED AND RESTATED
CREDIT AGREEMENT
Originally Dated as of June 27, 1996
As Amended and Restated as of November 1, 2000
FLEET NATIONAL BANK, Agent and Lender
SUNTRUST BANK, Documentation Agent and Lender
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TABLE OF CONTENTS
1. Restatement; Definitions.................................................................................1
1.1. Restatement.....................................................................................1
2. The Credits.............................................................................................17
2.1. Revolving Credit...............................................................................17
2.1.1. Revolving Loan........................................................................17
2.1.2. Maximum Amount of Revolving Credit....................................................17
2.1.3. Borrowing Requests....................................................................17
2.1.4. Loan Accounts; Revolving Notes........................................................18
2.2. Letters of Credit..............................................................................18
2.2.1. Issuance of Letters of Credit.........................................................18
2.2.2. Requests for Letters of Credit........................................................18
2.2.3. Form and Expiration of Letters of Credit..............................................19
2.2.4. Lenders' Participation in Letters of Credit...........................................19
2.2.5. Reimbursement of Payment..............................................................19
2.2.6. Uniform Customs and Practice..........................................................19
2.2.7. Subrogation...........................................................................20
2.2.8. Modification, Consent, etc............................................................20
2.3. The Mortgage Credit............................................................................20
2.3.1. Mortgage Loan.........................................................................20
2.3.2. Mortgage Note.........................................................................20
2.4. Application of Proceeds........................................................................20
2.4.1. The Loans.............................................................................21
2.4.2. Specifically Prohibited Applications..................................................21
2.4.3. Letters of Credit.....................................................................21
2.5. Nature of Obligations of Lenders to Make Extensions of Credit..................................21
2.6. Obligations Joint and Several..................................................................21
3. Interest; Eurodollar Pricing Options; Fees..............................................................21
3.1. Interest.......................................................................................21
3.2. Eurodollar Pricing Options.....................................................................22
3.2.1. Election of Eurodollar Pricing Options................................................22
3.2.2. Notice to Lenders and the Borrowers...................................................22
3.2.3. Selection of Eurodollar Interest Periods..............................................22
3.2.4. Additional Interest...................................................................23
3.2.5. Violation of Legal Requirements.......................................................23
3.2.6. Funding Procedure.....................................................................23
3.3. Commitment Fees................................................................................23
3.3.1. Fee Base..............................................................................23
3.3.2. Fee Rate..............................................................................24
3.4. Letter of Credit Fees..........................................................................24
3.5. Reserve Requirements, etc......................................................................24
3.6. Taxes..........................................................................................25
3.7. Capital Adequacy...............................................................................25
3.8. Regulatory Changes.............................................................................26
3.9. Computations of Interest and Fees..............................................................26
4. Payment.................................................................................................26
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4.1. Payment of Revolving Loan......................................................................26
4.1.1. Payment at Maturity...................................................................26
4.1.2. Mandatory Prepayment..................................................................26
4.1.3. Voluntary Prepayments of Revolving Loan...............................................27
4.1.4. Reborrowing; Application of Payments..................................................27
4.2. Payment of Letters of Credit...................................................................27
4.2.1. Payments at Maturity and Upon Acceleration of Maturity................................27
4.2.2. Mandatory Prepayment..................................................................27
4.3. Payment of Mortgage Loan.......................................................................27
4.3.1. Payment at Maturity...................................................................27
4.3.2. Mandatory Prepayments of the Mortgage Loan............................................27
4.3.3. Voluntary Prepayments of the Mortgage Loan............................................28
4.3.4. No Reborrowing........................................................................28
5. Conditions to Extending Credit..........................................................................28
5.1. Conditions on Initial Closing Date on the Revolving Loan.......................................28
5.1.1. Revolving Notes.......................................................................28
5.1.2. Payment of Fee........................................................................28
5.1.3. Security Agreement....................................................................28
5.2. The Mortgage Loan..............................................................................28
5.3. Conditions to Making Each Permitted Acquisition Advance........................................28
5.3.1. Permitted Acquisition.................................................................28
5.3.2. Notes and Credit Documents; Merger....................................................29
5.4. Conditions to Each Extension of Credit.........................................................30
5.4.1. Officer's Certificate.................................................................30
5.4.2. Legality, etc.........................................................................30
5.4.3. Proper Proceedings....................................................................30
5.4.4. General...............................................................................30
6. General Covenants.......................................................................................30
6.1. Taxes and Other Charges; Accounts Payable......................................................30
6.1.1. Taxes and Other Charges...............................................................30
6.1.2. Accounts Payable......................................................................31
6.2. Conduct of Business, etc.......................................................................31
6.2.1. Types of Business.....................................................................31
6.2.2. Maintenance of Properties.............................................................31
6.2.3. Statutory Compliance..................................................................31
6.2.4. No Subsidiaries.......................................................................31
6.2.5. Compliance with Material Agreements...................................................32
6.3. Insurance......................................................................................32
6.3.1. Business Interruption Insurance.......................................................32
6.3.2. Property Insurance....................................................................32
6.3.3. Liability Insurance...................................................................32
6.4. Financial Statements and Reports...............................................................32
6.4.1. Annual Reports........................................................................32
6.4.2. Quarterly Reports.....................................................................33
6.4.3. Other Reports.........................................................................33
6.4.4. Notice of Litigation, Defaults, etc...................................................34
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6.4.5. ERISA Reports.........................................................................34
6.4.6. Other Information.....................................................................35
6.5. Certain Financial Tests........................................................................35
6.5.1. Consolidated Financing Debt to Consolidated EBITDA....................................35
6.5.2. Consolidated Total Debt Service.......................................................35
6.5.3. Consolidated Net Worth................................................................35
6.5.4. Consolidated EBITDA to Consolidated Net Revenue.......................................35
6.5.5. Consolidated Tangible Net Worth.......................................................35
6.6. Indebtedness...................................................................................35
6.7. Guarantees.....................................................................................36
6.8. Liens..........................................................................................37
6.9. Investments and Permitted Acquisitions.........................................................37
6.10. Distributions..................................................................................38
6.11. Capital Expenditures...........................................................................38
6.12. Asset Dispositions and Mergers.................................................................38
6.13. ERISA, etc.....................................................................................39
6.14. Transactions with Affiliates...................................................................39
6.15. Environmental Laws.............................................................................39
6.15.1. Compliance with Law and Permits.......................................................39
6.15.2. Notice of Claims, etc.................................................................39
6.16. Depository Accounts............................................................................39
7. Representations and Warranties..........................................................................40
7.1. Organization and Business......................................................................40
7.1.1. The Obligors..........................................................................40
7.1.2. Qualification.........................................................................40
7.1.3. Capitalization........................................................................40
7.2. Financial Statements and Other Information; Material Agreements................................40
7.2.1. Financial Statements and Other Information............................................40
7.2.2. Material Agreements...................................................................41
7.3. Changes in Condition...........................................................................41
7.4. Title to Assets................................................................................41
7.5. Operations in Conformity With Law, etc.........................................................41
7.6. Litigation.....................................................................................41
7.7. Authorization and Enforceability...............................................................41
7.8. No Legal Obstacle to Agreements................................................................42
7.9. Defaults.......................................................................................42
7.10. Licenses, etc..................................................................................42
7.11. Tax Returns....................................................................................43
7.12. Future Expenditures............................................................................43
7.13. Environmental Regulations......................................................................43
7.13.1. Environmental Compliance..............................................................43
7.13.2. Environmental Litigation..............................................................43
7.13.3. Environmental Condition of Properties.................................................44
7.14. Pension Plans..................................................................................44
7.15. Acquisition Agreement, etc.....................................................................44
7.16. Disclosure.....................................................................................44
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8. Defaults................................................................................................44
8.1. Events of Default..............................................................................44
8.1.1. Payment...............................................................................44
8.1.2. Specified Covenants...................................................................45
8.1.3. Other Covenants.......................................................................45
8.1.4. Representations and Warranties........................................................45
8.1.5. Cross Default.........................................................................45
8.1.6. Enforceability, etc...................................................................45
8.1.7. Medicaid, etc.........................................................................45
8.1.8. Change of Control.....................................................................45
8.1.9. Judgments.............................................................................45
8.1.10. ERISA.................................................................................46
8.1.11. Bankruptcy, etc.......................................................................46
8.2. Certain Actions Following an Event of Default..................................................46
8.2.1. Terminate Obligation to Extend Credit.................................................47
8.2.2. Specific Performance; Exercise of Rights..............................................47
8.2.3. Acceleration..........................................................................47
8.2.4. Enforcement of Payment................................................................47
8.2.5. Cumulative Remedies...................................................................47
8.3. Annulment of Defaults..........................................................................47
8.4. Waivers........................................................................................48
9. Guarantees..............................................................................................48
9.1. Guarantees of Credit Obligations...............................................................48
9.2. Continuing Obligation..........................................................................48
9.3. Waivers with Respect to Credit Obligations.....................................................49
9.4. Lenders' Power to Waive, etc...................................................................50
9.5. Information Regarding the Borrowers, etc.......................................................51
9.6. Certain Guarantor Representations..............................................................51
9.7. Subrogation....................................................................................52
9.8. Subordination..................................................................................52
9.9. Future Subsidiaries; Further Assurances........................................................52
10. Expenses; Indemnity.....................................................................................52
10.1. Expenses.......................................................................................52
10.2. General Indemnity..............................................................................53
10.3. Indemnity With Respect to Letters of Credit....................................................53
11. Operations; Agent.......................................................................................53
11.1. Interests in Credits...........................................................................53
11.2. Agent's Authority to Act, etc..................................................................54
11.3. Borrowers to Pay Agent, etc....................................................................54
11.4. Lender Operations for Advances.................................................................54
11.4.1. Advances..............................................................................54
11.4.2. Letters of Credit.....................................................................55
11.4.3. Agent to Allocate Payments, etc.......................................................55
11.4.4. Delinquent Lenders; Nonperforming Lenders.............................................55
11.5. Sharing of Payments, etc.......................................................................56
11.6. Amendments, Consents, Waivers, etc.............................................................56
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11.7. Agent's Resignation............................................................................57
11.8. Concerning the Agent...........................................................................57
11.8.1. Action in Good Faith, etc.............................................................57
11.8.2. No Implied Duties, etc................................................................57
11.8.3. Validity, etc.........................................................................57
11.8.4. Compliance............................................................................58
11.8.5. Employment of Agents and Counsel......................................................58
11.8.6. Reliance on Documents and Counsel.....................................................58
11.8.7. Agent's Reimbursement.................................................................58
11.9. Rights as a Lender.............................................................................58
11.10. Independent Credit Decision....................................................................58
11.11. Indemnification................................................................................59
12. Successors and Assigns; Lender Assignments and Participations...........................................59
12.1. Assignments by Lenders.........................................................................59
12.1.1. Assignees and Assignment Procedures...................................................59
12.1.2. Terms of Assignment and Acceptance....................................................59
12.1.3. Register..............................................................................60
12.1.4. Acceptance of Assignment and Assumption...............................................60
12.1.5. Federal Reserve Bank..................................................................61
12.1.6. Further Assurances....................................................................61
12.2. Credit Participants............................................................................61
12.3. Replacement of Lender..........................................................................62
13. Notices.................................................................................................62
14. Course of Dealing; Amendments and Waivers...............................................................63
15. Defeasance..............................................................................................63
16. Venue; Service of Process...............................................................................63
17. WAIVER OF JURY TRIAL....................................................................................64
18. General.................................................................................................64
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EXHIBITS
2.1.4 - Form of Revolving Note
2.3.2 - Mortgage Note
5.1.3 - Form of Security Agreement
5.2.2 - Joinder Agreement
5.3.1 - Officer's Certificate
6.4.1 - Financial Officer's Certificate for Annual Reports
6.4.2 - Financial Officer's Certificate for Quarterly Reports
6.6 - Existing Indebtedness
6.7 - Existing Guarantees
6.8 - Existing Liens
6.9.7 - Existing Investments
6.11 - Asset Dispositions and Mergers
6.14 - Transactions with Affiliates
7.1 - Company and its Subsidiaries
7.2.2 - Material Agreements
7.3 - Financing Debt, Certain Investments, etc.
7.4 - Changes in Condition
7.6 - Litigation
7.11 - Tax Assessment
7.13 - Environmental
7.14 - Multi-employer and Defined Benefit Plans
8.1.6 - Certain Stockholders of the Company
12.1.1 - Assignment and Xxxxxxxxxx
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PEDIATRIX MEDICAL GROUP
AMENDED AND RESTATED
CREDIT AGREEMENT
This Agreement, originally dated as of June 27, 1996 and amended and
restated as of November 1, 2000, is among Pediatrix Medical Group, Inc., a
Florida corporation, the Related Entities of Pediatrix Medical Group, Inc. from
time to time party hereto, the Lenders from time to time party hereto including
Fleet National Bank, formerly known as The First National Bank of Boston, both
in its capacity as a Lender under the Revolving Loan, the Letters of Credit and
Mortgage Loan and in its capacity as agent for itself and the other Lenders,
SunTrust Bank, both in its capacity as a Lender under the Revolving Loan and the
Letters of Credit and in its capacity as documentation agent and UBS AG,
Stamford Branch, in its capacity as a Lender under the Revolving Loan and the
Letters of Credit. The parties agree as follows:
1. RESTATEMENT; DEFINITIONS.
1.1. RESTATEMENT. Effective as of the Initial Closing Date, this
Agreement amends and restates in its entirety the Credit Agreement dated as of
June 27, 1996, as previously amended and in effect on the date hereof, among the
Borrowers and a group of lenders for which the Agent is acting as agent. Amounts
in respect of interest, commitment fees, and other amounts payable hereunder
shall be payable in accordance with the terms of this Agreement as in effect
prior to the amendment and restatement on the Initial Closing Date for periods
prior to the Initial Closing Date and in accordance with this Agreement as
amended and restated hereby for periods from and after the Initial Closing Date.
1.1. CERTAIN RULES OF CONSTRUCTION. Certain capitalized terms are used
in this Agreement and in the other Credit Documents with the specific meanings
defined below in this Section 1. Except as otherwise explicitly specified to the
contrary or unless the context clearly requires otherwise, (a) the capitalized
term "Section" refers to sections of this Agreement, (b) the capitalized term
"Exhibit" refers to exhibits to this Agreement, (c) references to a particular
Section include all subsections thereof, (d) the word "including" shall be
construed as "including without limitation", (e) accounting terms not otherwise
defined herein have the meaning provided under GAAP, (f) terms defined in the
UCC and not otherwise defined herein have the meaning provided under the UCC,
(g) references to a particular statute or regulation include all rules and
regulations thereunder and any successor statute, regulation or rules, in each
case as from time to time in effect and (h) references to a particular Person
include such Person's successors and assigns to the extent not prohibited by
this Agreement and the other Credit Documents. References to "the date hereof"
mean the date first set forth above.
1.2. "ACCUMULATED BENEFIT OBLIGATIONS" means the actuarial present
value of the accumulated benefit obligations under any Plan, calculated in
accordance with Statement No. 87 of the Financial Accounting Standards Board.
1.3. "ACQUIRED PARTY" shall mean any Person, 100% of the outstanding
capital stock or beneficial interests or substantially all of the assets of
which are acquired by any Borrower in connection with a Permitted Acquisition.
1.4. "AFFECTED LENDER" is defined in Section 12.3.
1.5. "AFFILIATE" means, with respect to any Borrower (or any other
specified Person), any other Person directly or indirectly controlling,
controlled by or under direct or indirect common control with such Borrower, and
shall include (a) any executive officer or director or general partner of such
Borrower and (b) any Person of which such Borrower or any Affiliate (as defined
in clause (a) above) of such Borrower shall, directly or indirectly,
beneficially own either (i) at least 10% of the outstanding equity securities
having the general power to vote or (ii) at least 10% of all equity interests.
1.6. "AGENT" means Fleet National Bank, in its capacity as agent for
the Lenders hereunder, as well as its successors and assigns in such capacity.
1.7. "AGREEMENT" means this Agreement as from time to time amended,
modified and in effect.
1.8. "APPLICABLE MARGIN" means on each day, the per annum percentage in
the table below set opposite the ratio of (i) Consolidated Financing Debt as of
the end of the most recent fiscal quarter for which financial statements have
been furnished to the Lenders in accordance with Sections 6.4.1 and 6.4.2 prior
to such day to (ii) the Consolidated EBITDA for the period of four consecutive
fiscal quarters ending with such fiscal quarter:
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APPLICABLE MARGIN (%)
Ratio of Consolidated
Financing Debt to
Consolidated Base Rate Eurodollar Pricing Commitment
EBITDA Option Option Fee
--------------------- --------- ----------------- -----------
>=.0x 0 2.50% 0.500
>= 1.5x <2.0x 0 2.25% 0.375%
<1.5x 0 2.00% 0.375%
Changes in the Applicable Margin shall occur on each Pricing Reset
Date; PROVIDED, HOWEVER, that in the event that the financial statements
required to be delivered pursuant to Section 6.4.1 or 6.4.2, as applicable, are
not delivered by the latest date permissible under Section 6.4.1 or 6.4.2, as
the case may be (the "LATE DELIVERY DATE"), and if, upon deliver of such
financial statements, it is determined that delivery of such financial
statements on the Late Delivery Date would have resulted in an increase in the
Applicable Margin on the first Pricing Reset Date after the Late Delivery Date
(the "LATE PRICING RESET DATE"), such increase will be deemed effective as of
the Late Pricing Reset Date.
1.9. "APPLICABLE RATE" means, at any date, the sum of:
(a)(i) with respect to any portion of the Revolving Loan
subject to a Eurodollar Pricing Option, the sum of
the Applicable Margin attributable to such portion of
the Revolving Loan PLUS the Eurodollar Rate with
respect to such Eurodollar Pricing Option;
(ii) with respect to any other portion of the Revolving
Loan, the sum of the Applicable Margin attributable
to such portion of the Revolving Loan PLUS the Base
Rate;
(iii) with respect to the Mortgage Loan, the rate set forth
in the Mortgage Note;
PLUS (b) an additional 2% effective on the day the Agent
notifies the Company that the interest rates
hereunder are increasing as a result of the
occurrence and continuance of an Event of Default
until the earlier of such time as (i) such Event of
Default is no longer continuing or (ii) such Event of
Default is deemed no longer to exist, in each case
pursuant to Section 8.3.
1.10. "APPROVED SUBORDINATED DEBT" means debt subordinated and junior
in right of payment to prior payment in full of all Credit Obligations pursuant
to a subordination agreement, the terms of which shall be satisfactory to the
Agent.
1.11. "ACQUISITION AGREEMENT" means the documentation pursuant to which
any Borrower commits itself to make a Permitted Acquisition.
1.12. "ASSIGNEE" is defined in Section 12.11.
1.13. "ASSIGNMENT AND ACCEPTANCE" is defined in Section 12.1.1.
1.14. "BANKING DAY" means any day other than Saturday, Sunday or a day
on which banks in Boston, Massachusetts are authorized or required by law or
other governmental action to close and, if such term is used with reference to a
Eurodollar Pricing Option, any day on which dealings are effected in the
Eurodollars in question by first-class banks in the inter-bank Eurodollar
markets in New York, New York.
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1.15. "BANKRUPTCY CODE" means Title 11 of the United States Code.
1.16. "BANKRUPTCY DEFAULT" means an Event of Default referred to in
Section 8.1.11.
1.17. "BASE RATE" means, on any date, the greater of (a) the rate of
interest announced by the Agent at the Boston Office as its Base Rate or (b) the
sum of 1/2% PLUS the Federal Funds Rate.
1.18. "BORROWERS" means, jointly and severally, the Company, its
Related Entities and such other Related Entities as shall become Borrowers
hereunder in accordance with Section 5.3.2.
1.19. "BOSTON OFFICE" means the principal banking office of the Agent
in Boston, Massachusetts.
1.20. "BYLAWS" means all written bylaws, rules, regulations and all
other documents relating to the management, governance or internal regulation of
any Person other than an individual, or interpretive of the Charter of such
Person, all as from time to time in effect.
1.21. "CAPITAL EXPENDITURES" means, for any period, amounts added or
required to be added to the property, plant and equipment or other fixed assets
account on the Consolidated balance sheet of the Company and its Subsidiaries,
prepared in accordance with GAAP, in respect of (a) the acquisition,
construction, improvement or replacement of land, buildings, machinery,
equipment, leaseholds and any other real or personal property, and (b) to the
extent not included in clause (a) above, materials, contract labor and direct
labor relating thereto (excluding amounts properly expensed as repairs and
maintenance in accordance with GAAP).
1.22. "CAPITALIZED LEASE" means any lease which is required to be
capitalized on the balance sheet of the lessee in accordance with GAAP,
including Statement Nos. 13 and 98 of the Financial Accounting Standards Board.
1.23. "CAPITALIZED LEASE OBLIGATIONS" means the amount of the liability
reflecting the aggregate discounted amount of future payments under all
Capitalized Leases calculated in accordance with GAAP, including Statement Nos.
13 and 98 of the Financial Accounting Standards Board.
1.24. "Cash Equivalents" means:
(a) negotiable certificates of deposit, time deposits
(including sweep accounts), demand deposits and bankers' acceptances
issued by any United States financial institution having capital and
surplus and undivided profits aggregating at least $100,000,000 and
rated at least Prime-1 by Xxxxx'x Investors Service, Inc. or A-1 by
Standard & Poor's Ratings Group or issued by any Lender;
(b) short-term corporate obligations rated at least Prime-1 by
Xxxxx'x Investors Service, Inc. or A-1 by Standard & Poor's Ratings
Group or issued by any Lender;
(c) any direct obligation of the United States of America or
any agency or instrumentality thereof, or of any state or municipality
thereof, (i) which has a
remaining maturity at the time of purchase of not more than one year or which is
subject to a repurchase agreement with any Lender (or any other financial
institution referred to in clause (a) above) exercisable within one year from
the time of purchase and (ii) which, in the case of obligations of any state or
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municipality, is rated at least Aa by Xxxxx'x Investors Service, Inc. or AA by
Standard & Poor's Ratings Group; and
(d) any mutual fund or other pooled investment vehicle rated
at least Aa by Xxxxx'x Investors Service, Inc. or AA by Standard &
Poor's Ratings Group which invests principally in obligations described
above.
1.25. "CERCLA" means the federal Comprehensive Environmental Response,
Compensation and Liability Act of 1980.
1.26. "CERCLIS" means the federal Comprehensive Environmental Response
Compensation Liability Information System List (or any successor document)
promulgated under CERCLA.
1.27. "CHARTER" means the articles of organization, certificate of
incorporation, statute, constitution, joint venture agreement, partnership
agreement, trust indenture, limited liability company agreement or other charter
document of any Person other than an individual, each as from time to time in
effect.
1.28. "CLOSING DATE" means the Initial Closing Date and each other date
on which any extension of credit is made pursuant to Sections 2.1 or 2.2.
1.29. "CODE" means the federal Internal Revenue Code of 1986, as
amended from time to time.
1.30. "COMMITMENT" means, with respect to any Lender, such Lender's
obligations to extend the credits contemplated by Section 2. The original
Commitments are set forth in Section 11.1 and the current Commitments are
recorded from time to time in the Register.
1.31. "COMPANY" means Pediatrix Medical Group, Inc., a Florida
corporation.
1.32. "COMPUTATION COVENANTS" means Sections 6.5, 6.9.4, 6.11, 6.12 and
6.13.
1.33. "CONSOLIDATED" and "CONSOLIDATING", when used with reference to
any term, mean that term as applied to the accounts of the Company (or other
specified Person) and all of its Related Entities (or other specified group of
Persons), or such of its Related Entities as may be specified, consolidated (or
combined) or consolidating (or combining), as the case may be, in accordance
with GAAP and with appropriate deductions for minority interests in Related
Entities.
1.34. "CONSOLIDATED EBITDA" means, for any period, an amount equal to
the sum of (a) the Net Income (or loss) of the Company and its Related Entities
plus (b) all amounts deducted in computing such Net Income in respect of (i)
taxes based upon or measured by income, (ii) Consolidated Interest Expense and
(iii) depreciation and amortization.
1.35. "CONSOLIDATED FINANCING DEBT" means, at any date, all Financing
Debt of the Company and its Related Entities.
1.36. "CONSOLIDATED FIXED CHARGES" means, for any period, the sum of:
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(a) Consolidated Interest Expenses;
PLUS (b) the aggregate amount of all mandatory scheduled payments,
prepayments and sinking fund payments with respect to principal paid or
accrued by the Company and its Related Entities in respect of Financing
Debt, including payments in the nature of principal under Capitalized
Leases and Interest Rate Protection Agreements, in accordance with GAAP
on a Consolidated basis;
PLUS (c) any mandatory dividends paid or payable by the Company
or any of its Related Entities to third parties.
1.37. "CONSOLIDATED INTEREST EXPENSE" means, for any period, the
aggregate amount of interest, including commitment fees and payments in the
nature of interest under Capitalized Leases (whether such interest is reflected
as an item of expense or capitalized), paid or accrued by the Company and its
Related Entities in accordance with GAAP.
1.38. "CONSOLIDATED NET REVENUE" means for any period,
(a) the net operating revenues (after reductions for returns,
discounts, commissions and bad debt reserves) of the Company and its
Related Entities determined in accordance with GAAP on a consolidated
basis;
MINUS (b) any proceeds included in such net operating revenues
from the sale, refinancing, condemnation, or destruction of assets.
1.39. "CONSOLIDATED NET WORTH" means, at any date, the stockholders'
equity of the Company and its Related Entities at such date determined in
accordance with GAAP on a Consolidated basis.
1.40. "CONSOLIDATED TANGIBLE NET WORTH" means, at any date, the total
of (a) stockholders' equity of the Company and its Related Entities determined
in accordance with GAAP on a Consolidated basis, MINUS (b) the amount of
intangible assets carried on the balance sheet of the Company and its
Subsidiaries determined in accordance with GAAP on a Consolidated basis,
including goodwill, patents, patent applications, copyrights, trademarks,
tradenames, research and development expense, organizational expense,
unamortized debt discount, deferred financing charges and debt acquisition
costs.
1.41. "CONTROL GROUP PERSON" means the Company, any Subsidiary of the
Company and any Person which is a member of the controlled group or under common
control with the Company or any Subsidiary within the meaning of section 414 of
the Code or section 4001(a)(14) of ERISA.
1.42. "Credit Documents" means:
(a) this Agreement, the Revolving Notes, each Letter of Credit
and each draft presented or accepted under a Letter of Credit, the
Mortgage Note and the Mortgage, each as from time to time in effect;
(b) the Security Agreement and all financial statements,
reports, notices, mortgages, assignments, UCC financing statements or
certificates delivered to the Agent or any of the Lenders by any of the
Borrowers or any other Obligor in connection herewith or therewith; and
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(c) any other present or future agreement or instrument from
time to time entered into among any of the Borrowers or any other
Obligor, on one hand, and the Agent, or all the Lenders, on the other
hand, relating to, amending or modifying this Agreement or any other
Credit Document referred to above or which is stated to be a Credit
Document, each as from time to time in effect.
1.43. "CREDIT OBLIGATION ADVANCE" is defined in Section 2.1.3.
1.44. "CREDIT OBLIGATIONS" means all present and future liabilities,
obligations and Indebtedness of any of the Borrowers or any other Obligor owing
to the Agent or any Lender under or in connection with this Agreement or any
other Credit Document, including obligations in respect of principal, interest,
reimbursement obligations under Letters of Credit, commitment fees, amounts
provided for in Sections 3.2.4, 3.3, 3.4, 3.5, 3.6, 3.7, 3.8 and 10 and other
fees, charges, indemnities and expenses from time to time owing hereunder or
under any other Credit Document (whether accruing before or after a Bankruptcy
Default).
1.45. "CREDIT PARTICIPANT" is defined in Section 12.2.
1.46. "CREDIT SECURITY" means all assets now or from time to time
hereafter subjected to a security interest, mortgage or charge (or intended or
required so to be subjected pursuant to the Security Agreement or any other
Credit Document) to secure the payment or performance of any of the Credit
Obligations.
1.47. "DOCUMENTATION AGENT" means SunTrust Bank, in its capacity as
documentation agent for the Lenders hereunder, as well as its successors and
assigns in such capacity.
1.48. "DEFAULT" means any Event of Default and any event or condition
which with the passage of time or giving of notice, or both, would become an
Event of Default and the filing against the Company, any of its Related Entities
or any other Obligor of a petition commencing an involuntary case under the
Bankruptcy Code.
1.49. "DELINQUENCY PERIOD" is defined in Section 11.4.3.
1.50. "DELINQUENT LENDER" is defined in Section 11.4.3.
1.51. "DELINQUENT PAYMENT" is defined in Section 11.4.3.
1.52. "DISTRIBUTION" means, with respect to the Company (or other
specified Person):
(a) the declaration or payment of any dividend or
distribution, including dividends payable in shares of capital stock of
or other equity interests in the Company (or such specified Person), on
or in respect of any shares of any class of capital stock of or other
equity interests in the Company (or such specified Person);
(b) the purchase or redemption of any shares of any class of
capital stock of or other equity interest in the Company (or such
specified Person) or of options, warrants or other rights for the
purchase of such shares, directly, indirectly through a Related Entity
or otherwise;
(c) any other distribution on or in respect of any shares of
any class of capital stock of or equity or other beneficial interest in
the Company (or such specified Person);
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(d) any payment of principal or interest with respect to, or
any purchase, redemption or defeasance of, any Indebtedness of the
Company (or such specified Person) which by its terms or the terms of
any agreement is subordinated to the payment of the Credit Obligations;
and
(e) any payment, loan or advance by the Company (or such
specified Person) to, or any other Investment by the Company (or such
specified Person) in, the holder of any shares of any class of capital
stock of or equity interest in the Company (or such specified Person),
or any Affiliate of such holder;
PROVIDED, HOWEVER, that the term "Distribution" shall not include (i) dividends
payable in perpetual common stock of or other similar equity interests in the
Company (or such specified Person) or (ii) payments in the ordinary course of
business in respect of (A) reasonable compensation paid to employees, officers
and directors, (B) advances to employees for travel expenses, drawing accounts
and similar expenditures, or (C) rent paid to, or accounts payable for services
rendered or goods sold by, non-Affiliates that own capital stock of or other
equity interests in the Company (or such specified Person).
1.53. "EBITDA" means, for any period, an amount equal to the sum of (a)
the Net Income (or loss) of any Person for such period PLUS (b) all amounts
deducted in computing such Net Income in respect of (i) taxes based upon or
measured by income, (ii) Interest Expense and (iii) depreciation and
amortization.
1.54. "ENVIRONMENTAL LAWS" means all applicable federal, state or local
statutes, laws, ordinances, codes, rules, regulations and guidelines (including
consent decrees and administrative orders) relating to public health and safety
and protection of the environment, including OSHA.
1.55. "ERISA" means the federal Employee Retirement Income Security Act
of 1974.
1.56. "EURODOLLARS" means, with respect to any Lender, deposits of coin
or currency of United States of America in a non-United States office or an
international banking facility of such Lender.
1.57. "EURODOLLAR BASIC RATE" means, for any Eurodollar Interest
Period, the rate of interest at which Eurodollar deposits in an amount
comparable to the portion of the Revolving Loan as to which a Eurodollar Pricing
Option has been elected and which have a term corresponding to such Eurodollar
Interest Period are offered to the Agent by first class banks in the inter-bank
Eurodollar market for delivery in immediately available funds at a Eurodollar
Office on the first day of such Eurodollar Interest Period as determined by the
Agent at approximately 10:00 a.m. (Boston time) two Banking Days prior to the
date upon which such Eurodollar Interest Period is to commence (which
determination by the Agent shall, in the absence of manifest error, be
conclusive).
1.58. "EURODOLLAR INTEREST PERIOD" means any period, selected as
provided in Section 3.2.1, of one, two, three or six months, commencing on any
Banking Day and ending on the corresponding date in the subsequent calendar
month so indicated (or, if such subsequent calendar month has no corresponding
date, on the last day of such subsequent calendar month); PROVIDED, HOWEVER,
that subject to Section 3.2.3, if any Eurodollar Interest Period so selected
would otherwise begin or end on a date which is not a Banking Day, such
Eurodollar Interest Period shall instead begin or end, as the case may be, on
the immediately preceding or succeeding Banking Day as determined by the Agent
in accordance with the then current banking practice in the inter-bank
Eurodollar market with respect to Eurodollar deposits at the applicable
Eurodollar Office, which determination by the Agent shall, in the absence of
manifest error, be conclusive.
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1.59. "EURODOLLAR OFFICE" means such non-United States office or
international banking facility of the Agent as the Agent may from time to time
select.
1.60. "EURODOLLAR PRICING OPTIONS" means the options granted pursuant
to Section 3.2.1 to have the interest on any portion of a Revolving Loan
computed on the basis of a Eurodollar Rate.
1.61. "EURODOLLAR RATE" for any Eurodollar Interest Period means the
rate, rounded upward to the nearest 1/100%, obtained by dividing (a) the
Eurodollar Basic Rate for such Eurodollar Interest Period by (b) an amount equal
to 1 minus the Eurodollar Reserve Rate; PROVIDED, HOWEVER, that if at any time
during such Eurodollar Interest Period the Eurodollar Reserve Rate applicable to
any outstanding Eurodollar Pricing Option changes, the Eurodollar Rate for such
Eurodollar Interest Period shall automatically be adjusted to reflect such
change, effective as of the date of such change.
1.62. "EURODOLLAR RESERVE RATE" means the stated maximum rate
(expressed as a decimal) of all reserves (including any basic, supplemental,
marginal or emergency reserve or any reserve asset), if any, as from time to
time in effect, required by any Legal Requirement to be maintained by any Lender
against (a) "Eurocurrency liabilities" as specified in Regulation D of the Board
of Governors of the Federal Reserve System applicable to Eurodollar Pricing
Options, (b) any other category of liabilities that includes Eurodollar deposits
by reference to which the interest rate on portions of the Revolving Loan
subject to Eurodollar Pricing Options is determined, (c) the principal amount of
or interest on any portion of the Revolving Loan subject to a Eurodollar Pricing
Option or (d) any other category of extensions of credit, or other assets, that
includes loans subject to a Eurodollar Pricing Option by a non-United States
office of any of the Lenders to United States residents, in each case without
the benefits of credits for prorations, exceptions or offsets that may be
available to a Lender.
1.63. "EVENT OF DEFAULT" is defined in Section 8.1.
1.64. "EXCHANGE ACT" means the federal Securities Exchange Act of 1934.
1.65. "FACA" means the Federal Assignment of Claims Act as set forth in
31 U.S.C. ss. 3727 and 41 U.S.C. ss. 15.
1.66. "FEDERAL FUNDS RATE" means, for any day, the rate equal to the
weighted average (rounded upward to the nearest 1/8%) of the rates on overnight
federal funds transactions with members of the Federal Reserve System arranged
by federal funds brokers, (a) as such weighted average is published for such day
(or, if such day is not a Banking Day, for the immediately preceding Banking
Day) by the Federal Reserve Bank of New York or (b) if such rate is not so
published for such Banking Day, as determined by the Agent using any reasonable
means of determination. Each determination by the Agent of the Federal Funds
Rate shall, in the absence of manifest error, be conclusive.
1.67. "FINAL MATURITY DATE" means (i) with respect to the Revolving
Loan, September 30, 2001 and (ii) with respect to the Mortgage Loan, June 30,
2003.
1.68. "FINANCIAL OFFICER" of the Company (or other specified Person)
means its chief executive officer, chief financial officer, chief operating
officer, chairman, president, treasurer or any of its vice presidents whose
primary responsibility is for its financial affairs, all of whose incumbency and
signatures have been certified to the Agent by the secretary or other
appropriate attesting officer of the Company (or such specified Person).
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1.69. "FINANCING DEBT" means each of the items described in clauses (a)
through (e) of the definition of the term "Indebtedness".
1.70. "FUNDING LIABILITY" means (a) any Eurodollar deposit which was
used (or deemed by Section 3.2.6 to have been used) to fund any portion of the
Revolving Loan subject to a Eurodollar Pricing Option, and (b) any portion of
the Revolving Loan subject to a Eurodollar Pricing Option funded (or deemed by
Section 3.2.6 to have been funded) with the proceeds of any such Eurodollar
deposit.
1.71. "GAAP" means generally accepted accounting principles as from
time to time in effect, including the statements and interpretations of the
United States Financial Accounting Standards Board PROVIDED, HOWEVER, that for
purposes of compliance with Section 6 (other than Section 6.4) and related
definitions, "GAAP" means such principles as in effect on the date hereof as
applied by the Borrowers in preparation of the financial statements referred to
in Section 7.2, and consistently followed, without giving effect to any
subsequent changes thereto.
1.72. "GUARANTEE" means, with respect to the Company (or other
specified Person):
(a) any guarantee by the Company (or such specified Person) of
the payment or performance of, or any contingent obligation by the
Company (or such specified Person) in respect of, any Indebtedness or
other obligation of any primary obligor other than the Company or other
Borrower (or such specified Person);
(b) any other arrangement whereby credit is extended to a
primary obligor on the basis of any promise or undertaking of the
Company or other Borrower (or such specified Person), including any
binding "comfort letter" or "keep well agreement" written by the
Company (or such specified Person), to a creditor or prospective
creditor of such primary obligor, to (i) pay the Indebtedness of such
primary obligor, (ii) purchase an obligation owed by such primary
obligor, (iii) pay for the purchase or lease of assets or services
regardless of the actual delivery thereof or (iv) maintain the capital,
working capital, solvency or general financial condition of such
primary obligor;
(c) any liability of the Company (or such specified Person),
as a general partner of a partnership in respect of Indebtedness or
other obligations of such partnership;
(d) any liability of the Company (or such specified Person) as
a joint venturer of a joint venture in respect of Indebtedness or other
obligations of such joint venture;
(e) reimbursement obligations, whether contingent or matured,
of the Company (or such specified Person) with respect to letters of
credit, bankers acceptances, surety bonds, other financial guarantees
and Interest Rate Protection Agreements,
whether or not any of the foregoing are reflected on the balance sheet of the
Company (or such specified Person) or in a footnote thereto; PROVIDED, HOWEVER,
that the term "Guarantee" shall not include endorsements for collection or
deposit in the ordinary course of business. The amount of any Guarantee and the
amount of Indebtedness resulting from such Guarantee shall be the maximum amount
that the guarantor may become obligated to pay in respect of the obligations
(whether or not such obligations are outstanding at the time of computation).
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1.73. "GUARANTOR" means each Borrower, each Subsidiary of the
respective Borrowers which subsequently becomes party to this Agreement as a
Guarantor.
1.74. "HAZARDOUS MATERIAL" means any pollutant, toxic or hazardous
material or waste, including any "hazardous substance" or "pollutant" or
"contaminant" as defined in section 101(14) of CERCLA or any other Environmental
Law or regulated as toxic or hazardous under RCRA or any other Environmental
Law.
1.75. "HEALTH BENEFIT LAWS" means all federal, state and local statutes
and regulations related to the licensure, certification, qualification or
authority to transact business relating to the provision of and/or payment for
health benefits, including without limitation health maintenance organization
laws, insurance laws, reinsurance and insolvency laws, preferred provider
organization laws, point-of-service laws, certificate of need laws, third party
administrator laws, ERISA, COBRA, provider credentialling laws, utilization
review laws, coordination of benefit requirements, hospital reimbursement laws,
Medicaid participation laws, insurance holding company laws, fraud and abuse
laws and patient referral laws.
1.76. "INDEBTEDNESS" means all obligations, contingent or otherwise,
which in accordance with GAAP are required to be classified upon the balance
sheet of the Company (or other specified Person) as liabilities, but in any
event including (without duplication):
(a) borrowed money;
(b) indebtedness evidenced by notes, debentures or similar
instruments;
(c) Capitalized Lease Obligations;
(d) deferred purchase price of assets (other than normal trade
accounts payable in the ordinary course of business);
(e) mandatory redemption or dividend rights on capital stock
(or other equity);
(f) unfunded pension liabilities;
(g) obligations that are immediately and directly due and
payable out of the proceeds of or production from property;
(h) liabilities secured by any Lien existing on property owned
or acquired by the Company (or such specified Person), whether or not
the liability secured thereby shall have been assumed; and
(i) all Guarantees in respect of Indebtedness of others.
1.77. "INDEMNIFIED PARTY" is defined in Section 10.2.
1.78. "INITIAL CLOSING DATE" means the first date on which all the
conditions set forth in Section 5.1 and 5.4 have been satisfied.
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1.79. "INTEREST RATE PROTECTION AGREEMENT" means any interest rate
swap, interest rate cap, interest rate hedge or other contractual arrangement
that converts variable interest rates into fixed interest rates, fixed interest
rates into variable interest rates or other similar arrangements.
1.80. "INTEREST EXPENSE" means, for any period, the aggregate amount of
interest, including commitment fees and payments in the nature of interest under
Capitalized Leases (whether such interest is reflected as an item of expense or
capitalized), paid or accrued by any Person.
1.81. "INVESTMENT" means, with respect to any Borrower (or other
specified Person):
(a) any share of capital stock, partnership or other equity
interest, evidence of Indebtedness or other security issued by any other
Person;
(b) any loan, advance or extension of credit to, or
contribution to the capital of, any other Person;
(c) any Guarantee of the Indebtedness of any other Person;
(d) any acquisition of all or any part of the business of any
other Person or the assets comprising such business or part thereof;
(e) any commitment or option to make any Investment; and
(f) any other similar investment.
The investments described in the foregoing clauses (a) through (f)
shall be included in the term "Investment" whether they are made or acquired by
purchase, exchange, issuance of stock or other securities, merger,
reorganization or any other method; PROVIDED, HOWEVER, that the term
"Investment" shall not include (i) trade and customer accounts receivable for
property leased, goods furnished or services rendered in the ordinary course of
business and payable in accordance with customary trade terms, (ii) advances and
prepayments to suppliers for property leased, goods furnished and services
rendered in the ordinary course of business, (iii) advances to employees, agents
or consultants in the ordinary course of business, including travel expenses,
drawing accounts, payroll and similar expenditures, (iv) stock or other
securities acquired in connection with the satisfaction or enforcement of
Indebtedness or claims due to the Company (or such specified Person) or as
security for any such Indebtedness or claim or (v) demand deposits in banks or
similar financial institutions.
1.82. "LATE DELIVERY DATE" is defined in the definition of "APPLICABLE
MARGIN" in Section 1.9.
1.83. "LATE PRICING RESET DATE" is defined in the definition of
"APPLICABLE MARGIN" in Section 1.9.
1.84. "LEGAL REQUIREMENT" means any present or future requirement
imposed upon any of the Lenders or the Company and its Related Entities by any
law, statute, rule, regulation, directive, order, decree, guideline (or any
interpretation thereof by courts or of administrative bodies) of the United
States of America, or any jurisdiction in which any Eurodollar Office is located
or any state or political subdivision of any of the foregoing, or by any board,
governmental or administrative agency, central bank or monetary authority of the
United States of America, any jurisdiction in which any Eurodollar Office is
located, or any
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political subdivision of any of the foregoing including, but not limited to, all
Health Benefit Laws, including but not limited to all Health Benefit Laws. Any
such requirement imposed on any of the Lenders which such Lender reasonably
believes has the force of law shall be deemed to be a Legal Requirement.
1.85. "LENDER" means each of the Persons listed as lenders on the
signature page hereto, including the Agent in its capacity as a Lender and such
other Persons who may from time to time own a Percentage Interest in either of
the Loans.
1.86. "LENDING OFFICER" means such individuals whom the Agent may
designate by notice to the Company from time to time as an officer who may
receive telephone requests for borrowings under Section 2.1.3.
1.87. "LETTER OF CREDIT" is defined in Section 2.2.1.
1.88. "LETTER OF CREDIT EXPOSURE" means, at any date, the sum of (a)
the aggregate face amount of all drafts that may then or thereafter be presented
by beneficiaries under all Letters of Credit then outstanding, PLUS (b) the
aggregate face amount of all drafts that the Letter of Credit Issuer has
previously accepted under Letters of Credit but has not paid.
1.89. "LETTER OF CREDIT ISSUER" means, for any Letter of Credit, the
Agent or, in the event the Agent does not for any reason issue a requested
Letter of Credit, another Lender selected by the Borrower to issue such Letter
of Credit.
1.90. "LIEN" means, with respect to the Company (or any other specified
Person):
(a) any lien, encumbrance, mortgage, pledge, charge or
security interest of any kind upon any property or assets of the
Company (or such specified Person), whether now owned or hereafter
acquired, or upon the income or profits therefrom;
(b) the acquisition of, or the agreement to acquire, any
property or asset upon conditional sale or subject to any other title
retention agreement, device or arrangement (including a Capitalized
Lease);
(c) the sale, assignment, pledge or transfer for security of
any accounts, general intangibles or chattel paper of the Company (or
such specified Person), with or without recourse;
(d) the transfer of any tangible property or assets for the
purpose of subjecting such items to the payment of previously
outstanding Indebtedness in priority to payment of the general
creditors of the Company (or such specified Person); and
(e) the existence for a period of more than 120 consecutive
days of any Indebtedness against the Company (or such specified Person)
which if unpaid would by law or upon a Bankruptcy Default be given any
priority over general creditors.
1.91. "LOANS" means the Mortgage Loan and the Revolving Loan,
collectively.
1.92. "LOAN ACCOUNTS" is defined in Section 2.1.4.
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1.93. "MARGIN STOCK" means "margin stock" within the meaning of
Regulations G, T, U or X of the Board of Governors of the Federal Reserve
System.
1.94. "MATERIAL ADVERSE CHANGE" means, since any specified date or from
the circumstances existing immediately prior to the happening of any specified
event, a material adverse change in (a) the business, assets, financial
condition, income or prospects of the Company and its Related Entities, whether
as a result of (i) general economic conditions affecting the industry in which
the Company and its Related Entities are engaged, (ii) difficulties in obtaining
supplies and raw materials, (iii) fire, flood or other natural calamities, (iv)
environmental pollution, (v) regulatory changes, judicial decisions, war or
other governmental action or (vi) any other event or development, whether or not
related to those enumerated above or (b) the ability of the Obligors to perform
their obligations under the Credit Documents or (c) the rights and remedies of
the Agent and the Lenders under the Credit Documents.
1.95. "MATERIAL AGREEMENTS" is defined in Section 7.2.2.
1.96. "MATERIAL PLAN" means any Plan or Plans, collectively, as to
which (a) the excess of (i) the aggregate Accumulated Benefit Obligations under
such Plan or Plans over (ii) the aggregate fair market value of the assets of
such Plan or Plans allocable to such benefits, all determined as of the then
most recent valuation date or dates for such Plan or Plans, is greater than (b)
$500,000.
1.97. "Maximum Amount of Revolving Credit" is defined in Section 2.1.2.
1.98. "MORTGAGE" means the Mortgage and Security Agreement dated as of
September 30, 1993, as modified and in effect from time to time made by the
Company in favor of the Agent with respect to the headquarters buildings of the
Company located in Fort Lauderdale, Florida.
1.99. "MORTGAGE LOAN" has the meaning provided in Section 2.3.1.
1.100. "MORTGAGE NOTE" has the meaning provided in Section 2.3.2.
1.101. "MULTIEMPLOYER PLAN" means any Plan that is a "multiemployer
plan" as defined in section 4001(a)(3) of ERISA.
1.102. "NET INCOME" means, for any period, the net income (or loss) of
the Company and its Related Entities, determined in accordance with GAAP;
PROVIDED, HOWEVER, that Net Income shall not include the net amount after taxes
of:
(a) the income (or loss) of any other Person accrued prior to
the date such other Person becomes a Related Entity or is merged into
or consolidated with such Person;
(b) all amounts included in computing such net income (or
loss) in respect of the write-up of any asset after December 31, 1999;
(c) extraordinary and nonrecurring gains;
(d) the income of any Subsidiary to the extent the payment of
such income in the form of a Distribution or repayment of Indebtedness
to such Person is not permitted, whether on account of any Charter or
Bylaw restriction, any agreement, instrument, deed or lease or any law,
statute, judgment, decree or governmental order, rule or regulation
applicable to such Subsidiary; and
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(e) for the second fiscal quarter of the fiscal year 2000 of
the Borrowers, a one-time non-cash charge in an amount not to exceed
$7,000,000 resulting form an adjustment effective during such fiscal
quarter to the reserve for doubtful accounts.
1.103. "NONPERFORMING LENDER" is defined in Section 11.4.3.
1.104. "OBLIGOR" means the Company, each other Borrower, each Guarantor
and each Person guaranteeing, providing collateral for or subordinating
obligations to, the Credit Obligations.
1.105. "OPERATING CASH FLOW" means, for any period, the total of:
(a) Consolidated EBITDA;
MINUS (b) Capital Expenditures;
MINUS (c) taxes based upon or measured by net income that are actually
paid in cash during such period.
1.106. "OVERDUE REIMBURSEMENT RATE" means, at any date, the highest
Applicable Rate then in effect.
1.107. "PAYMENT DATE" means the first Banking Day of each quarter,
commencing with the first such date after the Initial Closing Date.
1.108. "PBGC" means the Pension Benefit Guaranty Corporation or any
successor entity.
1.109. "PERCENTAGE INTEREST" is defined in Section 11.1.
1.110. "PERFORMING LENDER" is defined in Section 11.4.3.
1.111. "PERMITTED ACQUISITION" means an Investment by any Borrower
permitted under Section 6.9.4.
1.112. "PERSON" means any present or future natural person or any
corporation, association, partnership, joint venture, limited liability, joint
stock or other company, business trust, trust, organization, business or
government or any governmental agency or political subdivision thereof.
1.113. "PLAN" means, at any date, any pension benefit plan subject to
Title IV of ERISA maintained, or to which contributions have been made or are
required to be made, by any ERISA Group Person within six years prior to such
date.
1.114. "PRICING RESET DATE" means the first day after annual or
quarterly financial statements have been furnished to the Lenders in accordance
with Sections 6.4.1 and 6.4.2 from time to time.
1.115. "PRO FORMA EBITDA" shall mean, for any period, the pro forma
EBITDA of the Acquired Party, the value and calculation of which must be
approved by the Agent.
1.116. "PURCHASE PRICE" means the amount of the consideration,
including, but not limited to, cash or Cash Equivalents, capital stock, assets,
debt, including contingent or other promissory notes, and any other form of
payment, for any Permitted Acquisition.
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1.117. "RCRA" means the federal Resource Conservation and Recovery Act,
42 U.S.C. ss. 690, ET SEQ.
1.118. "REGISTER" is defined in Section 12.1.3.
1.119. "RELATED ENTITIES" means all of the Related Entities listed on
Exhibit 7.1, as amended from time to time in accordance with Sections 6.4.1 and
6.4.2.
1.120. "RELATED ENTITIES TOTAL LIABILITIES" means, at any date, all
Indebtedness of the Company and its Subsidiaries on a Consolidated basis.
1.121. "REPLACEMENT LENDER" is defined in Section 12.3.
1.122. "REQUIRED LENDERS" means, with respect to any approval, consent,
modification, waiver or other action to be taken by the Agent or the Lenders
under either Loan which require action by the Required Lenders, such Lenders as
own at least a two-thirds of the Percentage Interests of such Loan; PROVIDED,
HOWEVER, that with respect to any matters referred to in the proviso to Section
11.6, Required Lenders means such Lenders as own at least the respective
portions of the Percentage Interests of the relevant Loan required by Section
11.6.
1.123. "REVOLVING LOAN" is defined in Section 2.1.1.
1.124. "REVOLVING NOTES" is defined in Section 2.1.4.
1.125. "SECURITIES ACT" means the federal Securities Act of 1933.
1.126. "SECURITY AGREEMENT" is defined in Section 5.1.3.
1.127. "SELLERS" means the Person or Persons selling or otherwise
transferring the capital stock, partnership or other equity interest or assets
of the Acquired Party to a Borrower pursuant to a Permitted Acquisition.
1.128. "SUBSIDIARY" means any Person of which the Company (or other
specified Person) shall at the time, directly or indirectly through one or more
of its Subsidiaries, (a) own at least 50% of the outstanding capital stock (or
other shares of beneficial interest) entitled to vote generally, (b) hold at
least 50% of the partnership, joint venture or similar interests or (c) be a
general partner or joint venturer.
1.129. "TAX" means any present or future tax, levy, duty, impost,
deduction, withholding or other charges of whatever nature at any time required
by any Legal Requirement (a) to be paid by any Lender or (b) to be withheld or
deducted from any payment otherwise required hereby to be made to any Lender, in
each case on or with respect to its obligations hereunder, the Loans, any
payment in respect of the Credit Obligations or any Funding Liability not
included in the foregoing; PROVIDED, HOWEVER, that the term "Tax" shall not
include taxes imposed upon or measured by the net income of such Lender (other
than withholding taxes) or franchise taxes.
1.130. "TOTAL LIABILITIES" means, at any date, all Indebtedness of the
Company and its Related Entities.
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1.131. "UCC" means the Uniform Commercial Code as in effect in
Massachusetts on the date hereof; PROVIDED, HOWEVER, that with respect to the
perfection of the Agent's Lien in the Credit Security and the effect of
nonperfection thereof, the term "UCC" means the Uniform Commercial Code as in
effect in any jurisdiction the laws of which are made applicable by Section
9-103 of the Uniform Commercial Code as in effect in Massachusetts.
2. THE CREDITS.
2.1. REVOLVING CREDIT.
2.1.1. REVOLVING LOAN. Subject to all the terms and conditions
of this Agreement and so long as no Default then exists, from time to
time on and after the Initial Closing Date and prior to the Final
Maturity Date the Lenders will, severally in accordance with their
respective Percentage Interests, make loans to any Borrower in such
amounts as may be requested by such Borrower in accordance with Section
2.1.3. The sum of the aggregate principal amount of loans made under
this Section 2.1.1 at any one time outstanding shall in no event exceed
the Maximum Amount of Revolving Credit. In no event will the principal
amount of loans at any one time outstanding made by any Lender pursuant
to this Section 2.1 exceed such Lender's Commitment. The aggregate
principal amount of the loans made pursuant to this Section 2.1 at
anyone time outstanding is referred to as the "REVOLVING LOAN".
2.1.2. MAXIMUM AMOUNT OF REVOLVING CREDIT. The term "MAXIMUM
AMOUNT OF REVOLVING CREDIT" means, on any date, the lesser of (a)
$75,000,000 or (b) the amount (in an integral multiple of $1,000,000)
to which the then applicable amount shall have been irrevocably reduced
from time to time by notice from the Company to the Agent.
2.1.3. BORROWING REQUESTS. Any Borrower may from time to time
request a loan under Section 2.1.1 by providing to the Agent a notice
(which may be given by a telephone call received by a Lending Officer
if promptly confirmed in writing). Such notice must be not later than
noon (Boston time) on the requested Closing Date, (which shall be the
third Banking Day prior to the requested Closing Date for such loan if
any portion of such loan will be subject to a Eurodollar Pricing Option
on the requested Closing Date). If such notice requested that a loan,
or any portion thereof, be made subject to a Eurodollar Pricing Option,
and the Agent shall have notified the Borrower pursuant to Section
3.2.2 that such election did not become effective, the notice shall be
deemed to have been made for a loan at the Base Rate. The notice must
specify (a) the amount of the requested loan (which shall be not less
than $100,000 and an integral multiple of $10,000), (b) the requested
Closing Date therefor (which shall be a Banking Day) and (c) the
portion of the requested loan that is to be used for purposes other
than Permitted Acquisitions. Upon receipt of such notice, the Agent
will promptly inform each other Lender (by telephone or otherwise).
Each such loan will be made at the Boston Office by depositing the
amount thereof to the general account of such Borrower with the Agent.
In connection with each such loan, such Borrower shall furnish to the
Agent a certificate in substantially the form of Exhibit 5.4.1.
Notwithstanding anything contained in this Agreement, (i) the
Agent may, in its sole discretion, make Revolving Loans to any Borrower
under Section 2.1 at any time and in any amount and may apply any such
Revolving Loan to cover the Credit Obligations of such Borrower then
due and (ii) subject to all the terms and conditions of this Agreement
and so long as no Default exists, if any payment of interest due under
this Agreement in respect of the Revolving Loan is not paid when
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due, the Agent will make Revolving Loans to the Borrower under Section
2.1 on the third Banking Day after such payment of interest became due
in the amount of the interest then due and will apply any such
Revolving Loan to cover the interest then due (each Revolving Loan made
under clauses (i) or (ii) of this paragraph being a "CREDIT OBLIGATION
ADVANCE").
2.1.4. LOAN ACCOUNTS; REVOLVING NOTES. The Agent will
establish on its books separate loan accounts for each Borrower
(collectively the "LOAN ACCOUNTS") each of which the Agent shall
administer as follows: (a) the Agent shall add to each Loan Account,
and each Loan Account shall evidence, the principal amount of all loans
from time to time made by the Lenders, in accordance with Section 11,
to such Borrower pursuant to Section 2.1.1 and (b) the Agent shall
reduce each Borrower's Loan Account by the amount of all payments made
on account of the Indebtedness evidenced by the Loan Account of such
Borrower. The Revolving Loan shall be deemed owed to each Lender
severally in accordance with such Lender's Percentage Interest therein,
and all payments credited to the Loan Accounts shall be for the account
of each Lender in accordance with its Percentage Interest in the
Revolving Loan. Each Borrower's obligations to pay each Lender's
Percentage Interest in the Revolving Loan shall be evidenced by the
notes of such Borrower attached hereto as Exhibit 2.1.4 (the "REVOLVING
NOTES"), payable to each Lender in maximum principal amount equal to
such Lender's Percentage Interest in the Revolving Loan. Each Lender
shall keep a record of the date and amount of (i) each loan made by it
to each Borrower pursuant to Section 2.1 and (ii) each payment of
principal made by such Borrower pursuant to Section 4. Prior to the
transfer of a Revolving Note, the relevant Lender shall endorse on a
schedule thereto appropriate notations evidencing such dates and
amounts; PROVIDED, HOWEVER, that the failure of the Lender to make any
such recordation or endorsement shall not affect the obligations or
such Borrower under this Agreement, the Revolving Note or any other
Credit Document.
2.2. LETTERS OF CREDIT.
2.2.1. ISSUANCE OF LETTERS OF CREDIT. Subject to all the terms
and conditions of this Agreement and so long as no Default exists, from
time to time on and after the Initial Closing Date and prior to the
date five Banking Days preceding the Final Maturity Date, the Letter of
Credit Issuer will issue for the account of the Borrower one or more
irrevocable documentary or standby letters of credit (the "LETTERS OF
CREDIT"). The sum of Letter of Credit Exposure PLUS the Revolving Loan
shall in no event exceed the Maximum Amount of Revolving Credit. Letter
of Credit Exposure shall in no event exceed $3,500,000.
2.2.2. REQUESTS FOR LETTERS OF CREDIT. Each Borrower may from
time to time request a Letter of Credit to be issued by providing to
the Letter of Credit Issuer (and the Agent if the Letter of Credit
Issuer is not the Agent) a notice which is actually received by the
Agent not less than five Banking Days (for standby Letters of Credit)
and one Banking Day (for documentary Letters of Credit) prior to the
requested Closing Date for such Letter of Credit specifying (a) the
amount of the requested Letter of Credit, (b) the beneficiary thereof,
(c) the requested Closing Date and (d) a summary of the principal terms
of the text for such Letter of Credit. Each Letter of Credit will be
issued by forwarding it to the Borrower or to such other Person as
directed in writing by the Borrower. In connection with the issuance of
any Letter of Credit, the Borrower shall furnish to the Letter of
Credit Issuer (and the Agent if the Letter of Credit Issuer is not the
Agent) a certificate in substantially the form of Exhibit 5.4.1 and any
customary application forms required by the Letter of Credit Issuer. In
the event of any inconsistency between such application forms and this
Agreement, this Agreement shall govern.
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2.2.3. FORM AND EXPIRATION OF LETTERS OF CREDIT. Each Letter
of Credit issued under this Section 2.2 and each draft accepted or paid
under such a Letter of Credit shall be issued, accepted or paid, as the
case may be, by the Letter of Credit Issuer at its principal office. No
Letter of Credit shall provide for the payment of drafts drawn
thereunder, and no draft shall be payable, at a date which is later
than the earlier of (a) the date 12 months after the date of issuance
(which expiration date may be extended at the option of the Letter of
Credit Issuer for additional 12-month periods ending prior to the date
referred to in clause (b) below) or (b) five Banking Days prior to the
Final Maturity Date. Each Letter of Credit and each draft accepted
under a Letter of Credit shall be in such form and minimum amount, and
shall contain such terms, as the Letter of Credit Issuer and the
Borrower may agree upon at the time such Letter of Credit is issued.
2.2.4. LENDERS' PARTICIPATION IN LETTERS OF CREDIT. Upon the
issuance of any Letter of Credit, a participation therein, in an amount
equal to each Lender's Percentage Interest in the Revolving Loan, shall
automatically be deemed granted by the Letter of Credit Issuer to each
such Lender on the date of such issuance and such Lenders shall
automatically be obligated, as set forth in Section 10.3, to reimburse
the Letter of Credit Issuer to the extent of their respective
Percentage Interests in the Revolving Loan for all obligations incurred
by the Letter of Credit Issuer to third parties in respect of such
Letter of Credit not reimbursed by the Borrower. The Letter of Credit
Issuer will send to each Lender (and the Agent if the Letter of Credit
Issuer is not the Agent) a confirmation regarding the participations in
Letters of Credit outstanding during such month.
2.2.5. REIMBURSEMENT OF PAYMENT. At such time as a Letter of
Credit Issuer makes any payment on a draft presented or accepted under
a Letter of Credit, the amount of such payment shall be considered a
loan under Section 2.1.1 (regardless of whether the conditions set
forth in Section 5.2 are satisfied) and part of the Revolving Loan as
if the Borrower had paid in full the amount required with respect to
the Letter of Credit by borrowing such amount under Section 2.1.1,
except as provided below. In the event such amount would cause the
Revolving Loan to exceed the Maximum Amount of Revolving Credit or in
the event the Agent has previously provided written notice to the
Borrower that Letter of Credit payments will no longer be considered
loans under Section 2.1.1, the Borrower will on demand pay to the Agent
in immediately available funds the amount of such payment.
2.2.6. UNIFORM CUSTOMS AND PRACTICE. The Uniform Customs and
Practice for Documentary Credits adopted by a Congress of the
International Chamber of Commerce, and any subsequent revisions thereof
approved by a Congress of the International Chamber of Commerce and
adhered to by the Letter of Credit Issuer (the "UNIFORM CUSTOMS AND
PRACTICE"), shall be binding on the Borrower and the Letter of Credit
Issuer except to the extent otherwise provided herein, in any Letter of
Credit or in any other Credit Document. Anything in the Uniform Customs
and Practice to the contrary notwithstanding:
(a) With respect to each Letter of Credit, neither the Letter
of Credit Issuer nor its correspondents shall be responsible for or
shall have any duty to ascertain (unless the Letter of Credit Issuer or
such correspondent is grossly negligent or willful in failing so to
ascertain):
(b) Except insofar as a particular Letter of Credit contains
express, contrary instructions, the Letter of Credit Issuer may honor
as complying with the terms of any Letter of Credit and with this
Agreement any drafts or other documents otherwise in order signed or
issued by an administrator, executor, conservator, trustee in
bankruptcy, debtor in possession, assignee for benefit
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of creditors, liquidator, receiver or other legal representative of the
party authorized under such Letter of Credit to draw or issue such
drafts or other documents.
(c) The occurrence of any of the events referred to in the
Uniform Customs and Practice or in the preceding clauses of this
Section 2.2.6 shall not affect or prevent the vesting of any of the
Letter of Credit Issuer's rights or powers hereunder or the Borrower's
obligation to make reimbursement of amounts paid under any Letter of
Credit or any draft accepted thereunder.
(d) In the event of any conflict between the provisions of
this Agreement and the Uniform Customs and Practice, the provisions of
this Agreement shall govern.
2.2.7. SUBROGATION. Upon any payment by a Letter of Credit
Issuer under any Letter of Credit and until the reimbursement of such
Letter of Credit Issuer by the Borrower with respect to such payment,
the Letter of Credit Issuer shall be entitled to be subrogated to, and
to acquire and retain, the rights which the Person to whom such payment
is made may have against the Borrower, all for the benefit of the
Lenders. The Borrower will take such action as the Letter of Credit
Issuer may reasonably request, including requiring the beneficiary of
any Letter of Credit to execute such documents as the Letter of Credit
Issuer may reasonably request, to assure and confirm to the Letter of
Credit Issuer such subrogation and such rights, including the rights,
if any, of the beneficiary to whom such payment is made in accounts
receivable, inventory and other properties and assets of any Obligor.
2.2.8. MODIFICATION, CONSENT, ETC. If the Borrower requests or
consents in writing to any modification or extension of any Letter of
Credit, or waives any failure of any draft, certificate or other
document to comply with the terms of such Letter of Credit, the Letter
of Credit Issuer shall be entitled to rely on such request, consent or
waiver. This Agreement shall be binding upon the Borrower with respect
to such Letter of Credit as so modified or extended, and with respect
to any action taken or omitted by such Letter of Credit Issuer pursuant
to any such request, consent or waiver.
2.3. THE MORTGAGE CREDIT.
2.3.1. MORTGAGE LOAN. The Agent has made a term loan to the
Company, in an aggregate principal amount equal to $3,000,000 as of
September 30, 1993 The aggregate principal amount of the loan made
pursuant to this Section 2.3.1 at any one time outstanding is referred
to as the "MORTGAGE LOAN."
2.3.2. MORTGAGE NOTE. The Mortgage Loan is evidenced by a note
attached hereto as Exhibit 2.3.2 (the "MORTGAGE NOTE") payable by the
Company to the Agent. The Agent keeps a record of the date and amount
of (i) the term loan made by the Agent to the Company pursuant to
Section 2.2.1 and (ii) each payment of principal made by the Company
pursuant to Section 4. Prior to the transfer of the Mortgage Note, the
Agent shall endorse on a schedule thereto appropriate notations
evidencing such dates and amounts; PROVIDED, HOWEVER, that the failure
of the Agent to make any such recordation or endorsement shall not
affect the obligations of the Company under this Agreement, the
Mortgage Note or any other Credit Document.
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2.4. APPLICATION OF PROCEEDS.
2.4.1. THE LOANS. Subject to Section 2.4.2, the Borrowers will
apply the proceeds of the Loans for lawful corporate purposes,
including (a) to fund Permitted Acquisitions and (b) for working
capital.
2.4.2. SPECIFICALLY PROHIBITED APPLICATIONS. The Borrowers
will not, directly or indirectly, apply any part of the proceeds of any
extension of credit made pursuant to the Credit Documents to purchase
or to carry Margin Stock or to any transaction prohibited by Legal
Requirements applicable to the Lenders or by the Credit Documents.
2.4.3. LETTERS OF CREDIT. Letters of Credit shall be issued
only for such lawful corporate purposes as the Borrower has requested
in writing and to which the Letter of Credit Issuer agrees.
2.5. NATURE OF OBLIGATIONS OF LENDERS TO MAKE EXTENSIONS OF CREDIT. The
Lenders' obligations to extend credit under this Agreement are several and are
not joint or joint and several. If on any Closing Date any Lender shall fail to
perform its obligations under this Agreement, the aggregate amount of
Commitments to make the extensions of credit under this Agreement shall be
reduced by the amount of unborrowed Commitment of the Lender so failing to
perform and the Percentage Interests of the relevant Loan shall be appropriately
adjusted. Lenders that have not failed to perform their obligations to make the
extensions of credit contemplated by Section 2 may, if any such Lender so
desires, assume, in such proportions as such Lenders may agree, the obligations
of any Lender who has so failed and the Percentage Interests shall be
appropriately adjusted. The provisions of this Section 2.5 shall not affect the
rights of the Borrowers against any Lender failing to perform its obligations
hereunder.
2.6. OBLIGATIONS JOINT AND SEVERAL. Each Borrower shall be jointly and
severally liable with all other Borrowers for all Credit Obligations.
3. INTEREST; EURODOLLAR PRICING OPTIONS; FEES.
3.1. INTEREST. The Loans shall accrue and bear interest at a rate per
annum which shall at all times equal the Applicable Rate. Prior to any stated or
accelerated maturity of the Loans, on each Payment Date each Borrower will pay
the accrued and unpaid interest on the portion of the Revolving Loan evidenced
by its Loan Account, which portions were not subject to a Eurodollar Pricing
Option, and the Company will pay the accrued and unpaid interest on the portion
of the Mortgage Loan. On the last day of each Eurodollar Interest Period or on
any earlier termination of any Eurodollar Pricing Option, each Borrower will pay
the accrued and unpaid interest on the portion of the Revolving Loan evidenced
by its Loan Account which expired or terminated on such date. In the case of any
Eurodollar Interest Period longer than three months, each Borrower will also pay
the accrued and unpaid interest on the portion of the Revolving Loan evidenced
by its Loan Account, subject to the Eurodollar Pricing Option having such
Eurodollar Interest Period at three-month intervals, the first such payment to
be made on the last Banking Day of the three-month period which begins on the
first day of such Eurodollar Interest Period. On the stated or any accelerated
maturity of the Loans, each Borrower will pay all accrued and unpaid interest on
the portion of the Revolving Loan evidenced by its Loan Account, including any
accrued and unpaid interest on any portion of such Loans which is subject to a
Eurodollar Pricing Option, and the Company will pay the accrued and unpaid
interest on the portion of the Mortgage Loan. Upon the occurrence and during the
continuance of an Event of Default, the Lenders may require accrued interest to
be payable on demand or at regular intervals more frequent than each Payment
Date. All payments of interest hereunder shall be made to the Agent for the
account of each Lender in accordance with such Lender's Percentage Interest in
each Loan.
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3.2. EURODOLLAR PRICING OPTIONS.
3.2.1. ELECTION OF EURODOLLAR PRICING OPTIONS. Subject to all
of the terms and conditions hereof and so long as no Default exists,
any Borrower may from time to time, by irrevocable notice to the Agent
actually received not less than three Banking Days prior to the
commencement of the Eurodollar Interest Period selected in such notice,
elect to have such portion of the Revolving Loans as such Borrower may
specify in such notice accrue and bear interest during the Eurodollar
Interest Period so selected at the Applicable Rate computed on the
basis of the Eurodollar Rate. No such election shall become effective:
(a) if, prior to the commencement of any such Eurodollar
Interest Period, the Agent determines that (i) the electing or granting
of the Eurodollar Pricing Option in question would violate a Legal
Requirement, (ii) Eurodollar deposits in an amount comparable to the
principal amount of the Revolving Loan as to which such Eurodollar
Pricing Option has been elected and which have a term corresponding to
the proposed Eurodollar Interest Period are not readily available in
the inter-bank Eurodollar market, or (iii) by reason of circumstances
affecting the inter-bank Eurodollar market, adequate and reasonable
methods do not exist for ascertaining the interest rate applicable to
such deposits for the proposed Eurodollar Interest Period; or
(b) if any Lender shall have advised the Agent by telephone or
otherwise at or prior to noon (Boston time) on the second Banking Day
prior to the commencement of such proposed Eurodollar Interest Period
(and shall have subsequently confirmed in writing) that, after
reasonable efforts to determine the availability of such Eurodollar
deposits, such Lender reasonably anticipates that Eurodollar deposits
in an amount equal to the Percentage Interest of such Lender in the
portion of the Revolving Loan as to which such Eurodollar Pricing
Option has been elected and which have a term corresponding to the
Eurodollar Interest Period in question will not be offered in the
Eurodollar market to such Lender at a rate of interest that does not
exceed the anticipated Eurodollar Basic Rate.
3.2.2. NOTICE TO LENDERS AND THE BORROWERS. The Agent will
promptly inform each Lender (by telephone or otherwise) of each notice
received by it from a Borrower pursuant to Section 3.2.1 and of the
Eurodollar Interest Period specified in such notice. Upon determination
by the Agent of the Eurodollar Rate for such Eurodollar Interest Period
or in the event such election shall not become effective, the Agent
will promptly notify such Borrower and each Lender (by telephone or
otherwise) of the Eurodollar Rate so determined or why such election
did not become effective, as the case may be.
3.2.3. SELECTION OF EURODOLLAR INTEREST PERIODS. Eurodollar
Interest Periods shall be selected so that:
(a) the minimum portion of the Revolving Loan subject to any
Eurodollar Pricing Option shall be $500,000 and an integral multiple of
$100,000;
(b) no more than 6 Eurodollar Pricing Options shall be
outstanding at any one time; and
(c) no Eurodollar Interest Period with respect to any part of
the Revolving Loan subject to a Eurodollar Pricing Option shall expire
later than the relevant Final Maturity Date.
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3.2.4. ADDITIONAL INTEREST. If any portion of the Revolving
Loan subject to a Eurodollar Pricing Option is repaid, or any
Eurodollar Pricing Option is terminated for any reason (including
acceleration of maturity), on a date which is prior to the last Banking
Day of the Eurodollar Interest Period applicable to such Eurodollar
Pricing Option, the Borrowers will pay to the Agent for the account of
each Lender in accordance with such Lender's Percentage Interest, in
addition to any amounts of interest otherwise payable hereunder, an
amount equal to the present value (calculated in accordance with this
Section 3.2.4) of interest for the unexpired portion of such Eurodollar
Interest Period on the portion of the Revolving Loans so repaid, or as
to which a Eurodollar Pricing Option was so terminated, at a per annum
rate equal to the excess, if any, of (a) the rate applicable to such
Eurodollar Pricing Option MINUS (b) the lowest rate of interest
obtainable by the Agent upon the purchase of debt securities
customarily issued by the Treasury of the United States of America
which have a maturity date approximating the last Banking Day of such
Eurodollar Interest Period. The present value of such additional
interest shall be calculated by discounting the amount of such interest
for each day in the unexpired portion of such Eurodollar Interest
Period from such day to the date of such repayment or termination at a
per annum interest rate equal to the interest rate determined pursuant
to clause (b) of the preceding sentence, and by adding all such amounts
for all such days during such period. The determination by the Agent of
such amount of interest shall, in the absence of manifest error, be
conclusive. For purposes of this Section 3.2.4, if any portion of the
Revolving Loan which was to have been subject to a Eurodollar Pricing
Option is not outstanding on the first day of the Eurodollar Interest
Period applicable to such Eurodollar Pricing Option other than for
reasons described in Section 3.2.1, the Borrowers shall be deemed to
have terminated such Eurodollar Pricing Option.
3.2.5. VIOLATION OF LEGAL REQUIREMENTS. If any Legal
Requirement shall prevent any Lender from funding or maintaining
through the purchase of deposits in the inter-bank Eurodollar market
any portion of the Revolving Loans subject to a Eurodollar Pricing
Option or otherwise from giving effect to such Lender's obligations as
contemplated by Section 3.2, (a) the Agent may by notice to the
Borrowers terminate all of the affected Eurodollar Pricing Options, (b)
the portion of the Revolving Loans subject to such terminated
Eurodollar Pricing Options shall immediately bear interest thereafter
at the Applicable Rate computed on the basis of the Base Rate and (c)
the Borrowers shall make any payment required by Section 3.2.4.
3.2.6. FUNDING PROCEDURE. The Lenders may fund any portion of
the Revolving Loans subject to a Eurodollar Pricing Option out of any
funds available to the Lenders. Regardless of the source of the funds
actually used by any of the Lenders to fund any portion of the
Revolving Loans subject to a Eurodollar Pricing Option, however, all
amounts payable hereunder, including the interest rate applicable to
any such portion of the Revolving Loans and the amounts payable under
Sections 3.2.4, 3.5, 3.6, 3.7 and 3.8, shall be computed as if each
Lender had actually funded such Lender's Percentage Interest in such
portion of the Revolving Loans through the purchase of deposits in such
amount of the type by which the Eurodollar Basic Rate was determined
with a maturity the same as the applicable Eurodollar Interest Period
relating thereto and through the transfer of such deposits from an
office of the Lender having the same location as the applicable
Eurodollar Office to one of such Lender's offices in the United States
of America.
3.3. COMMITMENT FEES.
3.3.1. FEE BASE. In consideration of the Lenders' commitments
to make the extensions of credit provided for in Section 2.1, while
such commitments are outstanding, the
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Borrower will pay to the Agent for the account of the Lenders in
accordance with the Lenders' respective Percentage Interests in the
Revolving Loan, on each Payment Date, an amount equal to interest
computed at the rate per annum determined pursuant to Section 3.3.2 on
the amount by which (a) the average daily Maximum Amount of Revolving
Credit during the three-month period or portion thereof ending on such
Payment Date exceeded (b) the sum of (i) the average daily Revolving
Loan during such period or portion thereof PLUS (ii) the daily Letter
of Credit Exposure during such period or portion thereof; PROVIDED,
HOWEVER, that the first such payment shall be for the period beginning
on the Initial Closing Date and ending on the first Payment Date.
3.3.2. FEE RATE. On any given Payment Date, the rate applied
in computing the fee payable pursuant to this Section 3.3 shall be the
rate for Commitment Fees indicated in the definition of "APPLICABLE
MARGIN" in Section 1.9 hereof opposite the ratio of Consolidated
Financing Debt to Consolidated EBITDA in effect on such Payment Date
for purposes of such definition.
3.4. LETTER OF CREDIT FEES. The Borrower will pay to the Agent for the
account of each of the Lenders, in accordance with the Lenders' respective
Percentage Interests, on each Payment Date, a Letter of Credit fee equal to
interest at a rate per annum equal to the Applicable Margin indicated for the
Eurodollar Rate on the average daily Letter of Credit Exposure during the three
month period or portion thereof ending on such Payment Date. The Borrower will
pay to the Letter of Credit Issuer (a) customary service charges and expenses
for its services in connection with the Letters of Credit at the times and in
the amounts from time to time in effect in accordance with its general rate
structure, PLUS (b) on each Payment Date a fronting fee equal to interest at a
rate per annum equal to 0.125% on the aggregate face amount of each Letter of
Credit issued by such Letter of Credit Issuer during the three month period or
portion thereof ending on such Payment Date.
3.5. RESERVE REQUIREMENTS, ETC. If any Legal Requirement shall (a)
impose, modify, increase or deem applicable any insurance assessment, reserve,
special deposit or similar requirement against any Funding Liability, (b)
impose, modify, increase or deem applicable any other requirement or condition
with respect to any Funding Liability, or (c) change the basis of taxation of
Funding Liabilities (other than changes in the rate of taxes measured by the
overall net income of such Lender) and the effect of any of the foregoing shall
be to increase the cost to any Lender of issuing, making, funding or maintaining
its respective Percentage Interest in any portion of the Revolving Loans subject
to a Eurodollar Pricing Option, to reduce the amounts received or receivable by
such Lender under this Agreement or to require such Lender to make any payment
or forego any amounts otherwise payable to such Lender under this Agreement,
then, the Lender shall, promptly after it has made such determination, give
notice thereof to the Company. Promptly after the receipt by the Company of any
such notice, the Company and the Lender shall attempt to negotiate in good faith
an adjustment to the amount payable by the Borrowers to the Lender under this
Section 3.4, which amount shall be sufficient to compensate the Lender for such
increased cost or reduced return. If the Company and the Lender are unable to
agree to such adjustment within thirty days of the date upon which the Company
receives such notice, then the Borrowers will, on demand by the Lender, pay to
the Lender such additional amount as shall be sufficient, in the Lender's
reasonable determination, to compensate the Lender for such increased cost or
such reduced return, together with interest at the Overdue Reimbursement Rate
from the 30th day after receipt of such certificate until payment in full
thereof; PROVIDED, HOWEVER, that the foregoing provisions shall not apply to any
Tax or reserves which are included in computing the Eurodollar Reserve Rate. The
determination by such Lender of the amount of such costs shall, in the absence
of manifest error, be conclusive.
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3.6. TAXES. All payments of the Credit Obligations shall be made
without set-off or counterclaim and free and clear of any deductions, including
deductions for Taxes, unless the Borrowers are required by law to make such
deductions. If (a) any Lender shall be subject to any Tax with respect to any
payment of the Credit Obligations or its obligations hereunder or (b) any
Borrower shall be required to withhold or deduct any Tax on any payment on the
Credit Obligations, then, the Lender shall, promptly give notice of its claim
for compensation under this Section 3.6 to the Company. Promptly after the
receipt by the Company of any such notice, the Company and the Lender shall
attempt to negotiate in good faith an adjustment to the amount payable by the
Borrowers to the Lender under this Section 3.6, which amount shall be sufficient
to compensate the Lender for the amount of the Tax so imposed or the full amount
of all payments which would have been received on the Credit Obligations in the
absence of such Tax. If the Company and the Lender are unable to agree to such
adjustment within thirty days of the date upon which the Company receives such
notice, then the Borrowers will, on demand by the Lender, pay to the Lender such
additional amount as shall be sufficient, in the Lender's reasonable
determination, to enable such Lender to receive the amount of Tax so imposed on
the Lender's obligations hereunder or the full amount of all payments which it
would have received on the Credit Obligations (including amounts required to be
paid under Sections 3.5, 3.7, 3.8 and this Section 3.6) in the absence of such
Tax, as the case may be, together with interest at the Overdue Reimbursement
Rate on such amount from the 30th day after receipt of such certificate until
payment in full thereof. Whenever Taxes must be withheld by any Borrower with
respect to any payments of the Credit Obligations, the Borrowers shall promptly
furnish to the Agent for the account of the applicable Lender official receipts
(to the extent that the relevant governmental authority delivers such receipts)
evidencing payment of any such Taxes so withheld. If the Borrowers fail to pay
any such Taxes when due or fail to remit to the Agent for the account of the
applicable Lender the required receipts evidencing payment of any such Taxes so
withheld or deducted, the Borrowers shall indemnify the affected Lender for any
incremental Taxes and interest or penalties that may become payable by such
Lender as a result of any such failure. The determination by such Lender of the
amount of such Tax and the basis therefor shall, in the absence of manifest
error, be conclusive.
3.7. CAPITAL ADEQUACY. If any Lender shall determine that compliance by
such Lender with any Legal Requirement regarding capital adequacy of banks or
bank holding companies has or would have the effect of reducing the rate of
return on the capital of such Lender and its Affiliates as a consequence of such
Lender's commitment to make the extensions of credit contemplated hereby, or
such Lender's maintenance of the extensions of credit contemplated hereby, to a
level below that which such Lender could have achieved but for such compliance
(taking into consideration the policies of such Lender and its Affiliates with
respect to capital adequacy immediately before such compliance and assuming that
the capital of such Lender and its Affiliates was fully utilized prior to such
compliance) by an amount deemed by such Lender to be material, then, the Lender
shall, promptly after it has made such determination, give notice thereof to the
Company. Promptly after the receipt by the Company of any such notice, the
Company and the Lender shall attempt to negotiate in good faith an adjustment to
the amount payable by the Borrowers to the Lender under this Section 3.6, which
amount shall be sufficient to compensate the Lender for such reduced return. If
the Company and the Lender are unable to agree to such adjustment within thirty
days of the date upon which the Company receives such notice, then the Borrowers
will, on demand by the Lender, pay to the Lender such additional amount as shall
be sufficient, in the Lender's reasonable determination, to compensate the
Lender for such reduced return, together with interest at the Overdue
Reimbursement Rate from the 30th day until payment in full thereof. The
determination by such Lender of the amount to be paid to it and the basis for
computation thereof shall, in the absence of manifest error, be conclusive. In
determining such amount, such Lender may use any reasonable averaging,
allocation and attribution methods.
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3.8. REGULATORY CHANGES. If any Lender shall determine that (a) any
change in any Legal Requirement (including any new Legal Requirement) after the
date hereof shall directly or indirectly (i) reduce the amount of any sum
received or receivable by such Lender with respect to the Revolving Loan or the
Letters of Credit or the return to be earned by such Lender on the Revolving
Loan or the Letters of Credit, (ii) impose a cost on such Lender or any
Affiliate of such Lender that is attributable to the making or maintaining of,
or such Lender's commitment to make, its portion of the Revolving Loan or the
Letters of Credit, or (iii) require such Lender or any Affiliate of such Lender
to make any payment on, or calculated by reference to, the gross amount of any
amount received by such Lender under any Credit Document, and (b) such
reduction, increased cost or payment shall not be fully compensated for by an
adjustment in the Applicable Rate or the Letter of Credit fees, then, the Lender
shall, promptly after it has made such determination, give notice thereof to the
Company. Promptly after the receipt by the Company of any such notice, the
Company and the Lender shall attempt to negotiate in good faith an adjustment to
the amount payable by the Borrowers to the Lender under this Section 3.8, which
amount, together with any adjustment in the Applicable Rate, shall be sufficient
to fully compensate the Lender for such reduction, increased cost or payment
taking into account any compensation for such reduction, increased cost or
payment received by the Lender pursuant to the provisions of Section 3.5, 3.6 or
3.7 hereof. If the Company and the Lender are unable to agree to such adjustment
within thirty days of the date upon which the Company receives such notice, then
the Borrowers will, on demand by the Lender, pay to the Lender such additional
amount, together with any adjustment in the Applicable Rate, as shall be
sufficient to fully compensate the Lender for such reduction, increased cost or
payment, together with interest on such amount from the 30th day after receipt
of such certificate until payment in full thereof at the Overdue Reimbursement
Rate. The determination by such Lender of the amount to be paid to it and the
basis for computation thereof hereunder shall, in the absence of manifest error,
be conclusive. In determining such amount, such Lender may use any reasonable
averaging and attribution methods.
3.9. COMPUTATIONS OF INTEREST AND FEES. For purposes of this Agreement,
interest and commitment fees, Letter of Credit fees (and any other amount
expressed as interest or such fees) shall be computed on the basis of a 360-day
year for actual days elapsed. If any payment required by this Agreement becomes
due on any day that is not a Banking Day, such payment shall, except as
otherwise provided in the Eurodollar Interest Period, be made on the next
succeeding Banking Day. If the due date for any payment of principal is extended
as a result of the immediately preceding sentence, interest shall be payable for
the time during which payment is extended at the Applicable Rate.
4. PAYMENT.
4.1. PAYMENT OF REVOLVING LOAN.
4.1.1. PAYMENT AT MATURITY. On the stated or any accelerated
maturity of the Revolving Note, each Borrower will pay to the Agent for
the account of the Lenders as evidenced by its Loan Account the amount
of the Revolving Loan, together with all accrued and unpaid interest
thereon.
4.1.2. MANDATORY PREPAYMENT. If at any time the Revolving Loan
exceeds the Maximum Amount of Revolving Credit, whether as a result of
voluntary reductions pursuant to Section 2.1 or otherwise, the
Borrowers will promptly pay the amount of such excess to the Agent for
the account of the Lenders.
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4.1.3. VOLUNTARY PREPAYMENTS OF REVOLVING LOAN. In addition to
the prepayment required by Section 4.1.2, the Borrowers may from time
to time prepay all or any portion of the Revolving Loan, without
penalty or premium (except as provided in Section 3.2.4 with respect to
the early termination of Eurodollar Pricing Options). Such Borrower
shall give the Agent at least one Banking Day prior notice of its
intention to prepay, specifying the date of payment, the total amount
of the Revolving Loan to be paid on such date and the amount of
interest to by paid with such prepayment.
4.1.4. REBORROWING; APPLICATION OF PAYMENTS. The amounts of
the Revolving Loan prepaid pursuant to Section 4.1.3 may be reborrowed
from time to time prior to the Final Maturity Date in accordance with
Section 2.1. The amount of the Revolving Loan prepaid pursuant to
Section 4.1.1 may not be reborrowed. All payments of principal
hereunder shall be made to the Agent for the account of the Lenders and
shall be applied first to the portion of the Revolving Loan not then
subject to Eurodollar Pricing Option then the balance of any such
payment shall be applied to a portion of the Revolving Loan then
subject to the Eurodollar Pricing Options, in the chronological order
of the respective maturities, thereof, together with any payment
required by Section 3.2.4.
4.2. PAYMENT OF LETTERS OF CREDIT.
4.2.1. PAYMENTS AT MATURITY AND UPON ACCELERATION OF MATURITY.
If on the Final Maturity Date or any accelerated maturity of the Credit
Obligations the Lenders shall be obligated in respect of a Letter of
Credit or a draft accepted under a Letter of Credit, the Borrower will
either:
(a) prepay such obligation by depositing cash with the Agent,
or
(b) deliver to the Agent a standby letter of credit
(designating the Letter of Credit Issuer as beneficiary and issued by a
bank and on terms reasonably acceptable to the Letter of Credit
Issuer),
in each case in an amount equal to the portion of the then Letter of
Credit Exposure issued for the account of the Borrower. Any such cash
so deposited and the cash proceeds of any draw under any standby Letter
of Credit so furnished, including any interest thereon, shall be
returned by the Agent to the Borrower only when, and to the extent
that, the amount of such cash held by the Agent exceeds the Letter of
Credit Exposure at such time and no Default then exists.
4.2.2. MANDATORY PREPAYMENT. If at any time the Letter of
Credit Exposure exceeds the limits set forth in Section 2.2, the
Borrower shall within one Banking Day pay the amount of such excess to
the Agent for the account of the Lenders.
4.3. PAYMENT OF MORTGAGE LOAN.
4.3.1. PAYMENT AT MATURITY. On the stated or any accelerated
maturity of the Mortgage Note, the Company will pay to the Agent for
credit to the Mortgage Note an amount equal to the Indebtedness
evidenced by the Mortgage Note, together with all accrued and unpaid
interest thereon and all other Credit Obligations then outstanding in
respect of the Mortgage Loan.
4.3.2. MANDATORY PREPAYMENTS OF THE MORTGAGE LOAN. On each
Payment Date, commencing with the first such date after the Initial
Closing Date, the Company will pay to the
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Agent for credit to the Mortgage Note an amount equal to the lesser of
(i) 1.67% of the original principal amount of the Mortgage Loan or (ii)
the remaining balance of the Mortgage Loan.
4.3.3. VOLUNTARY PREPAYMENTS OF THE MORTGAGE LOAN. In addition
to the prepayments required by Section 4.3.2, the Company may from time
to time prepay all or any portion of the Mortgage Loan, without penalty
or premium, together with all accrued and unpaid interest on the
portion of the Mortgage Loan then being prepaid. With respect to such
prepayment, the Company shall give the Agent at least one Banking Day's
prior notice of its intention to prepay, specifying the date of
payment, the total principal amount of the Mortgage Loan to be paid on
such date and the amount of interest to be paid with such prepayment.
No voluntary prepayment of the Mortgage Loan shall relieve the Company
of its obligations to make the mandatory prepayments required by
Section 4.3.2 and any such voluntary prepayment shall be applied to the
payments required by Section 4.3.2 in the inverse order of maturity.
4.3.4. NO REBORROWING. The amounts of the Mortgage Loan paid
pursuant to Section 4.2 may not be reborrowed.
5. CONDITIONS TO EXTENDING CREDIT.
5.1. CONDITIONS ON INITIAL CLOSING DATE ON THE REVOLVING LOAN. The
obligations of the Lenders to make the initial Revolving Loan pursuant to
Section 2.1 shall be subject to the satisfaction, on or before the Initial
Closing Date, of the conditions set forth in this Section 5.1 as well as the
further conditions in Section 5.4. If the conditions set forth in this Section
5.1 and 5.4 are not met on or prior to the Initial Closing Date, the Lenders
shall have no obligation to make any extensions of credit under the Revolving
Loan.
5.1.1. REVOLVING NOTES. From and after the Initial Closing
Date, the existing Revolving Loan shall be deemed to be outstanding
under this Agreement and shall be evidenced by the existing Revolving
Notes attached hereto as Exhibit 2.1.4.
5.1.2. PAYMENT OF FEE. The Borrowers shall have paid a
facility fee of $375,000 to the Agent for the accounts of the Lenders
in accordance with their respective Percentage Interests in the
Revolving Loan.
5.1.3. SECURITY AGREEMENT. The Borrowers shall have duly
authorized, executed and delivered to the Agent, for the benefit of the
Lenders, a Security Agreement in substantially the form of Exhibit
5.1.3 (the "SECURITY AGREEMENT").
5.2. THE MORTGAGE LOAN. From and after the Initial Closing Date the
existing Mortgage Loan shall be deemed to be outstanding under this Agreement,
and shall be evidenced by the existing Mortgage Note, attached hereto as Exhibit
2.3.2.
5.3. CONDITIONS TO MAKING EACH PERMITTED ACQUISITION ADVANCE. The
Lenders' several obligations to make any loan contemplated by Section 2.1, the
proceeds of which will be applied to a Permitted Acquisition, shall be subject
to the satisfaction, on or before the date of consummation of the proposed
Permitted Acquisition, of the following conditions, as well as the further
conditions set forth in Section 5.4:
5.3.1. PERMITTED ACQUISITION. Other than as consented to by
the Agent in writing,
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(a) If the Purchase Price for a Permitted Acquisition is less
than $5,000,000, the Company shall furnish to the Required Lenders
computations demonstrating compliance with Section 6.9.4, certified by
a Financial Officer of the Company.
(b) If the Purchase Price for a Permitted Acquisition is equal
to or exceeds $5,000,000:
(i) The provisions of the Acquisition Agreement
relating to such Permitted Acquisition shall not have been
amended, modified, waived or terminated in any material
respect from the form of such Agreement delivered to the Agent
pursuant to Section 6.9.4 (unless such amendment or
modification, in form reasonably acceptable to the Agent,
shall have been provided to the Agent prior to such Permitted
Acquisition) and all material executed documents, including
all schedules and exhibits thereto, shall have been delivered
to the Agent within 30 days of the closing of such Permitted
Acquisition.
(ii) All of the representations and warranties of the
Sellers set forth in such Acquisition Agreement shall be
complete and correct in all material respects on and as of the
Closing Date with the same force and effect as though made on
and as of such date.
(iii) All of the other conditions to the obligations
of the Borrowers set forth in such Acquisition Agreement shall
have been satisfied or waived by each of the other parties to
such Acquisition Agreement.
(iv) Any material consent, authorization, order or
approval of any Person required in connection with the
transactions contemplated by such Acquisition Agreement shall
have been obtained and shall be in full force and effect.
(v) All of the items required to be delivered under
such Acquisition Agreement shall have been so delivered.
(vi) The Company shall furnish to the Required
Lenders computations demonstrating compliance with Section
6.9.4, Certified by a Financial Officer of the Company.
(vii) Contemporaneously with or immediately after the
making by the Lenders of the extension of credit hereunder,
the Lenders shall have received a certificate of a Financial
Officer of the Borrower to the effect that (A) the initial
closing has occurred under such Acquisition Agreement and (B)
each of the conditions set forth in this Section 5.3.1 has
been satisfied.
5.3.2. NOTES AND CREDIT DOCUMENTS; MERGER. Contemporaneously
with or immediately after such Permitted Acquisition, such Acquired
Party shall either (a) execute and deliver to the Agent a Revolving
Note for each Lender and a Joinder Agreement to the Credit Agreement
and each other Lender Agreement in the form of Exhibit 5.3.2 or (b) be
merged with and into an existing Borrower, in which case the Company
shall have received a certificate of a Financial Officer of the Company
to the effect that the merger of such Acquired Party with and into an
existing Borrower has been consummated.
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5.4. CONDITIONS TO EACH EXTENSION OF CREDIT. The obligations of the
Lenders to make any extension of credit pursuant to Section 2 shall be subject
to the satisfaction, on or before the Closing Date for such extension of credit,
of the following conditions:
5.4.1. OFFICER'S CERTIFICATE. The representations and
warranties contained in Section 7 shall be true and correct on and as
of such Closing Date with the same force and effect as though made on
and as of such date (except as to any representation or warranty which
refers to a specific earlier date); that the Borrowers shall be in
compliance with the covenants contained in Section 6 and no Default
shall exist on such Closing Date prior to or immediately after giving
effect to the requested extension of credit; no Material Adverse Change
shall have occurred since December 31, 1999; and the Borrower that is
requesting an extension of credit shall have furnished to the Agent in
connection with the requested extension of credit a certificate to
these effects, in substantially the form of Exhibit 5.4.1, signed by a
Financial Officer.
5.4.2. LEGALITY, ETC. The making of the requested extension of
credit shall not (a) subject any Lender to any penalty or special tax
(other than a Tax for which the Borrowers are required to reimburse the
Lenders under Section 3.5), (b) be prohibited by any Legal Requirement
or (c) violate any credit restraint program of the executive branch of
the government of the United States of America, the Board of Governors
of the Federal Reserve System or any other governmental or
administrative agency so long as any Lender reasonably believes that
compliance is in the best interests of the Lender.
5.4.3. PROPER PROCEEDINGS. This Agreement, each other Credit
Document and the transactions contemplated hereby and thereby shall
have been authorized by all necessary corporate or other proceedings of
the Borrowers. All necessary consents, approvals and authorizations of
any governmental or administrative agency or any other Person of any of
the transactions contemplated hereby or by any other Credit Document
shall have been obtained and shall be in full force and effect.
5.4.4. GENERAL. All legal and corporate proceedings in
connection with the transactions contemplated by this Agreement and
each other Credit Document shall be satisfactory in form and substance
to the Agent and the Agent shall have received copies of all documents,
including certified copies of the Charter and Bylaws of the Borrowers
and the other Obligors, records of corporate proceedings, certificates
as to signatures and incumbency of officers and opinions of counsel,
which the Agent may have reasonably requested in connection therewith,
such documents where appropriate to be certified by proper corporate or
governmental authorities.
6. GENERAL COVENANTS. Each of the Borrowers covenants that, until all of the
Credit Obligations shall have been paid in full and until the Lenders'
commitments to extend credit under this Agreement and any other Credit Document
shall have been irrevocably terminated, it will comply, and will cause its
Subsidiaries to comply with the following provisions:
6.1. TAXES AND OTHER CHARGES; ACCOUNTS PAYABLE.
6.1.1. TAXES AND OTHER CHARGES. Each of the Borrowers shall
duly pay and discharge, or cause to be paid and discharged, before the
same become in arrears, all taxes, assessments and other governmental
charges imposed upon such Person and its properties, sales or
activities, or upon the income or profits therefrom, as well as all
claims for labor, materials or supplies which if unpaid
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might by law become a Lien upon any of its property; provided, however,
that any such tax, assessment, charge or claim need not be paid if the
validity or amount thereof shall at the time be contested in good faith
by appropriate proceedings and if such Person shall, in accordance with
GAAP, have set aside on its books adequate reserves with respect
thereto; and provided, further, that each of the Borrowers shall pay or
bond, or cause to be paid or bonded, all such taxes, assessments,
charges or other governmental claims immediately upon the commencement
of proceedings to foreclose any Lien which may have attached as
security therefor (except to the extent such proceedings have been
dismissed or stayed).
6.1.2. ACCOUNTS PAYABLE. Each of the Borrowers shall promptly
pay when due, or in conformity with customary trade terms, all other
Indebtedness, including accounts payable, incident to the operations of
such Person not referred to in Section 6.1.1; PROVIDED, HOWEVER, that
any such Indebtedness need not be paid if the validity or amount
thereof shall at the time be contested in good faith and if such Person
shall, in accordance with GAAP, have set aside on its books adequate
reserves with respect thereto.
6.2. CONDUCT OF BUSINESS, ETC.
6.2.1. TYPES OF BUSINESS. The Borrowers shall engage only in
the business of pediatric, neonatal and perinatal medical services and
related services.
6.2.2. MAINTENANCE OF PROPERTIES. Each of the Borrowers:
(a) shall keep its properties in such repair, working order
and condition, and shall from time to time make such repairs,
replacements, additions and improvements thereto as are necessary for
the efficient operation of its businesses and shall comply at all times
in all material respects with all franchises, licenses, leases and
other material agreements to which it is party so as to prevent any
loss or forfeiture thereof or thereunder, except where (i) compliance
is at the time being contested in good faith by appropriate proceedings
or (ii) failure to comply with the provisions being contested has not
resulted, or does not create a material risk of resulting, in the
aggregate in any Material Adverse Change; PROVIDED, HOWEVER, that this
Section 6.2.2(a) shall not apply to assets or entities disposed of in
transactions permitted by Section 6.12; and
(b) shall do all things necessary to preserve, renew and keep
in full force and effect and in good standing its legal existence and
authority necessary to continue its business; PROVIDED, HOWEVER, that
this Section 6.2.2(b) shall not prevent the merger, consolidation or
liquidation of Subsidiaries permitted by Section 6.12.
6.2.3. STATUTORY COMPLIANCE. Each of the Borrowers shall
comply in all material respects with all Legal Requirements, except
where (a) compliance therewith shall at the time be contested in good
faith by appropriate proceedings or (b) failure so to comply with the
provisions being contested would not in the aggregate result in any
Material Adverse Change.
6.2.4. NO SUBSIDIARIES. No Borrower shall form or suffer to
exist any Subsidiary, except for such Subsidiaries as shall have
executed and delivered to the Agent either (a) this Agreement and each
other Credit Document as of the Initial Closing Date or (b) a Joinder
Agreement in the form of Exhibit 5.3.2 pursuant to which such
Subsidiary shall have become a Borrower and a Guarantor hereunder.
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6.2.5. COMPLIANCE WITH MATERIAL AGREEMENTS. Each of the
Borrowers shall comply in all material respects with the Material
Agreements (to the extent not in violation of the other provisions of
this Agreement or any other Credit Document). Without the prior written
consent of the Required Lenders, which consent shall not be
unreasonably withheld, no Material Agreement shall be amended,
modified, waived or terminated in any manner that would have in any
material respect an adverse effect on the interests of the Lenders.
6.3. INSURANCE.
6.3.1. BUSINESS INTERRUPTION INSURANCE. The Borrowers shall
maintain with financially sound and reputable insurers, reasonably
satisfactory to the Agent, insurance related to interruption of
business, either for loss of revenues or for extra expense, in the
manner customary for businesses of similar size engaged in similar
activities in similar localities.
6.3.2. PROPERTY INSURANCE. The Borrowers shall keep their
assets which are of an insurable character insured by financially sound
and reputable insurers, reasonably satisfactory to the Agent, against
theft and fraud and against loss or damage by fire, explosion and
hazards and such other extended coverage risks insured against by
extended coverage to the extent, in amounts and with deductibles at
least as favorable as those generally maintained by businesses of
similar size engaged in similar activities in similar localities and
all such policies which relate to the premises covered by the Mortgage
shall name the Agent and its successors and assigns as first mortgagee.
6.3.3. LIABILITY INSURANCE. The Borrowers shall maintain with
financially sound and reputable insurers, reasonably satisfactory to
the Agent, insurance against liability for hazards, risks and liability
to persons (for both death and bodily injury) and property, including
product liability insurance and medical malpractice insurance, to the
extent, in amounts and with deductibles at least as favorable as those
generally maintained by businesses of similar size engaged in similar
activities in similar localities; PROVIDED, HOWEVER, that it may effect
workers' compensation insurance or similar coverage with respect to
operations in any particular state or other jurisdiction through an
insurance fund operated by such state or jurisdiction or by meeting the
self-insurance requirements of such state or jurisdiction.
Each of the required policies described in this Section 6.3
shall provide for at least 30 days prior written notice to the Agent of
the cancellation, expiration or substantial modification thereof.
6.4. FINANCIAL STATEMENTS AND REPORTS. The Company shall maintain a
system of accounting in which correct entries shall be made of all transactions
in relation to its business and affairs in accordance with generally accepted
accounting practice. The fiscal year of the Borrowers shall end on December 31
in each year and the fiscal quarters of the Borrowers shall end on March 31,
June 30, September 30 and December 31 in each year.
6.4.1. ANNUAL REPORTS. The Company shall furnish to the
Lenders as soon as available, and in any event within 120 days after
the end of each fiscal year, the Consolidated balance sheet of the
Company and its Subsidiaries as at the end of such fiscal year, the
Consolidated statement of income and Consolidated statement of changes
in shareholders' equity and of cash flows of the Company and its
Subsidiaries for such fiscal year (all in reasonable detail) and
together, in the case of Consolidated financial statements, with
comparative figures for the immediately preceding fiscal year, all
accompanied by:
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(a) Unqualified reports of PricewaterhouseCoopers (or, if they
cease to act as auditors of the Company, independent certified public
accountants of recognized national standing reasonably satisfactory to
the Required Lenders), containing no material uncertainty, to the
effect that they have audited the foregoing Consolidated financial
statements in accordance with generally accepted auditing standards and
that such Consolidated financial statements present fairly, in all
material respects, the financial position of the Company and its
Subsidiaries covered thereby at the dates thereof and the results of
their operations for the periods covered thereby in conformity with
GAAP.
(b) The statement of such accountants that they have caused
this Agreement to be reviewed and that in the course of their audit of
the Company and its Subsidiaries no facts have come to their attention
that cause them to believe that any Default exists and in particular
that they have no knowledge of any Default under Sections 6.5 through
6.16 or, if such is not the case, specifying such Default and the
nature thereof. This statement is furnished by such accountants with
the understanding that the examination of such accountants cannot be
relied upon to give such accountants knowledge of any such Default
except as it relates to accounting or auditing matters within the scope
of their audit.
(c) A certificate of the Company signed by a Financial
Officer, substantially in the form of Exhibit 6.4.1, to the effect that
such officer has caused this Agreement to be reviewed and has no
knowledge of any Default, or if such officer has such knowledge,
specifying such Default and the nature thereof, and what action such
Borrower has taken, is taking or proposes to take with respect thereto,
and containing a schedule of computations by the Company demonstrating,
as of the end of such fiscal year, compliance with the Computation
Covenants.
(d) Supplements to Exhibits 7.1 and 7.3 showing any changes in
the information set forth in such Exhibits not previously furnished to
the Lenders in writing, as well as any changes in the Charter, Bylaws
or incumbency of officers of any of the Borrowers or their respective
Subsidiaries from those previously certified to the Agent.
6.4.2. QUARTERLY REPORTS. The Company shall furnish to the
Lenders as soon as available and, in any event, within 60 days after
the end of each of the first three fiscal quarters of the Company, the
internally prepared Consolidated balance sheets of the Company and its
Subsidiaries as of the end of such fiscal quarter, the Consolidated
statements of income and Consolidated statements of cash flows of the
Borrowers and their respective Subsidiaries for such fiscal quarter and
for the portion of the fiscal year then ended (all in reasonable
detail) and together, in the case of Consolidated statements, with
comparative figures for the same period in the preceding fiscal year,
all accompanied by:
(a) A certificate of the Company signed by a Financial
Officer, substantially in the form of Exhibit 6.4.2.
(b) Supplements to Exhibits 7.1 and 7.3 showing any changes in
the information set forth in such Exhibits not previously furnished to
the Lenders in writing, as well as any changes in the Charter, Bylaws
or incumbency of officers of any of the Borrowers or their respective
Subsidiaries from those previously certified to the Agent.
6.4.3. OTHER REPORTS. The Borrowers shall promptly furnish to
the Lenders:
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(a) As soon as prepared and in any event within 30 days after
the beginning of each fiscal year, a business plan, an annual budget
and operating projections for such fiscal year of the Company,
certified by a Financial Officer of the Company.
(b) As soon as available, any material updates of such plan,
budget and projections.
(c) Any management letters furnished to the Company or any of
its Related Entities by the Company's auditors.
(d) As soon as practicable but, in any event, within 20
Banking Days after the filing thereof, such registration statements,
proxy statements and reports, including, to the extent applicable,
Forms X-0, X-0, X-0, X-0, 10-K, 10-Q and 8-K, as may be filed by the
Company or any of its Related Entities with the Securities and Exchange
Commission.
(e) Any material information relating to a material audit or
investigation of any Borrower in its capacity as a Medicaid provider by
a governmental or administrative agency.
6.4.4. NOTICE OF LITIGATION, DEFAULTS, ETC. Each of the
Borrowers shall promptly furnish to the Lenders notice of any
litigation or any administrative or arbitration proceeding (a) which
creates a material risk of resulting, after giving effect to any
applicable insurance, in the payment by any Borrower or any of its
Subsidiaries of more than $750,000 or (b) which results, or creates a
material risk of resulting, in a Material Adverse Change. Within five
Banking Days after acquiring knowledge thereof, such Borrower shall
notify the Lenders of the existence of any Default or Material Adverse
Change, specifying the nature thereof and what action the Company, such
Borrower or such Subsidiary has taken, is taking or proposes to take
with respect thereto.
6.4.5. ERISA REPORTS. Each of the Borrowers shall furnish to
the Lenders promptly after the same shall become available the
following items with respect to any Plan:
(a) any request for a waiver of the funding standards or an
extension of the amortization period required by sections 303 and 304
of ERISA or section 412 of the Code, promptly after any Control Group
Person submits such request to the Department of Labor or the Internal
Revenue Service,
(b) any reportable event (as defined in section 4043 of
ERISA), unless the notice requirement with respect thereto has been
waived by regulation, promptly after any Control Group Person learns of
such reportable event; and furnish the Bank with a copy of the notice
of such reportable event required to be filed with the PBGC, promptly
after such notice is required to be given,
(c) any notice received by any Control Group Person that the
PBGC has instituted or intends to institute proceedings to terminate
any Plan, or that any Multiemployer Plan is insolvent or in
reorganization status under Title IV of ERISA, promptly after receipt
of such notice,
(d) notice of the possibility of the termination of any Plan
by its administrator pursuant to section 4041 of ERISA, as soon as any
Control Group Person learns of such possibility and in any event prior
to such termination; and furnish the Bank with a copy of any notice to
the PBGC that a Plan is to be terminated, promptly after any Control
Group Person files a copy of such notice, and
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(e) notice of the intention of any Control Group Person to
withdraw, in whole or in part, from any Multiemployer Plan, prior to
such withdrawal, and, upon any Bank's request from time to time, of the
extent of the liability, if any, of such Person as a result of such
withdrawal, to be the best of such Person's knowledge at such time.
6.4.6. OTHER INFORMATION. From time to time upon request of
any authorized officer of any Lender, each of the Borrowers shall
furnish to the Lenders such information regarding the business, assets,
financial condition, income or prospects of the Borrowers as such
officer may reasonably request, including copies of all tax returns,
licenses, agreements, leases and instruments to which any of the
Borrowers is party. The Lenders' authorized officers and
representatives shall have the right during normal business hours upon
reasonable notice and at reasonable intervals to examine the books and
records of the Borrowers, to make copies and notes therefrom for the
purpose of ascertaining compliance with or obtaining enforcement of
this Agreement or any other Credit Document.
6.5. CERTAIN FINANCIAL TESTS.
6.5.1. CONSOLIDATED FINANCING DEBT TO CONSOLIDATED EBITDA.
Consolidated Financing Debt shall not on any date exceed 250% of
Consolidated EBITDA for the most recently completed period of four
consecutive fiscal quarters.
6.5.2. CONSOLIDATED TOTAL DEBT SERVICE. On the last day of
each fiscal quarter of the Company and its Related Entities, Operating
Cash Flow shall be at least 200% of Consolidated Fixed Charges for the
period of four consecutive fiscal quarters then ended.
6.5.3. CONSOLIDATED NET WORTH. On the last day of each fiscal
quarter of the Company and its Related Entities, the Consolidated Net
Worth shall equal at least the sum of (a) $197,425,000 PLUS (b) the
aggregate net proceeds of any offerings of equity interests in the
Company or any of its Related Entities occurring on or after the
Initial Closing Date, PLUS (c) 50% of Consolidated Net Income (if
positive) for each fiscal quarter of the Company thereafter.
6.5.4. CONSOLIDATED EBITDA TO CONSOLIDATED NET REVENUE. On the
last day of each fiscal quarter of the Company and its Related
Entities, Consolidated EBITDA shall be at least 15% of Consolidated Net
Revenue for the fiscal quarter then ended.
6.5.5. CONSOLIDATED TANGIBLE NET WORTH. On the last day of
each fiscal quarter of the Company, and its Related Entities, beginning
on and after the fiscal quarter ending March 31, 2001, Consolidated
Tangible Net Worth shall exceed the number set forth in the table below
opposite such day:
Fiscal Quarter Ending Amount
--------------------- ------
March 31, 2001 ($4,000,000)
June 30, 2001 ($2,000,000)
September 30, 2001 and thereafter $1
6.6. INDEBTEDNESS. None of the Borrowers shall create, incur, assume or
otherwise become or remain liable with respect to any Indebtedness except the
following:
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6.6.1. Indebtedness in respect of the Credit Obligations.
6.6.2. Guarantees permitted by Section 6.7.
6.6.3. Current liabilities, other than Financing Debt,
incurred in the ordinary course of business, PROVIDED, HOWEVER that all
such Indebtedness, including without limitation trade payables, shall
be paid in accordance with Section 6.1.
6.6.4. To the extent that payment thereof shall not at the
time be required by Section 6.1, Indebtedness in respect of taxes,
assessments, governmental charges and claims for labor, materials and
supplies.
6.6.5. Indebtedness secured by Liens of carriers, warehouses,
mechanics and landlords permitted by Sections 6.8.5 and 6.8.6.
6.6.6. Indebtedness in respect of judgments or awards (a)
which have been in force for less than the applicable appeal period or
(b) in respect of which the Borrower shall at the time in good faith be
prosecuting an appeal or proceedings for review and, in the case of
each of clauses (a) and (b), such Borrower shall have taken appropriate
reserves therefor in accordance with GAAP and execution of such
judgment or award shall not be levied.
6.6.7. Indebtedness with respect to deferred compensation in
the ordinary course of business and Indebtedness with respect to
employee benefit programs (including liabilities in respect of deferred
compensation, pension or severance benefits, early termination
benefits, disability benefits, vacation benefits and tuition benefits)
incurred in the ordinary course of business so long as the Borrower is
in compliance with Section 6.13.
6.6.8. Indebtedness in respect of customer advances and
deposits, deferred income, deferred taxes and other deferred credits
arising in the ordinary course of business.
6.6.9. Indebtedness relating to deferred gains and deferred
taxes arising in connection with sale of assets permitted under Section
6.12.
6.6.10. Indebtedness in respect of inter-company loans and
advances among the Borrowers which are not prohibited by Section 6.9.
6.6.11. Approved Subordinated Debt.
6.6.12. Contingent obligations approved by the Required
Lenders under Agreements relating to Permitted Acquisitions.
6.6.13. Indebtedness to the extent set forth on Exhibit 6.6.
6.7. GUARANTEES. None of the Borrowers shall become or remain liable
with respect to any Guarantee, including reimbursement obligations, whether
contingent or matured, under letters of credit or other financial guarantees by
third parties, except the following:
6.7.1. Guarantees of the Credit Obligations.
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6.7.2. Guarantees outstanding on the Initial Closing Date and
described on Exhibit 6.7.
6.8. LIENS. None of the Borrowers shall create, incur or enter into, or
suffer to be created or incurred or to exist, any Lien, except the following:
6.8.1. Liens on real property that secure the Mortgage and
Liens that secure the Credit Obligations.
6.8.2. Liens to secure taxes, assessments and other
governmental charges, to the extent that payment thereof shall not at
the time be required by Section 6.1.
6.8.3. Deposits or pledges made (a) in connection with, or to
secure payment of, workers' compensation, unemployment insurance, old
age pensions or other social security, (b) in connection with casualty
insurance maintained in accordance with Section 6.3, (c) to secure the
performance of bids, tenders, contracts (other than contracts relating
to Financing Debt) or leases, (d) to secure statutory obligations or
surety or appeal bonds, (e) to secure indemnity, performance or other
similar bonds in the ordinary course of business or (f) in connection
with contested amounts to the extent that payment thereof shall not at
that time be required by Section 6.1.
6.8.4. Liens in respect of judgments or awards, to the extent
that such judgments or awards are permitted by Section 6.6.6.
6.8.5. Liens of carriers, warehouses, mechanics and similar
Liens, in each case (a) in existence less than 120 days from the date
of creation thereof or (b) being contested in good faith by the
Borrower in appropriate proceedings (so long as such Borrower shall, in
accordance with GAAP, have set aside on its books adequate reserves
with respect thereto).
6.8.6. Encumbrances in the nature of (a) zoning restrictions,
(b) easements, (c) restrictions of record on the use of real property,
(d) landlords' and lessors' Liens on rented premises and (e)
restrictions on transfers or assignment of leases, which in each case
do not materially detract from the value of the encumbered property or
impair the use thereof in the business of any Borrower.
6.8.7. Other Liens and Capitalized Lease Obligations on the
property secured by such Liens or the subject of such Capitalized Lease
as set forth on Exhibit 6.8 and any renewals thereof, but not any
increase in the amount thereof.
6.9. INVESTMENTS AND PERMITTED ACQUISITIONS. None of the Obligors shall
have outstanding, acquire, commit itself to acquire or hold any Investment
(including any Investment consisting of the Permitted Acquisition of any
business) except for the following:
6.9.1. Inter-company loans and advances from any Borrower to
any other Borrower but in each case only to the extent reasonably
necessary for Consolidated tax planning and working capital management.
6.9.2. Investments in Cash Equivalents.
6.9.3. Guarantees permitted by Section 6.7.
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6.9.4. Investments constituting the acquisition of all of the
capital stock, equity, partnership or other beneficial interests in, or
substantially all the assets of, any Person that derives substantially
all of its revenues from a business that the Borrowers would be
permitted to engage in under Section 6.2.1; PROVIDED, HOWEVER, that:
(a) the acquisition shall have been approved by a majority of
the board of directors or similar governing entity of the Person being
acquired;
(b) the Purchase Price for such acquisition does not exceed
$10,000,000 and the Purchase Price for such acquisition does not exceed
five times the Pro Forma EBITDA of such Person (which calculation shall
be reasonably satisfactory to the Agent);
(c) The Company has provided the Agent at least 5 Banking Days
prior written notice of such acquisition and copies of all letters of
intent and agreements relating thereto;
(d) The Company has provided the Agent, at least 5 Banking
Days prior to such acquisition written computations, historical
financial statements and projections satisfactory to the Agent
demonstrating pro forma compliance with Section 6.5 and 6.9.4 and the
absence of any Default, both immediately before and after giving effect
to such acquisition; and
(e) The Company and the other Guarantors will pledge the stock
(up to 66% of the voting stock of a Foreign Subsidiary) of the acquired
or newly-created entity.
6.9.5. Loans to employees not to exceed a principal amount of
$1,000,000 in the aggregate at any one time outstanding.
6.9.6. Investments representing Indebtedness of any Person
owing as a result of the sale by any Borrower in the ordinary course of
business to such Person of products, services or tangible property no
longer required in such Borrower's business.
6.9.7. Investments described on Exhibit 6.9.7.
6.10. DISTRIBUTIONS. None of the Borrowers shall make any Distribution
except the following (i) distributions in respect of the redemption of capital
stock of the Company from employees of any Borrower; PROVIDED, HOWEVER, that the
amount of all such Distributions shall not exceed $500,000 in the aggregate in
any fiscal year and (ii) Subsidiaries of the Company may make Distributions to
the Company.
6.11. CAPITAL EXPENDITURES. The Borrowers will not make aggregate
Capital Expenditures exceeding $5,000,000 in any fiscal year.
6.12. ASSET DISPOSITIONS AND MERGERS. None of the Obligors shall merge
or enter into a consolidation or sell, lease, sell and lease back, sublease or
otherwise dispose of any of its assets, except the following:
6.12.1. So long as immediately prior to and after giving
effect thereto there shall exist no Default, the Obligors may sell or
otherwise dispose of (a) inventory in the ordinary course of business,
(b) tangible assets to be replaced in the ordinary course of business
within 12 months by other assets of equal or greater value, or (c)
tangible assets no longer used or useful in the business of such
Obligor; PROVIDED, HOWEVER, that the aggregate fair market value (or
book value, if greater)
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of the assets sold or disposed of pursuant to this clause (c) shall not
exceed $100,000 in any fiscal year.
6.12.2. Any Borrower may merge or be liquidated into any other
Borrower.
6.12.3. The Company may sell the premises covered by the
Mortgage so long as the Company has obtained the prior written consent
of the holder of the Mortgage Loan and provided that the proceeds of
such sale are applied as a voluntary prepayment of the Mortgage Loan in
accordance with Section 4.3.3 and any excess proceeds are applied as a
voluntary prepayment of the Revolving Loan in accordance with Section
4.1.3.
6.13. ERISA, ETC. Each of the Obligors shall comply, and shall cause
all Control Group Persons to comply, in all material respects, with the
provisions of ERISA and the Code applicable to each Plan. Each of the Obligors
shall meet, and shall cause all Control Group Persons to meet, all minimum
funding requirements applicable to them with respect to any Plan pursuant to
section 302 of ERISA or section 412 of the Code, without giving effect to any
waivers of such requirements or extensions of the related amortization periods
which may be granted. At no time shall the Accumulated Benefit Obligations under
any Plan that is not a Multiemployer Plan exceed the fair market value of the
assets of such Plan allocable to such benefits by more than $250,000. Within 45
days after the end of each fiscal year, the Borrowers shall deliver to the Agent
an annual actuarial report regarding their compliance with the funding
requirements applicable to them with respect to each Multiemployer Plan and each
Plan that constitutes a "defined benefit plan" (as defined in ERISA).
6.14. TRANSACTIONS WITH AFFILIATES. Except with respect to transactions
set forth on Exhibit 6.14, none of the Obligors shall effect any transaction
with any of their respective Affiliates (except for other Obligors) on a basis
less favorable to such Obligor than would be the case if such transaction had
been effected with a non-Affiliate.
6.15. ENVIRONMENTAL LAWS.
6.15.1. COMPLIANCE WITH LAW AND PERMITS. Each of the Obligors
shall use and operate all of its facilities and properties in material
compliance with all Environmental Laws, keep all necessary permits,
approvals, certificates, licenses and other authorizations relating to
environmental matters in effect and remain in material compliance
therewith, and handle all Hazardous Materials in material compliance
with all applicable Environmental Laws.
6.15.2. NOTICE OF CLAIMS, ETC. Each of the Obligors shall
immediately notify the Agent, and provide copies upon receipt, of all
written claims, complaints, notices or inquiries from governmental
authorities relating to the condition of its facilities and properties
or compliance with Environmental Laws, and shall promptly cure and have
dismissed with prejudice to the satisfaction of the Agent any actions
and proceedings relating to compliance with Environmental Laws.
6.16. DEPOSITORY ACCOUNTS. The Borrowers shall maintain, and shall
cause all of their Subsidiaries to maintain, all principal deposit accounts used
in their businesses at one or more of the Lenders.
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7. REPRESENTATIONS AND WARRANTIES. In order to induce the Lenders to extend
credit to the Borrowers hereunder, each of the Obligors as are party hereto from
time to time jointly and severally represents and warrants as follows:
7.1. ORGANIZATION AND BUSINESS.
7.1.1. THE OBLIGORS. Each of the Obligors is duly organized,
validly existing and in good standing under the laws of the
jurisdiction in which it is organized with all power and authority,
corporate or otherwise, necessary to (a) enter into and perform this
Agreement and each other Credit Document to which it is party, (b)
guarantee the Credit Obligations, and (c) own its properties and carry
on the business now conducted or proposed to be conducted by it.
Certified copies of the Charter and Bylaws of each Obligor have been
previously delivered to the Agent and are correct and complete. Exhibit
7.1, as from time to time hereafter supplemented in accordance with
Sections 6.4.1 and 6.4.2, sets forth, as of the later of the date
hereof or as of the end of the most recent fiscal quarter for which
financial statements are required to be furnished in accordance with
such Sections, (i) the name and jurisdiction of incorporation of each
Borrower and (ii) the address of each Borrower's principal executive
office and chief place of business.
7.1.2. QUALIFICATION. Each of the Borrowers is duly and
legally qualified to do business as a foreign corporation and is in
good standing in each state or jurisdiction in which such qualification
is required and is duly authorized, qualified and licensed under all
laws, regulations, ordinances or orders of public authorities, or
otherwise, to carry on its business in the places and in the manner in
which it is conducted, except for failures to be so qualified,
authorized or licensed which would not in the aggregate result, or pose
a material risk of resulting, in any Material Adverse Change.
7.1.3. CAPITALIZATION. Other than capital stock issued to
selling physicians or their advisors as part of the consideration in a
Permitted Acquisition or issued to Directors, Officers and other
employees of the Borrowers and other Accredited Investors as defined by
Rule 501 under the Securities Act of 1933, as amended, no options,
warrants, conversion rights, preemptive rights or other statutory or
contractual rights to purchase shares of capital stock or other
securities of any Borrower, other than the Company, now exist, nor has
any Borrower, other than the Company, authorized any such right, nor is
any Borrower, other than the Company, obligated in any other manner to
issue shares of its capital stock or other securities.
7.2. FINANCIAL STATEMENTS AND OTHER INFORMATION; MATERIAL AGREEMENTS.
7.2.1. FINANCIAL STATEMENTS AND OTHER INFORMATION. The
Borrowers have previously furnished to the Lenders copies of the
following:
(a) The audited balance sheets of the Borrowers as at December
31, 1999 and the audited statements of income and the audited
statements of changes in shareholders' equity and of cash flows of the
Borrowers for its fiscal year then ended.
(b) The unaudited balance sheets of the Borrowers for the
three months ended March 31, 2000 and the unaudited statements of
income and of cash flows of the Borrowers for the portion of the fiscal
year then ended.
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The audited financial statements (including the notes thereto)
referred to in clause (a) above were prepared in accordance with GAAP
and fairly present the financial position of the Borrowers at the date
thereof and the results of their operations for the periods covered
thereby. The audited financial statements referred to in clause (a)
above and the unaudited financial statements referred to in clause (b)
above were prepared in accordance with GAAP and fairly present the
financial position of the Borrowers at the respective dates thereof and
the results of its operations for the periods covered thereby, subject
to normal year-end audit adjustment and the addition of footnotes in
the case of interim financial statements. Except as described on
Exhibit 7.11, none of the Borrowers has any known contingent liability
material to it which is not reflected in the balance sheets referred to
in clauses (a) or (b) above (or delivered pursuant to Sections 6.4.1 or
6.4.2) or in the notes thereto.
7.2.2. MATERIAL AGREEMENTS. The Borrowers have previously
furnished to the Lenders correct and complete copies, including all
exhibits, schedules and amendments thereto, of the agreements, each as
in effect on the date hereof, listed in Exhibit 7.2.2 (the "MATERIAL
AGREEMENTS").
7.3. CHANGES IN CONDITION. Since December 31, 1999 no Material Adverse
Change has occurred and between December 31, 1999 and the date hereof, except as
set forth in Exhibit 7.3, none of the Obligors has entered into any material
transaction outside the ordinary course of business except for the transactions
contemplated by or otherwise permitted or authorized pursuant to this Agreement
and the Material Agreements.
7.4. TITLE TO ASSETS. Each of the Borrowers has good and marketable
title to or rights to use under leases all assets necessary for or used in the
operations of their business as now conducted by them and reflected in the most
recent balance sheet referred to in Section 7.2.1 (or the balance sheet most
recently furnished to the Lenders pursuant to Sections 6.4.1 or 6.4.2), and to
all assets acquired subsequent to the date of such balance sheet, subject to no
Liens except for Liens permitted by Section 6.8 or reflected on Exhibit 7.4 and
except for assets disposed of as permitted by Section 6.12.
7.5. OPERATIONS IN CONFORMITY WITH LAW, ETC. The operations of the
Obligors as now conducted or proposed to be conducted are not in violation of,
nor is any Obligor in default under, any Legal Requirement presently in effect,
except for such violations and defaults as do not and will not, in the
aggregate, result, or create a material risk of resulting, in any Material
Adverse Change. No Obligor has received notice of any such violation or default
or has knowledge of any basis on which the operations of the Obligors, as now
conducted and as currently proposed to be conducted after the date hereof, would
be held so as to violate or to give rise to any such violation or default.
7.6. LITIGATION. Except as otherwise set forth in Exhibit 7.6, no
litigation, at law or in equity, or any proceeding before any court, board or
other governmental or administrative agency or any arbitrator is pending or, to
the knowledge of any Borrower, threatened which may involve any material risk of
any final judgment, order or liability which, after giving effect to any
applicable insurance, has resulted, or creates a material risk of resulting, in
any Material Adverse Change or which seeks to enjoin the consummation, or which
questions the validity, of any of the transactions contemplated by this
Agreement or any other Credit Document. No judgment, decree or order of any
court, board or other governmental or administrative agency or any arbitrator
has been issued against or binds any Obligor which has resulted, or creates a
material risk of resulting, in any Material Adverse Change.
7.7. AUTHORIZATION AND ENFORCEABILITY. Each of the Obligors has taken
all corporate action required to execute, deliver and perform this Agreement and
each other Credit Document to which it is
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party. No consent of stockholders of any Obligor is necessary in order to
authorize the execution, delivery or performance of this Agreement or any other
Credit Document to which such Obligor is party. Each of this Agreement and each
other Credit Document constitutes the legal, valid and binding obligation of
each Obligor party thereto and is enforceable against such Obligor in accordance
with its terms.
7.8. NO LEGAL OBSTACLE TO AGREEMENTS. Neither the execution and
delivery of this Agreement or any other Credit Document, nor the making of any
borrowings hereunder, nor the guaranteeing of the Credit Obligations, nor the
securing of the Credit Obligations with the Credit Security, nor the
consummation of any transaction referred to in or contemplated by this Agreement
or any other Credit Document, nor the fulfillment of the terms hereof or thereof
or of any other agreement, instrument, deed or lease contemplated by this
Agreement or any other Credit Document, has constituted or resulted in or will
constitute or result in:
(a) any breach or termination of the provisions of any
material agreement, instrument, deed or lease to which any Obligor is a
party or by which it is bound, or of the Charter or By-laws of any
Obligor;
(b) the violation of any law, statute, judgment, decree or
governmental order, rule or regulation applicable to any Obligor;
(c) the creation under any agreement, instrument, deed or
lease of any Lien (other than Liens on the Credit Security which secure
the Credit Obligations) upon any of the assets of any Obligor; or
(d) any redemption, retirement or other repurchase obligation
of any Obligor under any Charter, Bylaw, agreement, instrument, deed or
lease.
No approval, authorization or other action by, or declaration to or filing with,
any governmental or administrative authority or any other Person is required to
be obtained or made by any Obligor in connection with the execution, delivery
and performance of this Agreement, the Revolving Notes or any other Credit
Document, the transactions contemplated hereby or thereby, the making of any
borrowing hereunder, the guaranteeing of the Credit Obligations or the securing
of the Credit Obligations with the Credit Security.
7.9. DEFAULTS. None of the Obligors is in default under any provision
of its Charter or By-laws or of this Agreement or any other Credit Document.
None of the Obligors is in default under any provision of any material
agreement, instrument, deed or lease to which it is party or by which it or its
property is bound. None of the Obligors has violated any law, judgment, decree
or governmental order, rule or regulation, in each case so as to result, or
create a material risk of resulting, in any Material Adverse Change.
7.10. LICENSES, ETC. The Obligors have all patents, patent
applications, patent licenses, patent rights, trademarks, trademark rights,
trade names, trade name rights, copyrights, licenses, franchises, permits,
authorizations and other rights as are necessary for the conduct of the business
of the Obligors as now conducted by them. All of the foregoing are in full force
and effect in all material respects, and each of the Obligors is in substantial
compliance with the foregoing without any known conflict with the valid rights
of others which has resulted, or creates a material risk of resulting, in any
Material Adverse Change. No event has occurred which permits, or after notice or
lapse of time or both would permit, the revocation or termination of any such
license, franchise or other right or which affects the rights of any of the
Obligors
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thereunder so as to result, or to create a material risk of resulting, in any
Material Adverse Change. No litigation or other proceeding or dispute exists
with respect to the validity or, where applicable, the extension or renewal, of
any of the foregoing which has resulted, or creates a material risk of
resulting, in any Material Adverse Change.
7.11. TAX RETURNS. Each of the Obligors has filed all material tax and
information returns which are required to be filed by it and has paid, or made
adequate provision for the payment of, all taxes which have or may become due
pursuant to such returns or to any assessment received by it. Except as
disclosed on Exhibit 7.11, none of the Obligors knows of any material additional
assessments or any basis therefor. Each of the Obligors reasonably believes that
the charges, accruals and reserves on the books of the Obligors in respect of
taxes or other governmental charges are adequate.
7.12. FUTURE EXPENDITURES. None of the Obligors anticipate that the
future expenditures, if any, by the Obligors needed to meet the provisions of
any federal, state or foreign governmental statutes, orders, rules or
regulations will be so burdensome as to result, or create a material risk of
resulting, in any Material Adverse Change.
7.13. ENVIRONMENTAL REGULATIONS.
7.13.1. ENVIRONMENTAL COMPLIANCE. Each of the Borrowers is in
compliance in all material respects with the Clean Air Act, the Federal
Water Pollution Control Act, the Marine Protection Research and
Sanctuaries Act, RCRA, CERCLA and any other Environmental Law in effect
in any jurisdiction in which any properties of the Borrowers are
located or where any of them conducts its business, and with all
applicable published rules and regulations (and applicable standards
and requirements) of the federal Environmental Protection Agency and of
any similar agencies in states or foreign countries in which the
Borrowers conduct their businesses other than those which in the
aggregate have not resulted, and do not create a material risk of
resulting, in a Material Adverse Change.
7.13.2. ENVIRONMENTAL LITIGATION. No suit, claim, action or
proceeding of which any Borrower has been given notice or otherwise has
knowledge is now pending before any court, governmental agency or board
or other forum, or to any Borrower's knowledge, threatened by any
Person (nor to any Borrower's knowledge, does any factual basis exist
therefor) for, and none of the Borrowers have received written
correspondence from any federal, state or local governmental authority
with respect to:
(a) noncompliance by any Borrower with any Environmental Law;
(b) personal injury, wrongful death or other tortious conduct
relating to materials, commodities or products used, generated, sold,
transferred or manufactured by any Borrower (including products made
of, containing or incorporating asbestos, lead or other hazardous
materials, commodities or toxic substances); or
(c) the release into the environment by any Borrower of any
Hazardous Material generated by any Borrower whether or not occurring
at or on a site owned, leased or operated by any Borrower.
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7.13.3. ENVIRONMENTAL CONDITION OF PROPERTIES. None of the
properties owned or leased by any Borrower has been used as a
treatment, storage or disposal site, other than as disclosed in Exhibit
7.13. No Hazardous Material is present in any real property currently
or formerly owned or operated by any Borrower except that which has not
resulted, and does not create a material risk of resulting, in a
Material Adverse Change.
7.14. PENSION PLANS. Each Plan (other than a Multiemployer Plan) and,
to the knowledge of each of the Obligors, each Multiemployer Plan is in material
compliance with the applicable provisions of ERISA and the Code and with Section
6.13. Each Multiemployer Plan and each Plan that constitutes a "defined benefit
plan" (as defined in ERISA) are set forth in Exhibit 7.14. Each Control Group
Person has met all of the funding standards applicable to all Plans that are not
Multiemployer Plans, and no condition exists which would permit the institution
of proceedings to terminate any Plan that is not a Multiemployer Plan under
section 4042 of ERISA. To the best knowledge of each of the Obligors, no Plan
that is a Multiemployer Plan is currently insolvent or in reorganization or has
been terminated within the meaning of ERISA.
7.15. ACQUISITION AGREEMENT, ETC. Each Acquisition Agreement is a valid
and binding contract as to the Borrower party thereto and, to the best of such
Borrower's knowledge, as to the Sellers party thereto. Such Borrower is not in
default in any material respect of its obligations under any Acquisition
Agreement and, to the best of such Borrower's knowledge, the Sellers party
thereto are not in default in any material respect of any of their obligations
thereunder. The representations and warranties of such Borrower set forth in
each Acquisition Agreement are true and correct in all material respect as of
the date hereof with the same force and effect as though made on and as of the
date hereof. To the best of such Borrower's knowledge all of the representations
and warranties of the Sellers set forth in each Acquisition Agreement are true
and correct in all material respects as of the date hereof with the same force
and effect as though made on and as of the date hereof.
7.16. DISCLOSURE. Neither this Agreement nor any other Credit Document
to be furnished to the Lenders by or on behalf of any Obligor in connection with
the transactions contemplated hereby or by such Credit Document contains any
untrue statement of material fact or omits to state a material fact necessary in
order to make the statements contained herein or therein not misleading in light
of the circumstances under which they were made. No fact is actually known to
any Obligor which has resulted, or in the future (so far as any Obligor can
reasonably foresee) will result, or creates a material risk of resulting, in any
Material Adverse Change, except to the extent that present or future general
economic conditions may result in a Material Adverse Change.
8. Defaults.
8.1. EVENTS OF DEFAULT. The following events are referred to as "EVENTS
OF DEFAULT":
8.1.1. PAYMENT. Any Borrower shall fail to make any payment in
respect of: (a) interest or any fee on or in respect of any of the
Credit Obligations owed by it as the same shall become due and payable,
and such failure shall continue for a period of three Banking Days, (b)
any Credit Obligation with respect to payments made by any Letter of
Credit Issuer under any Letter of Credit or any draft drawn thereunder
within three Banking Days after demand therefor by such Letter of
Credit Issuer, or (c) principal of any of the Credit Obligations owed
by it as the same shall become due, whether at maturity or by
acceleration or otherwise.
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8.1.2. SPECIFIED COVENANTS. Any Obligor shall fail to perform
or observe any of the provisions of Section 6.4.5 or Sections 6.5
through and including 6.16.
8.1.3. OTHER COVENANTS. Any Obligor shall fail to perform or
observe any other covenant, agreement or provision to be performed or
observed by it under this Agreement or any other Credit Document, and
such failure shall not be rectified or cured to the written
satisfaction of the Required Lenders within 30 days after notice
thereof by the Agent to the Borrowers or (b) knowledge thereof by the
Chief Executive Officer of Chief Financial Officer of the Company.
8.1.4. REPRESENTATIONS AND WARRANTIES. Any representation or
warranty of or with respect to any Obligor made to the Lenders or the
Agent in, pursuant to or in connection with this Agreement or any other
Credit Document shall be materially false on the date as of which it
was made.
8.1.5. CROSS DEFAULT. Any Obligor shall fail to make any
payment when due (after giving effect to any applicable grace periods)
in respect of any Indebtedness or of any Capitalized Lease (other than
the Credit Obligations) outstanding in an aggregate amount of principal
(whether or not due) of $250,000 or more or shall fail to perform or
observe any material terms evidencing or securing any such Indebtedness
or Capitalized Lease, the result of which failure is to permit the
holder of such Indebtedness or Capitalized Lease to cause such
Indebtedness or Capitalized Lease to become due before its stated
maturity.
8.1.6. ENFORCEABILITY, ETC. Any Credit Document or any
Material Agreement shall cease for any reason (other than the scheduled
termination thereof in accordance with its terms) to be enforceable in
accordance with its terms or in full force and effect; or any Obligor
in respect of any Credit Document or any Material Agreement shall so
assert in a judicial or similar proceeding; or the security interests
created by this Agreement or any other Credit Documents shall cease to
be enforceable and of the same effect and priority purported to be
created hereby.
8.1.7. MEDICAID, ETC. Any of the Borrowers receives notice of
exclusion from eligibility from Medicaid or any of the Borrowers or
their officers, employees or agents engage in activities which are
prohibited by any of the federal Medicare and Medicaid Anti-Kickback
Statute, 42 U.S.C. ss. 1320a-7b, the Ethics in Patient Referrals Act
(the "Xxxxx Law") 42 U.S.C. ss. 1395 nn, as amended, the regulations
promulgated thereunder, or related state or local statutes or
regulations or which are prohibited by rules of professional conduct
except where the failure to so comply could not result in a Material
Adverse Effect.
8.1.8. CHANGE OF CONTROL. There shall be a change of control
in the Company which may consist of either (a) a change within any six
month period in the persons holding three or more of the following
offices of the Company: President, Chief Operating Officer, Chief
Financial Officer, General Counsel, or Vice President of Business
Development; or (b) Xx. Xxxxx X. Xxxxx (i) ceasing at any time to serve
as Chief Executive Officer of the Company or (ii) becoming physically
or mentally disabled for six months or more (which may consist of more
than one period of disability) such that he is unable to perform his
normal administrative duties as President and Chief Executive Officer
of the Company.
8.1.9. JUDGMENTS. A final judgment (a) which, with other
outstanding final judgments against the Obligors, exceeds an aggregate
of $500,000 in excess of applicable insurance coverage
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shall be rendered against any Obligor, or (b) which grants injunctive
relief that results, or creates a material risk of resulting, in a
Material Adverse Change and in either case if, (i) within 60 days after
entry thereof, such judgment shall not have been discharged or
execution thereof stayed pending appeal or (ii) within 60 days after
the expiration of any such stay, such judgment shall not have been
discharged.
8.1.10. ERISA. Any "reportable event" (as defined in section
4043 of ERISA) shall have occurred that reasonably could be expected to
result in termination of a Material Plan or the appointment by the
appropriate United States District Court of a trustee to administer any
Material Plan or the imposition of a Lien in favor of a Material Plan;
or any ERISA Group Person shall fail to pay when due amounts
aggregating in excess of $500,000 which it shall have become liable to
pay to the PBGC or to a Material Plan under Title IV of ERISA; or
notice of intent to terminate a Material Plan shall be filed under
Title IV of ERISA by any ERISA Group Person or administrator; or the
PBGC shall institute proceedings under Title IV of ERISA to terminate
or to cause a trustee to be appointed to administer any Material Plan
or a proceeding shall be instituted by a fiduciary of any Material Plan
against any ERISA Group Person to enforce section 515 or 4219(c)(5) of
ERISA and such proceeding shall not have been dismissed within 30 days
thereafter; or a condition shall exist by reason of which the PBGC
would be entitled to obtain a decree adjudicating that any Material
Plan must be terminated.
8.1.11. BANKRUPTCY, ETC. Any Obligor shall:
(a) commence a voluntary case under the Bankruptcy Code or
authorize, by appropriate proceedings of its board of directors or
other governing body, the commencement of such a voluntary case;
(b) (i) have filed against it a petition commencing an
involuntary case under the Bankruptcy Code that shall not have been
dismissed within 60 days after the date on which such petition is
filed, or (ii) file an answer or other pleading within such 60-day
period admitting or failing to deny the material allegations of such a
petition or seeking, consenting to or acquiescing in the relief therein
provided, or (iii) have entered against it an order for relief in any
involuntary case commenced under the Bankruptcy Code;
(c) seek relief as a debtor under any applicable law, other
than the Bankruptcy Code, of any jurisdiction relating to the
liquidation or reorganization of debtors or to the modification or
alteration of the rights of creditors, or consent to or acquiesce in
such relief;
(d) have entered against it an order by a court of competent
jurisdiction (i) finding it to be bankrupt or insolvent, (ii) ordering
or approving its liquidation or reorganization as a debtor or any
modification or alteration of the rights of its creditors or (iii)
assuming custody of, or appointing a receiver or other custodian for,
all or a substantial portion of its property; or
(e) make an assignment for the benefit of, or enter into a
composition with, its creditors, or appoint, or consent to the
appointment of, or suffer to exist a receiver or other custodian for,
all or a substantial portion of its property.
8.2. CERTAIN ACTIONS FOLLOWING AN EVENT OF DEFAULT. If any one or more
Events of Default shall occur and be continuing, then in each and every such
case:
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8.2.1. TERMINATE OBLIGATION TO EXTEND CREDIT. The Agent on
behalf of the Lenders may (and upon written request of the Lenders
holding at least one-third of the Percentage Interests the Agent shall)
terminate the obligations of the Lenders to make any further extensions
of credit under the Credit Documents by furnishing notice of such
termination to the Borrowers.
8.2.2. SPECIFIC PERFORMANCE; EXERCISE OF RIGHTS. The Agent on
behalf of the Lenders may (and upon written request of the Lenders
holding at least one-third of the Percentage Interests the Agent shall)
proceed to protect and enforce the Lenders' rights by suit in equity,
action at law and/or other appropriate proceeding, either for specific
performance of any covenant or condition contained in this Agreement or
any other Credit Document or in any instrument or assignment delivered
to the Lenders pursuant to this Agreement or any other Credit Document,
or in aid of the exercise of any power granted in this Agreement or any
other Credit Document or any such instrument or assignment.
8.2.3. ACCELERATION. The Agent on behalf of the Lenders may
(and upon written request of the Lenders holding at least one-third of
the Percentage Interests the Agent shall) by notice in writing to the
Borrowers declare all or any part of the unpaid balance of the Credit
Obligations then outstanding to be immediately due and payable, require
the Borrower immediately to deposit with the Agent in cash an amount
equal to the then Letter of Credit Exposure (which cash shall be held
and applied as provided in Section 4.2), and thereupon such unpaid
balance or part thereof and such amount equal to the Letter of Credit
Exposure shall become so due and payable without presentation, protest
or further demand or notice of any kind, all of which are hereby
expressly waived; PROVIDED, HOWEVER, that if a Bankruptcy Default shall
have occurred, the unpaid balance of the Credit Obligations shall
automatically become immediately due and payable.
8.2.4. ENFORCEMENT OF PAYMENT. The Agent on behalf of the
Lenders may (and upon written request of the Lenders holding at least
one-third of the Percentage Interests the Agent shall) proceed to
enforce payment of the Credit Obligations in such manner as it may
elect to cancel, or instruct other Letter of Credit Issuers to cancel,
any outstanding Letters of Credit which permit the cancellation
thereof. The Lenders may offset and apply toward the payment of the
Credit Obligations (and/or toward the curing of any Event of Default)
any Indebtedness from the Lenders to the respective Obligors, including
any Indebtedness represented by deposits in any account maintained with
the Lenders, regardless of the adequacy of any security for the Credit
Obligations. The Lenders shall have no duty to determine the adequacy
of any such security in connection with any such offset.
8.2.5. CUMULATIVE REMEDIES. To the extent not prohibited by
applicable law which cannot be waived, all of the Lenders' rights
hereunder and under each other Credit Document shall be cumulative.
8.3. ANNULMENT OF DEFAULTS. Any Default or Event of Default shall be
deemed not to exist or to have occurred for any purpose of the Credit Documents
if the Required Lenders or the Agent (with the consent of the Required Lenders)
shall have waived such Default or Event of Default in writing, stated in writing
that the same has been cured to such Lenders' reasonable satisfaction or entered
into an amendment to this Agreement which by its express terms cures such Event
of Default, at which time such Event of Default shall no longer be deemed to
exist or to have continued. No such action by the Lenders or the Agent shall
extend to or affect any subsequent Event of Default or impair any rights of the
Lenders upon the
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occurrence thereof. The making of any extension of credit during the existence
of any Default or Event of Default shall not constitute a waiver thereof.
8.4. WAIVERS. To the extent that such waiver is not prohibited by the
provisions of applicable law that cannot be waived, each of the Obligors waives:
(a) all presentments, demands for performance, notices of
nonperformance (except to the extent required by this Agreement or any
other Credit Document), protests, notices of protest and notices of
dishonor;
(b) any requirement of diligence or promptness on the part of
any Lender in the enforcement of its rights under this Agreement, the
Revolving Notes, the Mortgage, the Mortgage Note or any other Credit
Document;
(c) any and all notices of every kind and description which
may be required to be given by any statute or rule of law; and
(d) any defense (other than indefeasible payment in full)
which it may now or hereafter have with respect to its liability under
this Agreement, the Revolving Notes, the Mortgage, the Mortgage Note or
any other Credit Document or with respect to the Credit Obligations.
9. GUARANTEES.
9.1. GUARANTEES OF CREDIT OBLIGATIONS. Each Guarantor unconditionally
jointly and severally guarantees that the Credit Obligations will be performed
and will be paid in full in immediately available funds when due and payable,
whether at the stated or accelerated maturity thereof or otherwise, this
guarantee being a guarantee of payment and not of collectability and being
absolute and in no way conditional or contingent. In the event any part of the
Credit Obligations shall not have been so paid in full when due and payable,
each Guarantor will, immediately upon notice by the Agent or, without notice,
immediately upon the occurrence of a Bankruptcy Default, pay or cause to be paid
to the Agent for the account of each Lender in accordance with the Lenders'
respective Percentage Interests the amount of such Credit Obligations which are
then due and payable and unpaid. The obligations of each Guarantor hereunder
shall not be affected by the invalidity, unenforceability or irrecoverability of
any of the Credit Obligations as against any other Obligor, any other guarantor
thereof or any other Person. For purposes hereof, the Credit Obligations shall
be due and payable when and as the same shall be due and payable under the terms
of this Agreement or any other Credit Document notwithstanding the fact that the
collection or enforcement thereof may be stayed or enjoined under the Bankruptcy
Code or other applicable law.
9.2. CONTINUING OBLIGATION. Each Guarantor acknowledges that the
Lenders and the Agent have entered into this Agreement (and, to the extent that
the Lenders or the Agent may enter into any future Credit Document, will have
entered into such agreement) in reliance on this Section 9 being a continuing
irrevocable agreement, and such Guarantor agrees that its guarantee may not be
revoked in whole or in part. The obligations of the Guarantors hereunder shall
terminate when the commitment of the Lenders to extend credit under this
Agreement shall have terminated and all of the Credit Obligations have been
indefeasibly paid in full in immediately available funds and discharged;
PROVIDED, HOWEVER, that:
(a) if a claim is made upon the Lenders at any time for
repayment or recovery of any amounts or any property received by the
Lenders from any source on account of any of the Credit
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Obligations and the Lenders repay or return any amounts or property so
received (including interest thereon to the extent required to be paid
by the Lenders) or
(b) if the Lenders become liable for any part of such claim by
reason of (i) any judgment or order of any court or administrative
authority having competent jurisdiction, or (ii) any settlement or
compromise of any such claim,
then the Guarantors shall remain liable under this Agreement for the amounts so
repaid or property so returned or the amounts for which the Lenders become
liable (such amounts being deemed part of the Credit Obligations) to the same
extent as if such amounts or property had never been received by the Lenders,
notwithstanding any termination hereof or the cancellation of any instrument or
agreement evidencing any of the Credit Obligations. Not later than five days
after receipt of notice from the Agent, the Guarantors shall jointly and
severally pay to the Agent an amount equal to the amount of such repayment or
return for which the Lenders have so become liable. Payments hereunder by a
Guarantor may be required by the Agent on any number of occasions.
9.3. WAIVERS WITH RESPECT TO CREDIT OBLIGATIONS. Except to the extent
expressly required by this Agreement or any other Credit Document, each
Guarantor waives, to the fullest extent permitted by the provisions of
applicable law, all of the following (including all defenses, counterclaims and
other rights of any nature based upon any of the following):
(a) presentment, demand for payment and protest of nonpayment
of any of the Credit Obligations, and notice of protest, dishonor or
nonperformance;
(b) notice of acceptance of this guarantee and notice that
credit has been extended in reliance on the Guarantor's guarantee of
the Credit Obligations;
(c) notice of any Default or of any inability to enforce
performance of the obligations of the Company or any other Person with
respect to any Credit Document, or notice of any acceleration of
maturity of any Credit Obligations;
(d) demand for performance or observance of, and any
enforcement of any provision of, the Credit Obligations, this Agreement
or any other Credit Document or any pursuit or exhaustion of rights or
remedies with respect to any Credit Security or against the Company or
any other Person in respect of the Credit Obligations or any
requirement of diligence or promptness on the part of the Agent or the
Lenders in connection with any of the foregoing;
(e) any act or omission on the part of the Agent or the
Lenders which may impair or prejudice the rights of the Guarantor,
including rights to obtain subrogation, exoneration, contribution,
indemnification or any other reimbursement from the Company or any
other Person, or otherwise operate as a deemed release or discharge;
(f) failure or delay to perfect or continue the perfection of
any security interest in any Credit Security or any other action which
xxxxx or impairs the value of, or any failure to preserve or protect
the value of, any Credit Security;
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(g) any statute of limitations or any statute or rule of law
which provides that the obligation of a surety must be neither larger
in amount nor in other respects more burdensome than the obligation of
the principal;
(h) any "single action" or "anti-deficiency" law which would
otherwise prevent the Lenders from bringing any action, including any
claim for a deficiency, against the Guarantor before or after the
Agent's or the Lenders' commencement or completion of any foreclosure
action, whether judicially, by exercise of power of sale or otherwise,
or any other law which would otherwise require any election of remedies
by the Agent or the Lenders;
(i) all demands and notices of every kind with respect to the
foregoing; and
(j) to the extent not referred to above, all defenses (other
than payment) which the Company may now or hereafter have to the
payment of the Credit Obligations, together with all suretyship
defenses, which could otherwise be asserted by such Guarantor.
Each Guarantor represents that it has obtained the advice of counsel as to the
extent to which suretyship and other defenses may be available to it with
respect to its obligations hereunder in the absence of the waivers contained in
this Section 9.3.
No delay or omission on the part of the Agent or the Lenders in
exercising any right under this Agreement or any other Credit Document or under
any guarantee of the Credit Obligations or with respect to the Credit Security
shall operate as a waiver or relinquishment of such right. No action which the
Agent or the Lenders or the Company may take or refrain from taking with respect
to the Credit Obligations, including any amendments thereto or modifications
thereof or waivers with respect thereto, shall affect the provisions of this
Agreement or the obligations of the Guarantor hereunder. None of the Lenders' or
the Agent's rights shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of any Obligor, or by any noncompliance by the
Company with the terms, provisions and covenants of this Agreement, regardless
of any knowledge thereof which the Agent or the Lenders may have or otherwise be
charged with.
9.4. LENDERS' POWER TO WAIVE, ETC. Each Guarantor grants to the Lenders
full power in their discretion, without notice to or consent of such Guarantor,
such notice and consent being expressly waived to the fullest extent permitted
by applicable law, and without in any way affecting the liability of the
Guarantor under its guarantee hereunder:
(a) To waive compliance with, and any Default under, and to
consent to any amendment to or modification or termination of any terms
or provisions of, or to give any waiver in respect of, this Agreement,
any other Credit Document, the Credit Security, the Credit Obligations
or any guarantee thereof (each as from time to time in effect);
(b) To grant any extensions of the Credit Obligations (for any
duration), and any other indulgence with respect thereto, and to effect
any total or partial release (by operation of law or otherwise),
discharge, compromise or settlement with respect to the obligations of
the Obligors or any other Person in respect of the Credit Obligations,
whether or not rights against the Guarantor under this Agreement are
reserved in connection therewith;
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(c) To take security in any form for the Credit Obligations,
and to consent to the addition to or the substitution, exchange,
release or other disposition of, or to deal in any other manner with,
any part of any property contained in the Credit Security whether or
not the property, if any, received upon the exercise of such power
shall be of a character or value the same as or different from the
character or value of any property disposed of, and to obtain, modify
or release any present or future guarantees of the Credit Obligations
and to proceed against any of the Credit Security or such guarantees in
any order;
(d) To collect or liquidate or realize upon any of the Credit
Obligations or the Credit Security in any manner or to refrain from
collecting or liquidating or realizing upon any of the Credit
Obligations or the Credit Security; and
(e) To extend credit under this Agreement, any other Credit
Document or otherwise in such amount as the Lenders may determine,
including increasing the amount of credit and the interest rate and
fees with respect thereto, even though the condition of the Obligors
(financial or otherwise on an individual or Consolidated basis) may
have deteriorated since the date hereof.
9.5. INFORMATION REGARDING THE BORROWERS, ETC. Each Guarantor has made
such investigation as it deems desirable of the risks undertaken by it in
entering into this Agreement and is fully satisfied that it understands all such
risks. Each Guarantor waives any obligation which may now or hereafter exist on
the part of the Agent or the Lenders to inform it of the risks being undertaken
by entering into this Agreement or of any changes in such risks and, from and
after the date hereof, each Guarantor undertakes to keep itself informed of such
risks and any changes therein. Each Guarantor expressly waives any duty which
may now or hereafter exist on the part of the Agent or the Lenders to disclose
to the Guarantor any matter related to the business, operations, character,
collateral, credit, condition (financial or otherwise), income or prospects of
the Borrowers or their respective Affiliates or their properties or management,
whether now or hereafter known by the Agent or the Lenders. Each Guarantor
represents, warrants and agrees that it assumes sole responsibility for
obtaining from the Borrowers all information concerning this Agreement and all
other Credit Documents and all other information as to the Borrowers and their
respective Affiliates or their properties or management as such Guarantor deems
necessary or desirable.
9.6. CERTAIN GUARANTOR REPRESENTATIONS. Each Guarantor represents that:
(a) it is in its best interest and in pursuit of the purposes
for which it was organized as an integral part of the business
conducted and proposed to be conducted by the Borrowers and their
respective Subsidiaries, and reasonably necessary and convenient in
connection with the conduct of the business conducted and proposed to
be conducted by them, to induce the Lenders to enter into this
Agreement and to extend credit to the Borrowers by making the
Guarantees contemplated by this Section 9,
(b) the credit available hereunder will directly or indirectly
inure to its benefit,
(c) by virtue of the foregoing it is receiving at least
reasonably equivalent value from the Lenders for its Guarantee,
(d) it will not be rendered insolvent as a result of entering
into this Agreement,
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(e) after giving effect to the transactions contemplated by
this Agreement, it will have assets having a fair saleable value in
excess of the amount required to pay its probable liability on its
existing debts as they become absolute and matured,
(f) it has, and will have, access to adequate capital for the
conduct of its business,
(g) it has the ability to pay its debts from time to time
incurred in connection with its business as such debts mature, and
(h) it has been advised by the Agent that the Lenders are
unwilling to enter into this Agreement unless the Guarantees
contemplated by this Section 9 are given by it.
9.7. SUBROGATION. Each Guarantor agrees that, until the Credit
Obligations are paid in full, it will not exercise any right of reimbursement,
subrogation, contribution, offset or other claims against the other Obligors
arising by contract or operation of law in connection with any payment made or
required to be made by such Guarantor under this Agreement. After the payment in
full of the Credit Obligations, each Guarantor shall be entitled to exercise
against the Borrowers and the other Obligors all such rights of reimbursement,
subrogation, contribution and offset, and all such other claims, to the fullest
extent permitted by law.
9.8. SUBORDINATION. Each Guarantor covenants and agrees that, after the
occurrence of an Event of Default, all Indebtedness, claims and liabilities then
or thereafter owing by the Borrowers or any other Obligor to such Guarantor
whether arising hereunder or otherwise are subordinated to the prior payment in
full of the Credit Obligations and are so subordinated as a claim against such
Obligor or any of its assets, whether such claim be in the ordinary course of
business or in the event of voluntary or involuntary liquidation, dissolution,
insolvency or bankruptcy, so that no payment with respect to any such
Indebtedness, claim or liability will be made or received while any Event of
Default exists.
9.9. FUTURE SUBSIDIARIES; FURTHER ASSURANCES. Each Borrower will from
time to time cause (a) any present Wholly Owned Subsidiary that is not a
Guarantor within 30 days after notice from the Agent or (b) any future Wholly
Owned Subsidiary within 30 days after any such Person becomes a Wholly Owned
Subsidiary, to join this Agreement as a Borrower and a Guarantor pursuant to a
joinder agreement in the form attached hereto as Exhibit 5.3.2. Each Guarantor
will, promptly upon the request of the Agent from time to time, execute,
acknowledge and deliver, and file and record, all such instruments, and take all
such action, as the Agent deems necessary or advisable to carry out the intent
and purposes of this Section 9.
10. EXPENSES; INDEMNITY.
10.1. EXPENSES. Whether or not the transactions contemplated hereby
shall be consummated, the Company will pay:
(a) all reasonable expenses of the Agent (including the
out-of-pocket expenses related to forming the group of Lenders and
reasonable fees and disbursements of the counsel to the Agent) in
connection with the preparation and duplication of this Agreement, each
other Credit Document, the transactions contemplated hereby and thereby
and amendments, waivers, consents and other operations hereunder and
thereunder;
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(b) all recording and filing fees and transfer and documentary
stamp and similar taxes at any time payable in respect of this
Agreement, any other Credit Document, or the incurrence of the Credit
Obligations; and
(c) to the extent not prohibited by applicable law that cannot
be waived, after the occurrence and during the continuance of any
Default or Event of Default, all other reasonable expenses incurred by
the Lenders or the holder of any Credit Obligation in connection with
the enforcement of any rights hereunder or under any other Credit
Document, including costs of collection and reasonable attorneys' fees
(including a reasonable allowance for the hourly cost of attorneys
employed by the Lenders on a salaried basis) and expenses.
10.2. GENERAL INDEMNITY. The Borrowers shall indemnify the Lenders and
the Agent and hold them harmless from any liability, loss or damage resulting
from the violation by the Company of Section 2.3. In addition, the Borrowers
shall indemnify each Lender, the Agent, each of the Lenders' or the Agent's
directors, officers and employees, and each Person, if any, who controls any
Lender or the Agent (each Lender, the Agent and each of such directors,
officers, employees and control Persons is referred to as an "INDEMNIFIED
PARTY") and hold each of them harmless from and against any and all claims,
damages, liabilities and reasonable expenses (including reasonable fees and
disbursements of counsel with whom any Indemnified Party may consult in
connection therewith and all reasonable expenses of litigation or preparation
therefor) which any Indemnified Party may incur or which may be asserted against
any Indemnified Party in connection with (a) the Indemnified Party's compliance
with or contest of any subpoena or other process issued against it in any
proceeding involving any of the Obligors or their Affiliates, (b) any litigation
or investigation involving the Obligors or their Affiliates, or any officer,
director or employee thereof, or (c) this Agreement, any other Credit Document
or any transaction contemplated hereby or thereby; PROVIDED, HOWEVER, that the
foregoing indemnity shall not apply to litigation commenced by any Borrower or
Obligor against the Lenders or the Agent which seeks enforcement of any of the
rights of such Borrower or Obligor hereunder or under any other Credit Document
and is determined adversely to the Lenders or the Agent in a final nonappealable
judgment or to the extent such claims, damages, liabilities and expenses result
from a Lender's or the Agent's gross negligence or willful misconduct.
10.3. INDEMNITY WITH RESPECT TO LETTERS OF CREDIT. The Borrower shall
indemnify each Letter of Credit Issuer and its correspondents and hold each of
them harmless from and against any and all claims, losses, liabilities, damages
and reasonable expenses (including reasonable attorneys' fees) arising from or
in connection with any Letter of Credit, including any such claim, loss,
liability, damage or expense arising out of any transfer, sale, delivery,
surrender or endorsement of any invoice, xxxx of lading, warehouse receipt or
other document at any time held by the Agent, such Letter of Credit Issuer or
held for their respective accounts by any of their correspondents, in connection
with any Letter of Credit, except to the extent such claims, losses,
liabilities, damages and expenses result from gross negligence or willful
misconduct on the part of the Agent or any other Letter of Credit Issuer.
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11. OPERATIONS; AGENT.
11.1. INTERESTS IN CREDITS. The percentage interest of each Lender in
the Revolving Loan, the Letter of Credit Exposure and Mortgage Loan, and the
related Commitments, shall be computed based on the maximum principal amount for
each Lender as follows:
Percentage
Interest of
Maximum Principal Revolving Loan Percentage
Amount of Revolving and Letter of Principal of Interest of Mortage
Loan Credit Exposure Mortgage Loan Loan
------------------- --------------- ------------- -------------------
Fleet National Bank $37,500,000 50.00% $3,000,000 100%
Sun Trust $32,000,000 43.33% $0 0%
UBS AG, Stamford Branch $5,000,000 6.67% $0 0%
----------- ----- ---------- ---
Total $75,000,000 100% $3,000,000 100%
=========== ===== ========== ===
The foregoing percentage interests, as from time to time in effect and reflected
in the Register, are referred to as the "PERCENTAGE INTERESTS" with respect to
all or any portion of the Loans, and the related Commitments.
11.2. AGENT'S AUTHORITY TO ACT, ETC. Each of the Lenders appoints and
authorizes the Agent to act for the Lenders as the Lenders' Agent in connection
with the transactions contemplated by this Agreement and the other Credit
Documents on the terms set forth herein. In acting hereunder, the Agent is
acting for the account of the Agent to the extent of its Percentage Interest in
each Loan and for the account of each other Lender to the extent of the Lenders'
respective Percentage Interests, and all action in connection with the
enforcement of, or the exercise of any remedies (other than the Lenders' rights
of set-off as provided in Section 8.2.4 or in any Credit Document) in respect of
the Credit Obligations and Credit Documents shall be taken by the Agent.
11.3. BORROWERS TO PAY AGENT, ETC. Each Obligor shall be fully
protected in making all payments in respect of the Credit Obligations to the
Agent, in relying upon consents, modifications and amendments executed by the
Agent purportedly on the Lenders' behalf, and in dealing with the Agent as
herein provided. The Agent may charge the accounts of the Borrowers, on the
dates when the amounts thereof become due and payable, with the amounts of the
principal of and interest on the Revolving Loan, any amounts paid by the Letter
of Credit Issuers to third parties under Letters of Credit or drafts presented
thereunder, principal and interest on the Mortgage Loan, commitment fees and all
other fees and amounts owing under any Credit Document.
11.4. LENDER OPERATIONS FOR ADVANCES.
11.4.1. ADVANCES. On each Closing Date, each Lender shall
advance to the Agent in immediately available funds such Lender's
Percentage Interest in the portion of the Revolving Loan advanced on
such Closing Date prior to 2:00 p.m. (Boston time). If such funds are
not received at such time, but all applicable conditions set forth in
Section 5 have been satisfied, each Lender authorizes and requests the
Agent to advance for the Lender's account, pursuant to the terms
hereof, the Lender's respective Percentage Interest in such portion of
the Revolving Loan and agrees to reimburse the Agent in immediately
available funds for the amount thereof prior to 3:00 p.m. (Boston time)
on the day any portion of the Revolving Loan is advanced hereunder;
PROVIDED, HOWEVER, that the Agent is not authorized to make any such
advance for the account of any Lender who has previously notified the
Agent in writing that such Lender will not be performing its
obligations to make further advances hereunder; and PROVIDED, FURTHER,
that the Agent shall be under no obligation to make any such advance.
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11.4.2. LETTERS OF CREDIT. Each of the Lenders authorizes and
requests each Letter of Credit Issuer to issue the Letters of Credit
provided for in Section 2.2 and to grant each Lender a participation in
each of such Letters of Credit in an amount equal to its Percentage
Interest in the amount of each such Letter of Credit. Promptly upon the
request of the Letter of Credit Issuer, each Lender shall reimburse the
Letter of Credit Issuer in immediately available funds for such
Lender's Percentage Interest in the amount of all obligations to third
parties incurred by the Letter of Credit Issuer in respect of each
Letter of Credit and each draft accepted under a Letter of Credit to
the extent not reimbursed by the Borrower by 2:00 p.m. (Boston time) on
the Banking Day when due. The Letter of Credit Issuer will notify each
Lender of the issuance of any Letter of Credit, the amount and date of
payment of any draft drawn or accepted under a Letter of Credit and
whether in connection with the payment of any such draft the amount
thereof was added to the Revolving Loan or was reimbursed by the
Borrower.
11.4.3. AGENT TO ALLOCATE PAYMENTS, ETC. All payments of
principal and interest in respect of the extensions of credit made
pursuant to this Agreement, reimbursement of amounts paid by any Letter
of Credit Issuer to third parties under Letters of Credit or drafts
presented thereunder, commitment fees, Letter of Credit fees and other
fees under this Agreement shall, as a matter of convenience, be made by
the Borrowers and the Guarantors to the Agent in immediately available
funds. The share of each Lender shall be credited to such Lender by the
Agent in immediately available funds in such manner that the principal
amount of the Credit Obligations to be paid shall be paid
proportionately in accordance with the Lenders' respective Percentage
Interests in such Credit Obligations, except as otherwise provided in
this Agreement. Under no circumstances shall any Lender be required to
produce or present its Revolving Notes as evidence of its interests in
the Credit Obligations in any action or proceeding relating to the
Credit Obligations.
11.4.4. DELINQUENT LENDERS; NONPERFORMING LENDERS. In the
event that any Lender fails to reimburse the Agent pursuant to Section
11.4.1 for the Percentage Interest of such Lender (a "DELINQUENT
LENDER") in any credit advanced by the Agent pursuant hereto, overdue
amounts (the "DELINQUENT PAYMENT") due from the Delinquent Lender to
the Agent shall bear interest, payable by the Delinquent Lender on
demand, at a per annum rate equal to (a) the Federal Funds Rate for the
first three days overdue and (b) the sum of 2% PLUS the Federal Funds
Rate for any longer period. Such interest shall be payable to the Agent
for its own account for the period commencing on the date of the
Delinquent Payment and ending on the date the Delinquent Lender
reimburses the Agent on account of the Delinquent Payment (to the
extent not paid by the Company as provided below) and the accrued
interest thereon (the "DELINQUENCY PERIOD"), whether pursuant to the
assignments referred to below or otherwise. Upon notice by the Agent,
the Borrowers will pay to the Agent the principal (but not the
interest) portion of the Delinquent Payment. During the Delinquency
Period, in order to make reimbursements for the Delinquent Payment and
accrued interest thereon, the Delinquent Lender shall be deemed to have
assigned to the Agent all interest, commitment fees and other payments
made by the Borrowers under Section 3 that would have thereafter
otherwise been payable under the Credit Documents to the Delinquent
Lender. During any other period in which any Lender is not performing
its obligations to extend credit under Section 2 (a "NONPERFORMING
LENDER"), the Nonperforming Lender shall be deemed to have assigned to
each Lender that is not a Nonperforming Lender (a "PERFORMING LENDER")
all principal and other payments made by the Borrowers under Section 4
that would have thereafter otherwise been payable under the Credit
Documents to the Non performing Lender. The Agent shall credit a
portion of such payments to each Performing Lender in an amount equal
to the Percentage Interest of such Performing Lender in an
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amount equal to the Percentage Interest of such Performing Lender
divided by one MINUS the Percentage Interest of the Nonperforming
Lender until the respective portions of the Revolving Loan owed to all
the Lenders are the same as the Percentage Interests of the Lenders
immediately prior to the failure of the Nonperforming Lender to perform
its obligations under Section 2. The foregoing provisions shall be in
addition to any other remedies the Agent, the Performing Lenders or the
Borrowers may have under law or equity against the Delinquent Lender as
a result of the Delinquent Payment or against the Nonperforming Lender
as a result of its failure to perform its obligations under Section 2.
11.5. SHARING OF PAYMENTS, ETC. Each Lender agrees that (a) if by
exercising any right of set-off or counterclaim or otherwise, it shall receive
payment of (i) a proportion of the aggregate amount due with respect to its
Percentage Interest in the Revolving Loan and Letter of Credit Exposure which is
greater than (ii) the proportion received by any other Lender in respect of the
aggregate amount due with respect to such other Lender's Percentage Interest in
the Revolving Loan and Letter of Credit Exposure and (b) if such inequality
shall continue for more than 10 days, the Lender receiving such proportionately
greater payment shall purchase participations in the Percentage Interests in the
Revolving Loan and Letter of Credit Exposure held by the other Lenders, and such
other adjustments shall be made from time to time (including rescission of such
purchases of participations in the event the unequal payment originally received
is recovered from such Lender through bankruptcy proceedings or otherwise), as
may be required so that all such payments of principal and interest with respect
to the Revolving Loan and Letter of Credit Exposure held by the Lenders shall be
shared by the Lenders pro rata in accordance with their respective Percentage
Interests in the Revolving Loan; PROVIDED, HOWEVER, that this Section 11.5 shall
not impair the right of any Lender to exercise any right of set-off or
counterclaim it may have and to apply the amount subject to such exercise to the
payment of Indebtedness of any Obligor other than such Obligor's Indebtedness
with respect to the Revolving Loan and Letter of Credit Exposure. Each Lender
that grants a participation in the Credit Obligations to a Credit Participant
shall require as a condition to the granting of such participation that such
Credit Participant agree to share payments received in respect of the Credit
Obligations as provided in this Section 11.5. The provisions of this Section
11.5 are for the sole and exclusive benefit of the Lenders and no failure of any
Lender to comply with the terms hereof shall be available to any Obligor as a
defense to the payment of the Credit Obligations.
11.6. AMENDMENTS, CONSENTS, WAIVERS, ETC. Except as otherwise set forth
herein, the Agent may (and upon the written request of the Required Lenders the
Agent shall) take or refrain from taking any action under this Agreement or any
other Credit Document, including giving its written consent to any modification
of or amendment to and waiving in writing compliance with any covenant or
condition in this Agreement or any other Credit Document or any Default or Event
of Default, all of which actions shall be binding upon all of the Lenders;
PROVIDED, HOWEVER, that:
(a) Without the written consent of Lenders owning at least two
thirds of the Percentage Interests (other than Delinquent Lenders
during the existence of a Delinquency Period so long as such Delinquent
Lender is treated the same as the other Lenders with respect to any
actions enumerated below), no written modification of, amendment to,
consent with respect to, waiver of compliance with or waiver of a
Default under any of the Credit Documents, or under Sections 6.5
through 6.16, the related defined terms or this Section 11.6 shall be
made.
(b) Without the written consent of such Lenders as own 100% of
the Percentage Interests in the Revolving Loan (other than Delinquent
Lenders during the existence of a Delinquency Period
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so long as such Delinquent Lender is treated the same as the other
Lenders with respect to any actions enumerated below):
(c) Without the written consent of a Letter of Credit Issuer,
no amendment of modification of any Credit Document shall affect the
rights or duties of such Letter of Credit Issuer under the Credit
Documents.
11.7. AGENT'S RESIGNATION. The Agent may resign at any time by giving
at least 60 days' prior written notice of its intention to do so to each other
of the Lenders and the Borrowers. In such event, SunTrust Bank shall be
appointed successor Agent and shall accept such appointment within 45 days after
the retiring Agent's giving of such notice of resignation. In connection with
the appointment of a successor Agent, the Borrower's shall deliver to the Agent
a processing and recordation fee of $3,000. Upon the appointment of a new Agent
hereunder, the term "Agent" shall for all purposes of this Agreement thereafter
mean such successor. After any retiring Agent's resignation hereunder as Agent,
the provisions of this Agreement shall continue to inure to the benefit of such
Agent as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement.
11.8. CONCERNING THE AGENT.
11.8.1. ACTION IN GOOD FAITH, ETC. The Agent and its officers,
directors, employees and agents shall be under no liability to any of
the Lenders or to any future holder of any interest in the Credit
Obligations for any action or failure to act taken or suffered in good
faith, and any action or failure to act in accordance with an opinion
of its counsel shall conclusively be deemed to be in good faith. The
Agent shall in all cases be entitled to rely, and shall be fully
protected in relying, on instructions given to the Agent by the
required holders of Credit Obligations as provided in this Agreement.
11.8.2. NO IMPLIED DUTIES, ETC. The Agent shall have and may
exercise such powers as are specifically delegated to the Agent under
this Agreement or any other Credit Document together with all other
powers incidental thereto. The Agent shall have no implied duties to
any Person or any obligation to take any action under this Agreement or
any other Credit Document except for action specifically provided for
in this Agreement or any other Credit Document to be taken by the
Agent. Before taking any action under this Agreement or any other
Credit Document, the Agent may request an appropriate specific
indemnity satisfactory to it from each Lender in addition to the
general indemnity provided for in Section 11.11. Until the Agent has
received such specific indemnity, the Agent shall not be obligated to
take (although it may in its sole discretion take) any such action
under this Agreement or any other Credit Document. Each Lender confirms
that the Agent does not have a fiduciary relationship to it under the
Credit Documents. Each of the Obligors party hereto confirms that
neither the Agent nor any other Lender has a fiduciary relationship to
it under the Credit Documents.
11.8.3. VALIDITY, ETC. The Agent shall not be responsible to
any Lender or any future holder of any interest in the Credit
Obligations (a) for the legality, validity, enforceability or
effectiveness of this Agreement or any other Credit Document, (b) for
any recitals, reports, representations, warranties or statements
contained in or made in connection with this Agreement or any other
Credit Document, (c) for the existence or value of any assets included
in any security for the Credit Obligations, or (d) for the
effectiveness of any Lien purported to be included in any security for
the Credit Obligations.
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11.8.4. COMPLIANCE. The Agent shall not be obligated to
ascertain or inquire as to the performance or observance of any of the
terms of this Agreement or any other Credit Document; and in connection
with any extension of credit under this Agreement or any other Credit
Document, the Agent shall be fully protected in relying on a
certificate of the Borrowers as to the fulfillment by the Borrowers of
any conditions to such extension of credit.
11.8.5. EMPLOYMENT OF AGENTS AND COUNSEL. The Agent may
execute any of its duties as Agent under this Agreement or any other
Credit Document by or through employees, agents and attorneys-in-fact
and shall not be responsible to any of the Lenders, any Borrower or any
other Obligor for the default or misconduct of any such agents or
attorneys-in-fact selected by the Agent acting in good faith. The Agent
shall be entitled to advice of counsel concerning all matters
pertaining to the agency hereby created and its duties hereunder or
under any other Credit Document.
11.8.6. RELIANCE ON DOCUMENTS AND COUNSEL. The Agent shall be
entitled to rely, and shall be fully protected in relying, upon any
affidavit, certificate, cablegram, consent, instrument, letter, notice,
order, document, statement, telecopy, telegram, telex or teletype
message or writing reasonably believed in good faith by the Agent to be
genuine and correct and to have been signed, sent or made by the Person
in question, including any telephonic or oral statement made by such
Person, and, with respect to legal matters, upon an opinion or the
advice of counsel selected by the Agent.
11.8.7. AGENT'S REIMBURSEMENT. Each of the Lenders severally
agrees to reimburse the Agent, in the amount of such Lender's
Percentage Interest, for any reasonable expenses not reimbursed by the
Borrowers or the Guarantors (without limiting the obligation of the
Borrowers or the Guarantors to make such reimbursement): (a) for which
the Agent is entitled to reimbursement by the Borrowers or the
Guarantors under this Agreement or any other Credit Document, and (b)
after the occurrence of a Default, for any other reasonable expenses
incurred by the Agent on the Lenders' behalf in connection with the
enforcement of the Lenders' rights under this Agreement or any other
Credit Document.
11.9. RIGHTS AS A LENDER. With respect to any credit extended by it
hereunder, the Agent shall have the same rights, obligations and powers
hereunder as any other Lender and may exercise such rights and powers as though
it were not the Agent, and unless the context otherwise specifies, the Agent
shall be treated in its individual capacity as though it were not the Agent
hereunder. Without limiting the generality of the foregoing, the Percentage
Interest of the Agent shall be included in any computations of Percentage
Interests. The Agent and its Affiliates may accept deposits from, lend money to,
act as trustee for and generally engage in any kind of banking or trust business
with any Borrower, any of their respective Subsidiaries or any Affiliate of any
of them and any Person who may do business with or own an equity interest in any
Borrower, any of their respective Subsidiaries or any Affiliate of any of them,
all as if the Agent were not the Agent and without any duty to account therefor
to the other Lenders.
11.10. INDEPENDENT CREDIT DECISION. Each of the Lenders acknowledges
that it has independently and without reliance upon the Agent, based on the
financial statements and other documents referred to in Section 7.2, on the
other representations and warranties contained herein and on such other
information with respect to the Obligors as such Lender deemed appropriate, made
such Lender's own credit analysis and decision to enter into this Agreement and
to make the extensions of credit provided for hereunder. Each Lender represents
to the Agent that such Lender will continue to make its own independent credit
and other
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decisions in taking or not taking action under this Agreement or any other
Credit Document. Each Lender expressly acknowledges that neither the Agent nor
any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates has made any representations or warranties to such Lender, and no act
by the Agent taken under this Agreement or any other Credit Document, including
any review of the affairs of the Obligors, shall be deemed to constitute any
representation or warranty by the Agent. Except for notices, reports and other
documents expressly required to be furnished to each Lender by the Agent under
this Agreement or any other Credit Document, the Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition, financial or
otherwise, or creditworthiness of any Obligor which may come into the possession
of the Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
11.11. INDEMNIFICATION. The holders of the Credit Obligations shall
indemnify the Agent and its officers, directors, employees and agents (to the
extent not reimbursed by the Obligors and without limiting the obligation of any
of the Obligors to do so), pro rata in accordance with their respective
Percentage Interests, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time be imposed on,
incurred by or asserted against the Agent or such Persons relating to or arising
out of this Agreement, any other Credit Document, the transactions contemplated
hereby or thereby, or any action taken or omitted by the Agent in connection
with any of the foregoing; PROVIDED, HOWEVER, that the foregoing shall not
extend to actions or omissions which are taken by the Agent with gross
negligence or willful misconduct.
12. SUCCESSORS AND ASSIGNS; LENDER ASSIGNMENTS AND PARTICIPATIONS. Any reference
in this Agreement to any of the parties hereto shall be deemed to include the
successors and assigns of such party, and all covenants and agreements by or on
behalf of the Obligors, the Guarantors, the Agent or the Lenders that are
contained in this Agreement or any other Credit Documents shall bind and inure
to the benefit of their respective successors and assigns; provided, however,
that (a) the Obligors may not assign their rights or obligations under this
Agreement except for mergers or liquidations permitted by Section 6.12, and (b)
the Lenders shall be not entitled to assign their respective Percentage
Interests in the Revolving Loan hereunder except as set forth below in this
Section 12.
12.1. ASSIGNMENTS BY LENDERS.
12.1.1. ASSIGNEES AND ASSIGNMENT PROCEDURES. Each Lender may
(a) without the consent of the Agent or the Company if the proposed
assignee is already a Lender hereunder or a Wholly Owned Subsidiary of
the same corporate parent of which the assigning Lender is a Related
Entity, or (b) otherwise with the consents of the Agent and (so long as
no Event of Default has occurred and is continuing) the Company (which
consents will not be unreasonably withheld), in compliance with
applicable laws in connection with such assignment, assign to one or
more commercial banks or other financial institutions (each, an
"ASSIGNEE") all or a portion of its interests, rights and obligations
under this Agreement and the other Credit Documents, including all or a
portion, which need not be pro rata between the Revolving Loan, the
Letter of Credit Exposure and the Mortgage Loan, of its Commitment, the
portion of the Revolving Loan, the Letter of Credit Exposure and
Mortgage Loan at the time owing to it and the Revolving Notes held by
it but excluding its rights and obligations as a Letter of Credit
Issuer; provided, however, that:
12.1.2. TERMS OF ASSIGNMENT AND ACCEPTANCE. By executing and
delivering an Assignment and Acceptance, the assigning Lender and
Assignee shall be deemed to confirm to and agree with each other and
the other parties hereto as follows:
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(a) other than the representation and warranty that it is the
legal and beneficial owner of the interest being assigned thereby free
and clear of any adverse claim, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in
connection with this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement,
any other Credit Document or any other instrument or document furnished
pursuant hereto;
(b) such assigning Lender makes no representation or warranty
and assumes no responsibility with respect to the financial condition
of the Obligors or the performance or observance by any Obligor of any
of its obligations under this Agreement, any other Credit Document or
any other instrument or document furnished pursuant hereto;
(c) such Assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 7.2 or Section 6.4 and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and
Acceptance;
(d) such Assignee will independently and without reliance upon
the Agent, such assigning Lender or any other Lender, and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking
action under this Agreement;
(e) such Assignee appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers under
this Agreement as are delegated to the Agent by the terms hereof,
together with such powers as are reasonably incidental thereto; and
(f) such Assignee agrees that it will perform in accordance
with the terms of this Agreement all the obligations which are required
to be performed by it as a Lender.
12.1.3. REGISTER. The Agent shall maintain at the Boston
Office a register (the "REGISTER") for the recordation of (a) the names
and addresses of the Lenders and the Assignees which assume rights and
obligations pursuant to an assignment under Section 12.1.1, (b) the
Percentage Interest of each such Lender as set forth in Section 11.1
and (c) the amount of the Revolving Loan, the Letter of Credit Exposure
and Mortgage Loan owing to each Lender from time to time. The entries
in the Register shall be conclusive, in the absence of manifest error,
and the Borrowers, the Agent and the Lenders may treat each Person
whose name is registered therein for all purposes as a party to this
Agreement. The Register shall be available for inspection by any
Borrower or any Lender at any reasonable time and from time to time
upon reasonable prior notice.
12.1.4. ACCEPTANCE OF ASSIGNMENT AND ASSUMPTION. Upon its
receipt of a completed Assignment and Acceptance executed by an
assigning Lender and an Assignee together with the Revolving Notes
subject to such assignment, and the processing and recordation fee
referred to in Section 12.1.1, the Agent shall (a) accept such
Assignment and Acceptance, (b) record the information contained therein
in the Register and (c) give prompt notice thereof to the Borrower.
Within five Banking Days after receipt of notice, the Borrowers, at
their own expense, shall execute and deliver to the Agent, in exchange
for the surrendered Revolving Notes, new Revolving Notes to the order
of such Assignee in a principal amount equal to the applicable
Commitment and Revolving Loan assumed by it pursuant to such Assignment
and Acceptance and, if the assigning Lender has
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retained a Commitment and Revolving Loan, new Revolving Notes to the
order of such assigning Lender in a principal amount equal to the
applicable Commitment and Revolving Loan retained by it. Such new
Revolving Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of such surrendered Revolving Notes,
respectively, and shall be dated the date of the surrendered Revolving
Notes which they replaces.
12.1.5. FEDERAL RESERVE BANK. Notwithstanding the foregoing
provisions of this Section 12, any Lender may at any time pledge or
assign all or any portion of such Lender's rights under this Agreement
and the other Credit Documents to a Federal Reserve Bank; PROVIDED,
HOWEVER, that no such pledge or assignment shall release such Lender
from such Lender's obligations hereunder or under any other Credit
Document.
12.1.6. FURTHER ASSURANCES. The Obligors shall sign such
documents and take such other actions from time to time reasonably
requested by an Assignee to enable it to share in the benefits of the
rights created by the Credit Documents.
12.2. CREDIT PARTICIPANTS. Each Lender may, without the consent of the
Borrowers or the Agent, in compliance with applicable laws in connection with
such participation, sell to one or more commercial banks or other financial
institutions (each a "CREDIT PARTICIPANT") participations in all or a portion of
its interests, rights and obligations under this Agreement and the other Credit
Documents (including all or a portion of its Commitment, the Revolving Loan, the
Letter of Credit Exposure and the Revolving Note held by it); PROVIDED, HOWEVER,
that:
(a) such Lender's obligations under this Agreement shall
remain unchanged;
(b) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations;
(c) the Credit Participant shall be entitled to the benefit of
the cost protection provisions contained in Sections 3.2.4, 3.6, 3.7,
3.8, 3.9 and 10, but shall not be entitled to receive any greater
payment thereunder than the selling Lender would have been entitled to
receive with respect to the interest so sold if such interest had not
been sold; and
(d) the Borrowers, the Agent 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
such Lender shall retain the sole right as one of the Lenders to vote
with respect to the enforcement of the obligations of the Borrowers
relating to the Revolving Loan, the Letter of Credit Exposure and the
approval of any amendment, modification or waiver of any provision of
this Agreement (other than amendments, modifications, consents or
waivers described in clause (b) of the proviso to Section 11.6).
Each Obligor agrees, to the fullest extent permitted by applicable law, that any
Credit Participant and any Lender purchasing a participation from another Lender
pursuant to Section 11.5 may exercise all rights of payment (including the right
of set-off), with respect to its participation as fully as if such Credit
Participant or such Lender were the direct creditor of the Obligors and a Lender
hereunder in the amount of such participation.
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12.3. REPLACEMENT OF LENDER. In the event that any Lender or, to the
extent applicable, any Credit Participant (the "AFFECTED LENDER"):
(a) fails to perform its obligations to fund any portion of
the Revolving Loan or to issue any Letter of Credit on any Closing Date
when required to do so by the terms of the Credit Documents, or fails
to provide its portion of any Eurodollar Pricing Option pursuant to
Section 3.2.1 or on account of a Legal Requirement as contemplated by
Section 3.2.5;
(b) demands payment under the Reserve provisions of Section
3.5, the Tax provisions of Section 3.6, the capital adequacy provisions
of Section 3.7 or the regulatory change provisions in Section 3.8 in an
amount the Company deems materially in excess of the amounts with
respect thereto demanded by the other Lenders; or
(c) refuses to consent to a proposed amendment, modification,
waiver or other action requiring consent of the holders of 100% of the
Percentage Interests under Section 11.6(b) that is consented to by the
other Lenders;
then, so long as no Event of Default exists and is continuing, the Borrowers
shall have the right to seek a replacement lender which is reasonably
satisfactory to the Agent (the "REPLACEMENT LENDER"). The Replacement Lender
shall purchase the interests of the Affected Lender in the Revolving Loan,
Letters of Credit and its Commitment and shall assume the obligations of the
Affected Lender hereunder and under the other Credit Documents upon execution by
the Replacement Lender of an Assignment and Acceptance and the tender by it to
the Affected Lender of a purchase price agreed between it and the Affected
Lender (or, if they are unable to agree, a purchase price in the amount of the
Affected Lenders' Percentage Interest in the Revolving Loan plus the amount of
all other outstanding Credit Obligations including all accrued and unpaid Credit
Obligations then owed to the Affected Lender). Such assignment by the Affected
Lender shall be deemed an early termination of any Eurodollar Pricing Option to
the extent of the Affected Lender's portion thereof, and the Borrowers will pay
to the Affected Lender any resulting amounts due under Section 3.2.4. Upon
consummation of such assignment, the Replacement Lender shall become party to
this Agreement as a signatory hereto and shall have all the rights and
obligations of the Affected Lender under this Agreement and the other Credit
Documents with a Percentage Interest equal to the Percentage Interest of the
Affected Lender, the Affected Lender shall be released from its obligations
hereunder and under the other Credit Documents, and no further consent or action
by any party shall be required. Upon the consummation of such assignment, the
Borrowers, the Agent and the Affected Lender shall make appropriate arrangements
so that a new Revolving Note is issued to the Replacement Lender if it has
acquired a portion of the Revolving Loan. The Borrowers and the Guarantors shall
sign such documents and take such other actions reasonably requested by the
Replacement Lender to enable it to share in the benefits of the rights created
by the Credit Documents. Until the consummation of an assignment in accordance
with the foregoing provisions of this Section 12.3, the Borrowers shall continue
to pay to the Affected Lender any Credit Obligations as they become due and
payable.
13. NOTICES. Except as otherwise specified in this Agreement, any notice
required to be given pursuant to this Agreement shall be given in writing. Any
notice, consent, approval, demand or other communication in connection with this
Agreement shall be deemed to be given if given in writing (including telex,
telecopy or similar teletransmission) addressed as provided below (or to the
addressee at such other address as the addressee shall have specified by notice
actually received by the addressor), and if either (a) actually delivered in
fully legible form to such address (evidenced in the case of a telex by receipt
of the correct answerback) or (b) in the case of a letter, unless actual receipt
of the notice is required by any Credit
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Document five days shall have elapsed after the same shall have been deposited
in the United States mails, with first-class postage prepaid and registered or
certified.
If to any of the Borrowers or any of their respective Subsidiaries, to
them at their address set forth in Exhibit 7.1 (as supplemented pursuant to
Sections 6.4.1 and 6.4.2), to the attention of the chief financial officer.
If to any Lender or the Agent, to it at its address set forth on the
signature pages of this Agreement or in the Register, with a copy to the Agent.
14. COURSE OF DEALING; AMENDMENTS AND WAIVERS. No course of dealing between any
Lender or the Agent, on one hand, and the Borrowers or any other Obligor, on the
other hand, shall operate as a waiver of any of the Lenders' or the Agent's
rights under this Agreement or any other Credit Document or with respect to the
Credit Obligations. Each of the Borrowers and the Guarantors acknowledges that
if the Lenders or the Agent, without being required to do so by this Agreement
or any other Credit Document, give any notice or information to, or obtain any
consent from, any Borrower or any other Obligor, the Lenders and the Agent shall
not by implication have amended, waived or modified any provision of this
Agreement or any other Credit Document, or created any duty to give any such
notice or information or to obtain any such consent on any future occasion. No
delay or omission on the part of any Lender of the Agent in exercising any right
under this Agreement or any other Credit Document or with respect to the Credit
Obligations shall operate as a waiver of such right or any other right hereunder
or thereunder. A waiver on any one occasion shall not be construed as a bar to
or waiver of any right or remedy on any future occasion. No waiver, consent or
amendment with respect to this Agreement or any other Credit Document shall be
binding unless it is in writing and signed by the Agent or the Required Lenders.
15. DEFEASANCE. When all Credit Obligations have been paid, performed and
reasonably determined by the Lenders to have been indefeasibly discharged in
full, and if at the time no Lender continues to be committed to extend any
credit to the Borrowers hereunder or under any other Credit Document, this
Agreement shall terminate and, at the Borrowers' written request, accompanied by
such certificates and other items as the Agent shall reasonably deem necessary,
the Credit Security shall revert to the Obligors and the right, title and
interest of the Lenders therein shall terminate. Thereupon, on the Obligor's
demand and at their cost and expense, the Agent shall execute proper
instruments, acknowledging satisfaction of and discharging this Agreement, and
shall redeliver to the Obligors any Credit Security then in its possession;
provided, however, that Sections 3.2.4, 3.5, 3.6, 3.7, 3.8, 10 and 11.8.7 shall
survive the termination of this Agreement.
16. VENUE; SERVICE OF PROCESS. Each of the Borrowers and the other Obligors:
(a) Irrevocably submits to the nonexclusive jurisdiction of
the state courts of The Commonwealth of Massachusetts and to the
nonexclusive jurisdiction of the United States District Court for the
District of Massachusetts for the purpose of any suit, action or other
proceeding arising out of or based upon this Agreement or any other
Credit Document or the subject matter hereof or thereof.
(b) Waives to the extent not prohibited by applicable law that
cannot be waived, and agrees not to assert, by way of motion, as a
defense or otherwise, in any such proceeding brought in any of the
above-named courts, any claim that it is not subject personally to the
jurisdiction of such court, that its property is exempt or immune from
attachment or execution, that such proceeding is
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brought in an inconvenient forum, that the venue of such proceeding is
improper, or that this Agreement or any other Credit Document, or the
subject matter hereof or thereof, may not be enforced in or by such
court.
Each of the Borrowers and the other Obligors consents to service of process in
any such proceeding in any manner at the time permitted by Chapter 223A of the
General Laws of The Commonwealth of Massachusetts and agrees that service of
process by registered or certified mail, return receipt requested, at its
address specified in or pursuant to Section 16 is reasonably calculated to give
actual notice.
17. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT
CANNOT BE WAIVED, EACH OF THE BORROWERS, THE OTHER OBLIGORS, THE AGENT AND THE
LENDERS WAIVES, AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF,
DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF
ANY ISSUE, CLAIM OR PROCEEDING ARISING OUT OF THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT OR THE SUBJECT MATTER HEREOF OR THEREOF OR ANY CREDIT OBLIGATION OR IN
ANY WAY CONNECTED WITH THE DEALINGS OF THE LENDERS, THE AGENT, THE BORROWERS OR
ANY OTHER OBLIGOR IN CONNECTION WITH ANY OF THE ABOVE, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING AND WHETHER IN CONTRACT, TORT OR OTHERWISE. Each
of the Borrowers and the other Obligors acknowledges that it has been informed
by the Agent that the provisions of this Section 17 constitute a material
inducement upon which each of the Lenders has relied and will rely in entering
into this Agreement and any other Credit Document, and that it has reviewed the
provisions of this Section 17 with its counsel. Any Lender, the Agent, any
Borrower or any other Obligor may file an original counterpart or a copy of this
Section 17 with any court as written evidence of the consent of the Borrowers,
the other Obligors, the Agent and the Lenders to the waiver of their rights to
trial by jury.
18. GENERAL. All covenants, agreements, representations and warranties made in
this Agreement or any other Credit Document or in certificates delivered
pursuant hereto or thereto shall be deemed to have been relied on by each
Lender, notwithstanding any investigation made by any Lender on its behalf, and
shall survive the execution and delivery to the Lenders hereof and thereof. The
invalidity or unenforceability of any provision hereof shall not affect the
validity or enforceability of any other provision hereof. The headings in this
Agreement are for convenience of reference only and shall not limit or otherwise
affect the meaning hereof. This Agreement and the other Credit Documents
(including any related fee agreements with the Agent or the Lenders) constitute
the entire understanding of the parties with respect to the subject matter
hereof and thereof and supersede all prior and contemporaneous understandings
and agreements, whether written or oral. This Agreement may be executed in any
number of counterparts which together shall constitute one instrument. This
Agreement shall be governed by and construed in accordance with the laws (other
than the conflict of laws rules) of The Commonwealth of Massachusetts.
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Each of the undersigned has caused this Agreement to be executed and
delivered by its duly authorized officer as an agreement under seal as of the
date first above written.
PEDIATRIX MEDICAL GROUP, INC. (FL)
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Chief Financial Officer
PEDIATRIX MEDICAL GROUP OF FLORIDA, INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Treasurer
PEDIATRIX MEDICAL GROUP, P.C. (WV)
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Treasurer
PEDIATRIX MEDICAL GROUP, P.C. (VA)
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Treasurer
PEDIATRIX MEDICAL GROUP, S.P. (PR)
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Attorney-in-Fact
PEDIATRIX MEDICAL GROUP, P.A. (NJ)
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Treasurer
PEDIATRIX MEDICAL GROUP OF KANSAS, P.A.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Attorney-in-Fact
PEDIATRIX MEDICAL GROUP NEONATOLOGY
AND PEDIATRIC INTENSIVE CARE SPECIALISTS
OF NEW YORK, P.C.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Attorney-in-Fact
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PEDIATRIX MEDICAL GROUP OF
CALIFORNIA, P.C.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Attorney-in-Fact
PEDIATRIX MEDICAL GROUP OF ILLINOIS, P.C.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Attorney-in-Fact
PEDIATRIX MEDICAL GROUP OF MICHIGAN, P.C.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Treasurer
PEDIATRIX MEDICAL GROUP OF
PENNSYLVANIA, P.C.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Attorney-in-Fact
PEDIATRIX MEDICAL GROUP OF TEXAS, P.A.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Attorney-in-Fact
PEDIATRIX MEDICAL GROUP OF OHIO, CORP.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Secretary
NEONATAL SPECIALISTS, LTD. (AZ)
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Attorney-in-Fact
PEDIATRIX MEDICAL GROUP OF
COLORADO, P.C.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Attorney-in-Fact
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ST. XXXXXX NEONATOLOGY
CONSULTANTS, P.A.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Attorney-in-Fact
PERNOLL MEDICAL GROUP OF NEVADA, LTD.
D/B/A PEDIATRIX MEDICAL GROUP OF NEVADA
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Attorney-in-Fact
PEDIATRIX MEDICAL GROUP OF
SOUTH CAROLINA, P.A.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Treasurer
FLORIDA REGIONAL NEONATAL
ASSOCIATES, P.A.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Treasurer
PEDIATRIX MEDICAL GROUP, INC.
(Utah)
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Treasurer
PEDIATRIX MEDICAL GROUP OF NEW
MEXICO, P.C.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Treasurer
PEDIATRIX MEDICAL GROUP OF
WASHINGTON, INC., P.C.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Treasurer
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PEDIATRIX MEDICAL GROUP OF
INDIANA, P.C.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Attorney-in-Fact
FORT WORTH NEONATAL ASSOCIATES, P.A.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Attorney-in-Fact
PMG ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Treasurer
PEDIATRIX MEDICAL GROUP OF
PUERTO RICO, P.S.C.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Attorney-in-Fact
OBSTETRIX MEDICAL GROUP, INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Treasurer
OBSTETRIX MEDICAL GROUP
OF FLORIDA, INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Treasurer
M. XXXXXXX XXXXXXXXXX, M.D.,
A PROFESSIONAL CORPORATION
D/B/A OBSTETRIX MEDICAL GROUP
OF CALIFORNIA, A PROFESSIONAL
CORPORATION
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Attorney-in-Fact
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75
XXXXXX X. XXXXXXX, M.D. PROF. CORP.
D/B/A OBSTETRIX MEDICAL GROUP
OF NEVADA, LTD.
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Title: Attorney-in-Fact
OBSTETRIX MEDICAL GROUP OF ARIZONA, P.C.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Treasurer
OBSTETRIX MEDICAL GROUP
OF COLORADO, P.C.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Attorney-in-Fact
OBSTETRIX MEDICAL GROUP
OF KANSAS AND MISSOURI, P.A.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Attorney-in-Fact
OBSTETRIX MEDICAL GROUP
OF PENNSYLVANIA, P.C.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Treasurer
OBSTETRIX MEDICAL GROUP
OF PHOENIX, P.C.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Treasurer
OBSTETRIX MEDICAL GROUP OF TEXAS, P.A.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Attorney-in-Fact
OBSTETRIX MEDICAL GROUP
OF WASHINGTON, INC., P.S.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Treasurer
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76
PALM BEACH NEO ACQUISITIONS, INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Treasurer
PEDIATRIX MEDICAL GROUP
OF ARKANSAS, P.A.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Attorney-in-Fact
PEDIATRIX MEDICAL GROUP OF GEORGIA, P.C.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Secretary
PEDIATRIX MEDICAL GROUP OF MISSOURI, P.C.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Attorney-in-Fact
PEDIATRIX MEDICAL GROUP
OF OKLAHOMA, P.C.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Attorney-in-Fact
PEDIATRIX MEDICAL GROUP
OF TENNESSEE, P.C.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Treasurer
PEDIATRIX OF MARYLAND, P.A.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Attorney-in-Fact
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77
FLEET NATIONAL BANK
By: /s/ Xxxxx Xxxxx Castle
--------------------------------------
Xxxxx Xxxxx Castle
Director
Fleet National Bank
000 Xxxxxxx Xxxxxx
Mail Stop: MADE 10008E
Xxxxxx, Xxxxxxxxxxxxx 00000
Telecopy: (000) 000-0000
SUNTRUST BANK
By: /s/ W. Xxxxx Xxxxxx
--------------------------------------
Name: W. Xxxxx Xxxxxx
Title: Vice President
Suntrust Bank
Health Care Finance Group
Mail Code: O-1101
000 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
UBS AG, Stamford Branch
By: /s/ Xxxxxx X. Xxxx III
--------------------------------------
Name: Xxxxxx X. Xxxx III
Title: Executive Director
By: /s/ Xxxxxxx X. Saint
--------------------------------------
Name: Xxxxxxx X. Saint
Title: Associate Director
Attn: Xxxxx Xxxxxxxx
UBS AG, Stamford Branch
000 Xxxxxxxxxx Xxxxxxxxx 0xx Xxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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