EXHIBIT 10
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of March 21, 2005
among
SYMBION, INC.,
as the Borrower,
THE SUBSIDIARIES OF THE BORROWER IDENTIFIED HEREIN,
as the Guarantors,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender and L/C Issuer,
CREDIT SUISSE FIRST BOSTON,
as Syndication Agent,
KEYBANK NATIONAL ASSOCIATION,
as Documentation Agent
and
THE OTHER LENDERS PARTY HERETO
Arranged By:
BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger and Book Manager
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS............................................................ 1
1.01 Defined Terms............................................................................. 1
1.02 Other Interpretive Provisions............................................................. 26
1.03 Accounting Terms.......................................................................... 27
1.04 Rounding.................................................................................. 27
1.05 Times of Day.............................................................................. 28
1.06 Letter of Credit Amounts.................................................................. 28
ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS...................................................... 28
2.01 Revolving Loans........................................................................... 28
2.02 Borrowings, Conversions and Continuations of Loans........................................ 28
2.03 Letters of Credit......................................................................... 29
2.04 Swing Line Loans.......................................................................... 37
2.05 Prepayments............................................................................... 39
2.06 Termination or Reduction of Aggregate Revolving Commitments............................... 41
2.07 Repayment of Loans........................................................................ 42
2.08 Interest.................................................................................. 42
2.09 Fees...................................................................................... 42
2.10 Computation of Interest and Fees.......................................................... 43
2.11 Evidence of Debt.......................................................................... 43
2.12 Payments Generally; Administrative Agent's Clawback....................................... 43
2.13 Sharing of Payments by Lenders............................................................ 45
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY.................................................... 46
3.01 Taxes..................................................................................... 46
3.02 Illegality................................................................................ 47
3.03 Inability to Determine Rates.............................................................. 48
3.04 Increased Costs........................................................................... 48
3.05 Compensation for Losses................................................................... 49
3.06 Mitigation Obligations; Replacement of Lenders............................................ 50
3.07 Survival.................................................................................. 50
ARTICLE IV GUARANTY................................................................................... 50
4.01 The Guaranty.............................................................................. 50
4.02 Obligations Unconditional................................................................. 51
4.03 Reinstatement............................................................................. 52
4.04 Certain Additional Waivers................................................................ 52
4.05 Remedies.................................................................................. 52
4.06 Rights of Contribution.................................................................... 52
4.07 Guarantee of Payment; Continuing Guarantee................................................ 52
ARTICLE V CONDITIONS PRECEDENT TO CREDIT EXTENSIONS................................................... 53
5.01 Conditions of Initial Credit Extension.................................................... 53
5.02 Conditions to all Credit Extensions....................................................... 54
ARTICLE VI REPRESENTATIONS AND WARRANTIES............................................................. 55
6.01 Existence, Qualification and Power........................................................ 55
6.02 Authorization; No Contravention........................................................... 55
6.03 Governmental Authorization; Other Consents................................................ 56
6.04 Binding Effect............................................................................ 56
6.05 Financial Statements; No Material Adverse Effect; No Internal Control Event............... 56
6.06 Litigation................................................................................ 57
6.07 No Default................................................................................ 57
6.08 Ownership of Property; Liens.............................................................. 57
6.09 Environmental Compliance.................................................................. 57
6.10 Insurance................................................................................. 58
6.11 Taxes..................................................................................... 58
6.12 ERISA Compliance.......................................................................... 58
6.13 Subsidiaries.............................................................................. 59
6.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act............ 59
6.15 Disclosure................................................................................ 59
6.16 Compliance with Laws...................................................................... 60
6.17 Intellectual Property; Licenses, Etc...................................................... 61
6.18 Broker's Fees............................................................................. 61
6.19 Labor Matters............................................................................. 61
6.20 Business Locations........................................................................ 61
6.21 [Reserved]................................................................................ 61
6.22 Subordination............................................................................. 61
6.23 Fraud and Abuse........................................................................... 62
6.24 Licensing and Accreditation............................................................... 62
6.25 Reimbursement from Medical Reimbursement Programs......................................... 62
6.26 Medicare and Medicaid Notices and Filings Related to Health Care Business................. 62
ARTICLE VII AFFIRMATIVE COVENANTS..................................................................... 63
7.01 Financial Statements...................................................................... 63
7.02 Certificates; Other Information........................................................... 64
7.03 Notices................................................................................... 66
7.04 Payment of Obligations.................................................................... 66
7.05 Preservation of Existence, Etc............................................................ 67
7.06 Maintenance of Properties................................................................. 67
7.07 Maintenance of Insurance.................................................................. 67
7.08 Compliance with Laws...................................................................... 68
7.09 Books and Records......................................................................... 68
7.10 Inspection Rights......................................................................... 68
7.11 Use of Proceeds........................................................................... 69
7.12 Additional Subsidiaries................................................................... 69
7.13 ERISA Compliance.......................................................................... 70
7.14 Pledged Assets............................................................................ 70
ARTICLE VIII NEGATIVE COVENANTS....................................................................... 72
8.01 Liens..................................................................................... 72
8.02 Investments............................................................................... 73
8.03 Indebtedness.............................................................................. 75
8.04 Fundamental Changes....................................................................... 76
8.05 Dispositions.............................................................................. 76
8.06 Restricted Payments....................................................................... 77
8.07 Change in Nature of Business.............................................................. 78
8.08 Transactions with Affiliates and Insiders................................................. 78
8.09 Burdensome Agreements..................................................................... 78
8.10 Use of Proceeds........................................................................... 79
8.11 Financial Covenants....................................................................... 79
8.12 Amendments and Prepayments of Subordinated Indebtedness................................... 79
8.13 Organization Documents; Fiscal Year; Legal Name, State of Formation and Form
of Entity................................................................................. 80
8.14 Ownership of Subsidiaries................................................................. 80
8.15 Sale and Leaseback Transactions........................................................... 80
ARTICLE IX EVENTS OF DEFAULT AND REMEDIES............................................................. 80
9.01 Events of Default......................................................................... 80
9.02 Remedies Upon Event of Default............................................................ 82
9.03 Application of Funds...................................................................... 83
ARTICLE X ADMINISTRATIVE AGENT........................................................................ 84
10.01 Appointment and Authority............................................................. 84
10.02 Rights as a Lender.................................................................... 84
10.03 Exculpatory Provisions................................................................ 84
10.04 Reliance by Administrative Agent...................................................... 85
10.05 Delegation of Duties.................................................................. 85
10.06 Resignation of Administrative Agent................................................... 86
10.07 Non-Reliance on Administrative Agent and Other Lenders................................ 86
10.08 No Other Duties; Etc.................................................................. 87
10.09 Administrative Agent May File Proofs of Claim......................................... 87
10.10 Collateral and Guaranty Matters....................................................... 87
ARTICLE XI MISCELLANEOUS.............................................................................. 88
11.01 Amendments, Etc....................................................................... 88
11.02 Notices and Other Communications; Facsimile Copies.................................... 89
11.03 No Waiver; Cumulative Remedies........................................................ 91
11.04 Expenses; Indemnity; and Damage Waiver................................................ 91
11.05 Payments Set Aside.................................................................... 93
11.06 Successors and Assigns................................................................ 93
11.07 Treatment of Certain Information; Confidentiality..................................... 96
11.08 Set-off............................................................................... 97
11.09 Interest Rate Limitation.............................................................. 97
11.10 Counterparts; Integration; Effectiveness.............................................. 97
11.11 Survival of Representations and Warranties............................................ 98
11.12 Severability.......................................................................... 98
11.13 Replacement of Lenders................................................................ 98
11.14 Governing Law; Jurisdiction; Etc...................................................... 99
11.15 Waiver of Right to Trial by Jury...................................................... 99
11.16 Collateral and Guaranty Matters....................................................... 100
11.17 USA PATRIOT Act Notice................................................................ 100
SCHEDULES
1.01 Applicable Rate
2.01 Commitments and Applicable Percentages
6.10 Insurance
6.13 Subsidiaries
6.17 IP Rights
6.20(a) Locations of Real Property
6.20(b) Locations of Chief Executive Office, Etc.
6.20(c) Changes in Legal Name, State of Formation and Structure
7.14(a) Excluded Majority Interest Joint Ventures
7.14(c) Excluded Minority Interest Joint Ventures
7.15 Specified Majority Owned Joint Ventures
8.01 Liens Existing on the Closing Date
8.02-1 Investments Existing on the Closing Date
8.02-2 Scheduled Acquisition
8.03 Indebtedness Existing on the Closing Date
8.05 Scheduled Dispositions
8.06 Warrants and Convertible Debentures Outstanding on the Closing
Date
11.02 Certain Addresses for Notices
11.06 Processing and Recordation Fees
EXHIBITS
A Form of Loan Notice
B Form of Swing Line Loan Notice
C-1 Form of Revolving Note
C-2 Form of Swing Line Note
D Form of Compliance Certificate
E Form of Assignment and Assumption
F Form of Joinder Agreement
AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of March 21,
2005 among SYMBION, INC., a Delaware corporation (the "Borrower"), the
Guarantors (defined herein), the Lenders (defined herein) and BANK OF AMERICA,
N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.
WHEREAS, the Borrower has requested that the Lenders provide a revolving
credit facility of up to $150 million for the purposes set forth herein and the
Lenders are willing to do so on the terms and conditions set forth herein; and
WHEREAS, this Agreement is given in amendment to, restatement of and
substitution for the Credit Agreement dated as of July 18, 2003 among the
Borrower, the lenders identified therein and Bank of America, as administrative
agent.
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms.
As used in this Agreement, the following terms shall have the meanings set
forth below:
"Acquisition", by any Person, means the acquisition by such Person, in a
single transaction or in a series of related transactions, of (a) all or any
substantial portion of the property of another Person, (b) a division or line of
business of another Person or (c) at least a majority of the Voting Stock of
another Person, in each case whether or not involving a merger or consolidation
with such other Person and whether for cash, property, services, assumption of
Indebtedness, securities or otherwise.
"Administrative Agent" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means the Administrative Agent's address
and, as appropriate, account as set forth on Schedule 11.02 or such other
address or account as the Administrative Agent may from time to time notify the
Borrower and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Aggregate Revolving Commitments" means the Revolving Commitments of all
the Lenders. The amount of the Aggregate Revolving Commitments in effect on the
Closing Date is ONE HUNDRED FIFTY MILLION ($150,000,000).
"Agreement" means this Credit Agreement, as amended, modified,
supplemented and extended from time to time.
"Applicable Percentage" means with respect to any Lender at any time, (a)
with respect to such Lender's Revolving Commitment at any time, the percentage
(carried out to the ninth decimal place) of the Aggregate Revolving Commitments
represented by such Lender's Revolving Commitment at such time; provided that if
the commitment of each Lender to make Revolving Loans and the obligation of the
L/C Issuer to make L/C Credit Extensions have been terminated pursuant to
Section 9.02 or if the Aggregate Revolving Commitments have expired, then the
Applicable Percentage of each Lender shall be determined based on the Applicable
Percentage of such Lender most recently in effect, giving effect to any
subsequent assignments. The initial Applicable Percentage of each Lender is set
forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and
Assumption pursuant to which such Lender becomes a party hereto, as applicable.
"Applicable Rate" means the percentages per annum set forth on Schedule
1.01 hereto based upon the Consolidated Total Leverage Ratio as set forth in the
most recent Compliance Certificate received by the Administrative Agent pursuant
to Section 7.02(b). Any increase or decrease in the Applicable Rate resulting
from a change in the Consolidated Total Leverage Ratio shall become effective as
of the date five (5) Business Days immediately following the date a Compliance
Certificate is delivered pursuant to Section 7.02(b); provided, however, that if
a Compliance Certificate is not delivered when due in accordance with such
Section, then Pricing Tier 4 shall apply as of the first Business Day after the
date on which such Compliance Certificate was required to have been delivered
and shall continue to apply until the date five (5) Business Days immediately
following the date such Compliance Certificate is actually delivered. The
Applicable Rate in effect from the Closing Date through the date five (5)
Business Days immediately following the date a Compliance Certificate is
delivered pursuant to Section 7.02(b) for the fiscal quarter ending March 31,
2005 shall be determined based upon Pricing Tier 1.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Assignee Group" means two or more Eligible Assignees that are Affiliates
of one another or two or more Approved Funds managed by the same investment
advisor.
"Assignment and Assumption" means an assignment and assumption entered
into by a Lender and an Eligible Assignee (with the consent of any party whose
consent is required by Section 11.06(b)), and accepted by the Administrative
Agent, in substantially the form of Exhibit E or any other form approved by the
Administrative Agent.
"Attributable Indebtedness" means, on any date, (a) in respect of any
Capital Lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
(b) in respect of any Synthetic Lease, the capitalized amount of the remaining
lease payments under the relevant lease that would appear on a balance sheet of
such Person prepared as of such date in accordance with GAAP if such lease were
accounted for as a Capital Lease, (c) in respect of any Securitization
Transaction of any Person, the outstanding principal amount of such financing,
after taking into account reserve accounts and making appropriate adjustments,
determined by the Administrative Agent in its reasonable judgment and (d) in the
case of any Sale and Leaseback Transaction, the present value (discounted in
accordance with GAAP at the debt rate implied in the applicable lease) of the
obligations of the lessee for rental payments during the term of such lease).
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"Audited Financial Statements" means the audited consolidated balance
sheet of the Borrower and its Subsidiaries for the fiscal year ended December
31, 2003, and the related consolidated statements of income or operations,
shareholders' equity and cash flows of the Borrower and its Subsidiaries for
such fiscal year, including the notes thereto.
"Availability Period" means, with respect to the Revolving Commitments,
the period from and including the Closing Date to the earliest of (a) the
Maturity Date, (b) the date of termination of the Aggregate Revolving
Commitments pursuant to Section 2.06, and (c) the date of termination of the
commitment of each Lender to make Loans and of the obligation of the L/C Issuer
to make L/C Credit Extensions pursuant to Section 9.02.
"Bank of America" means Bank of America, N.A. and its successors.
"BAS" means Banc of America Securities LLC, in its capacity as sole lead
arranger and book manager.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% or (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." The "prime rate" is a rate set by Bank of America
based upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in the "prime rate" announced by Bank of America shall take
effect at the opening of business on the day specified in the public
announcement of such change.
"Base Rate Loan" means a Loan that bears interest based on the Base Rate.
"Borrower" has the meaning specified in the introductory paragraph hereto.
"Borrower Materials" has the meaning specified in Section 7.02.
"Borrowing" means a borrowing consisting of simultaneous Loans of the same
Type and, in the case of Eurodollar Rate Loans, having the same Interest Period
made by each of the Lenders pursuant to Section 2.01.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Administrative Agent's Office is located and, if
such day relates to any Eurodollar Rate Loan, means any such day on which
dealings in Dollar deposits are conducted by and between banks in the London
interbank eurodollar market.
"Businesses" means, at any time, a collective reference to the businesses
operated by the Borrower and its Subsidiaries at such time.
"Capital Lease" means, as applied to any Person, any lease of any property
by that Person as lessee which, in accordance with GAAP, is required to be
accounted for as a capital lease on the balance sheet of that Person.
"Capital Stock" means, with respect to any Person, all of the shares of
capital stock of (or other ownership or profit interests in) such Person, all of
the warrants, options or other rights for the purchase or acquisition from such
Person of shares of capital stock of (or other ownership or profit interests in)
3
such Person, all of the securities convertible into or exchangeable for shares
of capital stock of (or other ownership or profit interests in) such Person or
warrants, rights or options for the purchase or acquisition from such Person of
such shares (or such other interests), and all of the other ownership or profit
interests in such Person (including partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares, warrants,
options, rights or other interests are outstanding on any date of determination.
"Cash Collateralize" has the meaning specified in Section 2.03(g).
"Cash Equivalents" means, as at any date, (a) securities issued or
directly and fully guaranteed or insured by the United States or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of not more than twelve
months from the date of acquisition, (b) Dollar denominated time deposits and
certificates of deposit of (i) any Lender, (ii) any domestic commercial bank of
recognized standing having capital and surplus in excess of $500,000,000 or
(iii) any bank whose short-term commercial paper rating from S&P is at least A-1
or the equivalent thereof or from Xxxxx'x is at least P-1 or the equivalent
thereof (any such bank being an "Approved Bank"), in each case with maturities
of not more than 270 days from the date of acquisition, (c) commercial paper and
variable or fixed rate notes issued by any Approved Bank (or by the parent
company thereof) or any variable rate notes issued by, or guaranteed by, any
domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or
P-1 (or the equivalent thereof) or better by Moody's and maturing within six
months of the date of acquisition, (d) repurchase agreements entered into by any
Person with a bank or trust company (including any of the Lenders) or recognized
securities dealer having capital and surplus in excess of $500,000,000 for
direct obligations issued by or fully guaranteed by the United States in which
such Person shall have a perfected first priority security interest (subject to
no other Liens) and having, on the date of purchase thereof, a fair market value
of at least 100% of the amount of the repurchase obligations, (e) debt
obligations issued by any domestic corporation or any domestic government
intrumentality, in each case rated A-1 (or the equivalent thereof) or better by
S&P or P-1 (or the equivalent thereof) or better by Moody's and maturing within
six months of the date of acquisition, (f) Investments, classified in accordance
with GAAP as current assets, in money market investment programs registered
under the Investment Company Act of 1940 which are administered by reputable
financial institutions having capital of at least $500,000,000 and the
portfolios of which are limited to Investments of the character described in the
foregoing subdivisions (a) through (e), (g) Investments in obligations the
return with respect to which is excludable from gross income under Section 103
of the Internal Revenue Code, having a maturity of not more than six (6) months
or providing the holder the right to put such obligations for purchase at par
upon not more than twenty-eight (28) days' notice, and which are rated at least
A-1 by S&P or P-1 by Moody's, (h) Investments in tax free money market funds all
of whose assets consist of securities of the types described in the foregoing
subdivision (g), and (i) Investments, redeemable upon not more than seven (7)
days' notice, in money market preferred municipal bond funds that are rated at
least AAA by S&P or Aaa by Moody's.
"Center" shall mean a surgery center, a diagnostic imaging center, a
surgical hospital or a hospital located in the United States that provides only
surgical services and services directly related thereto.
"Certificate of Designation"shall mean the Certificate of Designation of
Rights and Preferences of Series A Convertible Preferred Stock and Series B
Convertible Preferred Stock of Symbion, Inc., dated September 16, 2002, filed
with the Secretary of State of Delaware on September 16, 2002 (020575294 -
3531259), as the same is in effect on the date of this Agreement.
"Change in Law" means the occurrence, after the date of this Agreement, of
any of the following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or treaty or
in the administration, interpretation or application thereof by any Governmental
4
Authority or (c) the making or issuance of any request, guideline or directive
(whether or not having the force of law) by any Governmental Authority.
"Change of Control" means an event or series of events by which:
(a) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any
employee benefit plan of such person or its subsidiaries, and any person
or entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan) becomes the "beneficial owner" (as defined
in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except
that a person or group shall be deemed to have "beneficial ownership" of
all Capital Stock that such person or group has the right to acquire (such
right, an "option right"), whether such right is exercisable immediately
or only after the passage of time), directly or indirectly, of thirty
percent (30%) of the Capital Stock of the Borrower entitled to vote for
members of the board of directors or equivalent governing body of the
Borrower on a fully diluted basis (and taking into account all such
securities that such person or group has the right to acquire pursuant to
any option right); or
(b) during any period of 24 consecutive months, a majority of the
members of the board of directors or other equivalent governing body of
the Borrower cease to be composed of individuals (i) who were members of
that board or equivalent governing body on the first day of such period,
(ii) whose election or nomination to that board or equivalent governing
body was approved by individuals referred to in clause (i) above
constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body or (iii) whose
election or nomination to that board or other equivalent governing body
was approved by individuals referred to in clauses (i) and (ii) above
constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body (excluding, in the
case of both clause (ii) and clause (iii), any individual whose initial
nomination for, or assumption of office as, a member of that board or
equivalent governing body occurs as a result of an actual or threatened
solicitation of proxies or consents for the election or removal of one or
more directors by any person or group other than a solicitation for the
election of one or more directors by or on behalf of the board of
directors); or
(c) any Person or two or more Persons acting in concert shall have
acquired by contract or otherwise, or shall have entered into a contract
or arrangement that, upon consummation thereof, will result in its or
their acquisition of the power to exercise, directly or indirectly, a
controlling influence over the management or policies of the Borrower, or
control over the Voting Stock of the Borrower on a fully-diluted basis
(and taking into account all such Voting Stock that such Person or group
has the right to acquire pursuant to any option right) representing thirty
percent (30%) or more of the combined voting power of such Voting Stock;
or
(d) a "Change of Control" (or any comparable term) occurs under, and
as defined in, any of the Subordinated Indebtedness Documents.
"Closing Date" means the date hereof.
"CMS" means the Centers for Medicare & Medicaid Services of HHS and any
successor thereof and any predecessor thereof, including the Health Care
Financing Administration.
"Collateral" means a collective reference to all real and personal
Property with respect to which Liens in favor of the Administrative Agent are
purported to be granted pursuant to and in accordance with the terms of the
Collateral Documents.
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"Collateral Documents" means a collective reference to the Security
Agreement, the Mortgages and such other security documents as may be executed
and delivered by the Loan Parties pursuant to the terms of Section 7.14.
"Commitment" means, as to each Lender, the Revolving Commitment of such
Lender.
"Compliance Certificate" means a certificate substantially in the form of
Exhibit D.
"Consolidated Adjusted EBITDAR" means, for any period, for the Borrower
and its Subsidiaries on a consolidated basis, an amount equal to the sum of (a)
Consolidated EBITDA for such period plus (b) rent and lease expense for such
period minus (c) the Maintenance Capital Expenditure Adjustment for such period
minus (d) Consolidated Cash Taxes for such period, all as determined in
accordance with GAAP.
"Consolidated Capital Expenditures" means, for any period, for the
Borrower and its Subsidiaries on a consolidated basis, all capital expenditures,
as determined in accordance with GAAP; provided, however, that Consolidated
Capital Expenditures shall not include (a) expenditures made with proceeds of
any Involuntary Disposition to the extent such expenditures are used to purchase
property that is the same as or similar to the property subject to such
Involuntary Disposition or (b) Permitted Acquisitions.
"Consolidated Capitalization Ratio" means, as of any date of
determination, the ratio of (a) Consolidated Funded Indebtedness as of such date
to (b) the sum of (i) Consolidated Funded Indebtedness as of such date plus (ii)
Consolidated Net Worth as of such date.
"Consolidated Cash Taxes" means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, the aggregate of all taxes, as determined
in accordance with GAAP, to the extent the same are paid in cash during such
period.
"Consolidated EBITDA" means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to the sum of (a)
Consolidated Net Income for such period plus (b) the following to the extent
deducted in calculating such Consolidated Net Income: (i) Consolidated Interest
Charges for such period, (ii) the provision for federal, state, local and
foreign income taxes, value added taxes and similar taxes payable for such
period, (iii) the amount of depreciation and amortization expense for such
period, and (iv) non-cash charges, minus (c) any non-cash items increasing
Consolidated Net Income for such period (except to the extent cash relating to
such item has been received after the date of this Agreement), plus (d) with
respect to any Majority Interest Joint Venture that has any outstanding Pledged
Note(s) issued to any Loan Party, the lesser of (i) the minority interest of
such Majority Interest Joint Venture, (ii) the outstanding amount of all Pledged
Notes issued by such Majority Interest Joint Venture as of the last day of such
period and (iii) the amount of the EBITDA of such Majority Interest Joint
Venture that is not otherwise included in the calculation of Consolidated
EBITDA, plus (e) with respect to any Minority Interest Joint Venture that has
any outstanding Pledged Note(s) issued to any Loan Party, the lesser of (i) the
outstanding amount of all Pledged Notes issued by such Minority Interest Joint
Venture as of the last day of such period and (ii) the amount of the EBITDA of
such Minority Interest Joint Venture that is not otherwise included in the
calculation of Consolidated EBITDA, all as determined in accordance with GAAP,
provided, however, that if the portion of Consolidated EBITDA attributable to
clauses (d) and (e) above constitutes more than twenty-five percent (25%) of
Consolidated EBITDA, then the excess shall be excluded from the calculation of
Consolidated EBITDA.
"Consolidated Fixed Charge Coverage Ratio" means, as of any date of
determination, the ratio of (a) Consolidated Adjusted EBITDAR for the period of
the four fiscal quarters most recently ended for
6
which the Borrower has delivered financial statements pursuant to Section
7.01(a) or (b) to (b) Consolidated Fixed Charges for the period of the four
fiscal quarters most recently ended for which the Borrower has delivered
financial statements pursuant to Section 7.01(a) or (b).
"Consolidated Fixed Charges" means, for any period, for the Borrower and
its Subsidiaries on a consolidated basis, an amount equal to the sum of (i) the
cash portion of Consolidated Interest Charges for such period plus (ii)
Consolidated Scheduled Funded Debt Payments for such period plus (iii) rent and
lease expense for such period, all as determined in accordance with GAAP.
"Consolidated Funded Indebtedness" means Funded Indebtedness of the
Borrower and its Subsidiaries on a consolidated basis determined in accordance
with GAAP.
"Consolidated Interest Charges" means, for any period, for the Borrower
and its Subsidiaries on a consolidated basis, an amount equal to the sum of (i)
all interest, premium payments, debt discount, fees, charges and related
expenses in connection with borrowed money (excluding interest that is paid
solely by issuing additional 2003 Subordinated Notes in accordance with the
terms of the 2003 Subordinated Note Documents) or in connection with the
deferred purchase price of assets, in each case to the extent treated as
interest in accordance with GAAP plus (ii) the portion of rent expense with
respect to such period under Capital Leases that is treated as interest in
accordance with GAAP plus (iii) the implied interest component of Synthetic
Leases with respect to such period.
"Consolidated Total Leverage Ratio" means, as of any date of
determination, the ratio of (a) Consolidated Funded Indebtedness as of such date
to (b) Consolidated EBITDA for the period of the four fiscal quarters most
recently ended for which the Borrower has delivered financial statements
pursuant to Section 7.01(a) or (b).
"Consolidated Net Income" means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, the net income of the Borrower and its
Subsidiaries for that period as determined in accordance with GAAP, but
excluding (a) extraordinary and nonrecurring items (and corresponding tax
consequences), (b) the net income (but not loss) of any Subsidiary that is
restricted by contract or Law from being distributed to the holders of the
Capital Stock of such Subsidiary and (c) income or loss attributable to
discontinued operations.
"Consolidated Net Worth" means, as of any date of determination,
consolidated shareholders' equity of the Borrower and its Subsidiaries as of
that date determined in accordance with GAAP.
"Consolidated Scheduled Funded Debt Payments" means for any period for the
Borrower and its Subsidiaries on a consolidated basis, the sum of all scheduled
payments of principal on Consolidated Funded Indebtedness, as determined in
accordance with GAAP. For purposes of this definition, "scheduled payments of
principal" (a) shall be determined without giving effect to any reduction of
such scheduled payments resulting from the application of any voluntary or
mandatory prepayments made during the applicable period, (b) shall be deemed to
include the Attributable Indebtedness in respect of Capital Leases, Sale and
Leaseback Transactions and Synthetic Leases and (c) shall not include any
voluntary prepayments or mandatory prepayments required pursuant to Section
2.05.
"Consolidated Senior Leverage Ratio" means, as of any date of
determination, the ratio of (a) the sum of (i) Consolidated Funded Indebtedness
as of such date minus (ii) Subordinated Indebtedness of the Borrower and its
Subsidiaries as of such date on a consolidated basis determined in accordance
with GAAP to (b) Consolidated EBITDA for the period of the four fiscal quarters
most recently ended for which the Borrower has delivered financial statements
pursuant to Section 7.01(a) or (b).
7
"Contract Provider" means any Person or any employee, agent or
subcontractor of such Person who provides professional health care services
under or pursuant to any contract with the Borrower or any Subsidiary.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
Property is bound.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto. Without
limiting the generality of the foregoing, a Person shall be deemed to be
Controlled by another Person if such other Person possesses, directly or
indirectly, power to vote 5% or more of the securities having ordinary voting
power for the election of directors, managing general partners or the
equivalent.
"Credit Extension" means each of the following: (a) a Borrowing and (b) a
L/C Credit Extension.
"Debt Issuance" means the issuance by the Borrower or any Subsidiary of
any Indebtedness other than Indebtedness permitted under Section 8.03.
"Debtor Relief Laws" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Default" means any event or condition that constitutes an Event of
Default or that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
"Default Rate" means (a) when used with respect to Obligations other than
Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the
Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2% per annum;
provided, however, that with respect to a Eurodollar Rate Loan, the Default Rate
shall be an interest rate equal to the interest rate (including any Applicable
Rate) otherwise applicable to such Loan plus 2% per annum, in each case to the
fullest extent permitted by applicable Laws and (b) when used with respect to
Letter of Credit Fees, a rate equal to the Applicable Rate plus 2% per annum.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Loans, participations in L/C Obligations or participations in
Swing Line Loans required to be funded by it hereunder within one Business Day
of the date required to be funded by it hereunder, (b) has otherwise failed to
pay over to the Administrative Agent or any other Lender any other amount
required to be paid by it hereunder within one Business Day of the date when
due, unless the subject of a good faith dispute, or (c) has been deemed
insolvent or become the subject of a bankruptcy or insolvency proceeding.
"Disposition" or "Dispose" means the sale, transfer, license, lease or
other disposition of any Property by the Borrower or any Subsidiary (including
the Capital Stock of any Subsidiary), including any Sale and Leaseback
Transaction and any sale, assignment, transfer or other disposal, with or
without recourse, of any notes or accounts receivable or any rights and claims
associated therewith, but excluding any Involuntary Disposition.
"Dollar" and "$" mean lawful money of the United States.
8
"Domestic Subsidiary" means any Subsidiary that is organized under the
laws of any state of the United States or the District of Columbia.
"EBITDA" means, for any period, for any Person, an amount equal to the sum
of (a) net income for such period plus (b) the following to the extent deducted
in calculating such net income: (i) interest expense for such period, (ii) the
provision for federal, state, local and foreign income taxes, value added taxes
and similar taxes payable for such period, (iii) the amount of depreciation and
amortization expense for such period, and (iv) non-cash charges, minus (c) any
non-cash items increasing such net income for such period (except to the extent
cash relating to such item has been received after the date of this Agreement).
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender; (c)
an Approved Fund; and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent (and in the case of an assignment of a
Revolving Commitment, the L/C Issuer and the Swing Line Lender), and (ii) unless
an Event of Default has occurred and is continuing, the Borrower (each such
approval not to be unreasonably withheld or delayed); provided that
notwithstanding the foregoing, "Eligible Assignee" shall not include the
Borrower or any of the Borrower's Affiliates or Subsidiaries.
"Environmental Laws" means any and all federal, state, local, foreign and
other applicable statutes, laws, regulations, ordinances, rules, judgments,
orders, decrees, permits, concessions, grants, franchises, licenses, agreements
or governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including
those related to hazardous substances or wastes, air emissions and discharges to
waste or public systems.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Issuance" means any issuance by the Borrower or any Subsidiary to
any Person of its Capital Stock, other than (a) any issuance of its Capital
Stock under any stock option, stock incentive or similar plan approved by the
shareholders of the Borrower, (b) any issuance of its Capital Stock pursuant to
the conversion of any debt securities to equity or the conversion of any class
equity securities to any other class of equity securities, (c) any issuance of
options or warrants relating to its Capital Stock, and (d) any issuance by the
Borrower of its Capital Stock as consideration for a Permitted Acquisition. The
term "Equity Issuance" shall not be deemed to include any Disposition.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Borrower within the meaning of
Section 414(b) or (c) of the Internal Revenue Code (and Sections 414(m) and (o)
of the Internal Revenue Code for purposes of provisions relating to Section 412
of the Internal Revenue Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a
9
complete or partial withdrawal by the Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate, the treatment
of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or
the commencement of proceedings by the PBGC to terminate a Pension Plan or
Multiemployer Plan; (e) an event or condition which constitutes grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any
liability under Title IV of ERISA, other than for PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA
Affiliate.
"Eurodollar Base Rate" means, for any Interest Period with respect to a
Eurodollar Rate Loan, the rate per annum equal to the British Bankers
Association LIBOR Rate ("BBA LIBOR"), as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as designated by
the Administrative Agent from time to time) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, for
Dollar deposits (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period. If such rate is not available at such
time for any reason, then the "Eurodollar Rate" for such Interest Period shall
be the rate per annum determined by the Administrative Agent to be the rate at
which deposits in Dollars for delivery on the first day of such Interest Period
in same day funds in the approximate amount of the Eurodollar Rate Loan being
made, continued or converted by Bank of America and with a term equivalent to
such Interest Period would be offered by Bank of America's London Branch to
major banks in the London interbank eurodollar market at their request at
approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.
"Eurodollar Rate" means, for any Interest Period with respect to any
Eurodollar Rate Loan, a rate per annum determined by the Administrative Agent to
be equal to the quotient obtained by dividing (a) the Eurodollar Base Rate for
such Eurodollar Rate Loan for such Interest Period by (b) one minus the
Eurodollar Reserve Percentage for such Eurodollar Rate Loan for such Interest
Period.
"Eurodollar Rate Loan" means a Loan that bears interest at a rate based on
the Eurodollar Rate.
"Eurodollar Reserve Percentage" means, for any day during any Interest
Period, the reserve percentage (expressed as a decimal, carried out to five
decimal places) in effect on such day, whether or not applicable to any Lender,
under regulations issued from time to time by the FRB for determining the
maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities"). The Eurodollar Rate for each
outstanding Eurodollar Rate Loan shall be adjusted automatically as of the
effective date of any change in the Eurodollar Reserve Percentage.
"Event of Default" has the meaning specified in Section 9.01.
"Excluded Equity Issuance" means any Equity Issuance to the extent the Net
Cash Proceeds thereof are used in a manner expressly permitted by Section
8.06(b), (g) or (i).
"Excluded Property" means, with respect to any Loan Party, (a) any owned
real property unless, in the case of real Property with a fair market value in
excess of $100,000, requested in writing by the Administrative Agent or the
Required Lenders, (b) any leased real Property unless requested in writing by
the Administrative Agent or the Required Lenders, (c) any owned or leased
personal Property located outside of the United States unless requested in
writing by the Administrative Agent or the Required Lenders, (d) any personal
Property (including, without limitation, motor vehicles) in respect of which
perfection of a Lien is not either (i) governed by the Uniform Commercial Code
or (ii) effected by appropriate evidence of the Lien being filed in either the
United States Copyright Office or the United States
10
Patent and Trademark Office, unless requested by the Administrative Agent or the
Required Lenders, (e) the Capital Stock of any direct Foreign Subsidiary of a
Loan Party to the extent not required to be pledged to secure the Obligations
pursuant to Section 7.14(a), (f) any Property which, subject to the terms of
Section 8.09, is subject to a Lien of the type described in Section 8.01(f)
pursuant to documents which prohibit such Loan Party from granting any other
Liens in such property, (g) any lease, license or other contract if the grant of
a security interest in such lease, license or contract is prohibited by the
terms of such lease, license or contract or by Law and would result in the
termination of such lease, license or contract or give the other parties thereto
the right to terminate, accelerate or otherwise adversely alter such Grantor's
rights, titles and interests thereunder (including upon the giving of notice or
the lapse of time or both), but only to the extent that any such prohibition
could not be rendered ineffective pursuant to the UCC or any other applicable
law (including Debtor Relief Laws) or principles of equity and (h) any Property
with respect to which the Administrative Agent has determined in its sole
discretion that the collateral value thereof is insufficient to justify the
difficulty, time, effort or expense of obtaining a perfected security interest
therein.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, the L/C Issuer or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) taxes imposed on or
measured by its overall net income (however denominated), and franchise taxes
imposed on it (in lieu of net income taxes), by the jurisdiction (or any
political subdivision thereof) under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable Lending Office is located, (b) any branch
profits taxes imposed by the United States or any similar tax imposed by any
other jurisdiction in which the Borrower is located and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 11.13), any withholding tax that is imposed on amounts payable to
such Foreign Lender at the time such Foreign Lender becomes a party hereto (or
designates a new Lending Office) or is attributable to such Foreign Lender's
failure or inability (other than as a result of a Change in Law) to comply with
Section 3.01(e), except to the extent that such Foreign Lender (or its assignor,
if any) was entitled, at the time of designation of a new Lending Office (or
assignment), to receive additional amounts from the Borrower with respect to
such withholding tax pursuant to Section 3.01(a).
"Exclusion Event" means an event or events resulting in the exclusion of
the Borrower or any Subsidiary or any of the Facilities from participation in
any Medical Reimbursement Program.
"Facilities" means, at any time, a collective reference to the facilities
and real properties owned, leased, managed or operated by the Borrower or any
Subsidiary.
"Federal Funds Rate" means, for any day, the rate per annum equal to the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of
America on such day on such transactions as determined by the Administrative
Agent.
"Fee Letter" means the letter agreement, dated February 10, 2005, among
the Borrower, the Administrative Agent and BAS.
11
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is resident for tax purposes.
For purposes of this definition, the United States, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is not a Domestic
Subsidiary.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"Funded Indebtedness" means, as to any Person at a particular time,
without duplication, all of the following, whether or not included as
indebtedness or liabilities in accordance with GAAP:
(a) all obligations for borrowed money, whether current or long-term
(including the Obligations) and all obligations of such Person evidenced
by bonds, debentures, notes, loan agreements or other similar instruments;
(b) all purchase money indebtedness;
(c) the principal portion of all obligations under conditional sale
or other title retention agreements relating to Property purchased by such
Person (other than customary reservations or retentions of title under
agreements with suppliers entered into in the ordinary course of
business);
(d) all maximum amount available to be drawn under letters of credit
(including standby and commercial), bankers' acceptances, bank guaranties,
surety bonds and similar instruments;
(e) all obligations in respect of the deferred purchase price of
Property or services (other than trade accounts payable in the ordinary
course of business);
(f) Attributable Indebtedness in respect of Capital Leases, Sale and
Leaseback Transactions, Synthetic Leases and Securitization Transactions;
(g) all obligations of such Person to purchase, redeem, retire,
defease or otherwise make any payment (including any sinking fund payment)
in respect of any Capital Stock in such Person or any other Person,
valued, in the case of a redeemable preferred interest, at the greater of
its voluntary or involuntary liquidation preference plus accrued and
unpaid dividends;
(h) all Funded Indebtedness of others to the extent secured by (or
for which the holder of such Funded Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on, or payable out of
the proceeds of production from, Property owned or acquired by such
Person, whether or not the obligations secured thereby have been assumed;
(i) all Guarantees with respect to Funded Indebtedness of the types
specified in clauses (a) through (i) above of another Person; and
(j) all Funded Indebtedness of the types referred to in clauses (a)
through (j) above of any partnership or joint venture (other than a joint
venture that is itself a corporation or limited
12
liability company) in which such Person is a general partner or joint
venturer, unless such Funded Indebtedness is expressly made non-recourse
to such Person.
"GAAP" means generally accepted accounting principles in the United States
set forth in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board, consistently applied
and as in effect from time to time.
"Governmental Authority" means the government of the United States or any
other nation, or of any political subdivision thereof, whether state or local,
and any agency, authority, instrumentality, regulatory body, court, central bank
or other entity exercising executive, legislative, judicial, taxing, regulatory
or administrative powers or functions of or pertaining to government (including
any supra-national bodies such as the European Union or the European Central
Bank).
"Governmental Reimbursement Program Cost" means with respect to and
payable by the Borrower and its Subsidiaries the sum of:
(a) all amounts (including punitive and other similar amounts)
agreed to be paid or payable (i) in settlement of claims or (ii) as a
result of a final, non-appealable judgment, award or similar order, in
each case, relating to participation in Medical Reimbursement Programs;
(b) all final, non-appealable fines, penalties, forfeitures or other
amounts rendered pursuant to criminal indictments or other criminal
proceedings relating to participation in Medical Reimbursement Programs;
and
(c) the amount of final, non-appealable recovery, damages, awards,
penalties, forfeitures or similar amounts rendered in any litigation,
suit, arbitration, investigation, review or other legal or administrative
proceeding of any kind relating to participation in Medical Reimbursement
Programs.
"Guarantee" means, as to any Person, (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person. The amount of any Guarantee shall be
deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is
made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by the guaranteeing Person in good
faith. The term "Guarantee" shall not include (a) the indorsement by the
Borrower or any Subsidiary of negotiable instruments payable to such Person for
deposit or collection in the ordinary course of business, (b) guarantees
executed by the Borrower or any Subsidiary with respect to operating lease
obligations of the Borrower or any Subsidiary and (c) indemnification by the
Borrower or any
13
Subsidiary of (i) the officers, directors, employees and agents of the Borrower
or such Subsidiary, to the extent such indemnification is permissible under
applicable Laws, (ii) commercial banks, investment bankers and other independent
consultants or professional advisors pursuant to agreements relating to the
underwriting of the Borrower's or such Subsidiary's securities or the rendering
of banking or professional services to the Borrower or such Subsidiary and (iii)
landlords, licensors, licensees and other parties pursuant to agreements entered
into in the ordinary course of business by the Borrower or such Subsidiary. The
term "Guarantee" as a verb has a corresponding meaning.
"Guaranty" means the Guaranty made by the Guarantors in favor of the
Administrative Agent and the Lenders pursuant to Article IV.
"Guarantors" means each Domestic Subsidiary of the Borrower identified as
a "Guarantor" on the signature pages hereto and each other Person that joins as
a Guarantor pursuant to Section 7.12, together with their successors and
permitted assigns.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"HHS" means the United States Department of Health and Human Services and
any successor thereof.
"Honor Date" has the meaning set forth in Section 2.03(c).
"HIPAA" means the Health Insurance Portability and Accountability Act of
1996, Pub. L. 104-191, Aug. 21, 1996, 110 Stat. 1936.
"Immaterial Subsidiary" means any Subsidiary that, as of any date of
determination, has total assets with an aggregate fair market value of less than
$100,000.
"Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all Funded Indebtedness;
(b) the Swap Termination Value of any Swap Contract;
(c) all Guarantees with respect to outstanding Indebtedness of the
types specified in clauses (a) and (b) above of any other Person; and
(d) all Indebtedness of the types referred to in clauses (a) through
(c) above of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such
Person is a general partner or joint venturer, unless such Indebtedness is
expressly made non-recourse to such Person.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitees" has the meaning specified in Section 11.04(b).
"Information" has the meaning specified in Section 11.07.
14
"Interest Payment Date" means (a) as to any Eurodollar Rate Loan, the last
day of each Interest Period applicable to such Eurodollar Rate Loan and the
Maturity Date; provided, however, that if any Interest Period for a Eurodollar
Rate Loan exceeds three months, the respective dates that fall every three
months after the beginning of such Interest Period shall also be Interest
Payment Dates; and (b) as to any Base Rate Loan (including any Swing Line Loan),
the first Business Day of each January, April, July and October and the Maturity
Date.
"Interest Period" means, as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to or
continued as a Eurodollar Rate Loan and ending on the date one, two, three or
six months thereafter, as selected by the Borrower in its Loan Notice; provided
that:
(a) any Interest Period that would otherwise end on a day that is
not a Business Day shall be extended to the next succeeding Business Day
unless such Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Business Day;
(b) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period; and
(c) no Interest Period shall extend beyond the Maturity Date.
"Interim Financial Statements" means the unaudited consolidated balance
sheet of the Borrower and its Subsidiaries for the fiscal quarter ended December
31, 2004, and the related consolidated statements of income or operations,
shareholders' equity and cash flows of the Borrower and its Subsidiaries for
such fiscal quarter, including the notes thereto.
"Internal Control Event" means a material weakness in, or fraud that
involves management or other employees who have a significant role in, the
Borrower's internal controls over financial reporting, in each case as described
in the Securities Laws.
"Internal Revenue Code" means the Internal Revenue Code of 1986.
"Investment" means, as to any Person, any direct or indirect acquisition
or investment by such Person, whether by means of (a) the purchase or other
acquisition of Capital Stock of another Person, (b) a loan, advance or capital
contribution to, Guarantee or assumption of debt of, or purchase or other
acquisition of any other debt or equity participation or interest in, another
Person, including any partnership or joint venture interest in such other Person
and any arrangement pursuant to which the investor Guarantees Indebtedness of
such other Person, or (c) an Acquisition. For purposes of covenant compliance,
the amount of any Investment shall be the amount actually initially invested,
without adjustment for subsequent increases or decreases in the value of such
Investment.
"Involuntary Disposition" means any loss of, damage to or destruction of,
or any condemnation or other taking for public use of, any Property of the
Borrower or any Subsidiary.
"IP Rights" has the meaning specified in Section 6.17.
"IRS" means the United States Internal Revenue Service.
15
"ISP" means, with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time of
issuance).
"Issuer Documents" means with respect to any Letter of Credit, the Letter
of Credit Application, and any other document, agreement and instrument entered
into by the L/C Issuer and the Borrower (or any Subsidiary) or in favor the L/C
Issuer and relating to any such Letter of Credit.
"Joinder Agreement" means a joinder agreement substantially in the form of
Exhibit F executed and delivered by a Domestic Subsidiary in accordance with the
provisions of Section 7.12.
"Laws" means, collectively, all international, foreign, federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"L/C Advance" means, with respect to each Lender, such Lender's funding of
its participation in any L/C Borrowing in accordance with its Applicable
Percentage.
"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when made
or refinanced as a Borrowing of Revolving Loans.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the increase of the
amount thereof.
"L/C Issuer" means Bank of America in its capacity as issuer of Letters of
Credit hereunder, or any successor issuer of Letters of Credit hereunder.
"L/C Obligations" means, as at any date of determination, the aggregate
amount available to be drawn under all outstanding Letters of Credit plus the
aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For
purposes of computing the amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.06. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may
still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP,
such Letter of Credit shall be deemed to be "outstanding" in the amount so
remaining available to be drawn.
"Lenders" means each of the Persons identified as a "Lender" on the
signature pages hereto and their successors and assigns and, as the context
requires, includes the Swing Line Lender.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Borrower
and the Administrative Agent.
"Letter of Credit" means any standby letter of credit issued hereunder.
"Letter of Credit Application" means an application and agreement for the
issuance or amendment of a letter of credit in the form from time to time in use
by the L/C Issuer.
16
"Letter of Credit Expiration Date" means the day that is thirty days prior
to the Maturity Date then in effect (or, if such day is not a Business Day, the
next preceding Business Day).
"Letter of Credit Fee" has the meaning specified in Section 2.03(i).
"Letter of Credit Sublimit" means an amount equal to the lesser of (a) the
Aggregate Revolving Commitments and (b) $2,000,000. The Letter of Credit
Sublimit is part of, and not in addition to, the Aggregate Revolving
Commitments.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement in the nature of
a security interest of any kind or nature whatsoever (including any conditional
sale or other title retention agreement, any easement, right of way or other
encumbrance on title to real property, and any financing lease having
substantially the same economic effect as any of the foregoing).
"Loan" means an extension of credit by a Lender to the Borrower under
Article II in the form of a Revolving Loan or Swing Line Loan.
"Loan Documents" means this Agreement, each Revolving Note, each Issuer
Document, each Joinder Agreement, the Collateral Documents, the 2003
Subordinated Note Side Letter and the Fee Letter.
"Loan Notice" means a notice of (a) a Borrowing of Revolving Loans, (b) a
conversion of Loans from one Type to the other, or (c) a continuation of
Eurodollar Rate Loans, in each case pursuant to Section 2.02(a), which, if in
writing, shall be substantially in the form of Exhibit A.
"Loan Parties" means, collectively, the Borrower and each Guarantor.
"Maintenance Capital Expenditure Adjustment" means, for the Borrower and
its Subsidiaries on a consolidated basis, as of any date of determination, an
amount equal to the product obtained by multiplying $75,000 by the number of
Centers owned or leased by the Borrower and its Subsidiaries as of such date,
excluding Centers that either (without duplication) (i) are under development
(i.e., with respect to which the Borrower or a Subsidiary has entered into an
agreement without material contingencies to purchase or lease an interest in
real estate for the purpose of developing and constructing a Center) or (ii)
have not yet achieved positive EBITDA for the most recent fiscal quarter for
which the Borrower has delivered financial statements pursuant to Section
7.01(a) or (b).
"Majority Interest Joint Venture" means a Domestic Subsidiary (a) that is
not a Wholly Owned Subsidiary and (b) whose Property consists (or upon the
acquisition or completion of development thereof will consist) solely of a
Center and Property directly related to the operations of such Center.
"Material Subsidiary" means any Subsidiary that is not an Immaterial
Subsidiary (other than a Majority Owned Subsidiary).
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, liabilities
(actual or contingent), condition (financial or otherwise) or prospects of the
Borrower and its Subsidiaries taken as a whole; (b) a material impairment of the
ability of the Loan Parties taken as a whole to perform their obligations under
the Loan Documents; or (c) a material adverse effect upon the legality,
validity, binding effect or enforceability against any Loan Party of any Loan
Document to which it is a party.
17
"Material Indebtedness" means any Indebtedness (excluding Indebtedness
under the Loan Documents and Indebtedness under Swap contracts, but specifically
including Indebtedness with respect to preferred Equity Interests) having an
aggregate principal amount (including undrawn committed or available amounts and
including amounts owing to all creditors under any combined or syndicated credit
arrangement) of more than the Threshold Amount.
"Maturity Date" means March 21, 2010.
"Medicaid" means that means-tested entitlement program under Title XIX of
the Social Security Act, which provides federal grants to states for medical
assistance based on specific eligibility criteria, as set forth at Section 1396,
et seq. of Title 42 of the United Sates Code, as amended, and any statute
succeeding thereto.
"Medicaid Provider Agreement" means an agreement entered into between a
state agency or other such entity administering the Medicaid program and a
health care provider or supplier under which the health care provider or
supplier agrees to provide items and services for Medicaid patients in
accordance with the terms of the agreement and Medicaid Regulations.
"Medicaid Regulations" means, collectively, (i) all federal statutes
(whether set forth in Title XIX of the Social Security Act or elsewhere)
affecting the medical assistance program established by Title XIX of the Social
Security Act and any statutes succeeding thereto; (ii) all applicable provisions
of all federal rules, regulations, manuals and orders of all Governmental
Authorities promulgated pursuant to or in connection with the statutes described
in clause (i) above and all federal administrative, reimbursement and other
guidelines of all Governmental Authorities having the force of law promulgated
pursuant to or in connection with the statutes described in clause (i) above;
(iii) all state statutes and plans for medical assistance enacted in connection
with the statutes and provisions described in clauses (i) and (ii) above; and
(iv) all applicable provisions of all rules, regulations, manuals and orders of
all Governmental Authorities promulgated pursuant to or in connection with the
statutes described in clause (iii) above and all state administrative,
reimbursement and other guidelines of all Governmental Authorities having the
force of law promulgated pursuant to or in connection with the statutes
described in clause (iii) above, in each case as may be amended, supplemented or
otherwise modified from time to time.
"Medical Reimbursement Programs" means a collective reference to the
Medicare, Medicaid and TRICARE programs and any other health care program
operated by or financed in whole or in part by any foreign or domestic federal,
state or local government and any other non-government funded third party payor
programs.
"Medicare" means that government-sponsored entitlement program under Title
XVIII of the Social Security Act, which provides for a health insurance system
for eligible elderly and disabled individuals, as set forth at Section 1395, et
seq. of Title 42 of the United States Code, as amended, and any statute
succeeding thereto.
"Medicare Provider Agreement" means an agreement entered into between CMS
or other such entity administering the Medicare program on behalf of CMS, and a
health care provider or supplier under which the health care provider or
supplier agrees to provide items and services for Medicare patients in
accordance with the terms of the agreement and Medicare Regulations.
"Medicare Regulations" means, collectively, all federal statutes (whether
set forth in Title XVIII of the Social Security Act or elsewhere) affecting the
health insurance program for the aged and disabled established by Title XVIII of
the Social Security Act and any statutes succeeding thereto; together with all
applicable provisions of all rules, regulations, manuals and orders and
administrative, reimbursement and
18
other guidelines having the force of law of all Governmental Authorities
(including, without limitation, CMS, the OIG, HHS, or any person succeeding to
the functions of any of the foregoing) promulgated pursuant to or in connection
with any of the foregoing having the force of law, as each may be amended,
supplemented or otherwise modified from time to time.
"Minority Interest Joint Venture" shall mean a Person that meets all of
the following requirements:
(a) such Person is organized under the laws of any state of the
United States or the District of Columbia;
(b) such Person shall be a Person in which the Borrower and its
Subsidiaries own Capital Stock, but is not a Subsidiary, and the remaining
Capital Stock of which is owned by (1) a hospital or hospital system, (2)
individual physicians or Persons owned, controlled, managed or operated by
individual physicians or (3) a Person in the business of operating or
managing Centers;
(c) there shall be no restriction on the ability of such Person to
pay dividends or make distributions of its available cash (i.e., cash
remaining after debt service, payment of expenses and the establishment of
reasonable reserves) to holders of its Capital Stock, other than any such
restrictions existing under applicable Law; and
(d) such Person shall be engaged exclusively in the ownership or
operation of a Center.
"Moody's" means Xxxxx'x Investors Service, Inc. and any successor thereto.
"Mortgaged Property" means any real property that is owned or leased by a
Loan Party and is subject to a Mortgage.
"Mortgages" means the mortgages, deeds of trust or deeds to secure debt
that purport to grant to the Administrative Agent a security interest in the fee
interest and/or leasehold interests of any Loan Party in real property.
"Multiemployer Plan" means any employee benefit plan of the type described
in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate
makes or is obligated to make contributions, or during the preceding five plan
years, has made or been obligated to make contributions.
"Net Cash Proceeds" means the aggregate cash or Cash Equivalents proceeds
received by the Borrower or any Subsidiary in respect of any Disposition, Equity
Issuance, Debt Issuance or Involuntary Disposition, net of (a) direct costs
incurred in connection therewith (including, without limitation, legal,
accounting and investment banking fees, and sales commissions), (b) taxes paid
or payable as a result thereof, (c) in the case of any Disposition or
Involuntary Disposition, the amount necessary to retire any Indebtedness secured
by a Permitted Lien (ranking senior to any Lien of the Administrative Agent) on
the related Property and (d) in the case of any Disposition by a Majority
Interest Joint Venture, the amount necessary to repay any Indebtedness evidenced
by any Pledged Note(s) issued by such Majority Interest Joint Venture; it being
understood that (i) "Net Cash Proceeds" shall include, without limitation, any
cash or Cash Equivalents received upon the sale or other disposition of any
non-cash consideration received by Loan Party in any Disposition, Equity
Issuance, Debt Issuance or Involuntary Disposition and (ii) the "Net Cash
Proceeds" from any Disposition, Equity Issuance, Debt Issuance or Involuntary
Disposition by any Majority Owned Joint
19
Venture shall be limited to the Borrower and its Subsidiaries ratable share of
the aggregate Net Cash Proceeds thereof.
"Obligations" means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Loan Party arising under any Loan Document or
otherwise with respect to any Loan or Letter of Credit, whether direct or
indirect (including those acquired by assumption), absolute or contingent, due
or to become due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against any Loan Party or any
Affiliate thereof of any proceeding under any Debtor Relief Laws naming such
Person as the debtor in such proceeding, regardless of whether such interest and
fees are allowed claims in such proceeding. The foregoing shall also include (a)
all obligations under any Swap Contract between any Loan Party and any Lender or
Affiliate of a Lender that is permitted to be incurred pursuant to Section
8.03(d) and (b) all obligations under any Treasury Management Agreement between
any Loan Party and any Lender or Affiliate of a Lender.
"OIG" means the Office of Inspector General of HHS and any successor
thereof.
"Organization Documents" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"Other Taxes" means all present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies arising from any
payment made hereunder or under any other Loan Document or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document.
"Outstanding Amount" means (i) with respect to any Loans on any date, the
aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of any Loans occurring on such date;
and (ii) with respect to any L/C Obligations on any date, the amount of such L/C
Obligations on such date after giving effect to any L/C Credit Extension
occurring on such date and any other changes in the aggregate amount of the L/C
Obligations as of such date, including as a result of any reimbursements by the
Borrower of Unreimbursed Amounts.
"Participant" has the meaning specified in Section 11.06(d).
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
"Pension Plan" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Borrower or
any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made contributions at any
time during the immediately preceding five plan years.
"Permitted Acquisitions" means Investments consisting of an Acquisition by
any Loan Party, provided that:
20
(a) the Property acquired shall consist primarily of (i) a Center or
(ii) the Capital Stock of a Person whose primary asset is (A) a Center or
(B) Capital Stock of a Subsidiary of such Person whose primary asset is a
Center;
(b) the Administrative Agent shall have received all items in
respect of the Capital Stock or Property acquired in such Acquisition
required to be delivered by the terms of Section 7.12 and/or Section 7.14;
(c) in the case of any Acquisition of the Capital Stock of another
Person, the board of directors (or other comparable governing body) of
such other Person shall have duly approved such Acquisition;
(d) the Borrower shall have delivered by no later than the Closing
Date of such Acquisition to the Administrative Agent a Pro Forma
Compliance Certificate demonstrating that, upon giving effect to such
Acquisition (and the incurrence or assumption of any Indebtedness in
connection therewith) on a Pro Forma Basis, the Loan Parties would be in
compliance with the financial covenants set forth in Section 8.11 as of
the most recent fiscal quarter for which the Borrower was required to
deliver financial statements pursuant to Section 7.01(a) or (b);
(e) the cash consideration (including Indebtedness assumed and
deferred purchase price obligations (including earn-out obligations)
payable in cash) for such Aquisition (other than the Scheduled
Acquisition) shall not exceed $30 million; and
(f) the total cash and non-cash consideration (including
Indebtedness assumed, deferred purchase price obligations (including
earn-out obligations) and Capital Stock) for all Acquisitions (other than
the Scheduled Acquisition) made during any period of twelve consecutive
months, together with the aggregate amount of all Investments made in
Minority Interest Joint Ventures by the Borrower or any Subsidiary during
such period, shall not exceed $75 million.
"Permitted Investments" means, at any time, Investments by the Borrower
and its Subsidiaries permitted to exist at such time pursuant to the terms of
Section 8.02.
"Permitted Liens" means, at any time, Liens in respect of property of the
Borrower and its Subsidiaries permitted to exist at such time pursuant to the
terms of Section 8.01.
"Permitted Transfers" means (a) Dispositions of inventory in the ordinary
course of business; (b) Dispositions of machinery and equipment no longer used
or useful in the conduct of business of the Borrower and its Subsidiaries; (c)
Dispositions of Property by any Loan Party to another Loan Party; (d)
Dispositions of accounts receivable in connection with the collection or
compromise thereof; (e) licenses, sublicenses, leases or subleases granted to
others not interfering in any material respect with the business of the Borrower
and its Subsidiaries; and (f) the sale or disposition of Cash Equivalents for
fair market value.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or, with respect to any such
plan that is subject to Section 412 of the Internal Revenue Code or Title IV of
ERISA, any ERISA Affiliate.
21
"Platform" has the meaning specified in Section 7.02.
"Pledged Note" has the meaning specified in Section 7.14(c).
"Pledgor" means any Majority Interest Joint Venture or any Minority
Interest Joint Venture that has issued any Pledged Note(s) to any Loan Party.
"Pro Forma Basis" means, for purposes of calculating the Consolidated
Total Leverage Ratio and the Consolidated Senior Leverage Ratio (including for
purposes of determining compliance with Section 8.11 and the Applicable Rate),
that any Disposition (other than Permitted Transfers), Involuntary Disposition
or Acquisition shall be deemed to have occurred as of the first day of the most
recent four fiscal quarter period preceding the date of such transaction for
which the Borrower was required to deliver financial statements pursuant to
Section 7.01(a) or (b). In connection with the foregoing, (a) with respect to
any Disposition or Involuntary Disposition, income statement and cash flow
statement items (whether positive or negative) attributable to the Property
disposed of shall be excluded to the extent relating to any period occurring
prior to the date of such transaction and (b) with respect to any Acquisition,
income statement items attributable to the Person or Property acquired shall be
included to the extent relating to any period applicable in such calculations to
the extent (i) such items are not otherwise included in such income statement
items for the Borrower and its Subsidiaries in accordance with GAAP or in
accordance with any defined terms set forth in Section 1.01 and (ii) such items
are supported by financial statements or other information reasonably
satisfactory to the Administrative Agent.
"Pro Forma Compliance Certificate" means a certificate of a Responsible
Officer of the Borrower containing reasonably detailed calculations of the
financial covenants set forth in Section 8.11 as of the most recent fiscal
quarter end for which the Borrower was required to deliver financial statements
pursuant to Section 7.01(a) or (b) after giving effect to the applicable
transaction on a Pro Forma Basis.
"Property" means an interest of any kind in any property or asset, whether
real, personal or mixed, and whether tangible or intangible (including, without
limitation, Capital Stock).
"Register" has the meaning specified in Section 11.06(c).
"Registered Public Accounting Firm" has the meaning specified in the
Securities Laws and shall be independent of the Borrower as prescribed by the
Securities Laws.
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors
of such Person and of such Person's Affiliates.
"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the thirty-day notice period has been waived.
"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Loans, a Loan Notice, (b) with respect to an L/C
Credit Extension, a Letter of Credit Application, and (c) with respect to a
Swing Line Loan, a Swing Line Loan Notice.
"Required Lenders" means, at any time, Lenders holding in the aggregate
more than 50% of (a) the unfunded Commitments and the outstanding Loans, L/C
Obligations and participations therein or (b) if the Commitments have been
terminated, the outstanding Loans, L/C Obligations and participations therein.
The unfunded Commitments of, and the outstanding Loans held or deemed held by,
any Defaulting Lender shall be excluded for purposes of making a determination
of Required Lenders.
22
"Responsible Officer" means the chief executive officer, president, chief
financial officer, controller, vice president or treasurer of a Loan Party. Any
document delivered hereunder that is signed by a Responsible Officer of a Loan
Party shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of such Loan Party and
such Responsible Officer shall be conclusively presumed to have acted on behalf
of such Loan Party.
"Restricted Payment" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any Capital Stock of the
Borrower or any Subsidiary, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancellation or termination of
any such Capital Stock or on account of any return of capital to the Borrower's
stockholders, partners or members (or the equivalent Person thereof), or any
setting apart of funds or property for any of the foregoing.
"Revolving Commitment" means, as to each Lender, its obligation to (a)
make Revolving Loans to the Borrower pursuant to Section 2.01, (b) purchase
participations in L/C Obligations, and (c) purchase participations in Swing Line
Loans, in an aggregate principal amount at any one time outstanding not to
exceed the amount set forth opposite such Lender's name on Schedule 2.01 or in
the Assignment and Assumption pursuant to which such Lender becomes a party
hereto, as applicable, as such amount may be adjusted from time to time in
accordance with this Agreement.
"Revolving Loan" has the meaning specified in Section 2.01(a).
"Revolving Note" has the meaning specified in Section 2.11.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. and any successor thereto.
"Sale and Leaseback Transaction" means, with respect to the Borrower or
any Subsidiary, any arrangement, directly or indirectly, with any Person whereby
the Borrower or such Subsidiary shall sell or transfer any Property used or
useful in its business, whether now owned or hereafter acquired, and thereafter
rent or lease such property or other property that it intends to use for
substantially the same purpose or purposes as the property being sold or
transferred.
"Xxxxxxxx-Xxxxx" means the Xxxxxxxx-Xxxxx Act of 2002.
"Scheduled Acquisition" means the Acquisition described on Schedule
8.02-2.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Securities Laws" means the Securities Act of 1933, the Securities
Exchange Act of 1934, Xxxxxxxx-Xxxxx and the applicable accounting and auditing
principles, rules, standards and practices promulgated, approved or incorporated
by the SEC or the Public Company Accounting Oversight Board, as each of the
foregoing may be amended and in effect on any applicable date hereunder.
"Securitization Transaction" means, with respect to any Person, any
financing transaction or series of financing transactions (including factoring
arrangements) pursuant to which such Person or any Subsidiary of such Person may
sell, convey or otherwise transfer, or grant a security interest in, accounts,
payments, receivables, rights to future lease payments or residuals or similar
rights to payment to a special purpose subsidiary or affiliate of such Person.
23
"Security Agreement" means the security and pledge agreement dated as of
the Closing Date executed in favor of the Administrative Agent by each of the
Loan Parties, as amended, modified and supplemented from time to time.
"Senior Secured Debt" has the meaning set forth in Section 8.03(f).
"Subordinated Indebtedness" means (a) the Indebtedness of the Borrower and
its Subsidiaries arising under the 2003 Subordinated Note Documents and (b) any
other Indebtedness of the Borrower and its Subsidiaries that is (i) subordinated
in right of payment to the Obligations on terms satisfactory to the Required
Lenders and (ii) on such other terms and conditions (including interest rate,
tenor and covenants) satisfactory to the Required Lenders.
"Subordinated Indebtedness Documents" means (a) the 2003 Subordinated Note
Documents and (b) all agreements, documents and instruments executed and/or
delivered by the Borrower or any Subsidiary in connection with any Subordinated
Indebtedness.
"Subsidiary" of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity of which a majority of the
shares of Voting Stock is at the time beneficially owned, or the management of
which is otherwise controlled, directly, or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise specified, all
references herein to a "Subsidiary" or to "Subsidiaries" shall refer to a
Subsidiary or Subsidiaries of the Borrower.
"Swap Contract" means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"), including
any such obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s) and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
xxxx-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"Swing Line Lender" means Bank of America in its capacity as provider of
Swing Line Loans, or any successor swing line lender hereunder.
"Swing Line Loan" has the meaning specified in Section 2.04(a).
24
"Swing Line Note" has the meaning specified in Section 2.11(a).
"Swing Line Loan Notice" means a notice of a Borrowing of Swing Line Loans
pursuant to Section 2.04(b), which, if in writing, shall be substantially in the
form of Exhibit B.
"Swing Line Sublimit" means an amount equal to the lesser of (a)
$5,000,000 and (b) the Aggregate Revolving Commitments. The Swing Line Sublimit
is part of, and not in addition to, the Aggregate Revolving Commitments.
"Synthetic Lease" means any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing arrangement
whereby the arrangement is considered borrowed money indebtedness for tax
purposes but is classified as an operating lease or does not otherwise appear on
a balance sheet under GAAP.
"Taxes" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
"Threshold Amount" means $1,000,000.
"Total Revolving Outstandings" means the aggregate Outstanding Amount of
all Revolving Loans, all Swing Line Loans and all L/C Obligations.
"Treasury Management Agreement" means any agreement governing the
provision of treasury or cash management services, including deposit accounts,
funds transfer, automated clearinghouse, zero balance accounts, returned check
concentration, controlled disbursement, lockbox, account reconciliation and
reporting and trade finance services.
"TRICARE" means the United States Department of Defense health care
program for service families (including TRICARE Prime, TRICARE Extra and TRICARE
Standard), and any successor or predecessor thereof.
"Type" means, with respect to any Loan, its character as a Base Rate Loan
or a Eurodollar Rate Loan.
"Unfunded Pension Liability" means the excess of a Pension Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Pension Plan's assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Internal Revenue Code
for the applicable plan year.
"United States" and "U.S." mean the United States of America.
"Unreimbursed Amount" has the meaning specified in Section 2.03(c)(i).
"Voting Stock" means, with respect to any Person, Capital Stock issued by
such Person the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons
performing similar functions) of such Person, even though the right so to vote
has been suspended by the happening of such a contingency.
25
"Wholly Owned Subsidiary" means any Person 100% of whose Capital Stock is
at the time owned by the Borrower directly or indirectly through other Persons
100% of whose Capital Stock is at the time owned, directly or indirectly, by the
Borrower.
"2003 Subordinated Note Documents" means the 2003 Subordinated Notes, the
2003 Subordinated Note Indenture and the 2003 Subordinated Note Purchase
Agreement, together with any other instruments and agreements entered into by
the Borrower or any Subsidiary in connection therewith.
"2003 Subordinated Note Indenture" means the Indenture dated as of among
the Borrower, as issuer, the Subsidiaries identified therein, as guarantors, and
the holders of the 2003 Subordinated Notes, as amended, modified and
supplemented prior to the Closing Date and as amended, modified and supplemented
after the Closing Date in accordance with the terms hereof.
"2003 Subordinated Note Purchase Agreement" means the Securities Purchase
Agreement, dated on or about July 18, 2003, entered into by the Borrower,
certain Subsidiaries of the Borrower, as guarantors, and DLJ Investment Partners
II, L.P., DLJ Investment Partners, L.P., and DLJIP II Holdings, L.P., as initial
purchasers, as amended, modified and supplemented prior to the Closing Date and
as amended, modified and supplemented after the Closing Date in accordance with
the terms hereof.
"2003 Subordinated Notes" means the 14 3/4% Senior Subordinated Notes Due
2008 of the Borrower issued from time to time pursuant to the 2003 Subordinated
Note Purchase Agreement or the 2003 Subordinated Note Indenture, as amended,
modified and supplemented prior to the Closing Date and as amended, modified and
supplemented after the Closing Date in accordance with the terms hereof.
"2003 Subordinated Note Side Letter" has the meaning specified in Section
5.01(h).
1.02 Other Interpretive Provisions.
With reference to this Agreement and each other Loan Document, unless
otherwise specified herein or in such other Loan Document:
(a) The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine
and neuter forms. The words "include," "includes" and "including" shall be
deemed to be followed by the phrase "without limitation." The word "will"
shall be construed to have the same meaning and effect as the word
"shall." Unless the context requires otherwise, (i) any definition of or
reference to any agreement, instrument or other document (including any
Organization Document) shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments,
supplements or modifications set forth herein or in any other Loan
Document), (ii) any reference herein to any Person shall be construed to
include such Person's successors and assigns, (iii) the words "herein,"
"hereof" and "hereunder," and words of similar import when used in any
Loan Document, shall be construed to refer to such Loan Document in its
entirety and not to any particular provision thereof, (iv) all references
in a Loan Document to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules
to, the Loan Document in which such references appear, (v) any reference
to any law shall include all statutory and regulatory provisions
consolidating, amending, replacing or interpreting such law and any
reference to any law or regulation shall, unless otherwise specified,
refer to such law or regulation as amended, modified or supplemented from
time to time, and (vi) the words "asset" and "property" shall be construed
to have the same meaning and effect and to refer
26
to any and all real and personal property and tangible and intangible
assets and properties, including cash, securities, accounts and contract
rights.
(b) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including;" the
words "to" and "until" each mean "to but excluding;" and the word
"through" means "to and including."
(c) Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
1.03 Accounting Terms.
(a) Generally. Except as otherwise specifically prescribed herein, all
accounting terms not specifically or completely defined herein shall be
construed in conformity with, and all financial data (including financial ratios
and other financial calculations) required to be submitted pursuant to this
Agreement shall be prepared in conformity with, GAAP applied on a consistent
basis, as in effect from time to time, applied in a manner consistent with that
used in preparing the Audited Financial Statements; provided, however, that
calculations of Attributable Indebtedness under any Synthetic Lease or the
implied interest component of any Synthetic Lease shall be made by the Borrower
in accordance with accepted financial practice and consistent with the terms of
such Synthetic Lease.
(b) Changes in GAAP. The Borrower will provide a written summary of
material changes in GAAP and in the consistent application thereof with each
annual and quarterly Compliance Certificate delivered in accordance with Section
7.02(b). If at any time any change in GAAP would affect the computation of any
financial ratio or requirement set forth in any Loan Document, and either the
Borrower or the Required Lenders shall so request, the Administrative Agent, the
Lenders and the Borrower shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such change in
GAAP (subject to the approval of the Required Lenders); provided that, until so
amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Borrower shall
provide to the Administrative Agent and the Lenders financial statements and
other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.
(c) Calculations. Notwithstanding the above, the parties hereto
acknowledge and agree that (i) all calculations of the Consolidated Total
Leverage Ratio and the Consolidated Senior Leverage Ratio (including for
purposes of determining compliance with Section 8.11 and determining the
Applicable Rate) shall be made on a Pro Forma Basis and (ii) all calculations of
the Consolidated Fixed Charges Coverage Ratio shall be made on a historical
basis.
1.04 Rounding.
Any financial ratios required to be maintained by the Borrower pursuant to
this Agreement shall be calculated by dividing the appropriate component by the
other component, carrying the result to one place more than the number of places
by which such ratio is expressed herein and rounding the result up or down to
the nearest number (with a rounding-up if there is no nearest number).
27
1.05 Times of Day.
Unless otherwise specified, all references herein to times of day shall be
references to Eastern time (daylight or standard, as applicable).
1.06 Letter of Credit Amounts.
Unless otherwise specified herein, the amount of a Letter of Credit at any
time shall be deemed to be the stated amount of such Letter of Credit in effect
at such time; provided, however, that with respect to any Letter of Credit that,
by its terms or the terms of any Issuer Document related thereto, provides for
one or more automatic increases in the stated amount thereof, the amount of such
Letter of Credit shall be deemed to be the maximum stated amount of such Letter
of Credit after giving effect to all such increases, whether or not such maximum
stated amount is in effect at such time.
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Revolving Loans.
Subject to the terms and conditions set forth herein, each Lender
severally agrees to make loans (each such loan, a "Revolving Loan") to the
Borrower in Dollars from time to time on any Business Day during the
Availability Period in an aggregate amount not to exceed at any time outstanding
the amount of such Lender's Revolving Commitment; provided, however, that after
giving effect to any Borrowing of Revolving Loans, (i) the Total Revolving
Outstandings shall not exceed the Aggregate Revolving Commitments, and (ii) the
aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such
Lender's Applicable Percentage of the Outstanding Amount of all L/C Obligations,
plus such Lender's Applicable Percentage of the Outstanding Amount of all Swing
Line Loans shall not exceed such Lender's Revolving Commitment. Within the
limits of each Lender's Revolving Commitment, and subject to the other terms and
conditions hereof, the Borrower may borrow under this Section 2.01, prepay under
Section 2.05, and reborrow under this Section 2.01. Revolving Loans may be Base
Rate Loans or Eurodollar Rate Loans, as further provided herein, provided,
however, all Borrowings made on the Closing Date shall be made as Base Rate
Loans.
2.02 Borrowings, Conversions and Continuations of Loans.
(a) Each Borrowing, each conversion of Loans from one Type to the other,
and each continuation of Eurodollar Rate Loans shall be made upon the Borrower's
irrevocable notice to the Administrative Agent, which may be given by telephone.
Each such notice must be received by the Administrative Agent not later than
11:00 a.m. (i) three Business Days prior to the requested date of any Borrowing
of, conversion to or continuation of, Eurodollar Rate Loans or of any conversion
of Eurodollar Rate Loans to Base Rate Loans, and (ii) on the requested date of
any Borrowing of Base Rate Loans. Each telephonic notice by the Borrower
pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the
Administrative Agent of a written Loan Notice, appropriately completed and
signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion
to or continuation of Eurodollar Rate Loans shall be in a principal amount of
$2,500,000 or a whole multiple of $100,000 in excess thereof. Except as provided
in Sections 2.03(c) and 2.04(c), each Borrowing of or conversion to Base Rate
Loans shall be in a principal amount of $1,000,000 or a whole multiple of
$100,000 in excess thereof. Each Loan Notice (whether telephonic or written)
shall specify (i) whether the Borrower is requesting a Borrowing, a conversion
of Loans from one Type to the other, or a continuation of Eurodollar Rate Loans,
(ii) the requested date of the Borrowing, conversion or continuation, as the
case
28
may be (which shall be a Business Day), (iii) the principal amount of Loans to
be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to
which existing Loans are to be converted, and (v) if applicable, the duration of
the Interest Period with respect thereto. If the Borrower fails to specify a
Type of a Loan in a Loan Notice or if the Borrower fails to give a timely notice
requesting a conversion or continuation, then the applicable Loans shall be made
as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate
Loans shall be effective as of the last day of the Interest Period then in
effect with respect to the applicable Eurodollar Rate Loans. If the Borrower
requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans
in any Loan Notice, but fails to specify an Interest Period, it will be deemed
to have specified an Interest Period of one month.
(b) Following receipt of a Loan Notice, the Administrative Agent shall
promptly notify each Lender of the amount of its Applicable Percentage of the
applicable Loans, and if no timely notice of a conversion or continuation is
provided by the Borrower, the Administrative Agent shall notify each Lender of
the details of any automatic conversion to Base Rate Loans as described in the
preceding subsection. In the case of a Borrowing, each Lender shall make the
amount of its Loan available to the Administrative Agent in immediately
available funds at the Administrative Agent's Office not later than 1:00 p.m. on
the Business Day specified in the applicable Loan Notice. Upon satisfaction of
the applicable conditions set forth in Section 5.02 (and, if such Borrowing is
the initial Credit Extension, Section 5.01), the Administrative Agent shall make
all funds so received available to the Borrower in like funds as received by the
Administrative Agent either by (i) crediting the account of the Borrower on the
books of Bank of America with the amount of such funds or (ii) wire transfer of
such funds, in each case in accordance with instructions provided to (and
reasonably acceptable to) the Administrative Agent by the Borrower; provided,
however, that if, on the date of a Borrowing of Revolving Loans, there are L/C
Borrowings outstanding, then the proceeds of such Borrowing, first, shall be
applied to the payment in full of any such L/C Borrowings and second, shall be
made available to the Borrower as provided above.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be
continued or converted only on the last day of the Interest Period for such
Eurodollar Rate Loan. During the existence of a Default, no Loans may be
requested as, converted to or continued as Eurodollar Rate Loans without the
consent of the Required Lenders, and the Required Lenders may demand that any or
all of the then outstanding Eurodollar Rate Loans be converted immediately to
Base Rate Loans.
(d) The Administrative Agent shall promptly notify the Borrower and the
Lenders of the interest rate applicable to any Interest Period for Eurodollar
Rate Loans upon determination of such interest rate. At any time that Base Rate
Loans are outstanding, the Administrative Agent shall notify the Borrower and
the Lenders of any change in Bank of America's prime rate used in determining
the Base Rate promptly following the public announcement of such change.
(e) After giving effect to all Borrowings, all conversions of Loans from
one Type to the other, and all continuations of Loans as the same Type, there
shall not be more than nine (9) Interest Periods.
2.03 Letters of Credit.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the
L/C Issuer agrees, in reliance upon the agreements of the Lenders set
forth in this Section 2.03, (1) from time to time on any Business Day
during the period from the Closing Date until the Letter of Credit
Expiration Date, to issue Letters of Credit in Dollars for the account of
the Borrower or any of its Subsidiaries, and to amend or extend Letters of
Credit previously issued by it, in accordance with
29
subsection (b) below, and (2) to honor drawings under the Letters of
Credit; and (B) the Lenders severally agree to participate in Letters of
Credit issued for the account of the Borrower or its Subsidiaries and any
drawings thereunder; provided that after giving effect to any L/C Credit
Extension with respect to any Letter of Credit, (x) the Total Revolving
Outstandings shall not exceed the Aggregate Revolving Commitments, (y) the
aggregate Outstanding Amount of the Revolving Loans of any Lender, plus
such Lender's Applicable Percentage of the Outstanding Amount of all L/C
Obligations, plus such Lender's Applicable Percentage of the Outstanding
Amount of all Swing Line Loans shall not exceed such Lender's Revolving
Commitment and (z) the Outstanding Amount of the L/C Obligations shall not
exceed the Letter of Credit Sublimit. Each request by the Borrower for the
issuance or amendment of a Letter of Credit shall be deemed to be a
representation by the Borrower that the L/C Credit Extension so requested
complies with the conditions set forth in the proviso to the preceding
sentence. Within the foregoing limits, and subject to the terms and
conditions hereof, the Borrower's ability to obtain Letters of Credit
shall be fully revolving, and accordingly the Borrower may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit
that have expired or that have been drawn upon and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit if:
(A) subject to Section 2.03(b)(iii), the expiry date of such
requested Letter of Credit would occur more than twelve months after
the date of issuance or last extension, unless the Required Lenders
have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would
occur after the Letter of Credit Expiration Date, unless all the
Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any
Letter of Credit if:
(A) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or
restrain the L/C Issuer from issuing such Letter of Credit, or any
Law applicable to the L/C Issuer or any request or directive
(whether or not having the force of law) from any Governmental
Authority with jurisdiction over the L/C Issuer shall prohibit, or
request that the L/C Issuer refrain from, the issuance of letters of
credit generally or such Letter of Credit in particular or shall
impose upon the L/C Issuer with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which the L/C
Issuer is not otherwise compensated hereunder) not in effect on the
Closing Date, or shall impose upon the L/C Issuer any unreimbursed
loss, cost or expense which was not applicable on the Closing Date
and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or
more policies of the L/C Issuer;
(C) except as otherwise agreed by the Administrative Agent and
the L/C Issuer, such Letter of Credit is in an initial stated amount
less than $50,000;
(D) such Letter of Credit is to be denominated in a currency
other than Dollars;
(E) such Letter of Credit contains any provisions for
automatic reinstatement of the stated amount after any drawing
thereunder; or
30
(F) a default of any Lender's obligations to fund under
Section 2.03(c) exists or any Lender is at such time a Defaulting
Lender hereunder, unless the L/C Issuer has entered into
satisfactory arrangements with the Borrower or such Lender to
eliminate the L/C Issuer's risk with respect to such Lender.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C
Issuer would not be permitted at such time to issue such Letter of Credit
in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter
of Credit if (A) the L/C Issuer would have no obligation at such time to
issue such Letter of Credit in its amended form under the terms hereof, or
(B) the beneficiary of such Letter of Credit does not accept the proposed
amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with respect
to any Letters of Credit issued by it and the documents associated
therewith, and the L/C Issuer shall have all of the benefits and
immunities (A) provided to the Administrative Agent in Article X with
respect to any acts taken or omissions suffered by the L/C Issuer in
connection with Letters of Credit issued by it or proposed to be issued by
it and Issuer Documents pertaining to such Letters of Credit as fully as
if the term "Administrative Agent" as used in Article X included the L/C
Issuer with respect to such acts or omissions, and (B) as additionally
provided herein with respect to the L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Extension Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case
may be, upon the request of the Borrower delivered to the L/C Issuer (with
a copy to the Administrative Agent) in the form of a Letter of Credit
Application, appropriately completed and signed by a Responsible Officer
of the Borrower. Such Letter of Credit Application must be received by the
L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least
five (5) Business Days (or such later date and time as the Administrative
Agent and the L/C Issuer may agree in a particular instance in their sole
discretion) prior to the proposed issuance date or date of amendment, as
the case may be. In the case of a request for an initial issuance of a
Letter of Credit, such Letter of Credit Application shall specify in form
and detail satisfactory to the L/C Issuer: (A) the proposed issuance date
of the requested Letter of Credit (which shall be a Business Day); (B) the
amount thereof; (C) the expiry date thereof; (D) the name and address of
the beneficiary thereof; (E) the documents to be presented by such
beneficiary in case of any drawing thereunder; (F) the full text of any
certificate to be presented by such beneficiary in case of any drawing
thereunder; and (G) such other matters as the L/C Issuer may require. In
the case of a request for an amendment of any outstanding Letter of
Credit, such Letter of Credit Application shall specify in form and detail
satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B)
the proposed date of amendment thereof (which shall be a Business Day);
(C) the nature of the proposed amendment; and (D) such other matters as
the L/C Issuer may require. Additionally, the Borrower shall furnish to
the L/C Issuer and the Administrative Agent such other documents and
information pertaining to such requested Letter of Credit issuance or
amendment, including any Issuer Documents, as the L/C Issuer or the
Administrative Agent may require.
(ii) Promptly after receipt of any Letter of Credit Application, the
L/C Issuer will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent
31
has received a copy of such Letter of Credit Application from the Borrower
and, if not, the L/C Issuer will provide the Administrative Agent with a
copy thereof. Unless the L/C Issuer has received written notice from any
Lender, the Administrative Agent or any Loan Party, at least one Business
Day prior to the requested date of issuance or amendment of the applicable
Letter of Credit, that one or more applicable conditions contained in
Article V shall not be satisfied, then, subject to the terms and
conditions hereof, the L/C Issuer shall, on the requested date, issue a
Letter of Credit for the account of the Borrower or the applicable
Subsidiary or enter into the applicable amendment, as the case may be, in
each case in accordance with the L/C Issuer's usual and customary business
practices. Immediately upon the issuance of each Letter of Credit, each
Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the L/C Issuer a risk participation in such
Letter of Credit in an amount equal to the product of such Lender's
Applicable Percentage times the amount of such Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter of Credit
Application, the L/C Issuer may, in its sole and absolute discretion,
agree to issue a Letter of Credit that has automatic extension provisions
(each, an "Auto-Extension Letter of Credit"); provided that any such
Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any
such extension at least once in each twelve-month period (commencing with
the date of issuance of such Letter of Credit) by giving prior notice to
the beneficiary thereof not later than a day (the "Non-Extension Notice
Date") in each such twelve-month period to be agreed upon at the time such
Letter of Credit is issued. Unless otherwise directed by the L/C Issuer,
the Borrower shall not be required to make a specific request to the L/C
Issuer for any such extension. Once an Auto-Extension Letter of Credit has
been issued, the Lenders shall be deemed to have authorized (but may not
require) the L/C Issuer to permit the extension of such Letter of Credit
at any time to an expiry date not later than the Letter of Credit
Expiration Date; provided, however, that the L/C Issuer shall not permit
any such extension if (A) the L/C Issuer has determined that it would not
be permitted, or would have no obligation, at such time to issue such
Letter of Credit in its revised form (as extended) under the terms hereof
(by reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or
otherwise), or (B) it has received notice (which may be by telephone or in
writing) on or before the day that is five Business Days before the
Non-Extension Notice Date (1) from the Administrative Agent that the
Required Lenders have elected not to permit such extension or (2) from the
Administrative Agent, any Lender or the Borrower that one or more of the
applicable conditions specified in Section 5.02 is not then satisfied, and
in each case directing the L/C Issuer not to permit such extension.
(iv) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto
or to the beneficiary thereof, the L/C Issuer will also deliver to the
Borrower and the Administrative Agent a true and complete copy of such
Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of any
notice of drawing under such Letter of Credit, the L/C Issuer shall notify
the Borrower and the Administrative Agent thereof. Not later than 11:00
a.m. on the date of any payment by the L/C Issuer under a Letter of Credit
(each such date, an "Honor Date"), the Borrower shall reimburse the L/C
Issuer through the Administrative Agent in an amount equal to the amount
of such drawing. If the Borrower fails to so reimburse the L/C Issuer by
such time, the Administrative Agent shall promptly notify each Lender of
the Honor Date, the amount of the unreimbursed drawing (the "Unreimbursed
Amount"), and the amount of such Lender's Applicable Percentage thereof.
In such event, the Borrower shall be deemed to have requested a Borrowing
of Base
32
Rate Loans to be disbursed on the Honor Date in an amount equal to the
Unreimbursed Amount, without regard to the minimum and multiples specified
in Section 2.02 for the principal amount of Base Rate Loans, but subject
to the amount of the unutilized portion of the Aggregate Revolving
Commitments and the conditions set forth in Section 5.02 (other than the
delivery of a Loan Notice). Any notice given by the L/C Issuer or the
Administrative Agent pursuant to this Section 2.03(c)(i) may be given by
telephone if immediately confirmed in writing; provided that the lack of
such an immediate confirmation shall not affect the conclusiveness or
binding effect of such notice.
(ii) Each Lender shall upon any notice pursuant to Section
2.03(c)(i) make funds available to the Administrative Agent for the
account of the L/C Issuer at the Administrative Agent's Office in an
amount equal to its Applicable Percentage of the Unreimbursed Amount not
later than 1:00 p.m. on the Business Day specified in such notice by the
Administrative Agent, whereupon, subject to the provisions of Section
2.03(c)(iii), each Lender that so makes funds available shall be deemed to
have made a Base Rate Loan to the Borrower in such amount. The
Administrative Agent shall remit the funds so received to the L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully
refinanced by a Borrowing of Base Rate Loans because the conditions set
forth in Section 5.02 cannot be satisfied or for any other reason, the
Borrower shall be deemed to have incurred from the L/C Issuer an L/C
Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which L/C Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at the Default Rate. In
such event, each Lender's payment to the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed
payment in respect of its participation in such L/C Borrowing and shall
constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section 2.03.
(iv) Until each Lender funds its Revolving Loan or L/C Advance
pursuant to this Section 2.03(c) to reimburse the L/C Issuer for any
amount drawn under any Letter of Credit, interest in respect of such
Lender's Applicable Percentage of such amount shall be solely for the
account of the L/C Issuer.
(v) Each Lender's obligation to make Revolving Loans or L/C Advances
to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as
contemplated by this Section 2.03(c), shall be absolute and unconditional
and shall not be affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right which such Lender may
have against the L/C Issuer, the Borrower or any other Person for any
reason whatsoever; (B) the occurrence or continuance of a Default, or (C)
any other occurrence, event or condition, whether or not similar to any of
the foregoing; provided, however, that each Lender's obligation to make
Revolving Loans pursuant to this Section 2.03(c) is subject to the
conditions set forth in Section 5.02 (other than delivery by the Borrower
of a Loan Notice). No such making of an L/C Advance shall relieve or
otherwise impair the obligation of the Borrower to reimburse the L/C
Issuer for the amount of any payment made by the L/C Issuer under any
Letter of Credit, together with interest as provided herein.
(vi) If any Lender fails to make available to the Administrative
Agent for the account of the L/C Issuer any amount required to be paid by
such Lender pursuant to the foregoing provisions of this Section 2.03(c)
by the time specified in Section 2.03(c)(ii), the L/C Issuer shall be
entitled to recover from such Lender (acting through the Administrative
Agent), on demand, such amount with interest thereon for the period from
the date such payment is required to the date on which such payment is
immediately available to the L/C Issuer at a rate per annum equal
33
to the greater of the Federal Funds Rate and a rate determined by the L/C
Issuer in accordance with banking industry rules on interbank
compensation. A certificate of the L/C Issuer submitted to any Lender
(through the Administrative Agent) with respect to any amounts owing under
this clause (vi) shall be conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under any
Letter of Credit and has received from any Lender such Lender's L/C
Advance in respect of such payment in accordance with Section 2.03(c), if
the Administrative Agent receives for the account of the L/C Issuer any
payment in respect of the related Unreimbursed Amount or interest thereon
(whether directly from the Borrower or otherwise, including proceeds of
cash collateral applied thereto by the Administrative Agent), the
Administrative Agent will distribute to such Lender its Applicable
Percentage thereof (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Lender's L/C
Advance was outstanding) in the same funds as those received by the
Administrative Agent.
(ii) If any payment received by the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.03(c)(i) is required to be
returned under any of the circumstances described in Section 11.05
(including pursuant to any settlement entered into by the L/C Issuer in
its discretion), each Lender shall pay to the Administrative Agent for the
account of the L/C Issuer its Applicable Percentage thereof on demand of
the Administrative Agent, plus interest thereon from the date of such
demand to the date such amount is returned by such Lender, at a rate per
annum equal to the Federal Funds Rate from time to time in effect. The
obligations of the Lenders under this clause shall survive the payment in
full of the Obligations and the termination of this Agreement.
(e) Obligations Absolute. The obligation of the Borrower to reimburse the
L/C Issuer for each drawing under each Letter of Credit and to repay each L/C
Borrowing shall be absolute, unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement under all circumstances,
including the following:
(i) any lack of validity or enforceability of such Letter of Credit,
this Agreement, any other Loan Document or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff, defense or
other right that the Borrower or any Subsidiary may have at any time
against any beneficiary or any transferee of such Letter of Credit (or any
Person for whom any such beneficiary or any such transferee may be
acting), the L/C Issuer or any other Person, whether in connection with
this Agreement, the transactions contemplated hereby or by such Letter of
Credit or any agreement or instrument relating thereto, or any unrelated
transaction;
(iii) any draft, demand, certificate or other document presented
under such Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit; or any payment made by the
L/C Issuer under such Letter of Credit to any Person purporting to be a
trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator,
34
receiver or other representative of or successor to any beneficiary or any
transferee of such Letter of Credit, including any arising in connection
with any proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of, the
Borrower or any Subsidiary.
The Borrower shall promptly examine a copy of each Letter of Credit and
each amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Borrower's instructions or other irregularity, the
Borrower will immediately notify the L/C Issuer. The Borrower shall be
conclusively deemed to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying
any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by such Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the L/C Issuer,
the Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the L/C Issuer shall be liable to any
Lender for (i) any action taken or omitted in connection herewith at the request
or with the approval of the Lenders or the Required Lenders, as applicable; (ii)
any action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or
Issuer Document. The Borrower hereby assumes all risks of the acts or omissions
of any beneficiary or transferee with respect to its use of any Letter of
Credit; provided, however, that this assumption is not intended to, and shall
not, preclude the Borrower's pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other agreement. None
of the L/C Issuer, the Administrative Agent, any of their respective Related
Parties nor any correspondent, participant or assignee of the L/C Issuer shall
be liable or responsible for any of the matters described in clauses (i) through
(v) of Section 2.03(e); provided, however, that anything in such clauses to the
contrary notwithstanding, the Borrower may have a claim against the L/C Issuer,
and the L/C Issuer may be liable to the Borrower, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary, damages
suffered by the Borrower which the Borrower proves were caused by the L/C
Issuer's willful misconduct or gross negligence or the L/C Issuer's willful
failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the
terms and conditions of a Letter of Credit unless the L/C Issuer is prevented or
prohibited from so paying as a result of any order or directive of any court or
other Governmental Authority. In furtherance and not in limitation of the
foregoing, the L/C Issuer may accept documents that appear on their face to be
in order, without responsibility for further investigation, regardless of any
notice or information to the contrary, and the L/C Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the Administrative Agent, (i) if
the L/C Issuer has honored any full or partial drawing request under any Letter
of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of
the Letter of Credit Expiration Date, any L/C Obligation for any reason remains
outstanding, the Borrower shall, in each case, immediately Cash Collateralize
the then Outstanding Amount of all L/C Obligations. Sections 2.05 and 9.02(c)
set forth certain additional requirements to deliver Cash Collateral hereunder.
For purposes of this Section 2.03, Section 2.05 and Section 9.02(c), "Cash
Collateralize" means to pledge and deposit with or deliver to the Administrative
35
Agent, for the benefit of the L/C Issuer and the Lenders, as collateral for the
L/C Obligations, cash or deposit account balances pursuant to documentation in
form and substance satisfactory to the Administrative Agent and the L/C Issuer
(which documents are hereby consented to by the Lenders). Derivatives of such
term have corresponding meanings. The Borrower hereby grants to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, a
security interest in all such cash, deposit accounts and all balances therein
and all proceeds of the foregoing. Cash Collateral shall be maintained in
blocked, non-interest bearing deposit accounts at Bank of America.
(h) Applicability of ISP. Unless otherwise expressly agreed by the L/C
Issuer and the Borrower when a Letter of Credit is issued, the rules of the ISP
shall apply to each standby Letter of Credit.
(i) Letter of Credit Fees. The Borrower shall pay to the Administrative
Agent for the account of each Lender in accordance with its Applicable
Percentage a Letter of Credit fee (the "Letter of Credit Fee") for each Letter
of Credit equal to the Applicable Rate times the daily maximum amount available
to be drawn under such Letter of Credit. For purposes of computing the daily
amount available to be drawn under any Letter of Credit, the amount of such
Letter of Credit shall be determined in accordance with Section 1.06. Letter of
Credit Fees shall be (i) computed on a quarterly basis in arrears and (ii) due
and payable on the first Business Day after the end of each March, June,
September and December, commencing with the first such date to occur after the
issuance of such Letter of Credit, on the Letter of Credit Expiration Date and
thereafter on demand. If there is any change in the Applicable Rate during any
quarter, the daily amount available to be drawn under each Letter of Credit
shall be computed and multiplied by the Applicable Rate separately for each
period during such quarter that such Applicable Rate was in effect.
Notwithstanding anything to the contrary contained herein, upon the request of
the Required Lenders, while any Event of Default exists, all Letter of Credit
Fees shall accrue at the Default Rate.
(j) Fronting Fee and Documentary and Processing Charges Payable to L/C
Issuer. The Borrower shall pay directly to the L/C Issuer for its own account a
fronting fee with respect to each Letter of Credit equal to one-eighth of one
percent (0.125%) per annum times the daily maximum amount available to be drawn
under such Letter of Credit (whether or not such maximum amount is then in
effect under such Letter of Credit) and on a quarterly basis in arrears. Such
fronting fee shall be due and payable on the first Business Day after the end of
each March, June, September and December in respect of the most recently-ended
quarterly period (or portion thereof, in the case of the first payment),
commencing with the first such date to occur after the issuance of such Letter
of Credit, on the Letter of Credit Expiration Date and thereafter on demand. For
purposes of computing the daily amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.06. In addition, the Borrower shall pay directly to the L/C
Issuer for its own account the customary issuance, presentation, amendment and
other processing fees, and other standard costs and charges, of the L/C Issuer
relating to letters of credit as from time to time in effect. Such customary
fees and standard costs and charges are due and payable on demand and are
nonrefundable.
(k) Conflict with Issuer Documents. In the event of any conflict between
the terms hereof and the terms of any Issuer Document, the terms hereof shall
control.
(l) Letters of Credit Issued for Subsidiaries. Notwithstanding that a
Letter of Credit issued or outstanding hereunder is in support of any
obligations of, or is for the account of, a Subsidiary, the Borrower shall be
obligated to reimburse the L/C Issuer hereunder for any and all drawings under
such Letter of Credit. The Borrower hereby acknowledges that the issuance of
Letters of Credit for the account of Subsidiaries inures to the benefit of the
Borrower, and that the Borrower's business derives substantial benefits from the
businesses of such Subsidiaries.
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2.04 Swing Line Loans.
(a) Swing Line Facility. Subject to the terms and conditions set forth
herein, the Swing Line Lender agrees, in reliance upon the agreements of the
other Lenders set forth in this Section 2.04, to make loans (each such loan, a
"Swing Line Loan") to the Borrower in Dollars from time to time on any Business
Day during the Availability Period in an aggregate amount not to exceed at any
time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact
that such Swing Line Loans, when aggregated with the Applicable Percentage of
the Outstanding Amount of Revolving Loans and L/C Obligations of the Swing Line
Lender in its capacity as a Lender of Revolving Loans, may exceed the amount of
such Lender's Revolving Commitment; provided, however, that after giving effect
to any Swing Line Loan, (i) the Total Revolving Outstandings shall not exceed
the Aggregate Revolving Commitments, and (ii) the aggregate Outstanding Amount
of the Revolving Loans of any Lender, plus such Lender's Applicable Percentage
of the Outstanding Amount of all L/C Obligations, plus such Lender's Applicable
Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed
such Lender's Revolving Commitment, and provided, further, that the Borrower
shall not use the proceeds of any Swing Line Loan to refinance any outstanding
Swing Line Loan. Within the foregoing limits, and subject to the other terms and
conditions hereof, the Borrower may borrow under this Section 2.04, prepay under
Section 2.05, and reborrow under this Section 2.04. Each Swing Line Loan shall
be a Base Rate Loan. Immediately upon the making of a Swing Line Loan, each
Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the Swing Line Lender a risk participation in such Swing Line Loan
in an amount equal to the product of such Lender's Applicable Percentage times
the amount of such Swing Line Loan.
(b) Borrowing Procedures. Each Borrowing of Swing Line Loans shall be made
upon the Borrower's irrevocable notice to the Swing Line Lender and the
Administrative Agent, which may be given by telephone. Each such notice must be
received by the Swing Line Lender and the Administrative Agent not later than
1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to
be borrowed, which shall be a minimum principal amount of $100,000 and integral
multiples of $100,000 in excess thereof, and (ii) the requested borrowing date,
which shall be a Business Day. Each such telephonic notice must be confirmed
promptly by delivery to the Swing Line Lender and the Administrative Agent of a
written Swing Line Loan Notice, appropriately completed and signed by a
Responsible Officer of the Borrower. Promptly after receipt by the Swing Line
Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will
confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has also received such Swing Line Loan Notice and, if not,
the Swing Line Lender will notify the Administrative Agent (by telephone or in
writing) of the contents thereof. Unless the Swing Line Lender has received
notice (by telephone or in writing) from the Administrative Agent (including at
the request of any Lender) prior to 2:00 p.m. on the date of the proposed
Borrowing of Swing Line Loans (A) directing the Swing Line Lender not to make
such Swing Line Loan as a result of the limitations set forth in the proviso to
the first sentence of Section 2.04(a), or (B) that one or more of the applicable
conditions specified in Article V is not then satisfied, then, subject to the
terms and conditions hereof, the Swing Line Lender will, not later than 3:00
p.m. on the borrowing date specified in such Swing Line Loan Notice, make the
amount of its Swing Line Loan available to the Borrower. Notwithstanding the
foregoing, in the event that an "autoborrow", "zero balance" or similar
arrangement shall be in place between the Borrower and the Swing Line Lender,
the Borrower shall request Swing Line Loans pursuant to such alternative notice
arrangements, if any, provided thereunder or in connection therewith.
(c) Refinancing of Swing Line Loans.
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(i) The Swing Line Lender at any time in its sole and absolute
discretion may request, on behalf of the Borrower (which hereby
irrevocably requests and authorizes the Swing Line Lender to so request on
its behalf), that each Lender make a Base Rate Loan in an amount equal to
such Lender's Applicable Percentage of the amount of Swing Line Loans then
outstanding. Such request shall be made in writing (which written request
shall be deemed to be a Loan Notice for purposes hereof) and in accordance
with the requirements of Section 2.02, without regard to the minimum and
multiples specified therein for the principal amount of Base Rate Loans,
but subject to the unutilized portion of the Aggregate Revolving
Commitments and the conditions set forth in Section 5.02. The Swing Line
Lender shall furnish the Borrower with a copy of the applicable Loan
Notice promptly after delivering such notice to the Administrative Agent.
Each Lender shall make an amount equal to its Applicable Percentage of the
amount specified in such Loan Notice available to the Administrative Agent
in immediately available funds for the account of the Swing Line Lender at
the Administrative Agent's Office not later than 1:00 p.m. on the day
specified in such Loan Notice, whereupon, subject to Section 2.04(c)(ii),
each Lender that so makes funds available shall be deemed to have made a
Base Rate Loan to the Borrower in such amount. The Administrative Agent
shall remit the funds so received to the Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced by
such a Borrowing of Revolving Loans in accordance with Section 2.04(c)(i),
the request for Base Rate Loans submitted by the Swing Line Lender as set
forth herein shall be deemed to be a request by the Swing Line Lender that
each of the Lenders fund its risk participation in the relevant Swing Line
Loan and each Lender's payment to the Administrative Agent for the account
of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed
payment in respect of such participation.
(iii) If any Lender fails to make available to the Administrative
Agent for the account of the Swing Line Lender any amount required to be
paid by such Lender pursuant to the foregoing provisions of this Section
2.04(c) by the time specified in Section 2.04(c)(i), the Swing Line Lender
shall be entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for
the period from the date such payment is required to the date on which
such payment is immediately available to the Swing Line Lender at a rate
per annum equal to the greater of the Federal Funds Rate and a rate
determined by the Swing Line Lender in accordance with banking industry
rules on interbank compensation. A certificate of the Swing Line Lender
submitted to any Lender (through the Administrative Agent) with respect to
any amounts owing under this clause (iii) shall be conclusive absent
manifest error.
(iv) Each Lender's obligation to make Revolving Loans or to purchase
and fund risk participations in Swing Line Loans pursuant to this Section
2.04(c) shall be absolute and unconditional and shall not be affected by
any circumstance, including (A) any setoff, counterclaim, recoupment,
defense or other right that such Lender may have against the Swing Line
Lender, the Borrower or any other Person for any reason whatsoever, (B)
the occurrence or continuance of a Default, or (C) any other occurrence,
event or condition, whether or not similar to any of the foregoing;
provided, however, that each Lender's obligation to make Revolving Loans
pursuant to this Section 2.04(c) is subject to the conditions set forth in
Section 5.02. No such purchase or funding of risk participations shall
relieve or otherwise impair the obligation of the Borrower to repay Swing
Line Loans, together with interest as provided herein.
(d) Repayment of Participations.
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(i) At any time after any Lender has purchased and funded a risk
participation in a Swing Line Loan, if the Swing Line Lender receives any
payment on account of such Swing Line Loan, the Swing Line Lender will
distribute to such Lender its Applicable Percentage of such payment
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender's risk participation was funded)
in the same funds as those received by the Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in respect of
principal or interest on any Swing Line Loan is required to be returned by
the Swing Line Lender under any of the circumstances described in Section
11.05 (including pursuant to any settlement entered into by the Swing Line
Lender in its discretion), each Lender shall pay to the Swing Line Lender
its Applicable Percentage thereof on demand of the Administrative Agent,
plus interest thereon from the date of such demand to the date such amount
is returned, at a rate per annum equal to the Federal Funds Rate. The
Administrative Agent will make such demand upon the request of the Swing
Line Lender. The obligations of the Lenders under this clause shall
survive the payment in full of the Obligations and the termination of this
Agreement.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender shall
be responsible for invoicing the Borrower for interest on the Swing Line Loans.
Until each Lender funds its Revolving Loans that are Base Rate Loans or risk
participation pursuant to this Section 2.04 to refinance such Lender's
Applicable Percentage of any Swing Line Loan, interest in respect of such
Applicable Percentage shall be solely for the account of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Borrower shall make all
payments of principal and interest in respect of the Swing Line Loans directly
to the Swing Line Lender.
2.05 Prepayments.
(a) Voluntary Prepayments of Loans.
(i) Revolving Loans. The Borrower may, upon notice from the Borrower
to the Administrative Agent, at any time or from time to time voluntarily
prepay Revolving Loans in whole or in part without premium or penalty;
provided that (A) such notice must be received by the Administrative Agent
not later than 11:00 a.m. (1) three Business Days prior to any date of
prepayment of Eurodollar Rate Loans and (2) on the date of prepayment of
Base Rate Loans; (B) any such prepayment of Eurodollar Rate Loans shall be
in a principal amount of $2,500,000 or a whole multiple of $100,000 in
excess thereof (or, if less, the entire principal amount thereof then
outstanding); and (C) any prepayment of Base Rate Loans shall be in a
principal amount of $1,000,000 or a whole multiple of $100,000 in excess
thereof (or, if less, the entire principal amount thereof then
outstanding). Each such notice shall specify the date and amount of such
prepayment and the Type(s) of Loans to be prepaid. The Administrative
Agent will promptly notify each Lender of its receipt of each such notice,
and of the amount of such Lender's Applicable Percentage of such
prepayment. If such notice is given by the Borrower, the Borrower shall
make such prepayment and the payment amount specified in such notice shall
be due and payable on the date specified therein. Any prepayment of a
Eurodollar Rate Loan shall be accompanied by all accrued interest on the
amount prepaid, together with any additional amounts required pursuant to
Section 3.05. Each such prepayment shall be applied to the Loans of the
Lenders in accordance with their respective Applicable Percentages.
(ii) Swing Line Loans. The Borrower may, upon notice to the Swing
Line Lender (with a copy to the Administrative Agent), at any time or from
time to time, voluntarily prepay
39
Swing Line Loans in whole or in part without premium or penalty; provided
that (i) such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 1:00 p.m. on the date of the
prepayment, and (ii) any such prepayment shall be in a minimum principal
amount of $100,000 or a whole multiple of $100,000 in excess thereof (or,
if less, the entire principal thereof then outstanding). Each such notice
shall specify the date and amount of such prepayment. If such notice is
given by the Borrower, the Borrower shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the
date specified therein. Notwithstanding the foregoing, in the event that
an "autoborrow", "zero balance" or other similar arrangement shall be in
place between the Borrower and the Swing Line Lender, each Swing Line Loan
advance shall be in such minimum amounts, if any, provided by such
agreement.
(b) Mandatory Prepayments of Loans.
(i) Revolving Commitments. If for any reason the Total Revolving
Outstandings at any time exceed the Aggregate Revolving Commitments then
in effect, the Borrower shall immediately prepay Revolving Loans and/or
the Swing Line Loans and/or Cash Collateralize the L/C Obligations in an
aggregate amount equal to such excess; provided, however, that the
Borrower shall not be required to Cash Collateralize the L/C Obligations
pursuant to this Section 2.05(b)(i) unless after the prepayment in full of
the Revolving Loans and Swing Line Loans the Total Revolving Outstandings
exceed the Aggregate Revolving Commitments then in effect.
(ii) Dispositions and Involuntary Dispositions. The Borrower shall
prepay the Loans and/or Cash Collateralize the L/C Obligations as
hereafter provided in an aggregate amount equal to 100% of the Net Cash
Proceeds received by the Borrower or any Subsidiary from all Dispositions
and Involuntary Dispositions occurring after the Closing Date to the
extent (A) such Net Cash Proceeds are not reinvested in Property that is
used or useful in the line of business of the Borrower and its
Subsidiaries within one hundred eighty (180) days of the date of such
Disposition or Involuntary Disposition and (B) the aggregate amount of
such Net Cash Proceeds not reinvested in accordance with clause (A)
exceeds $1 million. Any prepayment pursuant to this clause (ii) shall be
applied as set forth in clause (v) below.
(iii) Debt Issuances. Immediately upon receipt by the Borrower or
any Subsidiary of the Net Cash Proceeds of any Debt Issuance, the Borrower
shall prepay the Loans and/or Cash Collateralize the L/C Obligations as
hereafter provided in an aggregate amount equal to 100% of such Net Cash
Proceeds. Any prepayment pursuant to this clause (iii) shall be applied as
set forth in clause (v) below.
(iv) Equity Issuances. Immediately upon the receipt by the Borrower
or any Subsidiary of the Net Cash Proceeds of any Equity Issuance (other
than an Excluded Equity Issuance), the Borrower shall prepay the Loans
and/or Cash Collateralize the L/C Obligations in an aggregate amount equal
to 100% of such Net Cash Proceeds. Any prepayment pursuant to this clause
(iv) shall be applied as set forth in clause (v) below.
(v) Application of Mandatory Prepayments. All amounts required to be
paid pursuant to this Section 2.05(b) shall be applied as follows:
(A) with respect to all amounts prepaid pursuant to Section
2.05(b)(i), (iii) and (iv), to Revolving Loans and Swing Line Loans
and (after all Revolving Loans and all Swing Line Loans have been
repaid) to Cash Collateralize L/C Obligations, in each case without
a corresponding reduction in the Aggregate Revolving Commitments;
and
40
(B) with respect to all amounts prepaid pursuant to Sections
2.05(b)(ii), first to the Revolving Loans and Swing Line Loans and
then (after all Revolving Loans and all Swing Line Loans have been
repaid) to Cash Collateralize L/C Obligations, in each case with a
corresponding reduction in the Aggregate Revolving Commitments.
Within the parameters of the applications set forth above,
prepayments shall be applied first to Base Rate Loans and then to
Eurodollar Rate Loans in direct order of Interest Period maturities.
All prepayments under this Section 2.05(b) shall be subject to
Section 3.05, but otherwise without premium or penalty, and shall be
accompanied by interest on the principal amount prepaid through the
date of prepayment.
(vi) Eurodollar Prepayment Account. If the Borrower is required to
make a mandatory prepayment of Eurodollar Rate Loans under this Section
2.05(b), so long as no Event of Default exists, the Borrower shall have
the right, in lieu of making such prepayment in full, to deposit an amount
equal to such mandatory prepayment with the Administrative Agent in a cash
collateral account maintained (pursuant to documentation reasonably
satisfactory to the Administrative Agent) by and in the sole dominion and
control of the Administrative Agent. Any amounts so deposited shall be
held by the Administrative Agent as collateral for the prepayment of such
Eurodollar Rate Loans and shall be applied to the prepayment of the
applicable Eurodollar Rate Loans at the end of the current Interest
Periods applicable thereto or, sooner, at the election of the
Administrative Agent, upon the occurrence of an Event of Default. At the
request of the Borrower, amounts so deposited shall be invested by the
Administrative Agent in Cash Equivalents maturing on or prior to the date
or dates on which it is anticipated that such amounts will be applied to
prepay such Eurodollar Rate Loans; any interest earned on such Cash
Equivalents will be for the account of the Borrower and the Borrower will
deposit with the Administrative Agent the amount of any loss on any such
Cash Equivalents to the extent necessary in order that the amount of the
prepayment to be made with the deposited amounts may not be reduced.
2.06 Termination or Reduction of Aggregate Revolving Commitments.
(a) Optional Reductions. The Borrower may, upon notice to the
Administrative Agent, terminate the Aggregate Revolving Commitments, or from
time to time permanently reduce the Aggregate Revolving Commitments to an amount
not less than the Outstanding Amount of Revolving Loans, Swing Line Loans and
L/C Obligations; provided that (i) any such notice shall be received by the
Administrative Agent not later than 12:00 noon five (5) Business Days prior to
the date of termination or reduction, (ii) any such partial reduction shall be
in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in
excess thereof and (iii) if, after giving effect to any reduction of the
Aggregate Revolving Commitments, the Letter of Credit Sublimit or the Swing Line
Sublimit exceeds the amount of the Aggregate Revolving Commitments, such
sublimit shall be automatically reduced by the amount of such excess. The
Administrative Agent will promptly notify the Lenders of any such notice of
termination or reduction of the Aggregate Revolving Commitments. Any reduction
of the Aggregate Revolving Commitments shall be applied to the Revolving
Commitment of each Lender according to its Applicable Percentage. All fees
accrued with respect thereto until the effective date of any termination of the
Aggregate Revolving Commitments shall be paid on the effective date of such
termination.
(b) Mandatory Reductions. The Aggregate Revolving Commitments shall be
permanently reduced in an amount equal to the amount of any prepayment applied
to the Revolving Loans, Swing Line Loans and L/C Obligations pursuant to Section
2.05(b)(ii).
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2.07 Repayment of Loans.
(a) Revolving Loans. The Borrower shall repay to the Lenders on the
Maturity Date the aggregate principal amount of all Revolving Loans outstanding
on such date.
(b) Swing Line Loans. The Borrower shall repay each Swing Line Loan on the
earlier to occur of (i) demand for repayment by the Swing Line Lender and (ii)
the Maturity Date.
2.08 Interest.
(a) Subject to the provisions of subsection (b) below, (i) each Eurodollar
Rate Loan shall bear interest on the outstanding principal amount thereof for
each Interest Period at a rate per annum equal to the sum of the Eurodollar Rate
for such Interest Period plus the Applicable Rate; (ii) each Base Rate Loan
shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate plus the
Applicable Rate; and (iii) each Swing Line Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at a
rate per annum equal to the Base Rate plus the Applicable Rate.
(b) (i) Upon the request of the Required Lenders, while any Event of
Default exists, the Borrower shall pay interest on the principal amount of
all outstanding Obligations hereunder at a fluctuating interest rate per
annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws.
(ii) Accrued and unpaid interest on past due amounts (including
interest on past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
2.09 Fees.
In addition to certain fees described in subsections (i) and (j) of
Section 2.03:
(a) Commitment Fee. The Borrower shall pay to the Administrative
Agent, for the account of each Lender (other than a Defaulting Lender) in
accordance with its Applicable Percentage, a commitment fee equal to the
product of (i) the Applicable Rate times (ii) the actual daily amount by
which the Aggregate Revolving Commitments exceed the sum of (y) the
Outstanding Amount of Revolving Loans and (z) the Outstanding Amount of
L/C Obligations. The commitment fee shall accrue at all times during the
Availability Period, including at any time during which one or more of the
conditions in Article V is not met, and shall be due and payable quarterly
in arrears on the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the Closing
Date, and on the Maturity Date. The commitment fee shall be calculated
quarterly in arrears, and if there is any change in the Applicable Rate
during any quarter, the actual daily amount shall be computed and
multiplied by the Applicable Rate separately for each period during such
quarter that such Applicable Rate was in effect. For purposes of
clarification, Swing Line Loans shall not be considered outstanding for
purposes of determining the unused portion of the Aggregate Revolving
Commitments.
42
(b) Fee Letter. The Borrower shall pay to BAS and the Administrative
Agent for their own respective accounts fees in the amounts and at the
times specified in the Fee Letter. Such fees shall be fully earned when
paid and shall be non-refundable for any reason whatsoever.
2.10 Computation of Interest and Fees.
All computations of interest for Base Rate Loans when the Base Rate is
determined by Bank of America's "prime rate" shall be made on the basis of a
year of 365 or 366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest shall be made on the basis of a 360-day year
and actual days elapsed (which results in more fees or interest, as applicable,
being paid than if computed on the basis of a 365-day year). Interest shall
accrue on each Loan for the day on which the Loan is made, and shall not accrue
on a Loan, or any portion thereof, for the day on which the Loan or such portion
is paid, provided that any Loan that is repaid on the same day on which it is
made shall, subject to Section 2.12(a), bear interest for one day. Each
determination by the Administrative Agent of an interest rate or fee hereunder
shall be conclusive and binding for all purposes, absent manifest error.
2.11 Evidence of Debt.
(a) The Credit Extensions made by each Lender shall be evidenced by one or
more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by
the Administrative Agent and each Lender shall be conclusive absent manifest
error of the amount of the Credit Extensions made by the Lenders to the Borrower
and the interest and payments thereon. Any failure to so record or any error in
doing so shall not, however, limit or otherwise affect the obligation of the
Borrower hereunder to pay any amount owing with respect to the Obligations. In
the event of any conflict between the accounts and records maintained by any
Lender and the accounts and records of the Administrative Agent in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error. Upon the request of any Lender made through
the Administrative Agent, the Borrower shall execute and deliver to such Lender
(through the Administrative Agent) a promissory note, which shall evidence such
Lender's Loans in addition to such accounts or records. Each such promissory
note shall (i) in the case of Revolving Loans, be in the form of Exhibit C-1 (a
"Revolving Note"), and (ii) in the case of Swing Line Loans, be in the form of
Exhibit C-2 (a "Swing Line Note"). Each Lender may attach schedules to its
Revolving Note and endorse thereon the date, Type (if applicable), amount and
maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection (a),
each Lender and the Administrative Agent shall maintain in accordance with its
usual practice accounts or records evidencing the purchases and sales by such
Lender of participations in Letters of Credit and Swing Line Loans. In the event
of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error.
2.12 Payments Generally; Administrative Agent's Clawback.
(a) General. All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Borrower
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent's
Office in Dollars and in immediately available funds not later than 2:00 p.m. on
the date specified herein. The Administrative Agent will promptly distribute to
each Lender its Applicable Percentage (or other applicable share as provided
herein) of such payment in like funds as received by wire transfer to such
43
Lender's Lending Office. All payments received by the Administrative Agent after
2:00 p.m. shall be deemed received on the next succeeding Business Day and any
applicable interest or fee shall continue to accrue. Subject to the definition
of "Interest Period", if any payment to be made by the Borrower shall come due
on a day other than a Business Day, payment shall be made on the next following
Business Day, and such extension of time shall be reflected in computing
interest or fees, as the case may be.
(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless
the Administrative Agent shall have received notice from a Lender prior to
the proposed date of any Borrowing of Eurodollar Rate Loans (or, in the
case of any Borrowing of Base Rate Loans, prior to 12:00 noon on the date
of such Borrowing) that such Lender will not make available to the
Administrative Agent such Lender's share of such Borrowing, the
Administrative Agent may assume that such Lender has made such share
available on such date in accordance with Section 2.02 (or, in the case of
any Borrowing of Base Rate Loans, that such Lender has made such share
available in accordance with and at the time required by Section 2.02) and
may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its
share of the applicable Borrowing available to the Administrative Agent,
then the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount in
immediately available funds with interest thereon, for each day from and
including the date such amount is made available to the Borrower to but
excluding the date of payment to the Administrative Agent, at (A) in the
case of a payment to be made by such Lender, the greater of the Federal
Funds Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation and (B) in the case
of a payment to be made by the Borrower, the interest rate applicable to
Base Rate Loans. If the Borrower and such Lender shall pay such interest
to the Administrative Agent for the same or an overlapping period, the
Administrative Agent shall promptly remit to the Borrower the amount of
such interest paid by the Borrower for such period. If such Lender pays
its share of the applicable Borrowing to the Administrative Agent, then
the amount so paid shall constitute such Lender's Loan included in such
Borrowing. Any payment by the Borrower shall be without prejudice to any
claim the Borrower may have against a Lender that shall have failed to
make such payment to the Administrative Agent.
(ii) Payments by Borrower; Presumptions by Administrative Agent.
Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the L/C Issuer
hereunder that the Borrower will not make such payment, the Administrative
Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute
to the Lenders or the L/C Issuer, as the case may be, the amount due. In
such event, if the Borrower has not in fact made such payment, then each
of the Lenders or the L/C Issuer, as the case may be, severally agrees to
repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender or the L/C Issuer, in immediately available
funds with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Rate and a rate
determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation.
A notice of the Administrative Agent to any Lender or the Borrower
with respect to any amount owing under this subsection (b) shall be
conclusive, absent manifest error.
(c) Failure to Satisfy Conditions Precedent. If any Lender makes available
to the Administrative Agent funds for any Loan to be made by such Lender as
provided in the foregoing provisions of this Article II, and such funds are not
made available to the Borrower by the Administrative
44
Agent because the conditions to the applicable Credit Extension set forth in
Article V are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall return such funds (in like funds as received from
such Lender) to such Lender, without interest.
(d) Obligations of Lenders Several. The obligations of the Lenders
hereunder to make Loans, to fund participations in Letters of Credit and Swing
Line Loans and to make payments pursuant to Section 11.04(c) are several and not
joint. The failure of any Lender to make any Loan, to fund any such
participation or to make any payment under Section 11.04(c) on any date required
hereunder shall not relieve any other Lender of its corresponding obligation to
do so on such date, and no Lender shall be responsible for the failure of any
other Lender to so make its Loan, to purchase its participation or to make its
payment under Section 11.04(c).
(e) Funding Source. Nothing herein shall be deemed to obligate any Lender
to obtain the funds for any Loan in any particular place or manner or to
constitute a representation by any Lender that it has obtained or will obtain
the funds for any Loan in any particular place or manner.
2.13 Sharing of Payments by Lenders.
If any Lender shall, by exercising any right of setoff or counterclaim or
otherwise, obtain payment in respect of any principal of or interest on any of
the Loans made by it, or the participations in L/C Obligations or in Swing Line
Loans held by it resulting in such Lender's receiving payment of a proportion of
the aggregate amount of such Loans or participations and accrued interest
thereon greater than its pro rata share thereof as provided herein, then the
Lender receiving such greater proportion shall (a) notify the Administrative
Agent of such fact, and (b) purchase (for cash at face value) participations in
the Loans and subparticipations in L/C Obligations and Swing Line Loans of the
other Lenders, or make such other adjustments as shall be equitable, so that the
benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Loans and other amounts owing them, provided that:
(i) if any such participations or subparticipations are purchased
and all or any portion of the payment giving rise thereto is recovered,
such participations or subparticipations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest;
and
(ii) the provisions of this Section shall not be construed to apply
to (x) any payment made by the Borrower pursuant to and in accordance with
the express terms of this Agreement or (y) any payment obtained by a
Lender as consideration for the assignment of or sale of a participation
in any of its Loans or subparticipations in L/C Obligations or Swing Line
Loans to any assignee or participant, other than to the Borrower or any
Subsidiary thereof (as to which the provisions of this Section shall
apply).
Each Loan Party consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against such
Loan Party rights of setoff and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation.
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ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Payments Free of Taxes. Any and all payments by or on account of any
obligation of the Loan Parties hereunder or under any other Loan Document shall
be made free and clear of and without reduction or withholding for any
Indemnified Taxes or Other Taxes, provided that if any Loan Party shall be
required by applicable law to deduct any Indemnified Taxes (including any Other
Taxes) from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the Administrative
Agent, Lender or L/C Issuer, as the case may be, receives an amount equal to the
sum it would have received had no such deductions been made, (ii) such Loan
Party shall make such deductions and (iii) such Loan Party shall timely pay the
full amount deducted to the relevant Governmental Authority in accordance with
applicable law.
(b) Payment of Other Taxes by the Loan Parties. Without limiting the
provisions of subsection (a) above, the Loan Parties shall timely pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable law.
(c) Indemnification by the Loan Parties. The Loan Parties shall indemnify
the Administrative Agent, each Lender and the L/C Issuer, within 10 days after
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative
Agent, such Lender or the L/C Issuer, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to the Borrower by a Lender or
the L/C Issuer (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender or the L/C
Issuer, shall be conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by any Loan Party to a Governmental Authority,
the Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(e) Status of Lenders. Any Foreign Lender that is entitled to an exemption
from or reduction of withholding tax under the law of the jurisdiction in which
the Borrower is resident for tax purposes, or any treaty to which such
jurisdiction is a party, with respect to payments hereunder or under any other
Loan Document shall deliver to the Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law or reasonably
requested by the Borrower or the Administrative Agent, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate of withholding. In
addition, any Lender, if requested by the Borrower or the Administrative Agent,
shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Borrower or the Administrative Agent as will enable
the Borrower or the Administrative Agent to determine whether or not such Lender
is subject to backup withholding or information reporting requirements.
46
Without limiting the generality of the foregoing, in the event that the
Borrower is resident for tax purposes in the United States, any Foreign Lender
shall deliver to the Borrower and the Administrative Agent (in such number of
copies as shall be requested by the recipient) on or prior to the date on which
such Foreign Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the request of the Borrower or the Administrative Agent, but
only if such Foreign Lender is legally entitled to do so), whichever of the
following is applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN
claiming eligibility for benefits of an income tax treaty to which the
United States is a party,
(ii) duly completed copies of Internal Revenue Service Form W-8ECI,
(iii) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Code, (x) a
certificate to the effect that such Foreign Lender is not (A) a "bank"
within the meaning of section 881(c)(3)(A) of the Code, (B) a "10 percent
shareholder" of the Borrower within the meaning of section 881(c)(3)(B) of
the Code, or (C) a "controlled foreign corporation" described in section
881(c)(3)(C) of the Code and (y) duly completed copies of Internal Revenue
Service Form W-8BEN, or
(iv) any other form prescribed by applicable law as a basis for
claiming exemption from or a reduction in United States Federal
withholding tax duly completed together with such supplementary
documentation as may be prescribed by applicable law to permit the
Borrower to determine the withholding or deduction required to be made.
(f) Treatment of Certain Refunds. If the Administrative Agent, any
Lender or the L/C Issuer determines, in its sole discretion, that it has
received a refund of any Taxes or Other Taxes as to which it has been
indemnified by any Loan Party or with respect to which any Loan Party has paid
additional amounts pursuant to this Section, it shall pay to such Loan Party an
amount equal to such refund (but only to the extent of indemnity payments made,
or additional amounts paid, by such Loan Party under this Section with respect
to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent, such Lender or the L/C
Issuer, as the case may be, and without interest (other than any interest paid
by the relevant Governmental Authority with respect to such refund), provided
that each Loan Party, upon the request of the Administrative Agent, such Lender
or the L/C Issuer, agrees to repay the amount paid over to such Loan Party (plus
any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, such Lender or the L/C Issuer in the
event the Administrative Agent, such Lender or the L/C Issuer is required to
repay such refund to such Governmental Authority. This subsection shall not be
construed to require the Administrative Agent, any Lender or the L/C Issuer to
make available its tax returns (or any other information relating to its taxes
that it deems confidential) to the Borrower or any other Person.
3.02 Illegality.
If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its
applicable Lending Office to make, maintain or fund Eurodollar Rate Loans, or to
determine or charge interest rates based upon the Eurodollar Rate, or any
Governmental Authority has imposed material restrictions on the authority of
such Lender to purchase or sell, or to take deposits of, Dollars in the London
interbank market, then, on notice thereof by such Lender to the Borrower through
the Administrative Agent, any obligation of such Lender to make or continue
Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans
shall be suspended until such Lender notifies the Administrative Agent and the
Borrower that the circumstances giving rise to such determination no longer
exist. Upon receipt of such notice, the Borrower shall, upon demand from
47
such Lender (with a copy to the Administrative Agent), prepay or, if applicable,
convert all Eurodollar Rate Loans of such Lender to Base Rate Loans, either on
the last day of the Interest Period therefor, if such Lender may lawfully
continue to maintain such Eurodollar Rate Loans to such day, or immediately, if
such Lender may not lawfully continue to maintain such Eurodollar Rate Loans.
Upon any such prepayment or conversion, the Borrower shall also pay accrued
interest on the amount so prepaid or converted.
3.03 Inability to Determine Rates.
If the Required Lenders determine that for any reason in connection with
any request for a Eurodollar Rate Loan or a conversion to or continuation
thereof that (a) Dollar deposits are not being offered to banks in the London
interbank eurodollar market for the applicable amount and Interest Period of
such Eurodollar Rate Loan, (b) adequate and reasonable means do not exist for
determining the Eurodollar Base Rate for any requested Interest Period with
respect to a proposed Eurodollar Rate Loan, or (c) the Eurodollar Base Rate for
any requested Interest Period with respect to a proposed Eurodollar Rate Loan
does not adequately and fairly reflect the cost to the Lenders of funding such
Loan, the Administrative Agent will promptly notify the Borrower and all
Lenders. Thereafter, the obligation of the Lenders to make or maintain
Eurodollar Rate Loans shall be suspended until the Administrative Agent revokes
such notice. Upon receipt of such notice, the Borrower may revoke any pending
request for a Borrowing, conversion or continuation of Eurodollar Rate Loans or,
failing that, will be deemed to have converted such request into a request for a
Borrowing of Base Rate Loans in the amount specified therein.
3.04 Increased Costs.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit, compulsory loan, insurance charge or similar requirement against
assets of, deposits with or for the account of, or credit extended or
participated in by, any Lender (except any reserve requirement reflected
in the Eurodollar Rate or the L/C Issuer;
(ii) subject any Lender or the L/C Issuer to any tax of any kind
whatsoever with respect to this Agreement, any Letter of Credit, any
participation in a Letter of Credit or any Eurodollar Rate Loan made by
it, or change the basis of taxation of payments to such Lender or the L/C
Issuer in respect thereof (except for Indemnified Taxes or Other Taxes
covered by Section 3.01 and the imposition of, or any change in the rate
of, any Excluded Tax payable by such Lender or the L/C Issuer); or
(iii) impose on any Lender or the L/C Issuer or the London interbank
market any other condition, cost or expense affecting this Agreement or
Eurodollar Rate Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to
such Lender of making or maintaining any Eurodollar Rate Loan (or of
maintaining its obligation to make any such Loan), or to increase the cost
to such Lender or the L/C Issuer of participating in, issuing or
maintaining any Letter of Credit (or of maintaining its obligation to
participate in or to issue any Letter of Credit), or to reduce the amount
of any sum received or receivable by such Lender or the L/C Issuer
hereunder (whether of principal, interest or any other amount) then, upon
request of such Lender or the L/C Issuer, the Borrower will pay to such
Lender or the L/C Issuer, as the case may be, such additional amount or
amounts as will compensate such Lender or the L/C Issuer, as the case may
be, for such additional costs incurred or reduction suffered.
48
(b) Capital Requirements. If any Lender or the L/C Issuer determines
that any Change in Law affecting such Lender or the L/C Issuer or any Lending
Office of such Lender or such Lender's or the L/C Issuer's holding company, if
any, regarding capital requirements has or would have the effect of reducing the
rate of return on such Lender's or the L/C Issuer's capital or on the capital of
such Lender's or the L/C Issuer's holding company, if any, as a consequence of
this Agreement, the Commitments of such Lender or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued by the L/C Issuer, to a level below that which such Lender or the
L/C Issuer or such Lender's or the L/C Issuer's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's or
the L/C Issuer's policies and the policies of such Lender's or the L/C Issuer's
holding company with respect to capital adequacy), then from time to time the
Borrower will pay to such Lender or the L/C Issuer, as the case may be, such
additional amount or amounts as will compensate such Lender or the L/C Issuer or
such Lender's or the L/C Issuer's holding company for any such reduction
suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or the L/C
Issuer setting forth the amount or amounts necessary to compensate such Lender
or the L/C Issuer or its holding company, as the case may be, as specified in
subsection (a) or (b) of this Section and delivered to the Borrower shall be
conclusive absent manifest error. The Borrower shall pay such Lender or the L/C
Issuer, as the case may be, the amount shown as due on any such certificate
within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or the
L/C Issuer to demand compensation pursuant to the foregoing provisions of this
Section shall not constitute a waiver of such Lender's or the L/C Issuer's right
to demand such compensation, provided that the Borrower shall not be required to
compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of
this Section for any increased costs incurred or reductions suffered more than
nine months prior to the date that such Lender or the L/C Issuer, as the case
may be, notifies the Borrower of the Change in Law giving rise to such increased
costs or reductions and of such Lender's or the L/C Issuer's intention to claim
compensation therefor (except that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the nine-month period
referred to above shall be extended to include the period of retroactive effect
thereof).
3.05 Compensation for Losses.
Upon demand of any Lender (with a copy to the Administrative Agent) from
time to time, the Borrower shall promptly compensate such Lender for and hold
such Lender harmless from any loss, cost or expense incurred by it as a result
of:
(a) any continuation, conversion, payment or prepayment of any
Loan other than a Base Rate Loan on a day other than the last day of the
Interest Period for such Loan (whether voluntary, mandatory, automatic, by
reason of acceleration, or otherwise);
(b) any failure by the Borrower (for a reason other than the
failure of such Lender to make a Loan) to prepay, borrow, continue or
convert any Loan other than a Base Rate Loan on the date or in the amount
notified by the Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other than
the last day of the Interest Period therefor as a result of a request by
the Borrower pursuant to Section 11.13;
including any loss of anticipated profits and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the
49
deposits from which such funds were obtained. The Borrower shall also pay any
customary administrative fees charged by such Lender in connection with the
foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders
under this Section 3.05, each Lender shall be deemed to have funded each
Eurodollar Rate Loan made by it at the Eurodollar Base Rate used in determining
the Eurodollar Rate for such Loan by a matching deposit or other borrowing in
the London interbank eurodollar market for a comparable amount and for a
comparable period, whether or not such Eurodollar Rate Loan was in fact so
funded.
3.06 Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 3.04, or the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for the account of
any Lender pursuant to Section 3.01, or if any Lender gives a notice pursuant to
Section 3.02, then such Lender shall use reasonable efforts to designate a
different Lending Office for funding or booking its Loans hereunder or to assign
its rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04,
as the case may be, in the future, or eliminate the need for the notice pursuant
to Section 3.02, as applicable, and (ii) in each case, would not subject such
Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation under
Section 3.04, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 3.01, the Borrower may replace such Lender in accordance with Section
11.13.
3.07 Survival.
All of the Borrower's obligations under this Article III shall survive
termination of the Aggregate Revolving Commitments and repayment of all other
Obligations hereunder.
ARTICLE IV
GUARANTY
4.01 The Guaranty.
Each of the Guarantors hereby jointly and severally guarantees to each
Lender, each Affiliate of a Lender that enters into a Swap Contract or a
Treasury Management Agreement with a Loan Party, and the Administrative Agent as
hereinafter provided, as primary obligor and not as surety, the prompt payment
of the Obligations in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or otherwise)
strictly in accordance with the terms thereof. The Guarantors hereby further
agree that if any of the Obligations are not paid in full when due (whether at
stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise), the Guarantors will, jointly and severally,
promptly pay the same, without any demand or notice whatsoever, and that in the
case of any extension of time of payment or renewal of any of the Obligations,
the same will be promptly paid in full when due (whether at extended maturity,
as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise) in accordance with the terms of such extension
or renewal.
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Notwithstanding any provision to the contrary contained herein or in any
other of the Loan Documents, Swap Contracts or Treasury Management Agreements,
the obligations of each Guarantor under this Agreement and the other Loan
Documents shall be limited to an aggregate amount equal to the largest amount
that would not render such obligations subject to avoidance under the Debtor
Relief Laws or any comparable provisions of any applicable state law.
4.02 Obligations Unconditional.
The obligations of the Guarantors under Section 4.01 are joint and
several, absolute and unconditional, irrespective of the value, genuineness,
validity, regularity or enforceability of any of the Loan Documents, Swap
Contracts or Treasury Management Agreements, or any other agreement or
instrument referred to therein, or any substitution, release, impairment or
exchange of any other guarantee of or security for any of the Obligations, and,
to the fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever which might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, it being the intent of this
Section 4.02 that the obligations of the Guarantors hereunder shall be absolute
and unconditional under any and all circumstances. Each Guarantor agrees that
such Guarantor shall have no right of subrogation, indemnity, reimbursement or
contribution against the Borrower or any other Guarantor for amounts paid under
this Article IV until such time as the Obligations have been paid in full and
the Commitments have expired or terminated. Without limiting the generality of
the foregoing, it is agreed that, to the fullest extent permitted by law, the
occurrence of any one or more of the following shall not alter or impair the
liability of any Guarantor hereunder, which shall remain absolute and
unconditional as described above:
(a) at any time or from time to time, without notice to any
Guarantor, the time for any performance of or compliance with any of the
Obligations shall be extended, or such performance or compliance shall be
waived;
(b) any of the acts mentioned in any of the provisions of any of
the Loan Documents, any Swap Contract or Treasury Management Agreement
between any Loan Party and any Lender, or any Affiliate of a Lender, or
any other agreement or instrument referred to in the Loan Documents, such
Swap Contracts or such Treasury Management Agreements shall be done or
omitted;
(c) the maturity of any of the Obligations shall be accelerated,
or any of the Obligations shall be modified, supplemented or amended in
any respect, or any right under any of the Loan Documents, any Swap
Contract or Treasury Management Agreement between any Loan Party and any
Lender, or any Affiliate of a Lender, or any other agreement or instrument
referred to in the Loan Documents, such Swap Contracts or such Treasury
Management Agreements shall be waived or any other guarantee of any of the
Obligations or any security therefor shall be released, impaired or
exchanged in whole or in part or otherwise dealt with;
(d) any Lien granted to, or in favor of, the Administrative Agent
or any Lender or Lenders as security for any of the Obligations shall fail
to attach or be perfected; or
(e) any of the Obligations shall be determined to be void or
voidable (including, without limitation, for the benefit of any creditor
of any Guarantor) or shall be subordinated to the claims of any Person
(including, without limitation, any creditor of any Guarantor).
With respect to its obligations hereunder, each Guarantor hereby expressly
waives diligence, presentment, demand of payment, protest and all notices
whatsoever, and any requirement that the Administrative Agent or any Lender
exhaust any right, power or remedy or proceed against any Person under
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any of the Loan Documents, any Swap Contract or any Treasury Management
Agreement between any Loan Party and any Lender, or any Affiliate of a Lender,
or any other agreement or instrument referred to in the Loan Documents, such
Swap Contracts or such Treasury Management Agreements, or against any other
Person under any other guarantee of, or security for, any of the Obligations.
4.03 Reinstatement.
The obligations of the Guarantors under this Article IV shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Obligations is rescinded or must be
otherwise restored by any holder of any of the Obligations, whether as a result
of any proceedings in bankruptcy or reorganization or otherwise, and each
Guarantor agrees that it will indemnify the Administrative Agent and each Lender
on demand for all reasonable costs and expenses (including, without limitation,
the reasonable fees, charges and disbursements of counsel) incurred by the
Administrative Agent or such Lender in connection with such rescission or
restoration, including any such reasonable costs and expenses incurred in
defending against any claim alleging that such payment constituted a preference,
fraudulent transfer or similar payment under any bankruptcy, insolvency or
similar law.
4.04 Certain Additional Waivers.
Each Guarantor further agrees that such Guarantor shall have no right of
recourse to security for the Obligations, except through the exercise of rights
of subrogation pursuant to Section 4.02 and through the exercise of rights of
contribution pursuant to Section 4.06.
4.05 Remedies.
The Guarantors agree that, to the fullest extent permitted by law, as
between the Guarantors, on the one hand, and the Administrative Agent and the
Lenders, on the other hand, the Obligations may be declared to be forthwith due
and payable as provided in Section 9.02 (and shall be deemed to have become
automatically due and payable in the circumstances provided in said Section
9.02) for purposes of Section 4.01 notwithstanding any stay, injunction or other
prohibition preventing such declaration (or preventing the Obligations from
becoming automatically due and payable) as against any other Person and that, in
the event of such declaration (or the Obligations being deemed to have become
automatically due and payable), the Obligations (whether or not due and payable
by any other Person) shall forthwith become due and payable by the Guarantors
for purposes of Section 4.01. The Guarantors acknowledge and agree that their
obligations hereunder are secured in accordance with the terms of the Collateral
Documents and that the Lenders may exercise their remedies thereunder in
accordance with the terms thereof.
4.06 Rights of Contribution.
The Guarantors agree among themselves that, in connection with payments
made hereunder, each Guarantor shall have contribution rights against the other
Guarantors as permitted under applicable law. Such contribution rights shall be
subordinate and subject in right of payment to the obligations of such
Guarantors under the Loan Documents and no Guarantor shall exercise such rights
of contribution until all Obligations have been paid in full and the Commitments
have terminated.
4.07 Guarantee of Payment; Continuing Guarantee.
The guarantee in this Article IV is a guaranty of payment and not of
collection, is a continuing guarantee, and shall apply to all Obligations
whenever arising.
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ARTICLE V
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
5.01 Conditions of Initial Credit Extension.
The obligation of the L/C Issuer and each Lender to make its initial
Credit Extension hereunder is subject to satisfaction of the following
conditions precedent:
(a) Loan Documents. Receipt by the Administrative Agent of
executed counterparts of this Agreement and the other Loan Documents, each
properly executed by a Responsible Officer of the signing Loan Party and,
in the case of this Agreement, by each Lender.
(b) No Material Adverse Change. There shall not have occurred a
material adverse change since December 31, 2003 in the business, assets,
liabilities (actual or contingent), operations, condition (financial or
otherwise) or prospects of the Borrower and its Subsidiaries, taken as a
whole.
(c) Organization Documents, Resolutions, Etc. Receipt by the
Administrative Agent of the following, each of which shall be originals or
facsimiles (followed promptly by originals), in form and substance
satisfactory to the Administrative Agent and its legal counsel:
(i) copies of the Organization Documents of each Loan Party
certified by a secretary or assistant secretary or Responsible
Officer of such Loan Party to be true and correct as of the Closing
Date;
(ii) such certificates of resolutions or other action,
incumbency certificates and/or other certificates of Responsible
Officers of each Loan Party as the Administrative Agent may require
evidencing the identity, authority and capacity of each Responsible
Officer thereof authorized to act as a Responsible Officer in
connection with this Agreement and the other Loan Documents to which
such Loan Party is a party; and
(iii) such documents and certifications as the Administrative
Agent may reasonably require to evidence that each Loan Party is
duly organized or formed, and is validly existing, in good standing
and qualified to engage in business in its state of organization or
formation and the state of its principal place of business.
(d) Opinions of Counsel. Receipt by the Administrative Agent of
favorable opinions of legal counsel to the Loan Parties, addressed to the
Administrative Agent and each Lender, dated as of the Closing Date, and in
form and substance satisfactory to the Administrative Agent.
(e) Perfection and Priority of Liens. Receipt by the
Administrative Agent of the following:
(i) searches of Uniform Commercial Code filings in the
jurisdiction of formation of each Loan Party, copies of the
financing statements on file in such jurisdictions and evidence that
no Liens exist other than Permitted Liens;
(ii) all certificates evidencing any certificated Capital
Stock pledged to the Administrative Agent pursuant to the Security
Agreement, together with duly executed in blank, undated stock
powers attached thereto (unless, with respect to the pledged Capital
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Stock of any Foreign Subsidiary, such stock powers are deemed
unnecessary by the Administrative Agent in its reasonable discretion
under the law of the jurisdiction of incorporation of such Person);
(iii) searches of ownership of, and Liens on, intellectual
property of each Loan Party in the appropriate governmental offices;
and
(iv) duly executed notices of grant of security interest in
the form required by the Security Agreement as are necessary, in the
Administrative Agent's sole discretion, to perfect the
Administrative Agent's security interest in the intellectual
property of the Loan Parties.
(f) Financial Statements. The Administrative Agent shall have
received the Audited Financial Statements and the Interim Financial
Statements.
(g) Evidence of Insurance. Receipt by the Administrative Agent of
copies of insurance policies or certificates of insurance of the Loan
Parties evidencing liability and casualty insurance meeting the
requirements set forth in the Loan Documents, including, but not limited
to, naming the Administrative Agent as additional insured (in the case of
liability insurance) or loss payee (in the case of hazard insurance) on
behalf of the Lenders.
(h) Side Letter Regarding 2003 Subordinated Note Documents. The
Loan Parties shall have executed and delivered to the Administrative Agent
a side letter, in form and substance reasonably acceptable to the
Administrative Agent, pursuant to which the Loan Parties agree not to make
any borrowings under the 2003 Subordinated Note Documents (the "2003
Subordinated Note Side Letter").
(i) Closing Certificate. Receipt by the Administrative Agent of a
certificate signed by a Responsible Officer of the Borrower (i) certifying
that the conditions specified in Sections 5.02(a), (b) and (c) have been
satisfied, (ii) attaching the 2003 Subordinated Note Documents and
certifying that such attached documents are true and complete copies of
the 2003 Subordinated Note Documents and (iii) attaching the Certificate
of Designation and certifying that such attached document is a true and
complete copy of the Certificate of Designation.
(j) Fees. Receipt by the Administrative Agent and the Lenders of
any fees required to be paid on or before the Closing Date.
(k) Attorney Costs. Unless waived by the Administrative Agent, the
Borrower shall have paid all reasonable fees, charges and disbursements of
counsel to the Administrative Agent to the extent invoiced prior to or on
the Closing Date, plus such additional amounts of such fees, charges and
disbursements as shall constitute its reasonable estimate of such fees,
charges and disbursements incurred or to be incurred by it through the
closing proceedings (provided that such estimate shall not thereafter
preclude a final settling of accounts between the Borrower and the
Administrative Agent).
5.02 Conditions to all Credit Extensions.
The obligation of each Lender to honor any Request for Credit Extension is
subject to the following conditions precedent:
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(a) The representations and warranties of each Loan Party
contained in Article VI or any other Loan Document, or which are contained
in any document furnished at any time under or in connection herewith or
therewith, shall be true and correct in all material respects on and as of
the date of such Credit Extension, except to the extent that such
representations and warranties specifically refer to an earlier date, in
which case they shall be true and correct as of such earlier date, and
except that for purposes of this Section 5.02, the representations and
warranties contained in subsections (a) and (b) of Section 6.05 shall be
deemed to refer to the most recent statements furnished pursuant to
clauses (a) and (b), respectively, of Section 7.01.
(b) No Default shall exist, or would result from such proposed
Credit Extension or from the application of the proceeds thereof.
(c) There shall not have been commenced against the Borrower or
any Subsidiary an involuntary case under any applicable Debtor Relief Law,
now or hereafter in effect, or any case, proceeding or other action for
the appointment of a receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of such Person or for any substantial
part of its Property or for the winding up or liquidation of its affairs,
and such involuntary case or other case, proceeding or other action shall
remain undismissed.
(d) The Administrative Agent and, if applicable, the L/C Issuer or
the Swing Line Lender shall have received a Request for Credit Extension
in accordance with the requirements hereof.
Each Request for Credit Extension submitted by the Borrower shall be
deemed to be a representation and warranty that the conditions specified in
Sections 5.02(a), (b) and (c) have been satisfied on and as of the date of the
applicable Credit Extension.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Loan Parties represent and warrant to the Administrative Agent and the
Lenders that:
6.01 Existence, Qualification and Power.
Each Loan Party (a) is duly organized or formed, validly existing and in
good standing under the Laws of the jurisdiction of its incorporation or
organization, (b) has all requisite power and authority and all requisite
governmental licenses, authorizations, consents and approvals to (i) own or
lease its assets and carry on its business and (ii) execute, deliver and perform
its obligations under the Loan Documents to which it is a party, and (c) is duly
qualified and is licensed and in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license; except in each
case referred to in clause (b)(i) or (c), to the extent that failure to do so
could not reasonably be expected to have a Material Adverse Effect.
6.02 Authorization; No Contravention.
The execution, delivery and performance by each Loan Party of each Loan
Document to which such Person is party have been duly authorized by all
necessary corporate or other organizational action, and do not (a) contravene
the terms of any of such Loan Party's Organization Documents; (b) conflict with
or result in any breach or contravention of, or the creation of any Lien under,
or require any payment to be made under (i) any Contractual Obligation to which
such Loan Party is a party or affecting such
55
Loan Parties or the Property of such Loan Party or (ii) any order, injunction,
writ or decree of any Governmental Authority or any arbitral award to which such
Loan Party or its Property is subject; or (c) violate any Law (including,
without limitation, Regulation U or Regulation X issued by the FRB).
6.03 Governmental Authorization; Other Consents.
No approval, consent, exemption, authorization, or other action by, or
notice to, or filing with, any Governmental Authority or any other Person is
necessary or required in connection with the execution, delivery or performance
by, or enforcement against, any Loan Party of this Agreement or any other Loan
Document other than (i) those that have already been obtained and are in full
force and effect and (ii) filings to perfect the Liens created by the Collateral
Documents.
6.04 Binding Effect.
Each Loan Document has been duly executed and delivered by each Loan Party
that is party thereto. Each Loan Document constitutes a legal, valid and binding
obligation of each Loan Party that is party thereto, enforceable against each
such Loan Party in accordance with its terms, except as enforcability may be
limited by applicable Debtor Relief Laws or equitable principles relating to
enforcability.
6.05 Financial Statements; No Material Adverse Effect; No Internal Control
Event.
(a) The Audited Financial Statements (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present in all material respects
the financial condition of the Borrower and its Subsidiaries as of the date
thereof and their results of operations for the period covered thereby in
accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein; and (iii) show all material
indebtedness and other liabilities, direct or contingent, of the Borrower and
its Subsidiaries as of the date thereof, including liabilities for taxes,
commitments and Indebtedness.
(b) The Interim Financial Statements (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present in all material respects
the financial condition of the Borrower and its Subsidiaries as of the date
thereof and their results of operations for the period covered thereby, subject,
in the case of clauses (i) and (ii), to the absence of footnotes and to normal
year-end audit adjustments; and (iii) show all material indebtedness and other
liabilities, direct or contingent, of the Borrower and its Subsidiaries as of
the date thereof, including liabilities for taxes, material commitments and
Indebtedness.
(c) From the date of the Audited Financial Statements to and including
the Closing Date, there has been no Disposition by the Borrower or any
Subsidiary, or any Involuntary Disposition, of any material part of the business
or Property of the Borrower and its Subsidiaries, taken as a whole, and no
purchase or other acquisition by any of them of any business or property
(including any Capital Stock of any other Person) material in relation to the
consolidated financial condition of the Borrower and its Subsidiaries, taken as
a whole, in each case, which is not reflected in the foregoing financial
statements or in the notes thereto and has not otherwise been disclosed in
writing to the Lenders on or prior to the Closing Date.
(d) The financial statements delivered pursuant to Section 7.01(a) and
(b) have been prepared in accordance with GAAP (except as may otherwise be
permitted under Section 7.01(a) and (b)) and present fairly (on the basis
disclosed in the footnotes to such financial statements) in all material
respects the consolidated and, in the case of annual financial statements
delivered pursuant to Section 7.01(a),
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consolidating, financial condition, results of operations and cash flows of the
Borrower and its Subsidiaries as of the dates thereof and for the periods
covered thereby.
(e) Since the date of the Audited Financial Statements, there has been
no event or circumstance that has had or could reasonably be expected to have a
Material Adverse Effect.
(f) Since the date of the Audited Financial Statements, no Internal
Control Event has occurred.
6.06 Litigation.
There are no actions, suits, proceedings, claims or disputes pending or,
to the knowledge of the Loan Parties, threatened or contemplated, at law, in
equity, in arbitration or before any Governmental Authority, by or against the
Borrower or any of its Subsidiaries or against any of their properties or
revenues that (a) purport to affect or pertain to this Agreement or any other
Loan Document or (b) if determined adversely, could reasonably be expected to
have a Material Adverse Effect.
6.07 No Default.
(a) Neither the Borrower nor any Subsidiary is in default under or with
respect to any Contractual Obligation that could reasonably be expected to have
a Material Adverse Effect.
(b) No Default has occurred and is continuing.
6.08 Ownership of Property; Liens.
Each of the Borrower and its Subsidiaries has record fee simple title in
fee simple to, or valid leasehold interests in, all real property necessary or
used in the ordinary conduct of its business, except for such defects in title
as could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. The Property of the Borrower and its Subsidiaries is
subject to no Liens, other than Permitted Liens.
6.09 Environmental Compliance.
Except as could not reasonably be expected to have a Material Adverse
Effect, to the actual knowledge of the Loan Parties:
(a) Each of the Facilities and all operations at the Facilities
are in compliance with all applicable Environmental Laws, and there is no
violation of any Environmental Law with respect to the Facilities or the
Businesses, and there are no conditions relating to the Facilities or the
Businesses that could reasonably be expected to give rise to liability
under any applicable Environmental Laws.
(b) None of the Facilities contains any Hazardous Materials at, on
or under the Facilities in amounts or concentrations that constitute a
violation of, or could reasonably be expected to give rise to liability
under, Environmental Laws.
(c) Neither the Borrower nor any Subsidiary has received any
written or verbal notice of, or inquiry from any Governmental Authority
regarding, any violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Facilities or the Businesses,
nor does any Responsible
57
Officer of any Loan Party have knowledge or reason to believe that any
such notice will be received or is being threatened.
(d) Hazardous Materials have not been transported or disposed of
from the Facilities, or generated, treated, stored or disposed of at, on
or under any of the Facilities or any other location, in each case by or
on behalf the Borrower or any Subsidiary in violation of, or in a manner
that would be reasonably likely to give rise to liability under, any
applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of the Responsible Officers of the
Loan Parties, threatened, under any Environmental Law to which the
Borrower or any Subsidiary is or will be named as a party, nor are there
any consent decrees or other decrees, consent orders, administrative
orders or other orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to the Borrower, any
Subsidiary, the Facilities or the Businesses.
(f) There has been no release or threat of release of Hazardous
Materials at or from the Facilities, or arising from or related to the
operations (including, without limitation, disposal) of the Borrower or
any Subsidiary in connection with the Facilities or otherwise in
connection with the Businesses, in violation of or in amounts or in a
manner that could reasonably be expected to give rise to liability under
Environmental Laws.
6.10 Insurance.
The properties of the Borrower and its Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of the
Borrower, in such amounts, with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses and owning
similar properties in localities where the Borrower or the applicable Subsidiary
operates. The insurance coverage of the Loan Parties as in effect on the Closing
Date is outlined as to carrier, policy number, expiration date, type, amount and
deductibles on Schedule 6.10.
6.11 Taxes.
The Borrower and its Subsidiaries have filed all federal, state and other
material tax returns and reports required to be filed, and have paid all
federal, state and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those which are being contested in good
faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP. There is no proposed tax
assessment against the Borrower or any Subsidiary that would, if made, have a
Material Adverse Effect.
6.12 ERISA Compliance.
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Internal Revenue Code and other federal or
state Laws. Each Plan that is intended to qualify under Section 401(a) of the
Internal Revenue Code has received a favorable determination letter from the IRS
or an application for such a letter is currently being processed by the IRS with
respect thereto and, to the knowledge of the Loan Parties, nothing has occurred
which would prevent, or cause the loss of, such qualification. Each Loan Party
and each ERISA Affiliate have made all required contributions to each Plan
subject to Section 412 of the Internal Revenue Code, and no application for a
funding waiver or an extension of any amortization period pursuant to Section
412 of the Internal Revenue Code has been made with respect to any Plan.
58
(b) There are no pending or, to the knowledge of the Loan Parties,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that could be reasonably be expected to have a Material
Adverse Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur;
(ii) no Pension Plan has any Unfunded Pension Liability; (iii) no Loan Party or
any ERISA Affiliate has incurred, or reasonably expects to incur, any liability
under Title IV of ERISA with respect to any Pension Plan (other than premiums
due and not delinquent under Section 4007 of ERISA); (iv) no Loan Party or any
ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and
no event has occurred which, with the giving of notice under Section 4219 of
ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA with
respect to a Multiemployer Plan; and (v) no Loan Party or any ERISA Affiliate
has engaged in a transaction that could be subject to Section 4069 or 4212(c) of
ERISA.
6.13 Subsidiaries.
Set forth on Schedule 6.13 is a complete and accurate list as of the
Closing Date of each Subsidiary (including each Majority Interest Joint Venture
and each Immaterial Subsidiary) and each Minority Interest Joint Venture,
together with (i) jurisdiction of formation, (ii) number of shares of each class
of Capital Stock outstanding, (iii) number and percentage of outstanding shares
of each class owned (directly or indirectly) by the Borrower or any Subsidiary,
(iv) number and effect, if exercised, of all outstanding options, warrants,
rights of conversion or purchase and all other similar rights with respect
thereto and (v) a designation of such Person as a Majority Interest Joint
Venture, Immaterial Subsidiary or Minority Interest Joint Venture, if
applicable. The outstanding Capital Stock of each Subsidiary are validly issued,
fully paid and non-assessable. The Capital Stock of each Minority Interest Joint
Venture owned by the Borrower or any Subsidiary are validly issued, fully paid
and non-assessable.
6.14 Margin Regulations; Investment Company Act; Public Utility Holding Company
Act.
(a) The Borrower is not engaged and will not engage, principally or as
one of its important activities, in the business of purchasing or carrying
margin stock (within the meaning of Regulation U issued by the FRB), or
extending credit for the purpose of purchasing or carrying margin stock.
Following the application of the proceeds of each Borrowing or drawing under
each Letter of Credit, not more than 25% of the value of the assets (either of
the Borrower only or of the Borrower and its Subsidiaries on a consolidated
basis) subject to the provisions of Section 8.01 or Section 8.05 or subject to
any restriction contained in any agreement or instrument between the Borrower
and any Lender or any Affiliate of any Lender relating to Indebtedness and
within the scope of Section 9.01(e) will be margin stock.
(b) None of the Borrower, any Person Controlling the Borrower, or any
Subsidiary (i) is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," within the meaning of the Public Utility Holding Company
Act of 1935, or (ii) is or is required to be registered as an "investment
company" under the Investment Company Act of 1940.
6.15 Disclosure.
No report, financial statement, certificate or other information furnished
(whether in writing or orally) by or on behalf of any Loan Party to the
Administrative Agent or any Lender in connection with
59
the transactions contemplated hereby and the negotiation of this Agreement or
delivered hereunder (in each case, as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided that,
with respect to projected financial information, the Loan Parties represent only
that such information was prepared in good faith based upon assumptions believed
to be reasonable at the time.
6.16 Compliance with Laws.
(a) Each of the Borrower and each Subsidiary is in compliance with the
requirements of all Laws (including, without limitation, Medicare Regulations,
Medicaid Regulations, HIPAA, 42 U.S.C. Section 1320a-7b and 42 U.S.C. Section
1395nn) and all orders, writs, injunctions, decrees, licenses and permits
applicable to it, its properties or the Facilities, except in such instances in
which (i) such requirement of Law or order, writ, injunction or decree is being
contested in good faith by appropriate proceedings diligently conducted or (ii)
the failure to comply therewith could not reasonably be expected to have a
Material Adverse Effect. Without limiting the generality of the foregoing:
(A) neither the Borrower nor any Subsidiary, nor any individual
employed by the Borrower or any Subsidiary, would reasonably be expected
to have criminal culpability or to be excluded from participation in any
Medical Reimbursement Program for corporate or individual actions or
failures to act known to the Borrower or any Subsidiary where such
culpability or exclusion has resulted or could reasonably be expected to
result in an Exclusion Event;
(B) to the knowledge of the Loan Parties, no officer or other
member of management continues to be employed by the Borrower or any
Subsidiary who may reasonably be expected to have individual culpability
for matters under investigation by the OIG or other Governmental Authority
unless such officer or other member of management has been, within a
reasonable period of time after discovery of such actual or potential
culpability, either suspended or removed from positions of responsibility
related to those activities under challenge by the OIG or other
Governmental Authority;
(C) current billing policies, arrangements, protocols and
instructions of the Borrower and its Subsidiaries comply with requirements
of Medical Reimbursement Programs and are administered by properly trained
personnel, except where any such failure to comply would not reasonably be
expected to result in an Exclusion Event; and
(D) current medical director compensation arrangements of the
Borrower and its Subsidiaries comply with applicable state and federal
anti-kickback, fraud and abuse, and self-referral laws, including without
limitation 42 U.S.C. Section 1320a-7b and 42 U.S.C. Section 1395nn, and
all regulations promulgated under such laws, except where any such failure
to comply would not reasonably be expected to result in an Exclusion
Event.
(b) The Borrower has in place a compliance program for the Borrower and
its Subsidiaries that is reasonably designed to provide effective internal
controls that promote adherence to, prevent and detect material violations of,
any Laws applicable to the Borrower and its Subsidiaries, and which includes the
implementation of internal audits and monitoring on a regular basis to monitor
compliance with the compliance program and with Laws.
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6.17 Intellectual Property; Licenses, Etc.
The Borrower and its Subsidiaries own, or possess the legal right to use,
all of the trademarks, service marks, trade names, copyrights, patents, patent
rights, franchises, licenses and other intellectual property rights
(collectively, "IP Rights") that are reasonably necessary for the operation of
their respective businesses. Set forth on Schedule 6.17 is a list of all IP
Rights registered or pending registration with the United States Copyright
Office or the United States Patent and Trademark Office and owned by any Loan
Party, or that any Loan Party has the right to use, as of the Closing Date.
Except for such claims and infringements that could not reasonably be expected
to have a Material Adverse Effect, no claim has been asserted and is pending by
any Person challenging or questioning the use of any IP Rights or the validity
or effectiveness of any IP Rights, nor does any Loan Party know of any such
claim, and, to the knowledge of the Responsible Officers of the Loan Parties,
the use of any IP Rights by the Borrower or any Subsidiary or the granting of a
right or a license in respect of any IP Rights from the Borrower or any
Subsidiary does not infringe on the rights of any Person. As of the Closing
Date, none of the IP Rights owned by any of the Loan Parties is subject to any
licensing agreement or similar arrangement except as set forth on Schedule 6.17.
6.18 Broker's Fees.
Neither the Borrower nor any Subsidiary has any obligation to any Person
in respect of any finder's, broker's, investment banking or other similar fee in
connection with any of the transactions contemplated under the Loan Documents.
6.19 Labor Matters.
There are no collective bargaining agreements or Multiemployer Plans
covering the employees of the Borrower or any Subsidiary as of the Closing Date
and neither the Borrower nor any Subsidiary has suffered any strikes, walkouts,
work stoppages or other material labor difficulty within the last five years.
6.20 Business Locations.
Set forth on Schedule 6.20(a) is a list of all real property that as of
the Closing Date is owned or leased by (i) any Loan Party, (ii) any Majority
Interest Joint Venture that is a Pledgor or (iii) any Minority Interest Joint
Venture that is a Pledgor. Set forth on Schedule 6.20(b) is the chief executive
office, federal tax payer identification number and state organizational
identification number as of the Closing Date of (i) each Loan Party, (ii) each
Majority Interest Joint Venture that is a Pledgor and (iii) each Minority
Interest Joint Venture that is a Pledgor. Except as set forth on Schedule
6.20(c), neither any Loan Party, any Majority Interest Joint Venture that is a
Pledgor nor any Minority Interest Joint Venture that is a Pledgor has during the
five years preceding the Closing Date (i) changed its legal name, (ii) changed
its state of formation, or (iii) been party to a merger, consolidation or other
change in structure.
6.21 [Reserved].
6.22 Subordination.
(a) The Obligations are "Senior Debt" under the Subordinated
Indebtedness Documents.
(b) The Obligations are "Designated Senior Debt" under the Subordinated
Indebtedness Documents and no other Indebtedness or other obligations constitute
"Designated Senior Debt" under the Subordinated Indebtedness Documents.
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6.23 Fraud and Abuse.
To the knowledge of the Responsible Officers of the Loan Parties, neither
the Borrower nor any Subsidiary nor any of their respective officers or
directors has engaged in any activities that are prohibited under any applicable
provision of the Social Security Act and the regulations promulgated thereunder,
including HIPAA, the Medicare Regulations or the Medicaid Regulations that could
reasonably be expected to have a Material Adverse Effect.
6.24 Licensing and Accreditation.
(a) Except to the extent it would not reasonably be expected to have a
Material Adverse Effect, each of the Borrower and its Subsidiaries has, to the
extent applicable: (i) obtained (or been duly assigned) all required
certificates of need or determinations of need as required by the relevant state
Governmental Authority for the acquisition, construction, expansion of,
investment in or operation of its businesses and Facilities as currently
operated; (ii) obtained and maintains in good standing all required licenses,
permits, authorizations and approvals of each Governmental Authority necessary
to the conduct of its business and Facilities; (iii) to the extent prudent and
customary in the industry in which it is engaged, obtained and maintains
accreditation from all generally recognized accrediting agencies; (iv) entered
into and maintains in good standing its Medicare Provider Agreements and
Medicaid Provider Agreements; and (v) ensured that all such required licenses
are in full force and effect on the date hereof and have not been revoked or
suspended or otherwise limited.
(b) To the knowledge of the Loan Parties, each Contract Provider is duly
licensed by each state, state agency, commission or other Governmental Authority
having jurisdiction over the provision of such services by such Person in the
locations where the Borrower and its Subsidiaries conduct business, to the
extent such licensing is required to enable such Person to provide the
professional services provided by such Person and otherwise as is necessary to
enable the Borrower and its Subsidiaries to operate as currently operated and as
contemplated to be operated.
6.25 Reimbursement from Medical Reimbursement Programs.
The accounts receivable of Borrower and its Subsidiaries have been and
will continue to be adjusted to reflect the reimbursement policies (both those
most recently published in writing as well as those not in writing which have
been verbally communicated) of Medical Reimbursement Programs, including without
limitation Medicare, Medicaid, Blue Cross/Blue Shield, private insurance
companies, health maintenance organizations, preferred provider organizations,
alternative delivery systems, managed care systems, government contracting
agencies and other third party payors. In particular, accounts receivable
relating to such Medical Reimbursement Programs do not and shall not exceed in
any material respect amounts any obligee is entitled to receive under any
capitation arrangement, fee schedule, discount formula, cost-based reimbursement
or other adjustment or limitation to its usual charges.
6.26 Medicare and Medicaid Notices and Filings Related to Health Care Business.
With respect to Borrower and its Subsidiaries, to the extent applicable
and except to the extent as would not be reasonably be expected to have a
Material Adverse Effect: (i) each has timely filed all reports required to be
filed in connection with Medicare and applicable Medicaid programs and due on or
before the date hereof, and all required reports and administrative forms and
filings are true and complete in all material respects; (ii) there are no
claims, actions, proceedings or appeals pending (and neither Borrower nor any of
its Subsidiaries has filed anything that would result in any claims, actions or
appeals) before any Governmental Authority with respect to any Medicare or
Medicaid cost reports or claims filed by the Borrower or any of its Subsidiaries
on or before the date hereof, or with respect to any adjustments,
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denials, recoupments or disallowances by any intermediary, carrier, other
insurer, commission, board or agency in connection with any cost reports or
claims; (iii) no validation review, survey, inspection, audit, investigation or
program integrity review related to the Borrower or any Subsidiary has been
conducted by any Governmental Authority or government contractor in connection
with the Medicare or Medicaid programs, and no such reviews are scheduled,
pending or, threatened against or affecting the Borrower or any Subsidiary; and
(iv) each has timely filed all material reports, data and other information
required by any other Governmental Authority with authority to regulate the
Borrower or any Subsidiary or its business in any manner.
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Loan Parties shall and shall cause each
Subsidiary to:
7.01 Financial Statements.
Deliver to the Administrative Agent and each Lender, in form and detail
satisfactory to the Administrative Agent and the Required Lenders:
(a) as soon as available, but in any event within ninety (90) days
after the end of each fiscal year of the Borrower or, if earlier, within
two (2) Business Days after the Borrower files with the SEC an Annual
Report on Form 10-K for such fiscal year, commencing with the fiscal year
ending December 31, 2004, a consolidated and consolidating balance sheet
of the Borrower and its Subsidiaries as at the end of such fiscal year,
and the related consolidated and consolidating statements of income or
operations, shareholders' equity and cash flows for such fiscal year,
setting forth in each case in comparative form the figures as of the end
of and for the previous fiscal year, all in reasonable detail and prepared
in accordance with GAAP, audited and accompanied by (i) a report and
opinion of a Ernst & Young LLP or other Registered Public Accounting Firm
of nationally recognized standing reasonably acceptable to the Required
Lenders, which report and opinion shall be prepared in accordance with
generally accepted auditing standards and applicable Securities Laws and
shall not be subject to any "going concern" or like qualification or
exception or any qualification or exception as to the scope of such audit,
(ii) after December 31, 2005, an attestation report of such Registered
Public Accounting Firm as to the Borrower's internal controls pursuant to
Section 404 of Xxxxxxxx-Xxxxx and (iii) written discussion and analysis by
the management of the Borrower of such financial statements; and
(b) as soon as available, but in any event within forty-five (45)
days after the end of each of the first three fiscal quarters of each
fiscal year of the Borrower or, if earlier, within two (2) Business Days
after the Borrower files with the SEC a Quarterly Report on Form 10-Q for
such fiscal quarter, an unaudited consolidated and consolidating balance
sheet of the Borrower and its Subsidiaries as at the end of such fiscal
quarter, and the related consolidated and consolidating statements of
income or operations, shareholders' equity and cash flows for such fiscal
quarter and for the portion of the Borrower's fiscal year then ended,
setting forth in each case in comparative form the figures as of the end
of and for the corresponding fiscal quarter of the previous fiscal year
and the corresponding portion of the previous fiscal year, all in
reasonable detail and accompanied by (i) (iii) written discussion and
analysis by the management of the Borrower of such financial statements by
a Responsible Officer of the Borrower that such
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financial statements fairly present in all material respects the financial
condition, results of operations, shareholders' equity and cash flows of
the Borrower and its Subsidiaries in accordance with GAAP, subject only to
normal year-end audit adjustments and the absence of footnotes.
As to any information contained in materials furnished pursuant to Section
7.02(e), the Borrower shall not be separately required to furnish such
information under clause (a) or (b) above, but the foregoing shall not be
in derogation of the obligation of the Borrower to furnish the information
and materials described in subsections (a) and (b) above at the times
specified therein.
7.02 Certificates; Other Information.
Deliver to the Administrative Agent and each Lender, in form and detail
satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements
referred to in Section 7.01(a), a certificate of its independent certified
public accountants certifying such financial statements and stating that
in making the examination necessary therefor no knowledge was obtained of
any Default under any of the financial covenants contained in Section 8.11
or, if any such Default shall exist, stating the nature and status of such
event;
(b) concurrently with the delivery of the financial statements
referred to in Sections 7.01(a) and (b), a duly completed Compliance
Certificate signed by a Responsible Officer of the Borrower;
(c) within ninety (90) days after the end of each fiscal year of
the Borrower, beginning with the fiscal year ending December 31, 2005,
twelve month budgeted financial statements (including balance sheets and
statements of income, shareholders' equity and cash flows and a statement
of budgeted Consolidated Capital Expenditures, and including a reasonably
detailed description of all underlying assumptions) of the Borrower and
its Subsidiaries on a consolidated basis for the following fiscal year;
(d) within ten (10) days after receipt thereof by the Borrower,
copies of any detailed audit reports, management letters or
recommendations submitted to the board of directors (or the audit
committee of the board of directors) of the Borrower by independent
certified public accountants that describe or refer to any Internal
Control Event or any inadequacy, defect, problem, qualification or other
lack of satisfactory accounting controls utilized by the Borrower or any
of its Subsidiaries;
(e) within two (2) Business Days after (i) delivery thereof to the
shareholders of the Borrower, copies of all financial statements and
reports that the Borrower or any of its Subsidiaries sends to the
shareholders of the Borrower, and (ii) filing thereof, copies of all
reports and statements of the Borrower and its Subsidiaries (including
proxy and information statements, quarterly reports filed with the SEC,
annual and current reports and registration statements, but excluding
those pertaining only to employee benefit plans).
(f) promptly, and in any event within five (5) Business Days after
receipt thereof by any Loan Party or any Subsidiary thereof, copies of
each notice or other correspondence received from the SEC (or comparable
agency in any applicable non-U.S. jurisdiction) concerning any
investigation or possible investigation or other inquiry by such agency
regarding financial or other operational results of any Loan Party or any
Subsidiary thereof;
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(g) concurrently with the delivery of the financial statements
referred to in Sections 7.01(a) and (b), a certificate of a Responsible
Officer of the Borrower (i) listing (A) all applications, if any, for
Copyrights, Patents or Trademarks (each such term as defined in the
Security Agreement) made since the date of the prior certificate (or, in
the case of the first such certificate, the Closing Date), (B) all
issuances of registrations or letters on existing applications for
Copyrights, Patents and Trademarks (each such term as defined in the
Security Agreement) received since the date of the prior certificate (or,
in the case of the first such certificate, the Closing Date), and (C) all
Trademark Licenses, Copyright Licenses and Patent Licenses (each such term
as defined in the Security Agreement) entered into since the date of the
prior certificate (or, in the case of the first such certificate, the
Closing Date), and (ii) attaching the insurance binder or other evidence
of insurance for any insurance coverage of the Borrower or any Subsidiary
that was renewed, replaced or modified during the period covered by such
financial statements; and
(h) promptly, such additional information regarding the business,
financial or corporate affairs of the Borrower or any Subsidiary, or
compliance with the terms of the Loan Documents, as the Administrative
Agent or any Lender may from time to time in writing reasonably request.
Documents required to be delivered pursuant to Section 7.01(a) or (b) or
Section 7.02(e) may (to the extent any such documents are included in materials
otherwise filed with the SEC) be delivered electronically and if so delivered,
shall be deemed to have been delivered on the date (i) on which the Borrower
posts such documents, or provides a link thereto on the Borrower's website on
the Internet at the website address listed on Schedule 11.02; or (ii) on which
such documents are posted on the Borrower's behalf on an Internet or intranet
website, if any, to which each Lender and the Administrative Agent have access
(whether a commercial, third-party website or whether sponsored by the
Administrative Agent); provided that: (i) the Borrower shall deliver paper
copies of such documents to the Administrative Agent or any Lender that requests
the Borrower to deliver such paper copies until a written request to cease
delivering paper copies is given by the Administrative Agent or such Lender and
(ii) the Borrower shall notify the Administrative Agent and each Lender (by
telecopier or electronic mail) of the posting of any such documents and provide
to the Administrative Agent by electronic mail electronic versions (i.e., soft
copies) of such documents. Notwithstanding anything contained herein, in every
instance the Borrower shall be required to provide paper copies of the
Compliance Certificates required by Section 7.02(b) to the Administrative Agent
and each of the Lenders. Except for such Compliance Certificates, the
Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the documents referred to above, and in any event shall have
no responsibility to monitor compliance by the Borrower with any such request
for delivery, and each Lender shall be solely responsible for requesting
delivery to it or maintaining its copies of such documents.
The Borrower hereby acknowledges that (a) the Administrative Agent and/or
BAS will make available to the Lenders and the L/C Issuer materials and/or
information provided by or on behalf of the Borrower hereunder (collectively,
"Borrower Materials") by posting the Borrower Materials on IntraLinks or another
similar electronic system (the "Platform") and (b) certain of the Lenders may be
"public-side" Lenders (i.e., Lenders that do not wish to receive material
non-public information with respect to the Borrower or its securities) (each, a
"Public Lender"). The Borrower hereby agrees that so long as the Borrower is the
issuer of any outstanding debt or equity securities that are registered or
issued pursuant to a private offering or is actively contemplating issuing any
such securities (w) all Borrower Materials that are to be made available to
Public Lenders shall be clearly and conspicuously marked "PUBLIC" which, at a
minimum, shall mean that the word "PUBLIC" shall appear prominently on the first
page thereof; (x) by marking Borrower Materials "PUBLIC," the Borrower shall be
deemed to have authorized the Administrative Agent, BAS and the Lenders to treat
such Borrower Materials as not
65
containing any material non-public information with respect to the Borrower or
its securities for purposes of United States federal and state securities laws
(provided, however, that to the extent such Borrower Materials constitute
Information, they shall be treated as set forth in Section 11.07); (y) all
Borrower Materials marked "PUBLIC" are permitted to be made available through a
portion of the Platform designated as "Public Investor;" and (z) the
Administrative Agent and BAS shall be entitled to treat any Borrower Materials
that are not marked "PUBLIC" as being suitable only for posting on a portion of
the Platform not marked as "Public Investor." Notwithstanding the foregoing, the
Borrower shall be under no obligation to xxxx any Borrower Materials "PUBLIC."
7.03 Notices.
(a) Promptly (and in any event within five (5) Business Days after any
Loan Party obtains knowledge thereof) notify the Administrative Agent and each
Lender of the occurrence of any Default.
(b) Promptly after any Loan Party obtains knowledge thereof, notify the
Administrative Agent and each Lender of any matter that has resulted or could
reasonably be expected to result in a Material Adverse Effect.
(c) Promptly after any Loan Party obtains knowledge thereof, notify the
Administrative Agent and each Lender of the occurrence of any ERISA Event.
(d) Promptly notify the Administrative Agent and each Lender of (i) any
material change in accounting policies or financial reporting practices by the
Borrower or any Subsidiary or (ii) the occurrence of any Internal Control Event.
(e) Upon the reasonable written request of the Administrative Agent
following the occurrence of any event or the discovery of any condition which
the Administrative Agent or the Required Lenders reasonably believe has caused
(or could be reasonably expected to cause) the representations and warranties
set forth in Section 6.09 to be untrue in any material respect, furnish or cause
to be furnished to the Administrative Agent, at the Loan Parties' expense, a
report of an environmental assessment of reasonable scope, form and depth,
(including, where appropriate, invasive soil or groundwater sampling) by a
consultant reasonably acceptable to the Administrative Agent as to the nature
and extent of the presence of any Materials of Environmental Concern on any
Facilities and as to the compliance by the Borrower or any of its Subsidiaries
with Environmental Laws at such Facilities. If the Loan Parties fail to deliver
such an environmental report within seventy-five (75) days after receipt of such
written request then the Administrative Agent may arrange for the same, and the
Loan Parties hereby grant to the Administrative Agent and its representatives
access to the Facilities to reasonably undertake such an assessment (including,
where appropriate, invasive soil or groundwater sampling). The reasonable cost
of any assessment arranged for by the Administrative Agent pursuant to this
provision will be payable by the Loan Parties on demand and added to the
obligations secured by the Collateral Documents.
Each notice pursuant to this Section 7.03 shall be accompanied by a
statement of a Responsible Officer of the Borrower setting forth details of the
occurrence referred to therein and stating what action the Borrower has taken
and proposes to take with respect thereto. Each notice pursuant to Section
7.03(a) shall describe with particularity any and all provisions of this
Agreement and any other Loan Document that have been breached.
7.04 Payment of Obligations.
Pay and discharge, as the same shall become due and payable, all its
obligations and liabilities, including (a) all tax liabilities, assessments and
governmental charges or levies upon it or its properties or
66
assets, unless the same are being contested in good faith by appropriate
proceedings diligently conducted and adequate reserves in accordance with GAAP
are being maintained by the Borrower or such Subsidiary; and (b) all lawful
claims which, if unpaid, would by law become a Lien upon its Property, unless
the same are being contested in good faith by appropriate proceedings diligently
conducted and adequate reserves in accordance with GAAP are being maintained by
the Borrower or such Subsidiary.
7.05 Preservation of Existence, Etc.
(a) Preserve, renew and maintain in full force and effect its legal
existence under the Laws of the jurisdiction of its organization except in a
transaction permitted by Section 8.04 or 8.05.
(b) Preserve, renew and maintain in full force and effect its good
standing under the Laws of the jurisdiction of its organization, except to the
extent the failure to do so could not reasonably be expected to have a Material
Adverse Effect.
(c) Take all reasonable action to maintain all rights, privileges,
permits, licenses, franchises, certifications and approvals as are necessary for
the conduct of its business as currently conducted and herein contemplated,
including without limitation professional licenses, CLIA certifications,
Medicare Provider Agreements and Medicaid Provider Agreements, except to the
extent the failure to do so could not reasonably be expected to have a Material
Adverse Effect.
(d) Preserve or renew all of its material registered patents,
copyrights, trademarks, trade names and service marks, except to the extent the
failure to do so could not reasonably be expected to have a Material Adverse
Effect.
7.06 Maintenance of Properties.
(a) Maintain, preserve and protect all of its material properties and
equipment necessary in the operation of its business in good working order and
condition, ordinary wear and tear and Involuntary Dispositions excepted.
(b) Make all necessary repairs thereto and renewals and replacements
thereof, except to the extent the failure to do so could not reasonably be
expected to have a Material Adverse Effect.
(c) Use the standard of care typical in the industry in the operation
and maintenance of its facilities.
7.07 Maintenance of Insurance.
Maintain in full force and effect insurance (including worker's
compensation insurance, liability insurance, casualty insurance, business
interruption insurance and reinsurance) with financially sound and reputable
insurance companies not Affiliates of the Borrower, in such amounts, with such
deductibles and covering such risks as are customarily carried by companies
engaged in similar businesses and owning similar properties in localities where
the Borrower or the applicable Subsidiary operates. The Administrative Agent
shall be named as loss payee or mortgagee, as its interest may appear, and/or
additional insured with respect to any such insurance providing coverage in
respect of any Collateral, and each provider of any such insurance shall agree,
by endorsement upon the policy or policies issued by it or by independent
instruments furnished to the Administrative Agent, that it will endeavor to give
the Administrative Agent thirty (30) days prior written notice before any such
policy or policies shall be altered or canceled.
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7.08 Compliance with Laws.
Except the extent the failure to do so would not reasonably be expected to
result in a Material Adverse Effect:
(a) Comply with the requirements of all Laws (including without
limitation Titles XVIII and XIX of the Social Security Act, HIPAA,
Medicare Regulations, Medicaid Regulations) and all orders, writs,
injunctions and decrees applicable to it or to its business or Property,
except in such instances in which such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate
proceedings diligently conducted;
(b) Ensure that (i) billing policies, arrangements, protocols and
instructions will comply with reimbursement requirements under Medicare,
Medicaid and other Medical Reimbursement Programs and will be administered
by properly trained personnel; and (ii) medical director compensation
arrangements and other arrangements with referring physicians will comply
with applicable state and federal self-referral and anti-kickback laws,
including without limitation 42 U.S.C. Section 1320a-7b(b)(1) - (b)(2), 42
U.S.C. and 42 U.S.C. Section 1395nn; and
(c) Make commercially reasonable efforts to implement policies
that are consistent with HIPAA on or before the date that any provision of
HIPAA becomes applicable to the Borrower and its Subsidiaries.
7.09 Books and Records.
(a) Maintain proper books of record and account, in which full, true and
correct entries in conformity with GAAP consistently applied shall be made of
all financial transactions and matters involving the assets and business of the
Borrower or such Subsidiary, as the case may be.
(b) Maintain such books of record and account in material conformity
with all applicable requirements of any Governmental Authority having regulatory
jurisdiction over the Borrower or such Subsidiary, as the case may be.
7.10 Inspection Rights.
(a) Permit, and use commercially reasonable efforts to cause each
Minority Interest Joint Venture to permit, representatives and independent
contractors of the Administrative Agent and each Lender to visit and inspect any
of its properties, to examine its corporate, financial and operating records,
and make copies thereof or abstracts therefrom, and to discuss its affairs,
finances and accounts with its directors, officers, and independent public
accountants (provided that the Borrower shall be provided an opportunity to
attend such meetings), all at the expense of the Borrower (in an amount not to
exceed $10,000 per year) and at such reasonable times during normal business
hours and as often as may be reasonably desired, upon reasonable advance notice
to the Borrower; provided, however, that when an Event of Default exists the
Administrative Agent or any Lender (or any of their respective representatives
or independent contractors) may do any of the foregoing at the expense of the
Borrower at any time during normal business hours and without advance notice.
(b) If requested in writing by the Administrative Agent in its sole
discretion, permit the Administrative Agent and its representatives, upon
reasonable advance notice to the Borrower, to conduct an annual audit of the
Collateral at the expense of the Borrower (in an amount not to exceed $10,000);
provided, however, that when an Event of Default exists the Administrative Agent
and its representatives
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may conduct such additional audits of the Collateral as the Administrative Agent
reasonably deems necessary at the expense of the Borrower.
To the extent required by applicable Law, prior to receiving any
information that contains patient information subject to (i) state privacy laws,
(ii) the Drug Abuse Prevention, Treatment and Xxxxxxxxxxxxxx Xxx, 00 X.X.X.
000xx-0 et seq., (iii) the Health Insurance Portability and Accountability Act
of 1996, 42 U.S.C. 1320d et seq., or (iv) regulations promulgated pursuant to
the foregoing statutes, the Administrative Agent and the Lenders agree to
execute an agreement reasonably satisfactory to the Administrative Agent and the
Lenders that complies with the requirements relating to "business associates" as
set forth in 45 C.F.R. 502(e) and any applicable state Laws.
7.11 Use of Proceeds.
Use the proceeds of the Credit Extensions (a) to finance working capital,
capital expenditures, Permitted Acquisitions and other lawful corporate
purposes, and (b) to refinance certain existing Indebtedness, provided that in
no event shall the proceeds of the Credit Extensions be used in contravention of
any Law or of any Loan Document.
7.12 Additional Subsidiaries.
(a) Within thirty (30) days after any Person becomes a Subsidiary,
whether by formation or acquisition (including any Immaterial Subsidiary that
becomes a Material Subsidiary and any Majority Interest Joint Venture that
becomes a Wholly Owned Subsidiary):
(i) notify the Administrative Agent thereof in writing, together
with the (A) jurisdiction of formation, (B) number of shares of each class
of Capital Stock outstanding, (C) number and percentage of outstanding
shares of each class owned (directly or indirectly) by the Borrower or any
Subsidiary and (D) number and effect, if exercised, of all outstanding
options, warrants, rights of conversion or purchase and all other similar
rights with respect thereto;
(ii) if such Subsidiary is a Domestic Subsidiary (other than a
Majority Interest Joint Venture or an Immaterial Subsidiary), cause such
Person to (i) become a Guarantor by executing and delivering to the
Administrative Agent a Joinder Agreement or such other documents as the
Administrative Agent shall deem appropriate for such purpose, and (ii)
deliver to the Administrative Agent documents of the types referred to in
Sections 5.01(c) and (e) and favorable opinions of counsel to such Person
(which shall cover, among other things, the legality, validity, binding
effect and enforceability of the documentation referred to in clause (a)),
all in form, content and scope reasonably satisfactory to the
Administrative Agent; and
(iii) if such Person is a Majority Interest Joint Venture, deliver
to the Administrative Agent copies of the Organization Documents of such
Person certified to be true and complete as of a recent date by the
appropriate Governmental Authority of the state or other jurisdiction of
its incorporation or organization, where applicable, and certified by a
secretary or assistant secretary of any Loan Party owning Capital Stock in
such Majority Interest Joint Venture to be true and correct as of the
Closing Date.
(b) Notwithstanding anything to the contrary contained herein, if any
Subsidiary that is not a Guarantor (including any Foreign Subsidiary, any
Majority Interest Joint Venture and any Immaterial Subsidiary) provides a
Guarantee in respect of any Subordinated Indebtedness, then such Subsidiary
shall, concurrent with providing the Guarantee in respect of such Subordinated
Indebtedness, (i) become a Guarantor by executing and delivering to the
Administrative Agent a Joinder Agreement or such other
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document as the Administrative Agent shall deem appropriate for such purpose and
(ii) deliver to the Administrative Agent documents of the types referred to in
Sections 5.01(c) and (e) and favorable opinions of counsel to such Person (which
shall cover, among other things, the legality, validity, binding effect and
enforceability of the documentation referred to in clause (i)), all in form,
content and scope reasonably satisfactory to the Administrative Agent.
7.13 ERISA Compliance.
Do, and cause each of its ERISA Affiliates to do, each of the following:
(a) maintain each Plan in compliance in all material respects with the
applicable provisions of ERISA, the Internal Revenue Code and other federal or
state law; (b) cause each Plan that is qualified under Section 401(a) of the
Internal Revenue Code to maintain such qualification; and (c) make all required
contributions to any Plan subject to Section 412 of the Internal Revenue Code.
7.14 Pledged Assets.
(a) Capital Stock. Cause (i) 100% of the issued and outstanding Capital
Stock of each Domestic Subsidiary (other than any Majority Interest Joint
Venture and any Immaterial Subsidiary), (ii) 100% of the issued and outstanding
Capital Stock owned by any Loan Party of each Majority Interest Joint Venture
(other than those listed on Schedule 7.14(a)), (iii) 100% of the issued and
outstanding Capital Stock owned by any Loan Party in each Minority Interest
Joint Venture and (iv) 65% (or such greater percentage that, due to a change in
an applicable Law after the date hereof, (A) could not reasonably be expected to
cause the undistributed earnings of such Foreign Subsidiary as determined for
United States federal income tax purposes to be treated as a deemed dividend to
such Foreign Subsidiary's United States parent and (B) could not reasonably be
expected to cause any material adverse tax consequences) of the issued and
outstanding Capital Stock entitled to vote (within the meaning of Treas. Reg.
Section 1.956-2(c)(2)) and 100% of the issued and outstanding Capital Stock not
entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in
each Foreign Subsidiary directly owned by the Borrower or any Domestic
Subsidiary to be subject at all times to a first priority, perfected Lien in
favor of the Administrative Agent pursuant to the terms and conditions of the
Collateral Documents, together with opinions of counsel (if requested in writing
by the Administrative Agent) and any filings and deliveries reasonably necessary
in connection therewith to perfect the security interests therein, all in form
and substance reasonably satisfactory to the Administrative Agent.
(b) Other Property. (i) Cause all of the owned and leased real and
personal property (other than Excluded Property) of each Loan Party to be
subject at all times to first priority, perfected and, in the case of real
property (whether leased or owned), title insured Liens in favor of the
Administrative Agent to secure the Obligations pursuant to the terms and
conditions of the Collateral Documents or, with respect to any such property
acquired subsequent to the Closing Date, such other additional security
documents as the Administrative Agent shall reasonably request, subject in any
case to Permitted Liens; and (ii) deliver such documentation as the
Administrative Agent may reasonably request in connection with the foregoing,
including, without limitation, certified resolutions and other organizational
and authorizing documents of such Person, favorable opinions of counsel to such
Person (which shall cover, among other things, the legality, validity, binding
effect and enforceability of the documentation referred to above and the
perfection of the Administrative Agent's Liens thereunder) and, with respect to
owned real property, real estate title insurance policies, surveys and
environmental reports, all in form, content and scope reasonably satisfactory to
the Administrative Agent.
(c) Intercompany Indebtedness. Without limiting the generality of clause
(b) above, (i) maintain accounting systems, practices and procedures that enable
the Borrower and its Subsidiaries to report to the Administrative Agent at the
close of each month upon its request in writing the aggregate
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unpaid balance of any Indebtedness owing by any Majority Interest Joint Venture
or Minority Interest Joint Venture to any Loan Party, (ii) cause all
Indebtedness (whether existing on the Closing Date or incurred after the Closing
Date) owing by any Majority Interest Joint Venture or any Minority Interest
Joint Venture to any Loan Party (other than Indebtedness issued under Section
8.02(d)) to be (A) evidenced by a promissory note payable to the applicable Loan
Party (each such promissory note is a "Pledged Note"), (B) except in the case of
purchase money debt, secured by perfected by first priority Liens on
substantially all of the Property (including both personal property and real
property) of such Majority Interest Joint Venture or such Minority Interest
Joint Venture (other than those listed on Schedule 7.14(c)) and (C) in the case
of purchase money debt, secured by perfected first priority Liens on only the
Property financed therewith, and (iii) cause all Pledged Notes and all security
therefor and all instruments, documents and agreements further evidencing,
securing or otherwise relating thereto and all other supporting obligations
relating thereto, to be pledged to the Administrative Agent to secure the
Obligations pursuant to the terms and conditions of the Collateral Documents,
together with opinions of counsel and any filings and deliveries reasonably
necessary in connection therewith to perfect the security interests therein, all
in form and substance reasonably satisfactory to the Administrative Agent.
(d) Real Property Matters.
(i) Notice of Acquisition of Material Real Property. Notify the
Administrative Agent within thirty (30) days after the acquisition of any
real property with a fair market value in excess of $100,000 by (A) any
Loan Party, (B) any Majority Interest Joint Venture that is a Pledgor or
(C) any Minority Interest Joint Venture that is a Pledgor.
(ii) Appraisals of Real Property. In the event that the
Administrative Agent or any Lender determines in its reasonable discretion
(whether as a result of a position taken by an applicable bank regulatory
agency or official or otherwise) that real estate appraisals satisfying
the requirements set forth in 12 C.F.R., Part 34 - Subpart C, or any
successor regulation, or similar Law applicable to the Administrative
Agent or any Lender (any such appraisal, a "Required Appraisal"), are or
were required to be obtained, or should be obtained, in connection with
any Mortgage, then within ninety (90) days after receiving written notice
thereof from the Administrative Agent or such Lender, as the case may be,
the Borrower shall cause such Required Appraisal to be delivered, at the
expense of the Borrower, to the Administrative Agent, which Required
Appraisal shall (i) set forth in reasonable detail the assumptions on
which such appraisal is based, the analytical methods used and the factors
considered in arriving at the conclusions expressed therein, including
relevant information with respect to the valuation of comparable
properties, (ii) comply with all Law applicable to appraisals used by the
Administrative Agent and the Lenders in making extensions of credit
similar to the Credit Extensions, and (c) comply with the requirements of
the Administrative Agent's appraisal review division that are of general
application to extensions of credit similar to the Credit Extensions.
(iii) Landlord Lien Waivers.
(A) Within thirty (30) days after any Loan Party enters into
a new lease for real property, such Loan Party shall obtain a
landlord lien waiver, in form and substance reasonably satisfactory
to the Administrative Agent, for such lease.
(B) Each Loan Party shall use commercially reasonable
efforts to, within thirty (30) days after such Loan Party enters
into a renewal of any lease for real property, obtain a landlord
lien waiver, in form and substance reasonably satisfactory to the
Administrative Agent, for such lease.
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ARTICLE VIII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, no Loan Party shall, nor shall it permit any
Subsidiary to, directly or indirectly:
8.01 Liens.
Create, incur, assume or suffer to exist any Lien upon any of its
Property, whether now owned or hereafter acquired, other than the following:
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof and listed on Schedule 8.01
and any renewals or extensions thereof, provided that the Property covered
thereby is not increased;
(c) Liens (other than Liens imposed under ERISA) for taxes,
assessments or governmental charges or levies not yet due or which are
being contested in good faith and by appropriate proceedings diligently
conducted, if adequate reserves with respect thereto are maintained on the
books of the applicable Person in accordance with GAAP;
(d) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and suppliers and other Liens imposed
by law or pursuant to customary reservations or retentions of title
arising in the ordinary course of business, provided that such Liens
secure only amounts that are not overdue for a period of more than sixty
(60) days or, if overdue for more than sixty (60) days, are being
contested in good faith by appropriate proceedings for which adequate
reserves determined in accordance with GAAP have been established;
(e) pledges or deposits in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other
social security legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts,
licenses and leases (other than Indebtedness), statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar
encumbrances affecting real property which, in the aggregate, are not
substantial in amount, and which do not in any case materially detract
from the value of the property subject thereto or materially interfere
with the ordinary conduct of the business of the applicable Person;
(h) Liens securing judgments for the payment of money (or appeal
or other surety bonds relating to such judgments) not constituting an
Event of Default under Section 9.01(h);
(i) Liens securing Indebtedness permitted under Section 8.03(c);
provided that (i) such Liens do not at any time encumber any Property
other than the Property financed by such Indebtedness, (ii) the
Indebtedness secured thereby does not exceed the cost or fair market
value, whichever is lower, of the property being acquired on the date of
acquisition and (iii) such Liens attach to such property concurrently with
or within ninety days after the acquisition thereof;
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(j) leases, licenses or subleases granted to others not
interfering in any material respect with the business of the Borrower or
any of its Subsidiaries;
(k) any interest of title of a lessor under, and Liens arising
from UCC financing statements (or equivalent filings, registrations or
agreements in foreign jurisdictions) relating to, leases permitted by this
Agreement;
(l) Liens granted by a Majority Interest Joint Venture to a Loan
Party to secure any Pledged Note(s) issued by such Majority Interest Joint
Venture;
(m) Liens deemed to exist in connection with Investments in
repurchase agreements permitted under Section 8.02;
(n) normal and customary rights of setoff upon deposits of cash in
favor of banks or other depository institutions;
(o) Liens of a collection bank arising under Section 4-210 of the
Uniform Commercial Code on items in the course of collection;
(p) Liens created or deemed to exist by the establishment of
trusts for the purpose of satisfying (i) Governmental Reimbursement
Program Costs and (ii) other actions or claims pertaining to the same or
related matters or other Medical Reimbursement Programs, provided that the
Borrower and its Subsidiaries, in each case, shall have established
adequate reserves for such claims or actions;
(q) Liens of sellers of goods to the Borrower and any of its
Subsidiaries arising under Article 2 of the Uniform Commercial Code or
similar provisions of applicable law in the ordinary course of business,
covering only the goods sold and securing only the unpaid purchase price
for such goods and related expenses;
(r) Liens securing the Senior Secured Indebtedness, provided that
(i) such Liens do not at any time encumber any Property other than the
Property constituting Collateral and (ii) such Liens shall be subject to
an intercreditor agreement among the Loan Parties, the holder(s) of the
Senior Secured Indebtedness and the Administrative Agent, on behalf of the
Lenders, in form and substance reasonably satisfactory to the Required
Lenders; and
(s) other non-consensual Liens not securing Indebtedness, provided
that (i) any Lien permitted by this clause is permitted only for so long
as is reasonably necessary for the Borrower or the affected Subsidiary,
using its best efforts, to remove or eliminate such Lien and (ii) the
aggregate principal amount of obligations secured by all such Liens shall
not exceed $2 million.
8.02 Investments.
Make any Investments, except:
(a) Investments held by the Borrower or such Subsidiary in the
form of cash or Cash Equivalents;
(b) Investments existing as of the Closing Date and set forth in
Schedule 8.02-1;
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(c) Investments consisting of extensions of credit in the nature
of accounts receivable or notes receivable arising from the grant of trade
credit in the ordinary course of business, and Investments received in
satisfaction or partial satisfaction thereof from financially troubled
account debtors to the extent reasonably necessary in order to prevent or
limit loss;
(d) unsecured loans or advances made by any Loan Party to any
Majority Interest Joint Venture, provided that (i) the aggregate
outstanding amount of all such loans and advances to any single Majority
Interest Joint Venture shall not exceed $750,000 at any time and (ii) the
aggregate outstanding amount of all such loans and advances to all
Majority Interest Joint Ventures shall not exceed $10 million at any time;
(e) Loans or advances from a Loan Party to a Majority Interest
Joint Venture provided that the Loan Party and Majority Interest Joint
Venture shall comply with Section 7.14(c) prior to or simultaneously with
such loan or advance;
(f) Investments by any Subsidiary that is not a Loan Party in any
Loan Party or in any Immaterial Subsidiary;
(g) Investments by any Loan Party in any other Loan Party;
(h) Investments in any Minority Interest Joint Venture, provided
that (i) the sum of (A) the aggregate amount of all Investments made in
Minority Interest Joint Ventures during any period of twelve consecutive
months plus (B) the aggregate cash and non-cash consideration (including
Indebtedness assumed, deferred purchase price obligations (including
earn-out obligations) and Capital Stock) for all Permitted Acquisitions
made during any period of twelve consecutive months shall not exceed $75
million, and (ii) in the case of a loan or advance to a Minority Interest
Joint Venture, the Loan Parties shall comply with Section 7.14(c) prior to
or concurrent with any such loan or advance;
(i) Investments in Subsidiaries made prior to the Closing Date;
(j) Permitted Acquisitions;
(k) the acquisition by any Loan Party of Capital Stock of any
Person that prior to such acquisition constitutes a Majority Interest
Joint Venture or a Minority Interest Joint Venture;
(l) advances, in an aggregate amount not to exceed $1 million
outstanding at any one time, made by the Borrower and its Subsidiaries to
their respective employees for reimbursable expenses incurred or to be
incurred by such employees in the ordinary course performance of their
duties;
(m) Investments consisting of amounts potentially due from a
seller of Property in a Permitted Acquisition that (i) relate to customary
post-closing adjustments with respect to accounts receivable, accounts
payable and similar items typically subject to post-closing adjustments in
similar transactions and (ii) are outstanding for a period of one hundred
twenty (120) days or less following the closing of such Permitted
Acquisition;
(n) Guarantees and Swap Contracts permitted by Section 8.03; and
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(o) Investments not otherwise permitted by the foregoing clauses
in an amount not to exceed $1 million in the aggregate at any time
outstanding.
8.03 Indebtedness.
Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness of the Borrower and its Subsidiaries existing on
the Closing Date and set forth in Schedule 8.03 (and any extension,
renewal, refunding and refinancing thereof provided that (i) the terms of
any such extension, renewal, refunding or refinancing shall not be less
favorable in any material respect to the Borrower or any Subsidiary than
the terms of the Indebtedness being extended, renewed, refunding or
refinanced (except that the interest rate may be increased to the then
applicable market interest rate) and (ii) the principal amount of such
Indebtedness shall not be increased in connection therewith (except by a
reasonable premium and reasonable fees and expenses incurred in connection
therewith);
(c) purchase money Indebtedness (including obligations in respect
of Capital Leases or Synthetic Leases) hereafter incurred by the Borrower
or any of its Subsidiaries to finance the purchase of fixed assets, and
renewals, refinancings and extensions thereof, provided that (i) the total
of all such Indebtedness for all such Persons taken together shall not
exceed an aggregate principal amount of $15,000,000 at any one time
outstanding; (ii) such Indebtedness when incurred shall not exceed the
purchase price of the asset(s) financed; and (iii) no such Indebtedness
shall be refinanced for a principal amount in excess of the principal
balance outstanding thereon at the time of such refinancing;
(d) Indebtedness with respect to financed insurance premiums not
past due;
(e) intercompany Indebtedness permitted under Section 8.02;
(f) Indebtedness in an aggregate outstanding principal amount not
to exceed $30 million at any time (the "Senior Secured Indebtedness");
(g) Subordinated Indebtedness incurred or assumed as a part of the
consideration for a Permitted Acquisition in an aggregate outstanding
principal amount not to exceed $20 million at any time;
(h) Guarantees with respect to real estate leases of Majority
Interest Joint Ventures;
(i) Subordinated Indebtedness in an aggregate outstanding
principal amount not to exceed $150 million at any time, provided that
prior to incurring any such Subordinated Indebtedness the Borrower shall
have delivered to the Administrative Agent a Pro Forma Compliance
Certificate demonstrating that, upon giving effect to the incurrence of
such Subordinated Indebtedness on a Pro Forma Basis, the Loan Parties
would be in compliance with the financial covenants set forth in Section
8.11 as of the most recent fiscal quarter for which the Borrower was
required to deliver financial statements pursuant to Section 7.01(a) or
(b);
(j) obligations (contingent or otherwise) of the Borrower or any
Subsidiary existing or arising under any Swap Contract, provided that (i)
such obligations are (or were) entered into by such Person in the ordinary
course of business for the purpose of directly mitigating risks
75
associated with liabilities, commitments, investments, assets, or property
held or reasonably anticipated by such Person, or changes in the value of
securities issued by such Person, and not for purposes of speculation or
taking a "market view;" and (ii) such Swap Contract does not contain any
provision exonerating the non-defaulting party from its obligation to make
payments on outstanding transactions to the defaulting party;
(k) Guarantees with respect to Indebtedness and real estate leases
of Minority Interest Joint Ventures, provided that the aggregate
outstanding principal amount of such Guarantees shall not exceed $20
million at any time;
(l) the Series A Preferred Stock and Series B Preferred Stock
issued pursuant to the Certificate of Designation and any other preferred
Capital Stock the terms of which are approved by the Required Lenders; and
(m) Guarantees with respect to Indebtedness permitted under this
Section 8.03.
8.04 Fundamental Changes.
Merge, dissolve, liquidate, consolidate with or into another Person, or
Dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or
in favor of any Person; provided that, notwithstanding the foregoing provisions
of this Section 8.04 but subject to the terms of Sections 7.12 and 7.14, (a) the
Borrower may merge or consolidate with any Subsidiary, provided that the
Borrower shall be the continuing or surviving corporation, (b) any Guarantor may
merge or consolidate with any Subsidiary, provided that a Guarantor shall be the
continuing or surviving corporation, (c) any Foreign Subsidiary may be merged or
consolidated with or into any other Foreign Subsidiary, (d) any Majority
Interest Joint Venture may be merged or consolidated with or into any other
Majority Interest Joint Venture, provided that the continuing or surviving
Majority Interest Joint Venture shall assume all obligations under any
outstanding Pledged Notes and shall enter into such documents as the
Administrative Agent may reasonably request to evidence such assumption, (e) any
Majority Interest Joint Venture may merge with any Person other than a Loan
Party or another Majority Interest Joint Venture, provided that such Majority
Interest Joint Venture repays any Indebtedness owing to any Loan Party prior to
or in connection with such merger, (f) any Subsidiary may merge with any Person
other than a Loan Party in connection with a Permitted Acquisition and (g) any
Subsidiary may dissolve, liquidate or wind up its affairs at any time provided
that such dissolution, liquidation or winding up, as applicable, could not have
a Material Adverse Effect.
8.05 Dispositions.
Make any Disposition except:
(a) Permitted Transfers;
(b) Dispositions described on Schedule 8.05;
(c) the Disposition of Property by a Majority Interest Joint
Venture, provided that the Net Cash Proceeds of such Disposition are
applied first to satisfy the Indebtedness evidenced by any Pledged Note(s)
issued by such Majority Owned Center Subsidiary to any Loan Party;
(d) the Disposition of Capital Stock of any Majority Interest
Joint Venture, provided that after giving effect to such Disposition such
Person shall constitute a Majority Interest Joint Venture or a Minority
Interest Joint Venture;
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(e) the Disposition of Capital Stock of any Minority Interest
Joint Venture, provided that after giving effect to such Disposition such
Person shall constitute a Minority Interest Joint Venture; and
(f) other Dispositions so long as (i) all of the consideration
paid in connection therewith shall be cash or Cash Equivalents paid
contemporaneous with consummation of the transaction and shall be in an
amount not less than the fair market value of the property disposed of,
(ii) such transaction does not involve a sale or other disposition of
receivables other than receivables owned by or attributable to other
property concurrently being disposed of in a transaction otherwise
permitted under this Section 8.05 and (iii) the aggregate net book value
of all Property sold or otherwise disposed of by the Borrower and its
Subsidiaries pursuant to this clause (b) in any fiscal year of the
Borrower shall not exceed $5 million.
8.06 Restricted Payments.
Declare or make, directly or indirectly, any Restricted Payment, or incur
any obligation (contingent or otherwise) to do so, except that:
(a) the Borrower and each Subsidiary may declare and make dividend
payments or other distributions payable solely in the Capital Stock of
such Person and may distribute cash in lieu of fractional shares otherwise
distributable pursuant to this clause (a);
(b) the Borrower may purchase or otherwise acquire shares of its
Capital Stock by exchange for or out of the proceeds received from a
substantially concurrent issue of new shares of its Capital Stock;
(c) each Subsidiary may make Restricted Payments to any Loan
Party;
(d) any Majority Interest Joint Venture may declare and make
dividends and distributions payable equally and ratably to all holders of
its Capital Stock;
(e) the Borrower may issue its common stock and options, warrants
or other equity awards with respect to its common stock under any stock
option, stock incentive or similar plan approved by the shareholders of
the Borrower (including deferred purchases under the deferred stock
purchase program);
(f) the Borrower may declare and make payments under the
outstanding warrants of the Borrower described on Schedule 8.06 and
repurchase any of the foregoing;
(g) any Majority Interest Joint Venture may purchase or otherwise
acquire shares of its Capital Stock by exchange for or out of the proceeds
received from a substantially concurrent issue of new shares of its
Capital Stock;
(h) the Borrower may redeem or repurchase shares of its Capital
Stock owned by former employees of the Borrower and its Subsidiaries;
provided that the aggregate amount of all such redemptions and repurchases
shall not exceed $5 million (calculated without regard to any repurchases
that occur in connection with the exercise of stock options or withholding
of taxes contemplated under the Borrower's stock incentive plans
referenced in Sections 8.06(e) and (f) above; and
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(i) the Borrower may declare and make Series A Redemption Payments
and Series B Redemption Payments upon the occurrence of a Triggering Event
(as such terms are defined in the Certificate of Designation); provided
that all funds used to make such payments represent proceeds of a
substantially concurrent issue or sale of shares of the Borrower's Capital
Stock or other contribution to the capital of the Borrower.
8.07 Change in Nature of Business.
Engage in any material line of business substantially different from those
lines of business conducted by the Borrower and its Subsidiaries on the Closing
Date or any business substantially related or incidental thereto.
8.08 Transactions with Affiliates and Insiders.
Enter into or permit to exist any transaction or series of transactions
with any officer, director or Affiliate of such Person other than (a)
transactions between Loan Parties, (b) intercompany transactions expressly
permitted by Section 8.02, Section 8.03, Section 8.04, Section 8.05 or Section
8.06, (c) reasonable compensation and reimbursement of expenses of officers and
directors and (e) except as otherwise specifically limited in this Agreement,
other transactions which are entered into in the ordinary course of such
Person's business on terms and conditions substantially as favorable to such
Person as would be obtainable by it in a comparable arms-length transaction with
a Person other than an officer, director or Affiliate.
8.09 Burdensome Agreements.
Enter into, or permit to exist, any Contractual Obligation that encumbers
or restricts the ability of the Borrower or any Subsidiary to (i) pay dividends
or make any other distributions to any Loan Party on its Capital Stock or with
respect to any other interest or participation in, or measured by, its profits,
(ii) pay any Indebtedness or other obligation owed to any Loan Party, (iii) make
loans or advances to any Loan Party, (iv) sell, lease or transfer any of its
Property to any Loan Party, (v) grant any Lien on any of its Property to secure
the Obligations pursuant to the Loan Documents or any renewals, refinancings,
exchanges, refundings or extension thereof or (vi) act as a Loan Party pursuant
to the Loan Documents or any renewals, refinancings, exchanges, refundings or
extension thereof, except (in respect of any of the matters referred to in
clauses (i)-(v) above) for (A) this Agreement and the other Loan Documents, (B)
any document or instrument governing Indebtedness incurred pursuant to Section
8.03(c), provided that any such restriction contained therein relates only to
the asset or assets constructed or acquired in connection therewith, (C) any
Permitted Lien or any document or instrument governing any Permitted Lien,
provided that any such restriction contained therein relates only to the asset
or assets subject to such Permitted Lien, (D) customary restrictions and
conditions contained in any agreement relating to the sale of any Property
permitted under Section 8.05 pending the consummation of such sale, (E) in the
case of the matters referred to in clause (i) through (iv) above, Contractual
Obligations of any Person that becomes a Subsidiary after the Closing Date,
provided that such Contractual Obligations were in existence at the time such
Person became a Subsidiary and were not created in contemplation of or in
connection with such Person becoming a Subsidiary and (F) reasonable and
customary restrictions on distributions regarding timing, reserves, available
cash and the like that are contained in the Organization Documents of Majority
Interest Joint Ventures in effect on the date hereof and those hereafter entered
into in the ordinary course of business and consistent with past practices of
the Borrower and its Subsidiaries, (G) the Subordinated Indebtedness Documents
and (H) the documents, agreements and instruments governing the Senior Secured
Indebtedness.
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8.10 Use of Proceeds.
Use the proceeds of any Credit Extension, whether directly or indirectly,
and whether immediately, incidentally or ultimately, to purchase or carry margin
stock (within the meaning of Regulation U of the FRB) or to extend credit to
others for the purpose of purchasing or carrying margin stock or to refund
indebtedness originally incurred for such purpose.
8.11 Financial Covenants.
(a) Consolidated Net Worth. Permit Consolidated Net Worth at any time to
be less than the sum of $215 million, increased on a cumulative basis as of the
end of each fiscal quarter of the Borrower, commencing with the fiscal quarter
ending March 31, 2005 by an amount equal to 75% of Consolidated Net Income (to
the extent positive) for the fiscal quarter then ended plus 100% of the amount
of all Equity Issuances after the Closing Date; provided, however, that the
calculations made pursuant to this Section 8.11(a) shall be adjusted annually
following receipt by the Administrative Agent of the annual financial statements
furnished pursuant to Section 7.01(a) in order to take into account normal
year-end audit adjustments to Consolidated Net Income.
(b) Consolidated Total Leverage Ratio. Permit the Consolidated Total
Leverage Ratio as of the end of any fiscal quarter of the Borrower to be greater
than 4.0:1.0.
(c) Consolidated Senior Leverage Ratio. Permit the Consolidated Senior
Leverage Ratio as of the end of any fiscal quarter of the Borrower to be greater
than (i) 3.0:1.0 for the fiscal quarters ending March 31, 2005, June 30, 2005
and September 30, 2005, (ii) 2.75:1.0 for the fiscal quarters ending December
31, 2005 and March 31, 2006 and (iii) 2.5:1.0 for the fiscal quarter ending June
30, 2006 and each fiscal quarter ending thereafter.
(d) Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated
Fixed Charge Coverage Ratio as of the end of any fiscal quarter of the Borrower
to be less than 1.5:1.0.
(e) Consolidated Capitalization Ratio. Permit the Consolidated
Capitalization Ratio as of the end of any fiscal quarter of the Borrower to be
greater than the 0.5:1.0.
(f) Consolidated Capital Expenditures. Permit Consolidated Capital
Expenditures for any fiscal year to exceed $60,000,000.
8.12 Amendments and Prepayments of Subordinated Indebtedness.
(a) Amend or modify any of the terms of any Subordinated Indebtedness if
such amendment or modification would add or change any terms in a manner adverse
to the Borrower or any Subsidiary (including any amendment or modification that
would shorten the final maturity or average life to maturity or require any
payment to be made sooner than originally scheduled or increase the interest
rate applicable thereto).
(b) Amend or modify the subordination provisions of any Subordinated
Indebtedness.
(c) Make (or give any notice with respect thereto) any principal payment
(including any prepayment, whether optional or mandatory) on, or redeem, acquire
for value (including without limitation, by way of depositing money or
securities with the trustee with respect thereto before due for the purpose of
paying when due), refund, refinance or exchange, any Subordinated Indebtedness,
provided that (i) the Borrower may make regularly scheduled payments of
principal and interest so long as no Default shall exist
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immediately prior to or immediately after giving effect to any such payment,
(ii) the Borrower may repay Subordinated Indebtedness using proceeds received
from (A) a substantially concurrent incurrence of new Subordinated Indebtedness
or (B) a substantially concurrent issue of new shares of its Capital Stock, and
(iii) the Borrower may make payments under the convertible debentures of the
Borrower described on Schedule 8.06.
8.13 Organization Documents; Fiscal Year; Legal Name, State of Formation and
Form of Entity.
(a) Amend, modify or change its Organization Documents in a manner
adverse to the Lenders.
(b) Change its fiscal year.
(c) Without providing ten (10) days prior written notice to the
Administrative Agent, change its name, state of formation or form of
organization.
8.14 Ownership of Subsidiaries.
Notwithstanding any other provisions of this Agreement to the contrary,
permit any Person (other than the Borrower or any Wholly Owned Subsidiary) to
own any Capital Stock of any Subsidiary (other than any Majority Interest Joint
Venture), except to qualify directors where required by applicable law or to
satisfy other requirements of applicable law with respect to the ownership of
Capital Stock of Foreign Subsidiaries or (ii) permit any Subsidiary to issue or
have outstanding any shares of preferred Capital Stock.
8.15 Sale and Leaseback Transactions.
Enter into any Sale and Leaseback Transaction.
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
9.01 Events of Default.
Any of the following shall constitute an Event of Default:
(a) Non-Payment. The Borrower or any other Loan Party fails to pay
(i) when and as required to be paid herein, any amount of principal of any
Loan or any L/C Obligation, or (ii) within three days after the same
becomes due, any interest on any Loan or on any L/C Obligation, or any fee
due hereunder, or (iii) within five days after the same becomes due, any
other amount payable hereunder or under any other Loan Document; or
(b) Specific Covenants.
(i) Any Loan Party fails to perform or observe any term,
covenant or agreement contained in any of Section 7.01, 7.02 or 7.03
and such failure continues for five (5) Business Days; or
(ii) Any Loan Party fails to perform or observe any term,
covenant or agreement contained in any of Section 7.05(a), 7.10,
7.11, 7.12 or Article VIII; or
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(c) Other Defaults. Any Loan Party fails to perform or observe any
other covenant or agreement (not specified in subsection (a) or (b) above)
contained in any Loan Document on its part to be performed or observed and
such failure continues for thirty days after the earlier of (i) a
Responsible Officer of any Loan Party becoming aware of such failure or
(ii) notice thereof to any Loan Party by the Administrative Agent; or
(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of
the Borrower or any other Loan Party herein, in any other Loan Document,
or in any document delivered in connection herewith or therewith shall be
incorrect or misleading in any material respect when made or deemed made;
or
(e) Cross-Default. (i) The Borrower or any Subsidiary fails to
make any payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) in respect of any Material
Indebtedness; (ii) the Borrower or any Subsidiary fails to observe or
perform any other agreement or condition relating to any Material
Indebtedness or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event occurs, the effect of
which default or other event is to cause, or to permit the holder or
holders of any Material Indebtedness (or a trustee or agent on behalf of
such holder or holders) to cause, with the giving of notice if required,
such Material Indebtedness to be demanded or to become due or to be
repurchased, prepaid, defeased or redeemed (automatically or otherwise),
or an offer to repurchase, prepay, defease or redeem such Material
Indebtedness to be made, prior to its stated maturity; or (iii) there
occurs under any Swap Contract an Early Termination Date (as defined in
such Swap Contract) resulting from (A) any event of default under such
Swap Contract as to which the Borrower or any Subsidiary is the Defaulting
Party (as defined in such Swap Contract) or (B) any Termination Event (as
so defined) under such Swap Contract as to which the Borrower or any
Subsidiary is an Affected Party (as so defined) and, in either event, the
Swap Termination Value owed by the Borrower or such Subsidiary as a result
thereof is greater than the Threshold Amount; or
(f) Insolvency Proceedings, Etc. Any Loan Party or any of its
Subsidiaries institutes or consents to the institution of any proceeding
under any Debtor Relief Law, or makes an assignment for the benefit of
creditors; or applies for or consents to the appointment of any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar
officer for it or for all or any material part of its Property; or any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer is appointed without the application or consent of such
Person and the appointment continues undischarged or unstayed for sixty
calendar days; or any proceeding under any Debtor Relief Law relating to
any such Person or to all or any material part of its Property is
instituted without the consent of such Person and continues undismissed or
unstayed for sixty calendar days, or an order for relief is entered in any
such proceeding; or
(g) Inability to Pay Debts; Attachment. (i) The Borrower or any
Subsidiary becomes unable or admits in writing its inability or fails
generally to pay its debts as they become due, or (ii) any writ or warrant
of attachment or execution or similar process is issued or levied against
all or any material part of the Property of any such Person and is not
released, vacated or fully bonded within thirty days after its issue or
levy; or
(h) Judgments. There is entered against the Borrower or any
Subsidiary (i) one or more final judgments or orders for the payment of
money in an aggregate amount exceeding the Threshold Amount (to the extent
not covered by independent third-party insurance as to which the insurer
has acknowledged in writing its obligation to cover), or (ii) any one or
more non-monetary final judgments that have, or could reasonably be
expected to have, individually or in
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the aggregate, a Material Adverse Effect and, in either case, (A)
enforcement proceedings are commenced by any creditor upon such judgment
or order, or (B) there is a period of ten (10) consecutive days during
which a stay of enforcement of such judgment, by reason of a pending
appeal or otherwise, is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension
Plan or Multiemployer Plan which has resulted or could reasonably be
expected to result in liability of the Borrower under Title IV of ERISA to
the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in
excess of the Threshold Amount, or (ii) the Borrower or any ERISA
Affiliate fails to pay when due, after the expiration of any applicable
grace period, any installment payment with respect to its withdrawal
liability under Section 4201 of ERISA under a Multiemployer Plan in an
aggregate amount in excess of the Threshold Amount; or
(j) Invalidity of Loan Documents. Any Loan Document, at any time
after its execution and delivery and for any reason other than as
expressly permitted hereunder or satisfaction in full of all the
Obligations, ceases to be in full force and effect or ceases to five the
Administrative Agent, for the benefit of the Lenders, any material part of
the Liens purported to be created thereby; or any Loan Party or any other
Person contests in any manner the validity or enforceability of any Loan
Document; or any Loan Party denies that it has any or further liability or
obligation under any Loan Document, or purports to revoke, terminate or
rescind any Loan Document; or
(k) Change of Control. There occurs any Change of Control; or
(l) Subordinated Indebtedness. (i) There shall occur an "Event of
Default" (or any comparable term) under, and as defined in, any of the
Subordinated Indebtedness Documents, (ii) any of the Obligations for any
reason shall cease to be "Senior Debt" (or any comparable term) under, and
as defined in, any of the Subordinated Indebtedness Documents, (iii) any
Indebtedness other than the Obligations shall constitute "Designated
Senior Debt" (or any comparable term) under, and as defined in, any of the
Subordinated Indebtedness Documents or (iv) the subordination provisions
of any of the Subordinated Indebtedness Documents shall, in whole or in
part, terminate, cease to be effective or cease to be legally valid,
binding and enforceable against any holder of the Subordinated
Indebtedness.
9.02 Remedies Upon Event of Default.
If any Event of Default occurs and is continuing, the Administrative Agent
shall, at the request of, or may, with the consent of, the Required Lenders,
take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions to be
terminated, whereupon such commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans,
all interest accrued and unpaid thereon, and all other amounts owing or
payable hereunder or under any other Loan Document to be immediately due
and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Borrower;
(c) require that the Borrower Cash Collateralize the L/C
Obligations (in an amount equal to the then Outstanding Amount thereof);
and
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(d) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents or
applicable Law;
provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the
United States, the obligation of each Lender to make Loans and any obligation of
the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the
unpaid principal amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable, and the
obligation of the Borrower to Cash Collateralize the L/C Obligations as
aforesaid shall automatically become effective, in each case without further act
of the Administrative Agent or any Lender.
9.03 Application of Funds.
After the exercise of remedies provided for in Section 9.02 (or after the
Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set
forth in the proviso to Section 9.02), any amounts received on account of the
Obligations shall be applied by the Administrative Agent in the following order:
First, to payment of that portion of the Obligations constituting
fees, indemnities, expenses and other amounts (including fees, charges and
disbursements of counsel to the Administrative Agent and amounts payable
under Article III) payable to the Administrative Agent in its capacity as
such;
Second, to payment of that portion of the Obligations constituting
fees, indemnities and other amounts (other than principal, interest and
Letter of Credit Fees) payable to the Lenders and the L/C Issuer
(including fees, charges and disbursements of counsel to the respective
Lenders and the L/C Issuer and amounts payable under Article III), ratably
among them in proportion to the respective amounts described in this
clause Second payable to them;
Third, to payment of that portion of the Obligations constituting
accrued and unpaid Letter of Credit Fees and interest on the Loans and L/C
Borrowings and fees, premiums and scheduled periodic payments, and any
interest accrued thereon, due under any Swap Contract between any Loan
Party and any Lender, or any Affiliate of a Lender, to the extent such
Swap Contract is permitted by Section 8.03(d), ratably among the Lenders
(and, in the case of such Swap Contracts, Affiliates of Lenders) and the
L/C Issuer in proportion to the respective amounts described in this
clause Third held by them;
Fourth, to (a) payment of that portion of the Obligations
constituting unpaid principal of the Loans and L/C Borrowings, (b) payment
of breakage, termination or other payments, and any interest accrued
thereon, due under any Swap Contract between any Loan Party and any
Lender, or any Affiliate of a Lender, to the extent such Swap Contract is
permitted by Section 8.03(d), (c) payments of amounts due under any
Treasury Management Agreement between any Loan Party and any Lender, or
any Affiliate of a Lender and (d) Cash Collateralize that portion of L/C
Obligations comprised of the aggregate undrawn amount of Letters of
Credit, ratably among the Lenders (and, in the case of such Swap
Contracts, Affiliates of Lenders) and the L/C Issuer in proportion to the
respective amounts described in this clause Fourth held by them; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrower or as otherwise required by
Law.
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Subject to Section 2.03(c), amounts used to Cash Collateralize the
aggregate undrawn amount of Letters of Credit pursuant to clause Fourth above
shall be applied to satisfy drawings under such Letters of Credit as they occur.
If any amount remains on deposit as Cash Collateral after all Letters of Credit
have either been fully drawn or expired, such remaining amount shall be applied
to the other Obligations, if any, in the order set forth above.
ARTICLE X
ADMINISTRATIVE AGENT
10.01 Appointment and Authority.
Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of
America to act on its behalf as the Administrative Agent hereunder and under the
other Loan Documents and authorizes the Administrative Agent to take such
actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent by the terms hereof or thereof, together with such actions
and powers as are reasonably incidental thereto. The provisions of this Article
are solely for the benefit of the Administrative Agent, the Lenders and the L/C
Issuer, and neither the Borrower nor any other Loan Party shall have rights as a
third party beneficiary of any of such provisions.
10.02 Rights as a Lender.
The Person serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated or unless the
context otherwise requires, include the Person serving as the Administrative
Agent hereunder in its individual capacity. Such Person and its Affiliates may
accept deposits from, lend money to, act as the financial advisor or in any
other advisory capacity for and generally engage in any kind of business with
any Loan Party or any Subsidiary or other Affiliate thereof as if such Person
were not the Administrative Agent hereunder and without any duty to account
therefor to the Lenders.
10.03 Exculpatory Provisions.
The Administrative Agent shall not have any duties or obligations except
those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, the Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Loan Documents that the
Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as
shall be expressly provided for herein or in the other Loan Documents),
provided that the Administrative Agent shall not be required to take any
action that, in its opinion or the opinion of its counsel, may expose the
Administrative Agent to liability or that is contrary to any Loan Document
or applicable law; and
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(c) shall not, except as expressly set forth herein and in the
other Loan Documents, have any duty to disclose, and shall not be liable
for the failure to disclose, any information relating to any Loan Party or
any of its Affiliates that is communicated to or obtained by the Person
serving as the Administrative Agent or any of its Affiliates in any
capacity.
The Administrative Agent shall not be liable for any action taken or not
taken by it (i) with the consent or at the request of the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 11.01 and 9.02) or (ii) in the absence of
its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice
describing such Default is given to the Administrative Agent by the Borrower, a
Lender or the L/C Issuer.
The Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the satisfaction
of any condition set forth in Article V or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the
Administrative Agent.
10.04 Reliance by Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed by
it to be genuine and to have been signed, sent or otherwise authenticated by the
proper Person. The Administrative Agent also may rely upon any statement made to
it orally or by telephone and believed by it to have been made by the proper
Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the issuance
of a Letter of Credit, that by its terms must be fulfilled to the satisfaction
of a Lender or the L/C Issuer, the Administrative Agent may presume that such
condition is satisfactory to such Lender or the L/C Issuer unless the
Administrative Agent shall have received notice to the contrary from such Lender
or the L/C Issuer prior to the making of such Loan or the issuance of such
Letter of Credit. The Administrative Agent may consult with legal counsel (who
may be counsel for the Loan Parties), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
10.05 Delegation of Duties.
The Administrative Agent may perform any and all of its duties and
exercise its rights and powers hereunder or under any other Loan Document by or
through any one or more sub-agents appointed by the Administrative Agent. The
Administrative Agent and any such sub-agent may perform any and all of its
duties and exercise its rights and powers by or through their respective Related
Parties. The exculpatory provisions of this Article shall apply to any such
sub-agent and to the Related Parties of the Administrative Agent and any such
sub-agent, and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities
as Administrative Agent.
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10.06 Resignation of Administrative Agent.
The Administrative Agent may at any time give notice of its resignation to
the Lenders, the L/C Issuer and the Borrower. Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, in consultation with the
Borrower, to appoint a successor, which shall be a bank with an office in the
United States, or an Affiliate of any such bank with an office in the United
States. If no such successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days after the
retiring Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may on behalf of the Lenders and the L/C Issuer, appoint a
successor Administrative Agent meeting the qualifications set forth above;
provided that if the Administrative Agent shall notify the Borrower and the
Lenders that no qualifying Person has accepted such appointment, then such
resignation shall nonetheless become effective in accordance with such notice
and (1) the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder and under the other Loan Documents and (2) all
payments, communications and determinations provided to be made by, to or
through the Administrative Agent shall instead be made by or to each Lender and
the L/C Issuer directly, until such time as the Required Lenders appoint a
successor Administrative Agent as provided for above in this Section. Upon the
acceptance of a successor's appointment as Administrative Agent hereunder, such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring (or retired) Administrative Agent, and the
retiring Administrative Agent shall be discharged from all of its duties and
obligations hereunder or under the other Loan Documents (if not already
discharged therefrom as provided above in this Section). The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such
successor. After the retiring Administrative Agent's resignation hereunder and
under the other Loan Documents, the provisions of this Article and Section 11.04
shall continue in effect for the benefit of such retiring Administrative Agent,
its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while the retiring Administrative
Agent was acting as Administrative Agent.
Any resignation by Bank of America as Administrative Agent pursuant to
this Section shall also constitute its resignation as L/C Issuer and Swing Line
Lender. Upon the acceptance of a successor's appointment as Administrative Agent
hereunder, (a) such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring L/C Issuer and Swing Line
Lender, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged
from all of their respective duties and obligations hereunder or under the other
Loan Documents, and (c) the successor L/C Issuer shall issue letters of credit
in substitution for the Letters of Credit, if any, outstanding at the time of
such succession or make other arrangements satisfactory to the retiring L/C
Issuer to effectively assume the obligations of the retiring L/C Issuer with
respect to such Letters of Credit.
10.07 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender and the L/C Issuer acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender or any of
their Related Parties and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender and the L/C Issuer also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
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10.08 No Other Duties; Etc.
Anything herein to the contrary notwithstanding, none of the bookrunners,
arrangers, syndication agents, documentation agents or co-agents shall have any
powers, duties or responsibilities under this Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as the Administrative Agent, a
Lender or the L/C Issuer hereunder.
10.9 Administrative Agent May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Loan or L/C Obligation shall then
be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made any demand on
the Borrower) shall be entitled and empowered, by intervention in such
proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans, L/C
Obligations and all other Obligations (other than obligations under Swap
Contracts or Treasury Management Agreements to which the Administrative
Agent is not a party) that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the claims of
the Lenders, the L/C Issuer and the Administrative Agent (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Lenders, the L/C Issuer and the Administrative Agent and
their respective agents and counsel and all other amounts due the Lenders,
the L/C Issuer and the Administrative Agent under Sections 2.03(i) and
(j), 2.09 and 11.04) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender and the L/C Issuer to make such payments to the Administrative Agent
and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its agents and
counsel, and any other amounts due the Administrative Agent under Sections 2.09
and 11.04.
Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender or
the L/C Issuer any plan of reorganization, arrangement, adjustment or
composition affecting the Obligations or the rights of any Lender or to
authorize the Administrative Agent to vote in respect of the claim of any Lender
in any such proceeding.
10.10 Collateral and Guaranty Matters.
The Lenders and the L/C Issuer irrevocably authorize the Administrative
Agent, at its option and in its discretion,
(a) to release any Lien on any Collateral granted to or held by
the Administrative Agent under any Loan Document (i) upon termination of
the Aggregate Revolving Commitments and payment in full of all Obligations
(other than contingent indemnification obligations) and the
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expiration or termination of all Letters of Credit, (ii) that is
transferred or to be transferred as part of or in connection with any
Disposition permitted hereunder or under any other Loan Document or any
Involuntary Disposition, or (iii) as approved in accordance with Section
11.01;
(b) to subordinate any Lien on any property granted to or held by
the Administrative Agent under any Loan Document to the holder of any Lien
on such property that is permitted by Section 8.01(f); and
(c) to release any Guarantor from its obligations under the
Guaranty if such Person ceases to be a Subsidiary as a result of a
transaction permitted hereunder.
Upon request by the Administrative Agent at any time, the Required Lenders
will confirm in writing the Administrative Agent's authority to release or
subordinate its interest in particular types or items of Property, or to
release any Guarantor from its obligations under the Guaranty, pursuant to
this Section 10.10.
ARTICLE XI
MISCELLANEOUS
11.01 Amendments, Etc.
No amendment or waiver of any provision of this Agreement or any other
Loan Document, and no consent to any departure by the Borrower or any other Loan
Party therefrom, shall be effective unless in writing signed by the Required
Lenders and the Borrower or the applicable Loan Party, as the case may be, and
acknowledged by the Administrative Agent, and each such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given; provided, further, that
(a) no such amendment, waiver or consent shall:
(i) extend or increase the Commitment of a Lender (or
reinstate any Commitment terminated pursuant to Section 9.02)
without the written consent of such Lender whose Commitment is being
extended or increased (it being understood and agreed that a waiver
of any condition precedent set forth in Section 5.02 or of any
Default or a mandatory reduction in Commitments is not considered an
extension or increase in Commitments of any Lender);
(ii) postpone any date fixed by this Agreement or any other
Loan Document for any payment of principal (excluding mandatory
prepayments), interest, fees or other amounts due to the Lenders (or
any of them) or under any other Loan Document without the written
consent of each Lender entitled to receive such payment;
(iii) reduce the principal of, or the rate of interest
specified herein on, any Loan or L/C Borrowing, or (subject to
clause (i) of the final proviso to this Section 11.01) any fees or
other amounts payable hereunder or under any other Loan Document
without the written consent of each Lender entitled to receive such
payment of principal, interest, fees or other amounts; provided,
however, that only the consent of the Required Lenders shall be
necessary to (A) amend the definition of "Default Rate" or to waive
any obligation of the Borrower to pay interest or Letter of Credit
Fees at the Default Rate or (B) to amend any financial covenant
hereunder (or any defined term used therein) even if
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the effect of such amendment would be to reduce the rate of interest
on any Loan or L/C Borrowing or to reduce any fee payable hereunder;
(iv) change Section 2.13 or Section 9.03 in a manner that
would alter the pro rata sharing of payments required thereby
without the written consent of each Lender directly affected
thereby;
(v) change any provision of this Section 11.01(a) or the
definition of "Required Lenders" without the written consent of each
Lender directly affected thereby;
(vi) except in connection with a Disposition permitted under
Section 8.05, release all or substantially all of the Collateral
without the written consent of each Lender whose Obligations are
secured by such Collateral;
(vii) release the Borrower or, except in connection with a
merger or consolidation permitted under Section 8.04 or a
Disposition permitted under Section 8.05, all or substantially all
of the value of the Guaranty without the written consent of each
Lender whose Obligations are guarantied thereby; or
(b) unless also signed by the L/C Issuer, no amendment, waiver or
consent shall affect the rights or duties of the L/C Issuer under this
Agreement or any Issuer Document relating to any Letter of Credit issued
or to be issued by it;
(c) unless also signed by the Swing Line Lender, no amendment,
waiver or consent shall affect the rights or duties of the Swing Line
Lender under this Agreement; and
(d) unless also signed by the Administrative Agent, no amendment,
waiver or consent shall affect the rights or duties of the Administrative
Agent under this Agreement or any other Loan Document;
provided, however, that notwithstanding anything to the contrary herein, (i) the
Fee Letter may be amended, or rights or privileges thereunder waived, in a
writing executed only by the parties thereto, (ii) no Defaulting Lender shall
have any right to approve or disapprove any amendment, waiver or consent
hereunder, except that the Commitment of such Lender may not be increased or
extended without the consent of such Lender, (iii) each Lender is entitled to
vote as such Lender sees fit on any bankruptcy reorganization plan that affects
the Loans, and each Lender acknowledges that the provisions of Section 1126(c)
of the Bankruptcy Code of the United States supersedes the unanimous consent
provisions set forth herein and (iv) the Required Lenders shall determine
whether or not to allow a Loan Party to use cash collateral in the context of a
bankruptcy or insolvency proceeding and such determination shall be binding on
all of the Lenders.
11.02 Notices and Other Communications; Facsimile Copies.
(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in subsection (b) below), all notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopier as
follows, and all notices and other communications expressly permitted hereunder
to be given by telephone shall be made to the applicable telephone number, as
follows:
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(i) if to the Borrower or any other Loan Party, the Administrative
Agent, the L/C Issuer or the Swing Line Lender, to the address, telecopier
number, electronic mail address or telephone number specified for such
Person on Schedule 11.02; and
(ii) if to any other Lender, to the address, telecopier number,
electronic mail address or telephone number specified in its
Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified
or registered mail, shall be deemed to have been given when received; notices
sent by telecopier shall be deemed to have been given when sent (except that, if
not given during normal business hours for the recipient, shall be deemed to
have been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in such
subsection (b).
(b) Electronic Communications. Notices and other communications to the
Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic
communication (including e-mail and Internet or intranet websites) pursuant to
procedures approved by the Administrative Agent, provided that the foregoing
shall not apply to notices to any Lender or the L/C Issuer pursuant to Article
II if such Lender or the L/C Issuer, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent or the Borrower
may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it,
provided that approval of such procedures may be limited to particular notices
or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and
other communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
(c) The Platform. THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE."
THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS
OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY
DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO
WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD
PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT
PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event
shall the Administrative Agent or any of its Related Parties (collectively, the
"Agent Parties") have any liability to the Borrower, any Lender, the L/C Issuer
or any other Person for losses, claims, damages, liabilities or expenses of any
kind (whether in tort, contract or otherwise) arising out of the Borrower's or
the Administrative Agent's transmission of Borrower Materials through the
Internet, except to the extent that such losses, claims, damages, liabilities or
expenses are determined by a court of competent jurisdiction by a final and
nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Agent Party; provided, however, that in no event shall any
Agent Party have any liability to the
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Borrower, any Lender, the L/C Issuer or any other Person for indirect, special,
incidental, consequential or punitive damages (as opposed to direct or actual
damages).
(d) Change of Address, Etc. Each of the Borrower, the Administrative
Agent, the L/C Issuer and the Swing Line Lender may change its address,
telecopier or telephone number for notices and other communications hereunder by
notice to the other parties hereto. Each other Lender may change its address,
telecopier or telephone number for notices and other communications hereunder by
notice to the Borrower, the Administrative Agent, the L/C Issuer and the Swing
Line Lender. In addition, each Lender agrees to notify the Administrative Agent
from time to time to ensure that the Administrative Agent has on record (i) an
effective address, contact name, telephone number, telecopier number and
electronic mail address to which notices and other communications may be sent
and (ii) accurate wire instructions for such Lender.
(e) Reliance by Administrative Agent, L/C Issuer and Lenders. The
Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely
and act upon any notices (including telephonic Loan Notices and Swing Line Loan
Notices) purportedly given by or on behalf of any Loan Party even if (i) such
notices were not made in a manner specified herein, were incomplete or were not
preceded or followed by any other form of notice specified herein, or (ii) the
terms thereof, as understood by the recipient, varied from any confirmation
thereof. The Loan Parties shall indemnify the Administrative Agent, the L/C
Issuer, each Lender and the Related Parties of each of them from all losses,
costs, expenses and liabilities resulting from the reliance by such Person on
each notice purportedly given by or on behalf of a Loan Party. All telephonic
notices to and other telephonic communications with the Administrative Agent may
be recorded by the Administrative Agent, and each of the parties hereto hereby
consents to such recording.
11.03 No Waiver; Cumulative Remedies.
No failure by any Lender, the L/C Issuer or the Administrative Agent to
exercise, and no delay by any such Person in exercising, any right, remedy,
power or privilege hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights, remedies, powers
and privileges provided by law.
11.04 Expenses; Indemnity; and Damage Waiver.
(a) Costs and Expenses. The Loan Parties shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates
(including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent), in connection with the syndication of the credit
facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or
any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the L/C
Issuer in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, any Lender or the
L/C Issuer (including the fees, charges and disbursements of any counsel for the
Administrative Agent, any Lender or the L/C Issuer), and shall pay all fees and
time charges for attorneys who may be employees of the Administrative Agent, any
Lender or the L/C Issuer, in connection with the enforcement or protection of
its rights (A) in connection with this Agreement and the other Loan Documents,
including its rights under this Section, or (B) in connection with the Loans
made or Letters of Credit issued hereunder, including all
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such out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.
(b) Indemnification by the Borrower. The Loan Parties shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and the L/C
Issuer, and each Related Party of any of the foregoing Persons (each such Person
being called an "Indemnitee") against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses (including
the fees, charges and disbursements of any counsel for any Indemnitee), and
shall indemnify and hold harmless each Indemnitee from all fees and time charges
and disbursements for attorneys who may be employees of any Indemnitee, incurred
by any Indemnitee or asserted against any Indemnitee by any third party or by
the Borrower or any other Loan Party arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto of their respective obligations hereunder or
thereunder or the consummation of the transactions contemplated hereby or
thereby, or, in the case of the Administrative Agent (and any sub-agent thereof)
and its Related Parties only, the administration of this Agreement and the other
Loan Documents, (ii) any Loan or Letter of Credit or the use or proposed use of
the proceeds therefrom (including any refusal by the L/C Issuer to honor a
demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter
of Credit), (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by a Loan Party or any of
its Subsidiaries, or any Environmental Liability related in any way to a Loan
Party or any of its Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory, whether brought by a third
party or by the Borrower or any other Loan Party, and regardless of whether any
Indemnitee is a party thereto; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses (x) are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee or (y) result from a claim
brought by the Borrower or any other Loan Party against an Indemnitee for breach
in bad faith of such Indemnitee's obligations hereunder or under any other Loan
Document, if the Borrower or such Loan Party has obtained a final and
nonappealable judgment in its favor on such claim as determined by a court of
competent jurisdiction.
(c) Reimbursement by Lenders. To the extent that the Loan Parties for any
reason fail to indefeasibly pay any amount required under subsection (a) or (b)
of this Section to be paid by them to the Administrative Agent (or any sub-agent
thereof), the L/C Issuer or any Related Party of any of the foregoing, each
Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the L/C Issuer or such Related Party, as the case may be, such
Lender's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount,
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or the L/C Issuer in
its capacity as such, or against any Related Party of any of the foregoing
acting for the Administrative Agent (or any such sub-agent) or L/C Issuer in
connection with such capacity. The obligations of the Lenders under this
subsection (c) are subject to the provisions of Section 2.12(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted
by applicable law, no Loan Party shall assert, and each Loan Party hereby
waives, any claim against any Indemnitee, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or
actual damages) arising out of, in connection with, or as a result of, this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby, the transactions contemplated hereby or thereby, any Loan or Letter of
Credit or the use of the proceeds thereof. No Indemnitee referred to in
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subsection (b) above shall be liable for any damages arising from the use by
unintended recipients of any information or other materials distributed by it
through telecommunications, electronic or other information transmission systems
in connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby.
(e) Payments. All amounts due under this Section shall be payable not
later than ten Business Days after demand therefor.
(f) Survival. The agreements in this Section shall survive the resignation
of the Administrative Agent and the L/C Issuer, the replacement of any Lender,
the termination of the Commitments and the repayment, satisfaction or discharge
of all the other Obligations.
11.05 Payments Set Aside.
To the extent that any payment by or on behalf of any Loan Party is made
to the Administrative Agent, the L/C Issuer or any Lender, or the Administrative
Agent, the L/C Issuer or any Lender exercises its right of setoff, and such
payment or the proceeds of such setoff or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Administrative Agent,
the L/C Issuer or such Lender in its discretion) to be repaid to a trustee,
receiver or any other party, in connection with any proceeding under any Debtor
Relief Law or otherwise, then (a) to the extent of such recovery, the obligation
or part thereof originally intended to be satisfied shall be revived and
continued in full force and effect as if such payment had not been made or such
setoff had not occurred, and (b) each Lender and the L/C Issuer severally agrees
to pay to the Administrative Agent upon demand its applicable share (without
duplication) of any amount so recovered from or repaid by the Administrative
Agent, plus interest thereon from the date of such demand to the date such
payment is made at a rate per annum equal to the Federal Funds Rate from time to
time in effect. The obligations of the Lenders and the L/C Issuer under clause
(b) of the preceding sentence shall survive the payment in full of the
Obligations and the termination of this Agreement.
11.06 Successors and Assigns.
(a) Successors and Assigns Generally. The provisions of this Agreement and
the other Loan Documents shall be binding upon and inure to the benefit of the
parties hereto and thereto and their respective successors and assigns permitted
hereby, except that the Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder or thereunder without the prior written consent
of the Administrative Agent and each Lender and no Lender may assign or
otherwise transfer any of its rights or obligations hereunder except (i) to an
Eligible Assignee in accordance with the provisions of subsection (b) of this
Section, (ii) by way of participation in accordance with the provisions of
subsection (d) of this Section or (iii) by way of pledge or assignment of a
security interest subject to the restrictions of subsection (f) of this Section
(and any other attempted assignment or transfer by any party hereto shall be
null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent
provided in subsection (d) of this Section and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent,
the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or
more Eligible Assignees all or a portion of its rights and obligations under
this Agreement and the other Loan Documents (including all or a portion of its
Commitment and the Loans (including for purposes of this subsection (b),
participations in L/C Obligations and in Swing Line Loans) at the time owing to
it); provided that
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(i) except in the case of an assignment of the entire remaining
amount of the assigning Lender's Commitment and the Loans at the time
owing to it or in the case of an assignment to a Lender or an Affiliate of
a Lender or an Approved Fund with respect to a Lender, the aggregate
amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the
principal outstanding balance of the Loans of the assigning Lender subject
to each such assignment, determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the
Administrative Agent or, if "Trade Date" is specified in the Assignment
and Assumption, as of the Trade Date, shall not be less than $5,000,000
unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Borrower otherwise consents
(each such consent not to be unreasonably withheld or delayed); provided,
however, that concurrent assignments to members of an Assignee Group and
concurrent assignments from members of an Assignee Group to a single
Eligible Assignee (or to an Eligible Assignee and members of its Assignee
Group) will be treated as a single assignment for purposes of determining
whether such minimum amount has been met;
(ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's Loans and Commitments,
and rights and obligations with respect thereto, assigned, except that
this clause (ii) shall not apply to rights in respect of Swing Line Loans;
(iii) any assignment of a Revolving Commitment must be approved by
the Administrative Agent, the L/C Issuer and the Swing Line Lender unless
the Person that is the proposed assignee is itself a Lender (whether or
not the proposed assignee would otherwise qualify as an Eligible
Assignee); and
(iv) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee in the amount, if any, required as set
forth in Schedule 11.06, and the Eligible Assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire.
Subject to acceptance and recording thereof by the Administrative Agent pursuant
to subsection (c) of this Section, from and after the effective date specified
in each Assignment and Assumption, the Eligible Assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 3.01, 3.04, 3.05 and 11.04 with
respect to facts and circumstances occurring prior to the effective date of such
assignment). Upon request, the Borrower (at its expense) shall execute and
deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
subsection (d) of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose as
an agent of the Borrower, shall maintain at the Administrative Agent's Office a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be
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conclusive, and the Borrower, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. The Register shall be available for inspection by the Borrower
and the L/C Issuer at any reasonable time and from time to time upon reasonable
prior notice. In addition, at any time that a request for a consent for a
material or substantive change to the Loan Documents is pending, any Lender may
request and receive from the Administrative Agent a copy of the Register.
(d) Participations. Any Lender may at any time, without the consent of, or
notice to, the Borrower or the Administrative Agent, sell participations to any
Person (other than a natural person or the Borrower or any of the Borrower's
Affiliates or Subsidiaries) (each, a "Participant") in all or a portion of such
Lender's rights and/or obligations under this Agreement (including all or a
portion of its Commitment and/or the Loans (including such Lender's
participations in L/C Obligations and/or Swing Line Loans) owing to it);
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent, the other Lenders and the L/C Issuer shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided
that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, waiver or other
modification described in clauses (i) through (vii) of the Section 11.01(a) that
affects such Participant. Subject to subsection (e) of this Section, the
Borrower agrees that each Participant shall be entitled to the benefits of
Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to subsection (b) of this Section.
To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 11.08 as though it were a Lender, provided such Participant
agrees to be subject to Section 2.13 as though it were a Lender.
(e) Limitation on Participant Rights. A Participant shall not be entitled
to receive any greater payment under Section 3.01 or 3.04 than the applicable
Lender would have been entitled to receive with respect to the participation
sold to such Participant, unless the sale of the participation to such
Participant is made with the Borrower's prior written consent. A Participant
that would be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 3.01 unless the Borrower is notified of the participation
sold to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 3.01(e) as though it were a Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement
(including under its Note, if any) to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank; provided that no such pledge or assignment shall release such Lender from
any of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.
(g) Electronic Execution of Assignments. The words "execution," "signed,"
"signature," and words of like import in any Assignment and Assumption shall be
deemed to include electronic signatures or the keeping of records in electronic
form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records Act,
or any other similar state laws based on the Uniform Electronic Transactions Act
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(h) Resignation as L/C Issuer or Swing Line Lender after Assignment.
Notwithstanding anything to the contrary contained herein, if at any time Bank
of America assigns all of its Commitment and Loans pursuant to subsection (b)
above, Bank of America may, (i) upon thirty days' notice to the Borrower and the
Lenders, resign as L/C Issuer and/or (ii) upon thirty days' notice to the
Borrower, resign as Swing Line Lender. In the event of any such resignation as
L/C Issuer or Swing Line Lender, the Borrower shall be entitled to appoint from
among the Lenders a successor L/C Issuer or Swing Line Lender hereunder;
provided, however, that no failure by the Borrower to appoint any such successor
shall affect the resignation of Bank of America as L/C Issuer or Swing Line
Lender, as the case may be. If Bank of America resigns as L/C Issuer, it shall
retain all the rights, powers, privileges and duties of the L/C Issuer hereunder
with respect to all Letters of Credit outstanding as of the effective date of
its resignation as L/C Issuer and all L/C Obligations with respect thereto
(including the right to require the Lenders to make Base Rate Loans or fund risk
participations in Unreimbursed Amounts pursuant to Section 2.03(c)). If Bank of
America resigns as Swing Line Lender, it shall retain all the rights of the
Swing Line Lender provided for hereunder with respect to Swing Line Loans made
by it and outstanding as of the effective date of such resignation, including
the right to require the Lenders to make Base Rate Loans or fund risk
participations in outstanding Swing Line Loans pursuant to Section 2.04(c). Upon
the appointment of a successor L/C Issuer and/or Swing Line Lender, (1) such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the
case may be, and (2) the successor L/C Issuer shall issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such
succession or make other arrangements satisfactory to Bank of America to
effectively assume the obligations of Bank of America with respect to such
Letters of Credit.
11.07 Treatment of Certain Information; Confidentiality.
Each of the Administrative Agent, the Lenders and the L/C Issuer agrees to
maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Affiliates and to its and its
Affiliates' respective partners, directors, officers, employees, agents,
advisors and representatives and to any direct or indirect contractual
counterparty (or such contractual counterparty's professional advisor) under any
Swap Contract relating to Loans outstanding under this Agreement (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any regulatory
authority purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction
relating to a Loan Party and its obligations, (g) with the consent of the
Borrower or (h) to the extent such Information (x) becomes publicly available
other than as a result of a breach of this Section or (y) becomes available to
the Administrative Agent, any Lender, the L/C Issuer or any of their respective
Affiliates on a nonconfidential basis from a source other than the Borrower.
For purposes of this Section, "Information" means all information received
from a Loan Party or any Subsidiary relating to the Loan Parties or any
Subsidiary or any of their respective businesses, other than any such
information that is available to the Administrative Agent, any Lender or the L/C
Issuer on a nonconfidential basis prior to disclosure by such Loan Party or any
Subsidiary, provided that, in the case of information received from a Loan Party
or any Subsidiary after the date hereof, such information is
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clearly identified at the time of delivery as confidential. Any Person required
to maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
Each of the Administrative Agent, the Lenders and the L/C Issuer
acknowledges that (a) the Information may include material non-public
information concerning the Borrower or a Subsidiary, as the case may be, (b) it
has developed compliance procedures regarding the use of material non-public
information and (c) it will handle such material non-public information in
accordance with applicable Law, including Federal and state securities Laws.
11.08 Set-off.
If an Event of Default shall have occurred and be continuing, each Lender,
the L/C Issuer and each of their respective Affiliates is hereby authorized at
any time and from time to time, after obtaining the prior written consent of the
Administrative Agent, to the fullest extent permitted by applicable law, to set
off and apply any and all deposits (general or special, time or demand,
provisional or final, in whatever currency) at any time held and other
obligations (in whatever currency) at any time owing by such Lender, the L/C
Issuer or any such Affiliate to or for the credit or the account of the Borrower
or any other Loan Party against any and all of the obligations of the Borrower
or such Loan Party now or hereafter existing under this Agreement or any other
Loan Document to such Lender or the L/C Issuer, irrespective of whether or not
such Lender or the L/C Issuer shall have made any demand under this Agreement or
any other Loan Document and although such obligations of the Borrower or such
Loan Party may be contingent or unmatured or are owed to a branch or office of
such Lender or the L/C Issuer different from the branch or office holding such
deposit or obligated on such indebtedness. The rights of each Lender, the L/C
Issuer and their respective Affiliates under this Section are in addition to
other rights and remedies (including other rights of setoff) that such Lender,
the L/C Issuer or their respective Affiliates may have. Each Lender and the L/C
Issuer agrees to notify the Borrower and the Administrative Agent promptly after
any such setoff and application, provided that the failure to give such notice
shall not affect the validity of such setoff and application.
11.09 Interest Rate Limitation.
Notwithstanding anything to the contrary contained in any Loan Document,
the interest paid or agreed to be paid under the Loan Documents shall not exceed
the maximum rate of non-usurious interest permitted by applicable Law (the
"Maximum Rate"). If the Administrative Agent or any Lender shall receive
interest in an amount that exceeds the Maximum Rate, the excess interest shall
be applied to the principal of the Loans or, if it exceeds such unpaid
principal, refunded to the Borrower. In determining whether the interest
contracted for, charged, or received by the Administrative Agent or a Lender
exceeds the Maximum Rate, such Person may, to the extent permitted by applicable
Law, (a) characterize any payment that is not principal as an expense, fee, or
premium rather than interest, (b) exclude voluntary prepayments and the effects
thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal
parts the total amount of interest throughout the contemplated term of the
Obligations hereunder.
11.10 Counterparts; Integration; Effectiveness.
This Agreement may be executed in counterparts (and by different parties
hereto in different counterparts), each of which shall constitute an original,
but all of which when taken together shall constitute a single contract. This
Agreement and the other Loan Documents constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 5.01,
97
this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof that, when taken together, bear the signatures of each of
the other parties hereto. Delivery of an executed counterpart of a signature
page of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
11.11 Survival of Representations and Warranties.
All representations and warranties made hereunder and in any other Loan
Document or other document delivered pursuant hereto or thereto or in connection
herewith or therewith shall survive the execution and delivery hereof and
thereof. Such representations and warranties have been or will be relied upon by
the Administrative Agent and each Lender, regardless of any investigation made
by the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
11.12 Severability.
If any provision of this Agreement or the other Loan Documents is held to
be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Agreement and the other Loan
Documents shall not be affected or impaired thereby and (b) the parties shall
endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
11.13 Replacement of Lenders.
If any Lender requests compensation under Section 3.04, or if the Borrower
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 3.01, or if any
Lender is a Defaulting Lender, then the Borrower may, at its sole expense and
effort, upon notice to such Lender and the Administrative Agent, require such
Lender to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in, and consents required by, Section 11.06), all
of its interests, rights and obligations under this Agreement and the related
Loan Documents to an assignee that shall assume such obligations (which assignee
may be another Lender, if a Lender accepts such assignment), provided that:
(a) the Borrower shall have paid to the Administrative Agent the
assignment fee specified in Section 11.06(b);
(b) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and L/C Advances, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the other
Loan Documents (including any amounts under Section 3.05) from the assignee (to
the extent of such outstanding principal and accrued interest and fees) or the
Borrower (in the case of all other amounts);
(c) in the case of any such assignment resulting from a claim for
compensation under Section 3.04 or payments required to be made pursuant to
Section 3.01, such assignment will result in a reduction in such compensation or
payments thereafter; and
98
(d) such assignment does not conflict with applicable Laws.
A Lender shall not be required to make any such assignment or delegation
if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation
cease to apply.
11.14 Governing Law; Jurisdiction; Etc.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) SUBMISSION TO JURISDICTION. THE BORROWER AND EACH OTHER LOAN PARTY
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW
YORK, NEW YORK, OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE
AND ANY APPELLATE COURT THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR
ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE
PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING
SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN
ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT,
ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE
BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.
(c) WAIVER OF VENUE. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY
AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF
THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH
ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE
OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02. NOTHING IN THIS
AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY APPLICABLE LAW.
11.15 Waiver of Right to Trial by Jury.
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO
99
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
11.16 Collateral and Guaranty Matters.
The Administrative Agent agrees, so long as no Default or Event of Default
has occurred and is continuing:
(a) to release any Lien on any Collateral granted to or held by the
Administrative Agent under any Loan Document (i) upon termination of the
Aggregate Revolving Commitments and payment in full of all Obligations
(other than contingent indemnification obligations) and the expiration or
termination of all Letters of Credit, (ii) that is transferred or to be
transferred as part of or in connection with any Disposition permitted
hereunder or under any other Loan Document or any Involuntary Disposition,
or (iii) as approved in accordance with Section 11.01; and
(b) to release any Guarantor from its obligations under the Guaranty
if such Person ceases to be a Subsidiary as a result of a transaction
permitted hereunder.
11.17 USA PATRIOT Act Notice.
Each Lender that is subject to the Act (as hereinafter defined) and the
Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies the Borrower that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the "Act"), it
is required to obtain, verify and record information that identifies the
Borrower, which information includes the name and address of the Borrower and
other information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrower in accordance with the Act.
[SIGNATURE PAGES FOLLOW]
100
IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement
to be duly executed as of the date first above written.
BORROWER: SYMBION, INC., a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President - Finance and Chief Financial Officer
GUARANTORS: AMBULATORY RESOURCE CENTRES INVESTMENT COMPANY, INC.,
a Washington corporation
AMBULATORY RESOURCE CENTRES OF FLORIDA, INC., a Florida corporation
AMBULATORY RESOURCE CENTRES OF MASSACHUSETTS, INC.,
a Tennessee corporation
AMBULATORY RESOURCE CENTRES OF TEXAS, INC., a Tennessee corporation
AMBULATORY RESOURCE CENTRES OF WASHINGTON, INC., a Tennessee
corporation
AMBULATORY RESOURCE CENTRES OF WILMINGTON, INC., a Tennessee
corporation
ARC DEVELOPMENT CORPORATION, a Tennessee corporation
ARC DRY CREEK, INC., a Tennessee corporation
ARC FINANCIAL SERVICES CORPORATION, a Tennessee corporation
ARC NEW HARTFORD, INC., a Tennessee corporation
ASC OF XXXXXXX, INC., a Delaware corporation
ASC OF NEW ALBANY, INC., an Indiana corporation
HOUSTON PSC - I, INC., a Texas corporation
LUBBOCK SURGICENTER, INC., a Texas corporation
MEDISPHERE HEALTH PARTNERS MANAGEMENT OF TENNESSEE, INC.,
a Tennessee corporation
MEDISPHERE HEALTH PARTNERS - OKLAHOMA CITY, INC., a Tennessee
corporation
NSC EDMOND, INC., an Oklahoma corporation
PHYSICIANS SURGICAL CARE, INC., a Delaware corporation
PHYSICIANS SURGICAL CARE MANAGEMENT, INC., a Delaware corporation
PREMIER AMBULATORY SURGERY OF DUNCANVILLE, INC., a Delaware
corporation
PSC OF NEW YORK, L.L.C., a Delaware limited liability company
SARC/ASHEVILLE, INC., a Tennessee corporation
SARC/CIRCLEVILLE, INC., a Tennessee corporation
SARC/COLUMBIA, INC., a Tennessee corporation
SARC/DELAND, INC., a Tennessee corporation
SARC/FT. XXXXX, INC., a Tennessee corporation
SARC/FW, INC., a Tennessee corporation
SARC/GEORGIA, INC., a Tennessee corporation
SARC/JACKSONVILLE, INC., a Tennessee corporation
SARC/KNOXVILLE, INC., a Tennessee corporation
SARC/LARGO, INC., a Tennessee corporation
SARC/LARGO ENDOSCOPY, INC., a Tennessee corporation
SARC/METAIRIE, INC., a Tennessee corporation
SARC/PROVIDENCE, INC., a Tennessee corporation
SARC/SAVANNAH, INC., a Tennessee corporation
SARC/ST. XXXXXXX, INC., a Tennessee corporation
SARC/VINCENNES, INC., a Tennessee corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
[SIGNATURE PAGES FOLLOW]
SARC/WORCESTER, INC., a Tennessee corporation
SI/DRY CREEK, INC., a Tennessee corporation
SI/ERIE, INC., a Tennessee corporation
SMBIMS BIRMINGHAM, INC., a Tennessee corporation
SMBIMS BROOKSVILLE, INC., a Tennessee corporation
SMBIMS KIRKWOOD, INC., a Tennessee corporation
SMBIMS STEUBENVILLE, INC., a Tennessee corporation
SMBIMS TUSCALOOSA, INC., a Tennessee corporation
SURGICARE OF DELAND, INC., a Florida corporation
SYMBION AMBULATORY RESOURCE CENTRES, INC., a Tennessee corporation
SYMBIONARC MANAGEMENT SERVICES, INC., a Tennessee corporation
SYMBION IMAGING, INC., a Tennessee corporation
TEXARKANA SURGERY CENTER GP, INC., a Texas corporation
UNIPHY HEALTHCARE OF LOUISVILLE, INC., a Tennessee corporation
UNIPHY HEALTHCARE OF MEMPHIS III, INC., a Tennessee corporation
UNIPHY HEALTHCARE OF MEMPHIS IV, INC., a Tennessee corporation
VASC, INC., an Illinois corporation
VILLAGE SURGICENTER, INC., a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
WILMINGTON SURGERY CENTER, L.P., a Tennessee limited partnership
By: Ambulatory Resources Centres of Wilmington, Inc., its
general partner
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
PSC DEVELOPMENT COMPANY, LLC, a Delaware limited liability company
By: Physicians Surgical Care, Inc., its sole member
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
PSC OPERATING COMPANY, LLC, a Delaware limited liability company
By: Physicians Surgical Care, Inc., its sole member
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
SARC/SAN ANTONIO, LLC, a Tennessee limited liability company
By: ARC Financial Services Corporation, its sole member
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
[SIGNATURE PAGES FOLLOW]
SARC/WEST HOUSTON, LLC, a Tennessee limited liability company
By: ARC Financial Services Corporation, its sole member
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
SMBISS ROSWELL, LLC, a Tennessee limited liability company
By: Symbion ARC Management Services, LLC
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
SMBISS XXXXX SPRINGS, LLC, a Tennessee limited liability company
By: Symbion ARC Management Services, LLC
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
UNIPHY HEALTHCARE OF XXXXXXX CITY VI, LLC,
a Tennessee limited liability company
By: Symbion, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President-Finance and Chief Financial Officer
UNIPHY HEALTHCARE OF MEMPHIS I, LLC, a Tennessee limited liability
company
By: Symbion, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President-Finance and Chief Financial Officer
[SIGNATURE PAGES FOLLOW]
ADMINISTRATIVE
AGENT: BANK OF AMERICA, N.A., as Administrative Agent
By: /s/ Xxxxxxxx Xxxxxxx
------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Vice President
LENDERS: BANK OF AMERICA, N.A.,
as a Lender, L/C Issuer and Swing Line Lender
By: /s/ Xxxxxxxxx X. Xxxx
------------------------------
Name: Xxxxxxxxx X. Xxxx
Title: Senior Vice President
CREDIT SUISSE FIRST BOSTON,
acting through its Cayman Islands Branch
By: /s/ Xxxx X. Xxxxx
------------------------------
Name: Xxxx X. Xxxxx
Title: Director
By: /s/ Xxxxx Xxxxxxxx
------------------------------
Name: Xxxxx Xxxxxxxx
Title: Associate
KEYBANK NATIONAL ASSOCIATION
By: /s/ X.X. Xxxxxx
------------------------------
Name: X. X. Xxxxxx
Title: Senior Vice President
SUNTRUST BANK
By: /s/ W. Xxxxxx Xxxxxxx
------------------------------
Name: W. Xxxxxx Xxxxxxx
Title: Director
US BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: AVP
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxxxx
------------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
[SIGNATURE PAGES FOLLOW]
FIFTH THIRD BANK
By: /s/ Xxxxx Xxxxxxx
------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
XXXXXXX XXXXX BANK, FSB
By: /s/ Xxxxxx Xxxx
------------------------------
Name: Xxxxxx Xxxx
Title: Vice President
