EXHIBIT 10.43
LOAN AGREEMENT
THIS AGREEMENT, made as of this 2nd day of January, 2002, is by and
among Bank of America, N.A., a national banking association (the "Bank"),
SYMBION, INC., a Tennessee corporation (the "Borrower"), and SYMBION AMBULATORY
RESOURCE CENTRES, INC., Tennessee corporation ("SARC").
RECITALS
Borrower has requested that the Bank make a loan in the amount of
$1,140,000 to Borrower, the proceeds of which Borrower will loan or make as an
equity contribution, through a series of wholly-owned subsidiaries, to its
wholly-owned subsidiary ARC Financial Services Corporation, a Tennessee
corporation ("ARC Financial") which will loan such proceeds to its wholly owned
subsidiary, SARC/Circleville, Inc., a Tennessee corporation
("SARC/Circleville"), which will use the proceeds thereof to acquire a limited
liability company interest in Xxxxxxxx Pelias, Ltd., an Ohio limited liability
company (the "Surgery Center"). The Bank is willing to make such loan to
Borrower on the terms and conditions set forth in this Agreement.
SECTION 1. DEFINITIONS
As used herein:
"ACQUISITION" means any transaction, or any series of related
transactions, by which any Person, in the transaction or as of the most recent
transactions in a series of transactions, directly or indirectly acquires any
going concern or all or a substantial part of the assets of any corporation,
partnership or other entity or any division of any such entity, or any such
entity or any division of any such entity becomes a Subsidiary of such Person.
"AFFILIATES" means as to any Person (A) any Person which, directly, or
indirectly through one or more intermediaries, controls, is controlled by or is
under common control with such Person, or (B) any Person who is a director or
executive officer (i) of such Person, (ii) of any Subsidiary of such Person or
(iii) of any Person described in clause (A) above. For purposes of this
definition, "control" of a Person shall mean the power, direct or indirect, (i)
to vote or direct the voting of more than twenty five percent (25%) of the
outstanding shares of voting stock of such Person, or (ii) to direct or cause
the direction of the management and policies of such Person whether by contract
or otherwise. In no event shall the Bank be deemed to an Affiliate of Borrower.
"AGREEMENT" means this Loan Agreement, as it may be amended, restated,
renewed or extended from time to time.
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"ARC FINANCIAL" is defined in the Recitals.
"ARC FINANCIAL GUARANTY" means the Guaranty and Suretyship Agreement in
the form attached as Exhibit A-1 to be executed by ARC Financial at the Closing.
"BANK" means Bank of America, N.A. and its successors and assigns.
"BUSINESS DAY" means any day on which the state banks and national
banking associations in Nashville, Tennessee and New York, New York are open for
the conduct of ordinary business; provided however, that when used in connection
with determining the LIBO Rate or notices in connection therewith, the term
"Business Day" shall also exclude any day on which banks are not open for
dealings in U.S. Dollar deposits in the London Interbank Market.
"CAPITAL EXPENDITURE" means all amounts paid by any Person in
connection with the purchase of property, plant, machinery, equipment or other
similar expenditures (including capital leases of any of the foregoing), which
would be required to be capitalized and shown on a consolidated balance sheet of
such Person in accordance with generally accepted accounting principles
consistently applied.
"CAPITALIZED LEASE" means a lease that is required to be capitalized
for financial reporting purposes in accordance with generally accepted
accounting principles.
"CAPITALIZED LEASE OBLIGATION" means Indebtedness repre-sented by
obligations under a Capitalized Lease, and the amount of such Indebtedness shall
be the capitalized amount of such obliga-tions determined in accordance with
generally accepted accounting principles.
"CASH FLOW" means Net Income (or deficit) for the immediately preceding
Quarterly Period plus (A) federal and state income taxes for such period
deducted in the determination of Net Income, (B) Interest Expense for such
period deducted in the determination of Net Income, (C) Rental Expense for such
period deducted in the determination of Net Income, (D) depreciation for such
period deducted in the determination of Net Income, (E) amortization for such
period deducted in the determination of Net Income, (F) non-cash or
non-recurring charges for such period deducted in the determination of Net
Income, and (G) 50% of the management fees paid by Surgery Center to Symbion ARC
Management Services, Inc., for such period deducted in the determination of Net
Income during such period, less the lesser of actual or budgeted maintenance
Capital Expenditures for such period.
"CHANGE OF CONTROL" means the occurrence of any transaction or series
of transactions that results in Borrower, directly or indirectly, owning and
having the right to vote (i) less than 51% of the limited liability company
interests of Surgery
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Center or (ii) less than all of the limited liability company interests of
SARC/Circleville.
"CLOSING" means the valid execution and delivery of the Note, this
Agreement, and Collateral Documents to the Bank.
"COLLATERAL" means any property securing the Obligations from time to
time.
"COLLATERAL DOCUMENTS" means the documents specified in Paragraphs
3.1(b), (c) and (d).
"CONSOLIDATED FUNDED DEBT" means, at any date, with respect to Borrower
and its Subsidiaries, all of the following obligations (without duplication) as
of such date: (a) all obligations for borrowed money, (b) all obligations
evidenced by bonds, debentures, notes or other similar instruments, (c) all
obligations to pay the deferred purchase price of property, except trade
accounts payable or other short term liabilities other than indebtedness for
borrowed money arising in the ordinary course of business, (d) Capitalized
Leases Obligations, (e) all obligations to purchase securities or other property
which arise out of or in connection with the sale of the same or substantially
similar securities or property, such as bankers acceptances or similar
instruments, (f) all contingent and non-contingent obligations to reimburse any
bank or other person in respect of amounts payable or paid under a letter of
credit or similar instrument, (g) all debt of others secured by a lien on any
asset of Borrower and/or any of its Subsidiaries, whether or not such debt is
assumed, and (h) all Guarantee Obligations.
"CONSTITUENT DOCUMENTS" means, with respect to any Person, the
governing legal documents of such Person, such as Person's charter, certificate
of incorporation, Articles of Organization, Operating Agreement, Regulations,
certificate of limited partnership, or Partnership Agreement, as the case may
be.
"DEBT SERVICE" means $40,700 (the imputed principal amortization
associated with the Loan) plus the sum of the following incurred by Surgery
Center during any particular fiscal quarter: (A) scheduled principal payments on
Indebtedness, (B) Rental Expense, and (C) Interest Expense paid to any party
other than ARC Financial.
"DEFAULT RATE" means a rate per annum equal to the LIBO Rate plus four
hundred and fifty basis points (4.5%).
"EBITDA" means, for any Person and for any period of determination, the
Net Income for such period plus (A) Interest Expense for such period deducted in
the determination of Net Income, (B) federal and state taxes for such period
deducted in the determination of Net Income, (C) depreciation deducted in the
determination of Net Income, (D) amortization deducted in the determination of
Net Income, and (E) non-cash or non-recurring charges for such period deducted
in the
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determination of Net Income, all as determined in accordance with generally
accepted accounting principles consistently applied.
"ENVIRONMENTAL LAWS" means the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) and the Superfund Amendments and
Reauthorization Act (XXXX); the Resource Conservation and Recovery Act (RCRA);
the Emergency Planning and Community Right to Know Act; the Clean Water Act
(Federal Water Pollution Control Act); the Safe Drinking Water Act; the Clean
Air Act; the Surface Mining Control and Reclamation Act; the Coastal Zone
Management Act; the Noise Control Act; the Occupational Safety and Health Act;
the Toxic substances Control Act (TSCA); the Federal Insecticide, Fungicide and
Rodenticide Act (FIFRA); any so-called "Superfund" or "Superlien" law; or any
other federal, state or local statute, law, ordinance, code, rule, regulations,
order, decree or other requirements of any governmental body regulating,
relating to or imposing liability or standards of conduct concerning any
Hazardous Materials or toxic or dangerous chemical, waste, substance or
material.
"EQUIPMENT" has the meaning provided in the UCC.
"EURODOLLAR LIABILITIES" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"EURODOLLAR RATE RESERVE PERCENTAGE" means the reserve percentage
applicable during any Interest Period under regulations issued from time to time
by the Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) for banks with
respect to liabilities or assets consisting of or including Eurodollar
Liabilities having a term equal to such Interest Period.
"EVENT OF DEFAULT" has the meaning set forth in Paragraph 8.1.
"EXCESS CASH" means, at any date, for any Person, such Person's cash on
hand less the amount of Required Cash Availability at such date.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) 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 the day for which such rate is to be determined 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 such rate is not so published for any
Business Day, the Federal Funds
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Rate for such Business Day shall be the average rate charged to the Bank on such
Business Day on such transactions as determined in good faith by the Bank.
"FINANCIAL STATEMENTS" means the financial statements filed in
connection with the Loan.
"FINANCING STATEMENTS" means any one or more filings made pursuant to
the UCC to perfect the security interests in the Collateral granted to Bank
pursuant to the Collateral Documents.
"FISCAL YEAR" means the calendar year period of January 1 through
December 31.
"GUARANTEE OBLIGATION" means with respect to any Person, any contract,
agreement or understanding of such Person pursuant to which such Person
guarantees, or in effect guarantees, any Indebtedness of any other person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, agreements (a) to purchase such Indebtedness or any asset
constituting security therefor, (b) to advance or supply funds for the purchase
or payment of such Indebtedness or to maintain net worth or working capital or
other balance sheet conditions, or otherwise to advance or make available funds
for the purchase or payment of such Indebtedness, (c) with the holder of such
Indebtedness to purchase an asset or service primarily for the purpose of
assuring such holder of the ability of the primary obligor to make payment of
the Indebtedness, or (d) otherwise to assure the holder of the Indebtedness of
the primary obligor against loss with respect thereto; provided, however, that
such term shall not include the endorsement of negotiable instruments or
documents for deposit or collection in the ordinary course of business. The
amount of any Guarantee Obligation of any guaranteeing person shall be deemed to
be the lower of (a) an amount equal to the stated or determinable amount of the
primary obligation in respect of which such Guarantee Obligation is made and (b)
the maximum amount for which such guaranteeing person may be liable pursuant to
the terms of the instrument embodying such Guarantee Obligation, unless such
primary obligation and the maximum amount for which such guaranteeing person may
be liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof.
"HAZARDOUS MATERIALS" means any hazardous, toxic or dangerous chemical,
substance, waste or material defined as such in any of the Environmental Laws,
and petroleum, petroleum products, oil, asbestos and PCB's.
"INDEBTEDNESS" means, as to any Person, all items of indebtedness
whether matured or unmatured, liquidated or unliquidated, direct or contingent,
joint or several, including without limitation:
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(a) All indebtedness guaranteed, directly or indirectly, in any manner,
or endorsed (other than for collection or deposit in the ordinary course of
business) or discounted with recourse;
(b) All indebtedness in effect guaranteed, directly or indirectly,
through agreements, contingent or otherwise: (1) to purchase such indebtedness;
or (2) to purchase, sell or lease (as lessee or lessor) property, products,
materials or supplies or to purchase or sell services, primarily for the purpose
of enabling the debtor to make payment of such indebtedness or to assure the
owner of the indebtedness against loss; or (3) to supply funds to or in any
other manner invest in the debtor;
(c) All indebtedness secured by (or for which the holder of such
indebtedness has a right, contingent or otherwise, to be secured by) any
mortgage, deed of trust, pledge, lien, security interest or other charge or
encumbrance upon property owned or acquired subject thereto, whether or not the
liabilities secured thereby have been assumed; and
(d) All indebtedness incurred as the lessee of facilities, goods or
services under leases that, in accordance with generally accepted accounting
principles consistently applied, should be reflected on such Person's balance
sheet.
"INTEREST EXPENSE" means, with respect to any Person for any period of
determination, the gross interest expenses of such Person determined in
accordance with generally accepted accounting principles consistently applied as
shown on its income statement.
"INTEREST PAYMENT DATE" shall mean the last day of each Interest
Period.
"INTEREST PERIOD" shall mean, initially, the period commencing on the
date hereof and ending on the numerically corresponding day (or, if there is no
numerically corresponding day, on the last day) of the next calendar month, and
thereafter shall mean the period commencing on the date immediately following
the last day of the preceding Interest Period and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on the last
day) of the next calendar month; provided, however, that (x) if any Interest
Period would end on a day that shall not be a Business Day, such Interest Period
shall be extended to the next succeeding Business Day unless, such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day and (y) no
Interest Period with respect to any Loan shall end later than the Loan
Termination Date. Interest shall accrue from and including the first day of an
Interest Period to but excluding the last day of such Interest Period.
"INTEREST RATE AND FOREIGN EXCHANGE CONTRACTS" means interest rate and
foreign exchange swap agreements, interest rate cap agreements, interest rate
collar agreements, interest rate and foreign exchange insurance and other
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agreements or arrangements designed to provide protection against fluctuations
in interest rates and currency exchange rates.
"LAWS" means all ordinances, statutes, rules, regulations, order,
injunctions, writs or decrees of any government or political subdivision or
agency thereof, or any court of similar entity established by any thereof.
"LIBO RATE" means, for each Interest Period, the rate per annum
appearing on the Telerate Page 3750 (or successor page) as the London interbank
offered rate for deposits in Dollars at approximately 11:00 a.m. (London Time)
two Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period. If for any reason such rate is not
available, the term "LIBO Rate" shall mean, for each Interest Period the rate
per annum appearing on Reuters Screen LIBO Page as the London interbank offered
rate for deposits in Dollars at approximately 11 a.m. (London time) two Business
Days prior to the first day of such Interest Period for a term comparable to
such Interest Period; provided, however, if more than one rate is specified on
Reuters Screen LIBO Page, the applicable rate shall be the arithmetic mean of
all such rates.
"LOAN" means the term loan in the amount of $1,140,000 made to Borrower
by Bank hereunder.
"LOAN DOCUMENTS" means this Agreement, the Note, the Pledged Note, the
Collateral Documents, or any other document executed or delivered by or on
behalf of the Borrower, SARC, ARC Financial, SARC/Circleville, Surgery Center,
or any of their respective Affiliates evidencing or securing the Obligations.
"LOAN TERMINATION DATE" means July 1, 2002; provided, however, that the
Loan Termination Date shall be extended to October 31, 2002, if, by July 1,
2002, the Borrower has executed an engagement letter, in form and content
satisfactory to Bank in its sole discretion, with respect to a transaction
(whether an initial public offering or private placement of securities,
subordinated debt offering or bank credit facility) that will result in proceeds
sufficient to refinance the Loan and all other indebtedness of Borrower and its
Affiliates owed to Bank.
"MATERIAL ADVERSE CHANGE" means a material adverse change in the
business or conditions (financial or otherwise) or in the result of operations
of Borrower, Surgery Center or SARC or in the value of the Collateral.
"MATERIAL ADVERSE EFFECT" means, when referring to the taking of an
action or the omission to take an action, that such action, if taken, or
omission, would have a material adverse effect on the business, condition
(financial or otherwise) or results of operations of such Person, or might
materially impair the value of the Collateral.
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"NET INCOME" means, for any period of determination, net income of a
Person, determined in accordance with generally accepted accounting principles
consistently applied.
"NOTE" means a promissory note substantially in the form of Exhibit B
attached hereto, duly executed and delivered to Bank by Borrower, as it may be
renewed, extended or modified from time to time.
"OBLIGATIONS" means all of the obligations of Borrower:
(a) To pay the principal of and interest on the Note in accordance with
the terms thereof and to satisfy all Borrower's other liabilities to the Bank
hereunder, whether now existing or hereafter incurred, matured or unmatured,
direct or contingent, joint or several, including any extension, modifications,
and renewals thereof and substitutions therefor;
(b) To repay the Bank all amounts advanced by the Bank hereunder on
behalf of Borrower, including, but without limitation, amounts owed under
Interest Rate and Foreign Exchange Contracts to the Bank, and advances for
overdrafts, principal or interest payments to prior secured parties, mortgagees,
or lienors, or for taxes, levies, insurance, rent, repairs to or maintenance or
storage of any of the Collateral; and
(c) To reimburse the Bank, on demand, for all of the Bank's reasonable
out-of-pocket expenses and costs, including the reasonable fees and expenses of
its counsel, in connection with the enforcement of this Agreement and the
documents required hereunder, including, without limitation, any proceeding
brought or threatened to enforce payment of any of the obligations referred to
in the foregoing paragraphs (a) and (b), or any suits or claims against Bank
whatsoever as a result of Bank's execution of this Agreement and making of its
Loan, all as more specifically set forth in Paragraphs 9.4 and 9.7 hereof; and
in addition, to reimburse the Bank for its expenses and reasonable attorneys'
fees in connection with the preparation, administration, amendment, modification
or waiver of the Agreement and the other Loan Documents.
"PERMITTED INVESTMENTS" means all expenditures made and all liabilities
incurred (contingent or otherwise) by Borrower, SARC or Surgery Center for:
(a) obligations issued or guaranteed as to principal and interest by
the United States of America and having a maturity of not more than twelve (12)
months from the date of purchase;
(b) certificates of deposit, issued by banks organized under the laws
of the United States of America or any State thereof and foreign subsidiaries of
such banks, having a rating of not less than A or its equivalent by Standard &
Poor's Corporations, or its successor; and
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(c) commercial paper or finance company paper which is rated not less
than prime-one or A-1 or their equivalents by Xxxxx'x Investor Services, Inc. or
Standard & Poor's Corporation or their successors.
"PERMITTED LIENS" means:
(a) Liens in favor of the Bank;
(b) Liens for taxes, assessments, or similar charges, incurred in the
ordinary course of business that are not yet delinquent;
(c) Pledges or deposits made in the ordinary course of business to
secure payment of workmen's compensation, or to participate in any fund in
connection with workmen's compensation, unemployment insurance, old-age pensions
or other social security programs;
(d) Liens of mechanics, materialmen, warehousemen, carriers, or other
like liens, securing obligations in the ordinary course of business that are not
yet delinquent;
(e) Good faith pledges or deposits made in the ordinary course of
business to secure performance of bids, tenders, contracts (other than for the
repayment of borrowed money) or leases, or to secure statutory obligations, or
surety, appeal, indemnity, performance or other similar bonds required in the
ordinary course of business;
(f) Encumbrances consisting of zoning restrictions, easements or other
restrictions on the use of real property, none of which materially impairs the
use of such property by Borrower, SARC, ARC Financial, SARC/Circleville, or
Surgery Center in the operations of its business, and none of which is violated
in any material respect by existing or proposed structures or land use;
(g) Statutory and common law landlord's liens arising under any lease;
(h) The interests of lessees of any property of Borrower, SARC, ARC
Financial, SARC/Circleville, or Surgery Center;
(i) The following, if the validity or amount thereof is being contested
in good faith by appropriate and lawful proceedings, so long as levy and
execution thereon have been stayed and continue to be stayed; if Borrower, SARC
or ARC Financial, SARC/Circleville, or Surgery Center, as applicable, has posted
such security as may be required by Laws or as is reasonably satisfactory to
Bank:
(i) Claims or liens for taxes, assessments or charges due and
payable and subject to interest or penalty;
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(ii) Claims, liens and encumbrances upon, and defects of title
to, real or personal property, including any attachment of personal or real
property or other legal process prior to adjudication of a dispute on the
merits;
(iii) Claims or liens of mechanics, materialmen, warehousemen,
carriers, or other like liens; and
(iv) Adverse judgments on appeal;
(j) Purchase Money Liens securing Purchase Money Indebtedness incurred
in compliance with Paragraph 7.4; and
"PERSON" means any individual, corporation, partnership, association,
joint-stock company, estate, trust, unincorporated organization, limited
liability company, joint venture, court or government or political subdivision
or agency thereof.
"PLEDGED NOTE" means the promissory note executed by SARC/Circleville
and payable to ARC Financial.
"PLEDGED INTEREST" means the interests pledged pursuant to the Pledge
Agreements described in Paragraph 3.1.
"PRO-FORMA EFFECT" means, in making any calculation to determine if
Borrower is in compliance with Paragraph 6.14, that the calculation will be made
assuming that (a) any Acquisition made during the three-month period ending on
the date of determination (the "Reference Period"), and (b) any Indebtedness
associated with (a) incurred during the Reference Period or to be incurred as of
the date of determination, were made or incurred on the first day of the
Reference Period. Any funds to be used by Borrower or any Subsidiary in
consummating an Acquisition will be assumed to have been used for that purpose
as of the first day of the Reference Period. If EBITDA for the Reference Period
associated with the assets acquired or to be acquired in any Permitted
Acquisition is greater than $0, such EBITDA will be included in the calculation
of EBITDA for Borrower and its Subsidiaries, and any Indebtedness to be incurred
by Borrower or any Subsidiary in connection with the consummation of any
Acquisition will be assumed to have been incurred on the first day of the
Reference Period. Interest Expense with respect to such Indebtedness assumed to
have been incurred on the first day of the Reference Period which bears interest
at a floating rate shall be calculated at the current rate under the agreement
governing such Indebtedness. Any Interest Expense incurred during the Reference
Period which was or is to be refinanced with the proceeds of Indebtedness
assumed to have been incurred as of the first day of the Reference Period will
be excluded from the calculation for which a Pro-Forma Effect is being given.
"PURCHASE MONEY INDEBTEDNESS" means
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(a) Indebtedness created to secure the payment of all or any part of
the purchase price of any property,
(b) any Indebtedness incurred at the time of or within 30 days prior to
or after the acquisition of any property for the purpose of financing all or any
part of the purchase price there-of, and
(c) any renewals, extensions or refinancings thereof, but not any
increases in the principal amounts thereof outstanding at the time of any such
renewal, extension or refinancing.
"PURCHASE MONEY LIEN" means any lien securing Purchase Money
Indebtedness, but only if such lien shall at all times be confined solely to the
property the purchase price of which was financed through the incurrence of the
Purchase Money Indebtedness secured by such lien.
"QUARTERLY PERIOD" means (a) the Period from the Closing Date to the
next succeeding Quarterly Date and (b) thereafter, any period from the first day
after a Quarterly Date to the next succeeding Quarterly Date.
"REAL PROPERTY" means any real property now owned or leased or
hereafter acquired or leased by Borrower, SARC or Surgery Center, as applicable.
"RECORDS" means correspondence, memoranda, tapes, books, discs, paper,
magnetic storage and other documents or information of any type, whether
expressed in ordinary or machine language.
"RENTAL EXPENSE" means, with respect to any Person for any period, the
gross real estate rental expenses of such Person for such period (excluding all
personal property rental expense), net of rental income of such Person for such
period, each determined in accordance with generally accepted accounting
principles consistently applied.
"REQUIRED CASH AVAILABILITY" means, at any date, for any Person, an
amount equal to such Person's anticipated operating expenses for the succeeding
two weeks.
"SARC" means Symbion Ambulatory Resources Centres, Inc., a Tennessee
corporation.
"SARC GUARANTY" means the Guaranty and Suretyship Agreement in the form
attached as Exhibit A-2 to be executed by SARC at the Closing.
"SARC/CIRCLEVILLE" is defined in the Recitals.
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"SARC/CIRCLEVILLE GUARANTY" means the Guaranty and Suretyship Agreement
in the form attached as Exhibit A-3 to be executed by SARC/Circleville at the
Closing.
"SHAREHOLDERS' EQUITY" means, for any person, at any time, the accounts
required to be set forth in a balance sheet of such Person, prepared in
accordance with generally accepted accounting principles consistently applied,
including but not limited to: (A) the par or stated value of all outstanding
capital stock or membership interests (as applicable); (B) capital surplus,
including additional paid-in capital; and (C) retained earnings.
"SUBORDINATION AGREEMENT" means the Subordination Agreement to be
delivered pursuant to Paragraph 3.1 hereof.
"SUBSIDIARY" of a Person means any Person of which more than 50% of the
outstanding voting securities or other equity interests in such Person shall, at
the time of determination, be owned directly or indirectly through one or more
Persons, and "SUBSIDIARIES" means more than one of such Persons.
"SURGERY CENTER" is defined in the Recitals.
"UCC" means the Uniform Commercial Code as in effect on the date hereof
in the State of Tennessee, as it may be amended from time to time; provided that
if by reason of mandatory provisions of law, the perfection or the effect of
perfection or non-perfection of a security interest in any Collateral is
governed by the Uniform Commercial Code as in effect in a jurisdiction other
than Tennessee, "UCC" means the Uniform Commercial Code as in effect in such
other jurisdiction for purposes of the provisions hereof relating to such
perfection or effect of perfection or non-perfection.
"UNMATURED DEFAULT" means an event which but for the lapse of time or
the giving of notice, or both, would constitute an Event of Default
SECTION 2. THE LOAN.
2.1 The Loan. Subject to the terms and conditions of and relying on the
representations, warranties and covenants contained in this Agreement, Bank
agrees to loan to the Borrower $1,140,000, the proceeds of which Borrower will
loan or make as an equity contribution to its wholly-owned subsidiary ARC
Financial, which will loan such proceeds to its wholly owned subsidiary,
SARC/Circleville, which will use the proceeds thereof to acquire a limited
liability company interest in Surgery Center. Subject to the terms and
conditions of the Agreement, Bank shall fund the Loan in one advance on the date
of this Agreement, net of the reasonable fees and expenses of Bank, including,
without limitation, the reasonable fees of counsel to Bank.
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2.2 Interest Rates and Payments.
(a) Interest shall be charged and paid on the Loan from the
date of the initial advance until the Loan is paid at a rate equal to the LIBO
Rate plus two hundred fifty basis points (2.5%), to be adjusted at the beginning
of each Interest Period.
(b) Interest shall be computed on the basis of a 360-day year
counting the actual number of days elapsed, and shall be due and payable without
notice on each Interest Payment Date.
(c) Notwithstanding the foregoing, upon the occurrence of an
Event of Default interest may be charged at the Default Rate as defined and set
forth in the Note if the Bank so elects, regardless of whether the Bank has
elected to exercise any other remedies under Section 8 hereof, including,
without limitation, acceleration of the maturity of the outstanding principal of
the Note. All such interest shall be paid at the time of and as a condition
precedent to the curing of any such default to the extent any right to cure is
given.
(d) The Borrower shall pay to Bank, if and so long as Bank
shall be required under regulations of the Board of Governors of the Federal
Reserve System to maintain reserves with respect to liabilities or assets
consisting of or including Eurodollar Liabilities, additional interest on the
unpaid principal amount of the Loan, from such time as Bank is so required to
maintain reserves until said principal amount is paid in full, at an interest
rate per annum equal at all times to the remainder obtained by subtracting (i)
the LIBO Rate for the Interest Period from (ii) the rate obtained by dividing
the LIBO Rate by a percentage equal to 100% minus the Eurodollar Rate Reserve
Percentage for such Interest Period, payable on each date on which interest is
payable. Such additional interest shall be determined by Bank who shall notify
Borrower thereof.
(e) From time to time, the Bank shall send the Borrower
statements of all amounts due hereunder which statements, absent manifest error,
shall be considered correct and conclusively binding on the Borrower unless a
Borrower notifies the Bank to the contrary within one hundred eighty (180) days
of its receipt of any statement to which it objects. All sums payable to the
Bank hereunder shall be paid in immediately available funds prior to 12:00 noon,
Nashville time, on the date when such sums are due and payable. Any amounts
received by the Bank after 12:00 noon Nashville time on any Business Day shall
be deemed to have been received on the next Business Day.
(f) The entire principal balance of the Loan, together with
all interest accrued thereon, shall be due and payable in full on the Loan
Termination Date.
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(g) All agreements herein made are expressly limited so that
in no event whatsoever shall the interest and loan charges agreed to be paid to
the Bank for the use of the money advanced or to be advanced pursuant to this
Agreement exceed the maximum amounts collectible under applicable laws in effect
from time to time. If for any reason whatsoever the interest or loan charges
paid or contracted to be paid in respect of the Loan shall exceed the maximum
amounts collectible under applicable laws in effect from time to time, then,
ipso facto, the obligation to pay such interest and/or loan charges shall be
reduced to the maximum amounts collectible under applicable laws in effect from
time to time, and any amounts collected by the Bank that exceeds such maximum
amounts shall be applied to the reduction of the principal balance of the Loan
and/or refunded to Borrower so that at no time shall the interest or loan
charges paid or payable in respect of the Loan exceed the maximum amounts
permitted from time to time by applicable law. This provision shall control
every other provision herein and in any and all other agreements and instruments
now existing or hereafter arising among Borrower and the Bank with respect to
the Loan.
(h) Borrower has elected to authorize Bank to effect payment
of sums due under this Note by means of debiting account number 0000-0000-0000.
This authorization shall not affect the obligation of Borrower to pay such sums
when due, without notice, if there are insufficient funds in such account to
make such payment in full on the due date thereof, or if Bank fails to debit the
account.
2.3 Closing Fee. Intentionally omitted.
2.4 Alternate Rate of Interest.
(a) In the event, and on such occasion, that on the date of
commencement of any Interest Period for a Loan, Bank shall have reasonably
determined:
(i) That dollar deposits in the amount of the
requested principal amount of the Loan are not generally available to
first-class banks in the London Interbank Market;
(ii) That the rate at which such dollar deposits are
being offered will not adequately and fairly reflect the cost to Bank of making
or maintaining the Loan during such Interest Period; or
(iii) That reasonable means do not exist for
ascertaining the LIBO Rate generally,
Bank shall, as soon as practicable thereafter, give written notice of such
determination to the Borrower. In the event of any such determination, the Loan
shall thereafter bear interest at a rate based upon such other comparable
reference rate as reasonably determined by Bank.
14
2.5 Change in Circumstances.
(a) Notwithstanding any other provision herein, if after the
date of this Agreement any change in applicable Laws or regulations or in the
interpretation or administration thereof by any governmental authority charged
with the interpretation or administration thereof (whether or not having the
force of law) shall change the basis of taxation (but not the rates) of payments
to Bank under any Loan made by Bank or any other fees or amounts payable
hereunder (other than taxes imposed on the overall net income or net profits of
Bank by the country in which Bank is located, or by the jurisdiction in which
Bank has its principal office, or by any political subdivision or taxing
authority therein), or shall impose, modify, or deem applicable any reserve
requirement, special deposit, insurance charge (including FDIC insurance on
Eurodollar deposits) or similar requirements against assets of, deposits with or
for the account of, or credit extended by, Bank or shall impose on Bank or the
London Interbank Market any other condition affecting this Agreement or Loan
made by Bank, and the result of any of the foregoing shall be to increase the
cost to Bank of making or maintaining its Loan or to reduce the amount of any
sum received or receivable by Bank for any of its Loan hereunder (whether of
principal, interest or otherwise) by an amount reasonably deemed by Bank to be
material, then the Borrower will pay to Bank such additional amount or amounts
as will reasonably compensate Bank for such additional costs.
(b) If either:
(i) The introduction of, or any change in, or in the
interpretation of, any United States or foreign law, rule or regulation; or
(ii) Compliance with any directive, guidelines or
request from any central bank or other United States or foreign governmental
authority (whether or not having the force of law) promulgated or made after the
date hereof (but excluding, however, any law, rule, regulation, interpretation,
directive, guideline or request contemplated by or resulting from the report
dated July, 1988, entitled "International Convergence of Capital Measurement and
Capital Standards" issued by the Basic Committee on Banking Regulations and
Supervisory Practices), affects or would affect the amount of capital required
or expected to be maintained by Bank (or any lending office of Bank) or any
corporation directly or indirectly owning or controlling Bank (or any lending
office of Bank) based upon the existence of this Agreement, and Bank shall have
determined that such introduction, change or compliance has or would have the
effect of reducing the rate of return on Bank's capital or on the capital of
such owning or controlling corporation as a consequence of its obligations
hereunder to a level below that which Bank or such owning or controlling
corporation could have achieved but for such introduction, change or compliance
(after taking into account Bank's policies or the policies of such owning or
controlling corporation, as the case may be, regarding capital adequacy) by an
15
amount deemed by Bank (in its sole discretion) to be material, then the Borrower
will pay to Bank such additional amount or amounts as will compensate Bank for
such reduction attributable to making, funding and maintaining the Loan.
(c) A certificate of Bank setting forth such amount or amounts
as shall be necessary to compensate Bank (or its participating banks or other
entities pursuant to this Agreement), as specified in subparagraph (a) or (b)
above, as the case may be, shall be delivered to Borrower and shall be
conclusive absent manifest error; provided, however, that the Borrower shall be
responsible for compliance herewith and the payment of increased costs only to
the extent:
(i) Any change in applicable Laws giving rise to
increased costs occurs after the date of this Agreement; and
(ii) Such change in Laws or the application thereof
applies generally to the banking industry and is not the result of the Bank
having inadequate or substandard capital as determined by its regulators; and
(iii) The Bank gives notice of the change giving rise
to increased costs within one hundred eighty (180) Business Days after the date
on which Bank has, or with reasonable diligence should have had, knowledge of
the change, or else Bank can only collect costs from and after the date of the
notice.
Subject to the foregoing, the Borrower shall pay the Bank the amount shown as
due on any such certificate within ten (10) days after its receipt of such
certificate.
(d) The protection of this Paragraph 2.5 shall be available to
Bank regardless of any possible contention of invalidity or inapplicability of
the law, regulation or condition that shall have been imposed.
2.6 Change in Legality. Notwithstanding anything to the contrary
herein contained, if any change in any law or regulation or in interpretation
thereof by any governmental authority charged with the administration or
interpretation thereof shall make it unlawful for Bank to make or maintain a
Loan based on the LIBO Rate, then, by written notice to the Borrower, the Loan
shall thereafter bear interest at a rate based upon such other comparable
reference rate as reasonably determined by Bank.
2.7 Optional Prepayment -- Premiums in Certain Events.
(a) The Borrower may, upon three (3) Business Day's prior
written notice to the Bank, and upon payment of all premiums set forth in
Subparagraph (c) below, prepay the Loan prior to the next Interest Payment Date,
in whole or in part.
(b) Each notice of prepayment of the Loan shall specify the
date and amount of such prepayment and shall be irrevocable. Each partial
prepayment of
16
the Loan shall be in an aggregate principal amount which is the lesser of
$100,000.00 or an integral multiple thereof. Interest on the amount prepaid
accrued to the prepayment date shall be paid on such date.
(c) Upon prepayment of the Loan on a date other than the
relevant Interest Payment Date, Borrower shall pay to Bank, in addition to all
other payments then due and owing the Bank, premiums which shall be equal to an
amount, if any, reasonably determined by Bank to be the difference between the
rate of interest then applicable to the Loan and the yield Bank receives upon
reinvestment of so much of the Loan as is prepaid from the date of prepayment
until the end of such Interest Period. Anything in this Paragraph 2.7(c) to the
contrary notwithstanding, the premiums payable upon any such prepayment shall
not exceed the amount, if any, reasonably determined by Bank to be the
difference between the rate of interest then applicable to the Loan and the
yield that Bank could receive upon reinvestment in the "Floor Reinvestment" of
so much of the Loan as is prepaid. For purposes hereof, "Floor Reinvestment"
shall mean an investment for the time period from the date of such prepayment to
the end of the current Interest Period applicable to the Loan at an interest
rate per annum equal to the Federal Fund Rate "offered" as published in the Wall
Street Journal on the date of such prepayment. All determinations, estimates,
assumptions, allocations and the like required for the determination of such
premiums shall be made by Bank in good faith and shall be presumed correct
absent demonstrable error.
SECTION 3. CONDITIONS PRECEDENT
The obligation of the Bank to fund the Loan is subject to the following
conditions precedent:
3.1 Documents Required for the Closing. The Borrower shall have
delivered to the Bank prior to the initial disbursement of the Loan the
following:
(a) The Note;
(b) The SARC Guaranty, duly executed by SARC, the
SARC/Circleville Guaranty, duly executed by SARC/Circleville, and the ARC
Financial Guaranty, duly executed by ARC Financial;
(c) The Pledge Agreements in the forms attached hereto as
Exhibit D-1 and Exhibit D-2 duly executed by ARC Financial and SARC/Circleville;
(d) Subordination Agreement, in form and substance acceptable
to Bank, duly executed by Symbion ARC Management Services, Inc.;
(e) Copies of the resolutions of the managing member of
Surgery Center, of the board of directors of SARC/Circleville, of the board of
directors of the ARC Financial, of the board of directors of SARC, and of the
board of directors of
17
Borrower, respectively, certified by the corporate secretary or assistant
secretary of each as of the date of Closing, authorizing the execution, delivery
and performance of this Agreement and, as applicable, the Note, the Pledged
Note, the Loan Documents, and each other document to be delivered pursuant
hereto;
(f) A copy of the Constituent Documents of Surgery Center,
SARC/Circleville, Borrower, SARC, and ARC Financial, certified as of the most
recent date practicable, by the applicable Secretary of State or by the
secretary of such Person, as applicable;
(g) A certificate dated the date of the Closing of the
secretary of SARC/Circleville, ARC Financial, SARC and Borrower as to the
incumbency and signatures of their respective officers executing this Agreement,
the Note, the SARC Guaranty, ARC Financial Guaranty, the SARC/Circleville
Guaranty, the Collateral Documents, and each other document to be delivered
pursuant hereto;
(h) With respect to Surgery Center, SARC/Circleville, ARC
Financial, Borrower and SARC, certificates, as of the most recent dates
practicable, issued by the Secretary of State of the state in which such Person
was incorporated or formed as to the existence and/or good standing of such
Person;
(i) A written opinion of counsel to the Borrower,
SARC/Circleville, Surgery Center, SARC and ARC Financial, dated the date of the
Closing, in form satisfactory to the Bank.
(j) A certificate, dated the date of the Closing, signed by
the president, vice president, chief financial officer, or corporate controller
of the Borrower and SARC to the effect that:
(i) The representations and warranties set forth
within Section 5 are true as of the date of the Closing;
(ii) No Event of Default or Unmatured Default has
occurred as of such date;
(iii) All of the Collateral Documents are in full
force and effect; and
(k) The Pledged Note, in form and substance acceptable to
Bank, duly executed by SARC/Circleville.
3.2 Legal Matters. At the time of the Closing and thereafter, all legal
matters incidental to the Loan shall be satisfactory to Bank and its counsel.
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SECTION 4. COLLATERAL SECURITY
Intentionally omitted.
SECTION 5. REPRESENTATIONS AND WARRANTIES
To induce the Bank to enter into this Agreement, the Borrower and SARC,
jointly and severally, represent and warrant to Bank as follows:
5.1 Due Organization and Qualification. Borrower is a corporation duly
organized, validly existing and in good standing under the Laws of the State of
Tennessee; SARC is a corporation duly organized, validly existing and in good
standing under the Laws of the State of Tennessee; Surgery Center is a limited
liability company duly organized, validly existing and in good standing under
the Laws of the state of Florida; SARC/Circleville is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Tennessee; ARC Financial is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Tennessee; Surgery Center
does not own any interests in any other Person; SARC/Circleville does not own
any interest in any Person other than Surgery Center; the Borrower, SARC and
Surgery Center have the lawful power to own their properties and to engage in
the business they conduct, and each is duly qualified and in good standing in
the jurisdictions wherein the nature of the business transacted by it or
property owned by it is both material and makes such qualification necessary;
and the addresses of all places of business of Surgery Center, SARC/Circleville
and ARC Financial as of the Closing Date are as set forth in Schedule 5.1;
5.2 No Conflicting Agreement. None of the Borrower, SARC/Circleville,
ARC Financial, SARC or Surgery Center is in default with respect to any existing
Indebtedness, and the making and performance of this Agreement, the Note and the
Collateral Documents will not (immediately, or with the passage of time or the
giving of notice, or both):
(a) Violate any provisions of the Constituent Documents of
Borrower, SARC/Circleville, ARC Financial, SARC or Surgery Center, or violate
any Laws, or result in a default under any material contract, agreement, or
instrument to which Borrower, SARC/Circleville, SARC, ARC Financial, or Surgery
Center is a party or by which Borrower, SARC, ARC Financial, or Surgery Center
or any of their respective property is bound; or
(b) Result in the creation or imposition of any security
interest in, or lien or encumbrance upon, any of the assets of Borrower,
SARC/Circleville, SARC, ARC Financial, or Surgery Center except in favor of the
Bank;
5.3 Capacity. The Borrower, SARC/Circleville, SARC, ARC Financial, and
Surgery Center have the power and authority to enter into and perform this
19
Agreement, the Note and the Collateral Documents, as applicable, and to incur
the Obligations herein and therein provided for, and have taken all action
necessary to authorize the execution, delivery, and performance of this
Agreement, the Note and the Collateral Documents;
5.4 Binding Obligations. This Agreement and the Collateral Documents
are, and the Note when delivered will be, valid, binding, and enforceable in
accordance with their respective terms subject to the general principles of
equity (regardless of whether such question is considered in a proceeding in
equity or at law) and to applicable bankruptcy, insolvency, moratorium,
fraudulent or preferential conveyance and other similar laws affecting generally
the enforcement of creditors' rights;
5.5 Pledged Interests. SARC owns all of the issued and outstanding
capital stock of ARC Financial; ARC Financial owns all of the capital stock of
SARC/Circleville; SARC/Circleville owns a fifty-five percent (55%) limited
liability company interest in Surgery Center; the capital stock in
SARC/Circleville and the limited liability company interests in Surgery Center
all have been duly issued, are fully paid and non-assessable, and are free of
all claims, security interests, liens, charges and encumbrances other than as
set forth in the Operating Agreement of the Surgery Center;
5.6 Litigation. There is no pending or threatened order, notice,
claim, litigation, proceeding or investigation against or affecting Borrower,
SARC/Circleville, SARC, ARC Financial or Surgery Center, except where the same
could not be reasonably expected to have a Material Adverse Effect;
5.7 Title. SARC, Surgery Center, ARC Financial, SARC/Circleville each
has good and marketable title to all of its assets, subject to no security
interest, encumbrance or lien, or the claims of any other Person except for
Permitted Liens and other liens securing Indebtedness, in the aggregate, of less
than $25,000;
5.8 Financial Statements. The Financial Statements, including any
schedules and notes pertaining thereto, have been prepared in accordance with
generally accepted accounting principles consistently applied, and fully and
fairly present (subject, in case interim Financial Statements to normal,
year-end adjustments and the absence of notes) the financial condition of the
Borrower, SARC and Surgery Center at the dates thereof and the results of
operations for the periods covered thereby, and there has been no Material
Adverse Change from December 31, 2000 to the date hereof;
5.9 No Additional Indebtedness. Except as set forth on Schedule 5.9,
Surgery Center has no Indebtedness of any nature;
5.10 Taxes. The Borrower, SARC, ARC Financial, SARC/Circleville and
Surgery Center have filed all federal, state and local tax returns and other
reports
20
they are required by Laws to file prior to the date hereof and which are
material to the conduct of their respective businesses, have paid or caused to
be paid all taxes, assessments and other governmental charges that are due and
payable prior to the delinquency thereof, and have made adequate provision for
the payment of such taxes, assessments or other charges accruing but not yet
payable and have no knowledge of any deficiency or additional assessment in
connection with any taxes, assessments or charges not provided for on its books;
5.11 Licenses; Compliance with Laws. Except to the extent that the
failure to comply would not result in a Material Adverse Effect, the Borrower,
SARC ARC Financial, SARC/Circleville and Surgery Center have complied with all
applicable Laws with respect to: (1) any licenses, restrictions, specifications,
or other requirement pertaining to services that Borrower, SARC ARC Financial,
SARC/Circleville or Surgery Center performs; (2) the conduct of their respective
businesses; (3) the use, maintenance, and operation of the real and personal
properties owned or leased by them in the conduct of their respective
businesses; and (4) health, safety, worker's compensation, and equal employment
opportunity;
5.12 Consents; Governmental Approvals. Each consent, approval or
authorization of, or filing, registration or qualification with, any Person
required to be obtained or effected by Borrower, SARC, ARC Financial,
SARC/Circleville or Surgery Center in connection with the execution and delivery
of the Loan Documents or the undertaking or performance of any obligation
thereunder has been duly obtained or effected; further, no authorization,
consent, approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body is required for the due execution,
delivery or performance by Borrower, SARC, ARC Financial, SARC/Circleville or
Surgery Center of any Loan Documents to which it is or will be a party, except
for approvals which have been obtained and are in full force and effect;
5.13 Full Disclosure. No representation or warranty by Borrower, SARC,
ARC Financial, SARC/Circleville or Surgery Center contained herein or in any
certificate or other document furnished in connection with the Loan, in light of
the circumstances in which they were made, by Borrower, SARC, ARC Financial,
SARC/Circleville or Surgery Center pursuant to this Agreement contains any
untrue statement of material fact;
5.14 Environmental Compliance. Borrower, SARC, ARC Financial,
SARC/Circleville or Surgery Center and their respective assets and operations
are in compliance in all material respects with all Environmental Laws;
5.15 Material Contracts. Except as described on Schedule 5.15 hereto,
as of the Closing Date, Surgery Center has no material real estate leases,
contracts, commitments of any kind (such as shareholder agreements; options;
employment agreements; collective bargaining agreements; powers of attorney;
bonus, pension
21
and retirement plans; or insurance and welfare agreements but specifically
excluding all provider agreements, and equipment leases); all parties to all
such material real estate leases, contracts and other commitments to which
Surgery Center is a party have to the best of Surgery Center's knowledge
complied with the provisions of such leases, contracts and other commitments; no
party is in default under any provision thereof; and no event has occurred
which, but for the giving of notice or the passage of time, or both, would
constitute a default;
5.16 No Commissions. Other than with respect to the fees payable to
the Bank hereunder, neither the Borrower nor any of its Affiliates has made any
agreement or has taken any action which may cause anyone to become entitled to a
commission or finder's fee as a result of the making of the Loan;
5.17 ERISA. Neither the Borrower nor any of its Affiliates has any
Defined Benefit Pension Plans, as defined in the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), as of the date hereof;
5.18 FEIN's. The federal employer identification numbers of Borrower,
SARC, SARC/Circleville, ARC Financial and Surgery Center are set forth on
Schedule 5.18.
5.19 Related Party Payments. Except for management fees payable to
Symbion ARC Management Services, Inc. and its obligation to pay the indebtedness
evidenced by the Pledged Note, Surgery Center is not obligated to make any
payments to any of its Affiliates.
5.20 Survival. All of the representations and warranties set forth in
Section 5 shall be true and correct when made and shall survive until all
Obligations are satisfied in full.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower and SARC, jointly and severally, covenant as follows:
6.1 Use of Proceeds. The Borrower will use the proceeds of the Loan
only for the purposes permitted in Paragraph 2.1, and will furnish the Bank such
evidence as it may reasonably require with respect to such use.
6.2 Financial Statements and Reports. The Borrower will furnish the
Bank:
(a) As soon as available and in any event within 30 days after
the close of each calendar month (except for the end of each fiscal quarter) in
each Fiscal Year of Surgery Center or SARC (as applicable) and within 45 days
after the
22
close of each calendar month (except for the end of each fiscal quarter) in each
Fiscal Year of Borrower: (i) income statements of Surgery Center for such
monthly period; (ii) balance sheets of Surgery Center as of the end of such
monthly period; (iii) consolidated income statements of SARC for such monthly
period; (iv) consolidated balance sheets of SARC as of the end of such monthly
period; (v) consolidated income statements of Borrower for such monthly period;
and (vi) consolidated balance sheets of Borrower as of the end of such monthly
period; - all in reasonable detail, subject to year-end audit adjustments and
certified by the president or principal financial officer of Borrower, SARC or
Surgery Center (as applicable) to have been prepared in accordance with
generally accepted accounting principles consistently applied, except for any
inconsistencies explained in such certificate;
(b) As soon as available and in any event within 45 days after
the close of each fiscal quarter (except for the fourth (4th) quarter of each
Fiscal Year) in each Fiscal Year of Borrower, SARC or Surgery Center (as
applicable): (i) statements of cash flows of Surgery Center for such quarterly
year-to-date period; (ii) income statements of Surgery Center for such quarterly
period; (iii) balance sheets of Surgery Center as of the end of such quarterly
period; (iv) consolidated and consolidating statements of cash flows of SARC for
such quarterly year-to-date period; (v) consolidated and consolidating income
statements of SARC for such quarterly period; (vi) consolidated and
consolidating balance sheets of SARC as of the end of such quarterly period;
(vii) consolidated and consolidating statements of cash flows of Borrower for
such quarterly year-to-date period; (viii) consolidated and consolidating income
statements of Borrower for such quarterly period; and (ix) consolidated and
consolidating balance sheets of Borrower as of the end of such quarterly period
- all in reasonable detail, subject to year-end audit adjustments and certified
by the president or principal financial officer of Borrower, SARC or Surgery
Center (as applicable) to have been prepared in accordance with generally
accepted accounting principles consistently applied, except for any
inconsistencies explained in such certificate;
(c) As soon as available and in any event within 120 days
after the close of each Fiscal Year of Borrower, SARC or Surgery Center (as
applicable): (i) statements of cash flows of Surgery Center for such Fiscal
Year; (ii) income statements of Surgery Center for such Fiscal Year; (iii)
balance sheets of Surgery Center as of the end of such Fiscal Year; (iv)
consolidated statements of cash flows of SARC for such Fiscal Year; (v)
consolidated income statements of SARC for such Fiscal Year; (vi) balance sheets
of SARC as of the end of such Fiscal Year; (vii) consolidated statements of cash
flows of Borrower for such Fiscal Year; (viii) consolidated income statements of
Borrower for such Fiscal Year; (ix) balance sheets of Borrower as of the end of
such Fiscal Year - all in reasonable detail, including all supporting schedules,
notes and comments; the statements and balance sheets of Borrower shall be
audited by independent certified public accountants selected by the Borrower and
acceptable to the Bank, and audited by such accountants to have
23
been prepared in accordance with generally accepted accounting principles
consistently applied, except for any inconsistencies explained in such
certificate. In addition, within 120 days after the close of such Fiscal Year,
Borrower shall provide to Bank its written statement that it has no knowledge of
any Event of Default, or disclosing all Events of Default of which it has
obtained knowledge. Bank shall have the right, from time to time, to discuss
such financial statements and related business issues directly with such
accountants;
(d) Contemporaneously with each quarterly and Fiscal Year-end
financial report required by the foregoing paragraphs (b) and (c), a certificate
of the president or chief financial officer of Borrower , SARC and
SARC/Circleville on behalf of Surgery Center (as applicable) stating that: (i)
such officer has individually reviewed the provisions of this Agreement; (ii) a
review of the activities of the Borrower, SARC and Surgery Center during such
year or quarter-annual period, as the case may be, has been made by such officer
or under such officer's supervision, with a view to determining whether the
Borrower, SARC and Surgery Center have fulfilled their respective obligations
under this Agreement; and (iii) to the best of such officers' knowledge, the
Borrower, SARC and Surgery Center have observed and performed each undertaking
contained in this Agreement and is not in default in the observance or
performance of any of the provisions hereof or, if the Borrower, SARC or Surgery
Center shall be so in default, specifying all such defaults and events of which
such officer may have knowledge. Such certificate shall further set forth the
calculations of the financial ratios and covenants set forth in Paragraph 6.14,
including, without limitation, any antecedent calculations and the source of any
information that was used in such calculations;
(e) Immediately upon receipt of the same by Borrower, SARC or
Surgery Center, copies of all management letters and any other reports which are
submitted to the Borrower, SARC or Surgery Center by its independent accountants
in connection with any annual or interim audit of the Records of the Borrower,
SARC or Surgery Center by such accountants;
(f) On or before April 30 of each year, a proforma budget
(including both projected maintenance Capital Expenditures and other Capital
Expenditures) for such Fiscal Year, in form reasonably satisfactory to the Bank;
and
(g) From time to time such additional information regarding
the financial condition or business of the Borrower, SARC or Surgery Center as
the Bank may reasonably request;
6.3 Good Condition. The Borrower, SARC, ARC Financial, SARC/Circleville
and Surgery Center will maintain their respective Equipment, Real Property and
other properties in good condition and repair (normal wear and tear excepted),
and will pay and discharge or cause to be paid and discharged when
24
due, the cost of repairs to or maintenance of the same, and will pay or cause to
be paid all rental or mortgage payments due on such Equipment or Real Property.
6.4 Insurance; Reinsurance. The Borrower, SARC and Surgery Center will
maintain, public liability, medical malpractice, and fire and extended coverage
insurance in such form and amounts as are consistent with industry practices and
with such insurers as may be satisfactory to the Bank. Such policies shall name
the Bank as an additional insured and loss payee, as its interests may appear,
and shall contain a provision whereby they cannot be canceled except after
thirty (30) days' written notice to the Bank.
6.5 Taxes; Copies of Returns. The Borrower, ARC Financial, SARC,
SARC/Circleville and Surgery Center will pay, prior to delinquency, all taxes,
assessments and charges or levies imposed upon them or on any of their property
or which any of them is required to withhold or pay over, except where contested
in good faith by appropriate proceedings with adequate security therefor having
been set aside in a manner satisfactory to Bank. The Borrower, ARC Financial,
SARC, SARC/Circleville and Surgery Center will pay or cause to be paid, all such
taxes, assessments, charges or levies forthwith whenever foreclosure on any lien
that attaches (or security therefor) appears imminent. Within ten (10) days of
Bank's request therefor, the Borrower, SARC, SARC/Circleville and Surgery Center
will furnish the Bank with copies of federal income tax returns filed.
6.6 Records and Inspection. The Borrower, ARC Financial, SARC,
SARC/Circleville and Surgery Center will, when requested so to do, make
available during regular business hours any of their business Records for
inspection by duly authorized representatives of the Bank, and will furnish the
Bank any information regarding their business affairs and financial condition
within a reasonable time after written request therefor.
6.7 Maintenance of Existence; Compliance with Laws; Licenses. The
Borrower, ARC Financial, SARC, SARC/Circleville and Surgery Center will take all
necessary steps to renew, keep in full force and effect, and preserve their
corporate existence, good standing, and franchises, and will comply in all
respects with all present and future Laws applicable to them except to the
extent that a failure to do so would not have or cause to occur a Material
Adverse Effect.
6.8 Payment of Indebtedness. The Borrower, SARC and Surgery Center will
pay when due from such Person (or within applicable grace periods) all
Indebtedness for borrowed money (whether direct or indirect, including Guarantee
Obligations) due any Person, except when the amount thereof is being contested
in good faith by appropriate proceedings and with adequate security therefor
being set aside in a manner satisfactory to the Bank. If default is made by
Borrower, SARC or Surgery Center in the payment of any principal (or installment
thereof) of, or interest on, any such Indebtedness, the Bank shall have the
right, in its discretion,
25
to pay such interest or principal for the account of such Person and be
reimbursed by such Person therefor.
6.9 Notice of Litigation. The Borrower will give immediate notice to
the Bank and provide copies to the Bank of: (1) any litigation or proceeding in
which Borrower, SARC or Surgery Center is a party if an adverse decision therein
would require them to pay over more than $100,000.00 or deliver assets the value
of which exceeds such sum (if such claim is not considered to be covered by
insurance) or pay over more than $250,000.00 (if such claim is considered to be
covered by insurance); and (2) the institution of any other suit or proceeding
involving any of them, or the overt threat thereof, that might have a Material
Adverse Effect on Borrower, SARC or Surgery Center.
6.10 Notice of Default. The Borrower will notify Bank immediately if it
becomes aware of the occurrence of any Event of Default or of any fact,
condition or event that only with the giving of notice or passage of time or
both, could become an Event of Default, or of the failure of Borrower or any
Affiliate to observe any of its undertakings hereunder.
6.11 Notice of Name Change or Location. The Borrower will notify Bank
thirty (30) days in advance of any change in (i) the name of Borrower, ARC
Financial, or SARC/Circleville or Surgery Center, (ii) the location of the state
of organization of Borrower, SARC/Circleville, ARC Financial or Surgery Center,
by merger or otherwise, or (iii) of the establishment of any new, or the
discontinuance of any existing, place of business of Surgery Center.
6.12 Environmental Compliance. If the Bank has reason to believe that
Borrower, SARC, ARC Financial, SARC/Circleville or Surgery Center has failed to
comply with any material Environmental Laws, or there exists a threat of
material harm to the environment or Persons, the Bank or their agents shall have
the right, but no obligation, at any time during business hours and upon
reasonable written notice, to enter upon any property operated by a Borrower,
SARC, ARC Financial, SARC/Circleville or Surgery Center and conduct or cause to
be conducted an Environmental Phase I audit (or an update of any audit completed
in connection with the execution of this Agreement) at Borrower' sole expense
and if such Phase I audit (or update) recommends further testing, then the Bank
or their agents may require, but shall not be obligated to require, upon
reasonable written notice, such further testing at Borrower' sole expense. The
Bank or their agents shall use their best efforts to invoke and maintain all
applicable privileges over all audit information generated pursuant to this
provision.
6.13 Notice of Environmental Action. If Borrower, SARC, ARC Financial,
SARC/Circleville or Surgery Center shall:
26
(a) receive written notice that any material violation of any
Environmental Laws may have been committed or is about to be committed by
Borrower, SARC, ARC Financial, SARC/Circleville or Surgery Center;
(b) receive written notice that any administrative or judicial
complaint or order has been filed or is about to be filed against Borrower,
SARC, ARC Financial, SARC/Circleville or Surgery Center alleging any material
violation of any Environmental Laws or requiring Borrower, SARC, ARC Financial,
SARC/Circleville or Surgery Center to take any action in connection with the
release or threatened release of Hazardous Materials or solid waste into the
environment; or
(c) receive written notice from a federal, state, foreign or
local governmental agency or private party alleging that Borrower, SARC, ARC
Financial, SARC/Circleville or Surgery Center is liable or responsible for costs
associated with the response to cleanup, stabilization or neutralization of any
environmental activity;
then it shall provide the Bank with a copy of such notice within ten (10)
Business Days of receipt thereof. Subject to the right of the Borrower, SARC,
ARC Financial, SARC/Circleville or Surgery Center to contest in good faith any
such actions or proceedings, the Borrower SARC, ARC Financial, SARC/Circleville
and/or Surgery Center shall as promptly as possible resolve, cure and/or have
dismissed with prejudice any such actions or proceedings, to the reasonable
satisfaction of the Bank. The Borrower shall monitor compliance with
Environmental Laws by any and all owners or operators of real property owned or
leased by a Borrower, SARC, ARC Financial, SARC/Circleville or Surgery Center.
6.14 Financial Ratios. The Borrower will maintain or cause to be
maintained, the following financial ratios and covenants:
(a) (i) beginning with the Quarterly Period ending March 31,
2002, a ratio of Surgery Center's Cash Flow to Surgery Center's Debt Service of
not less than 1.05:1.00 until such time as such ratio is greater than 1.05:1.00
for two (2) consecutive Quarterly Periods, and (ii) for each Quarterly Period
thereafter, a ratio of Surgery Center's Cash Flow to Surgery Center's Debt
Service of not less than 1.10:1.00;
(b) At all times, the Shareholders' Equity of Borrower,
calculated on a consolidated basis, shall be greater than the sum of (1) ninety
percent (90%) of the shareholder's equity of Borrower at December 31, 2000, plus
(2) eighty-five percent (85%) of the sum of (a) the aggregate amount of equity
capital contributed to Borrower after December 31, 2000, plus (b) the aggregate
cumulative positive net income (without deduction for any negative net income)
of Borrower after December 31, 2000, all computed in accordance with GAAP.
27
(c) At the end of each Quarterly Period beginning with the
Quarterly Period ending March 31, 2001 and continuing through each Quarterly
Period ending thereafter, the ratio of (i) the sum of (A) Borrower's
Consolidated Funded Debt less (B) Borrower's Excess Cash to (ii) Borrower's
consolidated EBITDA for such Quarterly Period, giving Pro-Forma Effect to any
Acquisition made and any Indebtedness incurred therewith as of the date of
determination, shall be less than 3.50:1.00.
(d) At all times, the sum of Surgery Center's Shareholder's
Equity shall be greater than $200,000.
6.15 Symbion Financing. If, after the date hereof, Borrower enters into
any financing arrangement which imposes covenants upon Borrower that are more
restrictive than, or in addition to, the covenants imposed hereby, Borrower will
promptly notify Bank, and Borrower, SARC and Surgery Center will promptly
execute any documentation reasonably requested by Bank to add such covenants to
this Agreement.
SECTION 7. NEGATIVE COVENANTS
Borrower and SARC hereby covenant and agree, jointly and severally, as
follows:
7.1 Merger or Reorganization. Neither Surgery Center, ARC Financial,
SARC/Circleville nor SARC will enter into any merger, consolidation,
reorganization or recapitalization, except that (i) one or more Subsidiaries of
SARC (other than Surgery Center) may merge with one another or with SARC, (ii)
SARC may enter into a merger with another entity if (A) SARC will be the
surviving entity, (B) the consolidated Shareholder's Equity of SARC after such
merger will equal or exceed the consolidated Shareholder's Equity of SARC before
such merger, and/or (C) SARC may issue its stock in connection with a merger of
a Subsidiary with another entity if the consolidated Shareholder's Equity of
SARC after such merger will equal or exceed the consolidated Shareholder's
Equity of SARC before such merger.
7.2 Sale of Assets. None of the Borrower, SARC or Surgery Center will
sell, transfer, lease or otherwise dispose of all or any material part of its
assets; provided, however, Borrower, SARC and Surgery Center may in the ordinary
course of business (i) replace damaged, obsolete or worn Equipment with
Equipment of similar value and use, or (ii) dispose of assets representing no
more than 5% of such Person's consolidated total assets.
7.3 Encumbrances. Surgery Center will not: (1) mortgage, pledge, grant
or permit to exist a security interest in or lien upon any of its assets of any
kind, now owned or hereafter acquired, except for Permitted Liens, or (2)
covenant or agree with any Person other than the Bank not to mortgage, pledge,
or grant a
28
security interest in or a lien upon its assets; provided that Northeast may make
such covenant or agreement with respect to assets securing Purchase Money
Indebtedness or Capitalized Lease Obligations incurred in accordance with
Paragraph 7.4 of this Agreement.
7.4 Debts and Other Obligations. Surgery Center will not incur, create,
assume, or permit to exist any Indebtedness except: (1) existing Indebtedness as
set forth in Schedule 5.9; (2) trade Indebtedness incurred in the ordinary
course of business; (3) contingent Indebtedness permitted by Paragraph 7.8; (4)
Indebtedness secured by Permitted Liens; and (5) Capitalized Lease Obligations
and/or Purchase Money Indebtedness not to exceed, in the aggregate at any one
time, $100,000.
7.5 Untrue Certificate. None of the Borrower, SARC, SARC/Circleville,
ARC Financial or Surgery Center will furnish the Bank any certificate or other
document that will contain any untrue statement of material fact or that will
omit to state a material fact necessary to make it not misleading in light of
the circumstances under which it was furnished.
7.6 Margin Stock. None of the Borrower, SARC, SARC/Circleville, ARC
Financial or Surgery Center will directly or indirectly apply any part of the
proceeds of the Loan to the purchasing or carrying of any "margin stock" within
the meaning of Regulation U of the Board of Governors of the Federal Reserve
System, or any regulations, interpretations or rulings thereunder.
7.7 Sale-Leaseback. Surgery Center will not enter into any
sale-leaseback transaction (in a single transaction or series of transactions)
involving assets which represent more than 5% of such Person's total
consolidated assets.
7.8 Guarantee Obligation. Surgery Center will not create, incur, suffer
to exist a Guarantee Obligation or otherwise become liable for any obligation of
any other Person, except: (1) the endorsement of commercial paper for deposit or
collection in the ordinary course of business, and (2) leases by Borrower
incurred in the ordinary course of business.
7.9 Subsidiary. Except for Permitted Investments, Surgery Center will
not form any Subsidiary or make any investment in or make any loan in the nature
of any investment to any Person, except that Surgery Center will be permitted to
form a Subsidiary upon prior written notice to Bank if Surgery Center (i)
pledges its ownership in the Subsidiary as collateral security for the
Obligations, and (ii) causes such Subsidiary to pledge all of its assets as
collateral security for the Obligations.
7.10 Loans and Advances. None of the Borrower, SARC or Surgery Center
will make any loan or advance to any officer, shareholder, director or employee
of such Person, except for temporary advances in the ordinary course of business
not to exceed $50,000.00 in the aggregate principal amount at any time
outstanding.
29
7.11 Investments. None of the Borrower, SARC or Surgery Center will
purchase or otherwise invest in or hold securities, non-operating real estate
outside the normal course of business, or other non-operating assets, except:
(1) Permitted Investments; (2) the present or future investment in any such
assets; and (3) operating assets that hereafter become non-operating assets.
7.12 Acquisitions. Surgery Center will not make an Acquisition of any
Person.
7.13 Affiliate Transactions. None of the Borrower, SARC or Surgery
Center will, directly or indirectly, enter into or permit to exist any
transaction (including, without limitation, the purchase, sale, lease or
exchange of any property or the rendering of any service) with any Affiliate on
terms that are less favorable to such Person than those that would be obtainable
at the time from any Person who is not an Affiliate.
7.14 ERISA Compliance. Neither the Borrower nor any of its Affiliates
will establish or set up any Defined Benefit Pension Plans, except for a Defined
Benefit Pension Plan assumed by the Borrower in connection with an Acquisition.
7.15 Surgery Center Distributions. The aggregate of all Surgery Center
Distributions for any Fiscal Year of Surgery Center shall not, for two
consecutive Fiscal Years of Surgery Center, exceed the sum of Net Income of
Surgery Center for such Fiscal Year plus federal and state income taxes deducted
in determining such Net Income.
7.16 Symbion Merger or Reorganization. Borrower will not enter into any
merger, consolidation, reorganization or recapitalization.
7.17 SARC/Circleville Assets. SARC/Circleville will not own any assets
other than its limited liability company interest in Surgery Center.
7.18 Surgery Center Organic Documents. Borrower will not suffer or
permit any amendment to the Articles of Organization or Operating Agreement of
Surgery Center or enter into any agreement that would limit or change the rights
of SARC/Circleville with respect thereto.
SECTION 8. DEFAULT
8.1 Events of Default. The occurrence of any one or more of the
following events shall constitute an "Event of Default" hereunder:
(a) The Borrower shall fail to pay within three (3) business
days of the date when due any installment of principal or interest payable
hereunder, or shall fail to pay within five (5) business days of written notice
any fee payable hereunder.
30
(b) The failure to achieve any of the financial covenants
contained in Paragraph 6.14.
(c) The Borrower, SARC, SARC/Circleville, Surgery Center or
ARC Financial shall fail to observe or perform any obligation or covenant to be
observed or performed by any of them, jointly or severally, under any of the
Loan Documents; provided, however, if such failure is not related to the payment
of money, the breach of a financial covenant contained in Paragraph 6.14, or the
breach of any negative covenant in Section 7 of this Agreement, the applicable
Person shall have fifteen (15) days after such Person's knowledge of such breach
to cure or cause to be cured such failure.
(d) The Borrower, Surgery Center or SARC shall fail to pay any
Indebtedness for borrowed money (whether direct or indirect, including
guarantees of borrowed money due from Subsidiaries) due any Person other than
Bank and such failure shall continue beyond any applicable grace period and
shall equal or exceed, either individually or in the aggregate, $25,000.00 in
amount.
(e) A Material Adverse Effect shall result from any breach of
or event of default arising under any agreement binding Borrower, or SARC that
results in a Material Adverse Change in the financial condition of Borrower,
Surgery Center or SARC, as determined by Bank in its reasonable discretion.
(f) Any financial statement, representation, warranty or
certificate made or furnished by Borrower, Surgery Center, ARC Financial,
SARC/Circleville, or SARC in connection with this Agreement or the Loan, or as
inducement to the Bank to enter into this Agreement, or in any separate
statement or document to be delivered hereunder to the Bank, shall be materially
false, incorrect, or incomplete when made, in light of the circumstances under
which it was made.
(g) Borrower, Surgery Center, SARC/Circleville, ARC Financial
or SARC shall admit its inability to pay debts as they mature, or shall make an
assignment for the benefit of its or any of its creditors.
(h) Proceedings in bankruptcy, or for reorganization of
Borrower, Surgery Center, ARC Financial or SARC, SARC/Circleville, or for the
readjustment of any of their respective debts, under the United States
Bankruptcy Code, as amended, or any part thereof, or under any other Laws,
whether state or federal, for the relief of debtors, now or hereafter existing,
shall be commenced by Borrower, Surgery Center, ARC Financial or SARC,
SARC/Circleville, or shall be commenced against Borrower, Surgery Center, ARC
Financial or SARC, SARC/Circleville, and not dismissed within sixty (60) days of
such an involuntary filing.
(i) A receiver or trustee shall be appointed for Borrower,
Surgery Center, ARC Financial or SARC, SARC/Circleville or for any substantial
part of their respective assets, or any proceedings shall be instituted for the
dissolution or
31
the full or partial liquidation of Borrower, Surgery Center, ARC Financial,
SARC/Circleville or SARC, or Borrower, Surgery Center or SARC shall discontinue
business or materially change the nature of any of their respective businesses.
(j) A judgment creditor of Borrower, Surgery Center, ARC
Financial, SARC/Circleville or SARC shall obtain possession of any Collateral or
other assets by any means, including, but without limitation, levy, distraint,
replevin or self-help.
(k) Any proceeding shall be instituted against Borrower,
Surgery Center or SARC, which is likely (taking into account the probability of
an adverse determination and the exhausting of all appeals) to have a Material
Adverse Effect, as determined by Bank in its reasonable discretion.
(l) Borrower, Surgery Center or SARC shall default beyond any
applicable grace period in any other Indebtedness (excluding the Obligations)
owed to the Bank, or any of them, or under any other agreements for credit or
borrowed money it may have with Bank, jointly or severally, directly or
indirectly, whether matured or unmatured.
(m) A Change of Control shall have occurred.
(n) Any payment or distribution by Surgery Center in
contravention of any provision of the Subordination Agreement.
(o) Any event which results in the principal executive
management functions of Borrower and its Subsidiaries being vested in, and the
responsibility of, less than four of Xxxxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxxx,
Xxxxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxx and Xxxxxxx X. X. Xxxx.
(p) An event or series of events shall occur by which:
(i) any "person" or "group" (within the meaning of
Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934) shall become
the "beneficial owner" (within the meaning of Rule 13d-3 and /or Rule 13d-5
under the Securities Exchange Act of 1934, except that a Person shall be deemed
to have "beneficial ownership" of all shares that such Person has the right to
acquire without condition, other than the passage of time, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of thirty percent (30%) or more of the combined voting power of all
securities of Borrower entitled to vote in the election of directors, other than
securities having such power only by reason of the happening of a contingency
(other than the passage of time), excluding, however, any such person or group
that is a record of "beneficial owner" of such securities in any amount on the
date of this Agreement; or
32
(ii) individuals who at the beginning of any period
of two (2) consecutive calendar years constituted the Board of Directors
(together with any new directors whose election by such Board of Directors or
whose nomination for election by Borrower's shareholders was approved by a vote
of at least two-thirds (2/3) of the members of the Board of Directors then still
in office who either were members of the Board of Directors at the beginning of
such period or whose election or nomination for election was previously so
approved) shall cease for any reason to constitute a majority of the members of
the Board of Directors then in office.
8.2 Acceleration. Upon the occurrence of any of such Events of Default,
the Bank may, at its option, immediately terminate the obligation to make any
further advances and/or declare the principal and interest accrued on the Note
and all other Obligations to be immediately due and payable, whereupon the same
shall become forthwith due and payable, without presentment, demand, protest, or
any notice of any kind except as set forth above; provided, that in the case of
the Events of Default specified in clause (g), (h) or (i) above with respect to
Borrower, without any notice to Borrower or any act by the Bank, the Note and
all other Obligations shall become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
waived by the Borrower. In addition, and regardless of whether the Note has been
accelerated, the Bank may upon the occurrence of any Event of Default elect to
charge interest at the Default Rate set forth in the Note.
8.3 Remedies. After any acceleration, as provided for in Paragraph 8.2,
the Bank shall have, in addition to the rights and remedies given it by the Loan
Documents, all those allowed by all applicable Laws, including, but without
limitation, the UCC as enacted in any applicable jurisdiction. Without limiting
the generality of the foregoing, the Bank may immediately, without demand of
performance and without other notice (except as specifically required by the
Loan Documents) or demand whatsoever to Borrower, all of which are hereby
expressly waived, and without advertisement, sell at public or private sale, in
any manner and at any location authorized by Laws, or otherwise realize upon,
the whole, or, from time to time, any part of the Collateral, or any interest
which Borrower may have therein. After deducting from the proceeds of sale or
other disposition of the Collateral all expenses (including all reasonable
expenses for legal services), the Bank shall apply such proceeds toward the
satisfaction of the Obligations. Any remainder of the proceeds after
satisfaction in full of the Obligations shall be distributed as required by
applicable Laws. Notice of any sale or other disposition shall be given to the
Borrower at least ten (10) days before the time of any intended public sale or
of the time after which any intended private sale or other disposition of the
Collateral is to be made, which Borrower hereby agrees shall be reasonable
notice of such sale or other disposition. Borrower agrees to assemble, or to
cause to be assembled, at its own expense, the Collateral at such place or
places as the Bank shall designate. At any such sale or other disposition, the
Bank may, to the extent permissible under applicable Laws, purchase the whole or
any part of the
33
Collateral, free from any right of redemption on the part of Borrower, which
right is hereby expressly waived and released.
Without limiting the generality of any of the rights and
remedies conferred upon the Bank under this Paragraph 8.3, the Bank may, to the
full extent permitted by applicable Laws:
(a) Enter upon the premises of Borrower, exclude therefrom
Borrower, any Subsidiary or any officer or employee thereof, and take immediate
possession of the Collateral, either personally or by means of a receiver
appointed by a court of competent jurisdiction, using all necessary and lawful
self-help to do so;
(b) At the Bank's option, use, operate, manage and control the
Collateral in any lawful manner;
(c) Collect and receive all receivables, rents, income,
revenue, earnings, issues and profits therefrom; and
(d) Maintain, repair, renovate, alter or remove the Collateral
as the Bank may determine in its discretion.
SECTION 9. MISCELLANEOUS
9.1 Construction. The provisions of this Agreement shall be in addition
to those of any guaranty, pledge or security agreement, note or other evidence
of liability held by the Bank, all of which shall be construed as complementary
to each other; provided, in the event of any inconsistency, the provisions of
this Agreement shall control. Nothing herein contained shall prevent the Bank
from enforcing any or all other notes, guaranties, pledge or security agreements
in accordance with their respective terms.
9.2 Further Assurance. From time to time, the Borrower, SARC, ARC
Financial, and SARC/Circleville and Surgery Center will execute and deliver to
the Bank such additional documents and will provide such additional information
as the Bank may reasonably require to carry out the terms of this Agreement and
be informed of the Borrower's and Surgery Center's operations, business and
condition
9.3 Enforcement and Waiver by the Bank. The Bank shall have the right
at all times to enforce the provisions of the Loan Documents in strict
accordance with the terms thereof, notwithstanding any conduct or custom on the
part of the Bank in refraining from so doing at any time or times. The failure
of the Bank at any time or times to enforce their rights under such provisions,
strictly in accordance with the same, shall not be construed as having created a
custom in any way or manner contrary to specific provisions of the Loan
Documents or as having in any way or manner modified or waived the same. All
rights and remedies of the
34
Bank is cumulative and concurrent and the exercise of one right or remedy shall
not be deemed a waiver or release of any other right or remedy.
9.4 Expenses of the Bank. The Borrower will, on demand, reimburse the
Bank for all out-of-pocket expenses, including the reasonable fees and expenses
of legal counsel for the Bank, incurred by the Bank in connection with the
preparation, administration, amendment, modification, or enforcement of the Loan
Documents and the collection or attempted collection of the Note.
9.5 Notices. Any notices or consents required or permitted by this
Agreement shall be in writing and shall be deemed delivered when delivered in
person, or when sent by certified mail, postage prepaid, return receipt
requested, by overnight courier service, or by facsimile to the address and/or
telecopy number as follows, unless such address or number is changed by written
notice hereunder.
(a) If to the Borrower, Surgery Symbion, Inc.
Center or SARC: 0000 Xxxx Xxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxx Xxxxxxxx
Telecopy: (000) 000-0000
with a copy (which shall not Xxxxxx Xxxxxxx Xxxxxx & Xxxxx, PLLC
constitute notice) to: 000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
(b) If to the Bank: Bank of America, N.A.
Xxx Xxxx xx Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Telecopy: (000) 000-0000
with a copy (which shall not Xxxxxxxx & Xxx, PLC
constitute notice) to: 000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx Xxxxxxx
Telecopy: (000) 000-0000
9.6 Waiver and Release. To the maximum extent permitted by applicable
Laws, Borrower:
(a) Waives: (1) protest of all commercial paper at any time
held by the Bank on which Borrower, SARC, ARC Financial, SARC/Circleville or
Surgery Center is in any way liable; and (2) notice and opportunity to be heard,
after
35
acceleration in the manner provided in Paragraph 8.2, before exercise by the
Bank of the remedies of self-help, set-off, or of other summary procedures
permitted by any applicable Laws or by any agreement with Borrower, SARC, ARC
Financial, SARC/Circleville or Surgery Center, and, except where required hereby
or by any applicable Laws, notice of any other action taken by the Bank; and
(b) Releases the Bank, and its officers, directors, attorneys,
employees, and agents from all claims for loss or damage caused by any act or
omission on the part of any of them except for gross negligence, recklessness or
willful misconduct.
9.7 Indemnification. Borrower hereby indemnifies and holds the Bank,
and its officers, directors, employees and agents free and harmless from and
against any and all actions, causes of action, suits, losses, liabilities and
damages, and expenses in connection therewith, including, without limitation,
reasonable counsel fees and disbursements, incurred by the Bank as a result of,
or arising out of, or relating to the execution, delivery, performance or
enforcement of the Loan Documents or any instrument contemplated therein, except
for the Bank's gross negligence or willful misconduct. If and to the extent that
the foregoing undertaking may be unenforceable for any reason, Borrower hereby
agrees to make the maximum contribution to the payment and satisfaction of such
liabilities and costs permitted under applicable Laws.
9.8 Applicable Laws. The Laws of the State of Tennessee, other than its
conflicts of laws rules, shall govern the construction and interpretation of
this Agreement and the validity and enforceability of this Agreement, and of its
provisions and the transactions pursuant to this Agreement, except for those
transactions for which the parties have chosen other laws to govern or for which
other mandatory choice of law rules apply.
9.9 Binding Effect, Assignment and Entire Agreement. This Agreement
shall inure to the benefit of, and shall be binding upon, the respective
successors and permitted assigns of the parties hereto. Borrower has no right to
assign any of its rights or obligations hereunder without the prior written
consent of the Bank. This Agreement and the documents executed and delivered
pursuant hereto constitute the entire agreement between the parties, and
supersede all prior agreements and understandings among the parties hereto. This
Agreement may be amended only by a writing signed on behalf of each party.
9.10 Severability. If any provision of this Agreement shall be held
invalid under any applicable Laws, such invalidity shall not affect any other
provision of this Agreement that can be given effect without the invalid
provision, and, to this end, the provisions hereof are severable.
36
9.11 Counterparts. This Agreement may be executed by the parties
independently in any number of counterparts, all of which together shall
constitute but one and the same instrument which is valid and effective as if
all parties had executed the same counterpart.
9.12 Venue. It is agreed that venue for any action arising in
connection with this Agreement or the Obligations secured hereby shall lie
exclusively with courts sitting in the State of Tennessee, unless the Bank
otherwise agrees in writing.
9.13 Arbitration. Any controversy or claim between or among the parties
hereto including, but not limited to, those arising out of or relating to this
instrument, agreement or document or any related instruments, agreements or
documents, including any claim based on or arising from an alleged tort, shall
be determined by binding arbitration in accordance with the Federal Arbitration
Act (or if not applicable, the applicable state law), the Rules of Practice and
Procedure for the Arbitration of Commercial Disputes of J.A.M.S./Endispute or
any successor thereof ("J.A.M.S."), and the "Special Rules" set forth below. In
the event of any inconsistency, the Special Rules shall control. Judgment upon
any arbitration award may be entered in any court having jurisdiction. Any party
to this Agreement may bring an action, including a summary or expedited
proceeding, to compel arbitration of any controversy or claim to which this
Agreement applies in any court having jurisdiction over such action.
(a) Special Rules. The arbitration shall be conducted, at
Bank's election, in the city of Borrower's domicile at time of the execution of
this instrument, agreement or document and administered by J.A.M.S. who will
appoint an arbitrator; if J.A.M.S. is unable or legally precluded from
administering the arbitration, then the American Arbitration Association will
serve. All arbitration hearings will be commenced within 90 days of the demand
for arbitration; further, the arbitrator shall only, upon a showing of cause, be
permitted to extend the commencement of such hearing for up to an additional 60
days.
(b) Reservation of Rights. Nothing in this arbitration
provision shall be deemed to (i) limit the applicability of any otherwise
applicable statutes of limitation or repose and any waivers contained in this
arbitration provision; or (ii) be a waiver by the Bank of the protection
afforded to it by 12 U.S.C. Sec. 91 or any substantially equivalent state law;
or (iii) limit the right of the Bank hereto (a) to exercise self help remedies
such as (but not limited to) setoff, or (b) to foreclose against any real or
personal property collateral, or (c) to obtain from a court provisional or
ancillary remedies such as (but not limited to) injunctive relief, writ of
possession or the appointment of a receiver. The Bank may exercise such self
help rights, foreclose upon such property, or obtain such provisional or
ancillary remedies before, during or after the pendency of any arbitration
proceeding brought pursuant to this instrument, agreement or document. Neither
this exercise of self
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help remedies nor the institution or maintenance of an action for foreclosure or
provisional or ancillary remedies shall constitute a waiver of the right of any
party, including the claimant in such action, to arbitrate the merits of the
controversy or claim occasioning resort to such remedies.
9.14 Right of Setoff. Borrower, SARC and Surgery Center acknowledge
that Bank shall retain its common law right of setoff with respect to any of the
Obligations.
(Remainder of Page Intentionally Left Blank)
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
BANK OF AMERICA, N.A. SYMBION, INC.
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------- -----------------------------
Title: Sr. Vice President Title: Vice President of Finance
----------------------- -----------------------------
SYMBION AMBULATORY RESOURCE CENTRES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Title: Vice President of Finance
-----------------------------
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