ASSIGNMENT AND ASSUMPTION AND AMENDMENT NO. 4
Exhibit 10.1
ASSIGNMENT AND ASSUMPTION
AND AMENDMENT NO. 4
AND AMENDMENT NO. 4
ASSIGNMENT AND ASSUMPTION AND AMENDMENT NO. 4 (this “Fourth Amendment”), dated as of
June 7, 2010, to that certain Credit Agreement, dated as of February 24, 2005, as amended,
supplemented and in effect from time to time (the “Credit Agreement”; capitalized terms
used herein and not defined shall have the meanings set forth in the Credit Agreement), among
SELECT MEDICAL HOLDINGS CORPORATION (“Holdings”), SELECT MEDICAL CORPORATION (the
“Borrower”), JPMORGAN CHASE BANK, N.A., as Administrative Agent and Collateral Agent (the
“Administrative Agent” and the “Collateral Agent,” respectively), WACHOVIA BANK,
NATIONAL ASSOCIATION, as Syndication Agent, XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED and
CIBC INC., as Co-Documentation Agents, and the several banks and other financial institutions from
time to time party thereto as lenders (the “Lenders”).
W I T N E S S E T H:
WHEREAS, Section 9.04 of the Credit Agreement permits Lenders to assign their rights and
obligations under the Credit Agreement;
WHEREAS, certain Revolving Lenders wish to sell and assign their respective Revolving
Commitments and Revolving Exposures to new Lenders (together, the “Assignments”);
WHEREAS, Section 9.02 of the Credit Agreement permits the Credit Agreement to be amended from
time to time;
WHEREAS, Holdings, the Borrower and a number of Revolving Lenders representing more than 50%
of the outstanding Revolving Commitments (calculated after giving effect to the Assignments and
prior to giving effect to the amendments set forth in Section Two hereof (together, the
“Amendments”)) wish to amend the Credit Agreement in order to establish a new Class of
revolving commitments thereunder and to make certain related modifications to the Credit Agreement
as more fully set forth herein;
NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
SECTION ONE. Assignment and Assumption.
(a) Each Revolving Lender identified in Schedule I hereto as an assignor (each, an
“Assignor” and together, the “Assignors”), severally and not jointly, hereby
irrevocably sells and assigns to the entities identified on Schedule I hereto as assignees (each,
an “Assignee” and together, the “Assignees”), and each Assignee, severally and not
jointly, hereby irrevocably purchases and assumes from the Assignors at par, subject to and in
accordance with the Standard Terms and Conditions set forth in Annex I attached hereto (the
“Standard Terms”) and the Credit Agreement, as of the Amendment No. 4 Effective Date
(a) each Assignor’s rights and obligations in its capacity as a Lender under the Credit Agreement
and any other documents or instruments delivered pursuant thereto to the extent related to the
amount and percentage interest identified below of all of such
outstanding rights and obligations of the respective Assignors under the Revolving Commitments (including any
letters of credit or swingline loans included therein) and (b) to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any other right of each
Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under
or in connection with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on or related to any of the
foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all
other claims at law or in equity related to the rights and obligations sold and assigned pursuant
to clause (a) above (the rights and obligations of any Lender sold and assigned pursuant to
clauses (a) and (b) above being referred to herein collectively as such Lender’s “Assigned
Interest” and together, the “Assigned Interests”). Such sale and assignment is without
recourse to any Assignor and, except as expressly provided in this Section One and in the Standard
Terms, without representation or warranty by any Assignor. Additionally, each Assignee hereby
agrees that, (a) by becoming an Assignee, it has consented to the Amendments set forth in Section
Two hereof and (b) it shall be deemed, upon effectiveness of this Fourth Amendment, to have
converted all of its (i) Revolving Commitments to Extended Revolving Commitments and (ii) its
outstanding Revolving Loans to Extended Revolving Loans.
SECTION TWO. Amendments.
(a) The following definitions are hereby added to Section 1.01 of the Credit Agreement in
alphabetical order:
“Amendment No. 4” means Amendment No. 4 to this Agreement, dated as of June 7,
2010, among Holdings, the Borrower, the Loan Parties, the Administrative Agent, the Issuing
Bank and certain Lenders.
“Amendment No. 4 Effective Date” means June 7, 2010.
“Amendment No. 4-A” means Amendment No. 4-A to this Agreement, dated as of June
7, 2010, among Holdings, the Borrower, the Loan Parties, the Administrative Agent and
certain Lenders.
“Defaulting Lender” means any Extended Revolving Lender, as reasonably
determined by the Administrative Agent, that has (a) failed to fund any portion of its Loans
or participations in Letters of Credit or Swingline Loans within three Business Days of the
date required to be funded by it hereunder, (b) notified the Borrower, the Administrative
Agent, the Issuing Bank, the Swingline Lender or any Lender in writing that it does not
intend to comply with any of its funding obligations under this Agreement or has made a
public statement that it does not intend to comply with its funding obligations under this
Agreement or under other agreements in which it has committed to extend credit, (c) failed,
within five Business Days after written request by the Administrative Agent, to confirm that
it will comply with the terms of this Agreement relating to its obligations to fund
prospective Loans and participations in then outstanding Letters of Credit and Swingline
Loans; provided that any such Extended Revolving Lender shall cease to be a
Defaulting Lender under this clause (c) upon receipt of such confirmation by the
Administrative Agent, (d) otherwise failed to pay over to the Administrative Agent or any
other Lender any other amount required to be paid by it hereunder within five Business Days
of the date when due, unless the subject of a good faith dispute or (e)(i) become or is
insolvent or has a parent company that has become or is insolvent or (ii) become the subject
of a bankruptcy or insolvency proceeding, or has had a receiver,
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conservator, trustee, administrator, assignee for the benefit of creditors or similar
Person charged with reorganization or liquidation of its business or custodian, appointed
for it, or indicating its consent to, approval of or acquiescence in any such proceeding or
appointment or has a parent company that has become the subject of a bankruptcy or
insolvency proceeding, or has had a receiver, conservator, trustee, administrator, assignee
for the benefit of creditors or similar Person charged with reorganization or liquidation of
its business or custodian appointed for it, or indicating its consent to, approval of or
acquiescence in any such proceeding or appointment; provided that a Lender shall not be a
Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in
such Lender or a parent company thereof by a Government Authority or an instrumentality
thereof.
“Extended Revolving Availability Period” means the period from and including
the Amendment No. 4 Effective Date to but excluding the earlier of (a) the Extended
Revolving Maturity Date and (b) the date of termination of the Extended Revolving
Commitments.
“Extended Revolving Commitment” means, with respect to each Lender, the
commitment, if any, of such Lender to make Extended Revolving Loans and to acquire
participations in Letters of Credit and Swingline Loans hereunder on or after the Amendment
No. 4 Effective Date, expressed as an amount representing the maximum possible aggregate
amount of such Lender’s Extended Revolving Exposure hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.08 and (b) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to Section 9.04. The aggregate
amount of the Lenders’ Extended Revolving Commitments on the Amendment No. 4 Effective Date
is set forth on Schedule 2.01.
“Extended Revolving Exposure” means, with respect to any Lender at any time,
the sum of the outstanding principal amount of such Lender’s Extended Revolving Loans and
its LC Exposure and Swingline Exposure at such time.
“Extended Revolving Lender” means a Lender with an Extended Revolving
Commitment or, if the Extended Revolving Commitments have terminated or expired, a Lender
with Extended Revolving Exposure.
“Extended Revolving Loan” means a Loan made pursuant to clause (c) of
Section 2.01.
“Extended Revolving Maturity Date” means August 22, 2013.
“Revolving Commitment Extension Request” means, with respect to each Lender,
the agreement, if any, of such Lender to extend the maturity of a Revolving Commitment
hereunder on the Amendment No. 4 Effective Date, expressed as an amount representing the
maximum principal amount of the Revolving Commitment that will become an Extended Revolving
Commitment of such Lender hereunder, as such agreement may be modified to the extent the
underlying Revolving Commitment may be reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.04. The aggregate amount of the
Lenders’ Revolving Commitments that have become Extended Revolving Commitments on the
Amendment No. 4 Effective Date is set forth on Schedule 2.01.
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(b) The following definitions are hereby inserted in Section 1.01 of the Credit Agreement in
replacement of the existing corresponding definitions:
“Applicable Percentage” means, with respect to any Revolving Lender or Extended
Revolving Lender, the percentage of the aggregate Revolving Commitments or Extended
Revolving Commitments represented by such Lender’s Revolving Commitment or Extended
Revolving Commitment, as applicable; provided that in the case of Section 2.21 when
a Defaulting Lender shall exist, “Applicable Percentage” shall mean, with respect to any
Extended Revolving Lender, the percentage of the total Extended Revolving Commitments
(disregarding any Defaulting Lender’s Extended Revolving Commitment) represented by such
Extended Revolving Lender’s Extended Revolving Commitment. If the Revolving Commitments or
Extended Revolving Commitments have terminated or expired, the Applicable Percentage of the
Revolving Commitment or Extended Revolving Commitment shall be determined based upon the
Revolving Commitments or Extended Revolving Commitments, as applicable, most recently in
effect, giving effect to any assignments that occur thereafter and to any Extended Revolving
Lender’s status as a Defaulting Lender at the time of determination.
“Applicable Rate” means, for any day with respect to (a) any ABR Loan or
Eurodollar Loan that is a Revolving Loan or (b) the commitment fees payable hereunder in
respect of the Revolving Commitments, as applicable, the applicable rate per annum set forth
below under the caption “Revolving Loan ABR Spread”, “Revolving Loan Eurodollar Spread” or
“Commitment Fee Rate”, as applicable, in each case, based upon the Leverage Ratio as of the
most recent determination date:
| Revolving | ||||||
| Revolving | Loan | |||||
| Loan ABR | Eurodollar | Commitment | ||||
| Leverage Ratio | Spread | Spread | Fee Rate | |||
| Category 1 > 4.50x |
1.50% | 2.50% | 0.50% | |||
| Category 2 > 4.00x and < 4.50x |
1.25% | 2.25% | 0.50% | |||
| Category 3 > 3.50x and < 4.00x |
1.00% | 2.00% | 0.375% | |||
| Category 4 > 3.00x and < 3.50x |
0.75% | 1.75% | 0.375% | |||
| Category 5 < 3.00x |
0.50% | 1.50% | 0.375% |
The Applicable Rate for Tranche B Term Loans shall at all times be 2.00% per annum for
Eurodollar Loans and 1.00% per annum for ABR Loans. The Applicable Rate for Tranche B-1
Term Loans shall at all times be 3.75% per annum for Eurodollar Loans and 2.75% per annum
for ABR Loans.
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The Applicable Rate, for any day with respect to (a) any ABR Loan or Eurodollar Loan
that is an Extended Revolving Loan or (b) the commitment fees payable hereunder in respect
of the Extended Revolving Commitments, as applicable, the applicable rate per annum
set forth below under the caption “Extended Revolving Loan ABR Spread”, “Extended
Revolving Loan Eurodollar Spread” or “Extended Revolving Loan Commitment Fee Rate”, as
applicable, in each case, based upon the Leverage Ratio as of the most recent determination
date:
| Extended | ||||||
| Extended | Revolving | Extended | ||||
| Revolving | Loan | Revolving Loan | ||||
| Loan ABR | Eurodollar | Commitment | ||||
| Leverage Ratio | Spread | Spread | Fee Rate | |||
| Category 1 > 3.50x |
3.00% | 4.00% | 0.75% | |||
| Category 2 > 3.00x and < 3.50x |
2.75% | 3.75% | 0.50% | |||
| Category 3 > 2.50x and < 3.00x |
2.50% | 3.50% | 0.50% | |||
| Category 5 < 2.50x |
2.00% | 3.00% | 0.375% |
For purposes of the foregoing, (a) the Leverage Ratio shall be determined on a Pro
Forma Basis as of the end of each fiscal quarter of the Borrower based upon the Borrower’s
consolidated financial statements delivered pursuant to Section 5.01(a) or (b), and (b) each
change in the Applicable Rate resulting from a change in the Leverage Ratio shall be
effective during the period commencing on and including the date of delivery to the
Administrative Agent of such consolidated financial statements indicating such change and
ending on the date immediately preceding the effective date of the next such change,
provided that the Leverage Ratio, for purposes of determining the Applicable Rate,
shall be deemed to be in Category 1 (i) at any time that an Event of Default has occurred
and is continuing or (ii) at the option of the Administrative Agent or at the request of the
Required Lenders if the Borrower fails to deliver the consolidated financial statements
required to be delivered by it pursuant to Section 5.01(a) or (b), during the period from
the expiration of the time for delivery thereof until such consolidated financial statements
are delivered.
“Class,” when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are Revolving Loans, Extended Revolving
Loans, Tranche B Term Loans, Tranche B-1 Term Loans or Swingline Loans and, when used in
reference to any Commitment, refers to whether such Commitment is a Revolving Commitment, an
Extended Revolving Commitment or a Tranche B Commitment.
“Commitment” means a Revolving Commitment, an Extended Revolving Commitment, a
Tranche B Commitment, any Commitment in respect of an Incremental Extension of Credit or any
combination thereof (as the context requires).
“Interest Election Request” means a request by the Borrower to convert or
continue a Revolving Borrowing, an Extended Revolving Borrowing, a Tranche B Term Loan
Borrowing or a Tranche B-1 Term Loan Borrowing in accordance with Section 2.07,
provided that a written Interest Election Request shall be substantially in the form of Exhibit F,
or such other form as shall be approved by the Administrative Agent.
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“Interest Period” means, with respect to any Eurodollar Borrowing, (x) with
respect to Revolving Loans, Extended Revolving Loans and Tranche B Term Loans, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in
the calendar month that is one, two, three or six months thereafter (or nine or twelve
months thereafter if, at the time of the relevant Borrowing, all Lenders participating
therein agree to make an interest period of such duration available) and (y) with respect to
Tranche B-1 Term Loans, (i) the period commencing on the Amendment No. 3 Effective Date and
ending on August 24, 2009 and (ii) from and after August 24, 2009, the period commencing on
the date of such Borrowing and ending on the numerically corresponding day in the calendar
month that is three or six months thereafter (or nine or twelve months thereafter if, at the
time of the relevant Borrowing, all Lenders participating therein agree to make an interest
period of such duration available), in each case as the Borrower may elect, provided
that (a) if any Interest Period would end on a day other than 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 (b) any Interest Period that commences on the
last Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period) shall end on the last
Business Day of the last calendar month of such Interest Period. For purposes hereof, the
date of a Borrowing initially shall be the date on which such Borrowing is made and
thereafter shall be the effective date of the most recent conversion or continuation of such
Borrowing.
“LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount
of all outstanding Letters of Credit at such time plus (b) the aggregate amount of
all LC Disbursements that have not yet been reimbursed by or on behalf of the Borrower at
such time. The LC Exposure of any Extended Revolving Lender at any time shall be its
Applicable Percentage of the aggregate LC Exposure at such time.
“Permitted Acquisitions” means any acquisition by the Borrower or any
Subsidiary Loan Party at least 80% of all outstanding Equity Interests (other than
directors’ qualifying shares or shares issued to foreign nationals to the extent required by
applicable law) in, all or substantially all the assets of, or all or substantially all the
assets constituting a division or line of business of, a Person if (a) such acquisition was
not preceded by, or consummated pursuant to, a hostile offer (including a proxy contest),
(b) no Default has occurred and is continuing or would result therefrom, (c) after giving
effect to such acquisition, the Borrower and the Subsidiary Loan Party shall have aggregate
unused and available Revolving Commitments, Extended Revolving Commitments and unrestricted
cash and Permitted Investments of not less than $40,000,000, (d) after giving effect to such
acquisition, the aggregate Consolidated Tangible Assets acquired in all Permitted
Acquisitions consummated since the Effective Date (excluding acquisitions resulting in a
newly formed Domestic Subsidiary or otherwise related to assets substantially located in the
United States of America) does not exceed 5% of Consolidated Tangible Assets, (e) such
acquisition and all transactions related thereto are consummated in accordance in all
material respects with all applicable laws, (f) all actions required to be taken with
respect to such acquired or newly formed Subsidiary (if a Domestic Subsidiary) or assets (if
held by a Domestic Subsidiary) to cause such Person to become a Loan Party under Sections
5.12 and 5.13 shall have been taken (or shall be taken promptly thereafter), (g)
the Borrower and the Subsidiaries are in compliance on a Pro Forma Basis with the
Financial Performance Covenants recomputed as of the last day of the most recently ended
fiscal quarter of the Borrower for which financial statements are available, and (h) the
Borrower has delivered to the Administrative Agent an officer’s certificate to the effect
set forth in clauses (a), (b), (c), (d), (e), (f) and (g) above, together with all relevant
financial information for the Person or assets to be acquired.
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“Required Lenders” means, at any time, Lenders having Revolving Exposures,
Extended Revolving Exposures, Tranche B Term Loans, Tranche B-1 Term Loans, Loans in respect
of Incremental Extensions of Credit, if any, and unused Commitments representing more than
50% of the aggregate Revolving Exposures, Extended Revolving Exposures, outstanding Tranche
B Term Loans, outstanding Tranche B-1 Term Loans, outstanding Loans in respect of
Incremental Extensions of Credit, if any, and unused Commitments at such time.
“Revolving Commitment” means, with respect to each Lender, the commitment, if
any, of such Lender to make Revolving Loans hereunder, expressed as an amount representing
the maximum possible aggregate amount of such Lender’s Revolving Exposure hereunder, as such
commitment may be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender pursuant to Section
9.04. The aggregate amount of the Lenders’ Revolving Commitments on the Amendment No. 4
Effective Date is set forth on Schedule 2.01.
“Revolving Exposure” means, with respect to any Lender at any time, the sum of
the outstanding principal amount of such Lender’s Revolving Loans at such time.
“Supermajority Lenders” means Lenders having Revolving Exposures, Extended
Revolving Exposures, Tranche B Term Loans, Tranche B-1 Term Loans, Loans in respect of
Incremental Extensions of Credit, if any, and unused Commitments representing more than 75%
of the aggregate Revolving Exposures, Extended Revolving Exposures, outstanding Tranche B
Term Loans, outstanding Tranche B-1 Term Loans, outstanding Loans in respect of Incremental
Extensions of Credit, if any, and unused Commitments at such time.
(c) In the definition of “Excess Cash Flow” in Section 1.01 of the Credit Agreement, the words
”, Extended Revolving Loans” are hereby added to clause (f)(i) after the words “Revolving Loans”
and the words “or Extended Revolving Commitments, as applicable” are hereby added to the
parenthetical in clause (f)(i) after the words “Revolving Commitments.”
(d) Section 2.01 of the Credit Agreement is hereby deleted in its entirety and replaced with
the following:
“SECTION 2.01. Commitments and Extension Requests. Subject to the terms and
conditions set forth herein, each Lender agrees (a) to make a Tranche B Term Loan to the
Borrower on the Effective Date in a principal amount not exceeding its Tranche B Commitment,
(b) to make Revolving Loans to the Borrower from time to time during the Revolving
Availability Period in an aggregate principal amount that will not result in such Lender’s
Revolving Exposure exceeding such Lender’s Revolving Commitment and (c) to make Extended
Revolving Loans to the Borrower from time to time during the Extended Revolving Availability
Period in an aggregate principal amount that will not result in such Lender’s Extended
Revolving Exposure exceeding such Lender’s Extended Revolving Commitment. Subject to the
terms
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and conditions set forth herein, each Lender agrees to extend the maturity of a Tranche
B Term Loan on the Amendment No. 3 Effective Date and thereby convert such Tranche B Term
Loans to Tranche B-1 Term Loans in a principal amount not exceeding its Tranche B-1
Extension Request. The Borrower shall designate in the relevant Borrowing Request whether
each Borrowing of Tranche B-1 Term Loans will be maintained as a Eurodollar Loan or an ABR
Loan and, if such Borrowing is to be a Eurodollar Borrowing, the Interest Period with
respect thereto. No amounts shall be payable under Section 2.16 as a result of the
conversion of Tranche B Term Loans as required by this Section 2.01. Within the foregoing
limits and subject to the terms and conditions set forth herein, the Borrower may borrow,
prepay and reborrow Revolving Loans and Extended Revolving Loans. Amounts repaid or prepaid
in respect of Tranche B Term Loans or Tranche B-1 Term Loans may not be reborrowed.”
(e) Schedule 2.01 of the Credit Agreement is hereby deleted in its entirety and
replaced with the schedule set forth on Exhibit A to this Fourth Amendment.
(f) Section 2.02(b) of the Credit Agreement is hereby amended by deleting the first sentence
thereof and replacing it with the following:
“Subject to Section 2.14, each Revolving Borrowing, Extended Revolving
Borrowing, Tranche B Term Loan Borrowing and Tranche B-1 Term Loan Borrowing shall
be comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request
in accordance herewith, provided that all Borrowings made on the Effective
Date must be made as ABR Borrowings.”
(g) Section 2.02(c) of the Credit Agreement is hereby amended by deleting the last sentence
thereof and replacing it with the following:
“Notwithstanding anything to the contrary herein, (1) an ABR Revolving
Borrowing may be in an aggregate amount that is equal to the entire unused balance
of the aggregate Revolving Commitments, (2) an ABR Extended Revolving Borrowing may
be in an aggregate amount that is equal to the entire unused balance of the
aggregate Extended Revolving Commitments and (3) subject to Section 2.04(a), a
Swingline Loan may be in an aggregate amount (i) that is equal to the entire unused
balance of the aggregate Extended Revolving Commitments or (ii) that is required to
finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(e).”
(h) Section 2.02(d) of the Credit Agreement is hereby deleted in its entirety and replaced
with the following:
“(d) Notwithstanding any other provision of this Agreement, the Borrower shall
not be entitled to request, or to elect to convert or continue, any Borrowing if the
Interest Period requested with respect thereto would end after the Revolving
Maturity Date, the Extended Revolving Maturity Date, the Tranche B Maturity Date or
the Tranche B-1 Maturity Date, as applicable.”
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(i) Section 2.03 of the Credit Agreement is hereby deleted in its entirety and replaced with
the following:
“SECTION 2.03. Requests for Borrowings. To request a Revolving Borrowing,
Extended Revolving Borrowing or Tranche B Term Loan Borrowing, the Borrower shall notify the
Administrative Agent of such request by telephone (a) in the case of a Eurodollar Borrowing,
not later than 12:00 noon, New York City time, three Business Days before the date of the
proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 12:00 noon, New
York City time, one Business Day before the date of the proposed Borrowing, provided
that any such notice of an ABR Extended Revolving Borrowing to finance the reimbursement of
an LC Disbursement as contemplated by Section 2.05(e) may be given not later than 10:00
a.m., New York City time, on the date of the proposed Borrowing. Each such telephonic
Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Borrowing Request signed by the Borrower.
Each such telephonic and written Borrowing Request shall specify the following information
in compliance with Section 2.02:
(1) whether the requested Borrowing is to be a Revolving Borrowing, Extended Revolving
Borrowing or a Tranche B Term Loan Borrowing;
(2) the aggregate amount of such Borrowing;
(3) the date of such Borrowing, which shall be a Business Day;
(4) whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;
(5) in the case of a Eurodollar Borrowing, the initial Interest Period to be applicable
thereto, which shall be a period contemplated by the definition of the term “Interest
Period”; and
(6) the location and number of the Borrower’s account to which funds are to be
disbursed, which shall comply with the requirements of Section 2.06.
Until the Revolving Maturity Date, each requested Revolving Borrowing and Extended Revolving
Borrowing (other than any Swingline Loan Borrowing) shall be allocated ratably among the
combined amount of outstanding Revolving Commitments and Extended Revolving Commitments,
taken as a whole.
If no election as to the Type of Borrowing is specified, then the requested Borrowing shall
be an ABR Borrowing. If no Interest Period is specified with respect to any requested
Eurodollar Borrowing, then the Borrower shall be deemed to have selected an Interest Period
of one month’s duration. Promptly following receipt of a Borrowing Request in accordance
with this Section 2.03, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender’s Loan to be made as part of the requested
Borrowing.”
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(j) Section 2.04 of the Credit Agreement is hereby deleted in its entirety and replaced with
the following:
“SECTION 2.04. Swingline Loans.
(a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees
to make Swingline Loans to the Borrower from time to time during the Extended Revolving
Availability Period, in an aggregate principal amount at any time outstanding that will not
result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding
$15,000,000 or (ii) the aggregate Extended Revolving Exposures exceeding the aggregate
Extended Revolving Commitments, provided that the Swingline Lender shall not be
required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the
foregoing limits and subject to the terms and conditions set forth herein, the Borrower may
borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of
such request by telephone (confirmed by telecopy), not later than 2:00 p.m., New York City
time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and
shall specify the requested date (which shall be a Business Day) and amount of the requested
Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any
such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan
available to the Borrower by means of a credit to the general deposit account of the
Borrower maintained with the Swingline Lender (or, in the case of a Swingline Loan made to
finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by
remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of
such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not
later than 12:00 noon, New York City time, on any Business Day require the Extended
Revolving Lenders to acquire participations on such Business Day in all or a portion of the
Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline
Loans in which Extended Revolving Lenders will participate. Promptly upon receipt of such
notice, the Administrative Agent will give notice thereof to each Extended Revolving Lender,
specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or
Swingline Loans. Each Extended Revolving Lender hereby absolutely and unconditionally
agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for
the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline
Loan or Swingline Loans. Each Extended Revolving Lender acknowledges and agrees that its
obligation to acquire participations in Swingline Loans pursuant to this paragraph is
absolute and unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or reduction or termination of the
Extended Revolving Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever. Each Extended Revolving Lender shall comply
with its obligation under this paragraph by wire transfer of immediately available funds, in
the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and
Section 2.06 shall apply, mutatis mutandis, to the payment obligations of
the Extended Revolving Lenders), and the Administrative Agent shall promptly pay to the
Swingline Lender the amounts so received by it from the Extended Revolving Lenders. The
Administrative Agent shall notify the Borrower of any participations in any Swingline Loan
acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline
Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts
received by the Swingline Lender from the Borrower (or other party on behalf of the
Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the
proceeds of a sale of participations therein shall be promptly remitted to the
Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative
Agent to the Extended Revolving Lenders that shall have made their payments pursuant to this
paragraph and to the Swingline Lender, as their interests may appear, provided that
any such payment so remitted shall be repaid to the Swingline Lender or to the
Administrative Agent, as applicable, if and to the extent such payment is required to be
refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan
pursuant to this paragraph shall not relieve the Borrower of any default in the payment
thereof.”
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(k) Section 2.05 of the Credit Agreement is hereby deleted in its entirety and replaced with
the following:
“SECTION 2.05. Letters of Credit.
(a) General. Upon satisfaction of the conditions specified in Section 4.01 on
the Effective Date, each Existing Letter of Credit will, automatically and without any
action on the part of any Person, be deemed to be a Letter of Credit issued hereunder for
all purposes of this Agreement and the other Loan Documents. On and after the Amendment No.
4 Effective Date, each Letter of Credit then outstanding will, automatically and without any
action on the part of any Person, be deemed to be a Letter of Credit issued under the
Extended Revolving Commitments hereunder for all purposes of this Agreement and the other
Loan Documents. In addition, subject to the terms and conditions set forth herein, the
Borrower may request the issuance of additional Letters of Credit for its own account (or
for the account of any of its subsidiaries so long as the Borrower is a co-applicant), in a
form reasonably acceptable to the Administrative Agent and the Issuing Bank, at any time and
from time to time during the Extended Revolving Availability Period. In the event of any
inconsistency between the terms and conditions of this Agreement and the terms and
conditions of any form of letter of credit application or other agreement submitted by the
Borrower to, or entered into by the Borrower with, the Issuing Bank relating to any Letter
of Credit, the terms and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To
request the issuance of a Letter of Credit (or the amendment, renewal or extension of an
outstanding Letter of Credit), the Borrower shall hand deliver or telecopy (or transmit by
electronic communication, if arrangements for doing so have been approved by the Issuing
Bank) to the Issuing Bank (except that the Issuing Bank in respect of Existing Letters of
Credit shall not issue additional Letters of Credit and shall not be required to renew or
extend an Existing Letter of Credit unless agreed by it) and the Administrative Agent
(reasonably in advance of the requested date of issuance, amendment, renewal or extension) a
notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to
be amended, renewed or extended, and specifying the date of issuance, amendment, renewal or
extension (which shall be a Business Day), the date on which such Letter of Credit is to
expire (which shall comply with paragraph (c) of this Section 2.05), the amount of such
Letter of Credit, the name and address of the beneficiary thereof and such other information
as shall be necessary to prepare, amend, renew or extend such Letter of Credit. If
requested by the Issuing Bank, the Borrower also shall submit a letter of credit application
on the Issuing Bank’s standard form in connection with any request for a Letter of Credit.
A Letter of Credit shall be issued, amended, renewed or extended only if (and upon issuance,
amendment, renewal or extension of each Letter of Credit the Borrower shall be deemed to
represent and warrant that), after giving effect to such issuance, amendment, renewal or
extension, (i) the LC Exposure shall not exceed $50,000,000
and (ii) the aggregate Extended Revolving Exposures shall not exceed the aggregate
Extended Revolving Commitments.
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(c) Expiration Date. Each Letter of Credit shall expire at or prior to the
close of business on the earlier of (i) the date that is one year after the date of the
issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, one
year after such renewal or extension) and (ii) the date that is five Business Days prior to
the Extended Revolving Maturity Date.
(d) Participations. (i) With respect to each Letter of Credit outstanding on
the Amendment No. 4 Effective Date and (ii) by the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any further
action on the part of the Issuing Bank or the Lenders, the Issuing Bank hereby grants to
each Extended Revolving Lender, and each Extended Revolving Lender hereby acquires from the
Issuing Bank, a participation in any such Letter of Credit equal to such Lender’s Applicable
Percentage of the aggregate amount available to be drawn under any such Letter of Credit.
In consideration and in furtherance of the foregoing, each Extended Revolving Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of
the Issuing Bank, such Extended Revolving Lender’s Applicable Percentage of each LC
Disbursement made by the Issuing Bank and not reimbursed by the Borrower on the date due as
provided in paragraph (e) of this Section 2.05, or of any reimbursement payment required to
be refunded to the Borrower for any reason. Each Extended Revolving Lender acknowledges and
agrees that its obligation to assume and acquire participations pursuant to this paragraph
in respect of Letters of Credit is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or termination of the
Commitments, and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. For the avoidance of doubt, after the Amendment No. 4
Effective Date no Revolving Lender shall be considered to hold a participation pursuant to
this paragraph in respect of any Letter of Credit.
(e) Reimbursement. If the Issuing Bank shall make any LC Disbursement in
respect of a Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying
to the Administrative Agent an amount equal to such LC Disbursement not later than 12:00
noon, New York City time, on (i) the date that such LC Disbursement is made, if the Borrower
shall have received notice of such LC Disbursement prior to 10:00 a.m., New York City time,
on such date, or, if such notice has not been received by the Borrower prior to such time on
such date, then not later than 12:00 noon, New York City time, on the Business Day that the
Borrower receives such notice, if such notice is received prior to 10:00 a.m., New York City
time, on the day of receipt, or (ii) the Business Day immediately following the day that the
Borrower receives such notice, if such notice is not received prior to such time on the day
of receipt; provided that, if such LC Disbursement is not less than $2,000,000, the
Borrower may, subject to the conditions to borrowing set forth herein, request (and, if the
Borrower fails to reimburse such LC Disbursement when due, the Borrower shall be deemed to
have requested) in accordance with Section 2.03 or 2.04 that such LC Disbursement be
financed with an ABR Extended Revolving Borrowing or Swingline Loan in an equivalent amount
and, to the extent so financed, the Borrower’s obligation to make such payment shall be
discharged and replaced by the resulting ABR Extended Revolving Borrowing or Swingline Loan
(and the time for reimbursement of such LC Disbursement shall automatically be extended to
the Business Day following such request or
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deemed request). If the Borrower fails to make
such payment when due, the Administrative Agent shall notify each Extended Revolving Lender
of the applicable LC Disbursement, the payment then due from the Borrower in respect thereof
and such Extended Revolving Lender’s Applicable Percentage thereof. Promptly following
receipt of such notice, each Extended Revolving Lender shall pay to the Administrative Agent
its Applicable Percentage of the payment then due from the Borrower, in the same manner as
provided in Section 2.06 with respect to Loans made by such Extended Revolving Lender (and
Section 2.06 shall apply, mutatis mutandis, to the payment obligations of
the Extended Revolving Lenders), and the Administrative Agent shall promptly pay to the
Issuing Bank the amounts so received by it from the Extended Revolving Lenders. Promptly
following receipt by the Administrative Agent of any payment from the Borrower pursuant to
this paragraph, the Administrative Agent shall distribute such payment to the Issuing Bank
or, to the extent that Extended Revolving Lenders have made payments pursuant to this
paragraph to reimburse the Issuing Bank, then to such Extended Revolving Lenders and the
Issuing Bank as their interests may appear. Any payment made by an Extended Revolving
Lender pursuant to this paragraph to reimburse the Issuing Bank for any LC Disbursement
(other than the funding of ABR Extended Revolving Loans or a Swingline Loan as contemplated
above) shall not constitute a Loan and shall not relieve the Borrower of its obligation to
reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower’s obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section 2.05 shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance with the terms
of this Agreement under any and all circumstances whatsoever and irrespective of (i) any
lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or
provision therein, (ii) any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent or invalid in any respect or any statement therein being
untrue or inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply with the terms
of such Letter of Credit, or (iv) any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions of this Section 2.05,
constitute a legal or equitable discharge of, or provide a right of setoff against, the
Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor the
Issuing Bank, nor any of their Related Parties, shall have any liability or responsibility
by reason of or in connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of the circumstances
referred to in the preceding sentence), or any error, omission, interruption, loss or delay
in transmission or delivery of any draft, notice or other communication under or relating to
any Letter of Credit (including any document required to make a drawing thereunder), any
error in interpretation of technical terms or any consequence arising from causes beyond the
control of the Issuing Bank, provided that the foregoing shall not be construed to
excuse the Issuing Bank from liability to the Borrower to the extent of any direct damages
(as opposed to consequential or punitive damages, claims in respect of which are hereby
waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower
that are caused by the Issuing Bank’s failure to exercise care when determining whether
drafts and other documents presented under a Letter of Credit comply with the terms thereof.
The parties hereto expressly agree that, in the absence of gross negligence or willful
misconduct on the part of the Issuing Bank (as finally determined by a court of competent
jurisdiction), the Issuing Bank shall be deemed to have exercised care in each such
determination. In furtherance of the foregoing and without limiting the generality thereof,
the parties agree that, with respect to documents presented that appear on their face to be in substantial
compliance with the terms of a Letter of Credit, the Issuing Bank may, in its sole
discretion, either accept and make payment upon such documents without responsibility for
further investigation, regardless of any notice or information to the contrary, or refuse to
accept and make payment upon such documents if such documents are not in strict compliance
with the terms of such Letter of Credit.
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(g) Disbursement Procedures. The Issuing Bank shall, promptly following its
receipt thereof, examine all documents purporting to represent a demand for payment under a
Letter of Credit. The Issuing Bank shall promptly notify the Administrative Agent and the
Borrower by telephone (confirmed by telecopy) of such demand for payment and whether the
Issuing Bank has made or will make an LC Disbursement thereunder, provided that any
failure to give or delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse the Issuing Bank and the Extended Revolving Lenders with respect to
any such LC Disbursement in accordance with paragraph (e) of this Section 2.05.
(h) Interim Interest. If the Issuing Bank shall make any LC Disbursement,
then, unless the Borrower shall reimburse such LC Disbursement in full on the date such LC
Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and
including the date such LC Disbursement is made to but excluding the date that the Borrower
reimburses such LC Disbursement, at the rate per annum then applicable to ABR Extended
Revolving Loans, provided that, if the Borrower fails to reimburse such LC
Disbursement when due pursuant to paragraph (e) of this Section 2.05, then Section 2.13(c)
shall apply. Interest accrued pursuant to this paragraph shall be for the account of the
Issuing Bank, except that interest accrued on and after the date of payment by any Extended
Revolving Lender pursuant to paragraph (e) of this Section 2.05 to reimburse the Issuing
Bank shall be for the account of such Extended Revolving Lender to the extent of such
payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may be replaced at any
time by written agreement among the Borrower, the Administrative Agent and the successor
Issuing Bank. The Administrative Agent shall notify the Lenders of any such replacement of
the Issuing Bank. At the time any such replacement shall become effective, the Borrower
shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to
Section 2.12(b). From and after the effective date of any such replacement, (i) the
successor Issuing Bank shall have all the rights and obligations of the Issuing Bank under
this Agreement with respect to Letters of Credit to be issued thereafter and (ii) references
herein to the term “Issuing Bank” shall be deemed to refer to such successor or to any
previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context
shall require. After the replacement of the Issuing Bank hereunder, the replaced Issuing
Bank shall remain a party hereto and shall continue to have all the rights and obligations
of the Issuing Bank under this Agreement with respect to Letters of Credit issued by it
prior to such replacement, but shall not be required to issue additional Letters of Credit.
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(j) Cash Collateralization. If any Event of Default shall occur and be
continuing, on the Business Day that the Borrower receives notice from the Administrative
Agent or the Required Lenders (or, if the maturity of the Loans has been accelerated,
Extended Revolving Lenders with LC Exposure representing greater than 50% of the aggregate
LC Exposure) demanding the deposit of cash collateral pursuant to this paragraph, the
Borrower shall deposit in an account with the Collateral Agent, in the name of the
Collateral Agent and for the benefit of the Lenders, an amount in cash equal to 105% the LC Exposure as of such date
plus any accrued and unpaid interest thereon, provided that the obligation
to deposit such cash collateral shall become effective immediately, and such deposit shall
become immediately due and payable, without demand or other notice of any kind, upon the
occurrence of any Event of Default with respect to the Borrower described in paragraph (h)
or (i) of Section 7.01. The Borrower also shall deposit cash collateral pursuant to this
paragraph as and to the extent required by Section 2.11(b). Each such deposit shall be held
by the Collateral Agent as collateral for the payment and performance of the obligations of
the Borrower under this Agreement. The Collateral Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal, over such account. Other than any
interest earned on the investment of such deposits, which investments shall be made at the
option and sole discretion of the Administrative Agent and at the Borrower’s risk and
expense, such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall be applied by
the Administrative Agent to reimburse the Issuing Bank for LC Disbursements for which it has
not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of
the reimbursement obligations of the Borrower for the LC Exposure at such time or, if the
maturity of the Loans has been accelerated (but subject to the consent of Extended Revolving
Lenders with LC Exposure representing greater than 50% of the aggregate LC Exposure), be
applied to satisfy other obligations of the Borrower under this Agreement. If the Borrower
is required to provide an amount of cash collateral hereunder as a result of the occurrence
of an Event of Default, such amount (to the extent not applied as aforesaid) shall be
returned to the Borrower within three Business Days after all Events of Default have been
cured or waived.
(k) Additional Issuing Banks. The Borrower may at any time, and from time to
time, designate one or more additional Lenders to act as an issuing bank under this
Agreement with the consent of the Administrative Agent (which consent shall not be
unreasonably withheld) and such Lender. Any Lender designated as an issuing bank pursuant
to this Section 2.05(k) shall be deemed to be and shall have all the rights and obligations
of an “Issuing Bank” hereunder.”
(l) Section 2.06(a) of the Credit Agreement is hereby amended by deleting the last sentence
thereof and replacing it with the following:
“The Administrative Agent will make such Loans available to the Borrower by promptly
crediting the amounts so received in like funds, to an account of the Borrower maintained
with the Administrative Agent in New York City and designated by the Borrower in the
applicable Borrowing Request, provided that ABR Extended Revolving Loans made to
finance the reimbursement of an LC Disbursement as provided in Section 2.05(e) shall be
remitted by the Administrative Agent to the Issuing Bank.”
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(m) Section 2.07 of the Credit Agreement is hereby deleted in its entirety and replaced with
the following:
“SECTION 2.07. Interest Elections.
(a) Each Revolving Borrowing, Extended Revolving Borrowing and Tranche B Term Loan
Borrowing initially shall be of the Type specified in the applicable Borrowing Request and,
in the case of a Eurodollar Borrowing, shall have an initial Interest Period as specified in such Borrowing Request or as designated by Section 2.03. Thereafter, the
Borrower may elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest Periods therefor,
all as provided in this Section 2.07. The Borrower may elect different options with respect
to different portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the
Loans comprising each such portion shall be considered a separate Borrowing. This Section
2.07 shall not apply to Swingline Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section 2.07, the Borrower shall notify the
Administrative Agent of such election by telephone by the time that a Borrowing Request
would be required under Section 2.03 if the Borrower were requesting a Revolving Borrowing
or Extended Revolving Borrowing of the Type resulting from such election to be made on the
effective date of such election. Each such telephonic Interest Election Request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Interest Election Request signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and,
if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing
(in which case the information to be specified pursuant to clauses (iii) and
(iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest
Period to be applicable thereto after giving effect to such election, which
shall be a period contemplated by the definition of the term “Interest
Period”.
If any such Interest Election Request requests a Eurodollar Borrowing but does not specify
an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of
one month’s duration.
(d) Promptly following receipt of an Interest Election Request, the Administrative
Agent shall advise each Lender of the details thereof and of such Lender’s portion of each
resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election Request with respect to
a Eurodollar Borrowing prior to the end of the Interest Period applicable thereto, then,
unless such Borrowing is repaid as provided herein, at the end of such Interest Period such
Borrowing shall be converted to an ABR Borrowing.
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(f) Notwithstanding any contrary provision hereof, if an Event of Default has occurred
and is continuing and the Administrative Agent, at the request of the Required Lenders, so
notifies the Borrower, then, so long as an Event of Default is continuing, (i) no
outstanding Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii)
unless repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end
of the Interest Period applicable thereto.”
(n) Section 2.08 of the Credit Agreement is hereby deleted in its entirety and replaced with
the following:
“SECTION 2.08. Termination and Reduction of Commitments.
(a) Unless previously terminated, (i) the Tranche B Commitments shall terminate at 5:00
p.m., New York City time, on the Effective Date1, (ii) the Tranche B-1 Extension
Requests shall terminate at 5:00 p.m., New York City time, on the Amendment No. 3 Effective
Date2, (iii) the Revolving Commitments shall terminate on the Revolving Maturity
Date and (iv) the Extended Revolving Commitments shall terminate on the Extended Revolving
Maturity Date.
(b) The Borrower may at any time terminate, or from time to time reduce, the
Commitments of any Class, provided that (i) each reduction of the Commitments of any Class
shall be in an amount that is an integral multiple of $500,000 and not less than $2,000,000,
(ii) the Borrower shall not terminate or reduce the Revolving Commitments if, after giving
effect to any concurrent prepayment of the Revolving Loans in accordance with Section 2.11,
the aggregate Revolving Exposures would exceed the aggregate Revolving Commitments and (iii)
the Borrower shall not terminate or reduce the Extended Revolving Commitments if, after
giving effect to any concurrent prepayment of the Extended Revolving Loans in accordance
with Section 2.11, the aggregate Extended Revolving Exposures would exceed the aggregate
Extended Revolving Commitments.
(c) The Borrower shall notify the Administrative Agent of any election to terminate or
reduce the Commitments under paragraph (b) of this Section 2.08 at least three Business Days
prior to the effective date of such termination or reduction, specifying such election and
the effective date thereof. Promptly following receipt of any notice, the Administrative
Agent shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section 2.08 shall be irrevocable, provided that a notice of
termination of the Revolving Commitments or Extended Revolving Commitments delivered by the
Borrower may state that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such condition is not
satisfied. Any termination or reduction of the Commitments of any Class shall be permanent.
Each reduction of the Commitments of any Class shall be made ratably among the Lenders in accordance with
their respective Commitments of such Class.”
| 1 | Relates to Tranche B Term Loans incurred on February 24, 2005. | |
| 2 | Relates to Tranche B-1 Term Loans incurred on August 5, 2009. |
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(o) Section 2.09(a) of the Credit Agreement is hereby deleted in its entirety and replaced
with the following:
“(a) The Borrower hereby unconditionally promises to pay (i) to the
Administrative Agent for the account of each Lender the then unpaid principal amount
of each Revolving Loan of such Lender on the Revolving Maturity Date, (ii) to the
Administrative Agent for the account of each Lender the then unpaid principal amount
of each Extended Revolving Loan of such Lender on the Extended Revolving Maturity
Date, (iii) to the Administrative Agent for the account of each Lender the then
unpaid principal amount of each Tranche B Term Loan of such Lender as provided in
Section 2.10, (iv) to the Administrative Agent for the account of each Lender the
then unpaid principal amount of each Tranche B-1 Term Loan of such Lender as
provided in Section 2.10, and (v) the then unpaid principal amount of each Swingline
Loan on the earlier of the Extended Revolving Maturity Date and the first date after
such Swingline Loan is made that is the 15th or last day of a calendar month and is
at least two Business Days after such Swingline Loan is made; provided that
on each date that an Extended Revolving Borrowing is made, the Borrower shall repay
all Swingline Loans then outstanding.”
(p) Section 2.11(a) of the Credit Agreement is hereby deleted in its entirety and replaced
with the following:
“(a) The Borrower shall have the right at any time and from time to time to
prepay any Borrowing in whole or in part, subject to the requirements of this
Section 2.11. Any such prepayment (other than a prepayment of a Revolving
Borrowing, Extended Revolving Borrowing or a Swingline Borrowing) made when any
Tranche B Term Loan is outstanding shall be applied either (i) on a pro rata basis
to Tranche B Term Loan Borrowings and Tranche B-1 Term Loan Borrowings or (ii)
entirely to Tranche B Term Loan Borrowings. Until the Revolving Maturity Date, any
prepayment of a Revolving Borrowing or Extended Revolving Borrowing shall be
allocated ratably among the combined amount of outstanding Revolving Loans and
Extended Revolving Loans, taken as a whole; provided, that, in connection
with the Borrower’s termination of all outstanding Revolving Commitments, the
Borrower may apply such prepayment to Revolving Borrowings only.”
(q) Section 2.11(b) of the Credit Agreement is hereby deleted in its entirety and replaced
with the following:
“(b) In the event and on such occasion that (i) the aggregate Revolving Exposures
exceed the aggregate Revolving Commitments, the Borrower shall prepay Revolving Borrowings
or (ii) the aggregate Extended Revolving Exposures exceed the aggregate Extended Revolving
Commitments, the Borrower shall prepay Extended Revolving Borrowings or Swingline Borrowings
(or, if no such Borrowings are outstanding, deposit cash collateral in an account with the
Collateral Agent pursuant to Section 2.05(j)) in an aggregate amount equal to such excess).”
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(r) Section 2.11(f) of the Credit Agreement is hereby amended by deleting the second sentence
thereof and replacing it with the following:
“Each such notice shall be irrevocable and shall specify the prepayment date, the
principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a
mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment,
provided that, if a notice of optional prepayment is given in connection with a
conditional notice of termination of the Revolving Commitments or Extended Revolving
Commitments as contemplated by Section 2.08, then such notice of prepayment may be revoked
if such notice of termination is revoked in accordance with Section 2.08.”
(s) Section 2.12(a) of the Credit Agreement is hereby deleted in its entirety and replaced
with the following:
“(a) The Borrower agrees to pay to the Administrative Agent for the account of
each Lender a commitment fee, which shall accrue at the Applicable Rate on the
average daily unused amount of each Revolving Commitment of such Lender during the
period from and including the Effective Date to but excluding the date on which the
aggregate Revolving Commitments terminate. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee, which shall
accrue at the Applicable Rate on the average daily unused amount of each Extended
Revolving Commitment of such Lender during the period from and including the
Amendment No. 4 Effective Date to but excluding the date on which the aggregate
Extended Revolving Commitments terminate. Accrued commitment fees shall be payable
in arrears in respect of the Revolving Commitments or Extended Revolving
Commitments, as applicable, on the last Business Day of March, June, September and
December of each year and on the date on which the Revolving Commitments or Extended
Revolving Commitments terminate, as applicable. All commitment fees shall be
computed on the basis of a year of 360 days and shall be payable for the actual
number of days elapsed (including the first day but excluding the last day). For
purposes of computing commitment fees with respect to Revolving Commitments, a
Revolving Commitment of a Lender shall be deemed to be used to the extent of the
outstanding Revolving Loans. For purposes of computing commitment fees with respect
to Extended Revolving Commitments, an Extended Revolving Commitment of a Lender
shall be deemed to be used to the extent of the outstanding Extended Revolving Loans
and LC Exposure of such Lender (and the Swingline Exposure of such Lender shall be
disregarded for such purpose).”
(t) Section 2.12(b) of the Credit Agreement is hereby deleted in its entirety and replaced
with the following:
“(b) The Borrower agrees to pay (i) to the Administrative Agent for the account of each
Extended Revolving Lender a participation fee with respect to its participations in Letters
of Credit, which shall accrue at the same Applicable Rate used to determine the interest
rate applicable to Eurodollar Extended Revolving Loans on the average daily amount of such
Lender’s LC Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Amendment No. 4 Effective Date to
but excluding the later of the date on which such Lender’s Extended Revolving Commitment
terminates and the date on which such Lender ceases to have any LC Exposure, and
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(ii) to
the Issuing Bank a fronting fee, which shall accrue at a rate equal to 0.125% per annum on
the average daily amount of the LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the Effective Date to
but excluding the later of the date of termination of the Extended Revolving Commitments and
the date on which there ceases to be any LC Exposure, as well as the Issuing Bank’s standard
fees with respect to the issuance, amendment, renewal or extension of any Letter of Credit
or processing of drawings thereunder. Participation fees and fronting fees shall be payable
on the last Business Day of March, June, September and December of each year, commencing on
the first such date to occur after the Effective Date, provided that all such fees
shall be payable on the date on which the Extended Revolving Commitments terminate and any
such fees accruing after the date on which the Extended Revolving Commitments terminate
shall be payable on demand. Any other fees payable to the Issuing Bank pursuant to this
paragraph shall be payable within 10 days after demand. All participation fees and fronting
fees shall be computed on the basis of a year of 360 days and shall be payable for the
actual number of days elapsed (including the first day but excluding the last day).”
(u) Section 2.13(d) of the Credit Agreement is hereby deleted in its entirety and replaced
with the following:
“(d) Accrued interest on each Loan shall be payable in arrears on each Interest Payment
Date for such Loan and, in the case of Revolving Loans and Extended Revolving Loans, upon
termination of the Revolving Commitments and Extended Revolving Commitments, respectively,
provided that (i) interest accrued pursuant to paragraph (c) of this Section 2.13
shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan
(other than a prepayment of an ABR Revolving Loan or ABR Extended Revolving Loan prior to
the end of the Revolving Availability Period or Extended Revolving Availability Period, as
applicable), accrued interest on the principal amount repaid or prepaid shall be payable on
the date of such repayment or prepayment and (iii) in the event of any conversion of any
Eurodollar Loan prior to the end of the current Interest Period therefor, accrued interest
on such Loan shall be payable on the effective date of such conversion.”
(v) Section 2.16 of the Credit Agreement is hereby modified (x) by deleting the word “or”
immediately before the words “Tranche B-1 Term Loan” and replacing it with a comma and (y) by
adding the words “or Extended Revolving Loan” to clause (c) thereof after the words “Tranche B-1
Term Loan.”
(w) Section 2.18(c) of the Credit Agreement is hereby deleted in its entirety and replaced
with the following:
“(c) If any Lender shall, by exercising any right of setoff or counterclaim or
otherwise, obtain payment in respect of any principal of or interest on any of its Revolving
Loans, Extended Revolving Loans, Tranche B Term Loans, Tranche B-1 Term Loans or
participations in LC Disbursements or Swingline Loans resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its Revolving Loans, Extended
Revolving Loans, Tranche B Term Loans, Tranche B-1 Term Loans and participations in LC
Disbursements and Swingline Loans and accrued interest thereon than the proportion received
by any other Lender, then the Lender receiving such greater proportion shall purchase (for
cash at face value) participations in the Revolving Loans, Extended Revolving Loans, Tranche
B Term Loans, Tranche B-1 Term Loans and participations in LC Disbursements and Swingline
Loans of other Lenders to the extent necessary so that
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the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount of principal
of and accrued interest on their respective Revolving Loans, Extended Revolving Loans,
Tranche B Term Loans, Tranche B-1 Term Loans and participations in LC Disbursements and
Swingline Loans, provided that (i) if any such participations are purchased and all
or any portion of the payment giving rise thereto is recovered, such participations shall be
rescinded and the purchase price restored to the extent of such recovery, without interest,
and (ii) the provisions of this paragraph shall not be construed to apply to any payment
made by the Borrower pursuant to and in accordance with the express terms of this Agreement
or any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans or participations in LC Disbursements to any assignee or
participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which
the provisions of this paragraph shall apply). The Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise against the
Borrower rights of setoff and counterclaim with respect to such participation as fully as if
such Lender were a direct creditor of the Borrower in the amount of such participation.”
(x) Section 2.18(e) of the Credit Agreement is hereby deleted in its entirety and replaced
with the following:
“(e) If any Tranche B Lender, Tranche B-1 Lender or Revolving Lender shall fail to make
any payment required to be made by it pursuant to Section 2.06(a), 2.18(d) or 9.03(c), then
the Administrative Agent may, in its discretion (notwithstanding any contrary provision
hereof), apply any amounts thereafter received by the Administrative Agent for the account
of such Lender to satisfy such Lender’s obligations under such Sections until all such
unsatisfied obligations are fully paid. If any Extended Revolving Lender shall fail to make
any payment required to be made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(a),
2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion and notwithstanding
any contrary provision hereof, (i) apply any amounts thereafter received by the
Administrative Agent for the account of such Extended Revolving Lender and for the benefit
of the Administrative Agent, the Swingline Lender or the Issuing Bank to satisfy such
Extended Revolving Lender’s obligations under such Sections until all such unsatisfied
obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as
cash collateral for, and application to, any future funding obligations of such Extended
Revolving Lender under such Sections; in the case of each of (i) and (ii) above, in any
order as determined by the Administrative Agent in its discretion.”
(y) Section 2.19(b) is hereby modified by adding the word “Extended” before the words
“Revolving Commitment” in the parenthetical in clause (i) of the proviso in the first sentence
thereof.
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(z) The following Section 2.21 is hereby added to the Credit Agreement:
“SECTION 2.21 Defaulting Lenders.
Notwithstanding any provision of this Agreement to the contrary, if any Extended
Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for
so long as such Extended Revolving Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Extended Revolving
Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) [reserved];
(c) if any Swingline Exposure or LC Exposure exists at the time an Extended Revolving
Lender becomes a Defaulting Lender then:
(i) all or any part of such Swingline Exposure and LC Exposure shall be
reallocated among the non-defaulting Extended Revolving Lenders in
accordance with their respective Applicable Percentages but only to the
extent (x) the sum of all non-defaulting Extended Revolving Lenders’
Extended Revolving Credit Exposures plus such Defaulting Lender’s Swingline
Exposure and LC Exposure does not exceed the total of all non-defaulting
Lenders’ Extended Revolving Commitments and (y) the conditions set forth in
Section 4.02 are satisfied at such time; and
(ii) if the reallocation described in clause (i) above cannot, or can
only partially, be effected, the Borrower shall within one Business Day
following notice by the Administrative Agent (x) first, prepay such
Swingline Exposure and (y) second, cash collateralize such
Defaulting Lender’s LC Exposure (after giving effect to any partial
reallocation pursuant to clause (i) above) in accordance with the procedures
set forth in Section 2.05(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such
Defaulting Lender’s LC Exposure pursuant to Section 2.21(c), the Borrower
shall not be required to pay any fees to such Defaulting Lender pursuant to
Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure during
the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-defaulting Extended Revolving
Lenders is reallocated pursuant to Section 2.21(c), then the fees payable to
the Extended Revolving Lenders pursuant to Section 2.12(a) and Section
2.12(b) shall be correspondingly adjusted for the benefit of such
non-defaulting Extended Revolving Lenders in accordance with their
Applicable Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash
collateralized nor reallocated pursuant to Section 2.21(c), then, without
prejudice to any rights or remedies of the Issuing Bank or any Extended
Revolving Lender hereunder, all facility fees that otherwise would have been
payable to such Defaulting Lender (solely with respect to the portion of
such Defaulting Lender’s Extended Revolving Commitment that was utilized by
such LC Exposure) and letter of credit fees payable under Section 2.12(b)
with respect to such Defaulting Lender’s LC Exposure shall be payable to the
Issuing Bank until such LC Exposure is cash collateralized and/or
reallocated; and
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(d) so long as any Extended Revolving Lender is a Defaulting Lender, the Swingline
Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall
not be required to issue, amend or increase any Letter of Credit, unless it is
satisfied that the related exposure will be 100% covered by Extended Revolving Commitments
of the non-defaulting Extended Revolving Lenders and/or cash collateral will be provided by
the Borrower in accordance with Section 2.21(c), and participating interests in any such
newly-issued or increased Letter of Credit or newly made Swingline Loan shall be allocated
among non-defaulting Extended Revolving Lenders in a manner consistent with Section
2.21(c)(i) (and Defaulting Lenders shall not participate therein).
In the event that the Administrative Agent, the Borrower, the Issuing Bank and the
Swingline Lender each agrees that a Defaulting Lender has adequately remedied all matters
that caused such Extended Revolving Lender to be a Defaulting Lender, then the Swingline
Exposure and LC Exposure of the Extended Revolving Lenders shall be readjusted to reflect
the inclusion of such Extended Revolving Lender’s Extended Revolving Commitment and on such
date such Extended Revolving Lender shall purchase at par such of the Loans of the other
Extended Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall
determine may be necessary in order for such Extended Revolving Lender to hold such Loans in
accordance with its Applicable Percentage.”
(aa) Section 5.11 of the Credit Agreement is hereby amended by deleting the second sentence
thereof and replacing it with the following:
“The proceeds of the Revolving Loans (except as described above), Extended
Revolving Loans, Swingline Loans and Letters of Credit will be used only for working
capital and other general corporate purposes.”
(bb) New Section 6.16 is hereby added to the Credit Agreement as follows:
“SECTION 6.16. Effect of Amendment No. 4 on Mortgages. On or prior to the date
that is 60 days after the Amendment No. 4 Effective Date (or such later date as shall be
acceptable to the Collateral Agent in its reasonable discretion), the Borrower shall deliver
to the Collateral Agent confirmation in form and substance reasonably acceptable to the
Collateral Agent from local counsel in each jurisdiction in which any Mortgaged Property is
located that no documents, instruments or other actions are required under applicable law
for the continued validity, perfection and priority of the Liens granted to the Collateral
Agent under the Mortgages encumbering such Mortgaged Property for the benefit of the
Collateral Agent, as amended pursuant to Amendment No. 4 (or deliver such other
documentation in form and substance reasonably acceptable to the Collateral Agent as shall
confirm such continued validity, perfection and priority).”
(cc) New Section 9.02C is hereby added to the Credit Agreement as follows:
“(a) Any waiver, amendment or modification of this Agreement that by its terms affects
the rights or duties under this Agreement of the Revolving Lenders (but not the Extended
Revolving Lenders, Tranche B Lenders or Tranche B-1 Lenders), the Extended Revolving Lenders
(but not the Revolving Lenders, Tranche B Lenders or Tranche B-1 Lenders) or the Tranche B
Lenders or Tranche B-1 Lenders (but not the Revolving Lenders or Extended Revolving Lenders)
may be effected by an agreement or agreements in writing entered into by Holdings, the
Borrower and requisite percentage in interest of the affected Class of Lenders that would be
required to consent thereto under Section 9.02(b) if such Class of
-23-
Lenders
were the only Class of Lenders hereunder at the time. In connection with any Proposed
Change requiring the consent of all affected Lenders, if the consent of the Supermajority
Lenders (and, to the extent any Proposed Change requires the consent of Lenders holding
Loans of any Class pursuant to clause (viii) of Section 9.02(b), the consent of not less
than 75% in interest of the outstanding Loans and unused Commitments of such Class) to such
Proposed Change is obtained, but the consent to such Proposed Change of other Lenders whose
consent is required is not obtained, then, so long as the Lender that is acting as the
Administrative Agent is not a Non-Consenting Lender, at the Borrower’s request, any assignee
that is acceptable to the Administrative Agent shall have the right, with the Administrative
Agent’s consent, to purchase from such Non-Consenting Lender, and such Non-Consenting Lender
agrees that it shall, upon the Borrower’s request, sell and assign to such assignee, at no
expense to such Non-Consenting Lender, all the Extended Revolving Commitments and Extended
Revolving Loans of such Non-Consenting Lender for an amount equal to the principal balance
of all Extended Revolving Loans held by such Non-Consenting Lender and all accrued interest
and fees with respect thereto through the date of sale (including amounts under Sections
2.15, 2.16 and 2.17), such purchase and sale to be consummated pursuant to an executed
Assignment and Assumption in accordance with Section 9.04(b) (which Assignment and
Assumption need not be signed by such Non-Consenting Lender).
(dd) Section 9.03(c) of the Credit Agreement is hereby modified by adding the words “,
Extended Revolving Exposures” after the words “Revolving Exposures.”
(ee) Section 9.04(b)(i) of the Credit Agreement is hereby deleted in its entirety and replaced
with the following:
“(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender
may assign to one or more assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans at the time owing
to it) with the prior written consent (such consent not to be unreasonably withheld or
delayed) of:
(1) the Borrower, provided that no consent of the Borrower shall be required
for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund (as defined below)
or, if an Event of Default has occurred and is continuing, any other assignee;
(2) the Administrative Agent, provided that no consent of the Administrative
Agent shall be required for an assignment of all or any portion of a Tranche B Term Loan or
Tranche B-1 Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) the Issuing Bank, provided that no consent of the Issuing Bank shall be
required for an assignment of all or any portion of a Revolving Loan, Revolving Commitment,
Tranche B Term Loan or Tranche B-1 Term Loan.”
SECTION THREE. Conditions to Effectiveness. This Fourth Amendment shall become
effective as of the date (the “Amendment Effective Date”) when, and only when,
(a) the Administrative Agent shall have received counterparts of this Fourth Amendment
executed by Holdings, the Borrower, each other Loan Party, each Assignor, each Assignee,
each Extended Revolving Lender and a number of Revolving Lenders representing
more than 50% of the outstanding Revolving Commitments (calculated immediately after
giving effect to the Assignments and immediately prior to giving effect to the Amendments),
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(b) the Administrative Agent shall have received from the Borrower all participation
fees accrued and unpaid as of the Amendment Effective Date with respect to the Revolving
Lenders’ aggregate participations in Letters of Credit for the ratable account of the
Revolving Lenders,
(c) the Borrower shall have paid to the Administrative Agent for the account of each
Extended Revolving Lender an upfront fee equal to 1.50% of the sum of such Extended
Revolving Lender’s Extended Revolving Commitment as of the Amendment Effective Date;
(d) (i) all promissory notes evidencing Revolving Loans that are being converted to
Extended Revolving Loans shall have been surrendered to the Administrative Agent and
cancelled (or arrangements therefor satisfactory to the Administrative Agent shall have been
made) and (ii) each Revolving Lender and Extended Revolving Lender shall have received a
promissory note evidencing the aggregate amount of Revolving Loans or Extended Revolving
Loans of the Borrower to such Lender, if requested a reasonable amount of time prior to the
Amendment Effective Date,
(e) (i) the Administrative Agent shall have received a completed “Life-of-Loan” Federal
Emergency Management Agency Standard Flood Hazard Determination with respect to each
Mortgaged Property (together with a notice about special flood hazard area status and flood
disaster assistance duly executed by the Borrower and each Loan Party relating thereto) and
(ii) the Administrative Agent shall have received a copy of, or a certificate as to coverage
under, the insurance policies required by Section 5.07 including, without
limitation, flood insurance policies (to the extent required in order to comply with
applicable law) and the applicable provisions of the Security Documents, each of which shall
be endorsed or otherwise amended to include a “standard” or “New York” lender’s loss payable
or mortgagee endorsement (as applicable) and shall name the Collateral Agent, on behalf of
the Secured Parties, as additional insured, in form and substance reasonably satisfactory to
the Administrative Agent;
(f) the Administrative Agent shall have received, to the extent invoiced, payment of
all fees in amounts separately agreed between the Borrower and the Administrative Agent,
then due and payable, and reimbursement or payment of all reasonable out-of-pocket expenses
(including the reasonable fees, charges and disbursements of Xxxxxx Xxxxxx & Xxxxxxx
llp) required to be reimbursed or paid by any Loan Party hereunder or under any
other Loan Document,
(g) the Administrative Agent shall have received copies of the resolutions of the board
of directors (or authorized committee thereof) of (x) Holdings, (y) the Borrower and (z)
each Subsidiary Loan Party approving and authorizing the execution, delivery and performance
of this Fourth Amendment, certified as of the Amendment Effective Date by the corporate
secretary or an assistant secretary thereof as being in full force and effect without
modification or amendment, and
(h) the Administrative Agent shall have received a legal opinion dated the Amendment
Effective Date from Dechert LLP addressed to each Agent and each Lender with respect to the
effectiveness of this Fourth Amendment and its non-contravention with the
Credit Agreement and such other matters as the Administrative Agent shall reasonably
request, in form and substance reasonably satisfactory to the Administrative Agent.
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The effectiveness of this Fourth Amendment (other than Sections Six, Seven and Eight hereof)
is conditioned upon the accuracy of the representations and warranties set forth in Section Four
hereof. The effectiveness of the Amendments is conditioned upon the occurrence of the Assignments.
SECTION FOUR. Representations and Warranties. In order to induce the Lenders, the
Administrative Agent and the Issuing Bank to enter into this Fourth Amendment, the Borrower
represents and warrants to each of the Lenders, the Administrative Agent and the Issuing Bank that,
after giving effect to this Fourth Amendment, and both before and after giving effect to the
transactions contemplated by this Fourth Amendment:
(a) no Default or Event of Default has occurred and is continuing;
(b) the entry into this Fourth Amendment by (x) Holdings, (y) the Borrower and (z) each
Subsidiary Loan Party has been duly authorized by all necessary corporate or other action of
each such entity; and
(c) each of the representations and warranties made by each of the Loan Parties in or
pursuant to the Loan Documents are true and correct in all material respects on and as of
the date hereof as if made on the date hereof (or, if any such representation or warranty is
expressly stated to have been made as of a specific date, as of such specific date).
SECTION FIVE. Administrative Provisions; Reference to and Effect on the Loan
Documents.
(a) Each Lender with outstanding Revolving Commitments immediately following the
effectiveness of the Assignments and immediately prior to the effectiveness of the
Amendments may provide a Revolving Commitment Extension Request (which may not exceed the
amount of such Lender’s outstanding Revolving Commitments immediately following the
effectiveness of the Assignments and immediately prior to the effectiveness of the
Amendments) by providing the Administrative Agent with a notice in form and substance
satisfactory to the Administrative Agent on or before 5:00 p.m., New York time, on June 7,
2010 (or such later date as may be determined by the Administrative Agent in its sole
discretion).
(b) On or prior to the Amendment Effective Date, the Administrative Agent will prepare,
and provide the Lenders via Intralinks, a revised Schedule 2.01 to the Credit
Agreement that sets forth the aggregate amount of the Lenders’ Revolving Commitments and
Extended Revolving Commitments and the aggregate principal amount of Tranche B Term Loans
and Tranche B-1 Term Loans outstanding immediately after giving effect to this Fourth
Amendment. The Borrower and the Lenders party hereto hereby authorize and direct the
Administrative Agent to prepare a revised Schedule 2.01 to the Credit Agreement in
accordance with the requirements hereof and, on the Amendment Effective Date, such revised
Schedule 2.01 to the Credit Agreement will supersede existing Schedule 2.01
to the Credit Agreement.
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(c) On and after the Amendment Effective Date, each reference in the Credit Agreement
to “this Agreement,” “hereunder,” “hereof” or words of like import referring the Credit
Agreement, and each reference in the Notes and each of the other Loan Documents to
“the Credit Agreement,” “thereunder,” “thereof” or words of like import referring to
the Credit Agreement, shall mean and be a reference to the Credit Agreement, as amended by
this Fourth Amendment. The Credit Agreement, the Notes and each of the other Loan
Documents, as specifically amended by this Fourth Amendment, are and shall continue to be in
full force and effect. By executing and delivering a copy hereof, each Loan Party hereby
acknowledges that all Loans (including without limitation the Extended Revolving Loans)
shall continue to be fully guaranteed pursuant to the Collateral Agreement in accordance
with the terms and provisions thereof and shall continue to be secured in accordance with
the terms and provisions of the Security Documents. The execution, delivery and
effectiveness of this Fourth Amendment shall not, except as expressly provided herein,
operate as a waiver of any right, power or remedy of any Lender or any Agent under any of
the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.
SECTION SIX. Costs, Expenses and Taxes. The Borrower agrees to pay all reasonable
out-of-pocket expenses incurred by the Administrative Agent in connection with the preparation,
execution and delivery of this Fourth Amendment and the other instruments and documents to be
delivered hereunder, if any (including, without limitation, the reasonable fees, charges and
disbursements of Xxxxxx Xxxxxx & Xxxxxxx llp) in accordance with the terms of Section 9.03
of the Credit Agreement.
SECTION SEVEN. Execution in Counterparts. This Fourth Amendment may be executed in
counterparts (and by different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
Delivery of an executed counterpart of a signature page to this Fourth Amendment by telecopy or
other electronic transmission shall be effective as delivery of a manually executed counterpart of
this Fourth Amendment.
SECTION EIGHT. Governing Law. THIS FOURTH AMENDMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES UNDER THIS FOURTH AMENDMENT SHALL BE CONSTRUED AND GOVERNED BY, IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK.
[Signature Pages Follow]
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| SELECT MEDICAL CORPORATION, as the Borrower |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Executive Vice President & CFO | |||
| SELECT MEDICAL HOLDINGS CORPORATION |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Executive Vice President & CFO | |||
S-1
| EACH OF THE SUBSIDIARIES LISTED ON SCHEDULE II HERETO |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
S-2
| JPMORGAN CHASE BANK, N.A., as Administrative Agent |
||||
| By: | /s/ Xxxx X. XxxXxx | |||
| Name: | Xxxx X. XxxXxx | |||
| Title: | Executive Director | |||
| JPMORGAN CHASE BANK, N.A., as Issuing Bank |
||||
| By: | /s/ Xxxx X. XxxXxx | |||
| Name: | Xxxx X. XxxXxx | |||
| Title: | Executive Director | |||
S-3
| JPMORGAN CHASE BANK, N.A., as Lender |
||||
| By: | /s/ Xxxx X. XxxXxx | |||
| Name: | Xxxx X. XxxXxx | |||
| Title: | Executive Director | |||
S-4
| JPMORGAN CHASE BANK, N.A., as Assignor, as to Section One of Assignment and Assumption and Amendment No. 4 |
||||
| By: | /s/ Xxxx X. XxxXxx | |||
| Name: | Xxxx X. XxxXxx | |||
| Title: | Executive Director | |||
S-5
| XXXXXXX XXXXX BANK USA, as Lender |
||||
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Authorized Signatory | |||
S-6
| XXXXXXX XXXXX CAPITAL CORPORATION, as Lender |
||||
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Vice President | |||
S-7
| XXXXXX XXXXXXX BANK, N.A., as Lender |
||||
| By: | /s/ Xxxxxxxx Xxxxxx | |||
| Name: | Xxxxxxxx Xxxxxx | |||
| Title: | Authorized Signatory | |||
S-8
| XXXXXX XXXXXXX SENIOR FUNDING, INC., as Lender |
||||
| By: | /s/ Xxxxxxxx Xxxxxx | |||
| Name: | Xxxxxxxx Xxxxxx | |||
| Title: | Vice President | |||
S-9
| XXXXX FARGO BANK, N.A., successor by
merger to Wachovia Bank, National Association, as Lender |
||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Managing Director | |||
S-10
| XXXXX FARGO BANK, N.A., successor by merger to
Wachovia Bank, National Association as Assignor,
as to Section One of Assignment and Assumption and Amendment No. 4 |
||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Managing Director | |||
X-00
| XXXXX XXXX XX XXXXXX, as Lender |
||||
| By: | /s/ Xxxxxxx Xxxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxxx | |||
| Title: | Authorized Signatory | |||
S-12
| PNC BANK, NATIONAL ASSOCIATION, as Lender |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Senior Vice President | |||
S-13
| MONUMENT PARK CDO LTD. By: Blackstone Debt Advisors L.P. as Collateral Manager, as Lender |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Authorized Signatory | |||
S-14
| LOAN FUNDING VI LLC, for itself or as agent for Corporate Loan Funding VI LLC, as Assignor, as to Section One of Assignment and Assumption and Amendment No. 4 |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Authorized Signatory | |||
X-00
| XXXXX XXXXXX CDO LTD. By: Blackstone Debt Advisors L.P. as Collateral Manager, as Lender |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Authorized Signatory | |||
S-16
| CIBC INC., as Assignor, as to Section One of Assignment and Assumption and Amendment No. 4 |
||||
| By: | /s/ Xxxxxxxx Xxxxx | |||
| Name: | Xxxxxxxx Xxxxx | |||
| Title: | Agent | |||
S-17
| GENERAL ELECTRIC CAPITAL CORPORATION, as Assignor, as
to Section One of Assignment and Assumption and Amendment No. 4 |
||||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Duly Authorized Signatory | |||
S-18
| ING CAPITAL LLC, as Assignor, as to Section One of Assignment and Assumption and Amendment No. 4 |
||||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Vice President | |||
S-19
| MADISON PARK FUNDING, as Assignor, as to Section One
of Assignment and Assumption and Amendment No. 4 |
||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Authorized Signatory | |||
S-20
| CSAM FUNDING IV, as Assignor, as to Section One of Assignment and Assumption and Amendment No. 4 |
||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Authorized Signatory | |||
S-21
| LOAN FUNDING VII LLC By: Highland Capital Management, L.P., as Collateral Manager By: Strand Advisors, Inc., Its General Partner, as Assignor, as to Section One of Assignment and Assumption and Amendment No. 4 |
||||
| By: | /s/ Xxxxx Xxxx | |||
| Name: | Xxxxx Xxxx | |||
| Title: | Operations Director | |||
S-22
| SOUTHFORK CLO, LTD. By: Highland Capital Management, L.P., as Collateral Manager By: Strand Advisors, Inc., Its General Partner, as Assignor, as to Section One of Assignment and Assumption and Amendment No. 4 |
||||
| By: | /s/ Xxxxx Xxxx | |||
| Name: | Xxxxx Xxxx | |||
| Title: | Operations Director | |||
S-23
| HIGHLAND LEGECY LIMITED By: Highland Capital Management, L.P., as Collateral Manager By: Strand Advisors, Inc., Its General Partner, as Assignor, as to Section One of Assignment and Assumption and Amendment No. 4 |
||||
| By: | /s/ Xxxxx Xxxx | |||
| Name: | Xxxxx Xxxx | |||
| Title: | Operations Director | |||
S-24
| LOAN FUNDING IV LLC By: Highland Capital Management, L.P., as Collateral Manager By: Strand Advisors, Inc., Its General Partner, as Assignor, as to Section One of Assignment and Assumption and Amendment No. 4 |
||||
| By: | /s/ Xxxxx Xxxx | |||
| Name: | Xxxxx Xxxx | |||
| Title: | Operations Director | |||
S-25
| THE CIT GROUP / EQUIPMENT FINANCING, INC., as Assignor, as to Section One of Assignment and Assumption and Amendment No. 4 |
||||
| By: | /s/ Xxxxxxx Xxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxx | |||
| Title: | Managing Director | |||
S-26
| CITIZENS BANK OF PENNSYLVANIA as Assignor, as to Section One of Assignment and Assumption and Amendment No. 4 |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Senior Vice President | |||
S-27
| BABSON CLO LTD. 2004-I, as Lender By: Babson Capital Management LLC as Collateral Manager |
||||
| By: | /s/ Xxxxxx XxXxxxx | |||
| Name: | Xxxxxx XxXxxxx | |||
| Title: | Director | |||
S-28
| BABSON CLO LTD. 2004-I, as Assignor, as to Section
One of Assignment and Assumption and Amendment No. 4 By: Babson Capital Management LLC as Collateral Manager |
||||
| By: | /s/ Xxxxxx XxXxxxx | |||
| Name: | Xxxxxx XxXxxxx | |||
| Title: | Director | |||
S-29
| BABSON CLO LTD. 2005-I, as Lender By: Babson Capital Management LLC as Collateral Manager |
||||
| By: | /s/ Xxxxxx XxXxxxx | |||
| Name: | Xxxxxx XxXxxxx | |||
| Title: | Director | |||
S-30
| BABSON CLO LTD. 2005-I, as Assignor, as to Section One of Assignment and Assumption and Amendment No. 4 By: Babson Capital Management LLC as Collateral Manager |
||||
| By: | /s/ Xxxxxx XxXxxxx | |||
| Name: | Xxxxxx XxXxxxx | |||
| Title: | Director | |||
S-31
| MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, as
Lender By: Babson Capital Management LLC as Investment Adviser |
||||
| By: | /s/ Xxxxxx XxXxxxx | |||
| Name: | Xxxxxx XxXxxxx | |||
| Title: | Director | |||
S-32
| MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, as
Assignor, as to Section One of Assignment and
Assumption and Amendment No. 4 By: Babson Capital Management LLC as Investment Adviser |
||||
| By: | /s/ Xxxxxx XxXxxxx | |||
| Name: | Xxxxxx XxXxxxx | |||
| Title: | Director | |||
S-33
| GRAYSTON CLO II 2004-1 LTD. as Assignor, as to Section One of Assignment and Assumption and Amendment No. 4 |
||||
| By: | /s/ Xxxxxxx Xxxxx | |||
| By: UrsaMine Credit Advisors LLC as it’s Collateral Manager | ||||
| Name: | Xxxxxxx Xxxxx | |||
| Title: | Senior Vice-President | |||
S-34
| GALLATIN CLO II 2005-1 LTD, as Assignor, as to Section One of Assignment and Assumption and Amendment No. 4 |
||||
| By: | /s/ Xxxxxxx Xxxxx | |||
| By: UrsaMine Credit Advisors LLC as it’s Collateral Manager | ||||
| Name: | Xxxxxxx Xxxxx | |||
| Title: | Senior Vice-President | |||
S-35
| GALLATIN CLO III 2007-1 LTD, as Assignor, as to Section One of Assignment and Assumption and Amendment No. 4 |
||||
| By: | /s/ Xxxxxxx Xxxxx | |||
| By: UrsaMine Credit Advisors LLC as it’s Collateral Manager | ||||
| Name: | Xxxxxxx Xxxxx | |||
| Title: | Senior Vice-President | |||
S-36
| XXXXXXX XXXXX BANK, FSB as Assignor, as to Section One of Assignment and Assumption and Amendment No. 4 |
||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Vice President | |||
S-37
| CENT CDO 12 LIMITED By: Columbia Management Investment Advisers, LLC, fka RiverSource Investments, LLC as Collateral Manager, as Assignor, as to Section One of Assignment and Assumption and Amendment No. 4 |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Director of Operations | |||
S-38
| CENT CDO 12 LIMITED By: Columbia Management Investment Advisers, LLC, fka RiverSource Investments, LLC as Collateral Manager, as Lender |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Director of Operations | |||
S-39
| CENT CDO XI LIMITED By: Columbia Management Investment Advisers, LLC, fka RiverSource Investments, LLC as Collateral Manager, as Assignor, as to Section One of Assignment and Assumption and Amendment No. 4 |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Director of Operations | |||
S-40
| CENT CDO XI LIMITED By: Columbia Management Investment Advisers, LLC, fka RiverSource Investments, LLC as Collateral Manager, as Lender |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Director of Operations | |||
S-41
| CENTURION CDO 9 LIMITED By: Columbia Management Investment Advisers, LLC, fka RiverSource Investments, LLC as Collateral Manager, as Assignor, as to Section One of Assignment and Assumption and Amendment No. 4 |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Director of Operations | |||
S-42
| CENT CDO 9 LIMITED By: Columbia Management Investment Advisers, LLC, fka RiverSource Investments, LLC as Collateral Manager, as Lender |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Director of Operations | |||
S-43
| INVESCO XXX XXXXXX SENIOR LOAN FUND By: Invesco Senior Secured Management, Inc. as Sub-advisor as Assignor, as to Section One of Assignment and Assumption and Amendment No. 4 |
||||
| By: | /s/ Xxxx Xxxxx | |||
| Name: | Xxxx Xxxxx | |||
| Title: | Executive Director | |||
S-44
| INVESCO XXX XXXXXX SENIOR INCOME TRUST By: Invesco Senior Secured Management, Inc. as Sub-advisor as Assignor, as to Section One of Assignment and Assumption and Amendment No. 4 |
||||
| By: | /s/ Xxxx Xxxxx | |||
| Name: | Xxxx Xxxxx | |||
| Title: | Executive Director | |||
S-45
| INVESCO PRIME INCOME TRUST By: Invesco Senior Secured Management, Inc. as Sub-advisor as Assignor, as to Section One of Assignment and Assumption and Amendment No. 4 |
||||
| By: | /s/ Xxxx Xxxxx | |||
| Name: | Xxxx Xxxxx | |||
| Title: | Executive Director | |||
S-46
| CASPIAN SELECT CREDIT MASTER FUND LTD.,
as Assignor, as to Section One of Assignment and Assumption and Amendment No. 4 |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx Xx. | |||
| Name: | Xxxxxxx X. Xxxxxxx Xx. | |||
| Title: | Authorized Signatory | |||
S-47
| XXXXXXX & CO By: Boston Management and Research as Investment Advisor, as Assignor, as to Section One of Assignment and Assumption and Amendment No. 4 |
||||
| By: | /s/ Illegible | |||
| Name: | Illegible | |||
| Title: | Vice President | |||
S-48
| XXXXX XXXXX MEDALLION FLOATING-RATE INCOME PORTFOLIO By: Xxxxx Xxxxx Management As Investment Advisor, as Assignor, as to Section One of Assignment and Assumption and Amendment No. 4 |
||||
| By: | /s/ Illegible | |||
| Name: | Illegible | |||
| Title: | Vice President | |||
S-49
Schedule I to
Amendment No. 4
Amendment No. 4
| Amount of | ||||||||||||||||
| Revolving | Amount of | |||||||||||||||
| Commitments | Commitments | |||||||||||||||
| Immediately | Amount of | Amount of | Immediately | |||||||||||||
| Prior to | Revolving | Revolving | After | |||||||||||||
| Assignment | Commitments | Commitments | Assignment | |||||||||||||
| Institution | Effectiveness | Assigned | Assumed | Effectiveness | ||||||||||||
JPMorgan Chase Bank, N.A. |
$ | 35,666,666.67 | $ | 0.00 | $ | 13,437,608.83 | $ | 49,104,275.50 | ||||||||
Xxxxxxx Xxxxx Bank USA |
$ | 0.00 | $ | 0.00 | $ | 49,104,275.50 | $ | 49,104,275.50 | ||||||||
Xxxxxxx Xxxxx Capital Corporation |
$ | 32,666,666.67 | $ | 0.00 | $ | 16,437,608.83 | $ | 49,104,275.50 | ||||||||
Xxxxxx Xxxxxxx Bank, N.A. |
$ | 0.00 | $ | 0.00 | $ | 39,104,275.50 | $ | 39,104,275.50 | ||||||||
Xxxxxx Xxxxxxx Senior Funding, Inc. |
$ | 0.00 | $ | 0.00 | $ | 10,000,000.00 | $ | 10,000,000.00 | ||||||||
Xxxxx Fargo Bank, N.A. |
$ | 47,666,666.67 | $ | 7,666,666.67 | $ | 0.00 | $ | 40,000,000.00 | ||||||||
Royal Bank of Canada |
$ | 0.00 | $ | 0.00 | $ | 40,000,000.00 | $ | 40,000,000.00 | ||||||||
PNC Bank, National Association |
$ | 15,000,000.00 | $ | 0.00 | $ | 5,000,000.00 | $ | 20,000,000.00 | ||||||||
Blackstone Debt Advisors L.P. |
$ | 5,000,000.00 | $ | 1,417,102.00 | $ | 0.00 | $ | 3,582,898.00 | ||||||||
CIBC Inc. |
$ | 20,000,000.00 | $ | 20,000,000.00 | $ | 0.00 | $ | 0.00 | ||||||||
General Electric Capital Corporation |
$ | 20,000,000.00 | $ | 20,000,000.00 | $ | 0.00 | $ | 0.00 | ||||||||
ING Capital LLC |
$ | 20,000,000.00 | $ | 20,000,000.00 | $ | 0.00 | $ | 0.00 | ||||||||
Highland Capital Management, L.P. |
$ | 16,000,000.00 | $ | 16,000,000.00 | $ | 0.00 | $ | 0.00 | ||||||||
The CIT Group/ Equipment Financing, Inc. |
$ | 15,000,000.00 | $ | 15,000,000.00 | $ | 0.00 | $ | 0.00 | ||||||||
Citizens Bank of Pennsylvania |
$ | 15,000,000.00 | $ | 15,000,000.00 | $ | 0.00 | $ | 0.00 | ||||||||
CSAM Funding IV |
$ | 5,000,000.00 | $ | 5,000,000.00 | $ | 0.00 | $ | 0.00 | ||||||||
Madison Park Funding |
$ | 10,000,000.00 | $ | 10,000,000.00 | $ | 0.00 | $ | 0.00 | ||||||||
Babson Capital Management LLC |
$ | 10,000,000.00 | $ | 10,000,000.00 | $ | 0.00 | $ | 0.00 | ||||||||
UrsaMine Credit Advisors LLC |
$ | 7,500,000.00 | $ | 7,500,000.00 | $ | 0.00 | $ | 0.00 | ||||||||
Xxxxxxx Xxxxx Bank, FSB |
$ | 6,500,000.00 | $ | 6,500,000.00 | $ | 0.00 | $ | 0.00 | ||||||||
Columbia Management Investment Advisers, LLC |
$ | 5,000,000.00 | $ | 5,000,000.00 | $ | 0.00 | $ | 0.00 | ||||||||
Invesco Senior Secured Management, Inc. |
$ | 5,000,000.00 | $ | 5,000,000.00 | $ | 0.00 | $ | 0.00 | ||||||||
Invesco Senior Secured Management, Inc. |
$ | 4,000,000.00 | $ | 4,000,000.00 | $ | 0.00 | $ | 0.00 | ||||||||
Caspian Select Credit Master Fund Ltd. |
$ | 3,000,000.00 | $ | 3,000,000.00 | $ | 0.00 | $ | 0.00 | ||||||||
Boston Management & Research |
$ | 1,000,000.00 | $ | 1,000,000.00 | $ | 0.00 | $ | 0.00 | ||||||||
Xxxxx Xxxxx Management |
$ | 1,000,000.00 | $ | 1,000,000.00 | $ | 0.00 | $ | 0.00 | ||||||||
Total: |
$ | 300,000,000.00 | ||||||||||||||
Schedule I-1
Schedule II to
Amendment No. 4
Amendment No. 4
SUBSIDIARY LOAN PARTIES
| 1. | Advantage Rehabilitation Clinics, Inc. | |
| 2. | American Transitional Hospitals, Inc. | |
| 3. | Argosy Health, LLC | |
| 4. | Athens Sports Medicine Clinic, Inc. | |
| 5. | Atlantic Rehabilitation Services, Inc. | |
| 6. | Baseline Rehabilitation, Inc. | |
| 7. | Buendel Physical Therapy, Inc. | |
| 8. | Cedar Cliff Acquisition Corporation | |
| 9. | C.E.R. — West, Inc. | |
| 10. | C.O.A.S.T. Institute Physical Therapy, Inc. | |
| 11. | CCISUB, Inc. | |
| 12. | Cenla Physical Therapy & Rehabilitation Agency, Inc. | |
| 13. | Center for Evaluation & Rehabilitation, Inc. | |
| 14. | CenterTherapy, Inc. | |
| 15. | Community Rehab Centers of Massachusetts, Inc. | |
| 16. | Xxxxxxx Physical Therapy Clinic, Inc. | |
| 17. | Dade Prosthetics & Orthotics, Inc. | |
| 18. | Xxxxxxx Xxxxx & Associates, Ltd. | |
| 19. | Eagle Rehab Corporation [Delaware entity] | |
| 20. | Eagle Rehab Corporation [Washington entity] | |
| 21. | Elk County Physical Therapy, Inc. | |
| 22. | Fine, Xxxxxx & Wah, Inc. | |
| 23. | Gallery Physical Therapy Center, Inc. | |
| 24. | Georgia Physical Therapy of West Georgia, Inc. | |
| 25. | Georgia Physical Therapy, Inc. | |
| 26. | GP Therapy, L.L.C. | |
| 27. | Greater Sacramento Physical Therapy Associates, Inc. |
Schedule II-1
| 28. | Gulf Breeze Physical Therapy, Inc. | |
| 29. | Hand Therapy and Rehabilitation Associates, Inc. | |
| 30. | Hand Therapy Associates, Inc. | |
| 31. | Xxxxxx Physical Therapy, Inc. | |
| 32. | Hospital Holdings Corporation | |
| 33. | Xxxxxx Physical Therapy Services, Inc. | |
| 34. | Indianapolis Physical Therapy and Sports Medicine, Inc. | |
| 35. | Intensiva Healthcare Corporation | |
| 36. | Intensiva Hospital of Greater St. Louis, Inc. | |
| 37. | Xxxxxxx Physical Therapy, Inc. | |
| 38. | Xxxxxx Sportsmedicine Institute, Inc. | |
| 39. | Kentucky Rehabilitation Services, Inc. | |
| 40. | Xxxxxxx Assisted Living Corporation | |
| 41. | Xxxxxxx Institute for Rehabilitation, Inc. | |
| 42. | Xxxxxxx Occupational Medicine Centers, Inc. | |
| 43. | Xxxxxxx Orthotic & Prosthetic Services, Inc. | |
| 44. | Xxxxxxx Physical Therapy & Rehabilitation, Inc. | |
| 45. | Xxxxxxx Professional Services, LLC | |
| 46. | Xxxxxxx Rehab Centers, Inc. | |
| 47. | Xxxxxxx Rehabilitation Corporation | |
| 48. | Xxxxxxx Rehabilitation of Maryland, Inc. | |
| 49. | Xxxxxxx Rehabilitation Services, Inc. | |
| 50. | Madison Rehabilitation Center, Inc. | |
| 51. | MCA Sports of Amarillo, Inc. | |
| 52. | Metro Rehabilitation Services, Inc. | |
| 53. | Metro Therapy, Inc. | |
| 54. | Michigan Therapy Centre, Inc. | |
| 55. | New England Rehabilitation Center of Southern New Hampshire, Inc. | |
| 56. | Northside Physical Therapy, Inc. | |
| 57. | NovaCare Occupational Health Services, Inc. | |
| 58. | NovaCare Outpatient Rehabilitation East, Inc. | |
| 59. | NovaCare Outpatient Rehabilitation, Inc. |
Schedule II-2
| 60. | NovaCare Rehabilitation, Inc. | |
| 61. | NovaCare Rehabilitation of Ohio, Inc. | |
| 62. | Pacific Rehabilitation & Sports Medicine, Inc. | |
| 63. | Xxxxx Xxxxxxx R.P.T. Physical Therapy Clinic, Orthopaedic Rehabilitation & Sports Medicine, Ltd. | |
| 64. | Physical Therapy Associates, Inc. | |
| 65. | Physical Therapy Institute, Inc. | |
| 66. | PR Acquisition Corporation | |
| 67. | Pro Active Therapy of Ahoskie, Inc. | |
| 68. | Pro Active Therapy of Greenville, Inc. | |
| 69. | Pro Active Therapy of North Carolina, Inc. | |
| 70. | Pro Active Therapy of Rocky Mount, Inc. | |
| 71. | Pro Active Therapy of South Carolina, Inc. | |
| 72. | Pro Active Therapy of Virginia, Inc. | |
| 73. | Pro Active Therapy, Inc. | |
| 74. | Professional Sports Care Management, Inc. | |
| 75. | Professional Therapeutic Services, Inc. | |
| 76. | Professional Therapy Systems, Inc. | |
| 77. | PTSMA, Inc. | |
| 78. | Quad City Management, Inc. | |
| 79. | RCI (Colorado), Inc. | |
| 80. | RCI (Exertec), Inc. | |
| 81. | RCI (Michigan), Inc. | |
| 82. | RCI (S.P.O.R.T.), Inc. | |
| 83. | RCI (WRS), Inc. | |
| 84. | Rebound Oklahoma, Inc. | |
| 85. | Redwood Pacific Therapies, Inc. | |
| 86. | Rehab Provider Network — East I, Inc. | |
| 87. | Rehab Provider Network — East II, Inc. | |
| 88. | Rehab Provider Network — Indiana, Inc. | |
| 89. | Rehab Provider Network-Michigan, Inc. | |
| 90. | Rehab Provider Network — New Jersey, Inc. | |
| 91. | Rehab Provider Network-Ohio, Inc. |
Schedule II-3
| 92. | Rehab Provider Network — Pennsylvania, Inc. | |
| 93. | Rehab Provider Network of Colorado, Inc. | |
| 94. | Rehab Provider Network of Florida, Inc. | |
| 95. | Rehab Provider Network of New Mexico, Inc. | |
| 96. | Rehab Provider Network of North Carolina, Inc. | |
| 97. | Rehab Provider Network of South Carolina, Inc. | |
| 98. | Rehab Provider Network of Texas, Inc. | |
| 99. | Rehab Provider Network of Virginia, Inc. | |
| 100. | RehabClinics, Inc. | |
| 101. | RehabClinics (GALAXY), Inc. | |
| 102. | RehabClinics (PTA), Inc. | |
| 103. | RehabClinics (SPT), Inc. | |
| 104. | RehabClinics Abilene, Inc. | |
| 105. | RehabClinics Dallas, Inc. | |
| 106. | RPN of NC, Inc. | |
| 107. | Rehabilitation Center of Washington, D.C., Inc. | |
| 108. | Rehabilitation Hospital of Vancouver, LLC | |
| 109. | Rehabilitation Institute of Xxxxxx, LLC | |
| 110. | Rehabilitation Institute of North Texas, LLC | |
| 111. | Select Air II, Inc. | |
| 112. | Select Employment Services, Inc. | |
| 113. | Select Hospital Investors, Inc. | |
| 114. | SelectMark, Inc. | |
| 115. | Select Medical of Kentucky, Inc. | |
| 116. | Select Medical of Maryland, Inc. | |
| 117. | Select Medical of New York, Inc. | |
| 118. | Select Medical Property Ventures, LLC | |
| 119. | Select Medical Rehabilitation Clinics, Inc. | |
| 120. | Select Medical Rehabilitation Services, Inc. | |
| 121. | Select NovaCare — KOP, Inc. | |
| 122. | Select NovaCare — PIT, Inc. | |
| 123. | Select NovaCare — PBG, Inc. | |
| 124. | Select Physical Therapy Holdings, Inc. |
Schedule II-4
| 125. | Select Physical Therapy Limited Partnership for Better Living | |
| 126. | Select Physical Therapy Network Services, Inc. | |
| 127. | Select Physical Therapy of Albuquerque, Ltd. | |
| 128. | Select Physical Therapy of Birmingham, Ltd. | |
| 129. | Select Physical Therapy of Blue Springs Limited Partnership | |
| 130. | Select Physical Therapy of Cave Springs Limited Partnership | |
| 131. | Select Physical Therapy of Chicago, Inc. | |
| 132. | Select Physical Therapy of Colorado Springs Limited Partnership | |
| 133. | Select Physical Therapy of Denver, Ltd. | |
| 134. | Select Physical Therapy of Green Bay Limited Partnership | |
| 135. | Select Physical Therapy of Illinois Limited Partnership | |
| 136. | Select Physical Therapy of Xxxxxxx, Ltd. | |
| 137. | Select Physical Therapy of Knoxville Limited Partnership | |
| 138. | Select Physical Therapy of Xxxxxxx Limited Partnership | |
| 139. | Select Physical Therapy of Louisville, Ltd. | |
| 140. | Select Physical Therapy of Michigan, Inc. | |
| 141. | Select Physical Therapy of Ohio Limited Partnership | |
| 142. | Select Physical Therapy of Portola Valley Limited Partnership | |
| 143. | Select Physical Therapy of Scottsdale Limited Partnership | |
| 144. | Select Physical Therapy of St. Louis Limited Partnership | |
| 145. | Select Physical Therapy of West Denver Limited Partnership | |
| 146. | Select Physical Therapy Orthopedic Services, Inc. | |
| 147. | Select Physical Therapy Texas Limited Partnership | |
| 148. | Select Provider Networks, Inc. | |
| 149. | Select Rehabilitation Hospital — Hershey, Inc. | |
| 150. | Select Software Ventures, LLC | |
| 151. | Select Specialty Hospital — Xxx Arbor, Inc. | |
| 152. | Select Specialty Hospital — Arizona, Inc. | |
| 153. | Select Specialty Hospital — Augusta, Inc. | |
| 154. | Select Specialty Hospital — Baton Rouge, Inc. | |
| 155. | Select Specialty Hospital — Battle Creek, Inc. | |
| 156. | Select Specialty Hospital — Beech Grove, Inc. | |
| 157. | Select Specialty Hospital — Bloomington, Inc. |
Schedule II-5
| 158. | Select Specialty Hospital — Brevard, Inc. | |
| 159. | Select Specialty Hospital — Broward, Inc. | |
| 160. | Select Specialty Hospital — Central Detroit, Inc. | |
| 161. | Select Specialty Hospital — Charleston, Inc. | |
| 162. | Select Specialty Hospital — Cincinnati, Inc. | |
| 163. | Select Specialty Hospital — Colorado Springs, Inc. | |
| 164. | Select Specialty Hospital — Columbia, Inc. | |
| 165. | Select Specialty Hospital — Columbus, Inc. | |
| 166. | Select Specialty Hospital — Columbus/East, Inc. | |
| 167. | Select Specialty Hospital — Columbus/University, Inc. | |
| 168. | Select Specialty Hospital — Conroe, Inc. | |
| 169. | Select Specialty Hospital — Dallas, Inc. | |
| 170. | Select Specialty Hospital — Danville, Inc. | |
| 171. | Select Specialty Hospital — Denver, Inc. | |
| 172. | Select Specialty Hospital — Des Moines, Inc. | |
| 173. | Select Specialty Hospital — Durham, Inc. | |
| 174. | Select Specialty Hospital — Eastern Iowa, Inc. | |
| 175. | Select Specialty Hospital — Erie, Inc. | |
| 176. | Select Specialty Hospital — Evansville, Inc. | |
| 177. | Select Specialty Hospital — Flint, Inc. | |
| 178. | Select Specialty Hospital — Fort Xxxxx, Inc. | |
| 179. | Select Specialty Hospital — Fort Xxxxx, Inc. | |
| 180. | Select Specialty Hospital — Gainesville, Inc. | |
| 181. | Select Specialty Hospital — Greensboro, Inc. | |
| 182. | Select Specialty Hospital — Grosse Pointe, Inc. | |
| 183. | Select Specialty Hospital — Huntsville, Inc. | |
| 184. | Select Specialty Hospital — Indianapolis, Inc. | |
| 185. | Select Specialty Hospital — Xxxxxxx, Inc. | |
| 186. | Select Specialty Hospital — Jefferson County, Inc. | |
| 187. | Select Specialty Hospital — Johnstown, Inc. | |
| 188. | Select Specialty Hospital — Kalamazoo, Inc. | |
| 189. | Select Specialty Hospital — Kansas City, Inc. | |
| 190. | Select Specialty Hospital — Knoxville, Inc. |
Schedule II-6
| 191. | Select Specialty Hospital — Lake, Inc. | |
| 192. | Select Specialty Hospital — Lancaster, Inc. | |
| 193. | Select Specialty Hospital — Lansing, Inc. | |
| 194. | Select Specialty Hospital — Laurel Highlands, Inc. | |
| 195. | Select Specialty Hospital — Xxxx, Inc. | |
| 196. | Select Specialty Hospital — Lexington, Inc. | |
| 197. | Select Specialty Hospital — Little Rock, Inc. | |
| 198. | Select Specialty Hospital — Little Rock/BMC, Inc. | |
| 199. | Select Specialty Hospital — Longview, Inc. | |
| 200. | Select Specialty Hospital — Louisville, Inc. | |
| 201. | Select Specialty Hospital — Macomb County, Inc. | |
| 202. | Select Specialty Hospital — Madison, Inc. | |
| 203. | Select Specialty Hospital — McKeesport, Inc. | |
| 204. | Select Specialty Hospital — Memphis, Inc. | |
| 205. | Select Specialty Hospital — Midland, Inc. | |
| 206. | Select Specialty Hospital — Milwaukee, Inc. | |
| 207. | Select Specialty Hospital — Nashville, Inc. | |
| 208. | Select Specialty Hospital — Newark, Inc. | |
| 209. | Select Specialty Hospital — North Atlanta, Inc. | |
| 210. | Select Specialty Hospital — North Knoxville, Inc. | |
| 211. | Select Specialty Hospital — Northeast New Jersey, Inc. | |
| 212. | Select Specialty Hospital — Northeast Ohio, Inc. | |
| 213. | Select Specialty Hospital — Northwest Detroit, Inc. | |
| 214. | Select Specialty Hospital — Northwest Indiana, Inc. | |
| 215. | Select Specialty Hospital — Oklahoma City, Inc. | |
| 216. | Select Specialty Hospital — Oklahoma City/East Campus, Inc. | |
| 217. | Select Specialty Hospital — Omaha, Inc. | |
| 218. | Select Specialty Hospital — Orlando, Inc. | |
| 219. | Select Specialty Hospital — Palm Beach, Inc. | |
| 220. | Select Specialty Hospital — Panama City, Inc. | |
| 221. | Select Specialty Hospital — Paramus, Inc. | |
| 222. | Select Specialty Hospital — Pensacola, Inc. | |
| 223. | Select Specialty Hospital — Phoenix, Inc. |
Schedule II-7
| 224. | Select Specialty Hospital — Pine Bluff, Inc. | |
| 225. | Select Specialty Hospital — Pittsburgh, Inc. | |
| 226. | Select Specialty Hospital — Pittsburgh/UPMC, Inc. | |
| 227. | Select Specialty Hospital — Plainfield, Inc. | |
| 228. | Select Specialty Hospital — Pontiac, Inc. | |
| 229. | Select Specialty Hospital — Quad Cities, Inc. | |
| 230. | Select Specialty Hospital — Reno, Inc. | |
| 231. | Select Specialty Hospital — Riverview, Inc. | |
| 232. | Select Specialty Hospital — St. Lucie, Inc. | |
| 233. | Select Specialty Hospital — Saginaw, Inc. | |
| 234. | Select Specialty Hospital — San Antonio, Inc. | |
| 235. | Select Specialty Hospital — Sarasota, Inc. | |
| 236. | Select Specialty Hospital — Savannah, Inc. | |
| 237. | Select Specialty Hospital — Sioux Falls, Inc. | |
| 238. | Select Specialty Hospital-South Dallas, Inc. | |
| 239. | Select Specialty Hospital — Springfield, Inc. | |
| 240. | Select Specialty Hospital — Tallahassee, Inc. | |
| 241. | Select Specialty Hospital — Topeka, Inc. | |
| 242. | Select Specialty Hospital — TriCities, Inc. | |
| 243. | Select Specialty Hospital — Tulsa, Inc. | |
| 244. | Select Specialty Hospital — Tupelo, Inc. | |
| 245. | Select Specialty Hospital — Western Michigan, Inc. | |
| 246. | Select Specialty Hospital — Western Missouri, Inc. | |
| 247. | Select Specialty Hospital — Wichita, Inc. | |
| 248. | Select Specialty Hospital — Wilmington, Inc. | |
| 249. | Select Specialty Hospital — Winston — Salem, Inc. | |
| 250. | Select Specialty Hospital — Youngstown, Inc. | |
| 251. | Select Specialty Hospital — Zanesville, Inc. | |
| 252. | Select Specialty Hospitals, Inc. | |
| 253. | Select Subsidiaries, Inc. | |
| 254. | Select Synergos, Inc. | |
| 255. | Select Transport, Inc. | |
| 256. | Select Unit Management, Inc. |
Schedule II-8
| 257. | SemperCare Hospital of Fort Xxxxx, Inc. | |
| 258. | SemperCare Hospital of Hartford, Inc. | |
| 259. | SemperCare Hospital of Lakeland, Inc. | |
| 260. | SemperCare Hospital of Lakewood, Inc. | |
| 261. | SemperCare Hospital of Mobile, Inc. | |
| 262. | SemperCare Hospital of Pensacola, Inc. | |
| 263. | SemperCare Hospital of Sarasota, Inc. | |
| 264. | SemperCare Hospital of Volusia, Inc. | |
| 265. | SemperCare Hospital of Washington, Inc. | |
| 266. | SemperCare, Inc. | |
| 267. | SLMC Finance Corporation | |
| 268. | Southwest Physical Therapy, Inc. | |
| 269. | Sports & Orthopedic Rehabilitation Services, Inc. | |
| 270. | S.T.A.R.T., Inc. | |
| 271. | Xxxxxxxxxx-Xxxxx, Inc. | |
| 272. | Theraworks, Inc. | |
| 273. | The Rehab Group, Inc. | |
| 274. | The Rehab Group — Murfreesboro, LLC | |
| 275. | Vanguard Rehabilitation, Inc. | |
| 276. | Victoria Healthcare, Inc. | |
| 277. | Waltham Physical Therapy Associates, Inc. | |
| 278. | Wayzata Physical Therapy Center, Inc. | |
| 279. | West Side Physical Therapy, Inc. | |
| 280. | West Suburban Health Partners, Inc. |
Schedule II-9
EXHIBIT A
Schedule 2.01
| Loans/Commitments | Aggregate Amount | |||
Tranche B Term Loans |
$ | 191,753,428.04 | ||
Tranche B-1 Term Loans |
$ | 291,313,881.96 | ||
Revolving Commitments |
$ | 0 | ||
Extended Revolving Commitments |
$ | 300,000,000.00 | ||
Exhibit A-1
Annex I to
Amendment No. 4
Amendment No. 4
Standard Terms and Conditions for Assignment and Assumption.
(a) Representations and Warranties.
(1) Assignors. Each Assignor, severally and not jointly, (a)
represents and warrants that (i) it is the legal and beneficial owner of the
relevant Assigned Interest, (ii) such Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and authority,
and has taken all action necessary, to execute and deliver Amendment No. 4 to the
Credit Agreement (for purposes of the Assignment only) and to consummate the
transactions contemplated thereby, and (b) assumes no responsibility with respect to
(i) any statements, warranties or representations made in or in connection with the
Credit Agreement or any other Loan Document, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Loan Documents or any
collateral thereunder, (iii) the financial condition of the Borrower, any of its
Subsidiaries or Affiliates or any other Person obligated in respect of any Loan
Document or (iv) the performance or observance by the Borrower, any of its
Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.
(2) Assignees. Each Assignee (a) represents and warrants that (i) it
has full power and authority, and has taken all action necessary, to execute and
deliver Amendment No. 4 to the Credit Agreement and to consummate the transactions
contemplated thereby and to become a Lender under the Credit Agreement, (ii) it
satisfies the requirements, if any, specified in the Credit Agreement that are
required to be satisfied by it in order to acquire the relevant Assigned Interest
and become a Lender, (iii) from and after the Amendment No. 4 Effective Date, it
shall be bound by the provisions of the Credit Agreement as a Lender thereunder and,
to the extent of the relevant Assigned Interest, shall have the obligations of a
Lender thereunder, (iv) it has received a copy of the Credit Agreement, together
with copies of the most recent financial statements delivered pursuant to Section
5.01 of the Credit Agreement, and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into this
Assignment and to purchase such Assigned Interest, on the basis of which it has made
such analysis and decision independently and without reliance on the Administrative
Agent or any other Lender, and (v) if it is a Foreign Lender, attached to Amendment
No. 4 to the Credit Agreement is any documentation required to be delivered by it
pursuant to Section 2.17(e) of the Credit Agreement, duly completed and executed by
such Assignee, and (b) agrees that (i) it will, independently and without reliance
on the Administrative Agent, any Assignor or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to make
its own credit decisions in taking or not taking action under the Loan Documents,
and (ii) it will perform in accordance with their terms all of the obligations which
by the terms of the Loan Documents are required to be performed by it as a Lender.
Annex I-1
(3) Payments. From and after the Amendment No. 4 Effective Date, the
Administrative Agent shall make all payments in respect of each Assigned Interest
(including payments of principal, interest, fees and other amounts) to the relevant
Assignor for amounts which have accrued to but excluding the Amendment No. 4
Effective Date and to the relevant Assignee for amounts which have accrued from and
after the Amendment No. 4 Effective Date; provided that any consent fees in respect
of Amendment No. 4-A shall be paid to any relevant Assignor that delivered a
signature page to Amendment No. 4-A on or prior to the Consent Deadline (as defined
in Amendment No. 4-A).
(4) General. The assignments pursuant to Section One of Amendment No.
4 to the Credit Agreement shall be binding upon and inure to the benefit of the
applicable parties hereto and their respective successors and assigns.
Annex I-2
