Exhibit 10.1
------------
EXECUTION COPY
===============================================================================
AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of
March 21, 2005
among
HEALTHSOUTH CORPORATION,
The Lenders Party Hereto,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
and Collateral Agent,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Syndication Agent,
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Documentation Agent
___________________________
DEUTSCHE BANK SECURITIES INC.,
as Arranger
X.X. XXXXXX SECURITIES INC. WACHOVIA CAPITAL MARKETS, LLC
as Co-Lead Arrangers and Joint Bookrunners
===============================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I
Definitions
SECTION 1.01. Defined Terms................................................1
SECTION 1.02. Classification of Loans and Borrowings......................39
SECTION 1.03. Terms Generally.............................................40
SECTION 1.04. Accounting Terms; GAAP......................................40
SECTION 1.05. Senior Debt Status..........................................40
ARTICLE II
The Credits
SECTION 2.01. Term Loans; Commitments.....................................41
SECTION 2.02. Loans and Borrowings........................................41
SECTION 2.03. Requests for Revolving Borrowings...........................42
SECTION 2.04. Letters of Credit...........................................43
SECTION 2.05. Funding of Revolving Borrowings.............................53
SECTION 2.06. Interest Elections..........................................54
SECTION 2.07. Termination and Reduction of Commitments....................55
SECTION 2.08. Repayment of Loans; Evidence of Debt........................56
SECTION 2.09. Amortization of Term Loans..................................57
SECTION 2.10. Prepayment of Loans; Cash Collateralization of
Letters of Credit...........................................57
SECTION 2.11. Fees .......................................................60
SECTION 2.12. Interest ...................................................61
SECTION 2.13. Alternate Rate of Interest..................................62
SECTION 2.14. Increased Costs.............................................62
SECTION 2.15. Break Funding Payments......................................64
SECTION 2.16. Taxes ......................................................64
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Setoffs..66
SECTION 2.18. Mitigation Obligations; Replacement of Lenders..............68
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization and Authority..................................68
SECTION 3.02. Execution; No Conflicts.....................................69
SECTION 3.03. Solvency 69
SECTION 3.04. Subsidiaries................................................70
SECTION 3.05. Ownership Interests.........................................70
SECTION 3.06. Financial Condition.........................................70
SECTION 3.07. Title to Properties.........................................71
SECTION 3.08. Taxes ......................................................71
SECTION 3.09. Other Agreements............................................71
SECTION 3.10. Litigation..................................................72
SECTION 3.11. Margin Stock................................................72
SECTION 3.12. Investment and Holding Company Status.......................73
SECTION 3.13. Intellectual Property.......................................73
SECTION 3.14. No Untrue Statement.........................................73
SECTION 3.15. No Consents, Etc............................................73
SECTION 3.16. ERISA ......................................................74
SECTION 3.17. No Default..................................................74
SECTION 3.18. Environmental Matters.......................................74
SECTION 3.19. Employment Matters..........................................74
SECTION 3.20. Reimbursement from Third Party Payors.......................75
SECTION 3.21. Compliance with Laws........................................75
SECTION 3.22. Insurance...................................................75
SECTION 3.23. Status of Obligations.......................................75
ARTICLE IV
Conditions
SECTION 4.01. Amendment Effective Date....................................75
SECTION 4.02. Each Credit Event...........................................77
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements, Reports, Etc..........................78
SECTION 5.02. Maintain Properties.........................................81
SECTION 5.03. Existence, Qualification, Etc...............................81
SECTION 5.04. Regulations and Obligations.................................82
SECTION 5.05. Insurance...................................................82
SECTION 5.06. True Books..................................................82
SECTION 5.07. Right of Inspection.........................................82
SECTION 5.08. Observe All Laws............................................82
SECTION 5.09. Governmental Licenses.......................................83
SECTION 5.10. Notice of Material Events...................................83
SECTION 5.11. Suits or Other Proceedings..................................83
SECTION 5.12. Notice of Discharge of Hazardous Material or
Environmental Complaint.....................................83
SECTION 5.13. Information Regarding Collateral............................84
SECTION 5.14. Additional Credit Support Subsidiaries......................84
SECTION 5.15. Further Assurances..........................................85
SECTION 5.16. Ratings ....................................................86
ARTICLE VI
Negative Covenants
SECTION 6.01. Financial Covenants.........................................86
SECTION 6.02. Investments.................................................87
SECTION 6.03. Indebtedness; Subsidiary Preferred Stock....................87
SECTION 6.04. Disposition of Assets.......................................89
SECTION 6.05. Fundamental Changes.........................................90
SECTION 6.06. Liens ......................................................90
SECTION 6.07. Restrictive Agreements......................................91
SECTION 6.08. Acquisitions................................................91
SECTION 6.09. Restricted Payments; Certain Prepayments of Indebtedness....92
SECTION 6.10. Compliance with ERISA.......................................93
SECTION 6.11. Fiscal Year.................................................94
SECTION 6.12. Dissolution, etc............................................94
SECTION 6.13. Transactions with Affiliates................................94
SECTION 6.14. Sale and Leaseback Transactions............................94
SECTION 6.15. Swap Agreements............................................95
SECTION 6.16. Management Contracts.......................................95
SECTION 6.17. Use of Proceeds............................................95
SECTION 6.18. Amendment of Material Agreements...........................95
SECTION 6.19. Capital Expenditures.......................................96
ARTICLE VII
Events of Default
SECTION 7.01. Events of Default...........................................96
SECTION 7.02. CAM Exchange...............................................100
ARTICLE VIII
The Agents
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices....................................................103
SECTION 9.02. Waivers; Amendments........................................104
SECTION 9.03. Expenses; Indemnity; Damage Waiver.........................106
SECTION 9.04. Successors and Assigns.....................................107
SECTION 9.05. Survival ..................................................111
SECTION 9.06. Counterparts; Integration; Effectiveness...................111
SECTION 9.07. Severability...............................................112
SECTION 9.08. Right of Setoff............................................112
SECTION 9.09. Governing Law; Jurisdiction; Consent to
Service of Process.........................................112
SECTION 9.10. WAIVER OF JURY TRIAL.......................................113
SECTION 9.11. Headings ..................................................113
SECTION 9.12. Confidentiality............................................113
SECTION 9.13. Additional Agents..........................................114
SECTION 9.14. Release of Subsidiary Loan Parties and Collateral..........114
SECTION 9.15. Patriot Act................................................115
SECTION 9.16. Waiver of Defaults Existing Prior to Amendment
Effective Date.............................................115
SCHEDULES:
---------
Schedule 1.01 -- Subsidiary Loan Parties
Schedule 1.01A -- Indentures and Restrictive Indentures
Schedule 1.01B -- Existing Indebtedness
Schedule 1.01C -- Specified Properties
Schedule 1.01D -- Stock Pledges
Schedule 2.01 -- Commitments and Term Loan Amounts
Schedule 2.04 -- Existing Letters of Credit
Schedule 3.04 -- Subsidiaries
Schedule 3.05 -- Ownership Interests
Schedule 3.06 -- Financial Condition
Schedule 3.09 -- Other Agreements
Schedule 3.10 -- Litigation
Schedule 3.13 -- Intellectual Property
Schedule 3.18 -- Environmental Matters
Schedule 3.19 -- Employment Matters
Schedule 3.21 -- Compliance with Laws
Schedule 5.15 -- Specified Deposit Accounts
Schedule 6.02 -- Investments
Schedule 6.06 -- Liens
Schedule 6.07 -- Restrictive Agreements
EXHIBITS:
--------
Exhibit A -- Form of Assignment and Assumption
Exhibit B -- Form of Guarantee and Collateral Agreement
Exhibit C -- Form of Monthly Financial Package
Exhibit D -- Form of Perfection Certificate
Exhibit E -- Form of Opinion of Borrower's Outside Counsel
AMENDED AND RESTATED CREDIT AGREEMENT dated
as of March 21, 2005 (this "Agreement"), among
HEALTHSOUTH CORPORATION; the LENDERS party hereto;
JPMORGAN CHASE BANK, N.A., as Administrative Agent
and Collateral Agent; WACHOVIA BANK, NATIONAL
ASSOCIATION, as Syndication Agent; and DEUTSCHE BANK
TRUST COMPANY AMERICAS, as Documentation Agent.
On June 14, 2002, the Borrower (such term and each other capitalized
term used but not otherwise defined in this preamble having the meaning
assigned to it in Article I below), certain lenders, JPMorgan Chase Bank,
Wachovia Bank, National Association, UBS Warburg LLC, ScotiaBanc, Inc.,
Deutsche Bank AG, New York Branch and Bank of America, N.A., entered into the
Existing Credit Agreement pursuant to which the lenders party thereto agreed to
extend credit to the Borrower on a revolving basis. The Borrower has requested
that (i) the Lenders convert $315,000,000 in aggregate principal amount of the
loans outstanding under the Existing Credit Agreement on the Amendment
Effective Date to Term Loans, (ii) the Lenders make Revolving Loans at any time
and from time to time after the Amendment Effective Date and prior to the
Revolving Credit/LC Maturity Date in an aggregate principal amount at any time
outstanding not in excess of $250,000,000 and (iii) the Issuing Banks issue
Letters of Credit in an aggregate face amount at any time outstanding not in
excess of $150,000,000 to support payment obligations incurred in the ordinary
course of business by the Borrower and the Subsidiaries.
The parties hereto agree as follows:
ARTICLE I
Definitions
-----------
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"2005 Notes" means the 6.875% Senior Notes due 2005 issued by the
Borrower.
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Acceptable Appraiser" means an investment banking firm or other
valuation consultant mutually acceptable to the Borrower and the Administrative
Agent and not an Affiliate of the Borrower or the Administrative Agent;
provided, however, in the event the Borrower and the Administrative Agent are
unable to agree on an Acceptable Appraiser, then each of the Borrower and the
Administrative Agent shall select their own investment banking firm or
valuation consultant, and each such investment banking firm or other valuation
consultant shall select an Acceptable Appraiser; provided, further, that in the
event either the Borrower or the Administrative Agent do not make such
selection at least 15 days prior to the date the applicable financial
statements are due pursuant to Section 5.01(a)(ii) or 5.01(a)(iii), the
selection by the other Person shall be the Acceptable Appraiser.
"Acquired Indebtedness" means (i) with respect to any Person that
becomes a Subsidiary after the Amendment Effective Date, Indebtedness of such
Person and its subsidiaries existing at the time such Person becomes a
Subsidiary and (ii) with respect to the Borrower or any Subsidiary, any
Indebtedness assumed by the Borrower or any Subsidiary in connection with the
acquisition of an asset from another Person, in each case to the extent such
Indebtedness was not created in contemplation of such Person becoming a
Subsidiary or such acquisition.
"Adjusted Consolidated EBITDA" of any Person means, (a) with respect
to any period ending on or prior to the Audit Report Date, the "EBITDA after
Minority Interest" for each month ending during such period as specified in the
Monthly Financial Package for such month, and (b) with respect to any period
ending after the Audit Report Date, Consolidated Net Income, plus the sum of
(i) Consolidated Income Tax Expense, (ii) Consolidated Depreciation Expense,
(iii) Consolidated Amortization Expense, (iv) Consolidated Interest Expense,
(v) all other unusual non-cash items or non-recurring non-cash items reducing
Consolidated Net Income of such Person and its subsidiaries, determined on a
consolidated basis in accordance with GAAP, provided, that cash expenditures,
to the extent made in respect of charges referred to in this clause (v) that
are incurred after June 30, 2005, shall be deducted in determining Adjusted
Consolidated EBITDA for the period during which such expenditures are made, and
(vi) all restructuring charges of the type indicated in the Monthly Financial
Package for any fiscal quarter period ending on or prior to June 30, 2005, and
any restructuring charges in respect of legal fees associated with the
class-action and shareholder derivative litigation disclosed on Schedule 3.10
for any fiscal quarter period ending after June 30, 2005, in each case
determined on a consolidated basis in accordance with GAAP, and less all
non-cash items to the extent increasing Consolidated Net Income of such Person
and its subsidiaries, determined on a consolidated basis in accordance with
GAAP, in each case, for such Person's prior four full fiscal quarters for which
financial results have been reported immediately prior to the determination
date.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means JPMorgan Chase Bank, N.A., in its
capacity as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Affiliate Transaction" has the meaning assigned to such term in
Section 6.13.
"Agent/Arranger Parties" has the meaning assigned to such term in
Section 9.03.
"Agents" means the Administrative Agent and the Collateral Agent.
"Alternate Base Rate" means, for any day, a rate per annum equal to
the greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Amendment Effective Date" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with Section
9.02).
"Applicable Rate" means, for any day, (i) with respect to any ABR Term
Loan or Eurodollar Term Loan, as the case may be, the applicable rate per annum
set forth below under the caption "ABR Spread" or "Eurodollar Spread" based
upon the most recent ratings of the Term Loans from Xxxxx'x and S&P (with each
rating to become effective for purposes of this definition on the date on which
it is adopted by Xxxxx'x or S&P, as the case may be); provided, however, that,
until the Borrower shall have obtained ratings from each of Xxxxx'x and S&P
with respect to the Term Loans, the "Applicable Rate" shall be the applicable
rate per annum set forth below with respect to Category 1:
Ratings: ABR Eurodollar
-------- --- ----------
(Xxxxx'x/S&P) Spread Spread
------ ------
Category 1 150.0 250.0
----------
Categories 2 and 3 inapplicable
Category 2 125.0 225.0
----------
Ba3 and B+
or
B1 and BB-
Category 3 100.0 200.0
----------
Ba3 (or better) and BB- (or better)
and (ii) with respect to any ABR Revolving Loan or Eurodollar Revolving Loan,
or with respect to the commitment fees payable hereunder, as the case may be,
the applicable rate per annum set forth below under the caption "ABR Spread",
"Eurodollar Spread" or "Commitment Fee Rate", as the case may be, based upon
the Net Leverage Ratio as of the most recent determination date; provided
however that, until the Supplemental Audit Report Date, the "Applicable Rate"
shall be the applicable rate per annum set forth below with respect to Category
1:
ABR Eurodollar Commitment Fee
--- ---------- --------------
Net Leverage Ratio: Spread Spread Rate
------------------- ------ ------ ----
Category 1 175.0 275.0 75.0
----------
>4.5 to 1
-
Category 2 150.0 250.0 75.0
----------
<4.5 to 1 and >4.0 to 1
-
Category 3 125.0 225.0 50.0
----------
<4.0 to 1 and >3.5 to 1
-
Category 4 100.0 200.0 50.0
----------
<3.5 to 1 and >3.0 to 1
-
Category 5 75.0 175.0 50.0
----------
<3.00 to 1
Except as set forth below, the Net Leverage Ratio used on any date to determine
the Applicable Rate shall be that in effect at the end of the most recent
fiscal quarter ended prior to such date and after the Supplemental Audit Report
Date for which financial statements have been delivered pursuant to Section
5.01(a)(ii) or 5.01(a)(iii); provided that if any financial statements required
to have been delivered under Section 5.01(a)(ii) or 5.01(a)(iii) shall not have
been delivered, the Applicable Rate shall, until such financial statements
shall have been delivered, be determined by reference to Category 1 in the
above Table.
"Applicable Revolving Percentage" means, with respect to any Revolving
Lender, the percentage of the total Revolving Commitments represented by such
Lender's Revolving Commitment. If the Revolving Commitments have terminated or
expired, the Applicable Revolving Percentages of the Revolving Lenders shall be
determined based upon the Revolving Commitments most recently in effect, giving
effect to any assignments.
"Applicable Term Percentage" means, with respect to any Term Lender,
the percentage of the total principal amount of the Term Loans represented by
such Term Lender's Term Loans.
"Applicable Tranche A LC Percentage" means, with respect to any
Tranche A LC Lender, the percentage of the total Tranche A LC Commitments
represented by such Tranche A LC Lender's Tranche A LC Commitment. If the
Tranche A LC Commitments have been terminated or expired, the Applicable
Tranche A LC Percentages of the Tranche A LC Lenders shall be determined based
upon the Tranche A LC Commitments most recently in effect, giving effect to any
assignments.
"Applicable Tranche B LC Percentage" means, with respect to any
Tranche B LC Lender, the percentage of the total Tranche B Deposits represented
by such Tranche B LC Lender's Tranche B Deposit. If the Tranche B Deposits have
been returned to the Tranche B LC Lenders or applied to reimburse Tranche B LC
Disbursements, the Applicable Tranche B LC Percentages of the Tranche B LC
Lenders shall be determined based upon the Tranche B Deposits most recently in
effect, giving effect to any assignments.
"Approved Fund" has the meaning assigned to such term in Section
9.04(b).
"Asset Sale" for any Person means the sale, conveyance or other
disposition (including, by merger or consolidation, and whether by operation of
law or otherwise) of any of that Person's assets (including, the sale or other
disposition of Capital Stock of any subsidiary of such Person, whether by such
Person or by such subsidiary), whether owned on the Amendment Effective Date or
subsequently acquired, in one transaction or a series of related transactions,
in which such Person and/or its subsidiaries sell, lease, convey or otherwise
dispose of: (i) all or substantially all of the Capital Stock of any of such
Person's subsidiaries; (ii) assets which constitute all or substantially all of
any division or line of business of such Person or any of its subsidiaries;
(iii) accounts receivable of such Person or (iv) any other assets of such
Person or any of its subsidiaries other than inventory and supplies in the
ordinary course of business; provided, however, that the following shall not
constitute Asset Sales: (a) transactions between the Borrower and any of its
Subsidiaries or among such Subsidiaries; (b) any Restricted Payment permitted
by Section 6.09 or any Permitted Investment; (c) the creation of any Lien
permitted by Section 6.06; (d) sales of damaged, worn-out, or obsolete
equipment or assets that, in the Borrower's reasonable judgment, are no longer
either used or useful in the business of the Borrower or any Subsidiary or (e)
sales of other assets so long as the aggregate consideration received in any
such sale or series of related sales does not exceed $1,000,000.
"Assignment and Assumption" means an assignment and assumption entered
into by a Lender and an assignee (with the consent of any party whose consent
is required by Section 9.04), and accepted by the Administrative Agent, in the
form of Exhibit A or any other form approved by the Administrative Agent.
"Attributable Indebtedness" when used with respect to any Sale and
Leaseback Transaction means, as at the time of determination, the present value
(discounted at a rate equivalent to the interest rate implicit in the lease,
compounded on a semiannual basis) of the total obligations of the lessee for
rental payments, after excluding all amounts required to be paid on account of
maintenance and repairs, insurance, taxes, utilities and other similar expenses
payable by the lessee pursuant to the terms of the lease, during the remaining
term of the lease included in any such Sale and Leaseback Transaction or until
the earliest date on which the lessee may terminate such lease without penalty
or upon payment of a penalty (in which case the rental payments shall include
such penalty); provided, that the Attributable Indebtedness with respect to a
Sale and Leaseback Transaction shall be no less than the fair market value of
the property subject to such Sale and Leaseback Transaction; and provided;
further; that, with respect to the Borrower or any Subsidiary, the Attributable
Indebtedness incurred in connection with the Digital Hospital Transaction shall
be limited to Indebtedness incurred on a recourse basis by the Borrower or a
Subsidiary (other than a Joint Venture formed for the purpose of owning,
running, operating or managing the Digital Hospital) or Indebtedness with
respect to which the Borrower or any Subsidiary is otherwise liable on a
recourse basis.
"Audit Report Date" means the date on which the Borrower shall deliver
to the Administrative Agent, and file with the SEC, the audited financial
statements for three or more consecutive Fiscal Years, the last of which ends
on December 31, 2003.
"Benchmark LIBO Rate" has the meaning assigned to such term in Section
2.04(q).
"Board" means the Board of Governors of the Federal Reserve System of
the United States of America.
"Board of Directors" means, with respect to any Person, the board of
directors or similar governing body of such Person or any duly authorized
committee thereof.
"Borrower" means HealthSouth Corporation, a Delaware corporation.
"Borrowing" means Loans of the same Class and Type made, converted or
continued on the same date and, in the case of Eurodollar Loans, as to which a
single Interest Period is in effect.
"Borrowing Request" means a request by the Borrower for a Borrowing in
accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by
law to remain closed; provided that, when used in connection with a Eurodollar
Loan, the term "Business Day" shall also exclude any day on which banks are not
open for dealings in dollar deposits in the London interbank market.
"CAM" means the mechanism for the allocation and exchange of interests
in Loans and other extensions of credit under this Agreement and collections
thereunder established in Section 7.02.
"CAM Exchange" means the exchange of the Lenders' interests provided
for in Section 7.02.
"CAM Exchange Date" means the date on which any Event of Default
referred to in paragraph (h) or (i) of Article VII shall occur, but only if, on
such date, any Guarantees and Liens created under the Security Documents shall
not guarantee or secure the Designated Obligations of each Tranche equally and
ratably as a result of restrictions contained in the Restrictive Indentures or
the Senior Subordinated Credit Agreement.
"CAM Percentage" means, as to each Lender, a fraction, expressed as a
decimal, of which (a) the numerator shall be the aggregate amount of the
Designated Obligations owed to such Lender (whether or not at the time due and
payable) immediately prior to the CAM Exchange Date and (b) the denominator
shall be the aggregate amount of the Designated Obligations owed to all the
Lenders (whether or not at the time due and payable) immediately prior to the
CAM Exchange Date.
"Capital Expenditures" means, for any period, without duplication, (a)
the additions to property, plant and equipment and other capital expenditures
of the Borrower and the Subsidiaries that are (or would be) set forth in a
consolidated statement of cash flows of the Borrower for such period prepared
in accordance with GAAP and (b) Capitalized Lease Obligations incurred by the
Borrower and the Subsidiaries during such period.
"Capital Stock" of any Person means any and all shares, rights to
purchase, warrants or options (whether or not currently exercisable),
participation or other equivalents of or interest in (however designated) the
equity (including common stock, Preferred Stock and partnership, joint venture
and limited liability company interests) of such Person (excluding any debt
securities that are convertible into, or exchangeable for, such equity).
"Capitalized Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the Amendment Effective Date, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the Amendment Effective Date or (c) compliance by any Lender or
the Issuing Bank (or, for purposes of Section 2.14(b), by any lending office of
such Lender or by such Lender's or the Issuing Bank's holding company, if any)
with any request, guideline or directive (whether or not having the force of
law) of any Governmental Authority made or issued after the Amendment Effective
Date.
"Change of Control" means (a) the acquisition of ownership, directly
or indirectly, beneficially or of record, by any person or group (within the
meaning of the Exchange Act), of Capital Stock representing more than 35% of
the aggregate ordinary voting power represented by the issued and outstanding
Capital Stock of the Borrower; (b) if, during any period of up to 24
consecutive months, commencing on the Amendment Effective Date, individuals who
at the beginning of such period (together with any new directors whose election
or whose nomination for election by the stockholders was approved by a vote of
66- ?% of the directors then still in office who were either directors at the
beginning of such period or whose election or nomination was previously so
approved) were directors of the Borrower shall cease for any reason (other than
the death, disability or retirement of an officer of the Borrower that is
serving as a director at such time so long as another officer of the Borrower
replaces such Person as a director) to constitute a majority of the Board of
Directors of the Borrower; (c) the acquisition of direct or indirect Control of
the Borrower by any Person or group; or (d) any other event that constitutes a
"change of control" or similar event, however denominated, under the Senior
Subordinated Credit Agreement or any other agreement or instrument evidencing
or governing any Material Indebtedness.
"Class" refers (a) when used in reference to any Loan or Borrowing, to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Term Loans and (b) when used in reference to any Commitment, to whether such
Commitment is a Term Commitment, a Revolving Commitment, a Tranche A LC
Commitment or a Tranche B LC Commitment.
"CLO" has the meaning assigned to such term in Section 9.04(b).
"CMS" means the Centers for Medicare and Medicaid Services and any
successor thereto.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral" means any and all "Collateral", as defined in any
applicable Security Document.
"Collateral Agent" shall mean JPMorgan Chase Bank, N.A., in its
capacity as collateral agent for the Lenders hereunder and under the Security
Documents.
"Collateral and Guarantee Agreement" means a Collateral and Guarantee
Agreement substantially in the form of Exhibit B hereto.
"Collateral and Guarantee Requirement" means, at any time, the
requirement that:
(a) the Administrative Agent shall have received (i) from the
Borrower, a counterpart of the Collateral and Guarantee Agreement duly
executed and delivered on behalf of the Borrower and (ii) subject to the
last paragraph of this definition, from each Credit Support Subsidiary, a
supplement to the Collateral and Guarantee Agreement, in the form
specified therein, duly executed and delivered on behalf of such Credit
Support Subsidiary;
(b) subject to the last paragraph of this definition, all
outstanding Capital Stock of each Subsidiary or other Person owned by or
on behalf of any Loan Party shall have been pledged to the extent required
by the Collateral and Guarantee Agreement;
(c) all Indebtedness of the Borrower and each Subsidiary that is
owing to any Loan Party (i) shall have been pledged under the Collateral
and Guarantee Agreement as security for the Obligations and (ii) to the
extent required by the Collateral and Guarantee Agreement, shall be
evidenced by a promissory note in form and substance reasonably
satisfactory to the Administrative Agent (except for any such Indebtedness
under the Borrower's cash management system) and the Collateral Agent
shall have received all such promissory notes, together with undated
instruments of transfer with respect thereto endorsed in blank in
accordance with the Collateral and Guarantee Agreement;
(d) all documents and instruments, including Uniform Commercial
Code financing statements, required by law or reasonably requested by the
Collateral Agent to be filed, registered or recorded to create the Liens
intended to be created by the Collateral and Guarantee Agreement and to
perfect such Liens to the extent and with the priority required by the
Collateral and Guarantee Agreement shall have been filed, registered or
recorded or delivered to the Collateral Agent for filing, registration or
recording;
(e) the Collateral Agent shall have received (i) counterparts of
a Mortgage with respect to each Mortgaged Property duly executed and
delivered by the record owner of such Mortgaged Property, (ii) a policy or
policies of title insurance issued by a nationally recognized title
insurance company insuring the Lien of each such Mortgage as a valid first
Lien on the Mortgaged Property described therein, free of any other Liens
except as expressly permitted by Section 6.06, together with such
endorsements, coinsurance and reinsurance as the Collateral Agent may
reasonably request, and (iii) such existing surveys, abstracts, appraisals
(to the extent required by law), legal opinions and other documents as the
Collateral Agent may reasonably request with respect to any such Mortgage
or Mortgaged Property; and
(f) each Loan Party shall have obtained all consents and
approvals required to be obtained by it in connection with the execution
and delivery of all Security Documents to which it is a party, the
performance of its obligations thereunder and the granting by it of the
Liens thereunder.
The foregoing definition shall not require the creation or perfection
of pledges of or security interests in, or the obtaining of title insurance or
surveys with respect to, particular assets if and for so long as, in the
reasonable judgment of the Collateral Agent, the cost of creating or perfecting
such pledges or security interests in such assets or obtaining title insurance
or surveys in respect of such assets shall be excessive in view of the benefits
to be obtained by the Lenders therefrom. The Collateral Agent may grant
extensions of time for the perfection of security interests in or the obtaining
of title insurance with respect to particular assets (including extensions
beyond the Amendment Effective Date for the perfection of security interests in
the assets of the Loan Parties on such date) where it determines that
perfection cannot be accomplished without undue effort or expense by the time
or times at which it would otherwise be required by this Agreement or the
Security Documents.
Notwithstanding the foregoing provisions of this definition, (a) no
Subsidiary shall be required to become a party to any Security Document prior
to the Subsidiary Credit Support Date, (b) the Borrower shall not be required
to pledge any Capital Stock of any direct Subsidiary of the Borrower set forth
on Schedule 1.01D hereto and (c) with respect to Capital Stock of any
Subsidiary or other Person that is not a direct Subsidiary of the Borrower,
neither the Borrower nor any Subsidiary shall be required to pledge any Capital
Stock in any such Subsidiary or other Person to the extent that any such action
would be prohibited, or would trigger a dissolution, disassociation, put, call
or other similar adverse consequence, under the terms of any shareholder
agreement, agreement evidencing Indebtedness or other similar agreement binding
on such Subsidiary or other Person and in effect on the date hereof.
"Combined Credit Exposure" means, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Loans and
its LC Exposure at such time.
"Commitments" means, with respect to each Lender, such Lender's
Revolving Commitment, Tranche A LC Commitment, Tranche B LC Commitment and Term
Commitment. The aggregate amount of all Commitments on the Amendment Effective
Date is $715,000,000.
"Common Equity" of any Person means all Capital Stock of such Person
that is generally entitled to (i) vote in the election of directors of such
Person or (ii) if such Person is not a corporation, vote or otherwise
participate in the selection of the governing body, partners, managers or
others that will control the management and policies of such Person.
"Consolidated Amortization Expense" of any Person for any period means
the amortization expense of such Person and its subsidiaries for such period
(to the extent included in the computation of Consolidated Net Income of such
Person), determined on a consolidated basis in accordance with GAAP.
"Consolidated Current Liabilities" of any Person on any date means the
consolidated current liabilities (other than the short-term portion of any
long-term Indebtedness of such Person and its subsidiaries and any short-term
Indebtedness of such Person and its subsidiaries) of such Person and its
subsidiaries, as such amount would appear on a consolidated balance sheet of
such Person and its subsidiaries prepared as of such date in accordance with
GAAP.
"Consolidated Depreciation Expense" of any Person means the
depreciation expense of such Person and its subsidiaries for such period (to
the extent included in the computation of Consolidated Net Income of such
Person), determined on a consolidated basis in accordance with GAAP.
"Consolidated EBITDA" of any Person means, with respect to any
determination date, Consolidated Net Income, plus (i) Consolidated Income Tax
Expense, plus (ii) Consolidated Depreciation Expense, plus (iii) Consolidated
Amortization Expense, plus (iv) Consolidated Interest Expense, plus (v) all
other unusual non-cash items or non-recurring non-cash items reducing
Consolidated Net Income of such Person and its subsidiaries, determined on a
consolidated basis in accordance with GAAP, provided, that cash expenditures,
to the extent made in respect of charges referred to in this clause (v) that
are incurred after June 30, 2005, shall be deducted in determining Consolidated
EBITDA for the period during which such expenditures are made, and less all
non-cash items increasing Consolidated Net Income of such Person and its
subsidiaries, determined on a consolidated basis in accordance with GAAP, in
each case, for such Person's prior four full fiscal quarters for which
financial results have been reported immediately prior to the determination
date.
"Consolidated Income Tax Expense" means, for any Person for any
period, the provision for taxes based on income and profits of such Person and
its subsidiaries to the extent such provision for income taxes was deducted in
computing Consolidated Net Income of such Person for such period, determined on
a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" of any Person for any period means,
without duplication, (i) the interest expense of such Person and its
subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP, plus (ii) (to the extent not otherwise included within the
definition of interest expense as imputed interest) one-third of the rental
expense on Attributable Indebtedness of such Person for such period determined
on a consolidated basis, plus (iii) the dividend requirements of such Person
and its subsidiaries with respect to Disqualified Stock and with respect to all
other Preferred Stock of subsidiaries of such Person (in each case whether in
cash or otherwise (except dividends payable to the Borrower or the Subsidiaries
and except for dividends payable solely in shares of Capital Stock (other than
Disqualified Stock) of such Person or such subsidiary)) paid, accrued or
accumulated during such period times a fraction the numerator of which is one
and the denominator of which is one minus then effective consolidated Federal,
state and local tax rate of such Person, expressed as a decimal.
"Consolidated Net Assets" of any Person on any date means the excess
of Consolidated Total Assets of such Person over Consolidated Current
Liabilities of such Person.
"Consolidated Net Income" of any Person for any period means the net
income (or loss) of such Person and its subsidiaries for such period determined
on a consolidated basis in accordance with GAAP; provided that there shall be
excluded from such net income (to the extent otherwise included therein),
without duplication: (i) the net income (or loss) of any Person (other than a
subsidiary of the referent Person) in which any Person other than the referent
Person has an ownership interest, except to the extent that any such income has
actually been received by the referent Person or any of its Subsidiaries in the
form of dividends or similar distributions during such period; (ii) except to
the extent includable in the consolidated net income of the referent Person
pursuant to the foregoing clause (i), the net income (or loss) of any Person
that accrued prior to the date that (a) such Person becomes a subsidiary of the
referent Person or is merged into or consolidated with the referent Person or
any of its subsidiaries or (b) the assets of such Person are acquired by the
referent Person or any of its subsidiaries; (iii) the net income of any
subsidiary of the referent Person (other than a Subsidiary) to the extent that
the declaration or payment of dividends or similar distributions by such
subsidiary of that income is not permitted by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that subsidiary during such period; (iv)
any gain (or loss), together with any related provisions for taxes on any such
gain, realized during such period by the referent Person or any of its
subsidiaries upon (a) the acquisition of any securities, or the extinguishment
of any Indebtedness, of the referent Person or any of its subsidiaries or (b)
any Asset Sale by the referent Person or any of its subsidiaries; (v) any
extraordinary gain or extraordinary loss, together with any related provision
for taxes or tax benefit resulting from any such extraordinary gain or
extraordinary loss, realized by the referent Person or any of its subsidiaries
during such period and (vi) in the case of a successor to such Person by
consolidation, merger or transfer of its assets, any earnings of the successor
prior to such merger, consolidation or transfer of assets.
"Consolidated Net Worth" of any Person as of any date means the
stockholders' equity (including any Preferred Stock that is classified as
equity under GAAP, other than Disqualified Stock) of such Person and its
subsidiaries (excluding any equity adjustment for foreign currency translation
for any period subsequent to the Amendment Effective Date) on a consolidated
basis at such date, as determined in accordance with GAAP, less all write-ups
subsequent to the Amendment Effective Date in the book value of any asset owned
by such Person or any of its subsidiaries.
"Consolidated Tangible Assets" of any Person as of any date means the
total assets of such Person and its subsidiaries (excluding any assets that
would be classified as "intangible assets" under GAAP) on a consolidated basis
at such date, as determined in accordance with GAAP, less all write-ups
subsequent to the Amendment Effective Date in the book value of any asset owned
by such Person or any of its subsidiaries.
"Consolidated Total Assets" of any Person as of any date means the
consolidated total assets of such Person and its subsidiaries, as such amount
would appear on a consolidated balance sheet of such Person and its
subsidiaries prepared as of such date in accordance with GAAP.
"Consolidated Total Indebtedness" of any Person as of any date means
the sum of all Indebtedness (including Capitalized Lease Obligations but
excluding (a) Indebtedness under clause (iv) of the definition thereof and (b)
contingent reimbursement obligations in respect of the undrawn amounts of
letters of credit) of such Person and its subsidiaries on a consolidated basis;
provided, however, that for purposes of calculating "Consolidated Total
Indebtedness" of the Borrower, the amount of Indebtedness evidenced by any
Settlement Note shall be determined on a present value basis by reference to a
valuation of such Indebtedness obtained by an Acceptable Appraiser.
"Consolidated Total Revenue" of any Person as of any period means the
consolidated total revenues of such Person and its subsidiaries for such period
determined on a consolidated basis in accordance with GAAP.
"Contract Provider" means any Person who provides professional health
care services under or pursuant to any contract, agreement or other consensual
arrangement with the Borrower or any Subsidiary.
"Contribution Percentage" means, with respect to any Lender, the
percentage of the aggregate Combined Credit Exposures and unused Commitments
represented by such Lender's Combined Credit Exposure and unused Commitments.
If there shall be no Combined Credit Exposures or unused Commitments, the
Contribution Percentages of the Lenders shall be determined based upon the
Combined Credit Exposures or unused Commitments of any Class or Type most
recently outstanding and in effect.
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the day-to-day management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Cost of Acquisition" means, in respect of any acquisition permitted
by Section 6.08, the sum of (i) the amount of cash paid by the Borrower and the
Subsidiaries in connection with such acquisition, (ii) the fair market value of
all Capital Stock of the Borrower or any Subsidiary issued or given in
connection with such acquisition, (iii) the amount (determined by using the
face amount or the amount payable at maturity, whichever is greater) of all
Indebtedness incurred, assumed or acquired in connection with such acquisition,
(iv) all additional purchase price amounts in the form of earnouts and other
contingent obligations that should be recorded on the financial statements of
the Borrower and the Subsidiaries in accordance with GAAP, (v) all amounts paid
in respect of covenants not to compete, consulting agreements and other
affiliated contracts in connection with such acquisition and (vi) the aggregate
fair market value of all other consideration given by the Borrower and the
Subsidiaries in connection with such acquisition.
"Credit Support Subsidiaries" shall mean and include, at any date, (a)
Domestic Subsidiaries (other than Excluded Subsidiaries) the aggregate Credit
Support Values of which are at least equal to 300% of the Maximum Subsidiary
Credit Support Amount at such date and (b) each Domestic Subsidiary (other than
an Excluded Subsidiary) that is a subsidiary of a Credit Support Subsidiary.
The Credit Support Subsidiaries shall be designated by the Borrower (subject to
the approval of the Administrative Agent) as provided in Section 5.14;
provided, that if, at any time after the Subsidiary Credit Support Date,
Subsidiaries with Credit Support Values at least equal to 300% of the Maximum
Subsidiary Credit Support Amount shall not have been so designated and
approved, then the Administrative Agent or the Required Lenders may, by written
notice to the Borrower (with a copy to the Administrative Agent if such notice
shall be delivered by the Required Lenders), designate in accordance with
Section 5.14 additional Domestic Subsidiaries as Credit Support Subsidiaries,
and any Subsidiaries so designated shall at all times thereafter be Credit
Support Subsidiaries. Each Subsidiary designated as a Credit Support Subsidiary
in accordance with the foregoing provisions of this definition shall at all
times after such designation continue to be a Credit Support Subsidiary
notwithstanding any increase in the Credit Support Values of the Credit Support
Subsidiaries or any reduction in the Maximum Subsidiary Credit Support Amount;
provided, that this sentence shall not prevent the release of any Credit
Support Subsidiary from its obligations under the Security Documents pursuant
to Section 9.14 so long as, after giving effect to such release, the Collateral
and Guarantee Requirement shall be satisfied with respect to Credit Support
Subsidiaries the aggregate Credit Support Values of which are at least equal to
300% of the Subsidiary Credit Support Amount (as defined in the Collateral and
Guarantee Agreement).
"Credit Support Value" means, for any Subsidiary at any date, (a) 400%
of the Consolidated EBITDA of such Subsidiary for the most recent period of
four fiscal quarters for which financial statements shall have been delivered
after the Audit Report Date pursuant to Section 5.01(a)(ii) or 5.01(a)(iii)
minus (b) the sum of (i) the aggregate amount of all Indebtedness of such
Subsidiary and each of its subsidiaries (including guarantees of Indebtedness
of other Subsidiaries, but excluding Indebtedness owed to such Subsidiary or
any of its subsidiaries) and (ii) the maximum liability of such Subsidiary and
each of its subsidiaries under any judgments or settlement agreements.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Designated Obligations" shall mean all obligations of the Borrower
with respect to (a) principal of and interest on the Loans, (b) unreimbursed LC
Disbursements and interest thereon and (c) accrued and unpaid fees.
"Designated Purpose Letters of Credit" means Letters of Credit used in
the ordinary course of business of the Borrower and the Subsidiaries to secure
workers' compensation and other insurance coverages.
"Digital Hospital" means the 219-bed acute care hospital located on
Highway 280 in Birmingham, Alabama, and certain adjacent land.
"Digital Hospital Transaction" means any sale, joint venture, sale
leaseback or other related financing transaction involving the Digital
Hospital.
"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is
redeemable at the option of the holder thereof, in whole or in part, on or
prior to the Revolving Credit/LC Maturity Date.
"Documentation Agent" means Deutsche Bank Trust Company Americas, in
its capacity as documentation agent hereunder.
"dollars" or "$" refers to lawful money of the United States of
America.
"Domestic Subsidiary" means any Subsidiary organized under the laws of
the United States or any State thereof or the District of Columbia.
"Eligible Investments" of any Person means Investments of such Person
in:
(a) direct obligations of, or obligations the payment of
which is guaranteed by, the United States of America or an interest in
any trust or fund that invests solely in such obligations or
repurchase agreements, properly secured, with respect to such
obligations;
(b) direct obligations of agencies or instrumentalities of
the United States of America having a rating of A or higher by S&P or
A2 or higher by Xxxxx'x;
(c) a certificate of deposit issued by, or other
interest-bearing deposits with, a bank having its principal place of
business in the United States of America and having equity capital of
not less than $250,000,000;
(d) a certificate of deposit issued by, or other
interest-bearing deposits with, any other bank organized under the
laws of the United States of America or any state thereof, provided
that such deposit is either (i) insured by the Federal Deposit
Insurance Corporation or (ii) properly secured by such bank by
pledging direct obligations of the United States of America having a
market value of not less than the face amount of such deposits;
(e) prime commercial paper maturing within 270 days of the
acquisition thereof and, at the time of acquisition, having a rating
of A-1 or higher by S&P or P-1 or higher by Xxxxx'x; or
(f) eligible banker's acceptances, repurchase agreements and
tax-exempt municipal bonds having a maturity of less than one year, in
each case having a rating of, or that is the full recourse obligation
of a person whose senior debt is rated, A or higher by S&P or A2 or
higher by Xxxxx'x.
"Employee Benefit Plan" means any "employee benefit plan", as defined
in Section 3(3) of ERISA (other than a Multiemployer Plan), in respect of which
the Borrower, any Subsidiary or any ERISA Affiliate is (or, if such plan were
terminated, would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, Release or threatened Release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means all liabilities, obligations, damages,
losses, claims, actions, suits, judgments, orders, fines, penalties, fees,
expenses and costs, (including administrative oversight costs, natural resource
damages and remediation costs), whether contingent or otherwise, arising out of
or relating to (a) compliance or non-compliance with any Environmental Law, (b)
the generation, use, handling, transportation, storage, treatment or disposal
of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the
Release of any Hazardous Materials or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower or any Subsidiary, is treated as
a single employer under Section 414(b) or (c) of the Code or, solely for
purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a
single employer under Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Pension
Plan (other than an event for which the 30-day notice period is waived); (b)
the existence with respect to any Pension Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA),
whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or
Section 303(d) of ERISA of an application for a waiver of the minimum funding
standard with respect to any Pension Plan; (d) the incurrence by the Borrower,
a Subsidiary or any ERISA Affiliate of any liability under Title IV of ERISA
with respect to the termination of any Plan; (e) the receipt by the Borrower, a
Subsidiary or any ERISA Affiliate from the PBGC or a plan administrator of any
notice relating to an intention to terminate any Pension Plan or to appoint a
trustee to administer any Pension Plan; (f) the incurrence by the Borrower, a
Subsidiary or any ERISA Affiliate of any liability with respect to the
withdrawal or partial withdrawal from any Pension Plan or Multiemployer Plan;
or (g) the receipt by the Borrower, a Subsidiary or any ERISA Affiliate of any
notice, or the receipt by any Multiemployer Plan from the Borrower, a
Subsidiary or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in Section
7.01.
"Excess Cash Flow" means, for any Fiscal Year, the sum (without
duplication) of:
(a) Consolidated Net Income of the Borrower for such Fiscal
Year, adjusted to exclude any gains or losses attributable to Prepayment
Events; plus
(b) depreciation, amortization and other non-cash charges or
losses deducted in determining such Consolidated Net Income (provided that
any cash payment made with respect to any non-cash charge that shall have
been added in computing Excess Cash Flow hereunder during a prior Fiscal
Year shall be subtracted in computing Excess Cash Flow for the Fiscal Year
in which such cash payment is made); plus
(c) the sum of (i) the amount, if any, by which Net Working
Capital of the Borrower decreased during such Fiscal Year; minus
(d) the sum of (i) any non-cash gains included in determining
such Consolidated Net Income for such Fiscal Year plus (ii) the amount, if
any, by which such Net Working Capital increased during such Fiscal Year;
minus
(e) the sum of (i) Capital Expenditures for such Fiscal Year
(except to the extent attributable to the incurrence of Capitalized Lease
Obligations or otherwise financed by incurring long-term Indebtedness)
plus (ii) cash consideration paid during such Fiscal Year to make
acquisitions or other capital investments (except to the extent financed
by incurring long-term Indebtedness); minus
(f) the aggregate principal amount of long-term Indebtedness
repaid or prepaid by the Borrower and its consolidated Subsidiaries during
such Fiscal Year in compliance with Section 6.09, excluding (i)
Indebtedness in respect of Revolving Loans and Letters of Credit or other
revolving extensions of credit (except to the extent that any repayment or
prepayment of such Indebtedness is accompanied by a permanent reduction in
related commitments), (ii) Term Loans prepaid pursuant to Section 2.10(c)
or (d), (iii) repayments or prepayments of long-term Indebtedness financed
by incurring other long-term Indebtedness and (iv) repayments or
prepayments of Indebtedness under the Indentures (other than the 2005
Notes); minus
(g) cash payments made during such Fiscal Year pursuant to the
Borrower's obligations under (i) its settlement agreements with the U.S.
Department of Justice and the CMS relating to Medicare billing practices
and (ii) payments in respect of other judgments and settlements of
litigation described in Schedule 3.10, to the extent not deducted in
arriving at Consolidated Net Income.
"Exchange Act" means the Securities and Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC thereunder.
"Excluded Indebtedness" means (a) the guarantee by the Borrower in
favor of UBS AG, Stamford Branch with respect to UBS AG, Stamford Branch's
$22,891,449 loan to xxxxxxxxxxxxxxx.xxx, Inc., (b) $11,573,000 principal amount
of 8.375% Convertible Senior Subordinated Notes due 2015 of Greenery
Rehabilitation Group, Inc. and (c) $6,311,000 principal amount of 6.50%
Convertible Subordinated Debentures due 2011 of Greenery Rehabilitation Group,
Inc.
"Excluded Subsidiaries" means Subsidiaries designated from time to
time by the Borrower that (a) do not at any time account for more than $100,000
individually or more than 5% in the aggregate for all such Subsidiaries of
Consolidated EBITDA of the Borrower for the most recently ended period of four
consecutive fiscal quarters for which financial statements have been delivered
after the Audit Report Date pursuant to Section 5.01(a)(ii) or 5.01(a)(iii) and
(b) do not account for more than $100,000 individually or more than 5% in the
aggregate for all such Subsidiaries of Consolidated Total Assets of the
Borrower as of the last day of the most recent period for which financial
statements have been delivered after the Audit Report Date pursuant to Section
5.01(a)(ii) or 5.01(a)(iii).
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender or Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income or net worth by the United
States of America, or by the jurisdiction under the laws of which such
recipient is organized or in which its principal office is located or, in the
case of any Lender, in which its applicable lending office is located, (b) any
branch profits taxes imposed by the United States of America, (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.18(b) or by operation of the CAM), any withholding tax
that is (i) imposed by the United States of America on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement (or designates a new lending office), except to the extent that such
Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional
amounts from the Borrower with respect to such withholding tax pursuant to
Section 2.16(a), or (ii) is attributable to such Foreign Lender's failure to
comply with Section 2.16(e) and (d) any Taxes imposed as a result of its gross
negligence or wilful misconduct.
"Existing Credit Agreement" means the Credit Agreement dated as of
June 14, 2002, as amended on August 20, 2002, among the Borrower, the lenders
from time to time party thereto, JPMorgan Chase Bank, N.A., as administrative
agent, Wachovia Bank, National Association, as syndication agent, UBS Warburg
LLC, as co-documentation agent, ScotiaBanc, Inc., as co-documentation agent,
Deutsche Bank AG, New York Branch, as co-documentation agent, and Bank of
America, N.A., as senior managing agent.
"Existing Indebtedness" means all of the Indebtedness of the Borrower
and the Subsidiaries that is outstanding on the Amendment Effective Date, as
set forth on Schedule 1.01B.
"Existing Letters of Credit" means the letters of credit outstanding
on the Amendment Effective Date and set forth on Schedule 2.04. Each Existing
Letter of Credit shall constitute a Tranche A Letter of Credit or a Tranche B
Letter of Credit as set forth on Schedule 2.04.
"Facility" means an inpatient or outpatient rehabilitation facility,
certified outpatient rehabilitation facility, skilled nursing facility,
specialty medical center or facility, specialty orthopedic hospital or acute
care hospital, subacute inpatient facility, transitional living center, medical
office building, outpatient surgery center or outpatient diagnostic center,
with all buildings and improvements associated therewith, that is owned or
leased, in whole or in part, by the Borrower or a Subsidiary.
"Fair Market Value" of any asset or items means the fair market value
of such asset or items as determined in good faith by the Board of Directors of
the Borrower or a Subsidiary, as applicable, and evidenced by a resolution of
such Board of Directors.
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day that is a Business Day, the average (rounded upwards,
if necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the Borrower.
"Fiscal Year" means the twelve month period ending on December 31.
"Foreign Lender" means any Lender that is organized under the laws of
a jurisdiction other than that in which the Borrower is located. For purposes
of this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is not a Domestic
Subsidiary.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession of the United States, as from time to time in effect.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state
or local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having
the economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.
"Hazardous Materials" shall mean (a) petroleum products and
byproducts, asbestos, urea formaldehyde foam insulation, polychlorinated
biphenyls, radon gas, chlorofluorocarbons and all other ozone-depleting
substances or (b) any chemical, material, substance, waste, pollutant or
contaminant that is prohibited, limited or regulated by or pursuant to any
Environmental Law.
"Indebtedness" of any Person as of any date means, without
duplication: (i) all indebtedness of such Person for borrowed money (whether or
not the recourse of the lender is to the whole of the assets of such Person or
only to a portion thereof); (ii) all obligations of such Person evidenced by
bonds, debentures, notes (including, in the case of the Borrower, the
Settlement Notes) or other similar instruments; (iii) all obligations of such
Person in respect of letters of credit or other similar instruments (or
reimbursement obligations with respect thereto); (iv) all obligations of such
Person with respect to any Swap Agreement; (v) all obligations of such Person
to pay the deferred and unpaid purchase price of property or services, except
trade payables and accrued expenses incurred in the ordinary course of
business; (vi) all Capitalized Lease Obligations of such Person; (vii) all
Indebtedness of others secured by a Lien on any asset of such Person, whether
or not such Indebtedness is assumed by such Person; (viii) all Indebtedness of
others Guaranteed by such Person to the extent of such Guarantee; (ix) all
Attributable Indebtedness of such Person; (x) all obligations, contingent or
otherwise, of such Person in respect of bankers' acceptances, (xi) all
obligations, contingent or otherwise, of such Person in respect of synthetic
lease facilities, (xii) all Securitization Transactions and (xiii) all
Disqualified Stock of such Person and its subsidiaries and all other Preferred
Stock of such Person and its subsidiaries valued at the greater of (a) the
voluntary or involuntary liquidation preference of such Disqualified Stock or
such Preferred Stock, as the case may be, and (b) the aggregate amount payable
upon purchase, redemption, defeasance or payment of such Disqualified Stock or
such Preferred Stock, as the case may be. The amount of Indebtedness of any
Person as of any date shall be the outstanding balance as of such date of all
unconditional obligations plus past due interest as described above, the
maximum liability of such Person for any such contingent obligations at such
date and, in the case of clause (vii), the amount of the Indebtedness secured.
The Indebtedness of any Person shall include the Indebtedness of any other
entity (including any partnership in which such Person is a general partner) to
the extent such Person is liable therefor as a result of such Person's
ownership interest in or other relationship with such entity, except to the
extent the terms of such Indebtedness provide that such Person is not liable
therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitee" has the meaning assigned to such term in Section 9.03(b).
"Indentures" means each of the indentures (including any related
supplemental indentures, directors' resolutions or officers' certificates) in
effect on the Amendment Effective Date governing Material Indebtedness, which
Indentures are listed on Schedule 1.01.A hereto.
"Information" has the meaning assigned to such term in Section 9.12.
"Information Memorandum" means the Confidential Information Memorandum
dated February, 2005 relating to the Borrower and the Transactions.
"Interest Election Request" means a request by the Borrower to convert
or continue a Borrowing in accordance with Section 2.06.
"Interest Coverage Ratio" means the ratio of (a) Adjusted Consolidated
EBITDA of the Borrower to (b) Consolidated Interest Expense of the Borrower, in
each case for any period of four consecutive fiscal quarters of the Borrower;
provided, that (1) to the extent financial statements delivered after the Audit
Report Date under Section 5.01(a)(ii) or 5.01(a)(iii) or delivered on the Audit
Report Date or Supplemental Audit Report Date are available with respect to any
applicable fiscal quarters of the Borrower, the Interest Coverage Ratio shall
be determined based on such financial statements and (2) otherwise, the
Interest Coverage Ratio shall be determined based on the Monthly Financial
Packages delivered under Section 5.01(a)(i).
"Interest Payment Date" means (a) with respect to any ABR Loan, the
last day of each March, June, September and December and (b) with respect to
any Eurodollar Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurodollar
Borrowing with an Interest Period of more than three months' duration, each day
prior to the last day of such Interest Period that occurs at intervals of three
months' duration after the first day of such Interest Period.
"Interest Period" means, with respect to any Eurodollar Borrowing, 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, as the Borrower may elect; provided, that (i) 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, in the case of a
Eurodollar Borrowing only, 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 (ii) any Interest Period pertaining to a Eurodollar
Borrowing 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.
"Investments" of any Person means: (i) all investments by such Person
in any other Person in the form of loans, advances or capital contributions
(excluding commission, travel and similar advances to officers and employees
made in the ordinary course of business); (ii) all Guarantees of Indebtedness
of any other Person by such Person; (iii) all purchases (or other acquisitions
for consideration) by such Person of Indebtedness, Capital Stock or other
securities of any other Person; and (iv) all other items that would be
classified as investments on a balance sheet of such Person prepared in
accordance with GAAP.
"Issuing Bank" means, as the context may require, (a) JPMorgan Chase
Bank, N.A., with respect to Letters of Credit issued by it, (b) First
Commercial Bank, with respect to Letters of Credit issued by it, and (c) any
other Lender that becomes an Issuing Bank pursuant to Section 2.04(j), with
respect to Letters of Credit issued by it, and, in each case, its successors in
such capacity. An Issuing Bank may, in its discretion, arrange for one or more
Letters of Credit to be issued by Affiliates of such Issuing Bank, in which
case the term "Issuing Bank" shall include any such Affiliate with respect to
Letters of Credit issued by such Affiliate.
"Joint Venture" means any Person (other than a Subsidiary of the
Borrower) in which the Borrower or any Subsidiary owns an equity interest
directly or indirectly and at least a majority of whose revenues result from
healthcare related businesses or facilities.
"LC Availability Period" means the period from and including the
Amendment Effective Date to but excluding the earlier of (a) the date five
Business Days prior to the Revolving Credit/LC Maturity Date and (b) the date
of termination of the LC Commitments.
"LC Commitment" means a Tranche A LC Commitment or a Tranche B LC
Commitment.
"LC Disbursement" means a payment made by an Issuing Bank pursuant to
a Letter of Credit.
"LC Exposure" means the sum of the Tranche A LC Exposure and the
Tranche B LC Exposure.
"LC Lender" means a Tranche A LC Lender or a Tranche B LC Lender.
"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Assumption, other than any such Person that ceases to be a party hereto
pursuant to an Assignment and Assumption.
"Letter of Credit" means the Existing Letters of Credit and any letter
of credit issued pursuant to this Agreement.
"Leverage Ratio" means, at any date, the ratio of (a) Consolidated
Total Indebtedness of the Borrower on such date to (b) Adjusted Consolidated
EBITDA of the Borrower for the period of four consecutive fiscal quarters of
the Borrower ending on or most recently prior to such date; provided, that (1)
to the extent financial statements delivered after the Audit Report Date under
Section 5.01(a)(ii) or 5.01(a)(iii) or delivered on the Audit Report Date or
Supplemental Audit Report Date are available with respect to any applicable
fiscal quarters of the Borrower, the Leverage Ratio shall be determined based
on such financial statements and (2) otherwise, the Leverage Ratio shall be
determined based on the Monthly Financial Packages delivered under Section
5.01(a)(i).
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Dow Xxxxx Market
Service (or on any successor or substitute page of such Service, or any
successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in the
London interbank market) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period. In the event that
such rate is not available at such time for any reason, then the "LIBO Rate"
with respect to such Eurodollar Borrowing for such Interest Period shall be the
rate (rounded upwards, if necessary, to the next 1/100 of 1%) at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period
are offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or other similar encumbrance of any kind in respect
of such asset, whether or not filed, recorded or otherwise perfected under
applicable law (including any conditional sale or other title retention
agreement, and any financing lease in the nature thereof, and any filing of, or
agreement to give, any financing statement (other than notice filings not
perfecting a security interest) under the Uniform Commercial Code (or
equivalent statutes) of any jurisdiction).
"Loan Documents" means this Agreement, each Letter of Credit issued
hereunder, any Letter of Credit application referred to in Section 2.04, the
Security Documents and any Note.
"Loan Parties" means the Borrower and each Subsidiary that is, or is
required under the terms of this Agreement to be, a party to any Security
Document.
"Loans" means the loans made by the Lenders to the Borrower or
acquired pursuant to this Agreement.
"Margin Stock" means "margin stock" as defined in Regulation U of the
Board.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations, properties or condition, financial or otherwise,
of the Borrower and the Subsidiaries, taken as a whole, (b) the ability of the
Borrower to perform any of its obligations under this Agreement or (c) the
rights or powers of or remedies available to the Administrative Agent and the
Lenders under this Agreement.
"Material Group" means any Subsidiary or group of Subsidiaries (i) the
book value of the net assets of which was greater than 5% of Consolidated Net
Assets of the Borrower as of the last day of the most recent fiscal period for
which financial statements shall have been delivered after the Audit Report
Date pursuant to Section 5.01(a)(ii) or 5.01(a)(iii) (or, prior to the first
delivery of such financial statements, greater than 5% of Consolidated Net
Assets of the Borrower as of the date of the most recent financial statements
referred to in Section 3.06), (ii) the total revenues of which were greater
than 5% of Consolidated Total Revenue of the Borrower for the
four-fiscal-quarter period ending on the last day of the most recent fiscal
period for which financial statements shall have been delivered after the Audit
Report Date pursuant to Section 5.01(a)(ii) or 5.01(a)(iii) (or, prior to the
first delivery of such financial statements, greater than 5% of Consolidated
Total Revenue of the Borrower for the four-fiscal-quarter period ending on the
last day of the most recent fiscal period set forth in the most recent
financial statements referred to in Section 3.06) or (iii) the Consolidated
EBITDA of which was greater than 5% of Consolidated EBITDA of the Borrower for
the four-fiscal-quarter period ending on the last day of the most recent fiscal
period for which financial statements shall have been delivered after the Audit
Report Date pursuant to Section 5.01(a)(ii) or 5.01(a)(iii) (or, prior to the
delivery of such financial statements, greater than 5% of Consolidated EBITDA
of the Borrower for the four-fiscal-quarter period ending on the last day of
the most recent fiscal period set forth in the most recent financial statements
referred to in Section 3.06). For purposes of making the determinations
required by this definition, assets, revenues and EBITDA of Foreign
Subsidiaries shall be converted into US dollars at the rates used in preparing
the financial statements of the Borrower which shall have been delivered after
the Audit Report Date pursuant to Section 5.01(a)(ii) or 5.01(a)(iii) (or,
prior to the first delivery of such financial statements, at the rates used in
preparing the Borrower's most recent financial statements referred to in
Section 3.06).
"Material Indebtedness" means (a) Indebtedness under the Indentures or
the Senior Subordinated Credit Agreement and (b) other Indebtedness (other than
the Loans, Letters of Credit and the Excluded Indebtedness), or obligations in
respect of one or more Swap Agreements, of any one or more of the Borrower and
the Subsidiaries in an aggregate principal amount exceeding $25,000,000. For
purposes of determining Material Indebtedness, the "principal amount" of the
obligations of the Borrower or any Subsidiary in respect of any Swap Agreement
at any time shall be the maximum aggregate amount (giving effect to any netting
agreements) that the Borrower or such Subsidiary would be required to pay if
such Swap Agreement were terminated at such time. For the avoidance of doubt,
the exclusion of Excluded Indebtedness from Material Indebtedness shall not be
deemed to constitute a waiver of, or otherwise limit in any respect, the
Lenders' rights under Article VII or any other provision of this Agreement as a
result of any event or condition relating to Material Indebtedness, including
any default with respect thereto or acceleration thereof, resulting from or
relating to the Excluded Indebtedness.
"Maximum Subsidiary Credit Support Amount" means, at any time, the
maximum aggregate amount of the Obligations permitted under each of the
Restrictive Indentures and the Senior Subordinated Credit Agreement to be
either guaranteed by the Subsidiaries, or secured by the assets of the
Subsidiaries, at such time, after giving effect to all exceptions and baskets
provided for in the Restrictive Indentures and the Senior Subordinated Credit
Agreement and all prior utilization of such exceptions and baskets (other than
any utilization thereof under this Agreement or the Security Documents).
"Medicaid Certification" means certification by CMS or a state agency
or entity under contract with CMS that a health care operation is in compliance
with all the conditions of participation set forth in the Medicaid Regulations.
"Medicaid Provider Agreement" means an agreement entered into between
a state agency or other entity administering the Medicaid program and a health
care operation under which the health care operation agrees to provide services
for Medicaid patients in accordance with the terms of the agreement and
Medicaid Regulations.
"Medicaid Regulations" means, collectively, (a) all federal statutes
(whether set forth in Title XIX of the Social Security Act or elsewhere)
affecting the medical assistance program established by Title XIX of the Social
Security Act and any statutes succeeding thereto; (b) all applicable provisions
of all federal rules, regulations, manuals and orders of all Governmental
Authorities promulgated pursuant to or in connection with the statutes
described in clause (a) above and all Federal administrative, reimbursement and
other guidelines of all Governmental Authorities having the force of law
promulgated pursuant to or in connection with the statues described in clause
(a) above; (c) all state statutes and plans for medical assistance enacted in
connection with the statutes and provisions described in clauses (a) and (b)
above; and (d) all applicable provisions of all rules, regulations, manuals and
orders of all Governmental Authorities promulgated pursuant to or in connection
with the statutes described in clause (c) above and all state administrative,
reimbursement and other guidelines of all Governmental Authorities having the
force of law promulgated pursuant to or in connection with the statutes
described in clause (b) above, in each case as may be amended, supplemented or
otherwise modified from time to time.
"Medicare Certification" means certification by CMS or a state agency
or entity under contract with CMS that a health care operation is in compliance
with all the conditions of participation set forth in the Medicare Regulations.
"Medicare Provider Agreement" means an agreement entered into between
a state agency or other entity administering the Medicare program and a health
care operation under which the health care operation agrees to provide services
for Medicare patients in accordance with the terms of the agreement and
Medicare Regulations.
"Medicare Regulations" means, collectively, all Federal statutes
(whether set forth in Title XVIII of the Social Security Act or elsewhere)
affecting the health insurance program for the aged and disabled established by
Title XVIII of the Social Security Act and any statutes succeeding thereto,
together with all applicable provisions of all rules, regulations, manuals and
orders and administrative, reimbursement and other guidelines having the force
of law of all Governmental Authorities (including Health and Human Services
("HHS"), CMS, the Office of the Inspector General for HHS, or any Person
succeeding to the functions of any of the foregoing) promulgated pursuant to or
in connection with any of the foregoing having the force of law, as each may be
amended, supplemented or otherwise modified from time to time.
"Model" has the meaning assigned to such term in Section 3.06(b).
"Monthly Financial Package" means, for any month beginning with the
month of July 2003, the financial information for such month delivered or to be
delivered by the Borrower to the Administrative Agent, substantially in the
form of the information provided in Exhibit C.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Mortgage" means a mortgage, deed of trust, assignment of leases and
rents, or other security document granting a Lien on any Mortgaged Property to
secure the Obligations. Each Mortgage shall be reasonably satisfactory in form
and substance to the Collateral Agent.
"Mortgaged Property" means each parcel of real property and the
improvements thereto owned by a Loan Party with a fair market value or book
value greater than $5,000,000.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Leverage Ratio" means, at any date, the ratio of (a) Consolidated
Total Indebtedness of the Borrower on such date minus the amount by which the
Unrestricted Cash and Cash Equivalents on such date exceed $50,000,000 to (b)
Adjusted Consolidated EBITDA of the Borrower for the period of four consecutive
fiscal quarters of the Borrower ending on or most recently prior to such date.
"Net Proceeds" means, with respect to any event, (a) the cash proceeds
received in respect of such event including (i) any cash received in respect of
any non-cash proceeds, but only as and when received, (ii) in the case of a
casualty, insurance proceeds, and (iii) in the case of a taking under power of
eminent domain or by condemnation or similar event, any payments received in
respect of such event net of (b) the sum of (i) all fees and out-of-pocket
expenses (including underwriting discounts and commissions) paid by the
Borrower and the Subsidiaries to third parties (other than Affiliates) in
connection with such event, (ii) in the case of a sale, transfer or other
disposition of an asset (excluding pursuant to a Specified Sale and Leaseback
Transaction, but including pursuant to any other Sale and Leaseback Transaction
or a casualty or a condemnation or similar proceeding), the amount of all
payments required to be made by the Borrower and the Subsidiaries as a result
of such event to repay Indebtedness (other than Loans) secured by such asset or
otherwise subject to mandatory prepayment as a result of such event, and (iii)
the amount of all taxes paid (or estimated in good faith to be payable) by the
Borrower and the Subsidiaries and the amount of any reserves established by the
Borrower and the Subsidiaries to fund contingent liabilities estimated in good
faith to be payable that are directly attributable to such event (as determined
reasonably and in good faith by a Financial Officer), provided that on the date
on which such reserve is no longer required to be maintained, the remaining
amount of such reserve shall then be deemed to be Net Proceeds.
"Net Working Capital" of any Person as of any date means (a) the
consolidated current assets of such Person and its consolidated subsidiaries as
of such date (excluding cash and Eligible Investments) minus (b) the
consolidated current liabilities of such Person and its consolidated
subsidiaries as of such date (excluding the outstanding Loans, to the extent
they shall at any time constitute current liabilities, and other current
liabilities in respect of Indebtedness). Net Working Capital at any date may be
a positive or negative number. Net Working Capital increases when it becomes
more positive or less negative and decreases when it becomes less positive or
more negative.
"Notes" means any promissory notes issued by the Borrower pursuant to
Section 2.08(e), as they may be amended, supplemented or otherwise modified
from time to time.
"Obligations" means (a) the due and punctual payment by the Borrower
of (i) the principal of and interest (including interest accruing during the
pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on
the Loans, when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise, (ii) each payment required to be
made by the Borrower in respect of any Letter of Credit, when and as due,
including payments in respect of reimbursement of LC Disbursements, interest
thereon (including interest accruing during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding) and obligations to provide cash
collateral, and (iii) all other monetary obligations of the Borrower under this
Agreement and each of the other Loan Documents, including obligations to pay
fees, expense reimbursement obligations and indemnification obligations,
whether primary, secondary, direct, contingent, fixed or otherwise, arising
under the Loan Documents (including monetary obligations incurred during the
pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding), (b)
the due and punctual payment of all the monetary obligations of each other Loan
Party under or pursuant to this Agreement and each of the other Loan Documents,
(c) the due and punctual payment of all monetary obligations of each Loan Party
under each Swap Agreement that (i) is in effect on the Amendment Effective Date
with a counterparty that is a Lender or an Affiliate of a Lender as of the
Amendment Effective Date or (ii) is entered into after the Amendment Effective
Date with any counterparty that is a Lender or an Affiliate of a Lender at the
time such Swap Agreement is entered into and (d) the due and punctual payment
and performance of all obligations of any Loan Party to a Lender or an
Affiliate of a Lender in respect of cash management services (other than cash
management services provided after (i) the principal of and interest on each
Loan and all Fees payable hereunder have been paid in full, (ii) the Lenders
have no further commitment to lend hereunder, (iii) the LC exposure has been
reduced to zero and (iv) the Issuing Banks have no further obligations to issue
Letters of Credit), including obligations in respect of overdrafts, temporary
advances, interest and fees.
"Officer's Certificate" means a certificate signed by a Financial
Officer in an official (and not individual) capacity; provided, however, that
every Officer's Certificate with respect to the compliance with a condition
precedent to the taking of any action under this Agreement shall include (i) a
statement that the Financial Officer making or giving such Officer's
Certificate has read such condition and any definitions or other provisions
contained in this Agreement relating thereto and (ii) a statement as to
whether, in the opinion of such Financial Officer, such condition has been
complied with.
"Opinion of Counsel" means a written opinion from legal counsel in
form and substance satisfactory to the Administrative Agent, that complies with
the requirements of this Agreement.
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"Participant" has the meaning set forth in Section 9.04.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Pension Plan" means any Employee Benefit Plan subject to the
provisions of Title IV or Section 302 of ERISA or Section 412 of the Code.
successor entity performing similar functions.
"Perfection Certificate" means a certificate in the form of Exhibit D
or any other form approved by the Collateral Agent.
"Permitted Asset Sale" means the sale of a business unit of the
Borrower (i) identified to the Lenders in a letter of the Borrower dated March
21, 2005, and with respect to which the Borrower has received the
Administrative Agent's prior written consent, (ii) at a sale price representing
a multiple of the EBITDA of such business unit that is at least equal to the
multiple set forth in such letter and (iii) at a sale price at least equal to
the Fair Market Value of such business unit.
"Permitted Investments" means: (i) capital contributions, advances or
loans to the Borrower by any Subsidiary or by the Borrower or any Subsidiary to
a Subsidiary; (ii) the acquisition and holding by the Borrower and each of the
Subsidiaries of receivables owing to the Borrower and such Subsidiary, if
created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms; (iii) the acquisition
and holding by the Borrower and the Subsidiaries of cash and Eligible
Investments; (iv) Investments in any Person as a result of which such other
Person becomes a Subsidiary or is merged into or consolidated with or transfers
all or substantially all of its assets to the Borrower or any Subsidiary; (v)
the making of an Investment by the Borrower, directly or through a Wholly Owned
Subsidiary, in a Wholly Owned Subsidiary formed solely for the purpose of
insuring the healthcare business and facilities owned or operated by the
Borrower or a Subsidiary and any physician employed by or on the staff of any
such business or facility; provided that the amount invested in such Subsidiary
does not exceed $15,000,000; and (vi) any Investment arising from or in
connection with the transfer of assets made pursuant to the Digital Hospital
Transaction.
"Permitted Liens" means: (i) Liens for taxes, assessments or
governmental charges or claims that either (a) are not yet delinquent or (b)
are being contested in good faith by appropriate proceedings; (ii) statutory
Liens of landlords and carriers', warehousemen's, mechanics', suppliers',
materialmen's, repairmen's or other like Liens arising in the ordinary course
of business and with respect to amounts that either (a) are not overdue by more
than 30 days or (b) are being contested in good faith by appropriate
proceedings and as to which appropriate reserves or other provisions have been
made in accordance with GAAP; (iii) Liens (other than any Lien imposed by
ERISA) incurred or deposits due in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other types
of social security; (iv) Liens incurred or deposits made to secure the
performance of tenders, bids, leases, statutory obligations, surety and appeal
bonds, progress payments, government contracts and other obligations of like
nature (exclusive of obligations for the payment of Indebtedness), in each
case, incurred in the ordinary course of business; (v) attachment or judgment
Liens not giving rise to a Default or an Event of Default; (vi) easements,
rights-of-way, restrictions and other similar charges or encumbrances not
interfering with the ordinary conduct of the business of the Borrower or any
Subsidiary; (vii) leases or subleases granted to others not interfering with
the ordinary conduct of the business of the Borrower or any Subsidiary; (viii)
Liens with respect to any Acquired Indebtedness, provided that such Liens only
extend to assets that were subject to such Liens prior to the acquisition of
such assets by the Borrower or a Subsidiary and not incurred in anticipation or
contemplation of such acquisition; (ix) Liens securing Refinancing
Indebtedness; (x) purchase money Liens (including Capitalized Lease
Obligations); (xi) Liens on assets of the Borrower or any Subsidiary created
pursuant to the Collateral and Guarantee Agreement; (xii) bankers' liens with
respect to the right of set-off arising in the ordinary course of business
against amounts maintained in bank accounts or certificates of deposit in the
name of the Borrower or any Subsidiary; (xiii) the interest of any issuer of a
letter of credit in any cash or Eligible Investment deposited with or for the
benefit of such issuer as collateral for such letter of credit, provided that
the Indebtedness so collateralized is permitted to be incurred by the terms of
this Agreement; and (xiv) any Lien consisting of a right of first refusal or
option to purchase the Borrower's ownership interest in any Subsidiary or to
purchase assets of the Borrower or any Subsidiary, which right of first refusal
or option is entered into in the ordinary course of business.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Preferred Stock" means with respect to any Person all Capital Stock
of such Person which has a preference in liquidation or a preference with
respect to the payment of dividends or distributions of operating profit or
cash.
"Prepayment Event" means:
(a) any Asset Sale (including Specified Sale and Leaseback
Transactions), other than (i) Syndications and (ii) other dispositions
resulting in the aggregate for all such dispositions in Net Proceeds not
greater than $5,000,000 during any fiscal year of the Borrower;
(b) any casualty or other insured damage to, or any taking under
power of eminent domain or by condemnation or similar proceeding of, any
property or asset of the Borrower or any Subsidiary, but only to the
extent that the Net Proceeds therefrom have not been applied or committed
to be applied to (i) repair, restore or replace such property or asset or
(ii) acquire real property, equipment or other tangible assets used or
useful in the business of the Borrower and the Subsidiaries, in each case
within 270 days after the receipt of such insurance proceeds;
(c) the incurrence of any Indebtedness by the Borrower or any
Subsidiary, other than Indebtedness referred to in Section 6.03(b) or
6.03(c);
(d) the issuance of any Capital Stock in the Borrower or any
Subsidiary, other than (i) any such issuances to the Borrower or any
Subsidiary and (ii) Syndications; or
(e) any repayment or prepayment of any intercompany note pledged
under the Collateral and Guarantee Agreement.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by JPMorgan Chase Bank, N.A. as its prime rate in effect at
its principal office in New York City. Each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as
being effective.
"Qualifying 2005 Notes Payment" means each payment (other than
payments funded with the proceeds of any Loans) made in connection with a
redemption or repayment at maturity of the 2005 Notes to the extent that (a)
prior to such payment, the Borrower shall have delivered to the Administrative
Agent written notice of such payment designating such payment as a "Qualifying
2005 Notes Payment" and (b) an amount equal to the aggregate amount of such
payment is received by the Borrower as proceeds of Refinancing Indebtedness in
respect of the 2005 Notes within 270 days of the date of such payment.
"Receivables" means accounts receivable (including all rights to
payment created by or arising from the sales of goods, leases of goods or the
rendition of services, no matter how evidenced and whether or not earned by
performance).
"Refinancing Indebtedness" means Indebtedness that is applied to
refund, refinance, repurchase and retire or extend any Existing Indebtedness,
any Indebtedness incurred under Section 6.03(a) and any Indebtedness previously
refinanced in accordance with this definition , provided that: (i) the
Refinancing Indebtedness is the obligation of the same Person or Persons (and
not of any other Person) and, if the Indebtedness being refunded, refinanced or
extended is subordinated to the Obligations, the Refinancing Indebtedness is
also subordinated to the Obligations to the same extent as the Indebtedness
being refunded, refinanced or extended; (ii) the Refinancing Indebtedness is
scheduled to mature no earlier than the Indebtedness being refunded, refinanced
or extended and is not subject to any requirement not applicable to the
Indebtedness being refunded, refinanced or extended that such Indebtedness be
prepaid, redeemed, repurchased or defeased on one or more scheduled dates or
upon the happening of one or more events (other than events of default or
change of control events); (iii) the Refinancing Indebtedness has a weighted
average life to maturity at the time such Refinancing Indebtedness is incurred
that is equal to or greater than the weighted average life to maturity of the
portion of the Indebtedness being refunded, refinanced or extended; (iv) the
Refinancing Indebtedness is secured only to the extent, if at all, and by the
assets that the Indebtedness being refunded, refinanced or extended is secured;
and (v) such Refinancing Indebtedness is in an aggregate principal amount that
is equal to or less than the aggregate principal amount then outstanding under
the Indebtedness being refunded, refinanced or extended (except for issuance
costs and increases in Attributable Indebtedness due solely to increases in the
present value calculations resulting from renewals or extensions of the terms
of the underlying leases in effect on the Amendment Effective Date); provided
further, that Indebtedness meeting the requirements of the foregoing clauses
(i) through (v) may constitute Refinancing Indebtedness notwithstanding that it
is not immediately applied to the refunding, refinancing, repurchase or
extension of other Indebtedness so long as (y) the Borrower designates such
Indebtedness as Refinancing Indebtedness and (z) prior to their use for
refunding, refinancing, repurchasing or extending other Indebtedness, the net
proceeds of such Indebtedness are promptly (1) deposited in an account
controlled by the Administrative Agent, pursuant to an agreement satisfactory
to the Borrower and the Administrative Agent, and held in such account pending
the application of such net proceeds to refund, refinance, repurchase or extend
such other Indebtedness or (2) applied to prepay Revolving Loans, in which case
an amount of the Revolving Commitments equal to the amount so prepaid will be
held available and not borrowed pending, and will be made available (subject to
the conditions to borrowing set forth herein) only to provide funds for, the
application of such net proceeds to refund, refinance, repurchase or extend
such other Indebtedness; provided further, that Indebtedness meeting the
requirements of the foregoing clauses (i) through (v) (with reference to the
2005 Notes) may constitute Refinancing Indebtedness with respect to the 2005
Notes notwithstanding that it is incurred after the redemption or repayment at
maturity of the 2005 Notes so long as (A) such Indebtedness is incurred within
270 days after the redemption or repayment at maturity of the 2005 Notes, (B)
the 2005 Notes were redeemed or repaid at maturity in whole or in part through
Qualifying 2005 Notes Payments, (C) the proceeds of such Indebtedness do not
exceed the aggregate amount of the Qualifying 2005 Notes Payments and (D) the
Borrower designates such Refinancing Indebtedness as Refinancing Indebtedness
in respect of the 2005 Notes at the time such Refinancing Indebtedness is
incurred.
"Register" has the meaning set forth in Section 9.04.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees,
trustees, agents and advisors of such Person and such Person's Affiliates.
"Release" means any release, spill, emission, leaking, dumping,
injection, pouring, deposit, disposal, discharge, dispersal, leaching or
migration into or through the environment or within or upon any building,
structure, facility or fixture.
"Required Lenders" means, at any time, Lenders having Combined Credit
Exposures and unused Commitments representing more than 50% of the sum of the
total Combined Credit Exposures and unused Commitments at such time.
"Restricted Cash and Cash Equivalents" means, as of any date, the cash
and cash equivalents (i) held by HCS Ltd and committed to third party
administrators for payment of the Borrower's insurance claims and (ii) held by
Syndicated Persons to the extent that such cash and cash equivalents are
required by the owners of such Syndicated Persons to be held in separate
accounts and not otherwise commingled with the assets of the Borrower.
"Restricted Payment" means with respect to any Person: (i) the
declaration of any dividend or the making of any other payment or distribution
of cash, securities or other property or assets in respect of such Person's
Capital Stock (except that a dividend payable solely in Capital Stock (other
than Disqualified Stock) of such Person shall not constitute a Restricted
Payment); (ii) any payment on account of the purchase, redemption, retirement
or other acquisition for value of such Person's Capital Stock or any other
payment or distribution made in respect thereof, either directly or indirectly;
or (iii) any payment on account of the purchase, redemption, retirement,
defeasance or other acquisition for value, prior to any scheduled principal
payment, sinking fund payment or Stated Maturity, of Subordinated Indebtedness
of such Person or any of its subsidiaries; provided, however, that with respect
to the Borrower and the Subsidiaries, Restricted Payments shall not include (A)
repurchases of Syndicated Interests in an aggregate amount in any Fiscal Year
up to $10,000,000 plus the proceeds received during such Fiscal Year of any
resale of such repurchased Syndicated Interests, or (B) payments made (1) to
the Borrower or any of its Subsidiaries by any of the Borrower's Subsidiaries,
(2) by the Borrower to any of its Subsidiaries or (3) any distribution by any
Subsidiary provided that the Borrower or another Subsidiary receives its
proportionate share thereof.
"Restrictive Indenture" means each Indenture that prohibits or
restricts the ability of the Borrower or any Subsidiary to Guarantee, or grant
any Lien to secure, any portion of the Obligations, which Indentures are
specifically identified on Schedule 101A.
"Revolving Availability Period" means the period from but excluding
the Amendment Effective Date to but excluding the earlier of the Revolving
Credit/LC Maturity Date and the date of termination of the Revolving
Commitments. "Revolving Commitment" means, with respect to each Revolving
Lender, the commitment of such Lender to make Revolving Loans, expressed as an
amount representing the maximum aggregate permitted amount of such Lender's
Revolving Exposure hereunder, as such commitment may be (a) reduced from time
to time pursuant to Section 2.07 and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 9.04. The
amount of each Lender's Revolving Commitment is set forth on Schedule 2.01 or
in the Assignment and Assumption pursuant to which such Lender shall have
assumed its Revolving Commitment, as applicable. The aggregate amount of the
Revolving Commitments on the Amendment Effective Date is $250,000,000.
"Revolving Credit/LC Maturity Date" means March 21, 2010.
"Revolving Exposure" means, with respect to any Revolving Lender at
any time, the sum of the outstanding principal amounts of such Lender's
Revolving Loans at such time.
"Revolving Lender" means a Lender with a Revolving Commitment or, if
the Revolving Commitments have terminated or expired, a Lender with Revolving
Exposure.
"Revolving Loan" means a Loan made pursuant to clause (b) of Section
2.01.
"S&P" means Standard & Poor's Corporation.
"Sale and Leaseback Transaction" means any arrangement whereby the
Borrower or a Subsidiary shall sell or transfer any property, real or personal,
used or useful in its business, whether now owned or hereinafter acquired, and
thereafter rent or lease from the buyer or transferee the sold or transferred
property or other property that it intends to use for substantially the same
purpose or purposes as the property sold or transferred.
"Scheduled Payment Date" has the meaning assigned to such term in
Section 2.09(a).
"SEC" means the United States Securities and Exchange Commission.
"Secured Parties" has the meaning assigned to such term in the
Collateral and Guarantee Agreement.
"Securities Act" means the Securities Act of 1933 and the rules and
regulations promulgated by the SEC thereunder.
"Securitization Transaction" means (a) any transfer by the Borrower or
any Subsidiary of Receivables or interests therein (i) to a trust, partnership,
corporation or other entity, which transfer is funded in whole or in part,
directly or indirectly, by the incurrence or issuance by the transferee or any
successor transferee of indebtedness or other securities that are to receive
payments from, or that represent interests in, the cash flow derived from such
Receivables or interests in Receivables, or (ii) directly to one or more
investors or other purchasers, or (b) any transaction in which the Borrower or
a Subsidiary incurs Indebtedness or other obligations secured by Liens on
Receivables. The "amount" or "principal amount" of any Securitization
Transaction shall be deemed at any time to be (A) in the case of a transaction
described in clause (a) of the preceding sentence, the aggregate principal or
stated amount of the Indebtedness or other securities referred to in such
clause or, if there shall be no such principal or stated amount, the
uncollected amount of the Receivables transferred pursuant to such
Securitization Transaction net of any such Receivables that have been written
off as uncollectible, and (B) in the case of a transaction described in clause
(b) of the preceding sentence, the aggregate outstanding principal amount of
the Indebtedness secured by Liens on the subject Receivables.
"Security Documents" means the Collateral and Guarantee Agreement, the
IP Security Agreements (as defined in the Collateral and Guarantee Agreement),
the Mortgages and each other security agreement or other instrument or document
executed and delivered pursuant to the Collateral and Guarantee Agreement or
pursuant to Section 5.14 or 5.15 to secure any of the Obligations.
"Senior Subordinated Credit Agreement" means the Senior Subordinated
Credit Agreement dated as of January 16, 2004, among the Borrower, the lenders
from time to time party thereto and Credit Suisse First Boston, as
administrative agent, syndication agent and arranger.
"Settlement Agreement" means any contract or agreement entered into by
the Borrower or any Subsidiary in connection with any settlement of any
litigation or other proceedings disclosed on Schedule 3.10, including the
Settlement Agreement dated as of December 30, 2004, among the Borrower, the
United States of America, acting through the entities named therein, and the
other parties thereto.
"Settlement Notes" means any Indebtedness evidenced by notes issued in
connection with any settlement of any litigation or other proceedings disclosed
on Schedule 3.10.
"Specified Deposit Accounts" means all concentration accounts,
investment accounts, automated clearing house accounts and similar accounts
maintained by the Borrower.
"Specified Property" means (a) the real property and improvements
thereon set forth in Schedule 1.01C and (b) other real property and
improvements thereon identified from time to time after the Amendment Effective
Date and prior to the acquisition or construction of such real property or
improvements by written notice from the Borrower to the Administrative Agent
(which notice shall also contain a reasonably detailed summary of the
construction and other improvements that the Borrower intends to make on the
applicable real property) and reasonably acceptable to the Administrative
Agent; provided, that the acquisition of or construction of improvements on any
such real property shall not have been financed in whole or in part with any
Indebtedness other than Revolving Loans.
"Specified Sale and Leaseback Transaction" means a Sale and Leaseback
Transaction consisting of a sale or other transfer of a Specified Property to a
real estate investment trust or other Person within 180 days after completion
of all principal construction and improvements set forth in Schedule 1.01C or
in the original notice of such Specified Property delivered to the
Administrative Agent and the simultaneous lease of such Specified Property by
such real estate investment trust or other Person to the Borrower or a
Subsidiary.
"Stated Maturity" when used with respect to any security or any
installment of interest thereon, means that date specified in such security as
the fixed date on which the principal of such security or such installment of
interest is due and payable.
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including
any marginal, special, emergency or supplemental reserves) expressed as a
decimal established by the Board to which the Administrative Agent is subject
for eurocurrency funding (currently referred to as "Eurocurrency Liabilities"
in Regulation D of the Board). Such reserve percentages shall include those
imposed pursuant to such Regulation D. Eurodollar Loans shall be deemed to
constitute eurocurrency funding and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under such Regulation D or any
comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"Sub-Account" has the meaning assigned to such term in Section 2.04(n).
"Subordinated Indebtedness" of any Person means any Indebtedness of
such Person that is subordinated in right of payment to the Obligations or any
of them.
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as
any other corporation, limited liability company, partnership, association or
other entity (a) of which securities or other ownership interests representing
more than 50% of the equity or more than 50% of the ordinary voting power or,
in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held, or (b) that is, as
of such date, otherwise Controlled by the parent or one or more subsidiaries of
the parent or by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower.
"Subsidiary Credit Support Date" means the first date on which the
Maximum Subsidiary Credit Support Amount is equal to or greater than
$10,000,000.
"Successor" has the meaning assigned to such term in Section 6.05.
"Supplemental Audit Report Date" means the date on which the Borrower
shall have delivered to the Administrative Agent and filed with the SEC audited
financial statements for the Fiscal Year ended December 31, 2004.
"Swap Agreement" means any agreement with respect to any swap,
forward, future or derivative transaction or option or similar agreement
involving, or settled by reference to, one or more rates, currencies,
commodities, equity or debt instruments or securities, or economic, financial
or pricing indices or measures of economic, financial or pricing risk or value
or any similar transaction or any combination of these transactions; provided
that no phantom stock or similar plan providing for payments only on account of
services provided by current or former directors, officers, employees or
consultants of the Borrower or the Subsidiaries shall be a Swap Agreement.
"Syndicated Interests" has the meaning set forth in the definition of
Syndications.
"Syndicated Person" means a Person the partnership or other equity
interests of which constitute Syndicated Interests.
"Syndications" means the sale of partnership or other equity interests
("Syndicated Interests") in Subsidiaries or other Persons Controlled by the
Borrower that own or operate surgery, diagnostic or other healthcare facilities
to (i) participating physicians, radiologists and other specialists, (ii)
professional corporations and other legal entities owned or controlled by such
participating physicians, radiologists and other specialists, and (iii)
participating hospitals and other healthcare providers.
"Syndication Agent" means Wachovia Bank, National Association, in its
capacity as syndication agent hereunder.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Lender" means a Lender with an outstanding Term Loan.
"Term Loans" means "Loans" of the Term Lenders under the Existing
Credit Agreement that are continued as term loans under Section 2.01(a).
"Term Commitment" means, with respect to each Term Lender, the
commitment of such Lender to convert its "Loans" outstanding under the Existing
Credit Agreement to Term Loans. The Term Commitment of each Term Lender is set
forth on Schedule 2.01. The aggregate amount of the Term Commitments is
$315,000,000.
"Term Maturity Date" means June 14, 2007; provided, that if, prior to
June 14, 2007, (i) the Borrower is permitted under the Senior Subordinated
Credit Agreement to extend the Term Maturity Date to March 21, 2010, and the
Borrower shall have delivered to the Administrative Agent an opinion of counsel
to such effect, or (ii) the Senior Subordinated Credit Agreement is terminated
or otherwise ceases to be in effect, then, without any further consent or other
action from or by any Lender or other party hereto, the Term Maturity Date
shall be automatically extended to March 21, 2010, and thereafter all
references herein to the "Term Maturity Date" shall be deemed to be references
to such extended Term Maturity Date.
"Tranche" means a category of Commitments and extensions of credits
thereunder. For purposes hereof, each of the following comprises a separate
Tranche: (a) the Revolving Commitments and the outstanding Revolving Loans, (b)
the Tranche A LC Commitments and Tranche A LC Disbursements that have not been
reimbursed by the Borrower, (c) the Tranche B LC Commitments and Tranche B LC
Disbursements that have not been reimbursed by the Borrower and (d) the Term
Commitments and the outstanding Term Loans.
"Tranche A LC Commitment" means, with respect to each Tranche A LC
Lender, the commitment of such Lender to acquire participations in Tranche A
Letters of Credit hereunder, expressed as an amount representing the maximum
aggregate permitted amount of such Lender's Tranche A LC Exposure hereunder, as
such commitment may be (a) reduced from time to time pursuant to Section 2.07
and (b) reduced or increased from time to time pursuant to assignments by or to
such Lender pursuant to Section 9.04. The initial amount of each Lender's
Tranche A LC Commitment is set forth on Schedule 2.01 or in the Assignment and
Assumption pursuant to which such Lender shall have assumed its Tranche A LC
Commitment, as applicable. The aggregate amount of the Tranche A LC Commitments
on the Amendment Effective Date is $65,000,000.
"Tranche A LC Disbursement" means any payment made by an Issuing Bank
pursuant to a Tranche A Letter of Credit.
"Tranche A LC Exposure" means, at any time, the sum of (a) the
aggregate undrawn amount of all outstanding Tranche A Letters of Credit at such
time and (b) the aggregate amount of all Tranche A LC Disbursements that have
not yet been reimbursed by or on behalf of the Borrower at such time. The
Tranche A LC Exposure of any Tranche A LC Lender at any time shall be its
Applicable Tranche A LC Percentage of the total Tranche A LC Exposure at such
time.
"Tranche A LC Lender" means a Lender with a Tranche A LC Commitment
or, if the Tranche A LC Commitments have terminated or expired, a Lender with a
Tranche A LC Exposure.
"Tranche A Letter of Credit" means a Letter of Credit that is not a
Tranche B Letter of Credit.
"Tranche B Deposit" means, with respect to each Tranche B LC Lender,
the amount that such Tranche B LC Lender shall deposit in such Tranche B LC
Lender's Sub-Account on the Amendment Effective Date, as such amount may be (a)
reduced from time to time pursuant to Section 2.04 or 2.07 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender's Tranche B Deposit
is set forth on Schedule 2.01 or in the Assignment and Assumption pursuant to
which such Lender shall have made its Tranche B Deposit, as applicable. The
aggregate amount of the Tranche B Deposits on the Amendment Effective Date is
$85,000,000.
"Tranche B Deposit Account" has the meaning assigned to such term in
Section 2.04(n).
"Tranche B Deposit Return" has the meaning assigned to such term in
Section 2.04(q).
"Tranche B LC Commitment" means, with respect to each Tranche B LC
Lender, the commitment of such Lender to acquire participations in Tranche B
Letters of Credit hereunder, expressed as an amount representing the maximum
aggregate permitted amount of such Lender's Tranche B LC Exposure hereunder, as
such commitment may be (a) reduced from time to time pursuant to Section 2.07
and (b) reduced or increased from time to time pursuant to assignments by or to
such Lender pursuant to Section 9.04. The initial amount of each Lender's
Tranche B LC Commitment is set forth on Schedule 2.01 or in the Assignment and
Assumption pursuant to which such Lender shall have assumed its Tranche B LC
Commitment, as applicable. The aggregate amount of the Tranche B LC Commitments
on the Amendment Effective Date is $85,000,000.
"Tranche B LC Disbursement" means any payment made by an Issuing Bank
pursuant to a Tranche B Letter of Credit.
"Tranche B LC Exposure" means, at any time, the sum of (a) the
aggregate undrawn amount of all outstanding Tranche B Letters of Credit at such
time plus (b) the aggregate amount of all Tranche B LC Disbursements that have
not yet been reimbursed by or on behalf of the Borrower at such time. The
Tranche B LC Exposure of any Tranche B LC Lender at any time shall be its
Applicable Tranche B LC Percentage of the total Tranche B LC Exposure at such
time.
"Tranche B LC Lender" means a Lender having a Tranche B Deposit.
"Tranche B Letter of Credit" means a Letter of Credit as to which the
Administrative Agent may apply Tranche B Deposits for purposes of reimbursing
Tranche B LC Disbursements in accordance with Section 2.04.
"Transactions" means the execution, delivery and performance by the
Borrower of this Agreement, the borrowing of the Loans, the use of the proceeds
thereof, the obtaining of the Letters of Credit, the creation of the Liens
granted under the Security Documents and the other transactions contemplated
hereby.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the
Alternate Base Rate.
"Unrestricted Cash and Cash Equivalents" means, as of any date, the
aggregate amount of consolidated cash and cash equivalents of the Borrower less
the aggregate amount of Restricted Cash and Cash Equivalents.
"USA Patriot Act" means the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA
PATRIOT ACT) Act of 2001, as amended.
"Wholly Owned Subsidiary" of any Person means (i) a subsidiary of
which 100% of the Common Equity (except for director's qualifying shares or
certain minority interests owned by other Persons solely due to local law
requirements that there be more than one stockholder, but which interest is not
in excess of what is required for such purpose) is owned directly by such
Person or through one or more other Wholly Owned Subsidiaries of such Person
and (ii) any entity other than a corporation in which such Person, directly or
indirectly, owns all of the Common Equity of such entity.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g., a
"Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type
(e.g., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
"Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving
Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including"
shall be deemed to be followed by the phrase "without limitation". The word
"will" shall be construed to have the same meaning and effect as the word
"shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth
herein), (b) any reference herein to any Person shall be construed to include
such Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights. All values to be determined from financial statements of the
Borrower to be delivered under Section 5.01(a)(ii) or 5.01(a)(iii) shall be
deemed to be equal to zero until the Audit Report Date.
SECTION 1.04. Accounting Terms; GAAP. (a) Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the Amendment Effective Date in GAAP or in the
application thereof on the operation of such provision (or if the
Administrative Agent notifies the Borrower that the Required Lenders request an
amendment to any provision hereof for such purpose), regardless of whether any
such notice is given before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance herewith. All financial covenants and financial definitions herein
shall be calculated without regard to Statement of Financial Accounting
Standards Number 123, relating to share-based accounting.
(b) All computations required to be made hereunder on a pro forma
basis giving effect to any acquisition, investment, sale, disposition or
similar event shall reflect on a pro forma basis such event and, to the extent
applicable, the historical earnings and cash flows associated with the assets
acquired or disposed of and any related incurrence or reduction of
Indebtedness, but shall not take into account any projected synergies or
similar benefits expected to be realized as a result of such event.
SECTION 1.05. Senior Debt Status. In the event that the Borrower shall
at any time issue or have outstanding any Subordinated Indebtedness, the
Borrower shall take all such actions as shall be necessary to cause the
Obligations to constitute senior indebtedness (however denominated) in respect
of such Subordinated Indebtedness and to enable the Lenders to have and
exercise any payment blockage or other remedies available or potentially
available to holders of senior indebtedness under the terms of such
Subordinated Indebtedness. Without limiting the foregoing, the Obligations are
hereby designated as "senior indebtedness" and as "designated senior
indebtedness" under and in respect of the Senior Subordinated Credit Agreement,
any Indentures under which Subordinated Indebtedness is outstanding and, if
relevant, any other Subordinated Indebtedness and are further given all such
other designations as shall be required under the terms of any such
Subordinated Indebtedness in order that the Lenders or the Administrative Agent
may have and exercise any payment blockage or other remedies available or
potentially available to holders of senior indebtedness under the terms of such
Subordinated Indebtedness.
ARTICLE II
The Credits
-----------
SECTION 2.01. Term Loans; Commitments. (a) Subject to the terms and
conditions and relying upon the representations and warranties set forth
herein, each Term Lender agrees that on the Amendment Effective Date, its
"Loans" outstanding on such date under the Existing Credit Agreement, in an
aggregate principal amount equal to its Term Commitment, will be continued as
Term Loans under this Agreement. Amounts repaid or prepaid in respect of Term
Loans may not be reborrowed.
(b) Subject to the terms and conditions and relying upon the
representations and warranties set forth herein, each Revolving Lender agrees
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
(i) such Lender's Revolving Exposure exceeding such Lender's Revolving
Commitment or (ii) the sum of the aggregate Revolving Exposures and the
aggregate amount of the LC Exposures attributable to Letters of Credit that are
not Designated Purpose Letters of Credit exceeding $250,000,000 if at the time
such excess Indebtedness would not be permitted under the Senior Subordinated
Credit Agreement. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, prepay and reborrow
Revolving Loans.
SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan shall be
made as part of a Borrowing consisting of Revolving Loans made by the Revolving
Lenders ratably in accordance with their respective Revolving Commitments. Each
Term Loan shall be part of a Borrowing consisting of Term Loans made by the
Term Lenders (by the continuation of loans made under the Existing Credit
Agreement as described in Section 2.01) ratably in accordance with their Term
Commitments or the aggregate amounts of their respective Term Loans. The
failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the
Commitments of the Lenders are several and no Lender shall be responsible for
any other Lender's failure to make Loans as required.
(b) Subject to Section 2.13, (i) each Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Loans as the Borrower may request in
accordance herewith. Each Lender at its option may make any Eurodollar Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not affect the obligation
of the Borrower to repay such Loan in accordance with the terms of this
Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $10,000,000. At the time that each ABR
Borrowing is made, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $10,000,000; provided that an
ABR Revolving Borrowing may be in an aggregate amount that is equal to the
entire unused balance of the total Revolving Commitments or that is required to
finance the reimbursement of an LC Disbursement as contemplated by Section
2.04(e). Borrowings of more than one Class and Type may be outstanding at the
same time; provided that there shall not at any time be more than a total of 10
Eurodollar Borrowings outstanding.
(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 Term Maturity Date or the Revolving Credit/LC Maturity Date, as
applicable.
SECTION 2.03. Requests for Revolving Borrowings. To request a
Revolving Borrowing, the Borrower shall notify the Administrative Agent of such
request by telephone (a) in the case of a Eurodollar Borrowing, not later than
11:00 a.m., 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 11:00
a.m., New York City time, one Business Day before the date of the proposed
Borrowing; provided that any such notice of an ABR Borrowing to finance the
reimbursement of an LC Disbursement as contemplated by Section 2.04(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 in a form approved by the
Administrative Agent and signed by the Borrower. Each such telephonic and
written Borrowing Request shall specify the following information in compliance
with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) 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
(v) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.05.
If no election as to the Type of a 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 the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Revolving Loan to be made as part of the requested
Borrowing.
SECTION 2.04. Letters of Credit. (a) General. Prior to the Amendment
Effective Date, JPMorgan Chase Bank, N.A. issued the Existing Letters of
Credit, which on and after the Amendment Effective Date shall constitute
Tranche A Letters of Credit and Tranche B Letters of Credit under this
Agreement and as provided in Schedule 2.04. Subject to the terms and conditions
set forth herein, the Borrower may request any Issuing Bank to issue Letters of
Credit for the Borrower's account, in a form reasonably acceptable to the
Administrative Agent and the applicable Issuing Bank, at any time and from time
to time during the LC 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, an Issuing Bank relating to
any Letter of Credit, the terms and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal and 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 send by telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the applicable Issuing Bank) to
the applicable Issuing Bank 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), whether such Letter of Credit shall be a Tranche A Letter of
Credit or a Tranche B Letter of Credit, the amount of such Letter of Credit,
the purpose for which such Letter of Credit is to be used (and whether or not
such Letter of Credit is a Designated Purpose 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 applicable 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 total Tranche A LC Exposure shall not exceed the aggregate
Tranche A LC Commitments, (ii) the total Tranche B LC Exposure shall not exceed
the aggregate Tranche B LC Commitments and (iii) the sum of the aggregate
Revolving Exposures and the aggregate amount of the LC Exposures attributable
to Letters of Credit that are not Designated Purpose Letters of Credit shall
not exceed $250,000,000 if at the time such excess Indebtedness would not be
permitted under the Senior Subordinated Credit Agreement or the Indentures. By
written notice to the Administrative Agent, the Borrower may redesignate (i)
any Tranche A Letter of Credit as a Tranche B Letter of Credit or (ii) any
Tranche B Letter of Credit as a Tranche A Letter of Credit if, after giving
effect to such designation, the conditions set forth in the immediately
preceding sentence shall be satisfied.
(c) Expiration Date. Each Letter of Credit shall expire at or prior to
the close of business on the earlier of (i) the date 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 Revolving Credit/LC Maturity Date;
provided that any Letter of Credit may contain customary automatic renewal
provisions agreed upon by the Borrower and the applicable Issuing Bank pursuant
to which the expiration date is automatically extended for a period of up to 12
months (but not to a date later than the date set forth in clause (ii) above),
subject to a right on the part of such Issuing Bank to prevent any such renewal
from occurring by giving notice to the beneficiary by a specified time in
advance of any such renewal.
(d) Participations. (i) By the issuance of a Tranche A Letter of
Credit (or an amendment to a Tranche A Letter of Credit increasing the amount
thereof) and without any further action on the part of the applicable Issuing
Bank or the Tranche A LC Lenders, the applicable Issuing Bank hereby grants to
each Tranche A LC Lender, and each Tranche A LC Lender hereby acquires from
such Issuing Bank, a participation in such Tranche A Letter of Credit equal to
such Tranche A LC Lender's Applicable Tranche A LC Percentage of the aggregate
amount available to be drawn under such Tranche A Letter of Credit. In
consideration and in furtherance of the foregoing, each Tranche A LC Lender
hereby absolutely and unconditionally agrees to pay to the Administrative
Agent, for the account of each Issuing Bank, such Tranche A LC Lender's
Applicable Tranche A LC Percentage of each Tranche A LC Disbursement made by
such Issuing Bank and not reimbursed by the Borrower on the date due as
provided in paragraph (e) of this Section, or of any reimbursement payment
required to be refunded to the Borrower for any reason. Each Tranche A LC
Lender acknowledges and agrees that its obligation to acquire participations
pursuant to this subparagraph (i) in respect of Tranche A Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Tranche A
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the Tranche A LC Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction whatsoever.
(ii) By the issuance of a Tranche B Letter of Credit (or an
amendment to a Tranche B Letter of Credit increasing the amount
thereof) and without any further action on the part of the applicable
Issuing Bank or the Tranche B LC Lenders, such Issuing Bank hereby
grants to each Tranche B LC Lender, and each Tranche B LC Lender
hereby acquires from such Issuing Bank, a participation in such
Tranche B Letter of Credit equal to such Tranche B LC Lender's
Applicable Tranche B LC Percentage of the aggregate amount available
to be drawn under such Tranche B Letter of Credit. In consideration
and in furtherance of the foregoing, each Tranche B LC Lender hereby
absolutely and unconditionally agrees that if an Issuing Bank makes a
Tranche B LC Disbursement which is not reimbursed by the Borrower on
the date due as provided in paragraph (e) of this Section, or is
required to refund any reimbursement payment in respect of a Tranche B
LC Disbursement to the Borrower for any reason, the Administrative
Agent shall reimburse the applicable Issuing Bank for such Tranche B
LC Lender's Applicable Tranche B LC Percentage of the amount of such
Tranche B LC Disbursement from such Tranche B LC Lender's Tranche B
Deposit. In the event the Tranche B Deposit Account is charged by the
Administrative Agent to reimburse the applicable Issuing Bank for an
unreimbursed Tranche B LC Disbursement, the Borrower shall pay over to
the Administrative Agent in reimbursement of the applicable Tranche B
LC Disbursement an amount equal to the amount so charged, as provided
in paragraph (e) below, and such payment shall be deposited by the
Administrative Agent in the Tranche B Deposit Account. Each Tranche B
LC Lender acknowledges and agrees that its obligation to acquire and
fund participations in respect of Tranche B Letters of Credit pursuant
to this subparagraph (ii) is unconditional and irrevocable and shall
not be affected by any circumstance whatsoever, including any
amendment, renewal or extension of any Tranche B Letter of Credit or
the occurrence and continuance of a Default or the return of the
Tranche B Deposits, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever. Without
limiting the foregoing, each Tranche B LC Lender irrevocably
authorizes the Administrative Agent to apply amounts of its Tranche B
Deposit as provided in this subparagraph (ii).
(e) Reimbursement. If an 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 Business
Day that such Borrower receives notice of such LC Disbursement, 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 such Borrower receives
notice of such LC Disbursement, 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 $10,000,000, the Borrower may, subject to the conditions to borrowing set
forth herein, request in accordance with Section 2.03 that such payment be
refinanced with the proceeds of an ABR Revolving Borrowing in an equivalent
amount.
(i) If the Borrower fails to make any payment described in
the foregoing clause (e) with respect to a Tranche A Letter of Credit,
the Administrative Agent shall notify each Tranche A LC Lender of the
applicable Tranche A LC Disbursement, the payment then due from the
Borrower in respect thereof and such Tranche A Lender's Applicable
Tranche A LC Percentage thereof. Promptly following receipt of such
notice and in no event later than one Business Day following receipt
of such notice, each Tranche A LC Lender shall pay to the
Administrative Agent its Applicable Tranche A LC Percentage of the
payment then due from the Borrower, in the same manner as provided in
Section 2.05 with respect to Revolving Loans made by the Revolving
Lenders to the Borrower (and Section 2.05 shall apply, mutatis
mutandis, to the payment obligations of the Tranche A LC Lenders), and
the Administrative Agent shall promptly pay to the applicable Issuing
Bank the amounts so received by it from the Tranche A LC Lenders.
Promptly following receipt by the Administrative Agent of any payment
from the Borrower pursuant to this paragraph and in any event within
one Business Day thereafter, the Administrative Agent shall distribute
such payment to the applicable Issuing Bank or, to the extent that
Tranche A LC Lenders have made payments pursuant to this paragraph to
reimburse such Issuing Bank, then to such Tranche A LC Lenders and
such Issuing Bank as their interests may appear. Any payment made by a
Tranche A LC Lender pursuant to this paragraph to reimburse an Issuing
Bank for any Tranche A LC Disbursement shall not constitute a Loan and
shall not relieve the Borrower of its obligation to reimburse such
Tranche A LC Disbursement.
(ii) If the Borrower fails to make any payment described in
the foregoing clause (e) with respect to a Tranche B Letter of Credit,
the Administrative Agent shall notify each Tranche B LC Lender of the
applicable Tranche B LC Disbursement, the payment then due from the
Borrower in respect thereof and such Tranche B LC Lender's Applicable
Tranche B LC Percentage thereof, and the Administrative Agent shall
promptly pay to the applicable Issuing Bank each Tranche B LC Lender's
Applicable Tranche B LC Percentage of such Tranche B LC Disbursement
from such Tranche B LC Lender's Tranche B Deposit. Promptly following
receipt by the Administrative Agent of any payment by the Borrower in
respect of any Tranche B LC Disbursement, the Administrative Agent
shall distribute such payment to the applicable Issuing Bank or, to
the extent payments have been made from the Tranche B Deposits, to the
Tranche B Deposit Account to be added to the Tranche B Deposits of the
Tranche B LC Lenders in accordance with their Applicable Tranche B LC
Percentages. The Borrower acknowledges that each payment made pursuant
to this subparagraph (ii) in respect of any Tranche B LC Disbursement
is required to be made for the benefit of the distributees indicated
in the immediately preceding sentence. Any payment made from the
Tranche B Deposit Account, or from funds of the Administrative Agent,
pursuant to this paragraph to reimburse an Issuing Bank for any
Tranche B LC Disbursement shall not constitute a Loan and shall not
relieve the Borrower (or any other account party in respect of the
relevant Tranche B Letter of Credit) of its obligation to reimburse
such Tranche B LC Disbursement.
(f) Obligations Absolute. The Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (e) above 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 an 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, constitute a legal or equitable
discharge of, or provide a right of setoff against, the Borrower's obligations
hereunder. None of the Administrative Agent, the LC Lenders or the Issuing
Banks, or 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 an Issuing Bank; provided that the
foregoing shall not be construed to excuse any Issuing Bank from liability to
the Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrower to the
extent permitted by applicable law) suffered by the Borrower that are caused by
such 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 wilful misconduct on the part of an Issuing Bank (as finally
determined by a court of competent jurisdiction), such 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 which appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the applicable
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.
(g) Disbursement Procedures. Each Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit issued by it. Such Issuing Bank
shall promptly notify the Administrative Agent and the Borrower by telephone
(confirmed by telecopy) of such demand for payment and whether such 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 such Issuing Bank and the LC Lenders with
respect to any such LC Disbursement.
(h) Interim Interest. If an 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 a rate per annum (computed in accordance with Section 2.12(e))
equal to (i) with respect to any unreimbursed LC Disbursement in respect of a
Tranche A Letter of Credit, the Alternate Base Rate plus 1.75% per annum and
(ii) with respect to any unreimbursed LC Disbursement in respect of a Tranche B
Letter of Credit, the Alternate Base Rate plus 1.50% per annum; provided that,
if the Borrower fails to reimburse such LC Disbursement when due pursuant to
paragraph (e) of this Section, then Section 2.12(c) shall apply. Interest
accrued pursuant to this paragraph shall be for the account of the applicable
Issuing Bank, except that interest accrued on and after the date of payment by
any LC Lender pursuant to paragraph (e) of this Section to reimburse such
Issuing Bank shall be for the account of such Lender to the extent of such
payment.
(i) Termination of an Issuing Bank. Any Issuing Bank may cease to be
an Issuing Bank at any time by written agreement among the Borrower, the
Administrative Agent and such Issuing Bank. The Administrative Agent shall
notify the LC Lenders of any such termination of an Issuing Bank. At the time
any such termination shall become effective, the Borrower shall pay all unpaid
fees accrued for the account of the terminated Issuing Bank pursuant to Section
2.11. After the termination of an Issuing Bank hereunder, such Issuing Bank
shall remain a party hereto and shall continue to have all the rights and
obligations of an Issuing Bank under this Agreement with respect to Letters of
Credit issued by it prior to such termination, but shall not be required to
issue additional Letters of Credit.
(j) Additional Issuing Banks. The Borrower may, at any time and from
time to time, with the consent of the Administrative Agent (which consent shall
not be unreasonably withheld, delayed or conditioned) and the designated
Lender, designate one or more additional Lenders to act as an Issuing Bank
under the terms of this Agreement, and any Lender so designated shall become an
Issuing Bank hereunder.
(k) Issuing Bank Reports. Unless otherwise agreed by the
Administrative Agent, each Issuing Bank shall report in writing to the
Administrative Agent (i) on or prior to each Business Day on which such Issuing
Bank issues, amends, renews or extends any Letter of Credit, the date of such
issuance, amendment, renewal or extension, and the aggregate face amount of the
Letters of Credit issued, amended, renewed or extended by it and outstanding
after giving effect to such issuance, amendment, renewal or extension (and
whether the amount thereof changed), it being understood that such Issuing Bank
shall not effect any issuance, renewal, extension or amendment resulting in an
increase in the amount of any Letter of Credit without first obtaining written
confirmation from the Administrative Agent that such increase is then permitted
under this Agreement, (ii) on each Business Day on which such Issuing Bank
makes any LC Disbursement, the date and amount of such LC Disbursement, (iii)
on any Business Day on which the Borrower fails to reimburse an LC Disbursement
required to be reimbursed to such Issuing Bank on such day, the date of such
failure and the amount of such LC Disbursement and (iv) on any other Business
Day, such other information as the Administrative Agent shall reasonably
request as to the Letters of Credit issued by such Issuing Bank and outstanding
on such Business Day.
(l) 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 any Loans
has been accelerated, LC Lenders with LC Exposure representing greater than 50%
of the total LC Exposure) demanding the deposit of cash collateral pursuant to
this paragraph, the Borrower shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for the
benefit of the Lenders, an amount in cash equal to the LC Exposure as of such
date plus any accrued and unpaid interest thereon; provided that the obligation
to deposit such cash collateral shall become effective immediately, and such
deposit shall become immediately due and payable, without demand or other
notice of any kind, upon the occurrence of any Event of Default with respect to
the Borrower described in clause (h) or (i) of Section 7.01. Such deposit shall
be held by the Administrative Agent as collateral for the payment and
performance of the Obligations under this Agreement. The Administrative Agent
shall have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the investment
of such deposits, which investments shall be made at the option and sole
discretion of the Administrative Agent and at the Borrower's risk and expense,
such deposits shall not bear interest. Interest 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 Banks for LC
Disbursements for which they have 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 LC Lenders with LC
Exposures representing greater than 50% of the total LC Exposure), be applied
to satisfy other obligations of the Borrower under this Agreement. If the
Borrower is required to deposit 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.
(m) Rights of Issuing Bank. Each Issuing Bank shall, to the extent
applicable, have all of the benefits and immunities provided to the
Administrative Agent under this Agreement with respect to any actions taken or
not taken by the Issuing Bank in connection with Letters of Credit.
(n) Establishment of Tranche B Deposit Account and Sub-Accounts. On or
prior to the Amendment Effective Date, the Administrative Agent shall establish
a deposit account (the "Tranche B Deposit Account") of the Administrative Agent
at JPMorgan Chase Bank, N.A. with the title "HealthSouth 2005 Credit Agreement
Tranche B Deposit Account". The Administrative Agent shall maintain records
enabling it to determine at any time the amount of the interest of each Tranche
B LC Lender in the Tranche B Deposit Account (the interest of each Tranche B LC
Lender in the Tranche B Deposit Account, as evidenced by such records, being
referred to as such Tranche B LC Lender's "Sub-Account"). The Administrative
Agent shall establish such additional Sub-Accounts for assignee Tranche B LC
Lenders as shall be required pursuant to Section 9.04(b). No Person (other than
the Administrative Agent) shall have the right to make any withdrawal from the
Tranche B Deposit Account or to exercise any other right or power with respect
thereto except as expressly provided in paragraph (p) below or in Section
9.04(b). Without limiting the generality of the foregoing, each party hereto
acknowledges and agrees that the Tranche B Deposits are and will at all times
be property of the Tranche B LC Lenders, and that no amount on deposit at any
time in the Tranche B Deposit Account shall be the property of any of the Loan
Parties, constitute "Collateral" under the Loan Documents or otherwise be
available in any manner to satisfy any Obligations of any of the Loan Parties
under the Loan Documents. Each Tranche B LC Lender agrees that its right, title
and interest in and to the Tranche B Deposit Account shall be limited to the
right to require amounts in its Sub-Account to be applied as provided in
paragraph (p) below and that it will have no right to require the return of its
Tranche B Deposit other than as expressly provided in such paragraph (p) (each
Tranche B LC Lender hereby acknowledging (i) that its Tranche B Deposit
constitutes payment for its participations in Tranche B Letters of Credit
issued or to be issued hereunder, (ii) that its Tranche B Deposit and any
investments made therewith shall secure its obligations to the Issuing Banks
hereunder (each Tranche B LC Lender hereby granting to the Administrative
Agent, for the benefit of the Issuing Banks, a security interest in its Tranche
B Deposit and agreeing that the Administrative Agent, as holder of the Tranche
B Deposits and any investments made therewith, will be acting, inter alia, as
collateral agent for the Issuing Banks) and (iii) that the Issuing Banks will
be issuing, amending, renewing and extending Tranche B Letters of Credit in
reliance on the availability of such Tranche B LC Lender's Tranche B Deposit to
discharge such Tranche B LC Lender's obligations in accordance with Section
2.04(e) in connection with any Tranche B LC Disbursement thereunder). The
funding of the Tranche B Deposits and the agreements with respect thereto set
forth in this Agreement constitute arrangements among the Administrative Agent,
the Issuing Banks and the Tranche B LC Lenders with respect to the funding
obligations of the Tranche B LC Lenders under this Agreement, and the Tranche B
Deposits do not constitute loans or extensions of credit to any Loan Party. No
Loan Party shall have any responsibility or liability to the Tranche B LC
Lenders, the Agents or any other Person in respect of the establishment,
maintenance, administration or misappropriation of the Tranche B Deposit
Account (or any Sub-Account) or with respect to the investment of amounts held
therein, including pursuant to paragraph (q) below. JPMorgan Chase Bank, N.A.
hereby waives any right of setoff against the Tranche B Deposits that it may
have under applicable law or otherwise with respect to amounts owed to it by
Tranche B LC Lenders (it being agreed that such waiver shall not reduce the
rights of JPMorgan Chase Bank, N.A., in its capacity as an Issuing Bank or
otherwise, to apply or require the application of the Tranche B Deposits in
accordance with the provisions of this Agreement).
(o) Tranche B Deposits in Tranche B Deposit Account. The following
amounts will be deposited in the Tranche B Deposit Account at the following
times:
(i) On the Amendment Effective Date, each Tranche B LC Lender
shall deposit in the Tranche B Deposit Account an amount in dollars
equal to such Tranche B LC Lender's Tranche B Deposit. Thereafter, the
Tranche B Deposits shall be available, on the terms and subject to the
conditions set forth herein, for application pursuant to Section
2.04(e) to reimburse such Tranche B LC Lender's Applicable Tranche B
LC Percentage of Tranche B LC Disbursements that are not reimbursed by
the Borrower. The obligations of the Tranche B LC Lenders to make the
deposits required by this subparagraph (i) are several, and no Tranche
B LC Lender shall be responsible for any other Tranche B LC Lender's
failure to make its deposit as so required.
(ii) On any date prior to the Revolving Credit/LC Maturity
Date on which the Administrative Agent or any Issuing Bank receives
any reimbursement payment from the Borrower in respect of a Tranche B
LC Disbursement with respect to which amounts were withdrawn from the
Tranche B Deposit Account to reimburse any Issuing Bank, subject to
subparagraph (iv) below, the Administrative Agent shall deposit in the
Tranche B Deposit Account, and credit to the Sub-Accounts of the
Tranche B LC Lenders, the portion of such reimbursement payment to be
deposited therein, in accordance with Section 2.04(e).
(iii) If at any time when any amount is required to be
deposited in the Tranche B Deposit Account under subparagraph (ii)
above the sum of such amount and the aggregate amount of the Tranche B
Deposits at such time would exceed the total Tranche B Deposits, then
such excess shall not be deposited in the Tranche B Deposit Account
and the Administrative Agent shall instead pay to each Tranche B LC
Lender its Tranche B LC Applicable Percentage of such excess.
(iv) Concurrently with the effectiveness of any assignment by
any Tranche B LC Lender of all or any portion of its Tranche B
Deposit, the Administrative Agent shall transfer into the Sub-Account
of the assignee the corresponding portion of the amount on deposit in
the assignor's Sub-Account in accordance with Section 9.04(b)(ii)(F).
(p) Withdrawals From and Closing of Tranche B Deposit Account. Amounts
on deposit in the Tranche B Deposit Account shall be withdrawn and distributed
(or transferred, in the case of subparagraph (v) below) as follows:
(i) On each date on which an Issuing Bank is to be reimbursed
by the Tranche B LC Lenders pursuant to Section 2.04(e) for any
Tranche B LC Disbursement, the Administrative Agent shall withdraw
from the Tranche B Deposit Account the amount of such unreimbursed
Tranche B LC Disbursement (and debit the Sub-Account of each Tranche B
LC Lender in the amount of such Tranche B LC Lender's Applicable
Tranche B LC Percentage of such unreimbursed Tranche B LC
Disbursement) and make such amount available to such Issuing Bank in
accordance with Section 2.04(e).
(ii) Concurrently with each voluntary reduction of the total
Tranche B LC Commitments pursuant to and in accordance with Section
2.07, the Administrative Agent shall withdraw from the Tranche B
Deposit Account and pay to each Tranche B LC Lender such Tranche B LC
Lender's Applicable Tranche B LC Percentage of any amount by which the
Tranche B Deposits, after giving effect to such reduction of the total
Tranche B LC Commitments, would exceed the greater of the total
Tranche B LC Commitments and the total Tranche B LC Exposure.
(iii) Concurrently with any reduction of the total Tranche B
LC Commitments to zero pursuant to and in accordance with Section 2.07
or Article VII, the Administrative Agent shall withdraw from the
Tranche B Deposit Account and pay to each Tranche B LC Lender such
Tranche B LC Lender's Applicable Tranche B LC Percentage of the excess
at such time of the aggregate amount of the Tranche B Deposits over
the Tranche B LC Exposure.
(iv) Concurrently with the effectiveness of any assignment by
any Tranche B LC Lender of all or any portion of its Tranche B
Deposit, the corresponding portion of the assignor's Sub-Account shall
be transferred from the assignor's Sub-Account to the assignee's
Sub-Account in accordance with Section 9.04(b) and, if required by
Section 9.04(b), the Administrative Agent shall close such assignor's
Sub-Account.
(v) Upon the reduction of each of the total Tranche B LC
Commitments and the Tranche B LC Exposure to zero, the Administrative
Agent shall withdraw from the Tranche B Deposit Account and pay to
each Tranche B LC Lender the entire remaining amount of such Tranche B
LC Lender's Tranche B Deposit, and shall close the Tranche B Deposit
Account.
Each Tranche B LC Lender irrevocably and unconditionally agrees that its
Tranche B Deposit may be applied or withdrawn from time to time as set forth in
this paragraph (p).
(q) Investment of Amounts in Tranche B Deposit Account. The
Administrative Agent shall invest, or cause to be invested, the Tranche B
Deposit of each Tranche B LC Lender so as to earn for the account of such
Tranche B LC Lender a return thereon (the "Tranche B Deposit Return") for each
day at a rate per annum equal to (i) the one month LIBOR rate as determined by
the Administrative Agent on such day (or if such day was not a Business Day,
the first Business Day immediately preceding such day) based on rates for
deposits in dollars (as set forth by Bloomberg L.P.-page BTMM or any other
comparable publicly available service as may be selected by the Administrative
Agent) (the "Benchmark LIBO Rate") minus (ii) 0.10% per annum (based on a
365/366 day year). The Benchmark LIBO Rate will be reset on each Business Day.
The Tranche B Deposit Return accrued through and including the last day of
March, June, September and December of each year shall be payable by the
Administrative Agent to each Tranche B LC Lender on the third Business Day
following such last day, commencing on the first such date to occur after the
Amendment Effective Date, and on the date on which each of the total Tranche B
Deposits and the Tranche B LC Exposure shall have been reduced to zero, and the
Administrative Agent agrees to pay to each Tranche B LC Lender the amount due
to it under this sentence. In addition, the Borrower agrees to pay to the
Administrative Agent for the account of each Tranche B LC Lender an additional
amount (payable in arrears on each date that participation fees are payable to
each such Tranche B LC Lender in accordance with Section 2.11), accruing at the
rate of 0.10% per annum (based on a 365/366 day year), on the daily amount of
the Tranche B Deposit of such Lender during the period from and including the
date hereof to but excluding the date on which each of the Tranche B Deposits
and the Tranche B LC Exposure have been reduced to zero.
(r) Sub-Agents. As provided in Article VIII, the Administrative Agent
may perform any and all its duties and exercise its rights and powers
contemplated by this Section 2.04 by or through one or more sub-agents
appointed by it (which may include any of its Affiliates). The parties hereto
acknowledge that on or prior to the Amendment Effective Date the Administrative
Agent has engaged JPMorgan Chase Institutional Trust Services to act as its
sub-agent in connection with the Tranche B Deposit Account, and that in such
capacity JPMorgan Chase Institutional Trust Services shall be entitled to the
benefit of all the provisions of this Agreement contemplated by Article VIII,
including the provisions of Section 9.03.
(s) Sufficiency of Tranche B Deposits to Provide for
Undrawn/Unreimbursed Tranche B LC Exposure. Notwithstanding any other provision
of this Agreement, including Sections 2.01 and 2.04, no Tranche B Letter of
Credit shall be issued or increased as to its stated amount, if after giving
effect to such issuance or increase, the aggregate amount of the Tranche B
Deposits would be less than the Tranche B LC Exposure. The Administrative Agent
agrees to provide, at the request of any Issuing Bank, information to such
Issuing Bank as to the aggregate amount of the Tranche B Deposits and the
Tranche B LC Exposure.
(t) Satisfaction of Tranche B LC Lender Funding Obligations. The
Borrower and each Issuing Bank acknowledges and agrees that, subject to Section
2.04(d)(i), but notwithstanding any other provision contained herein, the
deposit by each Tranche B LC Lender in the Tranche B Deposit Account on the
Amendment Effective Date of funds equal to its Tranche B Deposit will fully
discharge the obligation of such Tranche B LC Lender to reimburse such Tranche
B LC Lender's Applicable Tranche B Percentage of Tranche B LC Disbursements
that are not reimbursed by the Borrower pursuant to Section 2.04(e), and that
no other or further payments shall be required to be made by any Tranche B LC
Lender in respect of any such reimbursement obligations.
SECTION 2.05. Funding of Revolving Borrowings. (a) Subject to Section
2.03 hereof, each Lender shall make each Revolving Loan to be made by it
hereunder on the proposed date thereof by wire transfer of immediately
available funds by 12:00 noon, New York City time, to the account of the
Administrative Agent most recently designated by it for such purpose by notice
to the Revolving Lenders. The Administrative Agent will make such Revolving
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 Revolving Loans made to finance the
reimbursement of an LC Disbursement as provided in Section 2.04(e) shall be
remitted by the Administrative Agent to the applicable Issuing Bank.
(b) Unless the Administrative Agent shall have received notice from a
Revolving Lender prior to the proposed date of any Revolving Borrowing that
such Revolving Lender will not make available to the Administrative Agent such
Lender's share of such Revolving Borrowing, the Administrative Agent may assume
that such Revolving Lender has made such share available on such date in
accordance with paragraph (a) of this Section and may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Revolving
Borrowing available to the Administrative Agent, then the applicable Revolving
Lender and the Borrower severally agree to pay to the Administrative Agent
forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Borrower
to but excluding the date of payment to the Administrative Agent, at (i) in the
case of such Revolving Lender, the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the Borrower,
the interest rate applicable to ABR Revolving Loans. If such Lender pays such
amount to the Administrative Agent, then such amount shall constitute such
Lender's Revolving Loan included in such Revolving Borrowing.
SECTION 2.06. Interest Elections. (a) Each Revolving 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. The Term Borrowings shall
initially shall be ABR Borrowings. Thereafter, the Borrower may elect to
convert any such Borrowing (or any part thereof) 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. 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.
(b) To make an election pursuant to this Section, 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 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 in a form approved by the Administrative Agent and signed by the
Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information:
(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 to be 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, and in no event later than one Business Day, 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. 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.
SECTION 2.07. Termination and Reduction of Commitments. (a) Unless
previously terminated, the Term Commitments will terminate immediately
following the continuation of the "Loans" under the Existing Credit Agreement
as Term Loans on the Amendment Effective Date. Unless previously terminated,
the Revolving Commitments and the LC Commitments (together with the obligations
of the Issuing Banks to issue, amend, renew or extend Letters of Credit) will
terminate on the Revolving Credit/LC Maturity Date.
(b) The Revolving Commitments or LC Commitments shall be automatically
and permanently reduced by the amount of any prepayment of the corresponding
Revolving Loans or cash collateralization of the corresponding Letters of
Credit, respectively, under Section 2.10(c) or (d).
(c) If the Term Maturity Date shall not have been extended, as
provided in the definition of such term, to the Revolving/LC Maturity Date and
the Term Loans shall not have been repaid in full prior to the Term Maturity
Date, then the Revolving Commitments and the LC Commitments shall automatically
terminate on the Term Maturity Date.
(d) 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 a Class shall be in an amount that is an integral multiple of
$1,000,000 and not less than $10,000,000, (ii) the Borrower shall not terminate
or reduce the Revolving Commitments if, after giving effect to any concurrent
prepayment of the Revolving Loans, the Revolving Exposure would exceed the
total Revolving Commitments, (iii) the Borrower shall not terminate or reduce
the Tranche A LC Commitments if, after giving effect to any concurrent
reimbursement of Tranche A LC Disbursements, the Tranche A LC Exposure would
exceed the total Tranche A LC Commitments and (iv) the Borrower shall not
terminate or reduce the Tranche B LC Commitments if, after giving effect to any
concurrent reimbursement of Tranche B LC Disbursements, the Tranche B LC
Exposure would exceed the total Tranche B LC Commitments.
(e) The Borrower shall notify the Administrative Agent of any election
to terminate or reduce the Commitments of any Class under paragraph (d) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly and in no event later than one Business Day following receipt
of any notice, the Administrative Agent shall advise the Lenders and, in the
case of any termination or reduction of any LC Commitments, each Issuing Bank,
of the contents thereof. Each notice delivered by the Borrower pursuant to this
Section shall be irrevocable; provided that a notice of termination of the
Commitments of any Class 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 applicable Lenders in accordance with their respective
Commitments of such Class.
SECTION 2.08. Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay (i) to the Administrative Agent for the
account of the applicable Revolving Lender the then unpaid principal amount of
each Revolving Loan on the Revolving Credit/LC Maturity Date and (ii) to the
Administrative Agent for the account of the applicable Term Lender the then
unpaid principal amount of each Term Loan on the Term Maturity Date.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Class and Type thereof
and the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans of any Class made by it be
evidenced by a promissory note. In such event, the Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent. Thereafter, the
Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and
its registered assigns).
SECTION 2.09. Amortization of Term Loans. (a) Subject to adjustment
pursuant to paragraph (c) of this Section, the Borrower shall repay Term
Borrowings commencing on September 30, 2005, and continuing on the last day of
each December, March, June and September occurring thereafter and prior to the
Term Maturity Date (each a "Scheduled Payment Date"), in an aggregate principal
amount for each such date equal to 0.25% of the aggregate principal amount of
the Term Loans outstanding as of the Amendment Effective Date. Each payment of
Term Loans pursuant to this Section 2.09(a) shall be accompanied by accrued
interest on the principal amount paid to but excluding the date of payment.
(b) To the extent not previously paid, all Term Loans shall be due and
payable on the Term Maturity Date.
(c) Any mandatory or optional prepayment of a Term Borrowing shall be
applied to reduce ratably the subsequent scheduled repayments of the Term
Borrowings to be made pursuant to this Section.
SECTION 2.10. Prepayment of Loans; Cash Collateralization of Letters
of Credit. (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 and payment of any amounts required under Section 2.15;
provided, that each such partial repayment shall be in an integral multiple of
$1,000,000 and not less than $5,000,000.
(b) In the event and on each occasion that the aggregate Revolving
Exposures exceed the aggregate Revolving Commitments, the Borrower shall prepay
Revolving Borrowings in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are
received by or on behalf of the Borrower or any Subsidiary in respect of any
Prepayment Event, the Borrower shall, within three Business Days after such Net
Proceeds are received, prepay Borrowings and/or cash collateralize Letters of
Credit in accordance with and subject to paragraph (f) below in an aggregate
amount equal to (i) 100% of such Net Proceeds in the case of a Prepayment Event
referred to in clause (a), (b), (c) or (e) of the definition of such term or
(ii) 50% of such Net Proceeds in the case of a Prepayment Event referred to in
clause (d) of the definition of such term; provided that, in the case of any
event described in clause (a) of the definition of the term Prepayment Event,
if the last paragraph of this Section is not applicable to such event and the
Borrower shall deliver to the Administrative Agent within five Business Days of
such event a certificate of a Financial Officer to the effect that the Borrower
and the Subsidiaries intend to apply the Net Proceeds from such event (or a
portion thereof specified in such certificate),
(A) within 270 days after receipt of such Net Proceeds, to
acquire Syndicated Interests or real property, equipment or other
assets to be used in the business of the Borrower and the
Subsidiaries, or
(B) solely with respect to the Permitted Asset Sale, within
90 days after receipt of such Net Proceeds to redeem or repay at
maturity the 2005 Notes with up to 50% of such Net Proceeds,
and, in each case, certifying that no Default has occurred and is continuing,
then no prepayment shall be required pursuant to this paragraph in respect of
such Net Proceeds (or the portion of such Net Proceeds specified in such
certificate, if applicable) except to the extent of any such Net Proceeds that
have not been so applied by the end of the applicable time period, at which
time a prepayment shall be required (to the extent not already made) in an
amount equal to the amount of such Net Proceeds that have not been so applied;
provided further that the Borrower shall not be permitted to make elections
pursuant to clause (A) of the immediately preceding proviso with respect to Net
Proceeds in any Fiscal Year aggregating in excess of $100,000,000. The Borrower
covenants and agrees that any Net Proceeds of the Permitted Asset Sale that are
the subject of a certification referred to in subparagraph (B) above will be
(1) deposited in an account controlled by the Administrative Agent, pursuant to
an agreement satisfactory to the Borrower and the Administrative Agent, pending
the application of such Net Proceeds in accordance with such certificate or to
prepay Borrowings or cash collateralize Letters of Credit under this paragraph
or (2) applied to prepay Revolving Loans, in which case an amount of the
Revolving Commitments equal to the amount so prepaid will be held available and
not borrowed pending, and will be made available (subject to the conditions to
borrowing set forth herein) only to provide funds for, the application of such
Net Proceeds in accordance with such certificate or to prepay Borrowings or
cash collateralize Letters of Credit under this paragraph.
Notwithstanding the foregoing provisions of this paragraph, if the
2005 Notes shall have been redeemed or repurchased and retired prior to the
consummation of the Permitted Asset Sale other than with the proceeds of any
Refinancing Indebtedness or other Indebtedness, the Borrower may, by notice to
the Administrative Agent, exclude from the prepayment requirements of this
paragraph Net Proceeds of the Permitted Asset Sale up to the lesser of (i) 50%
of such Net Proceeds and (ii) the aggregate amount expended after the date
hereof to redeem or repurchase and retire the 2005 Notes.
(d) Following the end of each fiscal year of the Borrower, commencing
with the fiscal year ending on December 31, 2005, the Borrower shall prepay
Borrowings and/or cash collateralize Letters of Credit in accordance with
paragraph (f) of this Section in an aggregate amount equal to 50% of Excess
Cash Flow for such fiscal year. Each prepayment pursuant to this paragraph
shall be made on or before the date on which financial statements are delivered
pursuant to Section 5.01 with respect to the fiscal year for which Excess Cash
Flow is being calculated (and in any event within 90 days after the end of such
fiscal year).
(e) If the Term Maturity Date shall not have been extended, as
provided in the definition of such term, to the Revolving/LC Maturity Date and
the Term Loans shall not have been repaid in full prior to the Term Maturity
Date, then on the Term Maturity Date, the Borrower shall, in addition to
repaying the Term Loans, prepay all outstanding Revolving Loans and deposit
cash collateral in an amount equal to the aggregate LC Exposure in an account
with the Administrative Agent on the terms set forth in Section 2.04(l), other
than the last sentence thereof.
(f) All amounts required to be paid pursuant to paragraph (c) or (d)
of this Section shall be applied as follows: (i) first, to prepay Term
Borrowings; (ii) second, after all Term Loans have been repaid, to prepay
Revolving Borrowings (with a corresponding reduction in the Revolving
Commitments) and (iii) third, after compliance with clauses (i) and (ii) above,
to fund a cash collateral account with the Administrative Agent in an amount
equal to the LC Exposure at such time, which cash collateral account shall be
used to ratably cash collateralize all outstanding Letters of Credit at such
time. Subject to the sequence of application with respect to mandatory
prepayments set forth above, prior to any optional or mandatory prepayment of
Borrowings hereunder, the Borrower shall select the Borrowing or Borrowings to
be prepaid or the Letters of Credit to be cash collateralized, as applicable,
and shall specify such selection in the notice of such prepayment pursuant to
paragraph (f) of this Section; provided, however, that amounts required to be
paid pursuant to paragraph (c) of this Section with respect to Specified Sale
and Leaseback Transactions shall only be applied to prepay Revolving Borrowings
(without a corresponding reduction in the Revolving Commitments) and, to the
extent that such amounts exceed the amount of Revolving Borrowings outstanding
at the time of payment, shall not be subject to the prepayment requirements of
paragraph (c) of this Section.
(g) The Borrower shall, to the extent practicable, notify the
Administrative Agent by telephone (confirmed by telecopy) of any prepayment or
cash collateralization of Letters of Credit hereunder (i) in the case of a
prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before the date of prepayment or (ii) in the case of
prepayment of an ABR Borrowing or cash collateralization of a Letter of Credit,
not later than 11:00 a.m., New York City time, one Business Day before the date
of prepayment or cash collateralization. Each such notice shall be irrevocable
and shall specify the prepayment or cash collateralization date, the principal
amount of each Borrowing or portion thereof to be prepaid or the Tranche of
Letters of Credit to be collateralized and, in the case of a mandatory
prepayment or cash collateralization, a reasonably detailed calculation of the
amount of such prepayment or cash collateralization; provided, that if a notice
of optional prepayment is given in connection with a conditional notice of
termination of the Revolving Commitments as contemplated by Section 2.07, then
such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.07. Promptly following receipt of any such
notice, the Administrative Agent shall advise the Lenders of the contents
thereof. Each partial prepayment of any Borrowing shall be in an amount that
would be permitted in the case of an advance of a Borrowing of the same Type as
provided in Section 2.02, except as necessary to apply fully the required
amount of a mandatory prepayment. Each prepayment of a Borrowing shall be
applied ratably to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest to the extent required by Section
2.12.
SECTION 2.11. Fees. (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 daily unused amount of the
Commitments (other than Tranche B LC Commitments, to the extent that the
applicable Tranche B Deposits have been funded) of such Lender during the
period from and including the Amendment Effective Date to but excluding the
date on which the last of such Commitments terminates. Accrued commitment fees
shall be payable in arrears on the last day of March, June, September and
December of each year and on the date on which the last of the Commitments
terminate, commencing on the first such date to occur after the Amendment
Effective Date. 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).
(b) The Borrower agrees to pay (i) to the Administrative Agent for the
account of each Tranche A LC Lender a participation fee with respect to its
participations in Tranche A Letters of Credit, which shall accrue at the same
Applicable Rate used to determine the interest rate applicable to Eurodollar
Revolving Loans on the average daily amount of such Lender's Tranche A LC
Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Amendment Effective
Date to but excluding the later of the date on which such Lender's Tranche A LC
Commitment terminates and the date on which such Lender ceases to have any
Tranche A LC Exposure, (ii) to the Administrative Agent for the account of each
Tranche B LC Lender a participation fee with respect to its participations and
commitment to participate in Tranche B Letters of Credit, which shall accrue at
the same Applicable Rate used to determine the interest rate applicable to
Eurodollar Term Loans, on the average daily amount of such Lender's Tranche B
Deposit (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Amendment Effective
Date to but excluding the date on which such Tranche B Lender's Tranche B
Deposit is returned to it, and (iii) to each Issuing Bank a fronting fee, which
shall accrue at the rate of 0.25% per annum on the average daily amount of the
portion of the LC Exposure attributable to Letters of Credit issued by such
Issuing Bank (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Amendment Effective
Date to but excluding the later of the date of termination of the LC
Commitments and the date on which there ceases to be any LC Exposure, as well
as each 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 accrued through and including
the last day of March, June, September and December of each year shall be
payable on the third Business Day following such last day, commencing on the
first such date to occur after the Amendment Effective Date; provided that all
such fees shall be payable on the date on which the LC Commitments terminate
and any such fees accruing after the date on which the LC 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). In addition to the
foregoing fees, the Borrower agrees to pay to the Administrative Agent for the
Account of each Tranche B LC Lender, the fees set forth in Section 2.04(q).
(c) The Borrower agrees to pay to the Administrative Agent, for its
own account, fees payable in the amounts and at the times separately agreed
upon between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to each Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
commitment fees and participation fees, to the Lenders. Fees paid shall not be
refundable under any circumstances.
SECTION 2.12. Interest. (a) The Loans comprising each ABR Borrowing
shall bear interest at the Alternate Base Rate plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest
at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or interest on
any Loan or Tranche B LC Disbursement or any fee or other amount payable by the
Borrower hereunder is not paid when due, whether at stated maturity, upon
acceleration or otherwise, such overdue amount shall bear interest, after as
well as before judgment, at a rate per annum equal to (i) in the case of
overdue principal of any Loan, 2% plus the rate otherwise applicable to such
Loan as provided in the preceding paragraphs of this Section, (ii) in the case
of overdue unreimbursed amounts with respect to any Tranche B LC Disbursement,
2% plus the rate otherwise applicable to such Tranche B LC Disbursement as
provided in Section 2.04 or (iii) in the case of any other amount, 2% plus the
rate applicable to ABR Loans as provided in paragraph (a) of this Section.
(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, upon
termination of the Revolving Commitments; provided that (i) interest accrued
pursuant to paragraph (c) of this Section 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 prior to the end of the Availability Period), 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.
(e) All interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by reference to the Alternate Base Rate
at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and
in each case shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). The applicable Alternate Base Rate
or Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.13. Alternate Rate of Interest. If prior to the commencement
of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Lenders with a majority
in principal amount of the Revolving Commitments, Term Loans or Tranche B
Deposits that the Adjusted LIBO Rate or the Tranche B Deposit Return, as
applicable, for such Interest Period will not adequately and fairly reflect
the cost to such Lenders of making or maintaining their Loans included in
such Borrowing or maintaining such Tranche B Deposits, as applicable, for
such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing; provided that if the circumstances
giving rise to such notice affect only one Type of Borrowings, then the other
Type of Borrowings shall be permitted.
SECTION 2.14. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate) or Issuing Bank; or
(ii) impose on any Lender or Issuing Bank or the London interbank
market any other condition affecting this Agreement or Eurodollar Loans made
by such Lender or any Letter of Credit or participation therein or any
Tranche B Deposit;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or
Issuing Bank of participating in, issuing or maintaining any Letter of Credit
or any Tranche B Deposit or to reduce the amount of any sum received or
receivable by such Lender or Issuing Bank hereunder (whether of principal,
interest or otherwise), then the Borrower will pay to such Lender or Issuing
Bank, as the case may be, such additional amount or amounts as will compensate
such Lender or Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.
(b) If any Lender or Issuing Bank determines that any Change in Law
regarding capital requirements has or would have the effect of reducing the
rate of return on such Lender's or Issuing Bank's capital or on the capital of
such Lender's or Issuing Bank's holding company, if any, as a consequence of
this Agreement or the Loans made by, or participations in Letters of Credit
held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to
a level below that which such Lender or Issuing Bank or such Lender's or
Issuing Bank's holding company could have achieved but for such Change in Law
(taking into consideration such Lender's or Issuing Bank's policies and the
policies of such Lender's or Issuing Bank's holding company with respect to
capital adequacy), then from time to time the Borrower will pay to such Lender
or Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or Issuing Bank or such Lender's or Issuing Bank's
holding company for any such reduction suffered.
(c) A certificate of a Lender or Issuing Bank setting forth the amount
or amounts necessary to compensate such Lender or Issuing Bank or its holding
company, as the case may be, as specified in paragraph (a) or (b) of this
Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender or Issuing Bank, as the case
may be, the amount shown as due on any such certificate within 10 days after
receipt thereof.
(d) Failure or delay on the part of any Lender or Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or Issuing Bank's right to demand such compensation; provided
that the Borrower shall not be required to compensate a Lender or Issuing Bank
pursuant to this Section for any increased costs or reductions incurred more
than 270 days prior to the date that such Lender or Issuing Bank, as the case
may be, notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender's or Issuing Bank's intention
to claim compensation therefor; provided further that, if the Change in Law
giving rise to such increased costs or reductions is retroactive, then the
270-day period referred to above shall be extended to include the period of
retroactive effect thereof.
SECTION 2.15. Break Funding Payments. In the event of (a) the payment
of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Eurodollar Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked
under Section 2.10(g) and is revoked in accordance therewith), or (d) the
assignment of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.18 or the CAM Exchange, then, in any such event, the Borrower shall
compensate each Lender for the loss, cost and expense attributable to such
event. In the case of a Eurodollar Loan, such loss, cost or expense to any
Lender shall be deemed to include an amount determined by such Lender to be the
excess, if any, of (i) the amount of interest which would have accrued on the
principal amount of such Loan had such event not occurred, at the Adjusted LIBO
Rate that would have been applicable to such Loan, for the period from the date
of such event to the last day of the then current Interest Period therefor (or,
in the case of a failure to borrow, convert or continue, for the period that
would have been the Interest Period for such Loan), over (ii) the amount of
interest which would accrue on such principal amount for such period at the
interest rate which such Lender would bid were it to bid, at the commencement
of such period, for dollar deposits of a comparable amount and period from
other banks in the eurocurrency market. A certificate of any Lender setting
forth any amount or amounts that such Lender is entitled to receive pursuant to
this Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
SECTION 2.16. Taxes. (a) Any and all payments by or on account of any
obligation of the Borrower hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided that if
the Borrower shall be required to deduct any Indemnified Taxes or Other Taxes
from such payments, then (i) the sum payable shall be increased as necessary so
that after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or
Issuing Bank (as the case may be) receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower shall make
such deductions and (iii) the Borrower shall pay the full amount deducted to
the relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each Lender
and the Issuing Bank, within 10 days after written demand therefor, for the
full amount of any Indemnified Taxes or Other Taxes paid by the Administrative
Agent, such Lender or the Issuing Bank, as the case may be, on or with respect
to any payment by or on account of any obligation of the Borrower hereunder
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto (other than
those resulting from such Person's gross negligence or wilful misconduct),
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability and setting forth in reasonable detail
the calculation and basis for such payment or liability delivered to the
Borrower by a Lender or the Issuing Bank, or by the Administrative Agent on its
own behalf or on behalf of a Lender or the Issuing Bank, shall be conclusive
absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy
of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by
applicable law, such properly completed and executed documentation prescribed
by applicable law or reasonably requested by the Borrower as will permit such
payments to be made without withholding or at a reduced rate.
(f) If the Administrative Agent or a Lender determines, in its sole
discretion exercised in good faith, that it has received a refund of any Taxes
or Other Taxes as to which it has been indemnified by the Borrower or with
respect to which the Borrower has paid additional amounts pursuant to this
Section, it shall pay over such refund to the Borrower (but only to the extent
of indemnity payments made, or additional amounts paid, by the Borrower under
this Section with respect to the Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses of the Administrative Agent or such
Lender and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund); provided, that the
Borrower, upon the request of the Administrative Agent or such Lender, agrees
to repay the amount paid over to the Borrower (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to the
Administrative Agent or such Lender in the event the Administrative Agent or
such Lender is required to repay such refund to such Governmental Authority.
This Section shall not be construed to require the Administrative Agent or any
Lender to make available its tax returns (or any other information relating to
its taxes which it deems confidential) to the Borrower or any other Person.
(g) Any and all payments by or on account of any obligation of the
Administrative Agent pursuant to Section 2.04(q) hereunder shall be made free
and clear of and without deduction for any Indemnified Taxes or Other Taxes;
provided that if the Administrative Agent shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the
Administrative Agent shall so notify the Borrower and advise it of the
additional amount required to be paid so that the sum payable by the
Administrative Agent pursuant to Section 2.04(q) after making all required
deductions (including deductions applicable to additional sums payable under
this Section) to the Tranche B LC Lenders is an amount from the Administrative
Agent equal to the sum they would have received from the Administrative Agent
had no deductions been made, (ii) the Borrower shall pay such additional amount
to the Administrative Agent, (iii) the Administrative Agent shall make all
required deductions, (iv) the Administrative Agent shall pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable
law and (v) the Borrower shall indemnify, within 10 days after written demand
therefor, the Administrative Agent for the full amount of any deductions paid
by the Administrative Agent with respect to any payments made on account of any
obligation of the Administrative Agent pursuant to Section 2.04(q).
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of
Setoffs. (a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Section 2.14, 2.15 or 2.16, or
otherwise) prior to 12:00 noon, New York City time, on the date when due, in
immediately available funds, without setoff or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx, except payments to be made directly to an Issuing Bank as
expressly provided herein and except that payments pursuant to Sections 2.14,
2.15, 2.16 and 9.03 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such extension. All payments
hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be
applied (i) first, towards payment of interest and fees then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (ii) second, towards payment of
principal and unreimbursed LC Disbursements then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal and
unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans or participations in LC Disbursements resulting in
such Lender receiving payment of a greater proportion of the aggregate amount
of its Loans and participations in LC Disbursements 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 Loans and participations in LC Disbursements of other
Lenders to the extent necessary so that the benefit of all such payments shall
be shared by the Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Loans and participations
in LC Disbursements; 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 set-off and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or any Issuing Bank
hereunder that the Borrower will not make such payment, the Administrative
Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to
the Lenders or such Issuing Bank, as the case may be, the amount due. In such
event, if the Borrower has not in fact made such payment, then each of the
Lenders or such Issuing Bank, as the case may be, severally agrees to repay to
the Administrative Agent forthwith on demand the amount so distributed to such
Lender or Issuing Bank with interest thereon, for each day from and including
the date such amount is distributed to it to but excluding the date of payment
to the Administrative Agent, at the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation.
(e) Prior to an Event of Default, if any Lender shall fail to make any
payment required to be made by it pursuant to Section 2.04(d) or (e), 2.05(b)
or 2.17(d), then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter
received by the Administrative Agent for the account of such Lender to satisfy
such Lender's obligations under such Sections until all such unsatisfied
obligations are fully paid.
SECTION 2.18. Mitigation Obligations; Replacement of Lenders. (a) If
any Lender requests compensation under Section 2.14, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.16, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans or Tranche B Deposits hereunder or to assign its
rights and obligations hereunder to another of its offices, branches or
Affiliates, if, in the judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to Section 2.14 or 2.16,
as the case may be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender. The Borrower hereby agrees to pay all reasonable costs and expenses
incurred by any Lender in connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.14, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.16,
or if any Lender defaults in its obligation to fund Loans or Tranche B Deposits
hereunder, then the Borrower may, at its sole expense and effort, upon notice
to such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in Section 9.04), all its interests, rights and obligations under
this Agreement to an assignee that shall assume such obligations (which
assignee may be another Lender, if a Lender accepts such assignment); provided
that (i) the Borrower shall have received the prior written consent of the
Administrative Agent, which consent shall not unreasonably be withheld, (ii)
such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and participations in LC Disbursements, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrower (in the case of all other amounts) and (iii) in the case
of any such assignment resulting from a claim for compensation under Section
2.14 or payments required to be made pursuant to Section 2.16, such assignment
will result in a reduction in such compensation or payments. A Lender shall not
be required to make any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.
ARTICLE III
Representations and Warranties
------------------------------
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. Organization and Authority. (a) The Borrower and each
Subsidiary is a corporation, partnership, limited liability company or trust
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its formation except, in the case of any Subsidiary of the
Borrower, where the failure to be in good standing could not reasonably be
expected to have a Material Adverse Effect.
(b) The Borrower and each Subsidiary (i) has the requisite power and
authority to own its properties and assets and to carry on its business as now
being conducted and as contemplated in this Agreement and (ii) is qualified to
do business in, and is in good standing in, every jurisdiction in which failure
so to qualify or be in good standing, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
(c) The Borrower has the power and authority to enter into the
Transactions.
(d) Each Loan Document has been duly executed and delivered by the
Borrower and constitutes the legal, valid and binding obligation of the
Borrower, enforceable against the Borrower in accordance with its terms,
subject to the effect of any applicable bankruptcy, moratorium, insolvency,
reorganization or other similar law affecting the enforceability of creditors'
rights generally and to the effect of general principles of equity (whether
considered in a proceeding at law or in equity).
SECTION 3.02. Execution; No Conflicts. The execution, delivery and
performance by the Borrower of this Agreement and the Transactions:
(i) have been duly authorized by all requisite corporate actions
(including any required shareholder approval) of the Borrower required for
the lawful execution, delivery and performance thereof;
(ii) do not and will not violate any provisions of (A) any applicable
law, rule or regulation, (B) any judgment, writ, order, determination,
decree or arbitral award of any Governmental Authority or arbitral authority
binding on the Borrower or any Subsidiary or its or any Subsidiary's
properties, or (C) the certificate of incorporation, bylaws or other
organizational documents of the Borrower;
(iii) do not and will not be in conflict with, result in a breach of,
violate, give rise to a right of prepayment under or constitute a default
under, any contract, indenture, agreement or other instrument or document to
which the Borrower or any Subsidiary is a party, or by which the properties
or assets of the Borrower or any Subsidiary are bound; and
(iv) do not and will not result in the creation or imposition of any
Lien upon any of the properties or assets of the Borrower or any Subsidiary
(other than the Liens created by the Loan Documents).
SECTION 3.03. Solvency. Immediately after the consummation of the
Transactions to occur and immediately following the making of each Loan or the
issuance of each Letter of Credit made or issued and after giving effect to the
application of the proceeds of such Loans, (a) the fair value of the assets of
the Borrower and the Subsidiaries, on a consolidated basis, will exceed their
consolidated debts and liabilities, subordinated, contingent or otherwise; (b)
the present fair saleable value of the property of the Borrower and the
Subsidiaries on a consolidated basis will be greater than the amount that will
be required to pay the probable liability on their debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (c) the Borrower and the Subsidiaries on a
consolidated basis will not have incurred any debts and liabilities,
subordinated, contingent or otherwise, that they do not believe that they will
be able to pay as such debts and liabilities become absolute and matured; and
(d) the Borrower and the Subsidiaries on a consolidated basis will not have
unreasonably small capital with which to conduct the business in which they are
engaged as such business is now conducted and is proposed to be conducted
following the Amendment Effective Date.
SECTION 3.04. Subsidiaries. Schedule 3.04 sets forth as of the
Amendment Effective Date a list of all the Subsidiaries and the percentage
ownership of the Borrower and the Subsidiaries therein. The shares of capital
stock or other ownership interests listed on Schedule 3.04 are owned by the
Borrower, directly or indirectly, free and clear of all Liens other than Liens
permitted hereunder.
SECTION 3.05. Ownership Interests. The Borrower owns no interest in
any Person other than the Persons set forth on Schedule 3.05, Capital Stock in
Persons not constituting Subsidiaries permitted under Section 6.02 and Capital
Stock in subsidiaries created or acquired after the Amendment Effective Date.
SECTION 3.06. Financial Condition. (a) Except as disclosed in any
Monthly Financial Package for the months of July 2003 through November 2004, in
any filing by the Borrower with the SEC prior to the Amendment Effective Date
or in the Schedules hereto, since June 14, 2002, there has been no material
adverse change in the business, assets, operations, properties, prospects or
condition, financial or otherwise, of the Borrower and the Subsidiaries, taken
as a whole. Subject to the qualifications set forth in the Report of the
Borrower to the SEC on Form 8-K dated December 2, 2004, to the best knowledge
of the Borrower, the financial statements (including the notes thereto)
included in the Monthly Financial Packages described in the immediately
preceding sentence present fairly the financial condition and results of
operation of the Borrower and the Subsidiaries as of the dates thereof, subject
to year-end audit adjustments.
(b) The Borrower has, on or prior to the Amendment Effective Date,
furnished to the Administrative Agent for distribution to the Lenders the
Borrower's five-year forecast model including a projected consolidated
statement of EBITDA and selected cash flow information (the "Model") prepared
giving effect to the Transactions as if the Transactions had occurred as of
November 2004. The Model was prepared in good faith by the Borrower based on
assumptions and estimates believed by the Borrower on the date thereof to be
reasonable, was based on the best information available to the Borrower after
due inquiry and accurately reflects all material adjustments required to be
made to give effect to the Transactions.
(c) Neither the Borrower nor any Subsidiary has any Indebtedness or
other obligations or liabilities, direct or contingent, in an aggregate amount
in excess of $50,000,000, other than (i) the liabilities reflected on Schedule
3.06, (ii) obligations arising under this Agreement and (iii) liabilities
incurred in the ordinary course of business.
(d) The analysis set forth in Schedule 3.06 of the assets, liabilities
and cash flows of the Borrower individually and of the Subsidiaries taken as a
whole is believed by the Borrower to be reasonable based on the information
available to it.
SECTION 3.07. Title to Properties. Each of the Borrower and the
Subsidiaries has good and valid title to, or valid leasehold interests in, all
its material real and personal property.
SECTION 3.08. Taxes. The Borrower and each Subsidiary has filed or
caused to be filed all federal, state and local tax returns which are required
to be filed by it (subject to any timely obtained extensions to file) and,
except for taxes and assessments being contested in good faith by appropriate
proceedings diligently conducted and against which reserves reflected in the
financial statements described in Section 3.06(a) and satisfactory to the
Borrower's independent certified public accountants have been established, and
has paid or caused to be paid all taxes as shown on said returns or on any
assessment received by it, to the extent that such taxes have become due.
SECTION 3.09. Other Agreements. Except as set forth on Schedule 3.09:
(i) neither the Borrower nor any Subsidiary is a party to or subject
to any judgment, order, decree, agreement, lease or instrument, or subject
to any other restrictions, compliance with the terms of which, individually
or in the aggregate, could reasonably be expected to have a Material Adverse
Effect;
(ii) neither the Borrower nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the obligations, covenants
or conditions contained in (i) any Medicaid Provider Agreement, Medicare
Provider Agreement or other agreement or instrument to which the Borrower or
any Subsidiary is a party, which default has resulted in, or if not remedied
within any applicable grace period could reasonably be expected to result
in, the revocation, termination, cancellation or suspension of the Medicaid
Certification or the Medicare Certification of the Borrower or any
Subsidiary, which revocation, termination, cancellation or suspension could
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect, (ii) any Indenture or the Senior Subordinated Credit
Agreement or (iii) any other agreement or instrument to which the Borrower
or any Subsidiary is a party (which defaults referred to in this clause
(iii) have had, or if not remedied within any applicable grace period could
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect);
(iii) to the knowledge of the Borrower, no Contract Provider is a
party to any judgment, order, decree, agreement or instrument, or subject to
any restrictions, compliance with the terms of which could, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect;
(iv) to the knowledge of the Borrower, no Contract Provider is in
default in the performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in any Medicaid Provider
Agreement, Medicare Provider Agreement or other agreement or instrument to
which such Person is a party, which default has resulted in, or if not
remedied within any applicable grace period could result in, the revocation,
termination, cancellation or suspension of the Medicaid Certification or the
Medicare Certification of such Person, which revocation, termination,
cancellation or suspension could, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect; and
(v) neither the Borrower nor any direct Subsidiary of the Borrower is
a party to or subject to any shareholder agreement, agreement evidencing
Indebtedness or other similar agreement that (A) prohibits the Borrower or
such Subsidiary from pledging any Capital Stock in any Subsidiary or other
Person or (B) provides for a dissolution, disassociation, put, call or other
similar adverse consequence as a result of a pledge of any Capital Stock in
any Subsidiary or other Person by the Borrower or any direct Subsidiary of
the Borrower.
SECTION 3.10. Litigation. (a) Except as set forth on Schedule 3.10,
there is no action, suit, investigation or proceeding at law or in equity or by
or before any Governmental Authority pending or, to the knowledge of the
Borrower, threatened by or against the Borrower or any Subsidiary or, to the
knowledge of the Borrower, pending or threatened by or against any Contract
Provider, or affecting the Borrower or any Subsidiary or, to the knowledge of
the Borrower, any Contract Provider or any properties or rights of the Borrower
or any Subsidiary or, to the knowledge of the Borrower, any Contract Provider,
(i) which could, individually or in the aggregate, reasonably be expected to
result in the revocation, termination, cancellation or suspension of the
Medicaid Certification or the Medicare Certification of such Person, which
revocation, termination, cancellation or suspension could, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect, (ii)
which could otherwise, individually, or in the aggregate, reasonably be
expected to have a Material Adverse Effect or (iii) that involves this
Agreement or the Transactions.
(b) Since the Amendment Effective Date, there have been no changes in
the status of the matters disclosed on Schedule 3.10 that, individually or in
the aggregate, could reasonably be expected to have a Material Adverse Effect.
SECTION 3.11. Margin Stock. The proceeds of the Loans and Letters of
Credit made or issued under this Agreement will be used by the Borrower only
for the purposes expressly authorized herein. None of such proceeds will be
used, directly or indirectly, and whether immediately, incidentally or
ultimately, for the purpose of purchasing or carrying any Margin Stock or for
the purpose of reducing or retiring any Indebtedness which was originally
incurred to purchase or carry Margin Stock or for any other purpose which might
constitute any of the Loans or Letters of Credit under this Agreement a
"purpose credit" within the meaning of Regulation U or Regulation X of the
Board. Neither the Borrower nor any agent acting in its behalf has taken or
will take any action which might cause this Agreement or any of the documents
or instruments delivered pursuant hereto to violate any regulation of the Board
or to violate the Exchange Act or the Securities Act or any state securities
laws. Neither the Borrower nor any Subsidiary is engaged principally, or as one
of its important activities, in the business of extending credit for the
purpose of buying or carrying Margin Stock.
SECTION 3.12. Investment and Holding Company Status. Neither the
Borrower nor any Subsidiary is an "investment company," or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an "investment
company", as such terms are defined in the Investment Company Act of 1940, as
amended (15 U.S.C. ss. 80a-1, et seq.). The application of the proceeds of the
Loans and repayment thereof by the Borrower and the issuance of Letters of
Credit and the performance by the Borrower and any Subsidiary of the
Transactions will not violate any provision of said Act, or any rule,
regulation or order issued by the SEC thereunder. Neither the Borrower nor any
Subsidiary is a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935.
SECTION 3.13. Intellectual Property. Except as set forth on Schedule
3.13, the Borrower and each Subsidiary owns or has the right to use, under
valid license agreements or otherwise, all material patents, licenses,
franchises, trademarks, trademark rights, trade names, trade name rights, trade
secrets, service marks, service xxxx rights and copyrights necessary to or used
in the conduct of its businesses as now conducted and as contemplated by this
Agreement, without, to the knowledge of the Borrower, conflict by, or with, any
patent, license, franchise, trademark, trade secret, trade name, service xxxx,
copyright or other proprietary right of, any other Person.
SECTION 3.14. No Untrue Statement. Neither (a) this Agreement nor any
certificate or document executed and delivered by or on behalf of the Borrower
or any Subsidiary in accordance with or pursuant to this Agreement nor (b) any
statement, report, document (including the Information Memorandum and each
Monthly Financial Package for the months of July 2003 through November 2004),
representation or warranty provided to the Administrative Agent or any Lender
in connection with the negotiation or preparation of this Agreement contains
any misrepresentation or untrue statement of material fact or omits to state a
material fact necessary, in light of the circumstances under which it was made,
in order to make any such warranty, representation or statement contained
therein not misleading.
SECTION 3.15. No Consents, Etc. Neither the respective businesses or
properties of the Borrower or any Subsidiary, nor any relationship between the
Borrower or any Subsidiary and any other Person, nor any circumstance in
connection with the execution, delivery and performance of this Agreement and
the Transactions, is such as to require a consent, approval or authorization
of, or filing, registration or qualification with, any Governmental Authority
or any other Person on the part of the Borrower or any Subsidiary as a
condition to the execution, delivery and performance of, or consummation of the
transactions contemplated by, or the validity or enforceability of, this
Agreement, other than any such consent, approval, authorization, filing,
registration or qualification that has been duly obtained or effected, as the
case may be.
SECTION 3.16. ERISA. (i) The execution and delivery of this Agreement
will not involve any "prohibited transaction", as defined in Section 406 of
ERISA or Section 4975 of the Code, (ii) each of the Borrower, each Subsidiary
and each ERISA Affiliate has fulfilled its obligations under the minimum
funding standards imposed by ERISA and the Code and each is in compliance in
all material respects with the applicable provisions of ERISA and (iii) none of
the Borrower, the Subsidiaries, and their respective ERISA Affiliates
maintains, contributes to, or is required to contribute to any Pension Plan.
SECTION 3.17. No Default. No Default has occurred and is continuing.
SECTION 3.18. Environmental Matters. (a) Except as set forth in
Schedule 3.18 and except with respect to any other matters that, individually
or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect, neither the Borrower nor any of the Subsidiaries (i) has failed
to comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (ii)
has become subject to any Environmental Liability or (iii) has received notice
of any claim with respect to any Environmental Liability, nor does the Borrower
have any knowledge of any basis for any Environmental Liability.
(b) Since the Amendment Effective Date, there have been no changes in
the status of the matters disclosed on Schedule 3.18 that, individually or in
the aggregate, could reasonably be expected to have a Material Adverse Effect.
SECTION 3.19. Employment Matters. (a) Except as set forth on Schedule
3.19, none of the employees of the Borrower or any Subsidiary is subject to any
collective bargaining agreement and there are no strikes, work stoppages,
election or decertification petitions or proceedings, unfair labor charges,
equal opportunity proceedings, or other material labor/employee related
controversies or proceedings pending or, to the knowledge of the Borrower,
threatened against the Borrower or any Subsidiary or between the Borrower or
any Subsidiary and any of its employees, other than employee grievances,
controversies or proceedings arising in the ordinary course of business which
could not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
(b) Except to the extent a failure to maintain compliance could not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect, the Borrower and each Subsidiary is in compliance in all
respects with all applicable laws, rules and regulations pertaining to labor or
employment matters, including those pertaining to wages, hours, occupational
safety and taxation, and there is neither pending nor, to the knowledge of the
Borrower, threatened any litigation, administrative proceeding or investigation
in respect of such matters which, if decided adversely, could reasonably be
likely, individually or in the aggregate, to have a Material Adverse Effect.
SECTION 3.20. Reimbursement from Third Party Payors. The accounts
receivable of the Borrower and each Subsidiary and each Contract Provider have
been and will continue to be adjusted to reflect reimbursement policies of
third party payors such as Medicare, Medicaid, Blue Cross/Blue Shield, private
insurance companies, health maintenance organizations, preferred provider
organizations, alternative delivery systems, managed care systems, government
contracting agencies and other third party payors. In particular, accounts
receivable relating to such third party payors do not and shall not exceed
amounts any obligee is entitled to receive under any capitation arrangement,
fee schedule, discount formula, cost-based reimbursement or other adjustment or
limitation to its usual charges.
SECTION 3.21. Compliance with Laws. Except as set forth in Schedule
3.21, each of the Borrower and the Subsidiaries is in compliance with all laws,
regulations and orders of any Governmental Authority applicable to it or its
property, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.22. Insurance. The Borrower and the Subsidiaries maintain,
in force, with financially sound and reputable insurance companies, and pay all
premiums and costs related to, insurance coverages in such amounts (with no
materially greater risk retention) and against such risks as are deemed by the
management of the Borrower to be sufficient in accordance with the usual and
customary practices of companies of established repute engaged in the same or
similar lines of business as the Borrower and the Subsidiaries.
SECTION 3.23. Status of Obligations. The Obligations constitute
"Senior Indebtedness" and "Designated Senior Indebtedness" (and any other
similar term defining senior Indebtedness) under the Senior Subordinated Credit
Agreement and each Indenture or other agreement governing Subordinated
Indebtedness of the Borrower or any Subsidiary.
ARTICLE IV
Conditions
----------
SECTION 4.01. Amendment Effective Date. The obligations of the Lenders
to make Loans, of the Tranche B LC Lenders to fund their Tranche B Deposits and
of the Issuing Banks to issue Letters of Credit hereunder shall not become
effective until the date on which each of the following conditions shall have
been satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from
each party hereto (including each Lender under the Existing Credit Agreement
after giving effect to any assignment of loans and commitments under the
Existing Credit Agreement on or prior to the Amendment Effective Date)
either (i) a counterpart of this Agreement signed on behalf of such party or
(ii) written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page of this Agreement)
that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated the
Amendment Effective Date) of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP,
counsel for the Borrower, substantially in the form of Exhibit E and
covering such other matters relating to the Borrower, this Agreement or the
Transactions as the Lenders shall reasonably request. The Borrower hereby
requests such counsel to deliver such opinion.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of the
Borrower, the authorization of the Transactions and any other legal matters
relating to the Borrower, the Subsidiaries, this Agreement or the
Transactions, all in form and substance reasonably satisfactory to the
Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated
the Amendment Effective Date and signed by a Financial Officer of the
Borrower, (i) confirming compliance with the conditions set forth in
paragraphs (a), (b) and (c) of Section 4.02 and (ii) certifying that the
Adjusted Consolidated EBITDA of the Borrower for the fiscal year ended
December 31, 2004, was not less than $615,000,000.
(e) All interest, fees and other amounts accrued for the accounts of
or owing to the Administrative Agent, the Lenders or the Issuing Bank under
the Existing Credit Agreement as of the Amendment Effective Date, whether or
not at the time due and payable under the terms of the Existing Credit
Agreement, shall have been (or shall simultaneously be) paid.
(f) The Administrative Agent shall have received all fees and other
amounts due and payable to it on or prior to the Amendment Effective Date,
including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the Borrower
hereunder.
(g) The Collateral and Guarantee Requirement shall have been satisfied
and the Administrative Agent shall have received a completed Perfection
Certificate dated the Amendment Effective Date and signed on behalf of the
Borrower by a Financial Officer, together with all attachments contemplated
thereby, including the results of a search of the Uniform Commercial Code
(or equivalent) filings made with respect to the Borrower in the
jurisdictions contemplated by the Perfection Certificate and copies of the
financing statements (or similar documents) disclosed by such search and
evidence reasonably satisfactory to the Administrative Agent that the Liens
indicated by such financing statements (or similar documents) are permitted
by Section 6.06 and the Security Documents or have been released.
(h) The Administrative Agent shall have received evidence that the
insurance required by Section 5.05 and the Security Documents is in effect.
(i) All defaults that shall have occurred under agreements or
instruments evidencing or governing Material Indebtedness shall have been
cured or waived, and the Administrative Agent shall have received a
certificate of a Financial Officer to such effect, together with such
related information as it shall reasonably have requested.
(j) The Lenders shall be satisfied with the status of all actions,
suits, investigations and proceedings pending, threatened against or
affecting the Borrower or any Subsidiary.
The Administrative Agent shall notify the Borrower and the Lenders of the
Amendment Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans and
of the Issuing Banks to issue Letters of Credit hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.02) at or prior to 3:00 p.m., New York City time, on
March 31, 2005 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender to make
a Loan on the occasion of any Borrowing, and of each Issuing Bank to issue,
amend, renew or extend any Letter of Credit, is subject to the satisfaction of
the following conditions:
(a) The representations and warranties of the Borrower set forth in
this Agreement shall be true and correct in all material respects on and as
of the date of such Borrowing or the date of issuance, amendment, renewal or
extension of such Letter of Credit, as applicable.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Default shall have occurred and be continuing.
(c) Immediately after giving effect to such Borrowing and the use of
the proceeds thereof the Borrower and the Subsidiaries shall not have
Eligible Investments and Unrestricted Cash and Cash-Equivalents in an
aggregate amount in excess of $100,000,000.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter
of Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a), (b)
and (c) of this Section.
ARTICLE V
Affirmative Covenants
---------------------
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall
have been paid in full and all Letters of Credit shall have expired or
terminated (or the Borrower's obligation under such Letters of Credit shall
have been cash collateralized or supported by letters of credit of other banks
naming the Issuing Banks as beneficiaries in a manner satisfactory to the
Issuing Banks) and all LC Disbursements shall have been reimbursed, the
Borrower covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements, Reports, Etc. (a) The Borrower
shall deliver or cause to be delivered to the Administrative Agent for
distribution to each Lender:
(i) within 30 days after the end of each fiscal month in each Fiscal
Year until the Supplemental Audit Report Date, and thereafter for so long as
Monthly Financial Packages are provided under the Senior Subordinated Credit
Agreement, the Monthly Financial Package;
(ii) not later than the earlier to occur of (x) 50 days after the end
of each of the first three quarters of each Fiscal Year of the Borrower
ending after December 31, 2004 (or in the case of any fiscal quarter of
Fiscal Year 2005, the later of such 50 days and the Supplemental Audit
Report Date) and (y) the date on which the Borrower is required to file or
files financial statements with respect to the applicable fiscal quarter
with the SEC, a balance sheet and related statements of income and cash
flows of the Borrower and the Subsidiaries on a consolidated basis for such
calendar quarter and for the period beginning on the first day of such
Fiscal Year of the Borrower and ending on the last day of such quarter, (in
sufficient detail to indicate the Borrower's and each Subsidiary's
compliance with the financial covenants set forth in Section 6.01), together
with statements in comparative form for the corresponding date or period in
the preceding Fiscal Year of the Borrower as summarized in the Form 10-Q of
the Borrower filed with the SEC pursuant to Section 13 of the Exchange Act
for the corresponding period, and certified by a Financial Officer as
presenting fairly the financial condition and results of operations of the
Borrower and the Subsidiaries on a consolidated basis in accordance with
GAAP consistently applied, subject to normal year-end audit adjustments and
the absence of footnotes;
(iii) on the Audit Report Date with respect to the Fiscal Years
covered by the audited financial statements provided on such date, and on
the Supplemental Audit Report Date with respect to the Fiscal Year 2004 and
thereafter not later than the earlier to occur of (x) 100 days after the end
of each Fiscal Year of the Borrower and (y) the date on which the Borrower
is required to file or files financial statements with respect to the
applicable Fiscal Year with the SEC, financial statements (including a
balance sheet, a statement of income, a statement of stockholders' equity
and a statement of cash flows) of the Borrower and the Subsidiaries on a
consolidated basis as of the end of and for such Fiscal Year (in sufficient
detail to indicate the Borrower's and each Subsidiary's compliance with the
financial covenants set forth in Section 6.01), together with statements in
comparative form as of the end of and for the preceding Fiscal Year as
summarized in the Form 10-K of the Borrower filed with the SEC pursuant to
Section 13 of the Exchange Act for the corresponding period, and accompanied
by a report of PricewaterhouseCoopers LLP or other independent public
accountants acceptable to the Administrative Agent (without a "going
concern" or like qualification or exception and without any qualification or
exception as to the scope of such audit other than as to matters relating to
historical costs of fixed assets), which opinion shall state in effect that
such financial statements (A) were audited using generally accepted auditing
standards, (B) were prepared in accordance with GAAP consistently applied
and (C) present fairly the financial condition and results of operations of
the Borrower and the Subsidiaries for the period covered;
(iv) concurrently with any delivery of financial statements under
clause (ii) or (iii) above, a certificate of a Financial Officer (A)
certifying as to whether a Default has occurred and, if a Default has
occurred, specifying the details thereof and any action taken or proposed to
be taken with respect thereto; (B) setting forth reasonably detailed
calculations demonstrating compliance with Section 6.01(a) and (b); (C)
stating whether or not the Subsidiary Credit Support Date has occurred and,
if it has occurred, setting forth (x) the Maximum Subsidiary Credit Support
Amount as of the date of the balance sheet included in such financial
statements and (y) the names of the Credit Support Subsidiaries and their
respective Credit Support Values (which, in the aggregate, shall be not less
than the amount required under Section 5.14) as of the date of the balance
sheet included in such financial statements, in each case together with
computations and supporting information reasonably acceptable to the
Administrative Agent; (D) stating whether any change in GAAP or in the
application thereof has occurred since December 31, 2004 and, if any such
change has occurred, specifying the effect of such change on the financial
statements accompanying such certificate; and (E) in the case of the audited
financial statements for Fiscal Year 2004, setting forth a computation of
the Borrower's Consolidated Tangible Assets as of December 31, 2004;
(v) not later than March 31, 2006 and, in respect of Fiscal Year 2006
and thereafter not later than the end of each Fiscal Year in respect of the
next succeeding Fiscal Year (A) the annual business plan of the Borrower and
its Subsidiaries for such Fiscal Year approved by the Board of Directors of
the Borrower, (B) forecasts prepared by management of the Borrower for each
fiscal month in such Fiscal Year and (C) forecasts prepared by management of
the Borrower for such Fiscal Year and the four Fiscal Years thereafter,
including, in each instance described in clauses (B) and (C) above, (x) a
projected year-end consolidated balance sheet and income statement and
statement of cash flows and (y) a statement of all of the material
assumptions on which such forecasts are based;
(vi) contemporaneously with the distribution thereof to the Borrower's
or any Subsidiary's stockholders or partners or the filing thereof with the
SEC, as the case may be, copies of all statements, reports, notices and
filings distributed by the Borrower or any Subsidiary to its stockholders or
partners or filed with the SEC (including reports on Forms 10-K, 10-Q and
8-K) or any Governmental Authority succeeding to any or all of the functions
of the SEC or with any national securities exchange;
(vii) promptly after the occurrence of any ERISA Event that, alone or
together with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Borrower, the Subsidiaries and all
ERISA Affiliates in an aggregate amount exceeding $5,000,000, a certificate
of a Financial Officer setting forth the details as to such ERISA Event and
the action that the Borrower, such Subsidiary or such ERISA Affiliate has
taken or will take with respect thereto;
(viii) promptly after the Borrower or any Subsidiary becomes aware of
the commencement thereof, notice of any investigation, action, suit or
proceeding before any Governmental Authority involving the condemnation or
taking under the power of eminent domain of any material portion of its
property or the revocation or suspension of any material permit, license,
certificate of need or other governmental requirement applicable to any of
its properties or assets;
(ix) within 10 days of the receipt by the Borrower or any Subsidiary,
copies of all material deficiency notices, compliance orders or adverse
reports issued by any Governmental Authority or accreditation commission
having jurisdiction over the licensing, accreditation or operation of any
properties or assets of the Borrower or any Subsidiary or by any
Governmental Authority or private insurance company pursuant to a provider
agreement, which, if not timely complied with or cured, could reasonably be
expected to result in the suspension or forfeiture of any license,
certification or accreditation necessary in order for such Person to carry
on its business as then conducted or the termination of any material
insurance or reimbursement program available to such Person;
(x) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Borrower or any Subsidiary, or compliance with the terms of this Agreement,
as the Administrative Agent or any Lender may reasonably request (and,
without limiting the foregoing, information as to the Credit Support Value
of any Domestic Subsidiary (other than an Excluded Subsidiary) reasonably
requested by the Administrative Agent or any Lender to enable it to
determine whether the Borrower has complied with the Collateral and
Guarantee Requirement); and
(xi) contemporaneously with the distribution thereof, copies of all
statements, reports, notices and other documents delivered by the Borrower
or any Subsidiary pursuant to or in satisfaction of requirements set forth
in the Senior Subordinated Credit Agreement (to the extent such documents
shall not already have been delivered hereunder).
Information required to be delivered pursuant to this Section 5.01(a) shall be
deemed to have been delivered if such information, or one or more annual,
quarterly or other reports containing such information, shall have been posted
by the Borrower on an IntraLinks or similar site to which all of the Lenders
have been granted access (and a confirming electronic correspondence shall have
been delivered to each Lender providing notice of such posting); provided that
the Borrower shall deliver paper copies of such information to any Lender that
requests such delivery.
(b) The Borrower will cause (i) the Audit Report Date to occur on or
before June 30, 2005 and (ii) the Supplemental Audit Report Date to occur on or
before December 31, 2005.
SECTION 5.02. Maintain Properties. The Borrower will, and will cause
each of the Subsidiaries to, keep or maintain all properties and assets
necessary to its operations in good working order and condition, make all
needed repairs, replacements and renewals to such properties, and maintain free
from Liens all trademarks, trade names, service marks, patents, copyrights,
trade secrets, know-how, and other intellectual property and proprietary
information (or adequate licenses relating thereto), in each case as are
reasonably necessary to conduct its business as currently conducted or as
contemplated hereby, all in accordance with customary and prudent business
practices.
SECTION 5.03. Existence, Qualification, Etc. The Borrower will, and
will cause each of the Subsidiaries to, (i) do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and all material rights, permits, privileges, licenses and
franchises, and (ii) maintain its license or qualification to do business as a
foreign corporation and good standing in each jurisdiction in which its
ownership or leasing of property or the nature of its business makes such
license or qualification necessary, except, with respect to clause (ii) only,
where the failure to do so could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect; provided that the
foregoing shall not prohibit any merger, consolidation, liquidation,
dissolution, sale or transfer that is not prohibited by the provisions of
Article VI. The Borrower will cause each of the Subsidiaries to take all
reasonable actions to maintain its identity as a separate legal entity from the
Borrower or any other Subsidiary, including (x) maintaining such Subsidiary's
books and records separate from those of any Affiliate of such Subsidiary,
including records of all intercompany debits and credits and transfer of funds,
(y) not commingling such Subsidiary's funds or other assets with those of any
of its Affiliates and not maintaining bank accounts or other depositary
accounts to which any of its Affiliates is an account party, in each case in a
manner such that such Subsidiary's funds, assets and accounts could not be
distinguished from those of its Affiliates and (z) acting solely in its own
name, through its own officials or representatives where relevant.
SECTION 5.04. Regulations and Obligations. The Borrower will, and will
cause each of the Subsidiaries to, comply in all material respects with or
contest in good faith all statutes and governmental regulations and pay its
Indebtedness and all other taxes, assessments, governmental charges, claims for
labor, supplies, rent and any other obligation that, if unpaid, would become a
Lien against any of its properties or assets, except liabilities being
contested in good faith by appropriate proceedings diligently conducted and
against which adequate reserves acceptable to the Borrower's independent
certified public accountants have been established, unless and until any Lien
resulting therefrom attaches to any of its properties or assets and becomes
enforceable by its creditors.
SECTION 5.05. Insurance. The Borrower will, and will cause each of the
Subsidiaries to, at all times maintain, in force, with financially sound and
reputable insurance companies, and pay all premiums and costs related to,
insurance coverages in such amounts (with no materially greater risk retention)
and against such risks as are deemed by the management of the Borrower to be
sufficient in accordance with usual and customary practices of companies of
established repute engaged in the same or similar business as the Borrower and
the Subsidiaries. The Borrower shall deliver to the Administrative Agent at
such time or times as the Administrative Agent may reasonably request, a
certificate of a Financial Officer setting out in such detail as the
Administrative Agent may reasonably request a description of all insurance
coverages maintained by the Borrower and each Subsidiary. The Administrative
Agent shall have no obligation to give the Borrower or any Subsidiary notice of
any notification received by the Administrative Agent with respect to any
insurance policies or take any steps to protect the Borrower's or any
Subsidiary's interests under such policies.
SECTION 5.06. True Books. With respect to all dealings and
transactions occurring after December 31, 2004, the Borrower will, and will
cause each of the Subsidiaries to, keep true books of record and account in
which full, true and correct entries will be made of such dealings and
transactions, and set up on its books such reserves as may be required by GAAP
with respect to doubtful accounts and all taxes, assessments, charges, levies
and claims and with respect to its business in general, and include such
reserves in interim as well as year-end financial statements, so that the
Borrower and each Subsidiary may prepare financial statements in accordance
with GAAP.
SECTION 5.07. Right of Inspection. The Borrower will, and will cause
each of the Subsidiaries to, permit any Person designated by the Administrative
Agent or any Lender to visit and inspect any of its properties, corporate books
and financial reports and to discuss its affairs, finances and accounts with
its principal officers and independent certified public accountants, all at
reasonable times, at reasonable intervals and with reasonable prior notice.
SECTION 5.08. Observe All Laws. The Borrower will, and will cause each
of the Subsidiaries to, conform to and duly observe, and use reasonable efforts
to cause all Contract Providers to conform to and duly observe, all laws, rules
and regulations and all other valid requirements of any regulatory authority
with respect to the conduct of its business, including Titles XVIII and XIX of
the Social Security Act, Medicare Regulations, Medicaid Regulations and all
laws, rules and regulations of Governmental Authorities (including all laws,
rules and regulations pertaining to the licensing of professional and other
health care providers and all Environmental Laws), except where the failure to
do so, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 5.09. Governmental Licenses. The Borrower will, and will cause
each of the Subsidiaries to, obtain and maintain, and use reasonable efforts to
cause all Contract Providers to obtain and maintain, all material licenses,
permits, certifications and approvals of all applicable Governmental
Authorities as are required for the conduct of its business as currently
conducted and herein contemplated, including material professional licenses,
Medicaid Certifications and Medicare Certifications, except where the failure
to do so, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 5.10. Notice of Material Events. Upon the Borrower's obtaining
knowledge of (i) any Default or Event of Default or (ii) any event, development
or occurrence that has resulted in, or could reasonably be expected to have, a
Material Adverse Effect, then in each case the Borrower shall promptly notify
the Administrative Agent of the nature thereof, the period of existence
thereof, and what action the Borrower or such Subsidiary proposes to take with
respect thereto.
SECTION 5.11. Suits or Other Proceedings. Upon the Borrower's
obtaining knowledge of the filing or commencement of, or any written notice of
intention of any Person to commence or file, any action, suit or proceeding,
whether in law or in equity, (i) against the Borrower or any Subsidiary, or any
attachment, levy, execution or other process being instituted against any
assets of the Borrower or any Subsidiary, which could reasonably be expected to
have a Material Adverse Effect or (ii) against the Borrower, any Subsidiary or
any Contract Provider to suspend, revoke or terminate any Medicaid Provider
Agreement, Medicaid Certification, Medicare Provider Agreement or Medicare
Certification, which could reasonably be expected to have a Material Adverse
Effect, the Borrower shall promptly provide the Administrative Agent with
written notice thereof stating the nature and status of such litigation,
dispute, proceeding, levy, execution or other process.
SECTION 5.12. Notice of Discharge of Hazardous Material or
Environmental Complaint. The Borrower will, and will cause the Subsidiaries to,
promptly provide to the Administrative Agent true, accurate and complete copies
of any and all notices, complaints, orders, directives, claims, or citations
received by the Borrower or any Subsidiary relating to any of the following
which is likely to have a Material Adverse Effect: (a) violation or alleged
violation by the Borrower or any Subsidiary of any applicable Environmental
Law; (b) Release or threatened Release by the Borrower or any Subsidiary, or at
any Facility or property owned or leased or operated by the Borrower or any
Subsidiary, of any Hazardous Material; or (c) any Environmental Liability.
SECTION 5.13. Information Regarding Collateral. (a) The Borrower will
furnish to the Administrative Agent prompt written notice of any change (i) in
any Loan Party's legal name, as reflected in its organization documents, (ii)
in any Loan Party's jurisdiction of organization or corporate structure and
(iii) in any Loan Party's identity, Federal Taxpayer Identification Number or
organization number, if any, assigned by the jurisdiction of its organization.
The Borrower also agrees promptly to provide to the Administrative Agent
certified organizational documents reflecting any of the changes described in
the preceding sentence. The Borrower agrees not to effect or permit any change
referred to in the preceding sentences unless all filings have been made under
the Uniform Commercial Code or otherwise that are required in order for the
Collateral Agent, for the benefit of the Lenders, to continue at all times
following such change to have a valid, legal and perfected security interest in
all of the Collateral. The Borrower also agrees promptly to notify the
Administrative Agent, for the benefit of the Lenders, if any material portion
of the Collateral is damaged or destroyed.
(b) Each year, at the time of delivery of annual financial statements
with respect to the preceding Fiscal Year pursuant to Section 5.01, the
Borrower shall deliver to the Administrative Agent a certificate on behalf of
the Borrower of a Financial Officer setting forth the information required
pursuant to the Perfection Certificate or confirming that there has been no
change in such information since the later of the date of the Perfection
Certificate delivered on the Amendment Effective Date or the date of the most
recent certificate delivered pursuant to this Section.
(c) After any Subsidiary Loan Party grants any Guarantee of any
Obligation or grants any Lien securing any Obligation, the Borrower shall
promptly provide to the Administrative Agent with all information reasonably
requested by the Administrative Agent or any Lender with respect to the assets,
liabilities or cash flows of each Subsidiary Loan Party granting any such
Guarantee or Lien.
SECTION 5.14. Additional Credit Support Subsidiaries. (a) The Borrower
shall, from time to time after the Subsidiary Credit Support Date, designate
Domestic Subsidiaries (other than Excluded Subsidiaries) reasonably acceptable
to the Administrative Agent as Credit Support Subsidiaries as required in order
that the aggregate Credit Support Values of the Credit Support Subsidiaries
shall at no time after the Subsidiary Credit Support Date be less than 300% of
the Maximum Subsidiary Credit Support Amount. The Borrower shall endeavor to
select Subsidiaries for designation as Credit Support Subsidiaries in
descending order based on the Credit Support Values of the Domestic
Subsidiaries. The Borrower shall cause the Collateral and Guarantee Requirement
to be satisfied at all times with respect to each Credit Support Subsidiary.
(b) Promptly after the Restrictive Indentures and the Senior
Subordinated Credit Agreement shall have been refinanced, terminated or
otherwise amended so that they no longer restrict Subsidiaries from
Guaranteeing and granting Liens to secure the Obligations, the Borrower shall
cause each Subsidiary other than any Excluded Subsidiary to become a party to
the Collateral and Guarantee Agreement and to take all other actions that are
reasonably necessary for each such Subsidiary to Guarantee the Obligations, to
grant the Liens intended to be created by the Collateral and Guarantee
Agreement and to perfect such Liens to the extent and with the priority
required by the Collateral and Guarantee Agreement.
SECTION 5.15. Further Assurances. (a) The Borrower will, and will
cause each Credit Support Subsidiary to, execute any and all further documents,
financing statements, agreements and instruments, and take all such further
actions (including (i) the filing and recording of financing statements,
fixture filings, mortgages, deeds of trust and other documents, (ii) conducting
lien searches and (iii) providing legal opinions reasonably satisfactory to the
Administrative Agent), which may be required under any applicable law, or which
the Administrative Agent or the Required Lenders may reasonably request, to
cause the Collateral and Guarantee Requirement to be and to remain satisfied at
all times and to evidence such satisfaction and the priorities of the Liens
created under the Collateral and Guarantee Agreement.
(b) If any material assets (including any Mortgaged Property) are
acquired by the Borrower or any Subsidiary Loan Party (or held by any Person
becoming a Subsidiary Loan Party) after the Amendment Effective Date (other
than assets constituting Collateral under the Collateral and Guarantee
Agreement that become subject to the Lien of the Collateral and Guarantee
Agreement upon acquisition thereof), the Borrower will notify the
Administrative Agent, and, if requested by the Administrative Agent or the
Required Lenders and to the extent consistent with the restrictions contained
in the Restrictive Indentures and the Senior Subordinated Credit Agreement, the
Borrower will cause such assets to be subjected to a Lien securing the
Obligations and will take, and cause the Subsidiary Loan Parties to take, such
actions as shall be necessary or reasonably requested by the Administrative
Agent to grant and perfect such Liens, including actions described in paragraph
(a) of this Section.
(c) The Borrower shall take all actions, including instructing the
applicable tax authorities to pay any such Federal tax refunds into an account
of the Borrower with and controlled by the Administrative Agent, as shall be
reasonably requested by the Administrative Agent in order to create and perfect
a Lien on the Borrower's rights with respect to any Federal tax refunds that
may be owed to the Borrower in an aggregate amount greater than $5,000,000 in
any Fiscal Year as security for the Obligations (it being agreed that, unless
an Event of Default described in Section 7.01(a), (b), (d) (solely with respect
to Section 6.01), (h) or (i) shall have occurred and be continuing and the
Administrative Agent or the Required Lenders shall have notified the Borrower
to the contrary, the Borrower shall be permitted to remove funds from such
account and to apply such funds for any purpose consistent with the provisions
of this Agreement).
(d) The Borrower shall not, and shall not permit any Subsidiary to,
deposit or maintain in any deposit account, other than a Specified Deposit
Account, any amounts in excess of the amount required to be deposited or
maintained in such deposit account in the ordinary course of business; provided
that this clause (d) shall not be deemed to require the Borrower or any
Subsidiary to deposit any Restricted Cash and Cash Equivalents to a Specified
Deposit Account. Schedule 5.15 sets forth as of the Amendment Effective Date a
list of all the Specified Deposit Accounts. The Borrower shall deliver written
notice to the Administrative Agent promptly after establishing or closing any
Specified Deposit Account.
SECTION 5.16. Ratings. Promptly after the Supplemental Audit Report
Date, and in any event no later than March 31, 2006, the Borrower shall obtain
ratings from each of S&P and Xxxxx'x with respect to the Term Loans, the
Revolving Commitments and the LC Commitments.
ARTICLE VI
Negative Covenants
------------------
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full
and all Letters of Credit have expired or terminated (or the Borrower's
obligation under such Letters of Credit shall have been cash collateralized or
supported by letters of credit of other banks naming the Issuing Banks as
beneficiaries in a manner satisfactory to the Issuing Banks) and all LC
Disbursements have been reimbursed, the Borrower covenants and agrees with the
Lenders that:
SECTION 6.01. Financial Covenants. (a) Interest Coverage Ratio. The
Borrower will not permit the Interest Coverage Ratio for any period of four
consecutive fiscal quarters ending during any period set forth below to be less
the ratio set forth below opposite such period:
Period Minimum Ratio
------ -------------
Amendment Effective Date to June 30, 2005 1.65 to 1.00
July 1, 2005 to December 31, 2005 1.75 to 1.00
January 1, 2006 to December 31, 2006 2.00 to 1.00
January 1, 2007 to December 31, 2008 2.25 to 1.00
After December 31, 2008 2.50 to 1.00
(b) Leverage Ratio. The Borrower will not permit the Leverage Ratio at any time
during any period set forth below to exceed the ratio set forth below opposite
such period:
Period Maximum Ratio
------ -------------
Amendment Effective Date to December 31, 2005 5.75 to 1.00
January 1, 2006 to December 31, 2006 5.50 to 1.00
January 1, 2007 to December 31, 2007 5.00 to 1.00
January 1, 2008 to December 31, 2008 4.75 to 1.00
After December 31, 2008 4.50 to 1.00
SECTION 6.02. Investments. The Borrower will not, and will not permit
any Subsidiary to, make any Investment, except (a) Capital Stock in
Subsidiaries existing on the Amendment Effective Date or organized by the
Borrower after the Amendment Effective Date and Capital Stock in Persons that
thereafter become Subsidiaries in acquisitions permitted under Section 6.08;
(b) Permitted Investments, (c) Investments existing on the Amendment Effective
Date and set forth on Schedule 6.02, (d) Investments in favor of physicians in
connection with their employment in an aggregate amount outstanding at any time
not in excess of $10,000,000, (e) Acquisitions permitted under Section 6.08,
(f) Investments in trade creditors or customers that are received pursuant to a
plan or reorganization or liquidation, (g) guarantees permitted under Section
6.03(b)(ix) and (h) investments not permitted by any other clause of this
Section; provided, that no investment shall be made pursuant to this clause (h)
that, taken together with all other investments made pursuant to this clause
(h) after the Amendment Effective Date, would exceed the greater of $50,000,000
and 2.5% of Consolidated Tangible Assets of the Borrower as of the end of the
most recent fiscal quarter for which financial statements of the Borrower have
been delivered after the Audit Report Date under Section 5.01(a)(ii) or
5.01(a)(iii). The Borrower shall not purchase or otherwise acquire any Capital
Stock, security, obligation or evidence of Indebtedness of, make any capital
contribution to or make any loan or advance to any Subsidiary other than (i)
pursuant to clause (a) of the preceding sentence, (ii) loans to Subsidiaries
that are evidenced by promissory notes that, to the extent held by the Company
or Credit Support Subsidiaries, are pledged under and in accordance with the
Collateral and Guarantee Agreement, (iii) Indebtedness under the Borrower's
cash management system and (iv) capital contributions to Syndicated Persons in
an aggregate amount not greater than $10,000,000 and resulting from capital
calls with respect to such Syndicated Persons that are required by the
organizational documents, shareholder agreements or other similar agreements
binding on such Syndicated Persons to be made in a manner other than as set
forth in the immediately preceding clause (ii).
SECTION 6.03. Indebtedness; Subsidiary Preferred Stock. (a) After the
Amendment Effective Date, (i) the Borrower shall not, and shall not permit any
of the Subsidiaries to, directly or indirectly, create, incur, issue, assume or
otherwise become liable with respect to (collectively, "incur"), any
Indebtedness (including Acquired Indebtedness) and (ii) the Borrower shall not
permit any of its Subsidiaries to issue (except to the Borrower or any of its
Subsidiaries) or create any Preferred Stock or permit any Person (other than
the Borrower or a Subsidiary) to own or hold any interest in any Preferred
Stock of any such Subsidiary; provided, however, that, after the Borrower has
delivered financial statements under Section 5.01(a)(ii) or 5.01(a)(iii) after
the Audit Report Date covering a period of at least four fiscal quarters, the
Borrower may incur Indebtedness and may permit Subsidiaries (other than
Subsidiaries directly owned by the Borrower the Capital Stock of which is
pledged, or required to be pledged, under the Collateral and Guarantee
Agreement) to issue Preferred Stock in accordance with, and subject to, Section
6.03(c) if, after giving effect thereto on a pro forma basis as if the
incurrence of such additional Indebtedness or the issuance of such Preferred
Stock (deemed to have an aggregate principal amount equal to the aggregate
liquidation value of such Preferred Stock), as the case may be, and the
application of the net proceeds therefrom, had occurred at the beginning of the
most recently ended period of four consecutive fiscal quarters for which
financial statements have been delivered after the Audit Report Date pursuant
to Section 5.01(a)(ii) or 5.01(a)(iii), (i) the Interest Coverage Ratio for
such period of four consecutive fiscal quarters would be at least 2.0 to 1, and
(ii) the Borrower shall be in pro forma compliance with Section 6.01.
(b) Notwithstanding the foregoing, and irrespective of the Interest
Expense Ratio, in addition to Existing Indebtedness: (i) the Borrower may incur
Indebtedness under this Agreement; (ii) the Borrower and the Subsidiaries may
incur Refinancing Indebtedness; (iii) the Borrower may incur any Indebtedness
to any Subsidiary or any Subsidiary may incur any Indebtedness to the Borrower
or to any Subsidiary, provided, that at all times after the Audit Report Date
(and prior to the Audit Report Date, to the extent the Company is able to
quantify such Indebtedness) any such Indebtedness of a Subsidiary (except
Indebtedness arising through the ordinary course operation of the Borrower's
cash management system), to the extent held by the Company or a Credit Support
Subsidiary, (A) will be evidenced by a promissory note in form and on terms
satisfactory to the Administrative Agent and (B) will be pledged under the
Collateral and Guarantee Agreement; (iv) the Borrower may incur any
Indebtedness evidenced by letters of credit which are used in the ordinary
course of business of the Borrower and its Subsidiaries; (v) the Borrower and
its Subsidiaries may incur Capitalized Lease Obligations, purchase money debt
and Attributable Indebtedness, in each case excluding Existing Indebtedness and
Attributable Indebtedness in respect of Specified Sale and Leaseback
Transactions and Attributable Indebtedness in respect of Sale and Leaseback
Transactions in respect of fixed or capital assets that are consummated within
180 days after the acquisition or completion of the applicable fixed or capital
assets, in an aggregate principal amount at any one time outstanding not to
exceed the greater of $100,000,000 and 5% of Consolidated Tangible Assets of
the Borrower as of the end of the most recent fiscal quarter for which
financial statements of the Borrower have been delivered after the Audit Report
Date under Section 5.01(a)(ii) or 5.01(a)(iii); (vi) the Borrower may incur
Indebtedness evidenced by the Settlement Notes; (vii) the Borrower may enter
into Swap Agreements in accordance with Section 6.15; (viii) the Borrower may
incur other Indebtedness in an aggregate principal amount outstanding at any
time that, taken together with Indebtedness and Attributable Indebtedness
incurred under the immediately preceding clause (v) and Section 6.14, does not
exceed the greater of $100,000,000 or 5% of Consolidated Tangible Assets of the
Borrower as of the end of the most recent fiscal quarter for which financial
statements of the Borrower have been delivered after the Audit Report Date
under Section 5.01(a)(ii) or 5.01(a)(iii); and (ix) the Borrower and its
Subsidiaries may enter into guarantees of Indebtedness of Subsidiaries that is
otherwise permitted hereunder.
(c) Notwithstanding the foregoing clauses (a) and (b), the Borrower
may permit any Subsidiary (other than a Subsidiary directly owned by the
Borrower) which is an entity formed to operate one or more healthcare
facilities to issue or create Capital Stock, provided that the aggregate amount
of all such Capital Stock that is Preferred Stock outstanding after giving
effect to such issuance or creation shall not exceed $25,000,000.
SECTION 6.04. Disposition of Assets. (a) The Borrower shall not, and
shall not permit any Subsidiary to, consummate any Asset Sale, except for the
Digital Hospital Transaction, the Permitted Asset Sale and Specified Sale and
Leaseback Transactions, if, after giving effect thereto, the aggregate book
value of all assets (including capital stock of Subsidiaries) sold, transferred
or otherwise disposed of in Asset Sales (other than the Digital Hospital
Transaction, the Permitted Asset Sale and Specified Sale and Leaseback
Transactions) after the date hereof would exceed the greater of $50,000,000 and
2.5% of Consolidated Tangible Assets of the Borrower as of the end of the most
recent fiscal quarter for which financial statements of the Borrower shall have
been delivered after the Audit Report Date under Section 5.01(a)(ii) or
5.01(a)(iii). Except as provided in Section 6.03(c), the Borrower shall not
permit any Subsidiary to issue any additional Capital Stock of such Subsidiary.
(b) The Borrower shall not, and shall not permit any of the
Subsidiaries to, consummate any Asset Sale permitted under paragraph (a) above
unless (i) the Borrower or such Subsidiary receives consideration at the time
of such Asset Sale at least equal to the Fair Market Value of the assets
included in such Asset Sale, (ii) immediately before and immediately after
giving effect to such Asset Sale, no Default or Event of Default shall have
occurred and be continuing and (iii) at least 75% of the consideration received
by the Borrower or such Subsidiary therefor is in the form of cash paid at the
closing thereof, provided, however, that this clause (iii) shall not apply (A)
if, after giving effect to such Asset Sale, the aggregate principal amount of
all notes or similar debt obligations and the Fair Market Value of all equity
securities and other non-cash consideration received by the Borrower from all
Asset Sales since the Amendment Effective Date (other than (1) non-cash
consideration received in Asset Sales covered by the following clause (B) and
(2) such notes or similar debt obligations and such equity securities converted
into or otherwise disposed of for cash and applied in accordance with Section
2.10(c)) would not exceed the greater of $25,000,000 and 2.5% of Consolidated
Tangible Assets of the Borrower as of the end of the most recent fiscal quarter
for which financial statements of the Borrower shall have been delivered after
the Audit Report Date under Section 5.01(a)(ii) or 5.01(a)(iii) and (B) to
Asset Sales for which the non-cash consideration exceeds 25%, the Net Proceeds
of which do not exceed $25,000,000 in the aggregate. The amount (without
duplication) of any (x) Indebtedness (other than Subordinated Indebtedness) of
the Borrower or such Subsidiary that is expressly assumed by the transferee in
such Asset Sale and with respect to which the Borrower or such Subsidiary, as
the case may be, is unconditionally released by the holder of such Indebtedness
and (y) any notes, securities or similar obligations or items of property
received from such transferee that are promptly converted, sold or exchanged by
the Borrower or such Subsidiary for cash (to the extent of the cash actually so
received), shall be deemed to be cash for purposes of this Section. If at any
time any non-cash consideration received by the Borrower or such Subsidiary, as
the case may be, in connection with any Asset Sale is converted into or sold or
otherwise disposed of for cash (other than interest received with respect to
any such non-cash consideration), then the date of such conversion or
disposition shall be deemed to constitute the date of an Asset Sale hereunder
and the Net Proceeds thereof shall be applied in accordance with Section
2.10(c).
SECTION 6.05. Fundamental Changes. (a) The Borrower shall not
consolidate or merge with or into, or sell, lease, convey or otherwise dispose
of all or substantially all of its assets to, any Person unless: (i) the Person
formed by or surviving such consolidation or merger (if other than the
Borrower), or to which such sale, lease, conveyance or other disposition or
assignment shall be made (collectively, the "Successor"), is a corporation
organized and existing under the laws of the United States or any State thereof
or the District of Columbia, and the Successor assumes by an assumption
agreement in a form satisfactory to the Administrative Agent all the
Obligations and all other obligations of the Borrower under each Loan Document;
(ii) immediately after giving effect to such consolidation, merger, sale,
lease, conveyance or other disposition or assignment and the use of any net
proceeds therefrom on a pro forma basis as if it had occurred at the beginning
of the most recently ended period of four consecutive fiscal quarters, no
Default or Event of Default shall have occurred and be continuing; (iii)
immediately after giving effect to such consolidation, merger, sale, lease,
conveyance or other disposition or assignment and the use of any net proceeds
therefrom on a pro forma basis as provided above, the Consolidated Net Worth of
the Borrower or the Successor, as the case may be, would be at least equal to
the Consolidated Net Worth of the Borrower immediately prior to such
transaction; (iv) the Borrower has delivered financial statements after the
Audit Report Date under Section 5.01(a)(ii) or 5.01(a)(iii) and immediately
after giving effect to such consolidation, merger, sale, lease, conveyance or
other disposition or assignment and the use of any net proceeds therefrom on a
pro forma basis as provided above, the Interest Coverage Ratio of the Borrower
or the Successor, as the case may be, would be at least 2.0 to 1, (v) the
Borrower's credit ratings from S&P and Xxxxx'x shall not be reduced, or the
outlook applicable to such ratings made less positive, as a result of such
consolidation, merger, sale, lease, conveyance or other disposition or
assignment and the use of any net proceeds therefrom, and each of S&P and
Xxxxx'x shall have reaffirmed its rating in effect prior to such consolidation,
merger, sale, lease, conveyance or other disposition or assignment, and (vi)
the Borrower shall have delivered to the Administrative Agent an Officer's
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, sale, lease, conveyance or other disposition or assignment complies
with the provisions of this Agreement.
(b) The Borrower will not, and will cause the Subsidiaries not to,
engage in any business other than the business now being conducted by the
Borrower and the Subsidiaries and other businesses directly related or
complementary to such business.
SECTION 6.06. Liens. The Borrower will not, and will not permit any of
the Subsidiaries to, incur, create, assume or permit to exist any Lien upon any
of its accounts receivable, contract rights, chattel paper, inventory,
equipment, instruments, general intangibles or other property or assets of any
character, whether now owned or hereafter acquired, or assign or sell any
income or receivables (including accounts receivable) or rights in respect
thereof, other than (a) Permitted Liens, (b) Liens existing on the Amendment
Effective Date and set forth on Schedule 6.06, provided that (i) such Liens
shall secure only those obligations which they secure on the Amendment
Effective Date and extensions, renewals and replacements thereof that do not
increase the outstanding principal amount thereof and (ii) such Liens shall
extend only to the assets to which they apply on the Amendment Effective Date,
(c) Liens on property, plant and equipment acquired, constructed or improved by
the Borrower or any Subsidiary; provided that (i) such Liens and the
Indebtedness secured thereby are incurred prior to or within 90 days after such
acquisition or the completion of such construction or improvement and (ii) such
Liens shall not apply to any other property or assets of the Borrower or any
Subsidiary and (d) Liens (other than Liens on any Capital Stock of any
Subsidiary or other Person that is required to be pledged under the Collateral
and Guarantee Agreement) that are not permitted by any other clause of this
Section 6.06; provided that at the time any Lien is created under this clause
(d), the aggregate amount of such Lien and all other Liens permitted under this
clause (d) (measured, as to each such Lien, as the lesser of the amount secured
by such Lien and the fair market value at such time of the assets subject to
such Lien), shall not exceed the greater of $25,000,000 and 5% of Consolidated
Tangible Assets of the Borrower as of the end of the most recent fiscal quarter
for which financial statements of the Borrower have been delivered after the
Audit Report Date under Section 5.01(a)(ii) or 5.01(a)(iii).
SECTION 6.07. Restrictive Agreements. The Borrower will not, and will
not permit any of the Subsidiaries to, directly or indirectly, enter into or
permit to exist any agreement or other arrangement that prohibits, restricts or
imposes any condition upon (a) the ability of the Borrower or any Subsidiary to
create, incur or permit to exist any Lien upon any of its property or assets
(other than on terms substantially similar to, and no less favorable to the
Lenders than, those in the Indentures), or the ability of the Borrower or any
Subsidiary to create, incur or permit to exist any Lien on any capital stock of
any Subsidiary owned by it, or (b) the ability of any Subsidiary to pay
dividends or other distributions with respect to any shares of its capital
stock or to make or repay loans or advances to the Borrower or any other
Subsidiary or to Guarantee Indebtedness of the Borrower or any other
Subsidiary; provided that (i) the foregoing shall not apply to restrictions and
conditions imposed by law or by this Agreement, (ii) the foregoing shall not
apply to restrictions and conditions existing on the Amendment Effective Date
identified on Schedule 6.07 (but shall apply to any extension or renewal of
(other than pursuant to the exercise of existing contractual renewal options),
or any amendment or modification expanding the scope of, any such restriction
or condition), (iii) the foregoing shall not apply to customary restrictions
and conditions contained in agreements relating to the sale of assets or a
Subsidiary pending such sale, provided that such restrictions and conditions
apply only to the assets or Subsidiary that is to be sold and such sale is
permitted hereunder, (iv) clause (a) of the foregoing shall not apply to
customary provisions in leases and other contracts restricting the assignment
thereof and (v) the foregoing shall not apply to restrictions and conditions
under any agreement evidencing any Acquired Indebtedness that was permitted to
be incurred pursuant to this Agreement and which was not incurred in
anticipation or contemplation of the related acquisition, provided that such
restrictions and encumbrances only apply to assets that were subject to such
restrictions and encumbrances prior to the acquisition of such assets by the
Borrower or its Subsidiaries.
SECTION 6.08. Acquisitions. The Borrower will not, and will not permit
any of the Subsidiaries to, acquire or enter into any agreement to acquire (a)
any Person or Facility, (b) all or substantially all of the assets of any
Person or (c) except in the ordinary course of business, assets that are, taken
as a whole, substantial in relation to the Borrower, in each case unless (i)
the Person or Facility to be acquired is in, or the assets to be acquired are
used in, substantially the same line of business as or a line of business
reasonably related or complementary to the businesses presently engaged in by
the Borrower and the Subsidiaries, (ii) prior to the Audit Report Date, the
aggregate Cost of Acquisition does not exceed $25,000,000 and (iii) if the
Borrower has delivered financial statements after the Audit Report Date under
Section 5.01(a)(ii) or 5.01(a)(iii) and the Cost of Acquisition exceeds
$50,000,000, the Borrower shall have furnished to the Administrative Agent (A)
pro forma historical financial statements as of the end of the most recently
completed Fiscal Year of the Borrower and most recent interim fiscal quarter,
if applicable, for which financial statements are available after the Audit
Report Date under Section 5.01(a)(ii) or 5.01(a)(iii) giving effect to such
acquisition, (B) a certificate prepared and certified by a Financial Officer on
an historical pro forma basis giving effect to such Acquisition, which
certificate shall demonstrate (1) that no Default or Event of Default would
exist immediately after giving effect thereto and (2) that the Interest
Coverage Ratio would be at least 2.00 to 1.00 immediately after giving effect
thereto and (C) in the case of an agreement to acquire a Person, a certificate
prepared and certified by a Financial Officer demonstrating that the Person to
be acquired had positive Consolidated EBITDA for the four fiscal quarters
preceding the acquisition for which financial statements of such Person are
available; provided, however, that the aggregate amount of cash expended and
Indebtedness assumed in connection with acquisitions permitted pursuant to this
Section 6.08 shall not exceed (x) $100,000,000 during any Fiscal Year or
$200,000,000 in the aggregate for all such acquisitions after the date hereof.
SECTION 6.09. Restricted Payments; Certain Prepayments of
Indebtedness. (a) The Borrower shall not, and shall not permit any of its
Subsidiaries, directly or indirectly, to make any Restricted Payment; provided,
however, that the Borrower may, and may permit any of its Subsidiaries to, make
Restricted Payments in the ordinary course of business if (i) at the time of
and after giving effect to such Restricted Payment no Default shall not have
occurred and be continuing and (ii) the amount of such Restricted Payment, when
added to the aggregate amount of all Restricted Payments made during the same
Fiscal Year, does not exceed the greater of $25,000,000 and 1.5% of
Consolidated Tangible Assets of the Borrower as of the end of the most recent
fiscal quarter for which financial statements of the Borrower have been
delivered after the Audit Report Date under Section 5.01(a)(ii) or
5.01(a)(iii).
(b) The Borrower will not, nor will it permit any of the Subsidiaries
to, make or agree to pay or make, directly or indirectly, any payment or other
distribution (whether in cash, securities or other property) of or in respect
of principal of or interest on any Indebtedness, or any payment or other
distribution (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination of any Indebtedness,
except:
(i) payments of Indebtedness created under this Agreement;
(ii) mandatory payments of principal, premium and interest as and when
due in respect of any Indebtedness;
(iii) any payment or prepayment of Indebtedness with the proceeds of
Refinancing Indebtedness;
(iv) payments of secured Indebtedness that becomes due as a result of
the voluntary sale or transfer of the property or assets securing such
Indebtedness; (v) payments of Acquired Indebtedness;
(vi) after the Borrower has delivered financial statements after the
Audit Report Date under Section 5.01(a)(ii) or 5.01(a)(iii), repurchases,
redemptions or prepayments of Indebtedness of the Borrower or any Subsidiary
in amounts that do not exceed $100,000,000 in the aggregate after the date
of this Agreement if immediately prior to and immediately after giving
effect to each such repurchase or prepayment no Default shall have occurred
and be continuing; and
(vii) redemptions or repayments at maturity of 2005 Notes with (A) up
to 50% of the Net Proceeds of the Permitted Asset Sale in accordance with
Section 2.10(c) or (B) Qualifying 2005 Notes Payments.
(c) The Borrower will not demand payment on, or permit any Subsidiary
to prepay, any intercompany note pledged under the Collateral and Guarantee
Agreement except for (i) payment of intercompany notes of Subsidiaries that are
not Wholly Owned Subsidiaries of the Borrower made for valid business reasons
and (ii) payment of intercompany notes of Subsidiaries in connection with the
liquidation of such Subsidiaries for valid business reasons.
SECTION 6.10. Compliance with ERISA. The Borrower will not, and will
not permit any of the Subsidiaries to:
(a) permit the present value of all benefit liabilities under all
Pension Plans to exceed the current value of the assets of such Pension
Plans allocable to such benefit liabilities;
(b) permit any accumulated funding deficiency (as defined in Section
302 of ERISA or Section 412 of the Code) with respect to any Pension Plan,
whether or not waived;
(c) fail to make any contribution or payment to any Multiemployer Plan
that the Borrower, a Subsidiary or any ERISA Affiliate may be required to
make under any agreement relating to such Multiemployer Plan, or any law
pertaining thereto;
(d) with respect to any Pension Plan, Employee Benefit Plan, engage,
or permit any Subsidiary or any ERISA Affiliate to engage, in any
"prohibited transaction", as defined in Section 406 of ERISA or Section 4975
of the Code, for which a civil penalty pursuant to Section 502(i) of ERISA
or a tax pursuant to Section 4975 of the Code may be imposed;
(e) permit the establishment of any Employee Benefit Plan providing
post-retirement welfare benefits or establish or amend any Employee Benefit
Plan which establishment or amendment could result in liability to the
Borrower, any Subsidiary or any ERISA Affiliate or increase the obligation
of the Borrower, any Subsidiary or any ERISA Affiliate to a Multiemployer
Plan if such liability or increase, individually or together with all
similar liabilities and increases, is in excess of $5,000,000; or
(f) fail, or permit any Subsidiary or any ERISA Affiliate to fail, to
establish, maintain and operate each Employee Benefit Plan in compliance in
all material respects with the provisions of ERISA, the Code and all other
applicable laws and the regulations and interpretations thereof.
SECTION 6.11. Fiscal Year. The Borrower will not change its fiscal
year to a date other than December 31st, nor will it permit any Subsidiary to
change its fiscal year (other than a change to conform the fiscal year of a
Subsidiary to that of the Borrower).
SECTION 6.12. Dissolution, etc. The Borrower will not, and will not
permit any Subsidiary to, wind up, liquidate or dissolve (voluntarily or
involuntarily) or commence or suffer any proceedings seeking any such winding
up, liquidation or dissolution, except, in the case of a Subsidiary, (i) in
connection with a merger or consolidation permitted pursuant to Section 6.05 or
(ii) where the liquidation or dissolution of a Subsidiary occurs in the
ordinary course of business, is determined by the Borrower in good faith to be
in the best interests of the Borrower and is not materially disadvantageous to
the Lenders.
SECTION 6.13. Transactions with Affiliates. Neither the Borrower nor
any of its Subsidiaries shall, directly or indirectly, in one transaction or a
series of transactions, make any loan, advance, Guarantee or capital
contribution to, or for the benefit of, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or for the benefit of, or
purchase or lease any property or assets from, or enter into or amend any
contract, agreement or understanding with, or for the benefit of, any Affiliate
of the Borrower or any of its Subsidiaries or any Person (or any Affiliate of
such Person) holding 5% or more of the Common Equity of the Borrower or any of
its Subsidiaries, other than transactions in the ordinary course between the
Borrower and its Subsidiaries or among Subsidiaries of the Borrower (an
"Affiliate Transaction"), unless the terms of such Affiliate Transactions are
fair and reasonable to the Borrower or such Subsidiary, as the case may be, and
are at least as favorable as the terms which could be obtained by the Borrower
or such Subsidiary, as the case may be, in a comparable transaction made on an
arm's-length basis between unaffiliated parties.
SECTION 6.14. Sale and Leaseback Transactions. The Borrower will not,
and will not permit any Subsidiary to, enter into any Sale and Leaseback
Transaction other than Specified Sale and Leaseback Transactions unless, as of
any date and after giving effect to such Sale and Leaseback Transaction, the
aggregate outstanding Attributable Indebtedness in respect of Sale and
Leaseback Transactions (other than any Specified Sale and Leaseback
Transactions and any Sale and Leaseback Transaction in respect of a fixed or
capital asset that is consummated within 180 days after the acquisition or
completion of such fixed or capital asset), together with the aggregate amount
of all Liens incurred, created, assumed or permitted to exist pursuant to
clause (d) of Section 6.06, does not exceed the greater of $100,000,000 and 5%
of Consolidated Tangible Assets of the Borrower as of the end of the most
recent fiscal quarter for which financial statements of the Borrower have been
delivered after the Audit Report Date under Section 5.01(a)(ii) or
5.01(a)(iii).
SECTION 6.15. Swap Agreements. The Borrower will not enter into any
Swap Agreement and will not permit any Swap Agreement to which the Borrower is
a party to continue in effect after the Amendment Effective Date, except for
(a) Swap Agreements entered into to hedge or mitigate risks to which the
Borrower or any Subsidiary has actual exposure (other than those in respect of
Capital Stock of the Borrower or any Subsidiary) and (b) Swap Agreements
entered into in order to effectively cap, collar or exchange interest rates
(from fixed to floating rates, from one floating rate to another floating rate
or otherwise) with respect to any interest-bearing liability or investment of
the Borrower or any Subsidiary. The Borrower will not permit any Subsidiary to
enter into any Swap Agreement and will not permit any Swap Agreement to which a
Subsidiary is a party to continue in effect after the Amendment Effective Date.
SECTION 6.16. Management Contracts. Except for Facilities which, in
the reasonable judgment of the Borrower, are no longer useful or profitable in
the business of the Borrower and the Subsidiaries and that can be disposed of
more economically by contracting for the management thereof by a third Person,
the Borrower will not, and will cause the Subsidiaries not to, enter into any
agreement whereby the management, supervision or control of its business or any
Facility shall be delegated to or placed in any persons other than its
governing body and officers, partners and members, the Borrower or a
Subsidiary.
SECTION 6.17. Use of Proceeds. The Borrower will use the proceeds of
the Revolving Loans for general corporate purposes; provided, that in no event
shall any proceeds of the Revolving Loans be used to redeem, repay or refinance
any Indebtedness under the Indentures (other than the 2005 Notes) or the Senior
Subordinated Credit Agreement or to repay Term Loans. No part of the proceeds
of any Revolving Loan will be used, whether directly or indirectly, for any
purpose that entails a violation of any of the Regulations of the Board,
including Regulations T, U and X. The Letters of Credit will be used in the
ordinary course of business of the Borrower and the Subsidiaries to secure
workers' compensation and other insurance coverages, and for general corporate
purposes.
SECTION 6.18. Amendment of Material Agreements. The Borrower will not,
nor will it permit any Subsidiary to, (a) permit any waiver, supplement,
modification, amendment, termination or release of (i) any Settlement
Agreement, any Indenture or the Senior Subordinated Credit Agreement or (ii)
its certificate of incorporation, by-laws or other organizational documents, in
each of clauses (i) and (ii), in a manner which could, individually or in the
aggregate, reasonably be expected to (A) materially impair the Loan Parties'
ability to perform their obligations hereunder or under the Loan Documents or
(B) be adverse to the Lenders in any material respect, or (b) waive,
supplement, modify, amend, terminate or release any intercompany note pledged
under the Collateral and Guarantee Agreement in a manner adverse to the
Lender's interests therein in any material respect.
SECTION 6.19. Capital Expenditures. The Borrower and the Subsidiaries
will not make Capital Expenditures (other than those funded with proceeds of
asset sales or insurance) in any Fiscal Year in an aggregate amount exceeding
(a) $175,000,000, plus (b) the unused amount (up to $25,000,000) of such
$175,000,000 in the immediately preceding Fiscal Year; provided that Capital
Expenditures in any Fiscal Year shall be counted against the base $175,000,000
amount of Capital Expenditures permitted under this Section 6.19 for such
Fiscal Year prior to being counted against any additional amounts available
from the immediately preceding Fiscal Year.
ARTICLE VII
Events of Default
-----------------
SECTION 7.01. Events of Default. If any of the following events
("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee
or any other amount (other than an amount referred to in clause (a) of this
Article) payable under this Agreement, when and as the same shall become due
and payable, and such failure shall continue unremedied for a period of
three Business Days;
(c) any representation or warranty made or deemed made by or on behalf
of the Borrower or any Subsidiary in or in connection with this Agreement or
any amendment or modification hereof or waiver hereunder, or any purported
statement of fact contained in any report, certificate, financial statement
or other document furnished pursuant to or in connection with this Agreement
or any amendment or modification hereof or waiver hereunder, shall prove to
have been incorrect in any material respect when made or delivered or deemed
made or delivered;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 1.05, 2.10(c), 5.01(a)(vii),
(viii) or (ix) (with respect to the Borrower's existence), 5.01(b), 5.10,
5.11, 5.12, 5.13, 5.16 or 9.15 or in Article VI;
(e) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement or any other Loan
Document (other than those specified in clause (a), (b) or (d) of this
Article), and such failure shall continue unremedied for a period of 30 days
after notice thereof from the Administrative Agent to the Borrower (which
notice will be given at the request of any Lender);
(f) the Borrower or any Subsidiary shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect of
any Material Indebtedness or under any Settlement Agreement, when and as the
same shall become due and payable;
(g) any event or condition occurs that results in any Material
Indebtedness or any obligations under any Settlement Agreement becoming due
or being required to be prepaid, repurchased, redeemed or defeased prior to
its or their scheduled maturity or any event or condition shall occur that
(i) enables or permits (with or without the giving of notice, the lapse of
time or both) the holder or holders of any Material Indebtedness or any
trustee or agent on its or their behalf or any party to a Settlement
Agreement other than the Borrower or a Subsidiary to cause any Material
Indebtedness or any obligations under any Settlement Agreement to become
due, or to require the prepayment, repurchase, redemption or defeasance
thereof, prior to its or their scheduled maturity; provided that this clause
(g) shall not apply to secured Indebtedness that becomes due as a result of
the voluntary sale or transfer of the property or assets securing such
Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the Borrower or any Material Group of its debts, or of
a substantial part of its assets, under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect or (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower or any
Material Group or for a substantial part of its assets, and, in any such
case, such proceeding or petition shall continue undismissed for 60 days or
an order or decree approving or ordering any of the foregoing shall be
entered;
(i) the Borrower or any Material Group shall (i) voluntarily commence
any proceeding or file any petition seeking liquidation, reorganization or
other relief under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (h) of this Article, (iii) apply
for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower or any
Material Group or for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in any
such proceeding, (v) make a general assignment for the benefit of creditors
or (vi) take any action for the purpose of effecting any of the foregoing;
(j) the Borrower or any Material Group shall become unable, admit in
writing its inability or fail generally to pay its debts as they become due;
(k) (i) one or more judgments for the payment of money in an aggregate
amount in excess of $25,000,000 shall be rendered against the Borrower, any
Subsidiary or any combination thereof and the same shall remain undischarged
for a period of 30 consecutive days during which execution shall not be
effectively stayed, or (ii) any action shall be legally taken by a judgment
creditor which could reasonably be expected to result in the attachment or
levy upon any material assets of the Borrower or any Subsidiary to enforce
any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in liability of the
Borrower and its Subsidiaries in an aggregate amount exceeding (i)
$25,000,000 in any year or (ii) $50,000,000 for all periods;
(m) a Change of Control shall occur;
(n) the Borrower or any Subsidiary shall have received a notice, order
or judgment from or of a Governmental Authority that temporarily or
permanently suspends the operations of the business of the Borrower or a
Subsidiary (due to a violation of applicable law or otherwise), which
suspension could reasonably be expected to result in a Material Adverse
Effect, or the Borrower or any Subsidiary shall otherwise, other than in the
ordinary course of business (as determined by past practices), suspend all
or any part of its operations material to the conduct of the business of the
Borrower and the Subsidiaries, taken as a whole, for a period of more than
60 days;
(o) there shall occur (i) any cancellation, revocation, suspension or
termination of any Medicare Certification, Medicare Provider Agreement,
Medicaid Certification or Medicaid Provider Agreement affecting the
Borrower, any Subsidiary or any Contract Provider, or (ii) the loss of any
other permits, licenses, authorizations, certifications or approvals from
any federal, state or local Governmental Authority or termination of any
contract with any such authority, in either case which cancellation,
revocation, suspension, termination or loss (A) in the case of any
suspension or temporary loss only, continues for a period greater than 60
days, and (B) results in the suspension or termination of operations of the
Borrower or any Subsidiary or in the failure of the Borrower or any
Subsidiary or any Contract Provider to be eligible to participate in
Medicare or Medicaid programs or to accept assignments of rights to
reimbursement under Medicaid Regulations or Medicare Regulations, if and
only if such Person, in the ordinary course of business, participates in the
Medicare or Medicare programs or accepts assignments of rights to
reimbursement thereunder; provided that any such events described in this
clause (o) shall constitute an Event of Default only if such event shall
result, either individually or in the aggregate, in the termination,
cancellation, suspension or material impairment of operations or rights to
reimbursement which produce 5% or more of the Borrower's gross revenues (on
an annualized basis) or 5% of Consolidated EBITDA for the most recently
ended four fiscal quarter period of the Borrower;
(p) the Guarantees under the Collateral and Guarantee Agreement of any
material portion of the Guarantors shall cease to be, or shall be asserted
by the Borrower or any Subsidiary not to be, valid and enforceable
Guarantees of the Obligations;
(q) any Liens on material assets purported to be created under the
Security Documents shall cease to be, or shall be asserted by the Borrower
or any Subsidiary not to be, valid and perfected Liens on the Collateral
purportedly subject thereto, with the priority required by the applicable
Security Documents, except (i) as a result of the sale or other disposition
of the applicable Collateral in one or more transactions permitted under the
Loan Documents or (ii) as a result of the Collateral Agent's failure to
maintain possession of any stock certificates, promissory notes or other
instruments delivered to it under the Collateral and Guarantee Agreement;
(r) the Audit Report Date shall not have occurred on or before June
30, 2005; or the Supplemental Audit Report Date shall not have occurred on
or before December 31, 2005; or
(s) the Borrower or any Subsidiary shall be subject to a criminal
indictment.
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either
or both of the following actions, at the same or different times: (i) terminate
the Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or in
part, in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the principal of
the Loans so declared to be due and payable, together with accrued interest
thereon and all fees and other obligations of the Borrower accrued hereunder,
shall become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower;
and in case of any event with respect to the Borrower described in clause (h)
or (i) of this Article, the Commitments shall automatically terminate and the
principal of the Loans then outstanding, together with accrued interest thereon
and all fees and other obligations of the Borrower accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower.
SECTION 7.02. CAM Exchange. On the CAM Exchange Date, (i) the
Commitments shall automatically and without further act be terminated as
provided in Section 7.01, (ii) the Administrative Agent shall withdraw from the
Tranche B Deposit Account and pay to each Tranche B LC Lender such Tranche B LC
Lender's Applicable Tranche B LC Percentage of the excess at such time of the
aggregate amount of the Tranche B Deposits over the Tranche B LC Exposure and
(iii) the Lenders shall automatically and without further act be deemed to have
exchanged interests in the Designated Obligations such that, in lieu of the
interests of each Lender in the Designated Obligations under each Tranche in
which it shall participate as of such date, such Lender shall own an interest
equal to such Lender's CAM Percentage in the Designated Obligations under each
of the Tranches. Each Lender, each person acquiring a participation from any
Lender as contemplated by Section 9.04 and the Borrower hereby consents and
agrees to the CAM Exchange. Each of the Borrower and the Lenders agrees from
time to time to execute and deliver to the Administrative Agent all such
promissory notes and other instruments and documents as the Administrative
Agent shall reasonably request to evidence and confirm the respective interests
and obligations of the Lenders after giving effect to the CAM Exchange, and
each Lender agrees to surrender any promissory notes originally received by it
in connection with its Loans hereunder to the Administrative Agent against
delivery of any promissory notes so executed and delivered; provided that the
failure of the Borrower to execute or deliver or of any Lender to accept any
such promissory note, instrument or document shall not affect the validity or
effectiveness of the CAM Exchange.
As a result of the CAM Exchange, on and after the CAM Exchange Date,
(i) each payment received by the Administrative Agent pursuant to any Loan
Document in respect of the Designated Obligations shall be distributed to the
Lenders pro rata in accordance with their respective CAM Percentages (to be
redetermined as of each such date of payment or distribution to the extent
required by the next paragraph below) and (ii) Section 2.16(e) shall not apply
with respect to any Taxes required to be withheld or deducted by the Borrower
from or in respect of payments hereunder to any Lender or the Administrative
Agent that exceed the Taxes the Borrower would have been required to withhold
or deduct from or in respect of payments to such Lender or the Administrative
Agent had such CAM Exchange not occurred.
In the event that, on or after the CAM Exchange Date, the aggregate
amount of the Designated Obligations shall change as a result of the making of
an LC Disbursement by an Issuing Bank that is not reimbursed by the Borrower,
then (i) each Tranche A LC Lender or Tranche B LC Lender, as the case may be,
shall, in accordance with Section 2.04(d), promptly purchase from the
applicable Issuing Bank a participation in such LC Disbursement in the amount
of such LC Lender's Applicable Tranche A LC Percentage or Applicable Tranche B
LC Percentage, as applicable, of such LC Disbursement (without giving effect to
the CAM Exchange), (ii) the Administrative Agent shall redetermine the CAM
Percentages after giving effect to such LC Disbursement and the purchase of
participations therein by the applicable LC Lenders and the Lenders shall
automatically and without further act be deemed to have exchanged interests in
the Designated Obligations such that each Lender shall own an interest equal to
such Lender's CAM Percentage in the Designated Obligations under each of the
Tranches, and (iii) in the event distributions shall have been made in
accordance with clause (i) of the preceding paragraph, the Lenders shall make
such payments to one another as shall be necessary in order that the amounts
received by them shall be equal to the amounts they would have received had
each LC Disbursement been outstanding on the CAM Exchange Date. Each such
redetermination shall be binding on each of the Lenders and their successors
and assigns and shall be conclusive, absent manifest error.
ARTICLE VIII
The Agents
----------
Each of the Lenders and the Issuing Banks hereby irrevocably appoints
the Agents as its agents and authorizes the Agents to take such actions on its
behalf and to exercise such powers as are delegated to them by the terms of the
Loan Documents, together with such actions and powers as are reasonably
incidental thereto.
The bank serving as the Administrative Agent and Collateral Agent
shall have the same rights and powers in its capacity as a Lender as any other
Lender and may exercise the same as though it were not the Administrative Agent
or Collateral Agent, and such bank and its Affiliates may accept deposits from,
lend money to and generally engage in any kind of business with the Borrower or
any Subsidiary or other Affiliate thereof as if it were not the Administrative
Agent or Collateral Agent.
The Agents shall not have any duties or obligations except those
expressly set forth in the Loan Documents. Without limiting the generality of
the foregoing, (a) the Agents shall not be subject to any fiduciary or other
implied duties, regardless of whether a Default has occurred and is continuing,
(b) neither Agent shall have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers that,
under the terms of the Loan Documents, such Agent is required to exercise as
directed by the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances, as provided in Section
9.02), and (c) except as expressly set forth in the Loan Documents, the Agents
shall not have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to the Borrower or any of the Subsidiaries
that is communicated to or obtained by the bank serving as Administrative Agent
and Collateral Agent or any of its Affiliates in any capacity. Neither Agent
shall be liable for any action taken or not taken by it with the consent or at
the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
9.02) or in the absence of its own gross negligence or wilful misconduct.
Neither Agent shall be deemed to have knowledge of any Default unless and until
written notice thereof is given to such Agent by the Borrower or a Lender, and
neither Agent shall be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection
with any Loan Document, (ii) the contents of any certificate, report or other
document delivered thereunder or in connection therewith, (iii) the performance
or observance of any of the covenants, agreements or other terms or conditions
set forth in any Loan Document, (iv) the validity, enforceability,
effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document or (v) the satisfaction of any condition set forth in
Article IV or elsewhere in any Loan Document, other than to confirm receipt of
items expressly required to be delivered to such Agent.
Each Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. Each Agent also may rely
upon any statement made to it orally or by telephone and believed by it to be
made by the proper Person, and shall not incur any liability for relying
thereon. The Agents may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by them, and
shall not be liable for any action taken or not taken by them in accordance
with the advice of any such counsel, accountants or experts.
Each Agent may perform any and all its duties and exercise its rights
and powers by or through any one or more sub-agents appointed by it. Each Agent
and any such sub-agent may perform any and all its duties and exercise its
rights and powers through its respective Related Parties. The exculpatory
provisions of the preceding paragraphs shall apply to any such sub-agent and to
the Related Parties of the Agents and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent
and Collateral Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent
may resign at any time by notifying the Lenders, the Issuing Banks and the
Borrower. Upon any such resignation, the Required Lenders shall have the right,
in consultation with the Borrower, to appoint a successor; provided that such
consultation with the Borrower shall not be required if an Event of Default has
occurred and is continuing at the time of such appointment. If no successor
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within 30 days after the retiring Administrative Agent gives
notice of its resignation, then the retiring Administrative Agent may, on
behalf of the Lenders and the Issuing Bank, appoint a successor Administrative
Agent which shall be a bank with an office in New York, New York, or an
Affiliate of any such bank. Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such
successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 9.03 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Administrative Agent.
Subject to the appointment and acceptance of a successor Collateral
Agent as provided in this paragraph, the Collateral Agent may resign at any
time by notifying the Administrative Agent, the Lenders, the Issuing Banks and
the Borrower. Upon any such resignation, the Administrative Agent shall have
the right, in consultation with the Borrower, to appoint a successor. Upon the
acceptance of its appointment as Collateral Agent hereunder by a successor,
such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Collateral Agent, and the retiring
Collateral Agent shall be discharged from its duties and obligations hereunder.
After the Collateral Agent's resignation hereunder, the provisions of this
Article and Section 9.03 shall continue in effect for the benefit of such
retiring Collateral Agent, its sub-agents and their respective Related Parties
in respect of any actions taken or omitted to be taken by any of them while it
was acting as Collateral Agent.
Each Lender acknowledges that it has, independently and without
reliance upon either Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon either Agent or any other Lender
and based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any other Loan Document, any related
agreement or any document furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous
-------------
SECTION 9.01. Notices. (a) Except in the case of notices and other
communications expressly permitted to be given by telephone (and subject to
paragraph (b) below), all notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy, as
follows:
(i) if to the Borrower, to it at Xxx XxxxxxXxxxx Xxxxxxx, Xxxxxxxxxx,
XX 00000, Attention of Xxxx Xxxxxxx (Telecopy No. (000) 000-0000; Telephone
No. (000) 000-0000);
(ii) if to the Administrative Agent, to JPMorgan Chase Bank, N.A.,
JPMorgan Loan Services, 0000 Xxxxxx, 00xx Xxxxx, Xxxxxxx, XX 00000,
Attention of Xxxxxxx Xxxx (Telecopy No. (000) 000-0000; Telephone No. (713)
000-0000), with a copy to JPMorgan Chase Bank, N.A., 000 Xxxx Xxxxxx, Xxx
Xxxx 00000, Attention of Xxxx XxxXxx (Telecopy No. (000) 000-0000; Telephone
No. (000) 000-0000);
(iii) if to JPMorgan Chase Bank, N.A. in its capacity as an Issuing
Bank, to JPMorgan Chase Bank, N.A., Standby Letter of Credit Department,
00000 Xxxxxxxx Xxxxx Xxxxx, 0xx Xxxxx, Xxxxx, XX 00000, Attention of Xxxx
Xxxxxx (Telecopy No. (000) 000-0000; Telephone No. (000) 000-0000), with a
copy to JPMorgan Chase Bank, N.A., Loan and Agency Services Group, 0000
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxx, Attention of Xxxxxxx Xxxx (Telecopy No. (713)
000-0000; Telephone No. (000) 000-0000); and
(iv) if to any other Lender or Issuing Bank, to it at its address (or
telecopy number) set forth in its Administrative Questionnaire.
(b) Notices and other communications to the Lenders and Issuing Banks
hereunder may be delivered or furnished by electronic communications pursuant
to procedures approved by the Administrative Agent; provided that the foregoing
shall not apply to notices pursuant to Article II unless otherwise agreed by
the Administrative Agent and the applicable Lender or Issuing Bank. The
Administrative Agent or the Borrower may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it; provided that approval of such
procedures may be limited to particular notices or communications.
(c) Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the other parties
hereto. All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by either
Agent, any Issuing Bank or any Lender in exercising any right or power
hereunder or under any other Loan Document shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Agents, the Issuing Banks and
the Lenders hereunder and under the other Loan Documents are cumulative and are
not exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of this Agreement or any other Loan Document or consent
to any departure therefrom shall in any event be effective unless the same
shall be permitted by paragraph (b) of this Section, and then such waiver or
consent shall be effective only in the specific instance and for the purpose
for which given. Without limiting the generality of the foregoing, the making
of a Loan, funding of a Tranche B Deposit or issuance of a Letter of Credit
shall not be construed as a waiver of any Default, regardless of whether the
Administrative Agent, any Lender or any Issuing Bank may have had notice or
knowledge of such Default at the time.
(b) None of this Agreement, any Loan Document or any provision hereof
or thereof may be waived, amended or modified except pursuant to an agreement
or agreements in writing entered into by the Borrower and the Required Lenders
or by the Borrower and the Administrative Agent with the consent of the
Required Lenders or, in the case of any other Loan Document, pursuant to an
agreement or agreements in writing entered into by the Agent and the Loan Party
or Loan Parties that are parties thereto, in each case with the consent of the
Required Lenders; provided that no such agreement shall (i) increase the
Commitment of any Lender without the written consent of such Lender, (ii)
reduce or forgive the principal amount of any Loan or LC Disbursement or reduce
the rate of interest thereon, or reduce any fees payable hereunder, without the
written consent of each Lender affected thereby, (iii) postpone the maturity of
any Loan, the date on which any Tranche B Deposit is required to be returned to
any Tranche B LC Lender, or any date of scheduled payment of the principal
amount of any Term Loan under Section 2.09, or the required date of
reimbursement of any LC Disbursement, or any date for the payment of any
interest or fees payable hereunder, or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date of expiration of any
Commitment, or permit an Interest Period in excess of six months, without the
written consent of each Lender affected thereby, (iv) change Section 2.17(b) or
(c) in a manner that would alter the pro rata sharing of payments required
thereby without the written consent of each Lender, (v) change any of the
provisions of this Section or the percentage set forth in the definition of
"Required Lenders" or any other provision of any Loan Document specifying the
number or percentage of Lenders (or Lenders of any Class) required to waive,
amend or modify any rights thereunder or make any determination or grant any
consent thereunder without the written consent of each Lender (or each Lender
of such Class, as the case may be), (vi) release material Subsidiary Loan
Parties from their Guarantees under the Collateral and Guarantee Agreement
(except as expressly provided in Section 9.14), limit their liability in
respect of such Guarantees or amend Section 6.02 of the Collateral and
Guarantee Agreement, without the written consent of each Lender, (vii) release
all or substantially all the Collateral from the Liens of the Security
Documents without the written consent of each Lender or (viii) change any
provisions of any Loan Document in a manner that by its terms adversely affects
the rights in respect of collateral or payments due to Lenders holding Loans or
Commitments of any Class differently than those holding Loans or Commitments of
any other Class without the written consent of Lenders holding a majority in
interest of the outstanding Loans and unused Commitments of each adversely
affected Class; provided further that (A) no such agreement shall amend, modify
or otherwise affect the rights or duties of either Agent or any Issuing Bank
without the prior written consent of such Agent or Issuing Bank, as the case
may be, and (B) 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 Term Lenders or LC Lenders) or the Term Lenders (but not
the Revolving Lenders or LC Lenders) or the LC Lenders (but not the Revolving
Lenders or Term Lenders) or the Tranche A LC Lenders (but not the Tranche B LC
Lenders or the Lenders of any other Class) or the Tranche B LC Lenders (but not
the Tranche A LC Lenders or the Lenders of any other Class) may be effected by
an agreement or agreements in writing entered into by the Borrower and
requisite percentage in interest of the affected Class of Lenders that would be
required to consent thereto under this Section if such Class of Lenders were
the only Class of Lenders hereunder at the time. Notwithstanding the foregoing
or any other provision of this Agreement, any provision of this Agreement may
be amended by an agreement in writing entered into by the Borrower, the
Required Lenders and the Administrative Agent (and, if its rights or
obligations are affected thereby, each Issuing Bank) if (x) by the terms of
such agreement the Commitment of each Lender not consenting to the amendment
provided for therein shall terminate upon the effectiveness of such amendment
and (y) at the time such amendment becomes effective, each Lender not
consenting thereto receives payment in full of the principal of and interest
accrued on each Loan made by it and all other amounts owing to it or accrued
for its account under this Agreement.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower
shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent, the Collateral Agent, the Syndication Agent, the
Documentation Agent, the Co-Lead Arrangers and Joint Bookrunners named on the
cover page of this Agreement (who shall be third party beneficiaries of the
agreements contained in this Section 9.03) (collectively, the "Agent/Arranger
Parties") and their respective Affiliates, including the reasonable fees,
charges and disbursements of counsel for the Agents, in connection with the
syndication of the credit facilities provided for herein, the preparation and
administration of the Loan Documents or any amendments, modifications or
waivers of the provisions thereof (whether or not the transactions contemplated
hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket
expenses of any Issuing Bank, including the fees, charges and disbursements of
counsel, incurred by such Issuing Bank in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for
payment thereunder and (iii) all out-of-pocket expenses incurred by the
Administrative Agent, the Collateral Agent, any Issuing Bank or any Lender,
including the fees, charges and disbursements of any counsel for any such
Person, in connection with the enforcement or protection of its or their rights
in connection with this Agreement and the other Loan Documents, including its
or their rights under this Section, or in connection with the Loans made or
Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations.
(b) The Borrower shall indemnify each Agent/Arranger Party, each
Lender and each Issuing Bank and their respective Affiliates and each Related
Party of any of the foregoing Persons (each such Person being called an
"Indemnitee") against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including the fees,
charges and disbursements of any counsel for any Indemnitee, incurred by or
asserted against any Indemnitee arising out of, in connection with or as a
result of (i) the execution or delivery of any Loan Document or any agreement
or instrument contemplated hereby, the performance by the parties to the Loan
Documents of their respective obligations thereunder or the consummation of the
Transactions or any other transactions contemplated hereby or by any other Loan
Document, (ii) any Loan or Letter of Credit or the use of the proceeds thereof
(including any refusal by the Issuing Bank to honor a demand for payment under
a Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii) any actual
or alleged presence or release of Hazardous Materials on or from any property
owned or operated by the Borrower or any Subsidiary, or any Environmental
Liability related in any way to the Borrower or any Subsidiary, or (iv) any
actual or prospective claim, litigation, investigation or proceeding relating
to any of the foregoing (including any such claim, litigation, investigation or
proceeding brought by or on behalf of the Borrower or any of its Related
Parties), whether based on contract, tort or any other theory and regardless of
whether any Indemnitee is a party thereto; provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the
gross negligence or wilful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to any Agent/Arranger Party or Issuing Bank, or to any
Affiliate or Related Party of any such Person, under paragraph (a) or (b) of
this Section, each Lender severally agrees to pay to such Person such Lender's
Contribution Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided, that nothing in this paragraph shall require any Lender other than
the Tranche A LC Lenders or Tranche B LC Lenders, as applicable, to purchase
participations in unreimbursed LC Disbursements pursuant to Section 2.04(e) or
otherwise to make payments to any Issuing Bank in respect of unreimbursed LC
Disbursements.
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, (i) on any theory
of liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection with, or as
a result of, any Loan Document or any agreement or instrument contemplated
thereby, the Transactions, any Loan or Letter of Credit or the use of the
proceeds thereof or (ii) for any damages arising from the use by others of
Information or other materials obtained through electronic, telecommunications
or other information transmission systems.
(e) All amounts due under this Section shall be payable promptly after
written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of an Issuing Bank that issues any Letter of Credit), except that (i)
the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by the Borrower without such consent shall be
null and void) and (ii) no Lender may assign or otherwise transfer its rights
or obligations hereunder except in accordance with this Section. Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of any Issuing Bank that issues any
Letter of Credit), Participants (to the extent provided in paragraph (c) of
this Section) and Indemnitees and other Persons entitled to expense
reimbursement and indemnification under Section 9.03) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(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
Commitments and the Loans or Tranche B Deposits at the time owing to it); with
the prior written consent (such consent not to be unreasonably withheld or
delayed) of:
(A) the Borrower; provided that no consent of the Borrower shall be
required for an assignment to a Lender, an Affiliate of a Lender or an
Approved Fund (as defined below) or, if an Event of Default has occurred
and is continuing, to any other assignee;
(B) the Administrative Agent; provided that no consent of the
Administrative Agent shall be required for an assignment of a Term Loan or
portion thereof to a Lender, an Affiliate of a Lender or an Approved Fund;
and
(C) in the case of any assignment of an LC Commitment, each Issuing
Bank.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender or an Affiliate
of a Lender or an assignment of the entire remaining amount of the
assigning Lender's Commitment or Loans of any Class (which remaining
amount shall be deemed to include, for purposes of this clause, the
aggregate amount of Commitments and Loans of such Class held by any
Affiliate of the assigning Lender), the amount of the Commitment or Loans
of the assigning Lender subject to each such assignment (determined as of
the date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $5,000,000
or, in the case of a Term Loan, $1,000,000 unless each of the Borrower,
the Administrative Agent and the Issuing Bank otherwise consents, provided
that in the event of concurrent assignments to two or more assignees that
are Affiliates of one another, or to two or more Approved Funds managed by
the same investment advisor or by affiliated investment advisors, all such
concurrent assignments shall be aggregated in determining compliance with
this subsection and; provided, further that no consent of the Borrower
shall be required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement, provided that this clause shall not be construed to
prohibit the assignment of a proportionate part of all the assigning
Lender's rights and obligations in respect of one Class of Commitments or
Loans;
(C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500; provided that in the event of
concurrent assignments to two or more assignees that are Affiliates of one
another, or to two or more Approved Funds managed by the same investment
advisor or by affiliated investment advisors, only one such fee shall be
payable;
(D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire;
(E) in the case of an assignment by a Lender to a CLO (as defined
below) managed by such Lender or by an Affiliate of such Lender, unless
such assignment (or an assignment to a CLO managed by the same manager or
an Affiliate of such manager) shall have been approved by the Borrower
(the Borrower hereby agreeing that such approval, if requested, will not
be unreasonably withheld or delayed), the assigning Lender shall retain
the sole right to approve any amendment, modification or waiver of any
provision of this Agreement, except that the Assignment and Assumption
between such Lender and such CLO may provide that such Lender will not,
without the consent of such CLO, agree to any amendment, modification or
waiver described in the first proviso to Section 9.02(b) that affects such
CLO; and
(F) in connection with each assignment of a Tranche B Deposit, the
Tranche B Deposit of the assignor Tranche B LC Lender shall not be
released, but shall instead be purchased by the relevant assignee and
continue to be held for application (to the extent not already applied) in
accordance with Article II to satisfy such assignee's obligations in
respect of the LC Exposure. Each Tranche B LC Lender agrees that
immediately prior to each such assignment (i) the Administrative Agent
shall establish a new Sub-Account in the name of the assignee, (ii) a
corresponding portion of the Tranche B Deposit credited to the Sub-Account
of the assignor Tranche B LC Lender shall be purchased by the assignee and
shall be transferred from the assignor's Sub-Account to the assignee's
Sub-Account and (iii) if after giving effect to such assignment the
Tranche B Deposit of the assignor Tranche B LC Lender shall be zero, the
Administrative Agent shall close the Sub-Account of such assignor Tranche
B LC Lender.
For purposes of this Section 9.04(b), the terms "Approved Fund" and
"CLO" have the following meanings:
"Approved Fund" means (a) with respect to any Lender, a CLO managed by
such Lender or by an Affiliate of such Lender and (b) with respect to any
Lender that is a fund which invests in bank loans and similar extensions of
credit, any other fund that invests in bank loans and similar extensions of
credit and is managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"CLO" means any entity (whether a corporation, partnership,
trust or otherwise) that is engaged in making, purchasing, holding or otherwise
investing in bank loans and similar extensions of credit in the ordinary course
and is administered or managed by a Lender or an Affiliate of such Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date
specified in each Assignment and Assumption the assignee thereunder shall be
a party hereto and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of
the interest assigned by such Assignment and Assumption, be released from
its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 2.14, 2.15, 2.16 and
9.03). Any assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this Section 9.04 shall be treated
for purposes of this Agreement as a sale by such Lender of a participation
in such rights and obligations in accordance with paragraph (c) of this
Section.
(iv) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices a copy of each Assignment
and Assumption delivered to it and a register for the recordation of the
names and addresses of the Lenders, and the Commitment of, and principal
amount of the Loans and LC Disbursements owing to, each Lender pursuant to
the terms hereof from time to time (the "Register"). The entries in the
Register shall be conclusive, and the Borrower, the Administrative Agent,
the Issuing Bank and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder
for all purposes of this Agreement, notwithstanding notice to the contrary.
The Register shall be available for inspection by the Borrower, the Issuing
Bank and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b)
of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Assumption and record the information contained therein in
the Register. No assignment shall be effective for purposes of this
Agreement unless it has been recorded in the Register as provided in this
paragraph.
(c) (i) Any Lender may, without the consent of the Borrower, the
Administrative Agent or the Issuing Bank, sell participations to one or more
banks or other entities (a "Participant") in all or a portion of such Lender's
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided that (A) such Lender's
obligations under this Agreement shall remain unchanged, (B) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (C) the Borrower, the Administrative Agent, the Issuing
Bank and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant,
agree to any amendment, modification or waiver described in the first proviso
to Section 9.02(b) that affects such Participant. Subject to paragraph (c)(ii)
of this Section, the Borrower agrees that each Participant shall be entitled to
the benefits of Sections 2.14, 2.15 and 2.16 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section. To the extent permitted by applicable law, each Participant also
shall be entitled to the benefits of Section 9.08 as though it were a Lender,
provided such Participant agrees to be subject to Section 2.17(c) as though it
were a Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.14 or 2.16 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is
made with the Borrower's prior written consent. A Participant that would be
a Foreign Lender if it were a Lender shall not be entitled to the benefits
of Section 2.16 unless the Borrower is notified of the participation sold to
such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 2.16(e) as though it were a Lender.
(d) Any Lender may, without the consent of the Borrower or the
Administrative Agent, at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of
such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment
of a security interest shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a
party hereto.
SECTION 9.05. Survival. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans and issuance of any Letters of Credit, regardless of any investigation
made by any such other party or on its behalf and notwithstanding that any
Agent, Issuing Bank or Lender may have had notice or knowledge of any Default
or incorrect representation or warranty at the time any credit is extended
hereunder, and shall continue in full force and effect as long as the principal
of or any accrued interest on any Loan or any fee or any other amount payable
under this Agreement is outstanding and unpaid or any Letter of Credit is
outstanding and so long as the Commitments have not expired or terminated. The
provisions of Sections 2.14, 2.15, 2.16 and 9.03 and Article VIII shall survive
and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the return of the
Tranche B Deposits, the expiration or termination of the Letters of Credit and
the Commitments or the termination of this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement
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. This Agreement and the
other Loan Documents constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof, except
that the provisions of any commitment and fee letters between the Borrower and
the other Persons serving as Agents or named on the cover page of this
Agreement shall continue in full force and effect and shall not be superseded
hereby. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof that, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted
by law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any
time owing by such Lender or Affiliate to or for the credit or the account of
the Borrower against any of and all the obligations of the Borrower now or
hereafter existing under this Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured. The rights of each Lender under
this Section are in addition to other rights and remedies (including other
rights of setoff) which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
Process.
(a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to any
Loan Document, or for recognition or enforcement of any judgment, and each of
the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent permitted by applicable law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
applicable law. Nothing in this Agreement or any other Loan Document shall
affect any right that the Administrative Agent, the Issuing Bank or any Lender
may otherwise have to bring any action or proceeding relating to this Agreement
or any other Loan Document against the Borrower or its properties in the courts
of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to any Loan Document in any court referred to in
paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by applicable law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by applicable law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. The Administrative Agent, each Issuing
Bank and each Lender agrees to maintain the confidentiality of the Information
(as defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) in connection with the exercise of
any remedies hereunder or any suit, action or proceeding relating to this
Agreement or any other Loan Document or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations
under this Agreement or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the Borrower and
its obligations, (g) with the consent of the Borrower or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach
of this Section or (ii) becomes available to the Administrative Agent, any
Issuing Bank or any Lender on a nonconfidential basis from a source other than
the Borrower. For the purposes of this Section, "Information" means all
information received from the Borrower relating to the Borrower or its
business, other than any such information that is available to the
Administrative Agent, any Issuing Bank or any Lender on a nonconfidential basis
prior to disclosure by the Borrower; provided that, in the case of information
received from the Borrower after the Amendment Effective Date, such information
is clearly identified at the time of delivery as confidential. Any Person
required to maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do so if
such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
SECTION 9.13. Additional Agents. None of the Lenders or other entities
identified on the facing page of, signature pages of or elsewhere in this
Agreement as a Syndication Agent, Documentation Agent, Joint Bookrunner or
Co-Lead Arranger shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all
Lenders as such. Without limiting the foregoing, none of the Lenders so
identified shall have or be deemed to have any fiduciary relationship with any
other Lender. Each Lender acknowledges that it has not relied, and will not
rely, on any of the Lenders or other entities so identified in deciding to
enter into this Agreement or in taking or not taking action hereunder.
SECTION 9.14. Release of Subsidiary Loan Parties and Collateral. (a)
Notwithstanding any contrary provision herein or in any other Loan Document
(but subject to the proviso in the definition of "Credit Support
Subsidiaries"), (i) upon (A) any sale or other transfer in the ordinary course
of business by the Borrower or any Subsidiary of any Collateral consisting of
inventory or used, surplus, obsolete or outmoded machinery or equipment, (B)
the distribution of any Collateral to a Person other than the Borrower or a
Subsidiary in connection with the dissolution of any Subsidiary, in each case
in accordance with this Agreement or (C) the effectiveness of any written
consent (pursuant to Section 9.02) to the release of all or any portion of the
security interest granted in any Collateral, the security interest in such
Collateral shall automatically be released and (ii) if the Borrower shall
request the release under the Collateral and Guarantee Agreement or any other
Security Document of any Subsidiary or any Collateral to be sold or otherwise
disposed of (including through the sale or disposition of any Subsidiary owning
any such Subsidiary or Collateral or resulting from the dissolution of a
Subsidiary) to a Person other than the Borrower or a Subsidiary in a
transaction permitted under the terms of this Agreement and not described in
the immediately preceding clause (i), the Borrower shall deliver to the
Administrative Agent a certificate executed by a Financial Officer to the
effect that such sale or other disposition (and any dissolution relating
thereto) and the application of the proceeds thereof will comply with the terms
of this Agreement, and the Administrative Agent, if satisfied that such
certificate is correct, shall, without the consent of any Lender, execute and
deliver all such instruments, releases, financing statements or other
agreements, and take all such further actions, as shall be necessary to
effectuate the release of such Subsidiary or such Collateral substantially
simultaneously with or at any time after the completion of such sale or other
disposition. Any such release shall be without recourse to, or representation
or warranty by, the Administrative Agent and shall not require the consent of
any Lender. The Administrative Agent shall execute and deliver all such
instruments, releases, financing statements or other agreements, and take all
such further actions, as shall be necessary to effectuate the release of a
Subsidiary or Collateral required by this paragraph.
(b) Without limiting the provisions of Section 9.03, the Borrower
shall reimburse the Collateral Agent for all costs and expenses, including
attorneys' fees and disbursements, incurred by it in connection with any action
contemplated by this Section 9.14.
SECTION 9.15. Patriot Act. Each Lender hereby notifies the Borrower
that pursuant to the requirements of the USA Patriot Act, it is required to
obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information
that will allow such Lender to identify the Borrower in accordance with the USA
Patriot Act. The Borrower shall promptly, following a request by the
Administrative Agent or any Lender, provide all documentation and other
information that the Administrative Agent or such Lender reasonably requests in
order to comply with its ongoing obligations under applicable "know your
customer" and anti-money laundering rules and regulations, including the USA
Patriot Act.
SECTION 9.16. Waiver of Defaults Existing Prior to Amendment Effective
Date. The execution of this Agreement by all of the Lenders shall constitute a
waiver of all defaults under the Existing Credit Agreement that are outstanding
immediately prior to the execution of this Agreement; provided, that such
waiver shall not be deemed to constitute a waiver of any default under this
Agreement, including any cross-default that continues after the Amendment
Effective Date.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
HEALTHSOUTH CORPORATION,
By /s/ Xxxx Xxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
JPMORGAN CHASE BANK, N.A., individually
and as Administrative Agent and
Collateral Agent
By /s/ Xxxx Xxx Xxx
-----------------------------------
Name: Xxxx Xxx Xxx
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION,
individually and as Syndication Agent
By /s/ Xxxxx XxXxx
-----------------------------------
Name: Xxxxx XxXxx
Title: Vice President
DEUTSCHE BANK TRUST COMPANY AMERICAS, as
Documentation Agent
By /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
