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EXHIBIT 10.2
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CREDIT AGREEMENT
AMONG
IASIS HEALTHCARE CORPORATION,
VARIOUS LENDERS,
J.P. MORGAN SECURITIES INC.
AND
THE BANK OF NOVA SCOTIA,
AS CO-LEAD ARRANGERS AND CO-BOOK RUNNERS,
PARIBAS,
AS DOCUMENTATION AGENT,
THE BANK OF NOVA SCOTIA,
AS SYNDICATION AGENT
AND
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
AS ADMINISTRATIVE AGENT
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DATED AS OF OCTOBER 15, 1999
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$455,000,000
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TABLE OF CONTENTS
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SECTION 1. Amount and Terms of Credit.................................... 1
1.01 The Commitments................................................ 1
1.02 Minimum Amount of Each Borrowing; Limitation on Number
of Borrowings................................................ 4
1.03 Notice of Borrowing............................................ 4
1.04 Disbursement of Funds.......................................... 5
1.05 Notes.......................................................... 6
1.06 Conversions.................................................... 8
1.07 Pro Rata Borrowings............................................ 8
1.08 Interest....................................................... 8
1.09 Interest Periods............................................... 9
1.10 Increased Costs, Illegality, etc. ............................. 10
1.11 Compensation................................................... 13
1.12 Change of Lending Office....................................... 13
1.13 Replacement of Lenders......................................... 13
SECTION 2. Letters of Credit............................................. 15
2.01 Letters of Credit.............................................. 15
2.02 Letter of Credit Requests, etc. ............................... 17
2.03 Letter of Credit Participations................................ 17
2.04 Agreement to Repay Letter of Credit Drawings................... 19
2.05 Increased Costs................................................ 20
SECTION 3. Commitment Commission; Fees; Reductions of Commitment......... 21
3.01 Fees........................................................... 21
3.02 Voluntary Termination or Reduction of Unutilized Revolving
Loan Commitments............................................. 22
3.03 Mandatory Reduction of Commitments............................. 22
SECTION 4. Prepayments; Payments; Taxes.................................. 23
4.01 Voluntary Prepayments.......................................... 23
4.02 Mandatory Repayments and Commitment Reductions................. 25
4.03 Method and Place of Payment.................................... 31
4.04 Net Payments; Taxes............................................ 31
SECTION 5. Conditions Precedent to Loans................................. 33
5.01 Execution of Agreement; Notes.................................. 33
5.02 Fees, etc. .................................................... 33
5.03 Opinions of Counsel............................................ 33
5.04 Corporate Documents; Proceedings; etc. ........................ 34
(i)
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Page
5.05 Employee Benefit Plans; Shareholders' Agreements;
Management Agreements; Debt Agreements; Tax Sharing
Agreements; Employment Agreements; Collective Bargaining
Agreements and Material Contracts............................. 34
5.06 Consummation of the Transaction............................... 36
5.07 Refinancing; Existing Indebtedness............................ 36
5.08 Guaranties.................................................... 37
5.09 Pledge Agreement; Hypothecation Agreement..................... 37
5.10 Security Agreement............................................ 38
5.11 Mortgages; Title Insurance; Surveys; etc. .................... 38
5.12 Material Adverse Change, etc. ................................ 39
5.13 Litigation.................................................... 40
5.14 Solvency Certificate; Insurance............................... 40
5.15 Pro Forma Balance Sheet; Financial Statements; Projections.... 40
SECTION 6. Conditions Precedent to All Credit Events.................... 40
6.01 No Default; Representations and Warranties.................... 40
6.02 Notice of Borrowing; Letter of Credit Request................. 41
SECTION 7. Representations, Warranties and Agreements................... 41
7.01 Corporate Status.............................................. 41
7.02 Corporate Power and Authority................................. 41
7.03 No Violation.................................................. 42
7.04 Governmental Approvals........................................ 42
7.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; Projections; etc. ............................... 42
7.06 Litigation.................................................... 44
7.07 True and Complete Disclosure.................................. 44
7.08 Use of Proceeds; Margin Regulations........................... 44
7.09 Tax Returns and Payments...................................... 45
7.10 Compliance with ERISA......................................... 45
7.11 The Security Documents........................................ 46
7.12 Representations and Warranties in Other Documents............. 47
7.13 Properties.................................................... 47
7.14 Capitalization................................................ 48
7.15 Subsidiaries.................................................. 48
7.16 Compliance with Statutes, etc. ............................... 48
7.17 Investment Company Act........................................ 49
7.18 Public Utility Holding Company Act............................ 49
7.19 Environmental Matters......................................... 49
7.20 Labor Relations............................................... 49
7.21 Patents, Licenses, Franchises and Formulas.................... 50
7.22 Indebtedness.................................................. 50
7.23 Transaction................................................... 50
7.24 Year 2000 Compliance.......................................... 50
7.25 Subordination................................................. 51
(ii)
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SECTION 8. Affirmative Covenants............................................ 51
8.01 Information Covenants........................................... 51
8.02 Books, Records and Inspections.................................. 54
8.03 Maintenance of Property; Insurance.............................. 54
8.04 Corporate Franchises............................................ 55
8.05 Compliance with Statutes, etc. ................................. 55
8.06 Compliance with Environmental Laws.............................. 55
8.07 ERISA........................................................... 56
8.08 End of Fiscal Years; Fiscal Quarters............................ 57
8.09 Payment of Taxes................................................ 57
8.10 Ownership of Subsidiaries....................................... 57
8.11 Additional Security; Further Assurances; Surveys................ 58
8.12 Permitted Acquisitions.......................................... 60
8.13 Foreign Subsidiaries Security................................... 61
8.14 Year 2000 Compliance............................................ 62
8.15 Pioneer Valley.................................................. 62
SECTION 9. Negative Covenants............................................... 63
9.01 Liens........................................................... 63
9.02 Consolidation, Merger, Acquisitions or Sale of Assets, etc. .... 66
9.03 Dividends....................................................... 68
9.04 Indebtedness.................................................... 69
9.05 Advances, Investments and Loans................................. 71
9.06 Transactions with Affiliates.................................... 73
9.07 Capital Expenditures............................................ 74
9.08 Consolidated Interest Coverage Ratio............................ 75
9.09 Maximum Leverage Ratio.......................................... 76
9.10 Fixed Charge Coverage Ratio..................................... 77
9.11 Limitation on Modifications of Indebtedness; Modifications of
Certificate of Incorporation, By-Laws and Certain
Other Agreements; etc. ...................................... 78
9.12 Limitation on Certain Restrictions on Subsidiaries.............. 79
9.13 Limitation on Issuance of Capital Stock......................... 79
9.14 Limitation on Creation of Subsidiaries and Joint Ventures....... 80
9.15 Business........................................................ 80
9.16 Designated Senior Debt.......................................... 80
9.17 St. Luke's Lease................................................ 80
SECTION 10. Events of Default............................................... 80
10.01 Payments........................................................ 81
10.02 Representations, etc. .......................................... 81
10.03 Covenants....................................................... 81
10.04 Default Under Other Agreements.................................. 81
10.05 Bankruptcy, etc. ............................................... 81
10.06 ERISA........................................................... 82
(iii)
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10.07 Security Documents......................................... 82
10.08 Guaranties................................................. 83
10.09 Judgments.................................................. 83
10.10 Change of Control.......................................... 83
10.11 St. Luke's Lease........................................... 83
SECTION 11. Definitions and Accounting Terms.......................... 84
11.01 Defined Terms.............................................. 84
SECTION 12. Administrative Agent...................................... 119
12.01 Appointment................................................ 119
12.02 Nature of Duties........................................... 119
12.03 Lack of Reliance on the Administrative Agent............... 120
12.04 Certain Rights of the Administrative Agent................. 120
12.05 Reliance................................................... 121
12.06 Indemnification............................................ 121
12.07 Administrative Agent in Its Individual Capacity............ 121
12.08 Holders.................................................... 121
12.09 Resignation by the Administrative Agent.................... 122
12.10 Delegation of Duties....................................... 122
12.11 Exculpatory Provisions..................................... 122
12.12 Notice of Default.......................................... 123
12.13 Special Provisions Regarding the Co-Lead Arrangers......... 123
SECTION 13. Miscellaneous............................................. 123
13.01 Payment of Expenses, etc. ................................. 123
13.02 Right of Setoff............................................ 124
13.03 Notices.................................................... 125
13.04 Benefit of Agreement....................................... 125
13.05 No Waiver; Remedies Cumulative............................. 127
13.06 Payments Pro Rata.......................................... 127
13.07 Calculations; Computations................................. 128
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE;
WAIVER OF JURY TRIAL.................................... 129
13.09 Counterparts............................................... 130
13.10 Effectiveness.............................................. 130
13.11 Headings Descriptive....................................... 130
13.12 Amendment or Waiver; etc. ................................. 130
13.13 Survival................................................... 132
13.14 Domicile of Loans.......................................... 132
13.15 Confidentiality............................................ 132
13.16 Register................................................... 133
(iv)
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SCHEDULES
SCHEDULE I - COMMITMENTS
SCHEDULE II - LENDER ADDRESSES
SCHEDULE III - REAL PROPERTY
SCHEDULE IV - EXISTING LIENS
SCHEDULE V.A - EXISTING INDEBTEDNESS
SCHEDULE V.B - INDEBTEDNESS TO BE REFINANCED
SCHEDULE VI - SUBSIDIARIES
SCHEDULE VII - PROJECTIONS
SCHEDULE VIII - POST-CLOSING DELIVERIES
SCHEDULE IX - EXISTING LETTERS OF CREDIT
SCHEDULE X - EXISTING INVESTMENTS
SCHEDULE XI - DIRECT INVESTORS
SCHEDULE XII - JLL HEALTH CARE INVESTORS
SCHEDULE XIII - AFFILIATE TRANSACTIONS
EXHIBITS
EXHIBIT A Form of Notice of Borrowing
EXHIBIT B-1 Form of Tranche A Term Note
EXHIBIT B-2 Form of Tranche B Term Note
EXHIBIT B-3 Form of Revolving Note
EXHIBIT B-4 Form of Swingline Note
EXHIBIT C Form of Letter of Credit Request
EXHIBIT D Form of Section 4.04(b)(ii) Certificate
EXHIBIT E Form of Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
EXHIBIT F Form of Officer's Certificate
EXHIBIT G Form of Subsidiaries Guaranty
EXHIBIT H Form of Pledge Agreement
EXHIBIT I Form of Hypothecation Agreement
EXHIBIT J Form of Security Agreement
EXHIBIT K Form of Solvency Certificate
EXHIBIT L Form of Assignment and Assumption Agreement
EXHIBIT M Form of Subordination Provisions
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CREDIT AGREEMENT, dated as of October 15, 1999, among IASIS
HEALTHCARE CORPORATION, a Delaware corporation (the "Borrower"), the Lenders
party hereto from time to time, J.P. MORGAN SECURITIES INC. and THE BANK OF NOVA
SCOTIA, as Co-Lead Arrangers (in such capacity, each a "Co-Lead Arranger" and,
collectively, the "Co-Lead Arrangers") and Co-Book Runners, PARIBAS, as
Documentation Agent (in such capacity, the "Documentation Agent"), THE BANK OF
NOVA SCOTIA, as Syndication Agent (in such capacity, the "Syndication Agent")
and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as Administrative Agent (in such
capacity, the "Administrative Agent") (all capitalized terms used herein and
defined in Section 11 are used herein as therein defined).
W I T N E S S E T H :
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
1.01 The Commitments. (a) Subject to and upon the terms and
conditions set forth herein, each Lender with a Tranche A Term Loan Commitment
severally agrees to make, on the Initial Borrowing Date, a term loan (each, a
"Tranche A Term Loan" and, collectively, the "Tranche A Term Loans") to the
Borrower, which Tranche A Term Loans (i) except as hereafter provided, shall be
made and initially maintained as a single Borrowing of Base Rate Loans and after
the fifth Business Day following the Initial Borrowing Date, shall, at the
option of the Borrower, be maintained as, and/or converted into, Base Rate Loans
or Eurodollar Loans, provided, that (x) except as otherwise specifically
provided in Section 1.10(b), all Tranche A Term Loans made as part of the same
Borrowing shall at all times consist of Tranche A Term Loans of the same Type
and (y) unless the Syndication Date has occurred (at which time this clause (y)
shall no longer be applicable), no more than three Borrowings of Tranche A Term
Loans to be maintained as Eurodollar Loans may be incurred prior to the 90th day
after the Initial Borrowing Date (or, if later, the last day of the Interest
Period applicable to the third Borrowing of Eurodollar Loans referred to below),
each of which Borrowings of Eurodollar Loans may only have an Interest Period of
one month, and the first of which Borrowings may only be made on or after the
fifth Business Day after the Initial Borrowing Date and on or prior to the
seventh Business Day after the Initial Borrowing Date, the second of which
Borrowings may only be made on the last day of the Interest Period of the first
such Borrowing and the third of which Borrowings may only be made on the last
day of the Interest Period of the second such Borrowing and (ii) shall be made
by each Lender in that initial aggregate principal amount as is equal to the
Tranche A Term Loan Commitment of such Lender on such date (before giving effect
to any reductions thereto on such date pursuant to Section 3.03(b)(i) but after
giving effect to any reductions thereto on or prior to such date pursuant to
Section 3.03(b)(ii)). Once repaid, Tranche A Term Loans incurred hereunder may
not be reborrowed.
(b) Subject to and upon the terms and conditions set forth
herein, each Lender with a Tranche B Term Loan Commitment severally agrees to
make, on the Initial Borrowing Date, a term loan (each, a "Tranche B Term Loan"
and, collectively, the "Tranche B Term
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Loans") to the Borrower, which Tranche B Term Loans (i) except as hereafter
provided, shall be made and initially maintained as a single Borrowing of Base
Rate Loans and after the fifth Business Day following the Initial Borrowing
Date, shall, at the option of the Borrower, be maintained as, and/or converted
into, Base Rate Loans or Eurodollar Loans, provided, that (x) except as
otherwise specifically provided in Section 1.10(b), all Tranche B Term Loans
made as part of the same Borrowing shall at all times consist of Tranche B Term
Loans of the same Type and (y) unless the Syndication Date has occurred (at
which time this clause (y) shall no longer be applicable), no more than three
Borrowings of Tranche B Term Loans to be maintained as Eurodollar Loans may be
incurred prior to the 90th day after the Initial Borrowing Date (or, if later,
the last day of the Interest Period applicable to the third Borrowing of
Eurodollar Loans referred to below), each of which Borrowings of Eurodollar
Loans may only have an Interest Period of one month, and the first of which
Borrowings may only be made on the same date as the initial Borrowing of Tranche
A Term Loans that are maintained as Eurodollar Loans, the second of which
Borrowings may only be made on the last day of the Interest Period of the first
such Borrowing and the third of which Borrowings may only be made on the last
day of the Interest Period of the second such Borrowing and (ii) shall be made
by each Lender in that initial aggregate principal amount as is equal to the
Tranche B Term Loan Commitment of such Lender on such date (before giving effect
to any reductions thereto on such date pursuant to Section 3.03(c)(i) but after
giving effect to any reductions thereto on or prior to such date pursuant to
Section 3.03(c)(ii)). Once repaid, Tranche B Term Loans incurred hereunder may
not be reborrowed.
(c) Subject to and upon the terms and conditions set forth
herein, each Lender with a Revolving Loan Commitment severally agrees, at any
time and from time to time on and after the Initial Borrowing Date and prior to
the Revolving Loan Maturity Date, to make a revolving loan or revolving loans
(each, a "Revolving Loan" and, collectively, the "Revolving Loans") to the
Borrower, which Revolving Loans (i) except as hereafter provided, shall, at the
option of the Borrower, be incurred and maintained as, and/or converted into,
Base Rate Loans or Eurodollar Loans, provided, that (x) except as otherwise
specifically provided in Section 1.10(b), all Revolving Loans made as part of
the same Borrowing shall at all times consist of Revolving Loans of the same
Type and (y) unless the Syndication Date has occurred (at which time this clause
(y) shall no longer be applicable), no more than three Borrowings of Revolving
Loans to be maintained as Eurodollar Loans may be incurred prior to the 90th day
after the Initial Borrowing Date (or, if later, the last day of the Interest
Period applicable to the third Borrowing of Eurodollar Loans referred to below),
each of which Borrowings of Eurodollar Loans may only have an Interest Period of
one month, and the first of which Borrowings may only be made on the same date
as the initial Borrowing of Tranche A Term Loans that are maintained as
Eurodollar Loans, the second of which Borrowings may only be made on the last
day of the Interest Period of the first such Borrowing and the third of which
Borrowings may only be made on the last day of the Interest Period of the second
such Borrowing, (ii) may be repaid and reborrowed in accordance with the
provisions hereof, (iii) shall not exceed for any Lender at any time outstanding
that aggregate principal amount which, when added to the product of (x) such
Lender's Adjusted Percentage and (y) the sum of (I) the aggregate amount of all
Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid
with the proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Revolving Loans) at such time and
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(II) the aggregate principal amount of all Swingline Loans (exclusive of
Swingline Loans which are repaid with the proceeds of, and simultaneously with
the incurrence of, the respective incurrence of Revolving Loans) then
outstanding, equals the Revolving Loan Commitment of such Lender at such time
and (iv) shall not exceed for all Lenders at any time outstanding that aggregate
principal amount which, when added to (x) the amount of all Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds
of, and simultaneously with the incurrence of, the respective incurrence of
Revolving Loans) at such time, and (y) the aggregate principal amount of all
Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds
of, and simultaneously with the incurrence of, the respective incurrence of
Revolving Loans) then outstanding, equals the Total Revolving Loan Commitment at
such time.
(d) Subject to and upon the terms and conditions herein set
forth, the Swingline Lender in its individual capacity agrees to make at any
time and from time to time on and after the Initial Borrowing Date and prior to
the Swingline Expiry Date, a revolving loan or revolving loans (each, a
"Swingline Loan" and, collectively, the "Swingline Loans") to the Borrower,
which Swingline Loans (i) shall be made and maintained as Base Rate Loans, (ii)
may be repaid and reborrowed in accordance with the provisions hereof, (iii)
shall not exceed in aggregate principal amount at any time outstanding, when
added to (x) the aggregate principal amount of all Revolving Loans made by
Non-Defaulting Lenders then outstanding and (y) the Letter of Credit
Outstandings at such time, an amount equal to the Adjusted Total Revolving Loan
Commitment at such time (after giving effect to any reductions to the Adjusted
Total Revolving Loan Commitment on such date), (iv) shall not exceed at any time
outstanding the Maximum Swingline Amount and (v) shall not be extended if the
Swingline Lender receives a written notice from the Administrative Agent or the
Required Lenders that has not been rescinded that there is a Default or an Event
of Default in existence hereunder.
(e) On any Business Day, the Swingline Lender may, in its sole
discretion, give notice to the other Lenders that its outstanding Swingline
Loans shall be funded with a Borrowing of Revolving Loans (provided that such
notice shall be deemed to have been automatically given upon the occurrence of a
Default or an Event of Default under Section 10.05 or upon the exercise of any
of the remedies provided in the last paragraph of Section 10), in which case a
Borrowing of Revolving Loans constituting Base Rate Loans (each such Borrowing,
a "Mandatory Borrowing") shall be made on the immediately succeeding Business
Day by all Lenders with a Revolving Loan Commitment (without giving effect to
any termination thereof pursuant to the last paragraph of Section 10) pro rata
based on each Lender's Adjusted Percentage (determined before giving effect to
any termination of the Revolving Loan Commitments pursuant to the last paragraph
of Section 10) and the proceeds thereof shall be paid directly to the Swingline
Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each
such Lender hereby irrevocably agrees to make Revolving Loans upon one Business
Day's notice pursuant to each Mandatory Borrowing in the amount and in the
manner specified in the preceding sentence and on the date specified in writing
by the Swingline Lender notwithstanding (i) that the amount of the Mandatory
Borrowing may not comply with the minimum amount for Borrowings otherwise
required hereunder, (ii) whether any conditions specified in Section 6 are then
satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the
date of such Mandatory Borrowing and (v) the amount of the Total Revolving Loan
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Commitment or the Adjusted Total Revolving Loan Commitment at such time. In the
event that any Mandatory Borrowing cannot for any reason be made on the date
otherwise required above (including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code with respect to the
Borrower), then each such Lender hereby agrees that it shall forthwith purchase
(as of the date the Mandatory Borrowing would otherwise have occurred, but
adjusted for any payments received from the Borrower on or after such date and
prior to such purchase) from the Swingline Lender such participations in the
outstanding Swingline Loans as shall be necessary to cause such Lenders to share
in such Swingline Loans ratably based upon their respective Adjusted Percentages
(determined before giving effect to any termination of the Revolving Loan
Commitments pursuant to the last paragraph of Section 10), provided that (x) all
interest payable on the Swingline Loans shall be for the account of the
Swingline Lender until the date as of which the respective participation is
required to be purchased and, to the extent attributable to the purchased
participation, shall be payable to the participant from and after such date and
(y) at the time any purchase of participations pursuant to this sentence is
actually made, the purchasing Lender shall be required to pay the Swingline
Lender interest on the principal amount of participation purchased for each day
from and including the day upon which the Mandatory Borrowing would otherwise
have occurred to but excluding the date of payment for such participation, at
the overnight Federal Funds Rate for the first three days and at the rate
otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder
for each day thereafter.
1.02 Minimum Amount of Each Borrowing; Limitation on Number of
Borrowings. The aggregate principal amount of each Borrowing of Loans shall not
be less than the Minimum Borrowing Amount applicable thereto; provided that
Mandatory Borrowings shall be made in the amounts required by Section 1.01(e).
More than one Borrowing may be incurred on the same date, but at no time shall
there be outstanding more than 10 Borrowings of Eurodollar Loans in the
aggregate under all Tranches.
1.03 Notice of Borrowing. (a) Whenever the Borrower desires to
make a Borrowing hereunder (excluding Borrowings of Swingline Loans and
Mandatory Borrowings), it shall give the Administrative Agent at its Notice
Office at least one Business Day's prior written notice (or telephonic notice
promptly confirmed in writing) of each Base Rate Loan and at least three
Business Days' prior written notice (or telephonic notice promptly confirmed in
writing) of each Eurodollar Loan to be made hereunder, provided that any such
notice shall be deemed to have been given on a certain day only if given before
12:00 Noon (New York time). Each such written notice or written confirmation of
telephonic notice (each, a "Notice of Borrowing"), except as otherwise expressly
provided in Section 1.10, shall be irrevocable and shall be given by the
Borrower in the form of Exhibit A, appropriately completed to specify: (i) the
aggregate principal amount of the Loans to be made pursuant to such Borrowing,
(ii) the date of such Borrowing (which shall be a Business Day), (iii) whether
the Loans being made pursuant to such Borrowing shall constitute Tranche A Term
Loans, Tranche B Term Loans or Revolving Loans and (iv) whether the Loans being
made pursuant to such Borrowing are to be initially maintained as Base Rate
Loans or Eurodollar Loans and, if Eurodollar Loans, the initial Interest Period
to be applicable thereto. The Administrative Agent shall promptly give each
Lender which is required to make Loans of the Tranche specified in the
respective Notice of Borrowing, notice of such
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proposed Borrowing, of such Lender's proportionate share thereof and of the
other matters required by the immediately preceding sentence to be specified in
the Notice of Borrowing.
(b) (i) Whenever the Borrower desires to make a Borrowing of
Swingline Loans hereunder, it shall give the Swingline Lender not later than
12:00 Noon (New York time) on the date that a Swingline Loan is to be made,
written notice (or telephonic notice promptly confirmed in writing) of each
Swingline Loan to be made hereunder. Each such notice shall be irrevocable and
specify in each case (A) the date of Borrowing (which shall be a Business Day)
and (B) the aggregate principal amount of the Swingline Loans to be made
pursuant to such Borrowing.
(ii) Mandatory Borrowings shall be made upon the notice specified
in Section 1.01(e), with the Borrower irrevocably agreeing, by its incurrence of
any Swingline Loan, to the making of the Mandatory Borrowings as set forth in
Section 1.01(e).
(c) Without in any way limiting the obligation of the Borrower to
confirm in writing any telephonic notice of any Borrowing of Loans, the
Administrative Agent or the Swingline Lender, as the case may be, may act
without liability upon the basis of telephonic notice of such Borrowing,
believed by the Administrative Agent or the Swingline Lender, as the case may
be, in good faith to be from an Authorized Officer of the Borrower prior to
receipt of written confirmation. In each such case, the Borrower hereby waives
the right to dispute the Administrative Agent's and the Swingline Lender's
record of the terms of such telephonic notice of such Borrowing of Loans, absent
manifest error.
1.04 Disbursement of Funds. Except as otherwise specifically
provided in the immediately succeeding sentence, no later than 1:00 P.M. (New
York time) on the date specified in each Notice of Borrowing (or (x) in the case
of Swingline Loans, not later than 1:00 P.M. (New York time) on the date
specified pursuant to Section 1.03(b)(i) or (y) in the case of Mandatory
Borrowings, not later than 1:00 P.M. (New York time) on the date specified in
Section 1.01(e)), each Lender with a Commitment of the respective Tranche will
make available its pro rata portion of each such Borrowing requested to be made
on such date (or in the case of Swingline Loans, the Swingline Lender shall make
available the full amount thereof). All such amounts shall be made available in
Dollars and in immediately available funds at the Payment Office of the
Administrative Agent, and, except in the case of Mandatory Borrowings, the
Administrative Agent will make available to the Borrower at the Payment Office
the aggregate of the amounts so made available by the Lenders (for Loans other
than Swingline Loans, prior to 3:00 P.M. (New York time) on such day, to the
extent of funds actually received by the Administrative Agent prior to 1:00 P.M.
(New York time) on such day). Unless the Administrative Agent shall have been
notified by any Lender prior to the date of Borrowing that such Lender does not
intend to make available to the Administrative Agent such Lender's portion of
any Borrowing to be made on such date, the Administrative Agent may assume that
such Lender has made such amount available to the Administrative Agent on such
date of Borrowing and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. If such
corresponding amount is not in fact made available to the Administrative Agent
by such Lender, the Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender. If such Lender does not pay
such
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corresponding amount forthwith upon the Administrative Agent's demand therefor,
the Administrative Agent shall promptly notify the Borrower and the Borrower
shall immediately pay such corresponding amount to the Administrative Agent. The
Administrative Agent shall also be entitled to recover on demand from such
Lender or the Borrower, as the case may be, interest on such corresponding
amount in respect of each day from the date such corresponding amount was made
available by the Administrative Agent to the Borrower until the date such
corresponding amount is recovered by the Administrative Agent, at a rate per
annum equal to (i) if recovered from such Lender, at the overnight Federal Funds
Rate and (ii) if recovered from the Borrower, the rate of interest applicable to
the respective Borrowing, as determined pursuant to Section 1.08. Nothing in
this Section 1.04 shall be deemed to relieve any Lender from its obligation to
make Loans hereunder or to prejudice any rights which the Borrower may have
against any Lender as a result of any failure by such Lender to make Loans
hereunder.
1.05 Notes. (a) The Borrower's obligation to pay the principal
of, and interest on, the Loans made by each Lender shall, if requested by such
Lender, be evidenced (i) if Tranche A Term Loans, by a promissory note duly
executed and delivered by the Borrower substantially in the form of Exhibit B-1
with blanks appropriately completed in conformity herewith (each, a "Tranche A
Term Note" and, collectively, the "Tranche A Term Notes"), (ii) if Tranche B
Term Loans, by a promissory note duly executed and delivered by the Borrower
substantially in the form of Exhibit B-2, with blanks appropriately completed in
conformity herewith (each, a "Tranche B Term Note" and, collectively, the
"Tranche B Term Notes"), (iii) if Revolving Loans, by a promissory note duly
executed and delivered by the Borrower substantially in the form of Exhibit B-3,
with blanks appropriately completed in conformity herewith (each, a "Revolving
Note" and, collectively, the "Revolving Notes") and (iv) if Swingline Loans, by
a promissory note duly executed and delivered by the Borrower substantially in
the form of Exhibit B-4, with blanks appropriately completed in conformity
herewith (the "Swingline Note").
(b) The Tranche A Term Note issued to each Lender with a Tranche
A Term Loan Commitment or outstanding Tranche A Term Loans shall (i) be executed
by the Borrower, (ii) be payable to the order of such Lender and be dated the
Initial Borrowing Date (or, in the case of Tranche A Term Notes issued after the
Initial Borrowing Date, be dated the date of the issuance thereof), (iii) be in
a stated principal amount equal to the Tranche A Term Loan made by such Lender
on the Initial Borrowing Date (or, in the case of any Tranche A Term Note issued
after the Initial Borrowing Date, be in a stated principal amount equal to the
outstanding principal amount of the Tranche A Term Loan of such Lender on the
date of the issuance thereof) and be payable in the principal amount of Tranche
A Term Loans evidenced thereby, (iv) mature on the Tranche A Term Loan Maturity
Date, (v) bear interest as provided in the appropriate clause of Section 1.08 in
respect of the Base Rate Loans and Eurodollar Loans, as the case may be,
evidenced thereby, (vi) be subject to voluntary prepayment and mandatory
repayment as provided in Sections 4.01 and 4.02 and (vii) be entitled to the
benefits of this Agreement and the other Credit Documents.
(c) The Tranche B Term Note issued to each Lender with a Tranche
B Term Loan Commitment or outstanding Tranche B Term Loans shall (i) be executed
by the Borrower, (ii) be payable to the order of such Lender and be dated the
Initial Borrowing Date (or, in the case
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of Tranche B Term Notes issued after the Initial Borrowing Date, be dated the
date of the issuance thereof), (iii) be in a stated principal amount equal to
the Tranche B Term Loan made by such Lender on the Initial Borrowing Date (or,
in the case of any Tranche B Term Note issued after the Initial Borrowing Date,
be in a stated principal amount equal to the outstanding principal amount of the
Tranche B Term Loan of such Lender on the date of the issuance thereof) and be
payable in the principal amount of Tranche B Term Loans evidenced thereby, (iv)
mature on the Tranche B Term Loan Maturity Date, (v) bear interest as provided
in the appropriate clause of Section 1.08 in respect of the Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to
voluntary prepayment and mandatory repayment as provided in Sections 4.01 and
4.02 and (vii) be entitled to the benefits of this Agreement and the other
Credit Documents.
(d) The Revolving Note issued to each Lender with a Revolving
Loan Commitment shall (i) be executed by the Borrower, (ii) be payable to the
order of such Lender and be dated the Initial Borrowing Date (or, in the case of
Revolving Notes issued after the Initial Borrowing Date, be dated the date of
the issuance thereof), (iii) be in a stated principal amount equal to the
Revolving Loan Commitment of such Lender and be payable in the principal amount
of the Revolving Loans evidenced thereby, (iv) mature on the Revolving Loan
Maturity Date, (v) bear interest as provided in the appropriate clause of
Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans, as the case
may be, evidenced thereby, (vi) be subject to voluntary prepayment and mandatory
repayment as provided in Sections 4.01 and 4.02 and (vii) be entitled to the
benefits of this Agreement and the other Credit Documents.
(e) The Swingline Note shall (i) be executed by the Borrower,
(ii) be payable to the order of the Swingline Lender and be dated the Initial
Borrowing Date (or, in the case of any Swingline Note issued after the Initial
Borrowing Date, be dated the date of the issuance thereof), (iii) be in a stated
principal amount equal to the Maximum Swingline Amount and be payable in the
principal amount of the outstanding Swingline Loans evidenced thereby, (iv)
mature on the Swingline Expiry Date, (v) bear interest as provided in the
appropriate clause of Section 1.08 in respect of the Base Rate Loans evidenced
thereby, (vi) be subject to voluntary prepayment and mandatory repayment as
provided in Sections 4.01 and 4.02 and (vii) be entitled to the benefits of this
Agreement and the other Credit Documents.
(f) Each Lender will note on its internal records the amount of
each Loan made by it and each payment in respect thereof and will prior to any
transfer of any of its Notes endorse on the reverse side thereof the outstanding
principal amount of Loans evidenced thereby. Failure to make any such notation
or any error in any such notation or endorsement shall not affect the Borrower's
obligations in respect of such Loans.
(g) Notwithstanding anything to the contrary contained above or
elsewhere in this Agreement, Tranche A Term Notes, Tranche B Term Notes,
Revolving Notes and the Swingline Note shall only be delivered to Lenders which
at any time specifically request the delivery of such Notes. No failure of any
Lender to request or obtain a Note evidencing its Loans to the Borrower shall
affect or in any manner impair the obligations of the Borrower to pay the Loans
(and all related Obligations) which would otherwise be evidenced thereby in
accordance with the requirements of this Agreement, and shall not in any way
affect the security or
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guaranties therefor provided pursuant to the various Credit Documents. Any
Lender which does not have a Note evidencing its outstanding Loans shall in no
event be required to make the notations otherwise described in preceding clause
(f). At any time when any Lender requests the delivery of a Note to evidence any
of its Loans, the Borrower shall promptly execute and deliver to the respective
Lender the requested Note or Notes in the appropriate amount or amounts to
evidence such Loans.
1.06 Conversions. The Borrower shall have the option to convert,
on any Business Day occurring on or after the fifth Business Day following the
Initial Borrowing Date, all or a portion of the outstanding principal amount of
Loans made pursuant to one or more Borrowings (so long as of the same Tranche)
of one or more Types of Loans into a Borrowing (of the same Tranche) of another
Type of Loan, provided that (i) except as provided in Section 1.10(b) or unless
the Borrower pays all breakage costs and other amounts owing to each Lender
pursuant to Section 1.11 concurrently with any such conversion, Eurodollar Loans
may be converted into Base Rate Loans only on the last day of an Interest Period
applicable to the Loans being converted, (ii) no partial conversion of a
Borrowing of Eurodollar Loans shall reduce the outstanding principal amount of
the Eurodollar Loans made pursuant to such Borrowing to less than the Minimum
Borrowing Amount applicable thereto, (iii) unless the Required Lenders otherwise
agree in writing, Base Rate Loans may only be converted into Eurodollar Loans if
no Default or Event of Default is in existence on the date of the conversion,
(iv) no conversion pursuant to this Section 1.06 shall result in a greater
number of Borrowings of Eurodollar Loans than is permitted under Section 1.02,
(v) unless the Syndication Date has occurred (at which time this clause (v)
shall no longer be applicable), prior to the 90th day after the Initial
Borrowing Date, conversions of Base Rate Loans into Eurodollar Loans may only be
made if any such conversion is effective on the first day of the first, second
or third Interest Period referred to in clause (y) of each of Sections
1.01(a)(i), 1.01(b)(i) and 1.01(c)(i) and so long as such conversion does not
result in a greater number of Borrowings of Eurodollar Loans prior to the 90th
day after the Initial Borrowing Date as are permitted under Sections 1.01(a)(i),
1.01(b)(i), and 1.01(c)(i) and (vi) Swingline Loans may not be converted
pursuant to this Section 1.06. Each such conversion shall be effected by the
Borrower by giving the Administrative Agent at its Notice Office prior to 12:00
Noon (New York time) at least three Business Days' prior written notice (each, a
"Notice of Conversion"), specifying the Loans to be so converted, the
Borrowing(s) pursuant to which such Loans were made and, if to be converted into
Eurodollar Loans, the Interest Period to be initially applicable thereto. The
Administrative Agent shall give each Lender prompt notice of any such proposed
conversion affecting any of its Loans.
1.07 Pro Rata Borrowings. All Borrowings of Tranche A Term Loans,
Tranche B Term Loans and Revolving Loans under this Agreement shall be incurred
from the Lenders pro rata on the basis of their Tranche A Term Loan Commitments,
Tranche B Term Loan Commitments or Revolving Loan Commitments, as the case may
be, provided that all Borrowings of Revolving Loans made pursuant to a Mandatory
Borrowing shall be incurred from the Lenders pro rata on the basis of their
Adjusted Percentages. It is understood that no Lender shall be responsible for
any default by any other Lender of its obligation to make Loans hereunder and
that each Lender shall be obligated to make the Loans provided to be made by it
hereunder, regardless of the failure of any other Lender to make its Loans
hereunder.
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1.08 Interest. (a) The Borrower shall pay interest in respect of
the unpaid principal amount of each Base Rate Loan from the date the proceeds
thereof are made available to the Borrower until the earlier of (i) the maturity
(whether by acceleration or otherwise) of such Base Rate Loan and (ii) the
conversion of such Base Rate Loan to a Eurodollar Loan pursuant to Section 1.06,
at a rate per annum which shall be equal to the sum of the relevant Applicable
Margin plus the Base Rate, each as in effect from time to time.
(b) The Borrower shall pay interest in respect of the unpaid
principal amount of each Eurodollar Loan from the date the proceeds thereof are
made available to the Borrower until the earlier of (i) the maturity (whether by
acceleration or otherwise) of such Eurodollar Loan and (ii) the conversion of
such Eurodollar Loan to a Base Rate Loan pursuant to Section 1.06, 1.09 or
1.10(b), as applicable, at a rate per annum which shall, during each Interest
Period applicable thereto, be equal to the sum of the relevant Applicable Margin
plus the Eurodollar Rate for such Interest Period, each as in effect from time
to time.
(c) Overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan and any other overdue amount payable
hereunder shall, in each case, bear interest at a rate per annum equal to the
greater of (x) 2% per annum in excess of the rate otherwise applicable to Base
Rate Loans of the respective Tranche of Loans from time to time (or, if such
overdue amount is not interest or principal in respect of a Loan, 2% per annum
in excess of the rate otherwise applicable to Base Rate Loans maintained as
Revolving Loans from time to time) and (y) the rate which is 2% in excess of the
rate then borne by such Loans, in each case with such interest to be payable on
demand.
(d) Accrued (and theretofore unpaid) interest shall be payable
(i) in respect of each Base Rate Loan, quarterly in arrears on each Quarterly
Payment Date, (ii) in respect of each Eurodollar Loan, on (x) the date of any
conversion into a Base Rate Loan pursuant to Section 1.06, 1.09 or 1.10(b), as
applicable (on the amount converted) and (y) the last day of each Interest
Period applicable thereto and, in the case of an Interest Period in excess of
three months, on each date occurring at three month intervals after the first
day of such Interest Period and (iii) in respect of each Loan, on any repayment
or prepayment on the amount repaid or prepaid, at maturity (whether by
acceleration or otherwise) and, after such maturity, on demand.
(e) Upon each Interest Determination Date, the Administrative
Agent shall determine the Eurodollar Rate for each Interest Period applicable to
Eurodollar Loans and shall promptly notify the Borrower and the Lenders thereof.
Each such determination shall, absent manifest error, be final and conclusive
and binding on all parties hereto.
(f) All computations of interest hereunder shall be made in
accordance with Section 13.07(b).
1.09 Interest Periods. At the time it gives any Notice of
Borrowing or Notice of Conversion in respect of the making of, or conversion
into, a Borrowing of Eurodollar Loans (in the case of the initial Interest
Period applicable thereto) or on the third Business Day prior to the expiration
of an Interest Period applicable to such Borrowing of Eurodollar Loans (in the
case of any subsequent Interest Period), the Borrower shall have the right to
elect, by giving the
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Administrative Agent written notice thereof, the interest period (each, an
"Interest Period") applicable to such Eurodollar Loans, which Interest Period
shall, at the option of the Borrower be a one, two, three or six month period,
provided that:
(i) all Eurodollar Loans comprising a Borrowing shall at all times
have the same Interest Period;
(ii) the initial Interest Period for any Borrowing of Eurodollar
Loans shall commence on the date of such Borrowing (including the date
of any conversion thereto from a Borrowing of Base Rate Loans) and each
Interest Period occurring thereafter in respect of such Borrowing shall
commence on the day on which the next preceding Interest Period
applicable thereto expires;
(iii) if any Interest Period relating to a Borrowing of Eurodollar
Loans begins on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period, such
Interest Period shall end on the last Business Day of such calendar
month;
(iv) if any Interest Period would otherwise expire on a day which
is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day, provided, that if any Interest Period for a
Borrowing of Eurodollar Loans would otherwise expire on a day which is
not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire on
the next preceding Business Day;
(v) unless the Required Lenders otherwise agree in writing, no
Interest Period may be selected at any time when a Default or Event of
Default is then in existence;
(vi) no Interest Period in respect of any Borrowing of any Tranche
of Loans shall be selected which extends beyond the respective Maturity
Date for such Tranche of Loans; and
(vii) no Interest Period in respect of any Borrowing of Tranche A
Term Loans or Tranche B Term Loans, as the case may be, shall be
selected which extends beyond any date upon which a mandatory repayment
of such Tranche of Term Loans will be required to be made under Section
4.02(b) or (c), as the case may be, if, after giving effect to the
election of such Interest Period, the aggregate principal amount of
Tranche A Term Loans or Tranche B Term Loans, as the case may be, which
have Interest Periods which will expire after such date will be in
excess of the aggregate principal amount of Tranche A Term Loans or
Tranche B Term Loans, as the case may be, then outstanding less the
aggregate amount of such required prepayment.
If upon the expiration of any Interest Period applicable to a
Borrowing of Eurodollar Loans, the Borrower has failed to elect, or is not
permitted to elect, a new Interest Period to be applicable to such Eurodollar
Loans as provided above, the Borrower shall be deemed to have elected to convert
such Eurodollar Loans into Base Rate Loans effective as of the expiration date
of such current Interest Period.
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1.10 Increased Costs, Illegality, etc. (a) In the event that any
Lender shall have determined (which determination shall, absent manifest error,
be final and conclusive and binding upon all parties hereto but, with respect to
clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any
changes arising after the date of this Agreement affecting the interbank
Eurodollar market, adequate and fair means do not exist for ascertaining
the applicable interest rate on the basis provided for in the definition
of Eurodollar Rate; or
(ii) at any time, that such Lender shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect
to any Eurodollar Loan because of (x) any change since the date of this
Agreement in any applicable law or governmental rule, regulation, order,
guideline or request (whether or not having the force of law) or in the
interpretation or administration thereof and including the introduction
of any new law or governmental rule, regulation, order, guideline or
request, such as, for example, but not limited to: (A) a change in the
basis of taxation of payment to any Lender of the principal of or
interest on such Eurodollar Loan or any other amounts payable hereunder
(except for changes in the rate of tax on, or determined by reference
to, the net income or profits of such Lender, or any franchise tax based
on the net income or profits of such Lender, in either case pursuant to
the laws of the United States of America, the jurisdiction in which it
is organized or in which its principal office or applicable lending
office is located or any subdivision thereof or therein), but without
duplication of any amounts payable in respect of Taxes pursuant to
Section 4.04(a), or (B) a change in official reserve requirements but,
in all events, excluding reserves required under Regulation D to the
extent included in the computation of the Eurodollar Rate and/or (y)
other circumstances since the date of this Agreement affecting such
Lender or the New York interbank Eurodollar market or the position of
such Lender in such market; or
(iii) at any time, that the making or continuance of any Eurodollar
Loan has been made (x) unlawful by any law or governmental rule,
regulation or order, and/or (y) impossible by compliance by any Lender
in good faith with any governmental request (whether or not having force
of law) or (z) impracticable as a result of a contingency occurring
after the date of this Agreement which materially and adversely affects
the interbank Eurodollar market;
then, and in any such event, such Lender (or the Administrative Agent, in the
case of clause (i) above) shall promptly give notice (by telephone confirmed in
writing) to the Borrower and, except in the case of clause (i) above, to the
Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in
the case of clause (i) above, Eurodollar Loans shall no longer be available
until such time as the Administrative Agent notifies the Borrower and the
Lenders that the circumstances giving rise to such notice by the Administrative
Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given
by the Borrower with respect to Eurodollar Loans which have not yet been
incurred (including by way of conversion) shall be deemed instead to have
contained a request for Base Rate Loans, (y) in the case of clause (ii) above,
the Borrower shall, pay to such Lender, upon
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written demand therefor, such additional amounts (in the form of an increased
rate of, or a different method of calculating, interest or otherwise as such
Lender in its sole discretion shall determine) as shall be required to
compensate such Lender for such increased costs or reductions in amounts
received or receivable hereunder (a written notice as to the additional amounts
owed to such Lender, showing in reasonable detail the basis for and the
calculation thereof, submitted to the Borrower by such Lender in good faith
shall, absent manifest error, be final and conclusive and binding on all the
parties hereto, although the failure to give any such notice shall not release
or diminish any of the Borrower's obligations to pay additional amounts pursuant
to this Section 1.10(a) upon the subsequent receipt of such notice) and (z) in
the case of clause (iii) above, the Borrower shall take one of the actions
specified in Section 1.10(b) as promptly as possible and, in any event, within
the time period required by law. Each of the Administrative Agent and each
Lender agrees that if it gives notice to the Borrower of any of the events
described in clause (i) or (iii) above, it shall promptly notify the Borrower
and, in the case of any such Lender, the Administrative Agent, if such event
ceases to exist. If any such event described in clause (iii) above ceases to
exist as to a Lender, the obligations of such Lender to make Eurodollar Loans
and to convert Base Rate Loans into Eurodollar Loans on the terms and conditions
contained herein shall be reinstated.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and,
in the case of a Eurodollar Loan affected by the circumstances described in
Section 1.10(a)(iii), shall) either (x) if the affected Eurodollar Loan is then
being made initially or pursuant to a conversion, cancel the respective
Borrowing by giving the Administrative Agent telephonic notice (confirmed in
writing) on the same date that the Borrower was notified by the affected Lender
or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if
the affected Eurodollar Loan is then outstanding, upon at least three Business
Days' written notice to the Administrative Agent, require the affected Lender to
convert such Eurodollar Loan into a Base Rate Loan on the earlier of the date
required by law or the last day of the Interest Period applicable to such
Eurodollar Loans, provided that, if more than one Lender is affected at any
time, then all affected Lenders must be treated the same pursuant to this
Section 1.10(b).
(c) If at any time after the date of this Agreement any Lender
determines that the introduction of or any change in any applicable law or
governmental rule, regulation, order, guideline, directive or request (whether
or not having the force of law) concerning capital adequacy, or any change in
interpretation or administration thereof by any governmental authority, central
bank or comparable agency, in each case introduced or changed after the date
hereof, will have the effect of increasing the amount of capital required or
requested to be maintained by such Lender or any corporation controlling such
Lender based on the existence of such Lender's Commitments hereunder or its
obligations hereunder, then the Borrower shall, pay to such Lender, upon its
written demand therefor, such additional amounts as shall be required to
compensate such Lender or such other corporation for the increased cost to such
Lender or such other corporation or the reduction in the rate of return to such
Lender or such other corporation as a result of such increase of capital. In
determining such additional amounts, each Lender will act reasonably and in good
faith and will use averaging and attribution methods which are reasonable,
provided that such Lender's determination of compensation owing under this
Section 1.10(c) shall, absent manifest error, be final and conclusive and
binding on all the parties hereto.
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Each Lender, upon determining that any additional amounts will be payable
pursuant to this Section 1.10(c), will give prompt written notice thereof to the
Borrower, which notice shall show in reasonable detail the basis for and
calculation of such additional amounts, although the failure to give any such
notice shall not release or diminish the Borrower's obligation to pay additional
amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such
notice.
1.11 Compensation. The Borrower shall compensate each Lender,
upon its written request (which request shall set forth in reasonable detail the
basis for requesting and the calculation of such compensation), for all losses,
expenses and liabilities (including, without limitation, any loss, expense or
liability incurred by reason of the liquidation or reemployment of deposits or
other funds required by such Lender to fund its Eurodollar Loans but excluding
any loss of anticipated profit) which such Lender may sustain: (i) if for any
reason (other than a default by such Lender or the Administrative Agent) a
Borrowing of, or conversion from or into, Eurodollar Loans does not occur on a
date specified therefor in a Notice of Borrowing or Notice of Conversion
(whether or not withdrawn by the Borrower or deemed withdrawn pursuant to
Section 1.10(a)); (ii) if any repayment (including any repayment made pursuant
to Section 4.02 or as a result of an acceleration of the Loans pursuant to
Section 10) or conversion of any of its Eurodollar Loans occurs on a date which
is not the last day of an Interest Period with respect thereto; (iii) if any
prepayment of any of its Eurodollar Loans is not made on any date specified in a
notice of prepayment given by the Borrower; or (iv) as a consequence of (x) any
other default by the Borrower to repay its Eurodollar Loans when required by the
terms of this Agreement or any Note held by such Lender or (y) any election made
pursuant to Section 1.10(b). Each Lender's calculation of the amount of
compensation owing pursuant to this Section 1.11 shall be made in good faith. A
Lender's basis for requesting compensation pursuant to this Section 1.11 and a
Lender's calculation of the amount thereof, shall, absent manifest error, be
final and conclusive and binding on all parties hereto.
1.12 Change of Lending Office. Each Lender agrees that on the
occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or
(iii), Section 1.10(c), Section 2.05 or Section 4.04 with respect to such
Lender, it will, if requested by the Borrower, use reasonable efforts (subject
to overall policy considerations of such Lender) to designate another lending
office for any Loans or Letters of Credit affected by such event, provided that
such designation is made on such terms that, in the sole judgment of such
Lender, such Lender and its lending office suffer no economic, legal or
regulatory disadvantage, with the object of avoiding the consequence of the
event giving rise to the operation of any such Section. Nothing in this Section
1.12 shall affect or postpone any of the obligations of the Borrower or the
right of any Lender provided in Sections 1.10, 2.05 and 4.04.
1.13 Replacement of Lenders. (x) If any Lender becomes a
Defaulting Lender or otherwise defaults in its obligations to make Loans or fund
Unpaid Drawings, (y) upon the occurrence of any event giving rise to the
operation of Section 1.10(a)(ii) or (iii), Section 1.10(c), Section 2.05 or
Section 4.04 with respect to any Lender which results in such Lender charging to
the Borrower increased costs materially in excess of those being generally
charged by the other Lenders, or (z) in the case of certain refusals by a Lender
to consent to certain proposed changes, waivers, discharges or terminations with
respect to this Agreement which have been approved by the Required Lenders as
provided in Section 13.12(b), the Borrower shall have the right, if no
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Default or Event of Default then exists or would exist immediately after giving
effect to the respective replacement, to either replace such Lender (the
"Replaced Lender") with one or more other Eligible Transferee or Transferees,
none of whom shall constitute a Defaulting Lender at the time of such
replacement (collectively, the "Replacement Lender") and each of whom shall be
reasonably acceptable to the Administrative Agent or, at the option of the
Borrower, to replace only (a) the Revolving Loan Commitment (and outstandings
pursuant thereto) of the Replaced Lender with an identical Revolving Loan
Commitment provided by the Replacement Lender or (b) in the case of a
replacement as provided in Section 13.12(b) where the consent of the respective
Lender is required with respect to less than all Tranches of its Loans or
Commitments, the Commitments and/or outstanding Term Loans of such Lender in
respect of each Tranche where the consent of such Lender would otherwise be
individually required, with identical Commitments and/or Loans of the respective
Tranche provided by the Replacement Lender, provided that:
(i) at the time of any replacement pursuant to this Section 1.13,
the Replacement Lender shall enter into one or more Assignment and
Assumption Agreements pursuant to Section 13.04(b) (and with all fees
payable pursuant to said Section 13.04(b) to be paid by the Replacement
Lender) pursuant to which the Replacement Lender shall acquire all of
the Commitments and outstanding Loans (or, in the case of the
replacement of only (a) the Revolving Loan Commitment, the Revolving
Loan Commitment and outstanding Revolving Loans or (b) the outstanding
Term Loans of one or more Tranches, the outstanding Term Loans of the
respective Tranche or Tranches) of, and in each case (except for the
replacement of only the outstanding Term Loans of one or more Tranches
of the respective Lender) participations in Letters of Credit by, the
Replaced Lender and, in connection therewith, shall pay to (x) the
Replaced Lender in respect thereof an amount equal to the sum (without
duplication) of (A) an amount equal to the principal of, and all accrued
interest on, all outstanding Loans (or, in the case of the replacement
of only (I) the Revolving Loan Commitment, the outstanding Revolving
Loans or (II) the Term Loans of one or more Tranches, the outstanding
Term Loans of such Tranche or Tranches) of the Replaced Lender, (B)
except in the case of the replacement of only the outstanding Term Loans
of one or more Tranches of a Replaced Lender, an amount equal to all
Unpaid Drawings that have been funded by (and not reimbursed to) such
Replaced Lender, together with all then unpaid interest with respect
thereto at such time and (C) an amount equal to all accrued, but
theretofore unpaid, Fees owing to the Replaced Lender (but only with
respect to the relevant Tranche, in the case of the replacement of less
than all Tranches of Loans then held by the respective Replaced Lender)
pursuant to Section 3.01, (y) except in the case of the replacement of
only the outstanding Term Loans of one or more Tranches of a Replaced
Lender, the respective Issuing Bank an amount equal to such Replaced
Lender's Adjusted Percentage (for this purpose, determined as if the
adjustment described in clause (y) of the immediately succeeding
sentence had been made with respect to such Replaced Lender) of any
Unpaid Drawing (which at such time remains an Unpaid Drawing) to the
extent such amount was not theretofore funded by such Replaced Lender
and (z) in the case of any replacement of Revolving Loan Commitments,
the Swingline Lender an amount equal to such Replaced
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Lender's Adjusted Percentage of any Mandatory Borrowing to the extent
such amount was not theretofore funded by such Replaced Lender; and
(ii) all obligations of the Borrower owing to the Replaced Lender
(other than those (a) specifically described in clause (i) above in
respect of which the assignment purchase price has been, or is
concurrently being, paid or (b) relating to any Tranche of Loans and/or
Commitments of the respective Replaced Lender which will remain
outstanding after giving effect to the respective replacement) shall be
paid in full to such Replaced Lender concurrently with such replacement.
Upon the execution of the respective Assignment and Assumption Agreements, the
payment of amounts referred to in clauses (i) and (ii) above, the recordation of
the assignment on the Register by the Administrative Agent pursuant to Section
13.16 and, if so requested by the Replacement Lender, delivery to the
Replacement Lender of the appropriate Note or Notes executed by the Borrower,
(x) the Replacement Lender shall become a Lender hereunder and, unless the
respective Replaced Lender continues to have outstanding Term Loans and/or a
Revolving Loan Commitment hereunder, the Replaced Lender shall cease to
constitute a Lender hereunder, except with respect to indemnification provisions
under this Agreement (including, without limitation, Sections 1.10, 1.11, 2.05,
4.04, 13.01 and 13.06), which shall survive as to such Replaced Lender and (y)
in the case of a replacement of a Defaulting Lender with a Non-Defaulting
Lender, the Adjusted Percentages of the Lenders shall be automatically adjusted
at such time to give effect to such replacement (and to give effect to the
replacement of a Defaulting Lender with one or more Non-Defaulting Lenders).
SECTION 2. Letters of Credit.
2.01 Letters of Credit. (a) Subject to and upon the terms and
conditions herein set forth, the Borrower may request that any Issuing Bank
issue, at any time and from time to time after the Initial Borrowing Date and
prior to the date which is 30 days prior to the Revolving Loan Maturity Date,
(x) for the account of the Borrower and for the benefit of any holder (or any
trustee, agent or other similar representative for any such holders) of L/C
Supportable Indebtedness of the Borrower or any of its Subsidiaries, an
irrevocable sight standby letter of credit, in a form customarily used by such
Issuing Bank or in such other form as has been approved by such Issuing Bank
(each such standby letter of credit, a "Standby Letter of Credit") in support of
such L/C Supportable Indebtedness and (y) for the account of the Borrower and
for the benefit of sellers of goods or materials to the Borrower or any of its
Subsidiaries, an irrevocable sight commercial letter of credit in a form
customarily used by such Issuing Bank or in such other form as has been approved
by such Issuing Bank (each such commercial letter of credit, a "Trade Letter of
Credit", and each such Trade Letter of Credit and each Standby Letter of Credit,
a "Letter of Credit") in support of trade obligations of the Borrower and its
Subsidiaries that arise in the ordinary course of business.
(b) Subject to the terms and conditions contained herein, each
Issuing Bank hereby agrees that it will, at any time and from time to time on or
after the Initial Borrowing Date and prior to the date which is 30 days prior to
the Revolving Loan Maturity Date, following its receipt of the respective Letter
of Credit Request, issue for the account of the Borrower one or
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more Letters of Credit (x) in the case of Standby Letters of Credit, in support
of such L/C Supportable Indebtedness of the Borrower or any of its Subsidiaries
as is permitted to remain outstanding without giving rise to a Default or Event
of Default hereunder and (y) in the case of Trade Letters of Credit, in support
of sellers of goods or materials as referenced in Section 2.01(a), provided that
the respective Issuing Bank shall be under no obligation to issue any Letter of
Credit of the types described above if at the time of such issuance:
(i) any order, judgment or decree of any governmental authority or
arbitrator shall purport by its terms to enjoin or restrain such Issuing
Bank from issuing such Letter of Credit or any requirement of law
applicable to such Issuing Bank or any request or directive (whether or
not having the force of law) from any governmental authority with
jurisdiction over such Issuing Bank shall prohibit, or request that such
Issuing Bank refrain from, the issuance of letters of credit generally
or such Letter of Credit in particular or shall impose upon such Issuing
Bank with respect to such Letter of Credit any restriction or reserve or
capital requirement (for which such Issuing Bank is not otherwise
compensated) not in effect on the date hereof, or any unreimbursed loss,
cost or expense which was not applicable, in effect or known to such
Issuing Bank as of the date hereof and which such Issuing Bank in good
faith deems material to it; or
(ii) such Issuing Bank shall have received notice from any Lender
prior to the issuance of such Letter of Credit of the type described in
the second sentence of Section 2.02(b).
(c) Notwithstanding the foregoing, (i) no Letter of Credit shall
be issued the Stated Amount of which, when added to the Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and
prior to the issuance of, the respective Letter of Credit) at such time would
exceed either (x) $75,000,000 or (y) when added to (I) the aggregate principal
amount of all Revolving Loans made by Non-Defaulting Lenders and then
outstanding and (II) the principal amount of all Swingline Loans then
outstanding, an amount equal to the Adjusted Total Revolving Loan Commitment at
such time, (ii) each Letter of Credit shall be denominated in Dollars, (iii)
each Letter of Credit shall by its terms terminate (x) in the case of Standby
Letters of Credit, on or before the earlier of (A) the date which occurs 12
months after the date of the issuance thereof (although any such Standby Letter
of Credit may be automatically extendible for successive periods of up to 12
months, but not beyond the fifth Business Day prior to the Revolving Loan
Maturity Date, on terms acceptable to the Issuing Bank thereof) and (B) the
fifth Business Day prior to the Revolving Loan Maturity Date, and (y) in the
case of Trade Letters of Credit, on or before the earlier of (A) the date which
occurs 180 days after the date of issuance thereof and (B) the date which is 10
days prior to the Revolving Loan Maturity Date and (iv) the Stated Amount of
each Letter of Credit upon issuance shall be not less than $50,000 or such
lesser amount as is acceptable to the respective Issuing Bank.
(d) Notwithstanding the foregoing, in the event a Lender Default
exists, no Issuing Bank shall be required to issue any Letter of Credit unless
the respective Issuing Bank has entered into arrangements satisfactory to it and
the Borrower to eliminate such Issuing Bank's risk with respect to the
participation in Letters of Credit of the Defaulting Lender or
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Lenders, including by cash collateralizing such Defaulting Lender or Lenders'
Adjusted Percentage of the Letter of Credit Outstandings, as the case may be.
(e) Schedule IX hereto contains a description of all letters of
credit issued by The Bank of Nova Scotia for the account of the Borrower and
outstanding on the Initial Borrowing Date. Each such letter of credit, as
amended on the Initial Borrowing Date to change the account party thereon to
"IASIS Healthcare Corporation", including any extension or renewal thereof
(each, as amended from time to time in accordance with the terms hereof and
thereof, an "Existing Letter of Credit") shall constitute a "Letter of Credit"
for all purposes of this Agreement, issued, for purposes of Section 2.03(a), on
the Initial Borrowing Date. The Bank of Nova Scotia shall constitute the
"Issuing Bank" with respect to each such Letter of Credit for all purposes of
this Agreement.
2.02 Letter of Credit Requests, etc. (a) Whenever the Borrower
desires that a Letter of Credit be issued for its account, the Borrower shall
give the Administrative Agent and the respective Issuing Bank written notice
thereof prior to 12:00 Noon (New York time) at least three Business Days' (or
such shorter period as is acceptable to the respective Issuing Bank) prior to
the proposed date of issuance (which shall be a Business Day). Each notice shall
be in the form of Exhibit C (each, a "Letter of Credit Request").
(b) The making of each Letter of Credit Request shall be deemed
to be a representation and warranty by the Borrower that such Letter of Credit
may be issued in accordance with, and will not violate the requirements of,
Section 2.01(c). Unless the respective Issuing Bank has received notice from any
Lender before it issues a Letter of Credit that one or more of the conditions
specified in Section 5 or Section 6, as applicable, are not then satisfied, or
that the issuance of such Letter of Credit would violate Section 2.01(c), then
such Issuing Bank shall issue the requested Letter of Credit for the account of
the Borrower in accordance with such Issuing Bank's usual and customary
practices.
(c) Each Issuing Bank shall, promptly after each issuance of, or
amendment or modification to, a Standby Letter of Credit issued by it, give the
Administrative Agent (and the Administrative Agent shall in turn promptly
forward same to each Participant and the Borrower) written notice of the
issuance of, or amendment or modification to, such Standby Letter of Credit,
which notice shall be accompanied by a copy of the Standby Letter of Credit or
Standby Letters of Credit issued by it and each such amendment or modification
thereto.
(d) Each Issuing Bank shall deliver to the Administrative Agent,
promptly on the first Business Day of each week, by facsimile transmission, the
aggregate daily Stated Amount available to be drawn under the outstanding Trade
Letters of Credit issued by such Issuing Bank for the previous week. The
Administrative Agent shall, within 10 days after the last Business Day of each
calendar month, deliver to each Participant a report setting forth for such
preceding calendar month the aggregate daily Stated Amount available to be drawn
under all outstanding Trade Letters of Credit during such calendar month.
2.03 Letter of Credit Participations. (a) Immediately upon the
issuance by any Issuing Bank of any Letter of Credit, such Issuing Bank shall be
deemed to have sold and trans-
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ferred to each Lender with a Revolving Loan Commitment, other than such Issuing
Bank (each such Lender, in its capacity under this Section 2.03, a
"Participant"), and each such Participant shall be deemed irrevocably and
unconditionally to have purchased and received from such Issuing Bank, without
recourse or warranty, an undivided interest and participation, to the extent of
such Participant's Adjusted Percentage, in such Letter of Credit, each drawing
made thereunder and the obligations of the Borrower under this Agreement with
respect thereto (although Letter of Credit Fees shall be payable directly to the
Administrative Agent for the account of the Participants as provided in Section
3.01(b) and the Participants shall have no right to receive any portion of any
Facing Fees with respect to such Letters of Credit), and any security therefor
or guaranty pertaining thereto. Upon any change in the Revolving Loan
Commitments or Adjusted Percentages of the Lenders pursuant to Section 1.13 or
13.04 or as a result of a Lender Default, it is hereby agreed that, with respect
to all outstanding Letters of Credit and Unpaid Drawings, there shall be an
automatic adjustment to the participations pursuant to this Section 2.03 to
reflect the new Adjusted Percentages of the assignor and assignee Lender or of
all Lenders with Revolving Loan Commitments, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no
Issuing Bank shall have any obligation relative to the other Lenders other than
to confirm that any documents required to be delivered under such Letter of
Credit appear to have been delivered and that they appear to substantially
comply on their face with the requirements of such Letter of Credit. Subject to
the provisions of the immediately preceding sentence, any action taken or
omitted to be taken by any Issuing Bank under or in connection with any Letter
of Credit if taken or omitted in the absence of gross negligence or willful
misconduct, as determined by a court of competent jurisdiction, shall not create
for such Issuing Bank any resulting liability to any Credit Party or any Lender.
(c) In the event that any Issuing Bank makes any payment under
any Letter of Credit and the Borrower shall not have reimbursed such amount in
full to such Issuing Bank pursuant to Section 2.04(a), such Issuing Bank shall
promptly notify the Administrative Agent, which shall promptly notify each
Participant, of such failure, and each Participant shall promptly and
unconditionally pay to such Issuing Bank the amount of such Participant's
Adjusted Percentage of such unreimbursed payment in Dollars and in same day
funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York
time) on any Business Day, any Participant required to fund a payment under a
Letter of Credit, such Participant shall make available to such Issuing Bank in
Dollars such Participant's Adjusted Percentage of the amount of such payment on
such Business Day in same day funds. If and to the extent such Participant shall
not have so made its Adjusted Percentage of the amount of such payment available
to such Issuing Bank, such Participant agrees to pay to such Issuing Bank,
forthwith on demand such amount, together with interest thereon, for each day
from such date until the date such amount is paid to such Issuing Bank at the
overnight Federal Funds Rate. The failure of any Participant to make available
to such Issuing Bank its Adjusted Percentage of any payment under any Letter of
Credit shall not relieve any other Participant of its obligation hereunder to
make available to such Issuing Bank its Adjusted Percentage of any Letter of
Credit on the date required, as specified above, but no Participant shall be
responsible for the failure of any other Participant to make available to such
Issuing Bank such other Participant's Adjusted Percentage of any such payment.
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(d) Whenever any Issuing Bank receives a payment of a
reimbursement obligation as to which it has received any payments from the
Participants pursuant to clause (c) above, such Issuing Bank shall forward such
payment to the Administrative Agent, which in turn shall distribute to each
Participant which has paid its Adjusted Percentage thereof, in Dollars and in
same day funds, an amount equal to such Participant's share (based upon the
proportionate aggregate amount originally funded by such Participant to the
aggregate amount funded by all Participants) of the principal amount of such
reimbursement obligation and interest thereon accruing after the purchase of the
respective participations.
(e) Upon the request of any Participant, each Issuing Bank shall
furnish to such Participant copies of any Letter of Credit issued by it and such
other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each
Issuing Bank with respect to Letters of Credit issued by it shall be irrevocable
and not subject to any qualification or exception whatsoever and shall be made
in accordance with the terms and conditions of this Agreement under all
circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement or
any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right
which the Borrower or any of its Subsidiaries may have at any time
against a beneficiary named in a Letter of Credit, any transferee of any
Letter of Credit (or any Person for whom any such transferee may be
acting), the Administrative Agent, any Issuing Bank, any Participant, or
any other Person, whether in connection with this Agreement, any Letter
of Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transaction between the Borrower
or any of its Subsidiaries and the beneficiary named in any such Letter
of Credit);
(iii) any draft, certificate or any other document presented under
any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit
Documents; or
(v) the occurrence of any Default or Event of Default.
2.04 Agreement to Repay Letter of Credit Drawings. (a) The
Borrower hereby agrees to reimburse the respective Issuing Bank, by making
payment to the Administrative Agent in immediately available funds at the
Payment Office, for any payment or disbursement made by such Issuing Bank under
any Letter of Credit (each such amount, so paid until reimbursed, an "Unpaid
Drawing"), by 1.00 P.M. (New York time) on the Business Day immediately
succeeding the date of such payment or disbursement, with interest on the amount
so paid or disbursed by
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such Issuing Bank, to the extent not reimbursed prior to 12:00 Noon (New York
time) on the date of such payment or disbursement, from and including the date
paid or disbursed to but excluding the date such Issuing Bank was reimbursed by
the Borrower therefor at a rate per annum which shall be the Base Rate in effect
from time to time plus the Applicable Margin for Revolving Loans maintained as
Base Rate Loans as in effect from time to time, such interest to be payable on
demand; provided, however, to the extent such amounts are not reimbursed prior
to 12:00 Noon (New York time) on the third Business Day following receipt of
notice of such payment or disbursement, interest shall thereafter accrue on the
amounts so paid or disbursed by such Issuing Bank (and until reimbursed by the
Borrower) at a rate per annum which shall be the Base Rate in effect from time
to time plus the Applicable Margin for Revolving Loans maintained as Base Rate
Loans as in effect from time to time plus 2%, in each such case, with interest
to be payable on demand. The respective Issuing Bank shall give the Borrower
prompt notice of each Drawing under any Letter of Credit issued by it, provided
that the failure of, or delay in, giving any such notice shall in no way affect,
impair or diminish the Borrower's obligations hereunder.
(b) The obligations of the Borrower under this Section 2.04 to
reimburse the respective Issuing Bank with respect to drawings on Letters of
Credit (each, a "Drawing") (including, in each case, interest thereon) shall be
absolute and unconditional under any and all circumstances and irrespective of
any setoff, counterclaim or defense to payment which the Borrower or any of its
Subsidiaries may have or have had against any Lender (including in its capacity
as issuer of the Letter of Credit or as Participant), or any nonapplication or
misapplication by the beneficiary of the proceeds of such Drawing, the
respective Issuing Bank's only obligation to the Borrower being to confirm that
any documents required to be delivered under such Letter of Credit appear to
have been delivered and that they appear to substantially comply on their face
with the requirements of such Letter of Credit. Subject to the provisions of the
immediately preceding sentence, any action taken or omitted to be taken by any
Issuing Bank under or in connection with any Letter of Credit if taken or
omitted in the absence of gross negligence or willful misconduct as determined
by a court of competent jurisdiction, shall not create for such Issuing Bank any
resulting liability to the Borrower or any other Credit Party.
2.05 Increased Costs. If at any time after the date of this
Agreement, the introduction of or any change in any applicable law, rule,
regulation, order, guideline or request or in the interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof, or compliance by any Issuing Bank or
any Participant with any request or directive by any such authority (whether or
not having the force of law), shall either (i) impose, modify or make applicable
any reserve, deposit, capital adequacy or similar requirement against letters of
credit issued by any Issuing Bank or participated in by any Participant, or (ii)
impose on any Issuing Bank or any Participant any other conditions relating,
directly or indirectly, to this Agreement, any Letter of Credit or such
Participant's participation therein; and the result of any of the foregoing is
to increase the cost to any Issuing Bank or any Participant of issuing,
maintaining or participating in any Letter of Credit, or reduce the amount of
any sum received or receivable by any Issuing Bank or any Participant hereunder
or reduce the rate of return on its capital with respect to Letters of Credit
(except for changes in the rate of tax on, or determined by reference to, the
net income or profits of such Issuing Bank or such Participant, or any franchise
tax based on the net income or profits of such Issuing Bank or Participant, in
either case pursuant to the laws of the United States of America, the
jurisdiction in
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which it is organized or in which its principal office or applicable lending
office is located or any subdivision thereof or therein), but without
duplication of any amounts payable in respect of Taxes pursuant to Section
4.04(a), then, upon demand to the Borrower by such Issuing Bank or any
Participant (a copy of which demand shall be sent by such Issuing Bank or such
Participant to the Administrative Agent) and subject to the provisions of
Section 13.15 (to the extent applicable), the Borrower shall pay to such Issuing
Bank or such Participant such additional amount or amounts as will compensate
such Issuing Bank or such Participant for such increased cost or reduction in
the amount receivable or reduction on the rate of return on its capital. Any
Issuing Bank or any Participant, upon determining that any additional amounts
will be payable pursuant to this Section 2.05, will give prompt written notice
thereof to the Borrower, which notice shall include a certificate submitted to
the Borrower by such Issuing Bank or such Participant (a copy of which
certificate shall be sent by such Issuing Bank or such Participant to the
Administrative Agent), setting forth in reasonable detail the basis for and the
calculation of such additional amount or amounts necessary to compensate such
Issuing Bank or such Participant. The certificate required to be delivered
pursuant to this Section 2.05 shall, if delivered in good faith and absent
manifest error, be final and conclusive and binding on the Borrower, although
the failure to deliver any such certificate shall not release or diminish the
Borrower's obligations to pay additional amounts pursuant to this Section 2.05
upon subsequent receipt of such certificate.
SECTION 3. Commitment Commission; Fees; Reductions of Commitment.
3.01 Fees. (a) The Borrower shall pay the Administrative Agent
for distribution to each Non-Defaulting Lender with a Revolving Loan Commitment
a commitment commission (the "Commitment Commission") for the period from the
Effective Date to and including the Revolving Loan Maturity Date (or such
earlier date as the Total Revolving Loan Commitment shall have been terminated),
computed at a rate for each day equal to the relevant Applicable Margin then in
effect on the daily average Unutilized Revolving Loan Commitment of such
Non-Defaulting Lender. Accrued Commitment Commission shall be due and payable
quarterly in arrears on each Quarterly Payment Date and on the Revolving Loan
Maturity Date (or such earlier date upon which the Total Revolving Loan
Commitment is terminated).
(b) The Borrower shall pay to the Administrative Agent for pro
rata distribution to each Non-Defaulting Lender with a Revolving Loan Commitment
(based on their respective Adjusted Percentages), a fee in respect of each
Letter of Credit issued hereunder (the "Letter of Credit Fee"), for the period
from and including the date of issuance of such Letter of Credit to and
including the termination of such Letter of Credit, computed at a rate per annum
equal to the Applicable Margin then in effect for Revolving Loans maintained as
Eurodollar Loans on the daily average Stated Amount of such Letter of Credit.
Accrued Letter of Credit Fees shall be due and payable quarterly in arrears on
each Quarterly Payment Date and upon the first day on or after the termination
of the Total Revolving Loan Commitment upon which no Letters of Credit remain
outstanding.
(c) The Borrower shall pay to each Issuing Bank, for its own
account, a facing fee in respect of each Letter of Credit issued by such Issuing
Bank hereunder (the "Facing Fee"), for the period from and including the date of
issuance of such Letter of Credit to and including
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the termination of such Letter of Credit, computed at a rate equal to 1/4 of 1%
per annum of the daily average Stated Amount of such Letter of Credit (or such
lesser percentage as shall be agreed by the respective Issuing Bank). Facing
Fees shall be due and payable quarterly in arrears on each Quarterly Payment
Date and on the date upon which the Total Revolving Loan Commitment has been
terminated and such Letter of Credit has been terminated in accordance with its
terms.
(d) The Borrower shall pay to each Issuing Bank, upon each
payment under, issuance of, or amendment to, any Letter of Credit issued by such
Issuing Bank, such amount as shall at the time of such event be the
administrative charge which such Issuing Bank is generally imposing in
connection with such occurrence with respect to letters of credit issued by it.
(e) The Borrower agrees to pay to the Administrative Agent, for
its own account, such other fees as have been agreed to in writing by the
Borrower and the Administrative Agent.
3.02 Voluntary Termination or Reduction of Unutilized Revolving
Loan Commitments. (a) Upon at least three Business Days' prior notice to the
Administrative Agent at its Notice Office (which notice the Administrative Agent
shall promptly transmit to each of the Lenders), the Borrower shall have the
right, at any time or from time to time, without premium or penalty, to
terminate the Total Unutilized Revolving Loan Commitment, in whole or in part,
in integral multiples of $1,000,000 in the case of partial reductions to the
Total Unutilized Revolving Loan Commitment, provided that (i) each such
reduction shall apply proportionately to permanently reduce the Revolving Loan
Commitment of each Lender with such a Commitment and (ii) no reduction to the
Total Unutilized Revolving Loan Commitment shall be in an amount which would
cause the Revolving Loan Commitment of any Lender to be reduced (as required by
preceding clause (i)) by an amount which exceeds the remainder of (x) the
Unutilized Revolving Loan Commitment of such Lender as in effect immediately
before giving effect to such reduction minus (y) such Lender's Adjusted
Percentage of the aggregate principal amount of Swingline Loans then
outstanding.
(b) In the event of certain refusals by a Lender to consent to
certain proposed changes, waivers, discharges or terminations with respect to
this Agreement which have been approved by the Required Lenders as provided in
Section 13.12(b), the Borrower may, subject to the requirements of said Section
13.12(b), upon five Business Days' prior written notice to the Administrative
Agent at its Notice Office (which notice the Administrative Agent shall promptly
transmit to each of the Lenders), terminate all of the Revolving Loan Commitment
of such Lender so long as all Loans, together with accrued and unpaid interest,
fees and all other amounts, owing to such Lender (including all amounts, if any,
owing pursuant to Section 1.11 but excluding amounts owing in respect of any
Tranche of Term Loans maintained by such Lender, if such Term Loans are not
being repaid pursuant to Section 13.12(b)) are repaid concurrently with the
effectiveness of such termination (at which time Schedule I shall be deemed
modified to reflect such changed amounts), and at such time, unless the
respective Lender continues to have outstanding Term Loans hereunder, such
Lender shall no longer constitute a "Lender" for purposes of this Agreement,
except with respect to indemnification provisions
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under this Agreement (including, without limitation, Sections 1.10, 1.11, 2.05,
4.04, 13.01 and 13.06), which shall survive as to such repaid Lender.
3.03 Mandatory Reduction of Commitments. (a) The Total
Commitments (and the Tranche A Term Loan Commitment, the Tranche B Term Loan
Commitment and the Revolving Loan Commitment of each Lender) shall terminate in
their entirety on November 30, 1999 unless the Initial Borrowing Date shall have
occurred on or prior to such date.
(b) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Tranche A Term Loan Commitment (and the
Tranche A Term Loan Commitment of each Lender with such a Commitment) shall (i)
terminate in its entirety on the Initial Borrowing Date (after giving effect to
the making of the Tranche A Term Loans on such date) and (ii) prior to the
termination of the Total Tranche A Term Loan Commitment as provided in clause
(i) above, be reduced from time to time to the extent required by Section 4.02.
(c) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Tranche B Term Loan Commitment (and the
Tranche B Term Loan Commitment of each Lender with such a Commitment) shall (i)
terminate in its entirety on the Initial Borrowing Date (after giving effect to
the making of the Tranche B Term Loans on such date) and (ii) prior to the
termination of the Total Tranche B Term Loan Commitment as provided in clause
(i) above, be reduced from time to time to the extent required by Section 4.02.
(d) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Revolving Loan Commitment (and the
Revolving Loan Commitment of each Lender with such a Commitment) shall terminate
in its entirety on the Revolving Loan Maturity Date.
(e) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, on each date after the Initial Borrowing Date
upon which a mandatory repayment of Term Loans pursuant to any of Sections
4.02(d) through (g), inclusive, is required (and exceeds in amount the aggregate
principal amount of Term Loans then outstanding) or would be required if Term
Loans were then outstanding, the Total Revolving Loan Commitment shall be
permanently reduced by the amount, if any, by which the amount required to be
applied pursuant to said Sections (determined as if an unlimited amount of Term
Loans were actually outstanding) exceeds the aggregate principal amount of Term
Loans then outstanding.
(f) Each reduction to the Total Tranche A Term Loan Commitment,
the Total Tranche B Term Loan Commitment, and the Total Revolving Loan
Commitment pursuant to this Section 3.03 shall be applied proportionately to
reduce the Tranche A Term Loan Commitment, the Tranche B Term Loan Commitment,
or the Revolving Loan Commitment, as the case may be, of each Lender with such a
Commitment.
SECTION 4. Prepayments; Payments; Taxes.
4.01 Voluntary Prepayments. (a) The Borrower shall have the right
to prepay the Loans, without premium or penalty except as provided in Section
4.01(b), in whole or in part, at
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any time and from time to time on the following terms and conditions: (i) the
Borrower shall give the Administrative Agent prior to 12:00 Noon (New York time)
at its Notice Office (x) at least one Business Day's prior written notice (or
telephonic notice promptly confirmed in writing) of its intent to prepay Term
Loans or Revolving Loans maintained as Base Rate Loans, (y) same day prior
written notice (or telephonic notice promptly confirmed in writing) of its
intent to prepay Swingline Loans and (z) at least three Business Days' (or in
the case of a prepayment of Eurodollar Loans at the end of the Interest Period
therefor, one Business Day's) prior written notice (or telephonic notice
promptly confirmed in writing) of its intent to prepay Eurodollar Loans, whether
Tranche A Term Loans, Tranche B Term Loans, Revolving Loans or Swingline Loans
shall be prepaid, the amount of such prepayment, the Types of Loans to be
prepaid and, in the case of Eurodollar Loans, the specific Borrowing or
Borrowings pursuant to which made, which notice the Administrative Agent shall
(except in the case of Swingline Loans) promptly transmit to each of the
Lenders; (ii) each prepayment shall be in an aggregate principal amount of at
least $5,000,000, in the case of Term Loans, $1,000,000, in the case of
Revolving Loans, $100,000 in the case of Swingline Loans and, in each case, if
greater, in integral multiples of $500,000, in the case of Term Loans and
$100,000, in the case of Revolving Loans and Swingline Loans (or, in each case,
such lesser amount of a Borrowing which is outstanding), provided that if any
partial prepayment of Eurodollar Loans made pursuant to any Borrowing shall
reduce the outstanding Eurodollar Loans made pursuant to such Borrowing to an
amount less than the Minimum Borrowing Amount applicable thereto, then such
Borrowing may not be continued as a Borrowing of Eurodollar Loans and any
election of an Interest Period with respect thereto given by the Borrower shall
have no force or effect; (iii) at the time of any prepayment of Eurodollar Loans
pursuant to this Section 4.01 on any date other than the last day of the
Interest Period applicable thereto, the Borrower shall pay the amounts required
pursuant to Section 1.11; (iv) in the event of certain refusals by a Lender as
provided in Section 13.12(b) to consent to certain proposed changes, waivers,
discharges or terminations with respect to this Agreement which have been
approved by the Required Lenders, the Borrower may, upon five Business Days'
prior written notice to the Administrative Agent at its Notice Office (which
notice the Administrative Agent shall promptly transmit to each of the Lenders)
repay all Loans, together with accrued and unpaid interest, Fees, and other
amounts owing to such Lender (or owing to such Lender with respect to each
Tranche which gave rise to the need to obtain such Lender's individual consent)
in accordance with said Section 13.12(b) so long as (A) in the case of the
repayment of Revolving Loans of any Lender pursuant to this clause (iv), the
Revolving Loan Commitment of such Lender is terminated concurrently with such
repayment (at which time Schedule I shall be deemed modified to reflect the
changed Revolving Loan Commitments) and (B) the consents required by Section
13.12(b) in connection with the repayment pursuant to this clause (iv) have been
obtained; (v) except as expressly provided in the preceding clause (iv), each
voluntary prepayment of Term Loans pursuant to this Section 4.01 shall be
applied, subject to modification of such application as set forth in Section
4.02(k), to the Tranche A Term Loans and Tranche B Term Loans on a pro rata
basis (based upon the then outstanding principal amount of Tranche A Term Loans
and Tranche B Term Loans); (vi) except as expressly provided in the preceding
clause (iv), each prepayment in respect of any Loans made pursuant to a
Borrowing shall be applied pro rata among the Loans comprising such Borrowing;
provided that at the Borrower's election in connection with any prepayment of
Revolving Loans pursuant to this Section 4.01, such prepayment shall not be
applied to any Revolving Loan of a Defaulting
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Lender; and (vii) any such prepayment of the respective Tranche of Term Loans
shall first be applied in direct order of maturity to those Scheduled Repayments
of the respective Tranche which are due within 12 months after the date of such
prepayment (based upon the then remaining principal amounts of such Scheduled
Repayments after giving effect to all prior reductions thereto), with any excess
amount of such prepayment to be applied to the then remaining Scheduled
Repayments of the respective Tranche of Term Loans on a pro rata basis as
otherwise provided below in this clause (vii) unless the Borrower notifies the
Administrative Agent that it does not desire such application in which event
such payment shall be applied to the then remaining Scheduled Repayments of the
respective Tranche of Term Loans on a pro rata basis based upon the then
remaining principal amounts of the Scheduled Repayments of the respective
Tranche after giving effect to all prior reductions thereto.
(b) All voluntary prepayments of the Tranche B Term Loans shall
be accompanied by a prepayment premium of (x) 2% of the principal amount
prepaid, if such repayment occurs on or prior to the first anniversary of the
Initial Borrowing Date and (y) 1% of the principal amount prepaid, if such
repayment occurs after the first anniversary of the Initial Borrowing Date and
on or prior to the second anniversary of the Initial Borrowing Date.
4.02 Mandatory Repayments and Commitment Reductions. (a)(i) On
any date on which the sum of the aggregate outstanding principal amount of the
Revolving Loans made by Non-Defaulting Lenders, the outstanding principal amount
of the Swingline Loans and the Letter of Credit Outstandings on such date
exceeds the Adjusted Total Revolving Loan Commitment as then in effect, the
Borrower shall prepay on such date the principal of Swingline Loans and, after
the Swingline Loans have been repaid in full, Revolving Loans of Non-Defaulting
Lenders in an amount equal to such excess. If, after giving effect to the
prepayment of all outstanding Swingline Loans and all outstanding Revolving
Loans of Non-Defaulting Lenders, the aggregate amount of the Letter of Credit
Outstandings exceeds the Adjusted Total Revolving Loan Commitment as then in
effect, the Borrower shall pay to the Administrative Agent at the Payment Office
on such date an amount in cash and/or Cash Equivalents equal to the amount of
such excess (up to a maximum amount equal to the Letter of Credit Outstandings
at such time), such cash and/or Cash Equivalents to be held as security for all
obligations of the Borrower to Non-Defaulting Lenders hereunder in a cash
collateral account to be established by the Administrative Agent pursuant to a
cash collateral agreement to be entered into in form and substance reasonably
satisfactory to the Administrative Agent.
(ii) On any date on which the aggregate outstanding principal
amount of the Revolving Loans made by any Defaulting Lender exceeds the
Revolving Loan Commitment of such Defaulting Lender, the Borrower shall prepay
on such date principal of Revolving Loans of such Defaulting Lender in an amount
equal to such excess.
(b) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date set forth below, the
Borrower shall be required to repay that principal amount of Tranche A Term
Loans, to the extent then outstanding, as is set forth opposite such date (each
such repayment, as the same may be reduced as provided in Sections 4.01 and
4.02(h), a "Tranche A Scheduled Repayment," and each such date, a "Tranche A
Scheduled Repayment Date"):
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Tranche A
Scheduled Repayment Date Amount
- ------------------------ ------
March 31, 2000 $833,000
June 30, 2000 $833,000
September 30, 2000 $834,000
December 31, 2000 $1,250,000
March 31, 2001 $1,250,000
June 30, 2001 $1,250,000
September 30, 2001 $1,250,000
December 31, 2001 $3,750,000
March 31, 2002 $3,750,000
June 30, 2002 $3,750,000
September 30, 2002 $3,750,000
December 31, 2002 $5,625,000
March 31, 2003 $5,625,000
June 30, 2003 $5,625,000
September 30, 2003 $5,625,000
December 31, 2003 $8,750,000
March 31, 2004 $8,750,000
June 30, 2004 $8,750,000
Tranche A Term Loan Maturity Date $8,750,000
(c) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date set forth below, the
Borrower shall be required to repay that principal amount of Tranche B Term
Loans, to the extent then outstanding, as is set forth opposite such date (each
such repayment, as the same may be reduced as provided in Sections 4.01 and
4.02(h), a "Tranche B Scheduled Repayment," and each such date, a "Tranche B
Scheduled Repayment Date"):
Tranche B
Scheduled Repayment Date Amount
- ------------------------ ------
March 31, 2000 $833,000
June 30, 2000 $833,000
September 30, 2000 $834,000
December 31, 2000 $625,000
March 31, 2001 $625,000
June 30, 2001 $625,000
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Tranche B
Scheduled Repayment Date Amount
- ------------------------ ------
September 30, 2001 $625,000
December 31, 2001 $625,000
March 31, 2002 $625,000
June 30, 2002 $625,000
September 30, 2002 $625,000
December 31, 2002 $625,000
March 31, 2003 $625,000
June 30, 2003 $625,000
September 30, 2003 $625,000
December 31, 2003 $625,000
February 29, 2004 $625,000
June 30, 2004 $625,000
September 30, 2004 $625,000
December 31, 2004 $625,000
March 31, 2005 $625,000
June 30, 2005 $625,000
September 30, 2005 $178,125,000
December 31, 2005 $143,750
March 31, 2006 $143,750
June 30, 2006 $143,750
Tranche B Term Loan Maturity Date $57,068,750
(d) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date after the Effective Date
upon which the Borrower or any of its Subsidiaries receives any proceeds from
any incurrence by the Borrower or any of its Subsidiaries of Indebtedness (other
than Indebtedness permitted to be incurred pursuant to Section 9.04), an amount
equal to the cash proceeds (net of underwriting discounts and commissions and
other fees, expenses and costs associated therewith including, without
limitation, legal fees and expenses) of the respective incurrence of
Indebtedness shall be applied as a mandatory repayment of principal of
outstanding Term Loans (or, if the Initial Borrowing Date has not yet occurred,
such amounts shall be applied as a mandatory reduction to the Total Term Loan
Commitment) in accordance with the requirements of Sections 4.02(h) and (i).
(e) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, within five Business Days after each
date after the Effective Date upon which the Borrower or any of its Subsidiaries
receives any Net Asset Sale Proceeds, an amount equal to 100% of such Net Asset
Sale Proceeds shall be applied as a mandatory repayment of principal of
outstanding Term Loans in accordance with the requirements of Sections 4.02(h)
and
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(i); provided that the Net Asset Sale Proceeds received by the Borrower or any
of its Subsidiaries in connection with any Asset Sale (including the proceeds of
a Permitted Sale-Leaseback Transaction) shall not give rise to a mandatory
repayment within five Business Days after the date of the receipt of such Net
Asset Sale Proceeds so long as (i) no Default or Event of Default shall have
occurred and be continuing on the date of receipt of such Net Asset Sale
Proceeds, (ii) the aggregate amount of Net Asset Sale Proceeds not applied in
any fiscal year of the Borrower pursuant to this proviso do not exceed
$15,000,000 and (iii) the Borrower delivers an officer's certificate to the
Administrative Agent within five Business Days after the date of receipt of such
Net Asset Sale Proceeds stating that the conditions set forth in clauses (i) and
(ii) are satisfied and that an amount equal to such Net Asset Sale Proceeds
shall be used to purchase equipment or other assets useful in a Permitted
Business (including capital stock of a Person engaged in such business) of the
Borrower and its Subsidiaries (such assets being "Eligible Assets") within 365
days following the date of receipt of such Net Asset Sale Proceeds (which
certificate shall set forth (or if not set forth in such certificate, in an
additional certificate to be delivered within thirty days after the date of
receipt of such Net Asset Sale Proceeds) the estimates of the proceeds to be so
expended and such other information with respect to such reinvestment as the
Administrative Agent may reasonably request); and provided further, that if all
or any portion of such Net Asset Sale Proceeds referred to in preceding proviso
are not so used within the 365 days period following the date of the respective
receipt of such Net Asset Sale Proceeds, such remaining portion not so used
shall be applied on such 365th day (or, if such date shall not be a Business
Day, the immediately preceding Business Day) as a mandatory repayment of
principal of outstanding Term Loans in accordance with the requirements of
Sections 4.02(h) and (i); provided that so long as no Material Default or Event
of Default shall have occurred and be continuing, no mandatory repayment shall
be required hereunder until the aggregate amount of Net Asset Sale Proceeds
which have not previously been applied as a mandatory repayment equals at least
$1,000,000. If the Borrower is required to apply any portion of asset sale
proceeds to prepay or offer to prepay Indebtedness evidenced by the Senior
Subordinated Notes or Permitted Subordinated Refinancing Indebtedness (under the
terms of the Senior Subordinated Notes Indenture or the documentation relating
thereto, as the case may be), then notwithstanding anything contained in this
Agreement to the contrary the Borrower shall apply such asset sale proceeds as a
mandatory prepayment of the principal of outstanding Term Loans in accordance
with requirements of Sections 4.02(h) and (i).
(f) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, within 10 Business Days (or such
greater time, not to exceed 60 days, as is acceptable to the Administrative
Agent) following each date after the Effective Date on which the Borrower or any
of its Subsidiaries receives any Net Insurance/Condemnation Proceeds, an amount
equal to 100% of such Net Insurance/Condemnation Proceeds shall be applied as a
mandatory repayment of principal of outstanding Term Loans in accordance with
the requirements of Sections 4.02(h) and (i); provided that Net
Insurance/Condemnation Proceeds received by the Borrower or any of its
Subsidiaries shall not give rise to a mandatory repayment within such 10
Business Day period (or such greater time, not to exceed 60 days, as is
acceptable to the Administrative Agent) so long as (i) no Material Default or
Event of Default shall have occurred and be continuing and (ii) to the extent
that the Borrower delivers an officer's certificate to the Administrative Agent
within such 10 Business Day period (or such greater time, not to
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exceed 60 days, as is acceptable to the Administrative Agent) stating that such
Net Insurance/Condemnation Proceeds have been or are intended to be used within
365 days of such date of receipt of such Net Insurance/Condemnation Proceeds to
replace, repair or restore any properties or assets in respect of which such Net
Insurance/Condemnation Proceeds were paid or to purchase Eligible Assets;
provided that the Borrower shall have 730 days following the date of receipt of
such Net Insurance/Condemnation Proceeds to complete such replacement, repair or
restoration if (w) the intended replacement, repair or restoration cannot be
completed within such 365 day period, (x) the Borrower, during such 365 day
period, has entered into binding commitments with third parties to complete such
replacement, repair or restoration, (y) the Borrower diligently pursues the
completion of such replacement, repair or restoration and (z) the Borrower,
during such 365 day period delivers an officer's certificate to the
Administrative Agent certifying as to clause (w) through (y) of this proviso. If
all or any portion of such Net Insurance/Condemnation Proceeds not required to
be applied as a mandatory repayment pursuant to the preceding proviso are not so
used within 365 days or 730 days, as the case may be, after the date of the
receipt of such Net Insurance/Condemnation Proceeds, then such remaining portion
not so used shall be applied on the last day of such 365 day or 730 day, as the
case may be, period (or, if such day shall not be a Business Day, the
immediately preceding Business Day), to prepay Term Loans in accordance with the
requirements of Sections 4.02(h) and (i); provided that so long as no Material
Default or Event of Default shall have occurred and be continuing, no mandatory
prepayment shall be required hereunder until the aggregate amount of Net
Insurance/Condemnation Proceeds which have not been previously applied as a
mandatory repayment equals at least $1,000,000.
(g) In addition to any other mandatory repayments pursuant to
this Section 4.02, on each Excess Cash Payment Date, an amount equal to the
Applicable Excess Cash Flow Percentage of the Excess Cash Flow for the relevant
Excess Cash Payment Period shall be applied as a mandatory repayment of
principal of outstanding Term Loans in accordance with the requirements of
Sections 4.02(h) and (i).
(h) Each amount required to be applied to Term Loans (or to the
Total Term Loan Commitment) pursuant to Sections 4.02(d), (e), (f) and (g) shall
be applied, subject to modification of such application as set forth in Section
4.02(k), pro rata to each Tranche of Term Loans based upon the then remaining
principal amounts of the respective Tranches (with each Tranche of Term Loans to
be allocated that percentage of the amount to be applied as is equal to a
fraction (expressed as a percentage) the numerator of which is the then
outstanding principal amount of such Tranche of Term Loans (or, if the Initial
Borrowing Date has not yet occurred, the aggregate Term Loan Commitments of the
Lenders with respect to such Tranche) and the denominator of which is equal to
the then outstanding principal amount of all Term Loans (or, if the Initial
Borrowing Date has not yet occurred, the then Total Term Loan Commitment)). Any
amount required to be applied to any Tranche of Term Loans pursuant to Sections
4.02(d), (e), (f) and (g) shall be applied to repay the outstanding principal
amount of Term Loans of the respective Tranche then outstanding (or, if the
Initial Borrowing Date has not yet occurred, to reduce the Total Tranche A Term
Loan Commitment or the Total Tranche B Term Loan Commitment, as the case may
be). Any such repayment (or reduction) shall first be applied in direct order of
maturity to reduce the then remaining Scheduled Repayments of the respective
Tranche of Term Loans which are due within 12 months after the date of such
repayment (or reduction), with any excess amount of such repayment (or
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reduction) to be applied to the then remaining Scheduled Repayments on a pro
rata basis as otherwise provided below in this Section 4.02(h) unless the
Borrower notifies the Administrative Agent that it does not desire such
application in which event such repayment shall be applied to the then remaining
Scheduled Repayments of the respective Tranche of Term Loans on a pro rata basis
based upon the then remaining principal amounts of the Scheduled Repayments of
the respective Tranche after giving effect to all prior reductions thereto.
(i) With respect to each repayment of Loans required by this
Section 4.02, the Borrower may designate the Types of Loans of the respective
Tranche which are to be repaid and, in the case of Eurodollar Loans, the
specific Borrowing or Borrowings of the respective Tranche pursuant to which
made, provided that: (i) repayments of Eurodollar Loans pursuant to this Section
4.02 may only be made on the last day of an Interest Period applicable thereto
unless all Eurodollar Loans of the respective Tranche with Interest Periods
ending on such date of required repayment and all Base Rate Loans of the
respective Tranche have been paid in full; (ii) if any repayment of Eurodollar
Loans made pursuant to a single Borrowing shall reduce the outstanding
Eurodollar Loans made pursuant to such Borrowing to an amount less than the
Minimum Borrowing Amount with respect thereto, such Borrowing shall be converted
at the end of the then current Interest Period into a Borrowing of Base Rate
Loans; and (iii) each repayment of any Loans made pursuant to a Borrowing shall
be applied pro rata among such Loans. In the absence of a designation by the
Borrower as described in the preceding sentence, the Administrative Agent shall,
subject to the above, make such designation in its sole discretion.
(j) Notwithstanding anything to the contrary contained elsewhere
in this Agreement, (i) all then outstanding Swingline Loans shall be repaid in
full on the Swingline Expiry Date and (ii) all other then outstanding Loans
shall be repaid in full on the respective Maturity Date for such Loans.
(k) Notwithstanding anything to the contrary contained in this
Section 4.02 or elsewhere in this Agreement, (x) the Lenders with outstanding
Tranche B Term Loans (the "Tranche B Term Lenders") shall have the option,
without the consent of the Borrower, to waive a voluntary prepayment of such
Loans pursuant to Section 4.01 (a "Waivable Voluntary Repayment") and (y) the
Tranche B Term Lenders shall have the option, without the consent of the
Borrower, to waive a mandatory repayment of such Loans pursuant to Section
4.02(d), (e), (f) and (g) (each such repayment, a "Waivable Mandatory
Repayment") upon the terms and provisions set forth in this Section 4.02(k). The
Borrower shall give the Administrative Agent written notice at least five
Business Days prior to the date of each Waivable Voluntary Repayment or Waivable
Mandatory Repayment, as the case may be, which notice the Administrative Agent
shall promptly forward to all Tranche B Term Lenders (indicating in such notice
the amount of such repayment to be applied to each such Lender's outstanding
Term Loans under such Tranche). In the event any Tranche B Term Lender desires
to waive such Lender's right to receive any such Waivable Voluntary Repayment or
Waivable Mandatory Repayment, as the case may be, in whole or in part, such
Lender shall so advise the Administrative Agent no later than the close of
business two Business Days after the date of such notice from the Administrative
Agent, which notice shall also include the amount such Lender desires to receive
in respect of such repayment. If any Lender does not reply to the
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Administrative Agent within such two Business Day period, it will be deemed not
to have waived any part of such repayment. If any Lender does not specify an
amount it wishes to receive, it will be deemed to have accepted 100% of the
total payment. In the event that any such Lender waives all or part of such
right to receive any such Waivable Voluntary Repayment or Waivable Mandatory
Repayment, as the case may be, the Administrative Agent shall apply 100% of the
amount so waived by such Lender to the Tranche A Term Loans in accordance with
Section 4.01 or Section 4.02(h), as the case may be. Notwithstanding the
foregoing, in no event shall the amount of a Waivable Repayment exceed the
aggregate principal amount of Tranche A Term Loans that will be outstanding
after Lenders with outstanding Tranche A Term Loans receive their respective
shares of voluntary prepayments or mandatory repayments, as the case may be,
pursuant to Section 4.01 or 4.02(h), as the case may be (i.e., before giving
effect to any application of such Waivable Repayment to Tranche A Loans pursuant
to this Section 4.02(k)).
4.03 Method and Place of Payment. Except as otherwise
specifically provided herein, all payments under this Agreement or any Note
shall be made to the Administrative Agent for the account of the Lender or
Lenders entitled thereto not later than 12:00 Noon (New York time) on the date
when due and shall be made in Dollars in immediately available funds at the
Payment Office. Any payments under this Agreement or under any Note which are
made later than 12:00 Noon (New York time) shall be deemed to have been made on
the next succeeding Business Day. Whenever any payment to be made hereunder or
under any Note shall be stated to be due on a day which is not a Business Day,
the due date thereof shall be extended to the next succeeding Business Day and,
with respect to payments of principal, interest shall be payable at the
applicable rate during such extension.
4.04 Net Payments; Taxes. (a) All payments made by any Credit
Party hereunder or under any Note will be made without setoff, counterclaim or
other defense. Except as provided in Section 4.04(b), all such payments will be
made free and clear of, and without deduction or withholding for, any present or
future taxes, levies, imposts, duties, fees, assessments or other charges of
whatever nature now or hereafter imposed by any jurisdiction or by any political
subdivision or taxing authority thereof or therein with respect to such payments
(but excluding, except as provided in the second succeeding sentence, any tax
imposed on or measured by the net income or net profits of a Lender pursuant to
the laws of the jurisdiction in which it is organized or the jurisdiction in
which the principal office or applicable lending office of such Lender is
located or any subdivision thereof or therein) and all interest, penalties or
similar liabilities with respect to such non-excluded taxes, levies, imposts,
duties, fees, assessments or other charges (all such non-excluded taxes, levies,
imposts, duties, fees, assessments or other charges being referred to
collectively as "Taxes"). If any Taxes are so levied or imposed, the Borrower
agrees to pay the full amount of such Taxes, and such additional amounts as may
be necessary so that every payment of all amounts due under this Agreement or
under any Note, after withholding or deduction for or on account of any Taxes,
will not be less than the amount provided for herein or in such Note. If any
amounts are payable in respect of Taxes pursuant to the preceding sentence, the
Borrower agrees to reimburse each Lender, upon the written request of such
Lender, for taxes imposed on or measured by the net income or net profits of
such Lender pursuant to the laws of the jurisdiction in which such Lender is
organized or in which the principal office or applicable lending office of such
Lender is located or under the laws of any political subdivision or taxing
authority of any such jurisdiction in which such Lender is organized or in which
the principal
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office or applicable lending office of such Lender is located and for any
withholding of taxes as such Lender shall determine are payable by, or withheld
from, such Lender, in respect of such amounts so paid to or on behalf of such
Lender pursuant to the preceding sentence and in respect of any amounts paid to
or on behalf of such Lender pursuant to this sentence. The Borrower will furnish
to the Administrative Agent within 45 days after the date the payment of any
Taxes is due pursuant to applicable law certified copies of tax receipts
evidencing such payment by the Borrower. The Borrower agrees to indemnify and
hold harmless each Lender, and reimburse such Lender upon its written request,
for the amount of any Taxes so levied or imposed and paid by such Lender.
(b) Each Lender that is not a United States person (as such term
is defined in Section 7701(a)(30) of the Code) for U.S. federal income tax
purposes agrees to deliver to the Borrower and the Administrative Agent on or
prior to the Effective Date, or in the case of a Lender that is an assignee or
transferee of an interest under this Agreement pursuant to Section 1.13 or 13.04
(unless the respective Lender was already a Lender hereunder immediately prior
to such assignment or transfer), on the date of such assignment or transfer to
such Lender, (i) two accurate and complete original signed copies of Internal
Revenue Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption
under an income tax treaty) (or successor forms) certifying to such Lender's
entitlement as of such date to a complete exemption from United States
withholding tax with respect to payments to be made under this Agreement and
under any Note, or (ii) if the Lender is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue
Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption under
an income tax treaty) pursuant to clause (i) above, (x) a certificate
substantially in the form of Exhibit D (any such certificate, a "Section
4.04(b)(ii) Certificate") and (y) two accurate and complete original signed
copies of Internal Revenue Service Form W-8BEN (with respect to the portfolio
interest exemption) (or successor form) certifying to such Lender's entitlement
to a complete exemption from United States withholding tax with respect to
payments of interest to be made under this Agreement and under any Note. In
addition, each Lender agrees that from time to time after the Effective Date,
when a lapse in time or change in circumstances renders the previous
certification obsolete or inaccurate in any material respect, it will deliver to
the Borrower and the Administrative Agent two new accurate and complete original
signed copies of Internal Revenue Service Form W-8ECI or Form W-8BEN (with
respect to the benefits of an income tax treaty), or Form W-8BEN (with respect
to the portfolio interest exemption) and a Section 4.04(b)(ii) Certificate, as
the case may be, and such other forms as may be required in order to confirm or
establish the entitlement as of such date of such Lender to a continued
exemption from or reduction in United States withholding tax with respect to
payments under this Agreement and any Note, or it shall immediately notify the
Borrower and the Administrative Agent of its inability to deliver any such Form
or Certificate, in which case such Lender shall not be required to deliver any
such Form or Certificate pursuant to this Section 4.04(b). Notwithstanding
anything to the contrary contained in Section 4.04(a), but subject to Section
13.04(b) and the immediately succeeding sentence, (x) the Borrower shall be
entitled, to the extent it is required to do so by law, to deduct or withhold
Taxes imposed by the United States (or any political subdivision or taxing
authority thereof or therein) from interest, Fees or other amounts payable
hereunder for the account of any Lender which is not a United States person (as
such term is defined in Section 7701(a)(30) of the Code) for U.S. Federal
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income tax purposes to the extent that such Lender has not provided to the
Borrower U.S. Internal Revenue Service Forms that establish a complete exemption
from such deduction or withholding and (y) the Borrower shall not be obligated
pursuant to Section 4.04(a) hereof to gross-up payments to be made to a Lender
in respect of Taxes imposed by the United States if (I) such Lender has not
provided to the Borrower the Internal Revenue Service Forms required to be
provided to the Borrower pursuant to this Section 4.04(b) or (II) in the case of
a payment, other than interest, to a Lender described in clause (ii) above, to
the extent that such Forms do not establish a complete exemption from
withholding of such taxes. Notwithstanding anything to the contrary contained in
the preceding sentence or elsewhere in this Section 4.04 and except as set forth
in Section 13.04(b), the Borrower agrees to pay any additional amounts and to
indemnify each Lender in the manner set forth in Section 4.04(a) (without regard
to the identity of the jurisdiction requiring the deduction or withholding) in
respect of any Taxes deducted or withheld by it as described in the immediately
preceding sentence as a result of any changes that are effective after the
Effective Date in any applicable law, treaty, governmental rule, regulation,
guideline or order, or in the interpretation thereof, relating to the deducting
or withholding of such Taxes.
SECTION 5. Conditions Precedent to Loans. The obligation of each
Lender to make Loans, and the obligation of each Issuing Bank to issue Letters
of Credit, in each case on the Initial Borrowing Date, is subject at the time of
the making of such Loans or the issuance of such Letters of Credit to the
satisfaction of the following conditions:
5.01 Execution of Agreement; Notes. On or prior to the Initial
Borrowing Date (i) the Effective Date shall have occurred and (ii) there shall
have been delivered to the Administrative Agent for the account of each Lender
which has requested the same, the appropriate Tranche A Term Note, Tranche B
Term Note and/or Revolving Note and to the Swingline Lender if so requested, the
Swingline Note, in each case executed by the Borrower and in the amount,
maturity and as otherwise provided herein.
5.02 Fees, etc. On the Initial Borrowing Date, all costs, fees
and expenses and all other compensation (including, without limitation, legal
fees and expenses, title insurance premiums, survey charges and recording taxes
and fees) payable to the Administrative Agent, the Co-Lead Arrangers and the
Lenders shall have been paid to the extent then due and to the extent that a
statement or statements for such amounts shall have been provided to the
Borrower by no later than the Business Day immediately preceding the Initial
Borrowing Date.
5.03 Opinions of Counsel. On the Initial Borrowing Date, the
Administrative Agent shall have received from (i) Skadden, Arps, Slate, Meagher
& Flom LLP, special counsel to the Borrower and its Subsidiaries, an opinion
addressed to the Administrative Agent, the Collateral Agent and each of the
Lenders and dated the Initial Borrowing Date covering the matters set forth in
Exhibit E and such other matters incident to the transactions contemplated
herein as the Administrative Agent and the Required Lenders may reasonably
request and in form and substance reasonably satisfactory to the Administrative
Agent and the Required Lenders, (ii) counsel rendering such opinions, reliance
letters addressed to the Administrative Agent and each of the Lenders and dated
the Initial Borrowing Date, with respect to certain other legal opinions
delivered in connection with the Transaction and (iii) local counsel
satisfactory to the Administrative Agent, opinions each of which (x) shall be
addressed to Administrative Agent,
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the Collateral Agent and each of the Lenders and be dated the Initial Borrowing
Date, (y) shall be in form and substance reasonably satisfactory to the
Administrative Agent and the Required Lenders and (z) shall cover the perfection
of security interests granted pursuant to the Security Agreement and the
Mortgages and such other matters incident to the transactions contemplated
herein as the Administrative Agent may reasonably request.
5.04 Corporate Documents; Proceedings; etc. (a) On the Initial
Borrowing Date, the Administrative Agent shall have received a certificate,
dated the Initial Borrowing Date, signed by an Authorized Officer of each Credit
Party, and attested to by the Secretary or any Assistant Secretary of such
Credit Party, as the case may be, in the form of Exhibit F with appropriate
insertions, together with copies of the Certificate of Incorporation and By-Laws
(or equivalent organizational documents) of such Credit Party and the
resolutions of such Credit Party referred to in such certificate, and the
foregoing shall be reasonably satisfactory to the Administrative Agent.
(b) All corporate and legal proceedings and all material
instruments and agreements in connection with the transactions contemplated by
this Agreement and the other Documents shall be reasonably satisfactory in form
and substance to the Administrative Agent and the Required Lenders, and the
Administrative Agent shall have received all information and copies of all
documents and papers, including records of corporate proceedings, governmental
approvals, good standing certificates and bring-down telegrams or facsimiles, if
any, which any Agent reasonably may have requested in connection therewith, such
documents and papers where appropriate to be certified by proper corporate or
governmental authorities.
(c) On the Initial Borrowing Date and after giving effect to the
Transaction, the ownership and capital structure (including, without limitation,
the terms of any capital stock, options, warrants or other securities issued by
the Borrower or any of its Subsidiaries), and management of the Borrower and its
Subsidiaries shall be in form and substance reasonably satisfactory to the
Administrative Agent and the Required Lenders.
5.05 Employee Benefit Plans; Shareholders' Agreements; Management
Agreements; Debt Agreements; Tax Sharing Agreements; Employment Agreements;
Collective Bargaining Agreements and Material Contracts. (a) On the Initial
Borrowing Date, there shall have been made available or delivered to the
Administrative Agent true and correct copies, certified as true and complete by
an appropriate officer of the Borrower, of the following documents, in each case
as the same will be in effect on the Initial Borrowing Date after the
consummation of the Transaction:
(i) all Plans (and for each Plan that is required to file an
annual report on Internal Revenue Service Form 5500-series, a copy of
the most recent such report (including, to the extent required, the
related financial and actuarial statements and opinions and other
supporting statements, certifications, schedules and information), and
for each Plan that is a "single-employer plan," as defined in Section
4001(a)(15) of ERISA, the most recently prepared actuarial valuation
therefor) and any other "employee benefit plans," as defined in Section
3(3) of ERISA, and any other material agreements, plans or arrangements,
with or for the benefit of current or former employees of the Borrower
or any of its
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Subsidiaries or any ERISA Affiliate (provided that the foregoing shall
apply in the case of any Multiemployer Plan, only to the extent that
any document described therein is in the possession of the Borrower or
any of its Subsidiaries or any ERISA Affiliate or reasonably available
thereto from the sponsor or trustee of any such plan) (collectively,
the "Employee Benefit Plans").
(b) On the Initial Borrowing Date, there shall have been
delivered to the Administrative Agent, to the extent requested by the
Administrative Agent, true and correct copies, certified as true and complete by
an officer of the Borrower, of the following documents, in each case as the same
will be in effect on the Initial Borrowing Date after the consummation of the
Transaction:
(i) all agreements entered into by the Borrower or any of its
Subsidiaries governing the terms and relative rights of its capital
stock and any agreements entered into by shareholders relating to any
such entity with respect to its capital stock (collectively, as amended,
modified, supplemented or replaced to the extent permitted by the terms
hereof, the "Shareholders' Agreements");
(ii) all agreements with members of, or with respect to, the
management of the Borrower or any of its Subsidiaries after giving
effect to the Transaction (collectively, as amended, modified,
supplemented or replaced to the extent permitted by the terms hereof,
the "Management Agreements");
(iii) all agreements evidencing or relating to Indebtedness of the
Borrower or any of its Subsidiaries which is to remain outstanding
immediately after giving effect to the Transaction (collectively, the
"Debt Agreements");
(iv) all tax sharing, tax allocation and other similar agreements
entered into by the Borrower or any of its Subsidiaries (collectively,
as amended, modified, supplemented or replaced to the extent permitted
by the terms hereof, the "Tax Sharing Agreements");
(v) any material employment agreements to which the Borrower or
any of its Subsidiaries is a party after giving effect to the
Transaction (collectively, the "Employment Agreements");
(vi) all collective bargaining agreements applying or relating to
any employee of the Borrower or any of its Subsidiaries after giving
effect to the Transaction (collectively, the "Collective Bargaining
Agreements"); and
(vii) all other material contracts and licenses of the Borrower and
any of its Subsidiaries after giving effect to the Transaction
(collectively, the "Material Contracts");
all of which Employee Benefit Plans, Shareholders' Agreements, Management
Agreements, Debt Agreements, Tax Sharing Agreements, Employment Agreements,
Collective Bargaining Agreements and Material Contracts shall be in form and
substance reasonably satisfactory to the Administrative Agent and shall be in
full force and effect on the Initial Borrowing Date.
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5.06 Consummation of the Transaction. (a) On or prior to the
Initial Borrowing Date, (i) each of the Tenet Acquisition and the
Recapitalization shall have been consummated in accordance with all applicable
law and the respective Transaction Documents, (ii) the Borrower shall have
received gross cash proceeds from the issuance of the Senior Subordinated Notes
in an aggregate principal amount of at least $230,000,000 and the proceeds
thereof shall have been utilized to make payments owing in connection with the
Tenet Acquisition and the Refinancing prior to or concurrently with any use of
the proceeds of Loans, (iii) the Borrower shall have received gross cash
proceeds of approximately $160,000,000 from the issuance of Borrower Preferred
Stock (the "Preferred Equity Issuance") to the Direct Investors and the proceeds
thereof shall have been utilized to make payments owing in connection with the
Tenet Acquisition and the Refinancing prior to or concurrently with any proceeds
of Loans and (iv) the cash proceeds received from the Preferred Equity Issuance
and the issuance of the Senior Subordinated Notes, when added to the aggregate
principal amount of Term Loans incurred on the Initial Borrowing Date, shall be
sufficient to effect the Tenet Acquisition and the Refinancing and to pay fees
and expenses in connection therewith.
(b) On the Initial Borrowing Date, the Administrative Agent shall
have received true and correct copies of all Transaction Documents, Borrower
Preferred Stock Documents and Senior Subordinated Notes Documents, all of which
shall be in full force and effect, and all terms and conditions of the foregoing
Documents (including, without limitation, in the case of the Senior Subordinated
Notes Documents, amortization, maturities, interest rates, covenants, defaults,
remedies, sinking fund provisions and subordination provisions and, in the case
of Borrower Preferred Stock, maturity, limitation on cash dividends payable,
dividend rate, conversion features, covenants and redemption provisions) shall
be in form and substance reasonably satisfactory to the Administrative Agent and
Required Lenders.
(c) On the Initial Borrowing Date, all conditions precedent to
the consummation of the Tenet Acquisition, and the Preferred Equity Issuance and
the Senior Subordinated Notes as set forth in the Tenet Acquisition Documents,
Borrower Preferred Stock Documents and the Senior Subordinated Note Documents,
as the case may be, shall have been satisfied in all material respects, and not
waived unless consented to by the Administrative Agent and the Required Lenders,
to the satisfaction of the Administrative Agent and the Required Lenders.
(d) On the Initial Borrowing Date, each of the Preferred Equity
Issuance and the issuance of the Senior Subordinated Notes shall have been
consummated in accordance with the terms and conditions of the applicable
Documents and all applicable law.
5.07 Refinancing; Existing Indebtedness. (a) On the Initial
Borrowing Date, all Indebtedness to be Refinanced (including the Existing Credit
Facilities) shall have been repaid in full by the Borrower, all commitments in
respect thereof shall have been terminated, all letters of credit (including the
Existing Letters of Credit) issued pursuant to the documents evidencing the
Indebtedness to be Refinanced shall have been terminated, incorporated hereunder
as Letters of Credit as contemplated by Section 2.01(e) or supported by a
back-stop Letter of Credit issued hereunder and all Liens and guaranties in
connection therewith shall have been terminated (and all appropriate releases,
termination statements or other instruments of assignment with respect
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thereto or arrangements therefor shall have been obtained) to the reasonable
satisfaction of the Administrative Agent. Without limiting the foregoing, there
shall have been delivered to the Administrative Agent (x) proper termination
statements (Form UCC-3 or the appropriate equivalent) for filing under the UCC
of each jurisdiction where a financing statement (Form UCC-1 or the appropriate
equivalent) was filed with respect to the Borrower or any of its Subsidiaries in
connection with the security interest created with respect to the Indebtedness
to be Refinanced and the documentation related thereto and (y) terminations (or
arrangements therefor) of all mortgages, leasehold mortgages and deeds of trust
created with respect to property of the Borrower or any of its Subsidiaries, in
each case, to secure the obligations under the Indebtedness to be Refinanced,
all of which shall be in form and substance satisfactory to the Administrative
Agent.
(b) On the Initial Borrowing Date and after giving effect to the
Transaction, the Borrower and its Subsidiaries shall have no Indebtedness or
preferred stock outstanding other than (i) the Loans, (ii) the Senior
Subordinated Notes, (iii) the Borrower Preferred Stock and (iv) certain other
indebtedness existing on the Initial Borrowing Date acceptable to the
Administrative Agent and the Required Lenders as listed on Schedule V.A hereto
in an aggregate outstanding principal amount not to exceed $5,000,000 (with the
Indebtedness described in this sub-clause (iv) being herein called the "Existing
Indebtedness"). On and as of the Initial Borrowing Date, all of the Existing
Indebtedness shall remain outstanding after giving effect to the Transaction and
the other transactions contemplated hereby without any default or event of
default existing thereunder or arising as a result of the Transaction and the
other transactions contemplated hereby (except to the extent amended or waived
by the parties thereto on terms and conditions reasonably satisfactory to the
Administrative Agent and the Required Lenders).
(c) On the Initial Borrowing Date, the Administrative Agent shall
have received evidence in form and substance reasonably satisfactory to the
Administrative Agent that the matters set forth in this Section 5.07 have been
satisfied.
5.08 Guaranties. On the Initial Borrowing Date, each Subsidiary
Guarantor shall have duly authorized, executed and delivered a Subsidiaries
Guaranty in the form of Exhibit G (as modified, supplemented or amended from
time to time, the "Subsidiaries Guaranty") and the Subsidiaries Guaranty shall
be in full force and effect.
5.09 Pledge Agreement; Hypothecation Agreement. (a) On the
Initial Borrowing Date, the Borrower and each Subsidiary Guarantor shall have
duly authorized, executed and delivered a Pledge Agreement in the form of
Exhibit H (as modified, supplemented or amended from time to time, the "Pledge
Agreement"), and each such Credit Party shall have delivered to the Collateral
Agent, as pledgee thereunder, all of the certificates representing the Pledged
Securities referred to therein and owned by such Credit Party on the Initial
Borrowing Date, endorsed in blank (in the case of promissory notes) or
accompanied by executed and undated stock powers (in the case of capital stock),
and the Pledge Agreement shall be in full force and effect.
(b) On the Initial Borrowing Date, each Direct Investor shall
have duly authorized, executed and delivered a Hypothecation Agreement in the
form of Exhibit I (as
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modified, supplemented or amended from time to time, the "Hypothecation
Agreement"), and each such Direct Investor shall have delivered to the
Collateral Agent, as pledgee thereunder, all of the certificates representing
the Pledged Securities referred to therein and owned by such Direct Investor on
the Initial Borrowing Date accompanied by executed and undated stock powers, and
the Hypothecation Agreement shall be in full force and effect.
5.10 Security Agreement. On the Initial Borrowing Date, the
Borrower and each Subsidiary Guarantor shall have duly authorized, executed and
delivered a Security Agreement in the form of Exhibit J (as modified,
supplemented or amended from time to time, the "Security Agreement") covering
all of the Security Agreement Collateral, in each case together with:
(i) proper Financing Statements (Form UCC-1) fully executed for
filing under the UCC or other appropriate filing offices of each
jurisdiction as may be necessary or, in the reasonable opinion of the
Collateral Agent, desirable to perfect the security interests purported
to be created by the Security Agreement;
(ii) certified copies of Requests for Information or Copies (Form
UCC-11), or equivalent reports, each of a recent date listing all
effective financing statements that name any Credit Party as debtor and
that are filed in the jurisdictions referred to in clause (a) above,
together with copies of such other financing statements (none of which
shall cover the Collateral except to the extent evidencing Permitted
Liens or in respect of which the Collateral Agent shall have received
termination statements (Form UCC-3) or such other termination statements
as shall be required by local law) fully executed for filing;
(iii) evidence of execution for post-closing filing and
recordation of all other recordings and filings of, or with respect to,
the Security Agreement as may be necessary or, in the reasonable opinion
of the Collateral Agent, desirable to perfect the security interests
intended to be created by such Security Agreement; and
(iv) evidence that all other actions necessary or, in the
reasonable opinion of the Collateral Agent, desirable to perfect and
protect the security interests purported to be created by the Security
Agreement have been taken;
and the Security Agreement shall be in full force and effect.
5.11 Mortgages; Title Insurance; Surveys; etc. On the Initial
Borrowing Date, the Collateral Agent shall have received:
(a) fully executed counterparts of mortgages, deeds of trust or
deeds to secure debt, in each case in form and substance reasonably
satisfactory to the Collateral Agent (as amended, modified or
supplemented from time to time, each, a "Mortgage" and, collectively,
the "Mortgages"), which Mortgages shall cover such of the Real Property
owned or leased by the Borrower or any Subsidiary Guarantor (after
giving effect to the Transaction) as shall be designated as "Mortgaged
Properties" on Schedule III (each, a "Mortgaged Property" and,
collectively, the "Mortgaged Properties"), together with
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evidence that counterparts of the Mortgages have been delivered to the
title insurance company insuring the Lien of the Mortgages for
recording in all places to the extent necessary or, in the reasonable
opinion of the Collateral Agent, desirable to effectively create a
valid and enforceable first priority mortgage lien, subject only to
Permitted Encumbrances, on each Mortgaged Property in favor of the
Collateral Agent (or such other trustee as may be required or desired
under local law) for the benefit of the Secured Creditors;
(b) mortgagee title insurance policies (the "Mortgage Policies")
in connection with the Mortgaged Properties issued by Chicago Title
Insurance Company in amounts satisfactory to the Collateral Agent and
the Required Lenders and assuring the Collateral Agent that the
respective Mortgages on such mortgaged properties are valid and
enforceable first priority mortgage liens on the respective Mortgaged
Properties, free and clear of all defects and encumbrances except
Permitted Encumbrances, and such Mortgage Policies shall otherwise be in
form and substance reasonably satisfactory to the Collateral Agent and
(i) include the following endorsements (if available); comprehensive,
survey, contiguity, usury, creditor's rights, subsequent advance, tax,
doing-business, street, variable rate, zoning, environmental protection,
subdivision, tax deed, first loss, last dollar and tie-in, (ii) shall
not include an exception for mechanics' liens (unless such exception has
been insured over by the title company), and (iii) shall provide for
affirmative insurance and such reinsurance as the Collateral Agent in
its discretion may reasonably request;
(c) surveys in form and substance reasonably satisfactory to the
Collateral Agent of each Mortgaged Property, dated a recent date
reasonably acceptable to the Collateral Agent and certified in a manner
reasonably satisfactory to the Collateral Agent by a licensed
professional surveyor satisfactory to the Collateral Agent; and
(d) duly authorized, fully executed, acknowledged and delivered
landlord-lender agreements or owner-lender agreements and landlord
consents and waivers and such other documents relating to the Leaseholds
which are material to the conduct of the Borrower's business or are
subject to a mortgage and all the foregoing shall be in form and
substance reasonably satisfactory to the Collateral Agent.
5.12 Material Adverse Change, etc. (a) Since June 30, 1999, in
the case of the Paracelsus Business and May 31, 1999, in the case of the Tenet
Business, nothing shall have occurred which has had, or would reasonably be
expected to have a Material Adverse Effect or a material adverse change in the
consolidated business, assets, or financial condition or operations of either
Acquired Business.
(b) On or prior to the Initial Borrowing Date, all necessary
governmental (domestic and foreign), regulatory and third party approvals and/or
consents (including any necessary anti-trust approvals or consents) in
connection with the Transaction, the transactions contemplated by the Documents
and otherwise referred to herein or therein shall have been obtained and remain
in full force and effect, and all applicable waiting periods shall have expired
without any action being taken by any competent authority which restrains,
prevents or imposes
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materially adverse conditions upon the consummation of the Transaction, the
making of Loans or the transactions contemplated by the Documents. Additionally,
there shall not exist any judgment, order, injunction or other restraint or a
hearing seeking injunctive relief or other restraint pending or notified
prohibiting or imposing materially adverse conditions upon, or materially
delaying, or making economically unfeasible, the Transaction or the transactions
contemplated by the Documents.
5.13 Litigation. On the Initial Borrowing Date, no actions,
suits, proceedings or investigations by any entity (private or governmental)
shall be pending or, to the knowledge of the Borrower, threatened (a) with
respect to this Agreement or any other Document or the Transaction or (b) which
would reasonably be expected to have a Material Adverse Effect.
5.14 Solvency Certificate; Insurance. On or before the Initial
Borrowing Date, the Borrower shall cause to be delivered to the Administrative
Agent (i) a solvency certificate from the chief financial officer of the
Borrower in the form of Exhibit K hereto, which shall be addressed to the
Administrative Agent and each of the Lenders and be dated the Initial Borrowing
Date, setting forth the conclusion that, after giving effect to the Transaction
and the incurrence of all the financings contemplated herein, each of the
Borrower (on a stand-alone basis), and the Borrower and its Subsidiaries (on a
consolidated basis), in each case, are not insolvent and will not be rendered
insolvent by the indebtedness incurred in connection therewith, and will not be
left with unreasonably small capital with which to engage in its or their
businesses and will not have incurred debts beyond its or their ability to pay
debts as they mature and become due and (ii) certificates of insurance complying
with the requirements of Section 8.03 for the business and properties of the
Borrower and its Subsidiaries, in scope, form and substance reasonably
satisfactory to the Administrative Agent and naming the Collateral Agent as an
additional insured, mortgagee and/or loss payee, and stating that such insurance
shall not be canceled or revised without 30 days' prior written notice by the
insurer to the Collateral Agent.
5.15 Pro Forma Balance Sheet; Financial Statements; Projections.
On or prior to the Initial Borrowing Date, the Administrative Agent and the
Lenders shall have received true and correct copies of the financial statements
(including the pro forma financial statements) and Projections referred to in
Sections 7.05(a), (b) and (e), as applicable, and all of the foregoing shall be
in form and substance reasonably satisfactory to the Agents and the Required
Lenders.
SECTION 6. Conditions Precedent to All Credit Events. The
obligation of each Lender to make Loans (including Loans made on the Initial
Borrowing Date but excluding Mandatory Borrowings made thereafter, which shall
be made as provided in Section 1.01(e)), and the obligation of an Issuing Bank
to issue any Letter of Credit, is subject, at the time of each such Credit Event
(except as hereinafter indicated), to the satisfaction of the following
conditions:
6.01 No Default; Representations and Warranties. At the time of
each such Credit Event and also after giving effect thereto (i) there shall
exist no Default or Event of Default and (ii) all representations and warranties
contained herein or in any other Credit Document shall be true and correct in
all material respects with the same effect as though such representations and
warranties had been made on the date of such Credit Event (it being understood
and agreed that any representation or warranty which by its terms is made as of
a
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specified date shall be required to be true and correct in all material respects
only as of such specified date).
6.02 Notice of Borrowing; Letter of Credit Request. (a) Prior to
the making of each Loan (excluding Swingline Loans and Mandatory Borrowings),
the Administrative Agent shall have received the notice required by Section
1.03(a). Prior to the making of any Swingline Loan, the Swingline Lender shall
have received the notice required by Section 1.03(b)(i).
(b) Prior to the issuance of each Letter of Credit, the
Administrative Agent and the respective Issuing Bank shall have received a
Letter of Credit Request meeting the requirements of Section 2.02(a).
The occurrence of the Initial Borrowing Date and the acceptance of the proceeds
of each Credit Event shall constitute a representation and warranty by the
Borrower to the Administrative Agent and each of the Lenders that all the
conditions specified in Section 5 and in this Section 6 and applicable to such
Credit Event have been satisfied as of that time. All of the Notes,
certificates, legal opinions and other documents and papers referred to in
Section 5 and in this Section 6, unless otherwise specified, shall be delivered
to the Administrative Agent at the Notice Office or as otherwise directed by the
Administrative Agent for the account of each of the Lenders and, except for the
Notes, in sufficient counterparts for each of the Lenders and shall be in form
and substance reasonably satisfactory to the Administrative Agent.
SECTION 7. Representations, Warranties and Agreements. In order
to induce the Lenders to enter into this Agreement and to make the Loans, and
issue (or participate in) the Letters of Credit as provided herein, the Borrower
hereby makes the following representations, warranties and agreements, after
giving effect to the Transaction, all of which shall survive the execution and
delivery of this Agreement and the Notes and the making of the Loans and
issuance of the Letters of Credit, with the occurrence of the Initial Borrowing
Date and each Credit Event on or after the Initial Borrowing Date being deemed
to constitute a representation and warranty that the matters specified in this
Section 7 are true and correct in all material respects on and as of the Initial
Borrowing Date, and on the date of each such Credit Event (it being understood
and agreed that any representation or warranty which by its terms is made as of
a specified date shall be required to be true and correct in all material
respects only as of such specified date):
7.01 Corporate Status. Each of the Borrower and its Subsidiaries
(i) is a duly organized and validly existing corporation, limited partnership or
limited liability company, as the case may be, in good standing under the laws
of the jurisdiction of its incorporation, (ii) has the corporate or other
applicable power and authority to own its property and assets and to transact
the business in which it is engaged and presently proposes to engage and (iii)
is duly qualified and is authorized to do business and is in good standing in
each jurisdiction where the conduct of its business requires such qualifications
except for failures to be so qualified which, individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect.
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7.02 Corporate Power and Authority. Each Credit Party has the
corporate or other applicable power and authority to execute, deliver and
perform the terms and provisions of each of the Documents to which it is party
and has taken all necessary corporate or other applicable action to authorize
the execution, delivery and performance by it of each of such Documents. Each
Credit Party has duly executed and delivered each of the Documents to which it
is party, and each of such Documents constitutes the legal, valid and binding
obligation of such Credit Party enforceable in accordance with its terms, except
to the extent that the enforceability thereof may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws generally affecting creditors' rights and by equitable
principles (regardless of whether enforcement is sought in equity or at law) and
principles of good faith and fair dealing.
7.03 No Violation. Neither the execution, delivery or performance
by any Credit Party of the Documents to which it is a party, nor compliance by
it with the terms and provisions thereof nor the consummation of the
Transaction, (i) will contravene any provision of any applicable law, statute,
rule or regulation or any applicable order, writ, injunction or decree of any
court or governmental instrumentality, (ii) will conflict with or result in any
breach of any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of (or the
obligation to create or impose) any Lien (except pursuant to the Security
Documents) upon any of the properties or assets of any Credit Party or any of
its Subsidiaries pursuant to the terms of any indenture, mortgage, deed of
trust, credit agreement or loan agreement, or any other material agreement,
contract or instrument, to which any Credit Party or any of its Subsidiaries is
a party or by which it or any of its property or assets is bound or to which it
may be subject (including, without limitation, the Senior Subordinated Notes
Indenture), (iii) will violate any provision of the Certificate of Incorporation
or By-Laws (or equivalent organizational documents) of any Credit Party or any
of its Subsidiaries or (iv) will, with respect to all leased Real Property,
constitute a default under any lease or will result in an occurrence which, with
the giving of notice or the lapse of time, or both, would constitute an event of
default pursuant to any such lease, except in the case of clauses (i), (ii) and
(iv), in the case of the Documents other than the Credit Documents, to the
extent that such contravention, conflict, breach, default, Lien or event of
default would not reasonably be expected to have a Material Adverse Effect. In
addition, no landlord under any such lease will have the right to terminate or
cancel any such lease or recapture the demised premises due to the execution and
delivery of this Agreement or consummation of the Transaction.
7.04 Governmental Approvals. No order, consent, approval,
license, authorization or validation of, or filing, recording or registration
with (except as have been obtained or made on or prior to the Initial Borrowing
Date (and which remain in full force and effect on the Initial Borrowing Date)
or, in the case of any filings or recordings in respect of the Security
Documents executed on the Initial Borrowing Date, will be made within 10 days
thereof except to the extent otherwise provided in the Security Documents), or
exemption by, any foreign or domestic governmental or public body or authority,
or any subdivision thereof, is required to authorize, or is required in
connection with, (i) the execution, delivery and performance of any Document or
(ii) the legality, validity, binding effect or enforceability of any Document.
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7.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; Projections; etc. (a) The consolidated balance sheets of IHC and
each of the Acquired Businesses for the fiscal period ended on June 30, 1999, in
the case of IHC, December 31, 1997, December 31, 1998 and the six month period
ending June 30, 1999, in the case of Paracelsus, and May 31, 1998 and May 31,
1999, in the case of Tenet, respectively, and the related consolidated
statements of income, cash flows and interdivision account of IHC and each of
the Acquired Businesses for the fiscal periods ended on such dates, copies of
which have been furnished to the Lenders prior to the Effective Date, present
fairly in all material respects the financial position of IHC and each of the
Acquired Businesses, as the case be, at the dates of such balance sheets and the
results of the operations of the each of the Acquired Businesses for the periods
covered thereby. All of the foregoing historical financial statements have been
prepared in accordance with generally accepted accounting principles
consistently applied.
(b) The unaudited pro forma consolidated balance sheet and
related statement of income of the Borrower and its Subsidiaries as of June 30,
1999 and for the fiscal year ended on such date, after giving effect to the
Transaction, copies of which have been furnished to the Lenders prior to the
Effective Date, present fairly in all material respects the pro forma
consolidated financial position of the Borrower and its Subsidiaries as at June
30, 1999, and the pro forma consolidated results of operations of the Borrower
and its Subsidiaries for the period covered thereby.
(c) On and as of the Initial Borrowing Date, on a pro forma basis
after giving effect to the Transaction and all other transactions contemplated
by the Documents and to all Indebtedness (including the Loans and the Senior
Subordinated Notes) being incurred or assumed, and Liens created by each Credit
Party in connection therewith, with respect to each of the Borrower,
individually, and the Borrower and its Subsidiaries taken as a whole, (x) the
sum of the assets, at a fair valuation, of the Borrower, individually, and the
Borrower and its Subsidiaries taken as a whole, will exceed its (or their)
debts; (y) it has (or they have) not incurred and does (or do) not intend to
incur, nor believes (or believe) that it (or they) will incur debts beyond its
(or their) ability to pay such debts as such debts mature; and (z) it (or they)
will have sufficient capital with which to conduct its (or their) business. For
purposes of this Section 7.05(c), "debt" means any liability on a claim and
"claim" means (i) right to payment, whether or not such a right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured, or unsecured or (ii) right to
an equitable remedy for breach of performance if such breach gives rise to a
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured.
(d) Except as fully disclosed in the financial statements
(including the pro forma financial statements) delivered pursuant to Section
7.05(a) and 7.05(b), or as disclosed in the Transaction Documents and the
schedules thereto, there were as of the Initial Borrowing Date no liabilities or
obligations with respect to the Borrower or any of its Subsidiaries of any
nature whatsoever (whether absolute, accrued, contingent or otherwise and
whether or not due) which, either individually or in the aggregate, would be
adversely material to the Borrower or any of its Subsidiaries. As of the Initial
Borrowing Date, none of the Borrower or its Subsidiaries knows of any basis for
the assertion against it of any liability or obligation of any nature that is
not fully
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disclosed in the financial statements delivered pursuant to Section 7.05(a) and
7.05(b) which, either individually or in the aggregate, have or would reasonably
be likely to have a Material Adverse Effect.
(e) On and as of the Initial Borrowing Date, the Projections
which have been delivered to the Administrative Agent and the Lenders on or
prior to the Effective Date are based on good faith estimates and assumptions
believed by management of the Borrower to be reasonable as of the date of such
Projections. On the Initial Borrowing Date, the Borrower believes that the
Projections are reasonable and attainable (it being understood that nothing
contained in this Section 7.05(e) shall constitute a representation that the
results forecasted in such Projections will in fact be achieved). There is no
fact known to the Borrower or any of its Subsidiaries which would have a
Material Adverse Effect which has not been disclosed herein or in such
documents, certificates and statements furnished to the Lenders for use in
connection with the transactions contemplated hereby.
(f) Since June 30, 1999 (but after giving effect to the
Transaction as if the same had occurred prior thereto), nothing has occurred
that has had or would reasonably be expected to have a Material Adverse Effect.
(g) The assets and liabilities, and the business, of the Tenet
Business acquired by the Borrower pursuant to the Tenet Acquisition Documents
comprise all of the assets which are necessary to conduct the business of the
Tenet Business as conducted during the period covered by the financial
statements referred to in Section 7.05(a).
(h) The assets and liabilities, and the business, of Paracelsus
acquired by the Borrower pursuant to the Paracelsus Recapitalization Documents
comprise all of the assets which are necessary to conduct the business of the
Paracelsus Business as conducted during the period covered by the financial
statements referred to in Section 7.05(a).
7.06 Litigation. There are no actions, suits, proceedings or
investigations pending or, to the knowledge of the Borrower, threatened (i) on
the Initial Borrowing Date with respect to any Document or the Transaction or
(ii) with respect to any Credit Party or any of its Subsidiaries that could
reasonably be expected to have a Material Adverse Effect.
7.07 True and Complete Disclosure. All information (taken as a
whole) prepared by or on behalf of the Borrower or any of its Subsidiaries and
furnished in writing to the Administrative Agent or any Lender (including,
without limitation, all information contained in the Documents) for purposes of
or in connection with this Agreement, the other Credit Documents or any
transaction contemplated herein or therein is, and all other such information
(taken as a whole) hereafter prepared by or on behalf of any such Person and
furnished in writing to the Administrative Agent or any Lender will be true and
accurate in all material respects on the date as of which such information is
dated or certified and not incomplete by omitting to state any material fact
necessary to make such information (taken as a whole) not materially misleading
at such time in light of the circumstances under which such information was
provided.
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7.08 Use of Proceeds; Margin Regulations. (a) All proceeds of all
Revolving Loans and all Swingline Loans shall be used for the Borrower's and its
Subsidiaries' general corporate and working capital purposes (including, without
limitation, to make Capital Expenditures and finance Permitted Acquisitions) and
shall not be used to finance the Transaction (other than working capital
adjustments required in connection with the Tenet Acquisition and the Paracelsus
Acquisition pursuant to the Transaction Documents).
(b) The proceeds of the Term Loans incurred on the Initial
Borrowing Date shall be used to finance, in part, the consummation of the Tenet
Acquisition and the Refinancing and to pay fees and expenses owing in connection
therewith.
(c) No part of the proceeds of any Loan will be used to purchase
or carry any Margin Stock or to extend credit for the purpose of purchasing or
carrying any Margin Stock. Neither the making of any Loan nor the use of the
proceeds thereof nor the occurrence of any other Credit Event will violate or be
inconsistent with the provisions of Regulation T, U or X of the Board of
Governors of the Federal Reserve System.
7.09 Tax Returns and Payments. The Borrower and each of its
Subsidiaries has filed all federal income tax returns and all other material tax
returns, domestic and foreign, required to be filed by it and has paid all
material taxes and assessments payable by it which have become due, except for
those contested in good faith and adequately disclosed and fully provided for on
the financial statements of the Borrower and its Subsidiaries in accordance with
generally accepted accounting principles. The Borrower and each of its
Subsidiaries have at all times paid, or have provided adequate reserves (in the
good faith judgment of the management of the Borrower) for the payment of, all
federal, state and foreign taxes applicable for all prior fiscal years and for
the current fiscal year to date. There is no action, suit, proceeding,
investigation, audit, or claim now pending or, to the knowledge of the Borrower
or any of its Subsidiaries, threatened by any authority regarding any taxes
relating to the Borrower or any of its Subsidiaries. Neither the Borrower nor
any of its Subsidiaries has entered into an agreement or waiver or been
requested to enter into an agreement or waiver extending any statute of
limitations relating to the payment or collection of taxes of the Borrower or
any of its Subsidiaries, or is aware of any circumstances that would cause the
taxable years or other taxable periods of the Borrower or any of its
Subsidiaries not to be subject to the normally applicable statute of
limitations.
7.10 Compliance with ERISA. Except to the extent that any of the
following, individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect, each Plan (and each related trust, insurance
contract or fund) is in substantial compliance with its terms and with all
applicable laws, including without limitation, ERISA and the Code; each Plan
(and each related trust, if any) which is intended to be qualified under Section
401(a) of the Code has received a determination letter from the Internal Revenue
Service to the effect that it meets the requirements of Sections 401(a) and
501(a) of the Code; no Reportable Event has occurred; no Plan which is a
Multiemployer Plan (as defined in Section 4001(a)(3) of ERISA) is insolvent or
in reorganization; no Plan has an Unfunded Current Liability; no Plan which is
subject to Section 412 of the Code or Section 302 of ERISA has an accumulated
funding deficiency, within the meaning of such sections of the Code or ERISA, or
has applied for
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or received a waiver of an accumulated funding deficiency or an extension of any
amortization period, within the meaning of Section 412 of the Code or Section
303 or 304 of ERISA; all contributions required to be made with respect to a
Plan and each Multiemployer Plan have been timely made; neither the Borrower nor
any of its Subsidiaries nor any ERISA Affiliate has incurred any liability
(including any indirect, contingent or secondary liability) to or on account of
a Plan or a Multiemployer Plan pursuant to Section 409, 502(i), 502(l), 515,
4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971
or 4975 of the Code or expects to incur any such liability under any of the
foregoing sections with respect to any Plan or Multiemployer Plan; no condition
exists which presents a material risk to the Borrower or any of its Subsidiaries
or any ERISA Affiliate of incurring a liability to or on account of a Plan or a
Multiemployer Plan pursuant to the foregoing provisions of ERISA and the Code;
no proceedings have been instituted to terminate or appoint a trustee to
administer any Plan which is subject to Title IV of ERISA; no action, suit,
proceeding, hearing, audit or investigation with respect to the administration,
operation or the investment of assets of any Plan (other than routine claims for
benefits) is pending, expected or threatened; using actuarial assumptions and
computation methods consistent with Part 1 of subtitle E of Title IV of ERISA,
the aggregate liabilities of the Borrower and its Subsidiaries and its ERISA
Affiliates to all Plans which are Multiemployer Plans in the event of a complete
withdrawal therefrom, as of the close of the most recent fiscal year of each
such Plan ended prior to the date of the most recent Credit Event, would not
exceed $1,000,000; each group health plan (as defined in Section 607(1) of ERISA
or Section 4980B(g)(2) of the Code) which covers or has covered employees or
former employees of the Borrower, any Subsidiary of the Borrower or any ERISA
Affiliate has at all times been operated in compliance with the provisions of
Part 6 of subtitle B of Title I of ERISA and Section 4980B of the Code; no lien
imposed under the Code or ERISA on the assets of the Borrower or any Subsidiary
of the Borrower or any ERISA Affiliate exists or is likely to arise on account
of any Plan or Multiemployer Plan; and the Borrower and its Subsidiaries may
cease contributions to or terminate any employee benefit plan maintained by any
of them without incurring any liability.
7.11 The Security Documents. (a) On and after the Initial
Borrowing Date, (i) the provisions of the Security Agreement are effective to
create in favor of the Collateral Agent for the benefit of the Secured Creditors
a legal, valid and enforceable security interest in all right, title and
interest of the Credit Parties in the Security Agreement Collateral described
therein and (ii) the Security Agreement, upon the filing of Form UCC-1 financing
statements or the appropriate equivalent (which filings, if this representation
is being made more than 10 days after the Initial Borrowing Date, have been
made), creates a fully perfected first lien on, and security interest in, all
right, title and interest in all of the Security Agreement Collateral described
therein, subject to no other Liens other than Permitted Liens, to the extent a
security interest in such collateral can be perfected by the filing of a
financing statement. The recordation of the Grant of Security Interest in U.S.
Patents and Trademarks in the form attached to the Security Agreement in the
United States Patent and Trademark Office, together with filings on Form UCC-1
made pursuant to the Security Agreement will be effective when recorded or filed
(which recordings or filings, if this representation is being made more than 10
days after the Initial Borrowing Date, have been made), under applicable law, to
perfect the security interest granted to the Collateral Agent in the trademarks
and patents covered by the Security Agreement
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and identified in such Grant of Security Interest and the recordation of the
Grant of Security Interest in U.S. Copyrights in the form attached to the
Security Agreement with the United States Copyright Office, together with
filings on Form UCC-1 made pursuant to the Security Agreement, will be effective
when recorded or filed (which recordings or filings, if this representation is
being made more than 10 days after the Initial Borrowing Date, have been made)
under federal law to perfect the security interest granted to the Collateral
Agent in the copyrights covered by the Security Agreement and identified in such
Grant of Security Interest.
(b) On and after the Initial Borrowing Date, assuming the
Collateral Agent continues to retain possession of the applicable Pledged
Securities, the security interests created in favor of the Collateral Agent, as
pledgee, for the benefit of the Secured Creditors under the Pledge Agreement
constitute first priority perfected security interests in the Pledged Securities
described in the Pledge Agreement, in the case of pledges by the Borrower and
the Subsidiary Guarantors, subject to no security interests of any other Person.
Assuming the Collateral Agent continues to retain possession of the applicable
Pledged Securities, no filings or recordings are required in order to perfect
(or maintain the perfection or priority of) the security interests created in
the Pledged Securities and the proceeds thereof under the Pledge Agreement.
(c) On and after the Initial Borrowing Date, assuming the
Collateral Agent continues to retain possession of the applicable pledged
securities (as defined in the Hypothecation Agreement), the security interests
created in favor of the Collateral Agent, as pledgee, for the benefit of the
Secured Creditors under the Hypothecation Agreement constitute first priority
perfected security interests in the pledged securities described in the
Hypothecation Agreement. Assuming the Collateral Agent continues to retain
possession of the applicable pledged securities, no filings or recordings are
required in order to perfect (or maintain the perfection or priority of) the
security interests created in the pledged securities and the proceeds thereof
under the Hypothecation Agreement.
(d) On and after the Initial Borrowing Date, the Mortgages
create, as security for the obligations purported to be secured thereby, a valid
and enforceable perfected security interest in and mortgage lien on all of the
Mortgaged Properties in favor of the Collateral Agent (or such other trustee as
may be required or desired under local law) for the benefit of the Secured
Creditors, superior to and prior to the rights of all third persons (except that
the security interest and mortgage lien created in the Mortgaged Properties may
be subject to the Permitted Encumbrances related thereto) and subject to no
other Liens (other than Permitted Liens). On and after the Effective Date, the
Borrower and each of its Subsidiaries have good and indefeasible title to all
fee-owned Mortgaged Properties and valid leasehold title to all Leaseholds
(except to the extent that the failure to have such title to any such Leasehold
would not reasonably be expected to have a Material Adverse Effect), in each
case free and clear of all Liens and title exceptions except those described in
the first sentence of this subsection (d).
7.12 Representations and Warranties in Other Documents. All
representations and warranties of the Borrower and its Subsidiaries set forth in
the other Documents were true and correct in all material respects at the time
as of which such representations and warranties were made (or deemed made) and
shall be true and correct in all material respects as of the Initial Borrowing
Date as if such representations or warranties were made on and as of such date,
unless
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stated to relate to a specific earlier date, in which case such representations
or warranties shall be true and correct in all material respects as of such
earlier date.
7.13 Properties. The Borrower and each of its Subsidiaries have
good and valid title to all material properties owned by them, including, after
the Initial Borrowing Date, all material property reflected in the most recent
balance sheets referred to in Section 7.05(a) and in the pro forma balance sheet
referred to in Section 7.05(b) (except as sold or otherwise disposed of since
the Initial Borrowing Date in accordance with the terms of this Agreement), free
and clear of all Liens and title exceptions, other than Permitted Liens
permitted by Section 9.01. On the Initial Borrowing Date, Schedule III sets
forth a true and complete description of all Real Property owned or leased by
the Borrower and/or its Subsidiaries and sets forth the direct owner or lessee
thereof.
7.14 Capitalization. On the Initial Borrowing Date and after
giving effect to the Transaction and the IHC Merger (but without giving effect
to any Equity Plan), the authorized capital stock of the Borrower shall consist
of (i) 5,000,000 shares of common stock, $.01 par value per share (such
authorized shares of common stock, together with any subsequently authorized
shares of common stock of the Borrower, the "Borrower Common Stock"), of which
1,250,000 shares shall be issued and outstanding and owned beneficially and of
record by the Direct Investors and (ii) 550,000 shares of Borrower Preferred
Stock, of which 160,000.10 shares shall be issued and outstanding and owned
beneficially and of record by the Direct Investors. All such outstanding shares
have been duly and validly issued, are fully paid and non-assessable and have
been issued in compliance with any existing preemptive rights. On the Initial
Borrowing Date, neither the Borrower nor its Subsidiaries has any outstanding
securities convertible into or exchangeable for its membership interest or
capital stock, as the case may be, or outstanding any rights to subscribe for or
to purchase, or any options for the purchase of, or any agreement providing for
the issuance (contingent or otherwise) of, or any calls, commitments or claims
of any character relating to, its membership interests or capital stock, as the
case may be, other than in the case of the Borrower's stock, pursuant to any
Equity Plan.
7.15 Subsidiaries. After giving effect to the Transaction, the
Borrower will have no Subsidiaries other than (i) those Subsidiaries listed on
Schedule VI and (ii) new Subsidiaries created in compliance with Section 9.14.
Schedule VI correctly sets forth, as of the Initial Borrowing Date and after
giving effect to the Transaction, the percentage ownership (direct and indirect)
of the Borrower in each class of capital stock or other equity interest of each
of its Subsidiaries and also identifies the direct owner thereof. On and after
the Effective Date, all outstanding shares of capital stock of each Subsidiary
of the Borrower have been duly and validly issued, are fully paid and
non-assessable and have been issued free of preemptive rights. No Subsidiary of
the Borrower has any outstanding securities convertible into or exchangeable for
its capital stock or outstanding any right to subscribe for or to purchase, or
any options or warrants for the purchase of, or any agreement providing for the
issuance (contingent or otherwise) of or any calls, commitments or claims of any
character relating to, its capital stock or any stock appreciation or similar
rights except in connection with the Hospital Investment Program.
7.16 Compliance with Statutes, etc. Each of the Borrower and its
Subsidiaries, is in compliance with all applicable statutes, regulations and
orders of, and all applicable
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restrictions imposed by, all governmental bodies, domestic or foreign, in
respect of the conduct of its business and the ownership of its property, as
applicable (excluding applicable statutes, regulations, orders and restrictions
relating to environmental standards and controls, which are governed by Section
7.19), except such noncompliances as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
7.17 Investment Company Act. Neither the Borrower nor any of its
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
7.18 Public Utility Holding Company Act. Neither the Borrower nor
any of its Subsidiaries is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company" within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
7.19 Environmental Matters. (a) Except to the extent that any of
the following, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect, (i) the Borrower and each of its
Subsidiaries has complied with, and on the date of each Credit Event will be in
compliance with, all applicable Environmental Laws and the requirements of any
permits issued under such Environmental Laws, (ii) there are no past, pending
or, to the best knowledge of the Borrower after due inquiry, past or threatened
Environmental Claims against the Borrower or any of its Subsidiaries or any Real
Property owned, operated or occupied by the Borrower or any of its Subsidiaries
and (iii) there are no facts, circumstances, conditions or occurrences with
respect to the business or operation of the Borrower or any of its Subsidiaries,
or any Real Property owned, operated or occupied by the Borrower or any of its
Subsidiaries that would reasonably be expected (i) to form the basis of an
Environmental Claim against the Borrower or any of its Subsidiaries or any such
Real Property, as the case may be, or (ii) to cause any such Real Property to be
subject to any restrictions on the ownership, occupancy, use or transferability
of such Real Property, by the Borrower or any of its Subsidiaries under any
applicable Environmental Law.
(b) Except to the extent that any of the following, individually
or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect, (i) Hazardous Materials have not at any time been generated, used,
treated or stored on, or transported to or from any Real Property owned,
operated or occupied by the Borrower or any of its Subsidiaries, where such
generation, use, treatment or storage has violated or would reasonably be
expected to violate any Environmental Law or give rise to liability under any
Environmental Law and (ii) Hazardous Materials have not been Released on or from
any Real Property owned, operated or occupied by the Borrower or any of its
Subsidiaries, where such Release has violated or would reasonably be expected to
violate any applicable Environmental Law or give rise to liability under any
Environmental Law.
7.20 Labor Relations. Neither the Borrower nor any of its
Subsidiaries is engaged in any unfair labor practice that would reasonably be
expected to have a Material Adverse Effect; and there is (i) no unfair labor
practice complaint pending against the Borrower or any of its Subsidiaries or,
to the best knowledge of the Borrower, threatened against any of
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them, before the National Labor Relations Board, and no material grievance or
arbitration proceeding arising out of or under any collective bargaining
agreement is so pending against the Borrower or any of its Subsidiaries or, to
the best knowledge of the Borrower, threatened against any of them, (ii) no
strike, labor dispute, slowdown or stoppage pending against the Borrower or any
of its Subsidiaries or, to the best knowledge of the Borrower, threatened
against the Borrower or any of its Subsidiaries, as the case may be, and (iii)
to the best knowledge of the Borrower, no union representation proceeding is
pending with respect to the employees of the Borrower or any of its
Subsidiaries, except (with respect to any matter specified in clause (i), (ii)
or (iii) above, either individually or in the aggregate) such as would not
reasonably be expected to have a Material Adverse Effect.
7.21 Patents, Licenses, Franchises and Formulas. Each of the
Borrower and its Subsidiaries owns or has a valid license to use all material
patents, trademarks, permits, service marks, trade names, copyrights, licenses,
franchises and formulas, or rights with respect to the foregoing, and has
obtained assignments of all leases and other rights of whatever nature,
necessary for the present conduct of its business, without any known conflict
with the rights of others, except to the extent that the failure to so own or
have a license or right, obtain or be without conflict would not reasonably be
expected to have a Material Adverse Effect.
7.22 Indebtedness. (a) Schedule V.A sets forth a true and
complete list of all Existing Indebtedness of the Borrower and its Subsidiaries
as of the Initial Borrowing Date and which is to remain outstanding after giving
effect to the Transaction, in each case showing the aggregate principal amount
thereof and the name of the respective borrower and any other entity which
directly or indirectly guaranteed such debt.
(b) Schedule V.B sets forth a true and complete list of all
Indebtedness of the Borrower and its Subsidiaries to be Refinanced (the
"Indebtedness to be Refinanced"), in each case showing the aggregate principal
amount thereof, the name of the respective borrower and any other entity which
directly or indirectly guaranteed such Indebtedness.
7.23 Transaction. At the time of consummation thereof, each
element of the Transaction shall have been consummated in all material respects
in accordance with the terms of the respective Documents and all applicable
laws. At the time of consummation of each element of the Transaction, all
material consents and approvals of, and filings and registrations with (or, in
the case of any filing in respect of the Security Documents executed on the
Initial Borrowing Date, will be made within 10 days thereof), and all other
actions in respect of, all governmental agencies, authorities or
instrumentalities required in order to make or consummate the Transaction will
have been obtained, given, filed or taken and are or will be in full force and
effect (or effective judicial relief with respect thereto has been obtained).
All applicable waiting periods with respect thereto have or, prior to the time
when required, will have, expired without, in all such cases, any action being
taken by any competent authority which restrains, prevents, or imposes material
adverse conditions upon the Transaction. Additionally, there does not exist any
judgment, order or injunction prohibiting or imposing material adverse
conditions upon any element of the Transaction, or the occurrence of any Credit
Event or the performance by any Credit Party of its obligations under the
respective Credit Documents. All actions taken by each
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Credit Party pursuant to or in furtherance of the Transaction have been taken in
all material respects in compliance with the respective Documents and all
applicable laws.
7.24 Year 2000 Compliance. The Borrower has reviewed its
operations and those of its Subsidiaries with a view to assessing whether its
businesses, or the businesses of any of its Subsidiaries, will be vulnerable to
a Y2K Problem or will be vulnerable in any material respect to the effects of a
Y2K Problem suffered by any of the Borrower or any of its Subsidiaries' major
customers and suppliers. The Borrower represents and warrants that it has a
reasonable basis to believe, and that it does believe, that no Y2K Problem will
cause a Material Adverse Effect.
7.25 Subordination. The subordination provisions contained in the
Senior Subordinated Notes Documents are enforceable against the Borrower, the
Subsidiary Guarantors and the holders of the Senior Subordinated Notes, and all
Obligations hereunder and under the other Credit Documents (including, without
limitation, pursuant to the Subsidiaries Guaranty) are within the definitions of
"Senior Debt" and "Designated Senior Debt" included in such subordination
provisions. There exists no Designated Senior Debt for purposes of, and as
defined in, the Senior Subordinated Notes Indenture (other than the
Obligations).
7.26 Actions Prior to the Initial Borrowing Date. During the
period commencing on the date of the consummation of the Recapitalization and
ending on the Initial Borrowing Date, the Borrower has not paid any Dividend,
sold or transferred any asset (other than sales of inventory in the ordinary
course of business and transfers among the Borrower and its Subsidiaries), made
any Acquisition (other than pursuant to the Transactions), or entered into any
transaction which would constitute a violation of Section 9.06 had such section
been effective during such period.
SECTION 8. Affirmative Covenants. The Borrower hereby covenants
and agrees that in the case of the covenants described below on and after the
Effective Date and until the Total Commitments and all Letters of Credit have
terminated and the Loans, Notes and Unpaid Drawings, together with interest,
Fees and all other obligations incurred hereunder and thereunder are paid in
full (other than any indemnity, not then due and payable, which by its terms
shall survive such termination and payment):
8.01 Information Covenants. The Borrower will furnish to each
Lender:
(a) Quarterly Financial Statements. Within 45 days after the
close of the first three quarterly accounting periods in each fiscal
year of the Borrower, the consolidated balance sheet of the Borrower and
its Consolidated Subsidiaries as at the end of such quarterly accounting
period and the related consolidated statements of income and cash flows,
in each case, for such quarterly accounting period and for the elapsed
portion of the fiscal year ended with the last day of such quarterly
accounting period and, in each case, setting forth comparative figures
(if available) for the related periods in the prior fiscal year and the
budgeted figures for such quarterly periods as set forth in the
respective budget delivered pursuant to Section 8.01(d), all of which
shall be certified by an Authorized Officer of the Borrower, subject to
normal year-end audit adjustments.
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(b) Annual Financial Statements. Within 90 days after the close
of each fiscal year of the Borrower, (i) the consolidated balance sheets
of the Borrower and its Consolidated Subsidiaries as at the end of such
fiscal year and the related consolidated statements of income and
retained earnings and of cash flows for such fiscal year setting forth
comparative figures for the preceding fiscal year and financial
statements certified by Ernst & Young LLP, or such other independent
certified public accountants of recognized national standing reasonably
acceptable to the Administrative Agent, together with a report of such
accounting firm stating that in the course of its regular audit of the
financial statements of the Borrower and its Subsidiaries, which audit
was conducted in accordance with generally accepted auditing standards,
such accounting firm obtained no knowledge of any Default or Event of
Default relating to financial matters which has occurred and is
continuing or, if in the opinion of such accounting firm such a Default
or Event of Default has occurred and is continuing, a statement as to
the nature thereof, and (ii) management's discussion and analysis of the
important operational and financial developments during such fiscal
year.
(c) Management Letters. Promptly after the receipt thereof by the
Borrower or any of its Subsidiaries, a copy of any "management letter"
received by any such Person from its certified public accountants and
the management's responses thereto.
(d) Budgets. No later than 60 days following the commencement of
the first day of each fiscal year of the Borrower, a budget of Borrower
and its Subsidiaries prepared by the Borrower for each fiscal quarter of
such fiscal year prepared in detail, accompanied by the statement of the
an Authorized Officer of the Borrower to the effect that, to the best of
the knowledge of such officer, the budget is a reasonable estimate for
the period covered thereby.
(e) Officer's Certificates. At the time of the delivery of the
financial statements provided for in Section 8.01(a) and (b), a
certificate of an Authorized Officer of the Borrower to the effect that,
to the best of such officer's knowledge, no Default or Event of Default
has occurred and is continuing or, if any Default or Event of Default
has occurred and is continuing, specifying the nature and extent
thereof, which certificate shall, (x) set forth the calculations
required to establish whether the Borrower was in compliance with the
provisions of Sections 4.02(d), (e), (f) and (g) (but with respect to
Section 4.02(g) only to the extent delivered with the financial
statements required by Sections 8.01(b)), and 9.02 through 9.10,
inclusive, at the end of such fiscal quarter or year, as the case may
be, (y) set forth the calculation of the Available J.V. Basket Amount
and the Permitted Expenditure Amount at the end of the period covered by
such financial statements and all sources and uses of proceeds relating
to the calculation thereof and (z) if delivered with the financial
statements required by Section 8.01(b), set forth (in reasonable detail)
the amount of, and the calculations required to establish the amount of,
Excess Cash Flow for the respective Excess Cash Payment Period.
(f) Notice of Default or Litigation. Promptly, and in any event
within three Business Days after an officer of the Borrower or any of
its Subsidiaries obtains knowledge thereof, notice of (i) the occurrence
of any event which constitutes a Default
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or Event of Default and (ii) any litigation or governmental
investigation or proceeding pending or threatened (x) against the
Borrower or any of its Subsidiaries which would reasonably be expected
to have a Material Adverse Effect, (y) with respect to any Material
Indebtedness of the Borrower or any of its Subsidiaries or (z) with
respect to any Document.
(g) Other Reports and Filings. Promptly, copies of all financial
information, proxy materials and other information and reports, if any,
which the Borrower or any of its Subsidiaries shall file with the
Securities and Exchange Commission or any successor thereto (the "SEC")
or deliver to holders of its Material Indebtedness pursuant to the terms
of the documentation governing such Indebtedness (or any trustee, agent
or other representative therefor).
(h) Environmental Matters. Promptly upon, and in any event within
thirty days after, an officer of the Borrower or any of its Subsidiaries
obtains knowledge thereof, notice of one or more of the following
environmental matters which occurs after the Initial Borrowing Date
unless such environmental matters could not, individually or when
aggregated with all other such environmental matters, be reasonably
expected to have a Material Adverse Effect:
(i) any Environmental Claim pending or threatened in
writing against the Borrower or any of its Subsidiaries or any
Real Property owned, operated or occupied by the Borrower or any
of its Subsidiaries;
(ii) any condition or occurrence on or arising from any Real
Property owned, operated or occupied by the Borrower or any of
its Subsidiaries that (a) results in noncompliance by the
Borrower or any of its Subsidiaries with any applicable
Environmental Law or (b) would reasonably be expected to form the
basis of an Environmental Claim against the Borrower or any of
its Subsidiaries or any such Real Property;
(iii) any condition or occurrence on any Real Property owned,
operated or occupied by the Borrower or any of its Subsidiaries
that would reasonably be expected to cause such Real Property to
be subject to any restrictions on the ownership, occupancy, use
or transferability by the Borrower or any of its Subsidiaries of
such Real Property under any Environmental Law; and
(iv) the taking of any removal or remedial action in
response to the actual or alleged presence of any Hazardous
Material on any Real Property owned, operated or occupied by the
Borrower or any of its Subsidiaries as required by any
Environmental Law or any governmental or other administrative
agency; provided that in any event the Borrower shall deliver to
the Administrative Agent all material notices received by it or
any of its Subsidiaries from any government or governmental
agency under, or pursuant to, CERCLA.
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All such notices shall describe in reasonable detail the nature of the
claim, investigation, condition, occurrence or removal or remedial
action and the Borrower's or such Subsidiary's response thereto. In
addition, the Borrower will provide the Lenders with copies of all
material communications with any government or governmental agency and
all material communications with any Person relating to any
Environmental Claim of which notice is required to be given pursuant to
this Section 8.01(h), and such detailed reports of any such
Environmental Claim as to which notice is required, as may reasonably be
requested by the Administrative Agent or the Lenders.
(i) Notice of Commitment Reductions and Mandatory Repayments. On
or prior to the date of any reduction to the Total Commitment or any
mandatory repayment of outstanding Term Loans pursuant to any of
Sections 4.02(e) through (g), inclusive, the Borrower shall provide
written notice of the amount of the respective reduction or repayment,
as the case may be, to the Total Revolving Loan Commitment or the
outstanding Term Loans, as applicable, the calculation thereof (in
reasonable detail) and the event to which the respective reduction or
repayment relates.
(j) Other Information. From time to time, such other information
or documents (financial or otherwise) with respect to the Borrower or
its Subsidiaries as the Administrative Agent or any Lender may
reasonably request in writing.
8.02 Books, Records and Inspections. The Borrower will, and will
cause each of its Subsidiaries to, keep in all material respects proper books of
record and account in which are made full, true and correct entries in
conformity with generally accepted accounting principles and all requirements of
law. The Borrower will, and will cause each of its Subsidiaries to, permit
officers and designated representatives of the Administrative Agent or any
Lender to visit and inspect, during regular business hours and under guidance of
officers of the Borrower, any of the properties of the Borrower or such
Subsidiary in whomsoever's possession, and to examine the books of account of
the Borrower or such Subsidiary and discuss the affairs, finances and accounts
of the Borrower or such Subsidiary with, and be advised as to the same by, its
and their officers and independent accountants, all upon reasonable advance
notice and at such reasonable times and intervals and to such reasonable extent
as the Administrative Agent or such Lender may request.
8.03 Maintenance of Property; Insurance. (a) The Borrower will,
and will cause each of its Subsidiaries to, (i) keep all material properties and
equipment used in its business in good working order and condition (ordinary
wear and tear and loss or damage by casualty or condemnation excepted), (ii)
maintain in full force and effect insurance with reputable and solvent insurance
carriers on all its property in at least such amounts, against at least such
risks and with such deductibles or self-insured retentions as is consistent and
in accordance with industry practice and (iii) furnish to each Lender, upon
written request, full information as to the insurance carried.
(b) The Borrower will, and will cause its Subsidiaries to, at all
times keep their respective property insured in favor of the Collateral Agent,
and all policies (including the Mortgage Policies) or certificates (or certified
copies thereof) with respect to such insurance (and
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any other insurance maintained by the Borrower or any of its Subsidiaries) (i)
shall be endorsed to the Collateral Agent's satisfaction for the benefit of the
Collateral Agent (as certificate holder, mortgagee and loss payee with respect
to Real Property, certificate holder and loss payee with respect to personal
property and additional insured with respect to general liability and umbrella
liability coverage), and (ii) shall state that such insurance policies shall not
be canceled or materially revised without 30 days' prior written notice thereof
by the respective insurer to the Collateral Agent.
(c) If the Borrower or any of its Subsidiaries shall fail to
maintain all insurance in accordance with this Section 8.03, or if the Borrower
or any of its Subsidiaries shall fail to so endorse all policies or certificates
with respect thereto, the Administrative Agent and/or the Collateral Agent shall
have the right (but shall be under no obligation) to procure such insurance and
the Borrower agrees to reimburse the Administrative Agent or the Collateral
Agent as the case may be, for all costs and expenses of procuring such
insurance.
8.04 Corporate Franchises. The Borrower will, and will cause each
of its Subsidiaries, to do or cause to be done, all things necessary to preserve
and keep in full force and effect its existence and, except to the extent that
the failure to do so could not reasonably be expected to have a Material Adverse
Effect, its rights, franchises, licenses and patents used in its business;
provided, however, that any transaction permitted by Section 9.02 will not
constitute a breach of this Section 8.04.
8.05 Compliance with Statutes, etc. The Borrower will, and will
cause each of its Subsidiaries to, comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property, except such noncompliances as could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
8.06 Compliance with Environmental Laws. (a) Except to the extent
that the failure to do so could not reasonably be expected to have a Material
Adverse Effect, (i) the Borrower will comply, and will cause each of its
Subsidiaries to comply, in all material respects with all Environmental Laws
applicable to the operation of its business or to the ownership or use of Real
Property now or hereafter owned, operated or occupied by the Borrower or any of
its Subsidiaries, will within a reasonable time period pay or cause to be paid
all costs and expenses incurred in connection with such compliance (except to
the extent being contested in good faith), and will undertake all reasonable
efforts to keep or cause to be kept all such Real Property free and clear of any
Liens imposed pursuant to such Environmental Laws and (ii) neither the Borrower
nor any of its Subsidiaries will generate, use, treat, store, Release or dispose
of, or permit the generation, use, treatment, storage, Release or disposal of
Hazardous Materials on any Real Property now or hereafter owned, operated or
occupied by the Borrower or any of its Subsidiaries, or transport or permit the
transportation of Hazardous Materials to or from any such Real Property except
in compliance with all applicable Environmental Laws and reasonably required in
connection with the operation, use and maintenance of any such Real Property or
otherwise in connection with their businesses.
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(b) At the written request of the Administrative Agent or the
Required Lenders upon a reasonable belief by the Administrative Agent or the
Required Lenders that the Borrower or any of its Subsidiaries has breached any
representation or covenant contained herein relating to environmental matters,
which request shall specify in reasonable detail the basis therefor, the
Borrower will provide, at the Borrower's sole cost and expense, an environmental
site assessment report, reasonable in scope, concerning the subject matter of
such representation or covenant and any Real Property now or hereafter owned,
operated or occupied by the Borrower or any of its Subsidiaries, prepared by an
environmental consulting firm reasonably acceptable to the Administrative Agent,
indicating (if relevant to such breach) the presence or absence of Hazardous
Materials and the potential cost of any removal or remedial action in connection
with any Hazardous Materials on such Real Property; provided, that such request
may be made only if (i) there has occurred and is continuing an Event of
Default, (ii) the Administrative Agent or the Required Lenders reasonably
believe that the Borrower or any such Real Property is not in compliance with
Environmental Law and such circumstances could reasonably be expected to have a
Material Adverse Effect, or (iii) circumstances exist that reasonably could be
expected to form the basis of a material Environmental Claim against the
Borrower or any of its Subsidiaries or any such Real Property. If the Borrower
fails to provide the same within a reasonable period, not to exceed 90 days
after such request was made, the Administrative Agent may order the same, and
the Borrower shall grant and hereby grant to the Administrative Agent and the
Lenders and their respective agents access to such Real Property and
specifically grants the Administrative Agent and the Lenders an irrevocable
non-exclusive license, subject to the rights of tenants, to undertake such an
assessment, all at the Borrower's expense.
8.07 ERISA. As soon as possible and, in any event, within 10 days
after the Borrower, any of its Subsidiaries or any ERISA Affiliate knows or has
reason to know of the occurrence of any of the following, the Borrower will
deliver to the Administrative Agent a certificate of the chief financial officer
of the Borrower setting forth the full details as to such occurrence and the
action, if any, that the Borrower, such Subsidiary or such ERISA Affiliate is
required or proposes to take, together with any notices required or proposed to
be given to or filed by such Borrower, such Subsidiary, the Plan administrator
or such ERISA Affiliate to or with the PBGC or any other government agency, or a
Plan or Multiemployer Plan participant and any notices received by such
Borrower, such Subsidiary or ERISA Affiliate from the PBGC or any other
government agency, or a Plan or Multiemployer Plan participant with respect
thereto: that a Reportable Event has occurred (except to the extent that the
Borrower has previously delivered to the Lenders a certificate and notices (if
any) concerning such event pursuant to the next clause hereof); that a
contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan
subject to Title IV of ERISA is subject to the advance reporting requirement of
PBGC Regulation Section 4043.61 (without regard to subparagraph (b)(1) thereof),
and an event described in subsection .62, .63, .64, .65, .66, .67 or .68 of PBGC
Regulation Section 4043 is reasonably expected to occur with respect to such
Plan within the following 30 days; that an accumulated funding deficiency,
within the meaning of Section 412 of the Code or Section 302 of ERISA, has been
incurred or an application may be or has been made for a waiver or modification
of the minimum funding standard (including any required installment payments) or
an extension of any amortization period under Section 412 of the Code or Section
303 or 304 of ERISA with respect to a Plan or Multiemployer Plan; that any
contribution required to be made
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with respect to a Plan or Multiemployer Plan has not been timely made; that a
Plan or Multiemployer Plan has been or may be terminated, reorganized,
partitioned or declared insolvent under Title IV of ERISA; that a Plan has an
Unfunded Current Liability; that proceedings may be or have been instituted to
terminate or appoint a trustee to administer a Plan which is subject to Title IV
of ERISA; that a proceeding has been instituted pursuant to Section 515 of ERISA
to collect a delinquent contribution to a Multiemployer Plan; that the Borrower,
any of its Subsidiaries or any ERISA Affiliate will or may incur any liability
(including any indirect, contingent, or secondary liability) to or on account of
the termination of or withdrawal from a Plan or Multiemployer under Section
4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with respect to a Plan
under Section 401(a)(29), 4971, 4975 or 4980 of the Code or Section 409 or
502(i) or 502(l) of ERISA or with respect to a group health plan (as defined in
Section 607(1) of ERISA or Section 4980B(g)(2) of the Code) under Section 4980B
of the Code; or that the Borrower, or any of its Subsidiaries may incur any
material liability pursuant to any employee welfare benefit plan (as defined in
Section 3(1) of ERISA) that provides benefits to retired employees or other
former employees (other than as required by Section 601 of ERISA) or any Plan.
The Borrower will deliver to the Administrative Agent copies of any records,
documents or other information that must be furnished to the PBGC with respect
to any Plan pursuant to Section 4010 of ERISA. The Borrower will also deliver to
the Administrative Agent a complete copy of the annual report (on Internal
Revenue Service Form 5500-series) of each Plan, other than a Multiemployer Plan
(including, to the extent required, the related financial and actuarial
statements and opinions and other supporting statements, certifications,
schedules and information) required to be filed with the Internal Revenue
Service. In addition to any certificates or notices delivered to the
Administrative Agent pursuant to the third sentence hereof, copies of annual
reports and any records, documents or other information required to be furnished
to the PBGC or any other government agency, and any material notices received by
the Borrower, any of its Subsidiaries or any ERISA Affiliate with respect to any
Plan or received from any government agency or plan administrator or sponsor or
trustee with respect to any Multiemployer Plan, shall be delivered to the
Administrative Agent no later than ten (10) days after the date such annual
report has been filed with the Internal Revenue Service or such records,
documents and/or information has been furnished to the PBGC or any other
government agency or such notice has been received by the Borrower, the
Subsidiary or the ERISA Affiliate, as applicable.
8.08 End of Fiscal Years; Fiscal Quarters. The Borrower shall
cause (i) its, and each of its Subsidiaries', fiscal years to end on September
30 and (ii) its, and each of its Subsidiaries', fiscal quarters to end on March
31, June 30, September 30, and December 31.
8.09 Payment of Taxes. The Borrower will pay and discharge, and
will cause each of its Subsidiaries to pay and discharge, all material taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits, or upon any properties belonging to it, prior to the date on
which penalties attach thereto, and all lawful claims for sums that have become
due and payable which, if unpaid, might become a Lien not otherwise permitted
under Section 9.01(i), provided, that neither the Borrower nor any of its
Subsidiaries shall be required to pay any such tax, assessment, charge, levy or
claim which is being contested in good faith and by proper proceedings if it has
maintained adequate reserves with respect thereto in accordance with GAAP.
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8.10 Ownership of Subsidiaries. Except to the extent expressly
permitted herein or as otherwise expressly consented in writing by the Required
Lenders, the Borrower shall directly or indirectly own 100% of the capital stock
or other equity interests of each of its Subsidiaries.
8.11 Additional Security; Further Assurances; Surveys. (a) The
Borrower will, and will cause each of its Domestic Subsidiaries to, grant to the
Collateral Agent security interests and mortgages (an "Additional Mortgage") in
such Real Property (excluding Real Property where the fair market value thereof
is less than $500,000) of the Borrower or any of its Domestic Subsidiaries as
are not covered by the original Mortgages, to the extent acquired after the
Initial Borrowing Date, and as may be requested from time to time by the
Administrative Agent or the Required Lenders (each such Real Property, an
"Additional Mortgaged Property"). All such Additional Mortgages shall be granted
pursuant to documentation substantially in the form of the Mortgages or in such
other form as is reasonably satisfactory to the Administrative Agent and shall
constitute valid and enforceable perfected Liens superior to and prior to the
rights of all third Persons and subject to no other Liens except as are
permitted by Section 9.01 at the time of perfection thereof. The Additional
Mortgages or instruments related thereto shall be duly recorded or filed in such
manner and in such places as are required by law to establish, perfect, preserve
and protect the Liens in favor of the Collateral Agent required to be granted
pursuant to the Additional Mortgages and all taxes, fees and other charges
payable in connection therewith shall be paid in full.
(b) The Borrower will, and will cause each of its Domestic
Subsidiaries to, at the expense of the Borrower, make, execute, endorse,
acknowledge, file and/or deliver to the Collateral Agent from time to time such
vouchers, invoices, schedules, confirmatory assignments, conveyances, financing
statements, transfer endorsements, powers of attorney, certificates, real
property surveys, reports and other assurances or instruments and take such
further steps relating to the Collateral covered by any of the Security
Documents as the Collateral Agent may reasonably require pursuant to this
Section 8.11. Additionally, upon the request of the Collateral Agent or the
Required Lenders, the Borrower shall take, or cause to be taken such action as
may be requested in order to perfect (or maintain the perfection of) the
security interests (or take any analogous actions under the applicable
provisions of local law in order to protect such security interests) in any
Collateral located outside the U.S. owned by the Borrower or a Domestic
Subsidiary, in each case to the extent such actions are permitted to be taken
under the laws of the applicable jurisdictions. Furthermore, the Borrower shall
cause to be delivered to the Collateral Agent such opinions of counsel, title
insurance and other related documents as may be reasonably requested by the
Collateral Agent to assure itself that this Section 8.11 has been complied with.
(c) The Borrower agrees to cause each Domestic Subsidiary
established or created in accordance with Section 9.14 to execute and deliver a
guaranty of all Guaranteed Obligations in substantially the form of the
Subsidiaries Guaranty.
(d) The Borrower agrees to pledge and deliver, or cause to be
pledged and delivered, all of the capital stock or other equity interests of
each new Subsidiary (excluding that portion of the voting stock of any Foreign
Subsidiary which would be in excess of 65% of the
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total outstanding voting stock of such Foreign Subsidiary) established, created
or acquired after the Initial Borrowing Date, to the extent owned by the
Borrower or any Domestic Subsidiary, to the Collateral Agent for the benefit of
the Secured Creditors pursuant to the Pledge Agreement.
(e) The Borrower will cause each Domestic Subsidiary
established or created in accordance with Section 9.14 or acquired pursuant to
Section 8.12 to grant to the Collateral Agent a first priority (subject to
Permitted Liens) Lien on property (tangible and intangible) of such Subsidiary
upon terms and with exceptions similar to those set forth in the Security
Documents as appropriate, and satisfactory in form and substance to the
Borrower, the Administrative Agent and Required Lenders. The Borrower shall
cause each such Domestic Subsidiary, at its own expense, to execute, acknowledge
and deliver, or cause the execution, acknowledgment and delivery of, and
thereafter register, file or record in any appropriate governmental office, any
document or instrument reasonably deemed by the Collateral Agent to be necessary
or desirable for the creation and perfection of the foregoing Liens. The
Borrower will cause each of such Domestic Subsidiaries to take all actions
reasonably requested by the Administrative Agent (including, without limitation,
the filing of UCC-1's) in connection with the granting of such security
interests.
(f) The security interests required to be granted pursuant to
this Section 8.11 shall be granted pursuant to security documentation (which
shall be substantially similar to the Security Documents already executed and
delivered by the Borrower or its Subsidiaries, as applicable) or otherwise
satisfactory in form and substance to the Administrative Agent and the Borrower
and shall constitute valid and enforceable perfected security interests prior to
the rights of all third Persons and subject to no other Liens except such Liens
as are permitted by Section 9.01. The Additional Security Documents and other
instruments related thereto shall be duly recorded or filed in such manner and
in such places and at such times as are required by law to establish, perfect,
preserve and protect the Liens, in favor of the Collateral Agent for the benefit
of the respective Secured Creditors, required to be granted pursuant to the
Additional Security Documents and all taxes, fees and other charges payable in
connection therewith shall be paid in full by the Borrower. At the time of the
execution and delivery of the Additional Security Documents, the Borrower shall
cause to be delivered to the Collateral Agent such opinions of counsel, Mortgage
Policies, title surveys, real estate appraisals and other related documents as
may be reasonably requested by the Administrative Agent or the Required Lenders
to assure themselves that this Section 8.11 has been complied with.
(g) In the event that the Administrative Agent or the Required
Lenders at any time after the Effective Date determines in its or their
reasonable discretion (whether as a result of a position taken by an applicable
bank regulatory agency or official, or otherwise) that real estate appraisals
satisfying the requirements set forth in 12 C.F.R., Part 34-Subpart C, or any
successor or similar statute, rule, regulation, guideline or order (any such
appraisal, a "Required Appraisal") are or were required to be obtained, or
should be obtained, in connection with any Mortgaged Property then, within 90
days after receiving written notice thereof from the Administrative Agent or the
Required Lenders, as the case may be, the Borrower shall cause such Required
Appraisal to be delivered, at the expense of the Borrower, to the Administrative
Agent, which Required Appraisal, and the respective appraiser, shall be
reasonably satisfactory to the Administrative Agent.
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(h) The Borrower agrees that each action required above by
Section 8.11(a) or (b) shall be completed as soon as possible, but in no event
later than 60 days after such action is requested to be taken by the
Administrative Agent, the Collateral Agent or the Required Lenders. The Borrower
further agrees that each action required by Section 8.11(c), (d), (e) and (f)
with respect to the creation or acquisition of a new Subsidiary shall be
completed contemporaneously with (or, in the case of any documents or
instruments to be registered, filed or recorded, within 10 days of) the creation
of such new Subsidiary.
8.12 Permitted Acquisitions. (a) Subject to the provisions of
this Section 8.12 and the requirements contained in the definition of Permitted
Acquisition, the Borrower and any of its Domestic Subsidiaries may from time to
time effect Permitted Acquisitions, so long as (in each case except to the
extent the Required Lenders otherwise specifically agree in writing in the case
of a specific Permitted Acquisition):
(i) no Default or Event of Default shall be in existence at
the time of the consummation of the proposed Permitted Acquisition or
immediately after giving effect thereto;
(ii) the Borrower shall have given the Administrative Agent
and the Lenders at least ten Business Days' prior written notice of
such Permitted Acquisition;
(iii) calculations are made by the Borrower of compliance with
the covenants contained in Sections 9.08, 9.09 and 9.10 for the
Calculation Period most recently ended prior to the date of such
Permitted Acquisition, on a Pro Forma Basis as if the respective
Permitted Acquisition (as well as all other Permitted Acquisitions
theretofore consummated after the first day of such Calculation Period)
had occurred on the first day of such Calculation Period, and such
calculations shall show that such financial covenants would have been
complied with if the Permitted Acquisition had occurred on the first
day of such Calculation Period;
(iv) the Maximum Permitted Consideration payable in connection
with the proposed Permitted Acquisition, when combined with the
aggregate Maximum Permitted Consideration paid in connection with all
other Permitted Acquisitions consummated after the Effective Date and
on or prior to the date of the consummation of the proposed Permitted
Acquisition below does not exceed (x) $50,000,000 plus (y) the
Permitted Expenditure Amount determined on the date of the consummation
of the proposed Permitted Acquisition;
(v) all representations and warranties contained herein and in
the other Credit Documents shall be true and correct in all material
respects with the same effect as though such representations and
warranties had been made on and as of the date of such Permitted
Acquisition (both before and after giving effect thereto), unless
stated to relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all
material respects as of such earlier date;
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(vi) the Borrower provides to the Administrative Agent as soon
as available but not later than five Business Days after the execution
thereof, a copy of any executed purchase agreement or similar agreement
with respect to such Permitted Acquisition;
(vii) the Borrower shall believe in good faith that the
proposed Permitted Acquisition could not result in a material increase
in tax, ERISA, environmental or other contingent liabilities with
respect to the Borrower or any of its Subsidiaries which would
reasonably be expected to have a Material Adverse Effect; and
(viii) the Borrower shall have delivered to the Administrative
Agent an officer's certificate executed by an Authorized Officer of the
Borrower, certifying to the best of the knowledge of such Authorized
Officer, compliance with the requirements of preceding clauses (i)
through (vii), inclusive, containing the calculations required by the
preceding clauses (iii) and (iv).
(b) At the time of each Permitted Acquisition involving the
creation or acquisition of a Subsidiary, or the acquisition of capital stock or
other equity interest of any Person, the capital stock or other equity interests
thereof created or acquired in connection with such Permitted Acquisition shall
be pledged for the benefit of the Secured Creditors pursuant to the Pledge
Agreement in accordance with the requirements of Sections 8.11 and 9.14.
(c) The Borrower shall cause each Subsidiary which is formed
to effect, or is acquired pursuant to, a Permitted Acquisition to comply with,
and to execute and deliver, all of the documentation required by, Sections 8.11
and 9.14, to the satisfaction of the Administrative Agent.
(d) The consummation of each Permitted Acquisition shall be
deemed to be a representation and warranty by the Borrower that the
certifications by the Borrower (or by one or more of its Authorized Officers)
pursuant to Section 8.12(a) are true and correct and that all conditions thereto
have been satisfied and that same is permitted in accordance with the terms of
this Agreement, which representation and warranty shall be deemed to be a
representation and warranty for all purposes hereunder, including, without
limitation, Sections 6 and 10.
8.13 Foreign Subsidiaries Security. If following a change in
the relevant sections of the Code or the regulations, rules, rulings, notices or
other official pronouncements issued or promulgated thereunder, counsel for the
Borrower acceptable to the Administrative Agent and the Required Lenders does
not within 30 days after a request from the Administrative Agent or the Required
Lenders deliver to the Administrative Agent evidence, in form and substance
reasonably satisfactory to the Administrative Agent and the Required Lenders,
with respect to any Foreign Wholly-Owned Subsidiary which has not already had
all of its stock pledged pursuant to the Pledge Agreement that (i) a pledge of
65% or more of the total combined voting power of all classes of capital stock
of such Foreign Subsidiary entitled to vote or, in the case of a Foreign
Subsidiary whose capital stock is held by another Foreign Subsidiary, a pledge
of any of the capital stock of such Foreign Subsidiary, (ii) the entering into
by such Foreign Subsidiary of a security agreement in substantially the form of
the Security Agreement, (iii) the entering into by such Foreign Subsidiary of a
pledge agreement in substantially the form of the Pledge Agreement
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and (iv) the entering into by such Foreign Subsidiary of a guaranty in
substantially the form of the Subsidiaries Guaranty, in any such case would
cause (I) the undistributed earnings of such Foreign Subsidiary (or such Foreign
Subsidiary's parent or indirect parent to the extent that such parent is also a
foreign subsidiary) as determined for Federal income tax purposes to be treated
as a deemed dividend to such Foreign Subsidiary's United States parent for
Federal income tax purposes or (II) other material adverse Federal income tax
consequences to the Credit Parties, then in the case of a failure to deliver the
evidence described in clause (i) above, that portion of such Foreign
Subsidiary's outstanding capital stock not theretofore pledged pursuant to the
Pledge Agreement shall be pledged to the Collateral Agent for the benefit of the
Secured Creditors pursuant to the Pledge Agreement (or another pledge agreement
in substantially similar form, if needed), and in the case of a failure to
deliver the evidence described in clause (ii) or (iii) above, such Foreign
Subsidiary shall execute and deliver the Security Agreement (or another security
agreement in substantially similar form, if needed) or the Pledge Agreement (or
another pledge agreement in substantially similar form, if needed), as the case
may be, granting to the Collateral Agent for the benefit of the Secured
Creditors a security interest in all of such Foreign Subsidiary's assets or the
capital stock and promissory notes owned by such Foreign Subsidiary, as the case
may be, and securing the Obligations of the Borrower under the Credit Documents
and under any Interest Rate Protection Agreement or Other Hedging Agreement and,
in the event the Subsidiaries Guaranty shall have been executed by such Foreign
Subsidiary, the obligations of such Foreign Subsidiary thereunder, and in the
case of a failure to deliver the evidence described in clause (iv) above, such
Foreign Subsidiary shall execute and deliver the Subsidiaries Guaranty (or
another guaranty in substantially similar form, if needed), guaranteeing the
Obligations of the Borrower under the Credit Documents and under any Interest
Rate Protection Agreement or Other Hedging Agreement, in each case to the extent
that the entering into of such Security Agreement, Pledge Agreement or
Subsidiaries Guaranty (or substantially similar document) is permitted by the
laws of the respective foreign jurisdiction and with all documents delivered
pursuant to this Section 8.13 to be in form and substance reasonably
satisfactory to the Administrative Agent and the Required Lenders.
8.14 Year 2000 Compliance. The Borrower shall take all actions
necessary and commit adequate resources to assure that its computer-based and
other systems (and those of all Subsidiaries) are able to effectively process
dates, including dates before, on and after January 1, 2000, without
experiencing any Y2K Problem that could reasonably be expected cause a Material
Adverse Effect. At the request of the Administrative Agent and to the extent the
Borrower is able to do so after using its commercially reasonable efforts, the
Borrower will provide the Administrative Agent with assurances and
substantiations (including, but not limited to, the results of internal or
external audit reports prepared in the ordinary course of business) reasonably
acceptable to the Administrative Agent as to the capability of the Borrower and
its Subsidiaries to conduct its and their businesses and operations before, on
and after January 1, 2000 without experiencing a Y2K Problem causing a Material
Adverse Effect.
8.15 Pioneer Valley. The Borrower shall use its commercially
reasonable efforts to cause AHP of Utah, Inc. ("AHP") to consent to (i) the
granting of a first priority Lien on the accounts receivable of Pioneer Valley
included in the AHP Collateral and a second priority Lien on the other assets of
Pioneer Valley included in the AHP Collateral, in each case to the Collateral
Agent for the benefit of the Secured Creditors and (ii) the granting of a
Mortgage on
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the AHP Lease to the Collateral Agent for the benefit of the Secured Creditors,
in each case, with a target date of 90 days after the Initial Borrowing Date.
Upon the receipt of such consent, the Borrower shall cause Pioneer Valley to (i)
execute and deliver an amendment to the Security Agreement satisfactory in form
and substance to the Administrative Agent deleting the exclusion of such
collateral from the collateral under the Security Agreement and (ii) execute and
deliver a Mortgage and all documentation required by Section 8.11 granting a
Lien on the AHP Lease to secure the Guaranteed Obligations.
SECTION 9. Negative Covenants. The Borrower hereby covenants
and agrees that on and after the Effective Date and until the Total Commitments
and all Letters of Credit have terminated and the Loans, Notes and Unpaid
Drawings, together with interest, Fees and all other Obligations incurred
hereunder and thereunder, are paid in full (other than any indemnity, not then
due and payable, which by its terms shall survive such termination and payment):
9.01 Liens. The Borrower will not, and will not permit any of
its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or
with respect to any property or assets (real or personal, tangible or
intangible) of the Borrower or any of its Subsidiaries, whether now owned or
hereafter acquired, or sell any such property or assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such property
or assets (including sales of accounts receivable with recourse to the Borrower
or any of its Subsidiaries), or assign any right to receive income or permit the
filing of any financing statement under the UCC or any other similar notice of
Lien under any similar recording or notice statute; provided that the provisions
of this Section 9.01 shall not prevent the creation, incurrence, assumption or
existence of the following (Liens described below are herein referred to as
"Permitted Liens"):
(i) Liens for taxes, assessments or governmental charges or
levies not yet due and payable or Liens for taxes, assessments or
governmental charges or levies being contested in good faith and by
appropriate proceedings for which adequate reserves have been
established in accordance with generally accepted accounting principles
in the United States;
(ii) Liens in respect of property or assets of the Borrower or
any of its Subsidiaries imposed by law, which arise or were incurred in
the ordinary course of business and do not secure Indebtedness for
borrowed money, such as carriers', workmen's, repairmen's,
warehousemen's, materialmen's and mechanics' liens, collecting bank's
liens, charge back rights of depository banks for uncollected items and
other similar Liens arising or incurred in the ordinary course of
business, and (x) which do not in the aggregate materially detract from
the value of the property or assets of the Borrower or such Subsidiary
and do not materially impair the use thereof in the operation of the
business of the Borrower or such Subsidiary or (y) which are being
contested in good faith by appropriate proceedings, which proceedings
(or orders entered in connection with such proceedings) have the effect
of preventing the forfeiture or sale of the property or assets subject
to any such Lien;
(iii) Liens in existence on the Effective Date which are listed,
and the property subject thereto described, in Schedule IV, but only to
the respective date, if any, set forth
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in such Schedule IV for the removal and termination of any such Liens,
plus renewals and extensions of such Liens to the extent set forth on
Schedule IV, provided that (x) the aggregate principal amount of the
Indebtedness, if any, secured by such Liens does not increase from that
amount outstanding at the time of any such renewal or extension and (y)
any such renewal or extension does not encumber any additional assets
or properties of the Borrower or any of its Subsidiaries;
(iv) Permitted Encumbrances;
(v) Liens created pursuant to this Agreement and the Security
Documents;
(vi) licenses, sublicenses, leases or subleases granted to other
Persons in the ordinary course of business not materially interfering
with the conduct of the business of the Borrower and its Subsidiaries
taken as a whole;
(vii) Liens placed upon assets used in the ordinary course of
business of the Borrower or any of its Subsidiaries at the time of
acquisition thereof by the Borrower or any such Subsidiary or within 90
days thereafter to secure Indebtedness incurred to pay all or a portion
of the purchase price thereof, provided that (i) any such Liens attach
only to the equipment so purchased and upgrades thereon, (ii) the
Indebtedness secured by any such Lien does not exceed the purchase
price of the equipment being purchased at the time of the incurrence of
such Indebtedness and (iii) the Indebtedness secured thereby is
permitted to be incurred pursuant to Section 9.04(vi);
(viii) easements, rights-of-way, restrictions (including zoning
restrictions), covenants, encroachments, protrusions permits,
servitudes, reservations and other similar charges or encumbrances, and
minor title deficiencies, in each case whether now or hereafter in
existence, not securing Indebtedness and not materially interfering
with the conduct of the business of the Borrower and its Subsidiaries
taken as a whole;
(ix) Liens arising from precautionary UCC financing statement
filings regarding operating leases entered into by the Borrower or any
of its Subsidiaries in the ordinary course of business;
(x) Liens arising out of judgments or awards in circumstances
not constituting an Event of Default under Section 10.09 either which
are in existence for less than 30 days or in respect of which the
Borrower or any of its Subsidiaries shall in good faith be prosecuting
an appeal or proceedings for review in respect of which there shall
have been secured a subsisting stay of execution pending such appeal or
proceedings, provided that the aggregate amount of all such judgments
or awards does not exceed $10,000,000 at any time outstanding;
(xi) statutory, contractual and common law landlords' liens
under leases or subleases permitted by this Agreement;
(xii) Liens (other than any Lien imposed by ERISA) (x) incurred
or deposits made in the ordinary course of business in connection with
workers' compensation, unemployment
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insurance and other types of social security, (y) to secure the
performance of tenders, statutory obligations (other than excise
taxes), surety, stay, customs and appeal bonds, statutory bonds, bids,
leases, government contracts, trade contracts, performance and return
of money bonds and other similar obligations (exclusive of obligations
for the payment of borrowed money) or (z) arising by virtue of deposits
made in the ordinary course of business to secure liability for
premiums to insurance carriers;
(xiii) any interest or title of a lessor, sublessor, licensee or
licensor under any lease or license agreement permitted by this
Agreement;
(xiv) Liens created pursuant to Capital Leases permitted pursuant
to Section 9.04(vi), provided that (x) such Liens only serve to secure
the payment of Indebtedness arising under such Capitalized Lease
Obligation and (y) the Lien encumbering the asset giving rise to such
Capitalized Lease Obligation does not encumber any other asset of the
Borrower or any of its Subsidiaries;
(xv) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods entered into
by the Borrower or any of its Subsidiaries in the ordinary course of
business (excluding any general inventory financing);
(xvi) Liens on property or assets acquired pursuant to a
Permitted Acquisition, or on property or assets of a Subsidiary of the
Borrower in existence at the time such Subsidiary is acquired pursuant
to a Permitted Acquisition, provided that (x) any Indebtedness that is
secured by such Liens is permitted to exist under Section 9.04(xii) and
(y) such Liens are not incurred in connection with, or in contemplation
or anticipation of, such Permitted Acquisition and do not attach to any
other asset of the Borrower or any of its Subsidiaries;
(xvii) Liens arising pursuant to Permitted Sale-Leaseback
Transactions to the extent permitted by Section 9.02(ix), so long as
such Liens do not attach to any assets of the Borrower or any of its
Subsidiaries other than those which are the subject of such
Permitted-Sale Leaseback Transaction;
(xviii) Liens in the nature of trustees' Liens granted pursuant to
any indenture governing any Indebtedness permitted by Section 9.04(ii)
in favor of the trustee under such indenture and securing only
obligations to pay compensation to such trustee, to reimburse its
expenses and to indemnify it under the terms thereof;
(xix) Liens to secure the performance by the Borrower and its
Subsidiaries of leases, subleases, licenses and sublicenses, to the
extent incurred or made in the ordinary course of business and not
interfering in any material respect with the business of the Borrower
and its Subsidiaries, provided that the aggregate amount of the fair
value of property subject to Liens at any time pursuant to this clause
(xix) does not exceed $5,000,000 at any time outstanding;
(xx) Liens encumbering the equity interests owned by the
Borrower or any of its Subsidiaries in respect of any Joint Venture
which are either (A) in support of obligations
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which are otherwise non-recourse to the Borrower and its Subsidiaries,
or (B) granted in favor of any non-Affiliate partners, members or joint
venturers in any Joint Venture that is not wholly-owned by the Borrower
or any Subsidiary securing its obligations under the relevant charter
or constitutional documents of such Joint Venture which do not
constitute Indebtedness or the obligations to make Investments in such
Joint Venture; and
(xxi) additional Liens incurred by the Borrower and its
Subsidiaries so long as the value of the property subject to such
Liens, and the Indebtedness and other obligations secured thereby, do
not exceed $500,000.
In connection with the granting of Liens of the type described in clauses (vi),
(vii), (xiv), (xvi), (xvii and (xxi) of this Section 9.01 by the Borrower of any
of its Subsidiaries, each of the Administrative Agent and the Collateral Agent
shall be authorized to take, and shall take, any actions reasonably requested by
the Borrower and deemed appropriate by it in connection therewith (including,
without limitation, by executing appropriate lien releases or lien subordination
agreements in favor of the holder or holders of such Liens, in either case
solely with respect to the item or items of equipment or other assets (including
Real Property) subject to such Liens).
9.02 Consolidation, Merger, Acquisitions or Sale of Assets,
etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind
up, liquidate or dissolve its affairs or enter into any transaction of merger or
consolidation, or convey, sell, lease or otherwise dispose of (or agree to do
any of the foregoing at any future time) all or any part of its property or
assets, or enter into any sale-leaseback transactions, or make any Acquisition
(or agree to do any of the foregoing at any future time), except that:
(i) the Borrower and its Subsidiaries may in the ordinary
course of business, sell, lease or otherwise dispose of any assets
which, in the reasonable judgment of such Person, are obsolete, worn
out or otherwise no longer economic or useful in the conduct of such
Person's business;
(ii) Investments may be made to the extent permitted by Section
9.05 and Cash Equivalents may be disposed of or liquidated in the
ordinary course of business;
(iii) the Borrower and its Subsidiaries may make sales or
transfers of inventory in the ordinary course of business;
(iv) the Borrower and its Subsidiaries may sell or discount, in
each case without recourse and in the ordinary course of business,
overdue accounts receivable arising in the ordinary course of business,
but only in connection with the compromise or collection thereof
consistent with customary industry practice (and not as part of any
bulk sale);
(v) the Borrower and its Subsidiaries may license or sublicense
software, trademarks and other intellectual property in the ordinary
course of business which do not materially interfere with the business
of the Borrower and its Subsidiaries taken as a whole or the Borrower,
so long as each such license is permitted to be assigned pursuant to
the Security Agreement (to the extent that a security interest in such
intellectual
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property is granted thereunder) and does not otherwise prohibit the
granting of a Lien by the Borrower or any of its Subsidiaries pursuant
to the Security Agreement in the intellectual property covered by such
license or such sublicense;
(vi) the Borrower or any Domestic Subsidiary of the Borrower may
transfer assets (including capital stock and other equity interests) or
lease to or acquire or lease assets from the Borrower or any other
Domestic Subsidiary and any Domestic Subsidiary other than, except as
provided in Schedule VI, an Excluded Subsidiary may be merged into the
Borrower or any other Domestic Subsidiary other than, except as
provided in Schedule VI, an Excluded Subsidiary of the Borrower (so
long as, in the case of any merger involving the Borrower, the Borrower
is the surviving corporation thereof);
(vii) the Borrower and its Subsidiaries may sell or otherwise
dispose of additional assets (other than any Asset Sale pursuant to a
sale-leaseback transaction), provided that (v) each such sale or
disposition shall be for an amount at least equal to the fair market
value thereof (as determined in good faith by the senior management of
the Borrower), (w) except in the case of a Permitted Exchange, each
such sale results in consideration at least 75% of which shall be in
the form of cash (for such purpose, taking into account the amount of
cash, the principal amount of any promissory notes and the fair market
value, as determined in good faith by the senior management of the
Borrower, of any other consideration), (x) the Net Sale Proceeds
therefrom are either applied to repay Term Loans as provided in Section
4.02(e) or reinvested in Eligible Assets to the extent permitted by
Section 4.02(e), and (y) the aggregate Net Sale Proceeds of all assets
subject to sale or other disposition pursuant to this clause (vii)
shall not exceed the sum of (A) $50,000,000 and (B) the Permitted
Expenditure Amount, in the aggregate during the period commencing on
the Effective Date;
(viii) the Borrower and its Wholly-Owned Domestic Subsidiaries may
make Permitted Acquisitions, so long as such Permitted Acquisitions are
effected in accordance with the requirements of Section 8.12;
(ix) the Borrower or any of its Subsidiaries may effect
Permitted Sale-Leaseback Transactions in accordance with the definition
thereof, provided that (x) the aggregate amount of all proceeds
received by the Borrower and its Subsidiaries from all Permitted
Sale-Leaseback Transactions consummated on and after the Effective Date
shall not exceed $20,000,000, (y) the Net Sale Proceeds therefrom are
applied to repay Term Loans as provided in Section 4.02(e) or
reinvested in Eligible Assets to the extent permitted by Section
4.02(e) and (z) the Borrower establishes compliance with Sections 9.08,
9.09 and 9.10 after giving effect, on a Pro Forma Basis, to such
Permitted Sale-Leaseback Transaction;
(x) any Subsidiary of the Borrower may (A) liquidate or
dissolve voluntarily into, and may merge with and into, the Borrower
(so long as the Borrower is the surviving corporation of such
combination or merger) or any other Wholly-Owned Domestic Subsidiary,
and the assets or stock of any Subsidiary may be purchased or otherwise
acquired by the Borrower or any other Wholly-Owned Domestic Subsidiary,
(B) wind up
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its affairs so long as, immediately prior thereto, it shall have
transferred all of its assets to the Borrower or any Wholly-Owned
Domestic Subsidiary, and (C) be converted into, or reorganized or
reconstituted as, a limited partnership or limited liability company,
provided that at the time of such conversion, reorganization or
reconstitution, all actions required to maintain the perfection and
priority of the Lien of the Pledge Agreement shall have been taken to
the satisfaction of the Collateral Agent;
(xi) the Borrower and its Subsidiaries may sell (including by
the issuance of capital stock by the affected Subsidiary) equity
interests in any of the Subsidiaries of the Borrower to Hospital
Investment Program Participants in connection with the Hospital
Investment Program so long as such sale or issuance is effected in
accordance with the definition of Hospital Investment Program; and
(xii) the Borrower and its Subsidiaries may effect sale leaseback
transactions described in clause (x)(6) of the proviso to the
definition of Asset Sale.
To the extent the Required Lenders waive the provisions of this Section 9.02
with respect to the sale of any Collateral, or any Collateral is sold or
otherwise transferred as permitted by this Section 9.02, such Collateral (unless
sold to the Borrower or a Subsidiary of the Borrower) shall be sold free and
clear of the Liens created by the Security Documents, and the Administrative
Agent and Collateral Agent shall be authorized to take any actions reasonably
requested by the Borrower and deemed appropriate by the Administrative Agent and
the Collateral Agent in order to effect the foregoing.
9.03 Dividends. The Borrower shall not, and shall not permit
any of its Subsidiaries to, authorize, declare or pay any Dividends with respect
to the Borrower or any of its Subsidiaries, except that:
(i) any Subsidiary of the Borrower may pay cash Dividends to
the Borrower or any Wholly-Owned Subsidiary of the Borrower or,
provided that no Material Default or Event of Default shall have
occurred and be continuing, to any other equity holders of such
Subsidiary on a pro rata basis with any such Dividends to be paid to
the Borrower and any other Subsidiaries of the Borrower having equity
interests in such Dividend paying Subsidiary;
(ii) so long as there shall exist no Default or Event of Default
(both before and after giving effect to the payment thereof), the
Borrower may repurchase or redeem outstanding shares of its common
stock or other equity interests (or options to purchase such common
stock or other equity interests) owned by employees, officers or
directors of the Borrower or any Subsidiary pursuant to any management
equity subscription agreement or stock option agreement as in effect on
the Initial Borrowing Date, provided that the aggregate amount of all
Dividends paid pursuant to this clause (ii) in any fiscal year shall
not exceed $2,000,000;
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(iii) the Borrower may pay regularly accruing Dividends with
respect to the Borrower Preferred Stock through the issuance of
additional shares of Borrower Preferred Stock (but not in cash or other
property) in accordance with the terms thereof;
(iv) the Borrower may cancel all or a portion of the principal
amount of notes delivered to the Borrower by employees, officers or
directors in connection with the vesting of interests or repurchase of
interests pursuant to any Equity Plan;
(v) the Borrower and its Subsidiaries may repurchase or redeem
equity interests of Subsidiaries sold or issued in connection with the
Hospital Investment Program, provided, that no Material Default or
Event of Default shall have occurred and be continuing at the time of
such repurchase or redemption; and
(vi) so long as there shall exist no Default or Event of Default
(both before and after giving effect to the payment thereof), the
Borrower may pay Dividends in an amount not to exceed the Permitted
Expenditure Amount determined on the date of the payment thereof.
9.04 Indebtedness. The Borrower will not, and will not permit
any of its Subsidiaries to, contract, create, incur, assume or suffer to exist
any Indebtedness, except:
(i) Indebtedness incurred or existing pursuant to this
Agreement and the other Credit Documents;
(ii) unsecured Indebtedness of the Borrower and the Subsidiary
Guarantors under the Senior Subordinated Notes and the other Senior
Subordinated Notes Documents in an aggregate principal amount for all
Indebtedness at any time outstanding pursuant to this clause (ii) not
to exceed $230,000,000;
(iii) Existing Indebtedness to the extent actually outstanding on
the Initial Borrowing Date and as the same is listed on Schedule V.A,
but no refinancings or renewals thereof other than as permitted by
clause (xvi) below;
(iv) Indebtedness under Interest Rate Protection Agreements
which may be entered into from time to time by the Borrower and which
the Borrower in good faith believes will provide protection against
fluctuations in interest rates with respect to outstanding floating
rate Indebtedness then outstanding, and permitted to be outstanding,
pursuant to the other provisions of this Section 9.04;
(v) Indebtedness under Other Hedging Agreements entered into in
the ordinary course of business and so long as any such Other Hedging
Agreement is not speculative in nature and is (x) related to income
derived from foreign operations of the Borrower or any Subsidiary or
otherwise related to purchases permitted hereunder from foreign
suppliers or (y) entered into to protect the Borrower and its
Subsidiaries against fluctuation in the price of raw materials used in
the business;
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(vi) Capitalized Lease Obligations (including Capitalized Lease
Obligations arising from Permitted Sale-Leaseback Transactions) and
Indebtedness of the Borrower and its Subsidiaries representing purchase
money Indebtedness secured by Liens permitted pursuant to Section
9.01(vii), provided that the sum of (without duplication) (w) the
aggregate amount of Capitalized Lease Obligations (including
Capitalized Lease Obligations arising from Permitted Sale Leaseback
Transactions) incurred on and after the Initial Borrowing Date and
outstanding at any time plus (x) the aggregate principal amount of
Permitted Refinancing Indebtedness incurred in respect of Indebtedness
incurred pursuant to this clause (vi) or Section 9.04(xii) and
outstanding at any time plus (y) the aggregate principal amount of all
such purchase money Indebtedness incurred on and after the Initial
Borrowing Date and outstanding at any time plus (z) Permitted Acquired
Debt assumed on and after the Initial Borrowing Date and outstanding at
any time, shall not exceed the sum of (A) $35,000,000 plus (B) the
Permitted Expenditure Amount;
(vii) intercompany Indebtedness of the Borrower and its
Subsidiaries outstanding to the extent permitted by Section 9.05(v);
(viii) Indebtedness under performance bonds, letter of credit
obligations to provide security for worker's compensation claims and
bank overdrafts, in each case incurred in the ordinary course of
business, provided that any obligations arising in connection with such
bank overdraft Indebtedness is extinguished within five Business Days;
(ix) Indebtedness of the Borrower and its Subsidiaries which may
be deemed to exist pursuant to their respective obligations to pay
Dividends permitted by Section 9.03 after same have been declared;
(x) Indebtedness consisting of loans by third Persons to
officers and employees of the Borrower and its Subsidiaries guaranteed
by the Borrower in an aggregate principal amount not to exceed $500,000
outstanding at any time;
(xi) Indebtedness of the Borrower or any of its Subsidiaries
which may be deemed to exist in connection with agreements providing
for indemnification, purchase price adjustments and similar obligations
in connection with acquisitions or sales of assets including equity
interests and/or businesses effected in accordance with the
requirements of this Agreement (so long as any such obligations are
those of the Person making the respective acquisition or sale, and are
not guaranteed by any other Person other than the Borrower);
(xii) Indebtedness of a Subsidiary acquired pursuant to a
Permitted Acquisition (or Indebtedness assumed by the Borrower or any
Domestic Subsidiary pursuant to a Permitted Acquisition as a result of
a merger or consolidation or the acquisition of an asset securing such
Indebtedness) (the "Permitted Acquired Debt"), so long as (w) such
Indebtedness was not incurred in connection with, or in anticipation or
contemplation of, such Permitted Acquisition, (x) such Indebtedness
does not constitute debt for borrowed money, it being understood and
agreed that Capitalized Lease Obligations and purchase
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money Indebtedness shall not constitute debt for borrowed money for
purposes of this clause (xii) and (y) the sum of (1) the aggregate
amount of all Capitalized Lease Obligations and purchase money
Indebtedness incurred on and after the Initial Borrowing Date pursuant
to Section 9.04(vi) and outstanding at any time, (2) the aggregate
amount of all Permitted Refinancing Indebtedness incurred in respect of
Indebtedness incurred pursuant to this clause (xii) or Section 9.04(vi)
and outstanding at any time and (3) the aggregate amount of all
Permitted Acquired Debt assumed on and after the Initial Borrowing Date
and outstanding at any time, shall not exceed (A) $35,000,000 plus (B)
the Permitted Expenditure Amount;
(xiii) guarantees by the Borrower of Indebtedness of Domestic
Subsidiaries so long as such Indebtedness is otherwise permitted
hereunder;
(xiv) Indebtedness with respect to completion guarantees,
performance bonds, surety bonds or customs bonds required in the
ordinary course of business in an aggregate principal amount not to
exceed $5,000,000 at any time outstanding;
(xv) Permitted Subordinated Refinancing Indebtedness, so long as
no Default or Event of Default is in existence at the time of any
incurrence thereof and immediately after giving effect thereto;
(xvi) Permitted Refinancing Indebtedness, so long as no Default
or Event of Default is in existence at the time of the incurrence of
such Permitted Refinancing Indebtedness and immediately after giving
effect thereto; and
(xvii) additional unsecured Indebtedness of the Borrower and its
Subsidiaries not otherwise permitted pursuant to this Section 9.04, so
long as the aggregate principal amount of all Indebtedness incurred
pursuant to this clause (xvii) does not exceed at any time outstanding
the sum of (x) $500,000 plus (y) the Permitted Expenditure Amount.
9.05 Advances, Investments and Loans. The Borrower will not,
and will not permit any of its Subsidiaries to, directly or indirectly, lend
money or credit or make advances to any Person, or purchase or acquire any
stock, obligations or securities of, or any other interest in, or make any
capital contribution to, any other Person or hold any cash or Cash Equivalents,
(each of the foregoing an "Investment" and, collectively, "Investments") except
that the following shall be permitted:
(i) the Borrower and its Subsidiaries may acquire and hold
accounts receivables and other customary trade credit owing to any of
them if created or acquired in the ordinary course of business and
payable or dischargeable in accordance with customary trade terms of
the Borrower or such Subsidiary;
(ii) the Borrower and its Subsidiaries may acquire and hold
cash and Cash Equivalents;
(iii) the Borrower and its Subsidiaries may make loans and
advances in the ordinary course of business to their respective
employees so long as the aggregate
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principal amount thereof at any time outstanding (determined without
regard to any write-downs or write-offs of such loans and advances)
shall not exceed $1,000,000;
(iv) the Borrower may enter into Interest Rate Protection
Agreements and other Hedging Agreements to the extent permitted in
Section 9.04(iv) and Section 9.04(v) respectively;
(v) any Subsidiary may make intercompany loans to the Borrower
or any Subsidiary (other than an Excluded Subsidiary) and the Borrower
may make intercompany loans and advances to any Subsidiary (other than
an Excluded Subsidiary), provided that (x) any promissory notes
evidencing such intercompany loans made by the Borrower or any Domestic
Subsidiary shall be pledged (and delivered) by the Borrower or the
respective Domestic Subsidiary that is the lender of such intercompany
loan as Collateral pursuant to the Pledge Agreement, (y) neither the
Borrower nor any Domestic Subsidiaries of the Borrower may make loans
to any Foreign Subsidiaries of the Borrower pursuant to this clause (v)
and (z) any loans made by any Foreign Subsidiaries to the Borrower or
any of its Domestic Subsidiaries pursuant to this clause (v) shall be
subordinated to the Obligations pursuant to subordination provisions in
substantially the form of Exhibit M hereto;
(vi) the Borrower and it Subsidiaries may sell or transfer
assets to the extent permitted by Section 9.02;
(vii) the Borrower may establish Subsidiaries to the extent
permitted by Section 9.14;
(viii) the Borrower and its Subsidiaries may acquire and own
Investments (including debt obligations and equity securities) received
in connection with the bankruptcy or reorganization of suppliers and
customers and in settlement of delinquent obligations of, and other
disputes with, customers and suppliers arising in the ordinary course
of business;
(ix) the Borrower and any of its Domestic Subsidiaries may make
Permitted Acquisitions in accordance with the relevant requirements of
Section 8.12 and the component definitions as used therein;
(x) the Borrower may make Investments in any of its Domestic
Subsidiaries (other than an Excluded Subsidiary), or any Subsidiary of
the Borrower may make Investments in the Borrower or any of its
Domestic Subsidiaries (other than an Excluded Subsidiary);
(xi) Investments as listed on Schedule X existing on the
Effective Date shall be permitted to the extent actually outstanding on
the Initial Borrowing Date (including any such Investments transferred
to the Borrower after the Initial Borrowing Date pursuant to the
Transaction Documents);
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(xii) Investments made by the Borrower or any of its Subsidiaries
consisting of Investments received in connection with any disposition
permitted by Section 9.02;
a
(xiii) Investments in the nature of pledges or deposits with
respect to leases or utilities provided to third parties in the
ordinary course of business;
(xiv) Investments in Indebtedness issued by management of the
Borrower to purchase Borrower Common Stock pursuant to the Borrower's
restricted stock plan so long as the full amount of the proceeds of
such Indebtedness is contemporaneously paid to the Borrower as
consideration for such Borrower Common Stock; and
(xv) so long as no Default or Event of Default exists or would
exist immediately after giving effect to the respective Investment, the
Borrower and its Domestic Subsidiaries shall be permitted to make
Investments in any Joint Venture (including Unrestricted Subsidiaries)
on any date in an amount not to exceed the Available J.V. Basket Amount
on such date (after giving effect to all prior and contemporaneous
adjustments thereto, except as a result of such Investment), it being
understood and agreed that to the extent the Borrower or one or more
other Credit Parties (after the respective Investment has been made)
receives a cash return from the respective Joint Venture of amounts
previously invested pursuant to this clause (xv) (which cash return may
be made by way of repayment of principal in the case of loans and cash
equity returns (whether as a distribution, dividend or redemption) in
the case of equity investments) or a return in the form of an asset
distribution from the respective Joint Venture of any asset previously
contributed pursuant to this clause (xv), then the amount of such cash
return of investment or the fair market value of such distributed asset
(as determined in good faith by senior management of the Borrower), as
the case may be, shall, upon the Administrative Agent's receipt of a
certification of the amount of the return of investment from an
Authorized Officer, apply to increase the Available J.V. Basket Amount,
provided that the aggregate amount of increases to the Available J.V.
Basket Amount described above in respect of any Joint Venture shall not
exceed the amount previously invested pursuant to this clause (xv) in
such Joint Venture.
9.06 Transactions with Affiliates. The Borrower will not, and
will not permit any of its Subsidiaries to, enter into any transaction or series
of related transactions, whether or not in the ordinary course of business, with
any Affiliate of the Borrower or any of its Subsidiaries, other than in the
ordinary course of business and on terms and conditions substantially as
favorable to the Borrower or such Subsidiary as would reasonably be obtained by
the Borrower or such Subsidiary at that time in a comparable arm's-length
transaction with a Person other than an Affiliate, except that:
(i) Dividends may be paid to the extent provided in Section
9.03;
(ii) loans may be made and other transactions may be entered
into between the Borrower and its Subsidiaries to the extent permitted
by Sections 9.02, 9.04 and 9.05;
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(iii) so long as no Default or Event of Default is then in
existence or would result therefrom, the payment, on a quarterly basis,
of management fees to JLL or an Affiliate of JLL in an aggregate amount
not to exceed $1,000,000 in any fiscal year of the Borrower, provided
that if during any fiscal quarter of the Borrower, a Default or Event
of Default is in existence and such management fees cannot be paid as
provided above, such fees shall continue to accrue and may be paid at
such time as all Defaults and Events of Default have been cured or
waived and so long as no Default or Event of Default will exist
immediately after giving effect to the payment thereof;
(iv) customary fees to non-officer directors of the Borrower and
its Subsidiaries;
(v) the Borrower may pay directly, or reimburse JLL, JLL
Hospital, JLL Healthcare and the other Investors for, reasonable
out-of-pocket expenses incurred for business purposes of the Borrower
and its Subsidiaries, including, without limitation, the payment of up
to $3,000,000 as reimbursement for administrative and out-of-pocket
expenses incurred by JLL, JLL Hospital or JLL Healthcare and the other
Investors on or prior to the Initial Borrowing Date in connection with
the Transactions;
(vi) the Borrower and its Subsidiaries may make payments under
the Tax Sharing Agreement;
(vii) the Borrower or any Subsidiary may enter into employment
agreements in the ordinary course of business in good faith;
(viii) the Borrower may enter into Equity Plans and transactions
contemplated thereby; and
(ix) the Borrower or any Subsidiary may enter into transactions
listed on Schedule XIII hereto.
9.07 Capital Expenditures. (a) The Borrower will not, and will
not permit any of its Subsidiaries to, make any Capital Expenditures, except
that during any fiscal year set forth below, the Borrower and its Subsidiaries
may make Capital Expenditures, so long as the aggregate amount of such Capital
Expenditures does not exceed in any fiscal year set forth below the amount set
forth opposite such fiscal year below:
Fiscal Year Ending Amount
------------------ ------
September 30, 2000 $60,000,000
September 30, 2001 $60,000,000
September 30, 2002 $45,000,000
September 30, 2003 $40,000,000
September 30, 2004 $40,000,000
September 30, 2005 $40,000,000
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Fiscal Year Ending Amount
------------------ ------
September 30, 2006 $40,000,000
(b) Notwithstanding the foregoing, in the event that the
amount of Capital Expenditures permitted to be made by the Borrower and its
Subsidiaries pursuant to clause (a) above in any fiscal year (before giving
effect to any increase in such permitted expenditure amount pursuant to this
clause (b)) is greater than the amount of such Capital Expenditures made by the
Borrower and its Subsidiaries during such fiscal year, such excess (the
"Rollover Amount") may be carried forward and utilized to make Capital
Expenditures in the succeeding fiscal year of the Borrower.
(c) Notwithstanding the foregoing, the Borrower and its
Subsidiaries may make Capital Expenditures (which Capital Expenditures will not
be included in any determination under the foregoing clause (a)) with Net Asset
Sale Proceeds (including proceeds from the Hospital Investment Program) to the
extent such Net Asset Sale Proceeds are not required to be applied to repay Term
Loans pursuant to Section 4.02(e) and such proceeds are reinvested as required
by said Section.
(d) Notwithstanding the foregoing, the Borrower and its
Subsidiaries may make Capital Expenditures (which Capital Expenditures will not
be included in any determination under the foregoing clause (a)) consisting of
the reinvestment of Net Insurance/Condemnation Proceeds not required to be
applied to prepay Term Loans pursuant to Section 4.02(f).
(e) Notwithstanding the foregoing, the Borrower and its
Domestic Subsidiaries may make Capital Expenditures (which Capital Expenditures
will not be included in any determination under the foregoing clause (a))
constituting Permitted Acquisitions effected in accordance with the requirements
of Section 8.12 and the component definitions as used therein.
(f) Notwithstanding the foregoing, the Borrower and its
Subsidiaries may make Capital Expenditures (which Capital Expenditures will not
be included in any determination under the foregoing clause (a)) from the
Permitted Expenditure Amount.
9.08 Consolidated Interest Coverage Ratio. The Borrower will
not permit the Consolidated Interest Coverage Ratio for any Test Period ended on
the last day of a fiscal quarter set forth below to be less than the ratio set
forth opposite such fiscal quarter below:
Fiscal Quarter Ended Ratio
-------------------- -----
March 31, 2000 1.5:1.0
June 30, 2000 1.5:1.0
September 30, 2000 1.5:1.0
December 31, 2000 1.5:1.0
March 31, 2001 1.5:1.0
June 31, 2001 1.5:1.0
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Fiscal Quarter Ended Ratio
-------------------- -----
September 30, 2001 1.65:1.0
December 31, 2001 1.65:1.0
March 31, 2002 1.65:1.0
June 30, 2002 1.65:1.0
September 30, 2002 1.85:1.0
December 31, 2002 1.85:1.0
March 31, 2003 1.85:1.0
June 30, 2003 1.85:1.0
September 30, 2003 2.15:1.0
December 31, 2003 2.15:1.0
March 31, 2004 2.15:1.0
June 30, 2004 2.15:1.0
September 30, 2004 2.50:1.0
December 31, 2004 2.50:1.0
March 31, 2005 2.50:1.0
June 30, 2005 2.50:1.0
September 30, 2005 3.25:1.0
December 31, 2005 3.25:1.0
March 31, 2006 3.25:1.0
June 30, 2006 3.25:1.0
September 30, 2006 3.50:1.0
9.09 Maximum Leverage Ratio. The Borrower will not permit the
Leverage Ratio at any time during a fiscal quarter set forth below to be greater
than the ratio set forth opposite such fiscal quarter below:
Fiscal Quarter Ended Ratio
-------------------- -----
March 31, 2000 5.75:1.0
June 30, 2000 5.75:1.0
September 30, 2000 5.50:1.0
December 31, 2000 5.50:1.0
March 31, 2001 5.50:1.0
June 30, 2001 5.50:1.0
September 30, 2001 5.00:1.0
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Fiscal Quarter Ended Ratio
-------------------- -----
December 31, 2001 5.00:1.0
March 31, 2002 5.00:1.0
June 30, 2002 5.00:1.0
September 30, 2002 4.25:1.0
December 31, 2002 4.25:1.0
March 31, 2003 4.25:1.0
June 30, 2003 4.25:1.0
September 30, 2003 3.50:1.0
December 31, 2003 3.50:1.0
March 31, 2004 3.50:1.0
June 30, 2004 3.50:1.0
September 30, 2004 and each 3.00:1.0
Fiscal Quarter thereafter
Notwithstanding anything to the contrary contained in this
Agreement, all calculations of compliance with this Section 9.09 shall be made
on a Pro Forma Basis.
9.10 Fixed Charge Coverage Ratio. The Borrower will not permit
the Fixed Charge Coverage Ratio for any Test Period ended on the last day of a
fiscal quarter set forth below to be less than the ratio set forth opposite such
fiscal quarter below:
Fiscal Quarter Ended Ratio
-------------------- -----
March 31, 2000 1.00:1.0
June 30, 2000 1.00:1.0
September 30, 2000 1.00:1.0
December 31, 2000 1.00:1.0
March 31, 2001 1.00:1.0
June 30, 2001 1.00:1.0
September 30, 2001 1.00:1.0
December 31, 2001 1.00:1.0
March 31, 2002 1.00:1.0
June 30, 2002 1.00:1.0
September 30, 2002 1.05:1.0
December 31, 2002 1.05:1.0
March 31, 2003 1.05:1.0
June 30, 2003 1.05:1.0
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Fiscal Quarter Ended Ratio
-------------------- -----
September 30, 2003 1.15:1.0
December 31, 2003 1.15:1.0
March 31, 2004 1.15:1.0
June 30, 2004 1.15:1.0
September 30, 2004 1.30:1.0
December 31, 2004 1.30:1.0
March 31, 2005 1.30:1.0
June 30, 2005 1.30:1.0
September 30, 2005 and each 1.40:1.0
Fiscal Quarter thereafter
9.11 Limitation on Modifications of Indebtedness;
Modifications of Certificate of Incorporation, By-Laws and Certain Other
Agreements; etc. The Borrower will not, and will not permit any of its
Subsidiaries to, (i) amend or modify, or permit the amendment or modification
of, any provision of any Borrower Preferred Stock Document or of any agreement
(including, without limitation, any purchase agreement, indenture, loan
agreement or security agreement) relating thereto, (ii) amend or modify, or
permit the amendment or modification of, any provision of any Senior
Subordinated Note, Permitted Subordinated Refinancing Indebtedness or of any
agreement (including, without limitation, any purchase agreement, indenture,
loan agreement or security agreement) relating thereto or make any payment
consistent with an amendment thereof or change thereto, if the effect of such
amendment or change is to increase the interest rate on the Senior Subordinated
Notes or the Permitted Subordinated Refinancing Indebtedness, change (to earlier
dates) any dates upon which payments of principal or interest are due thereon,
change any event of default or condition to an event of default with respect
thereto (other than to eliminate any such event of default or increase any grace
period related thereto), change the redemption, prepayment or defeasance
provisions thereof, change the subordination provisions of such Senior
Subordinated Notes or Permitted Subordinated Refinancing Indebtedness, as the
case may be (or of any guaranty thereof), or change any collateral therefor
(other than to release such collateral), or if the effect of such amendment or
change, together with all other amendments or changes made, is to increase
materially the obligations of the obligor thereunder or to confer any additional
rights on the holders of such Senior Subordinated Notes or Permitted
Subordinated Refinancing Indebtedness, as the case may be (or a trustee or other
representative on their behalf), which would reasonably be expected to be
materially adverse to any Credit Party or Lenders, (iii) make (or give any
notice in respect thereof) any voluntary or optional payment or prepayment on or
redemption or acquisition for value (including, without limitation, by way of
depositing with the trustee with respect thereto monies or securities before due
for the purpose of paying when due) or exchange of, or any prepayment or
redemption as a result of any asset sale, change of control or similar event of
any Senior Subordinated Note, Permitted Subordinated
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Refinancing Indebtedness or Borrower Preferred Stock; provided that (x) the
Borrower may exchange the Senior Subordinated Notes for Exchange Senior
Subordinated Notes issued as contemplated in the definition of Senior
Subordinated Notes and consistent with the requirements of the definition of
Exchange Senior Subordinated Notes and (y) provided that no Default or Event of
Default has occurred and is continuing, any Senior Subordinated Notes or
Permitted Subordinated Refinancing Indebtedness may be refinanced with Permitted
Subordinated Refinancing Indebtedness; (iv) amend or modify, or permit the
amendment or modification of any Transaction Document, any Management Agreement,
the St. Luke's Lease or the Tax Sharing Agreement, except for amendments or
modifications which are not in any way materially adverse to the interests of
the Lenders and do not involve the payment by the Borrower or any of its
Subsidiaries of any amounts which could give rise to a violation of this
Agreement or result in the Borrower or any of its Subsidiaries incurring any
material additional liability or monetary obligations not permitted under this
Agreement, or (v) amend, modify or change its Certificate of Incorporation
(including, without limitation, by the filing or modification of any certificate
of designation) or By-Laws (or equivalent organizational documents) or any
agreement entered into by it, with respect to its capital stock (or equivalent
interests) (including any Shareholders' Agreement), or enter into any new
agreement with respect to its capital stock, other than any amendments,
modifications or changes pursuant to this clause (v) or any such new agreements
pursuant to this clause (v) which do not in any way materially adversely affect
the interests of the Lenders or which may be required to issue new capital stock
permitted to be issued pursuant to Section 9.13
9.12 Limitation on Certain Restrictions on Subsidiaries. The
Borrower will not, and will not permit any of its Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any such Subsidiary to (a) pay
dividends or make any other distributions on its capital stock or any other
interest or participation in its profits owned by the Borrower or any Subsidiary
of the Borrower, or pay any Indebtedness owed to the Borrower or a Subsidiary of
the Borrower, (b) make loans or advances to the Borrower or any of the
Borrower's Subsidiaries or (c) transfer any of its properties or assets to the
Borrower or any of the Borrower's Subsidiaries, except for such encumbrances or
restrictions existing under or by reason of (i) applicable law (including
regulatory requirements), (ii) this Agreement and the other Credit Documents,
(iii) customary provisions restricting subletting or assignment of any lease
governing a leasehold interest of the Borrower or a Subsidiary of the Borrower,
(iv) customary provisions restricting assignment of any licensing agreement
entered into by the Borrower or a Subsidiary of the Borrower in the ordinary
course of business, (v) the Senior Subordinated Notes Documents and the
documentation for Permitted Subordinated Refinancing Indebtedness and (vi)
customary provisions restricting the transfer of assets subject to Liens
permitted under Section 9.01 (iii), (vii), (xiv), (xvi) and (xvii), and any
agreement or instrument governing Permitted Acquired Debt, which encumbrance or
restriction is not applicable to any Person or the properties or assets of any
Person, other than the Person or the properties or assets of the Person acquired
pursuant to the respective Permitted Acquisition and so long as the respective
encumbrances or restrictions were not created (or made more restrictive) in
connection with or in anticipation of the respective Permitted Acquisition.
9.13 Limitation on Issuance of Capital Stock. (a) The Borrower
will not, and will not permit any of its Subsidiaries to issue any Disqualified
Stock (other than (i) Borrower
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Preferred Stock issued in accordance with the requirements of Section 5.06 and
the issuance of shares of Borrower Preferred Stock in payment of regularly
accruing dividends on theretofore outstanding shares of Borrower Preferred Stock
and (ii) the issuance of preferred stock by a Subsidiary of the Borrower to the
Borrower or a Wholly-Owned Subsidiary).
(b) The Borrower will not issue any capital stock unless such
capital stock (other than capital stock issued to the public in a registered
public offering) is delivered to the Collateral Agent for pledge pursuant to the
Hypothecation Agreement and the relevant shareholder executes and delivers a
counterpart of the Hypothecation Agreement.
(c) The Borrower will not sell any capital stock of a
Subsidiary or permit any of its Subsidiaries to issue any capital stock
(including by way of sales of treasury stock) or any options or warrants to
purchase, or securities convertible into, capital stock, except (i) for
transfers and replacements of then outstanding shares of capital stock, (ii) for
stock splits, stock dividends and additional issuances which do not decrease the
percentage ownership of the Borrower or any of its Subsidiaries in any class of
the capital stock of such Subsidiary, (iii) in the case of Foreign Subsidiaries
of the Borrower, to qualify directors to the extent required by applicable law,
(iv) Subsidiaries of the Borrower formed after the Effective Date pursuant to
Section 9.14 may issue capital stock to the Borrower or the respective
Subsidiary of the Borrower which is to own such stock in accordance with the
requirements of Section 8.11 and, (v) the Borrower may permit its Subsidiaries
to issue capital stock, and may sell capital stock of subsidiaries in accordance
with the Hospital Investment Program so long as the requirements of the
definition thereof are satisfied and (vi) the Borrower may sell 100% of its
interests in the capital stock of a Subsidiary pursuant to the provisions of
Section 9.02(vii). All capital stock issued in accordance with this Section
9.13(c) shall, to the extent required by the Pledge Agreement or the definition
of Hospital Investment Program, as the case may be, be delivered to the
Collateral Agent for pledge pursuant to the Pledge Agreement or a hypothecation
agreement reasonably satisfactory in form and substance to the Administrative
Agent.
9.14 Limitation on Creation of Subsidiaries and Joint
Ventures. (a) The Borrower shall not establish, create or acquire any additional
Subsidiaries without the prior written consent of the Required Lenders; provided
that the Borrower may establish or create one or more Wholly-Owned Subsidiaries
of the Borrower without such consent so long as (i) 100% of the capital stock of
any new Domestic Subsidiary (or all capital stock of any new Foreign Subsidiary
which is owned by any Credit Party, except that, subject to the provisions of
Section 8.12, not more than 65% of the voting stock of any such Foreign
Subsidiary shall be required to be so pledged) is upon the creation,
establishment or acquisition of any such new Subsidiary pledged and delivered to
the Collateral Agent for the benefit of the Secured Creditors under the Pledge
Agreement and (ii) upon the creation or establishment of any such new Domestic
Subsidiary, such Domestic Subsidiary executes the Additional Security Documents
and guaranty required to be executed by it in accordance with Section 8.11.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, enter into any Joint Venture except to the extent permitted by
Section 9.05(xv) or Section 9.05(x).
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9.15 Business. The Borrower will not, and will not permit any
of its Subsidiaries to, engage directly or indirectly in any lines of business
other than a Permitted Business.
9.16 Designated Senior Debt. The Borrower will not, and will
not permit any of its Subsidiaries to (i) designate any Indebtedness (other than
the Obligations) as "Designated Senior Debt" for purposes of, and as defined in,
the Senior Subordinated Notes Indenture or (ii) designate any documents with
respect to any Indebtedness (other than this Agreement) as the "Credit
Agreement" as defined in the Senior Subordinated Notes Indenture for purposes of
the receipt of notices by the Administrative Agent, and delivery of blockage
notices pursuant to the subordination provisions of the Senior Subordinated
Notes Documents.
9.17 St. Luke's Sub. Notwithstanding anything to the contrary
set forth in this Agreement, the Borrower will not permit St. Luke's Sub to (i)
acquire any assets (other than (x) inventory or (y) pursuant to an operating
lease) the fair market value of which (as determined in good faith by the
Borrower) exceeds $1,000,000 other than pursuant to leases from the Borrower or
a Domestic Subsidiary or (ii) merge or consolidate with or into the Borrower or
any Subsidiary of the Borrower.
SECTION 10. Events of Default. Upon the occurrence of any of
the following specified events (each, an "Event of Default"):
10.01 Payments. The Borrower shall (i) default in the payment
when due of any principal of any Loan or any Note or (ii) default, and such
default shall continue unremedied for three or more Business Days, in the
payment when due of any Unpaid Drawings or interest on any Loan or Note, or any
Fees or any other amounts owing hereunder or under any other Credit Document; or
10.02 Representations, etc. Any representation, warranty or
statement made by any Credit Party herein or in any other Credit Document or in
any statement or certificate delivered pursuant hereto or thereto shall prove to
be untrue in any material respect on the date as of which made or deemed made;
or
10.03 Covenants. Any Credit Party shall (i) default in the due
performance or observance by it of any term, covenant or agreement contained in
Section 8.01(f)(i), 8.11 (within the time periods specified in Section 8.11(h))
or Section 9 or (ii) default in the due performance or observance by it of any
other term, covenant or agreement contained in this Agreement and such default
shall continue unremedied for a period of 30 days after written notice to the
Borrower by the Administrative Agent or any of the Lenders; or
10.04 Default Under Other Agreements. (a) The Borrower or any
of its Subsidiaries shall (i) default in any payment of any Indebtedness (other
than the Obligations) beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness was created or (ii)
default in the observance or performance of any agreement or condition relating
to any Indebtedness (other than the Obligations) or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or
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holders of such Indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause (determined without regard to whether any notice is required),
any such Indebtedness to become due prior to its stated maturity or (b) any
Indebtedness (other than the Obligations) of the Borrower or any of its
Subsidiaries shall be declared to be due and payable, or required to be prepaid
other than by a regularly scheduled required prepayment, prior to the stated
maturity thereof, provided that it shall not be a Default or Event of Default
under this Section 10.04 unless the aggregate principal amount of all
Indebtedness as described in preceding clauses (a) and (b) is at least
$1,000,000; or
10.05 Bankruptcy, etc. The Borrower or any of its Subsidiaries
shall commence a voluntary case concerning itself under Title 11 of the United
States Code entitled "Bankruptcy," as now or hereafter in effect, or any
successor thereto (the "Bankruptcy Code"); or an involuntary case is commenced
against the Borrower or any of its respective Subsidiaries and the petition is
not controverted within 10 days, or is not dismissed within 60 days, after
commencement of the case; or a custodian (as defined in the Bankruptcy Code) is
appointed for, or takes charge of, all or substantially all of the property of
the Borrower or any of its Subsidiaries or the Borrower or any of its
Subsidiaries commences any other proceeding under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or
liquidation or similar law of any jurisdiction whether now or hereafter in
effect relating to the Borrower or any of its Subsidiaries or there is commenced
against the Borrower or any of its Subsidiaries any such proceeding which
remains undismissed for a period of 60 days, or the Borrower or any of its
Subsidiaries is adjudicated insolvent or bankrupt; or any order of relief or
other order approving any such case or proceeding is entered; or the Borrower or
any of its Subsidiaries suffers any appointment of any custodian or the like for
it or any substantial part of its property to continue undischarged or unstayed
for a period of 60 days; or the Borrower or any of its Subsidiaries makes a
general assignment for the benefit of creditors; or any corporate action is
taken by the Borrower or any of its Subsidiaries for the purpose of effecting
any of the foregoing; or
10.06 ERISA. (a) Any Plan shall fail to satisfy the minimum
funding standard required for any plan year or part thereof under Section 412 of
the Code or Section 302 of ERISA or a waiver of such standard or extension of
any amortization period is sought or granted under Section 412 of the Code or
Section 303 or 304 of ERISA, a Reportable Event shall have occurred, a
contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan
subject to Title IV of ERISA shall be subject to the advance reporting
requirement of PBGC Regulation Section 4043.61 (without regard to subparagraph
(b)(1) thereof) and an event described in subsection .62, .63, .64, .65, .66,
.67 or .68 of PBGC Regulation Section 4043 shall be reasonably expected to occur
with respect to such Plan within the following 30 days, any Plan which is
subject to Title IV of ERISA shall have had or is likely to have a trustee
appointed to administer such Plan, any Plan or Multiemployer Plan which is
subject to Title IV of ERISA is, shall have been or is likely to be terminated
or to be the subject of termination proceedings under ERISA, any Plan shall have
an Unfunded Current Liability, a contribution required to be made with respect
to a Plan or Multiemployer Plan has not been timely made, the Borrower or any
Subsidiary of the Borrower or any ERISA Affiliate has incurred or is likely to
incur any liability to or on account of a Plan or Multiemployer Plan under
Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of
ERISA or Section 401(a)(29), 4971 or 4975 of the Code or on account of a group
health plan (as defined in Section 607(1) of ERISA or Section
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4980B(g)(2) of the Code) under Section 4980B of the Code, or the Borrower, or
any of its Subsidiaries has incurred or is likely to incur liabilities pursuant
to one or more employee welfare benefit plans (as defined in Section 3(1) of
ERISA) that provide benefits to retired employees or other former employees
(other than as required by Section 601 of ERISA) or Plans or Multiemployer
Plans, a "default," within the meaning of Section 4219(c)(5) of ERISA, shall
occur with respect to any Multiemployer Plan, any applicable law, rule or
regulation is adopted, changed or interpreted, or the interpretation or
administration thereof is changed, in each case after the date hereof, by any
governmental authority or agency or by any court (a "Change in Law"), or, as a
result of a Change in Law, an event occurs following a Change in Law, with
respect to or otherwise affecting any Plan or Multiemployer Plan; (b) there
shall result from any such event or events the imposition of a lien, the
granting of a security interest, or a liability or a material risk of incurring
a liability; and (c) such lien, security interest or liability, individually,
and/or in the aggregate, in the opinion of the Required Lenders, has had, or
would reasonably be expected to have, a Material Adverse Effect; or
10.07 Security Documents. At any time after the execution and
delivery thereof any of the Security Documents shall cease to be in full force
and effect, or shall cease to give the Collateral Agent for the benefit of the
Secured Creditors the Liens, rights, powers and privileges purported to be
created thereby (including, without limitation, a perfected security interest
in, and Lien on, all of the Collateral), in favor of the Collateral Agent
(unless caused by the action or inaction of the Collateral Agent, superior to
and prior to the rights of all third Persons (except as permitted by Section
9.01), and subject to no other Liens (except as permitted by Section 9.01), or
any Credit Party shall default in the due performance or observance of any term,
covenant or agreement on its part to be performed or observed pursuant to any of
the Security Documents and such default shall continue beyond any grace period
(if any) specifically applicable thereto pursuant to the terms of such Security
Document; or
10.08 Guaranties. Any Guaranty or any provision thereof shall
cease to be in full force or effect as to the relevant Guarantor (except in the
case such Guarantor is no longer a Subsidiary by virtue of a liquidation, sale,
merger or consolidation permitted by Section 9.02), or any Guarantor or Person
acting by or on behalf of such Guarantor shall deny or disaffirm such
Guarantor's obligations under the relevant Guaranty, or any Guarantor shall
default in the due performance or observance of any term, covenant or agreement
on its part to be performed or observed pursuant to the relevant Guaranty; or
10.09 Judgments. One or more judgments or decrees shall be
entered against the Borrower or any of its Subsidiaries involving in the
aggregate for the Borrower and its Subsidiaries a liability (not paid or fully
covered by a reputable and solvent insurance company) and such judgments and
decrees shall not be vacated, discharged or stayed or bonded pending appeal for
any period of 60 consecutive days, and the aggregate amount of all such
judgments, to the extent not covered by insurance or indemnity arrangements
provided by a reputable and creditworthy insurance company or other Person,
exceeds $1,000,000; or
10.10 Change of Control. A Change of Control Event shall
occur; or
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10.11 St. Luke's Lease. The Borrower or any of its
Subsidiaries shall default in the observance or performance of any agreement or
condition relating to the St. Luke's Lease, or any other event shall occur or
condition exist, the effect of which default or other condition is to cause, or
permit the lessor thereunder to cause (determined without regard to whether any
notice is required) such lease to be terminated prior to its scheduled
termination date;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent, upon the written request of
the Required Lenders, shall by written notice to the Borrower, take any or all
of the following actions, without prejudice to the rights of the Administrative
Agent, any Lender or the holder of any Note to enforce its claims against any
Credit Party (provided that, if an Event of Default specified in Section 10.05
shall occur with respect to the Borrower, the result which would occur upon the
giving of written notice by the Administrative Agent to the Borrower as
specified in clauses (i) and (ii) below shall occur automatically without the
giving of any such notice): (i) declare the Total Commitments terminated,
whereupon all Commitments of each Lender shall forthwith terminate immediately
and any Commitment Commission shall forthwith become due and payable without any
other notice of any kind; (ii) declare the principal of and any accrued interest
in respect of all Loans and the Notes and all Obligations owing hereunder and
thereunder to be, whereupon the same shall become, forthwith due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by each Credit Party; (iii) terminate any Letter of Credit
that may be terminated in accordance with its terms; (iv) direct the Borrower
(and the Borrower agrees that upon receipt of such notice, or upon the
occurrence of an Event of Default specified in Section 10.05 with respect to the
Borrower, it will pay) to the Collateral Agent at the Payment Office such
additional amount of cash, to be held as security by the Collateral Agent, as is
equal to the aggregate Stated Amount of all Letters of Credit issued for the
account of the Borrower and then outstanding; and (v) enforce, as Collateral
Agent, all of the Liens and security interests created pursuant to the Security
Documents.
SECTION 11. Definitions and Accounting Terms.
11.01 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
"Acquired Businesses" shall mean the Paracelsus Business and
the Tenet Business.
"Acquisition" shall mean the purchase or other acquisition by
the Borrower of any Subsidiary of assets constituting a business, division or
product line of any Person or of the capital stock or other equity interests of
any Person.
"Additional Collateral" shall mean all property (whether real
or personal) in which security interests are granted (or have been purported to
be granted) (and continue to be in effect at the time of determination) pursuant
to Section 8.11.
"Additional Mortgage" shall have the meaning provided in
Section 8.11(a).
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"Additional Mortgaged Property" shall have the meaning
provided in Section 8.11(a).
"Additional Security Documents" shall mean all mortgages,
pledge agreements, security agreements and other security documents entered into
pursuant to Section 8.11 with respect to Additional Collateral.
"Adjusted Consolidated Net Income" for any period shall mean
Consolidated Net Income for such period and without giving effect to any
extraordinary gains or losses from sales of assets plus, without duplication,
(i) the sum of the amount of all non-cash charges (including, without
limitation, depreciation, amortization, depletion, deferred tax expense and
non-cash interest expense) and non-cash losses which were included in arriving
at Consolidated Net Income for such period less (ii) all non-cash gains included
in arriving at Consolidated Net Income for such period.
"Adjusted Consolidated Working Capital" at any time shall mean
Consolidated Current Assets (but excluding therefrom all cash and Cash
Equivalents) less Consolidated Current Liabilities.
"Adjusted Percentage" shall mean (x) at a time when no Lender
Default exists, for each Lender, such Lender's Percentage and (y) at a time when
a Lender Default exists (i) for each Lender that is a Defaulting Lender, zero
and (ii) for each Lender that is a Non-Defaulting Lender, the percentage
determined by dividing such Lender's Revolving Loan Commitment at such time by
the Adjusted Total Revolving Loan Commitment at such time, it being understood
that all references herein to Revolving Loan Commitments and the Adjusted Total
Revolving Loan Commitment at a time when the Total Revolving Loan Commitment or
Adjusted Total Revolving Loan Commitment, as the case may be, has been
terminated shall be references to the Revolving Loan Commitments or Adjusted
Total Revolving Loan Commitment, as the case may be, in effect immediately prior
to such termination, provided that (A) no Lender's Adjusted Percentage shall
change upon the occurrence of a Lender Default from that in effect immediately
prior to such Lender Default if after giving effect to such Lender Default, and
any repayment of Revolving Loans and Swingline Loans at such time pursuant to
Section 4.02(a) or otherwise, the sum of (i) the aggregate outstanding principal
amount of Revolving Loans of all Non-Defaulting Lenders plus (ii) the aggregate
outstanding principal amount of Swingline Loans plus (iii) the Letter of Credit
Outstandings, exceed the Adjusted Total Revolving Loan Commitment; (B) the
changes to the Adjusted Percentage that would have become effective upon the
occurrence of a Lender Default but that did not become effective as a result of
the preceding clause (A) shall become effective on the first date after the
occurrence of the relevant Lender Default on which the sum of (i) the aggregate
outstanding principal amount of the Revolving Loans of all Non-Defaulting
Lenders plus (ii) the aggregate outstanding principal amount of Swingline Loans
plus (iii) the Letter of Credit Outstandings is equal to or less than the
Adjusted Total Revolving Loan Commitment; and (C) if (i) a Non-Defaulting
Lender's Adjusted Percentage is changed pursuant to the preceding clause (B) and
(ii) any repayment of such Lender's Revolving Loans, or of Unpaid Drawings with
respect to Letters of Credit or of Swingline Loans, that were made during the
period commencing after the date of the relevant Lender Default and ending on
the date of such change to its Adjusted Percentage must be returned to the
Borrower as a preferential or
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similar payment in any bankruptcy or similar proceeding of the Borrower, then
the change to such Non-Defaulting Lender's Adjusted Percentage effected pursuant
to said clause (B) shall be reduced to that positive change, if any, as would
have been made to its Adjusted Percentage if (x) such repayments had not been
made and (y) the maximum change to its Adjusted Percentage would have resulted
in the sum of the outstanding principal of Revolving Loans made by such Lender
plus such Lender's new Adjusted Percentage of the outstanding principal amount
of Swingline Loans and of Letter of Credit Outstandings equaling such Lender's
Revolving Loan Commitment at such time.
"Adjusted Total Revolving Loan Commitment" shall mean at any
time the Total Revolving Loan Commitment less the aggregate Revolving Loan
Commitments of all Defaulting Lenders.
"Administrative Agent" shall have the meaning provided in the
first paragraph of this Agreement, and shall include any successor thereto.
"Affiliate" shall mean, with respect to any Person, any other
Person (including, for purposes of Section 9.06 only, all directors, officers
and partners of such Person) directly or indirectly controlling, controlled by,
or under direct or indirect common control with, such Person; provided, however,
that for purposes of Section 9.06, an Affiliate of the Borrower shall include
any Person that directly or indirectly owns more than 10% of any class of the
capital stock of the Borrower and any officer or director of the Borrower or any
of its Subsidiaries. A Person shall be deemed to control another Person if such
Person possesses, directly or indirectly, the power to direct or cause the
direction of the management and policies of such other Person, whether through
the ownership of voting securities, by contract or otherwise.
"Agents" shall mean the Documentation Agent, the Syndication
Agent and the Administrative Agent.
"Agreement" shall mean this Credit Agreement, as modified,
supplemented, amended, restated, extended, renewed or replaced from time to
time.
"AHP" shall have the meaning provided in Section 8.15.
"AHP Collateral" shall mean the "collateral" covered by the
AHP Security Agreement as in effect on the Initial Borrowing Date.
"AHP Lease" shall mean Lease dated October 8, 1999 between
Pioneer Valley and AHP as in effect on the Initial Borrowing Date.
"AHP Security Agreement" shall mean the Security Agreement,
dated as of May 15, 1996, by and between Pioneer Valley and AHP.
"Applicable Excess Cash Flow Percentage" shall mean, with
respect to any Excess Cash Payment Date, 75%; provided that so long as no
Default or Event of Default is then in existence, if on the last day of the
relevant Excess Cash Payment Period, the Leverage Ratio
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for (and as calculated on the last day of ) the Test Period then ended is less
than 3.5:1.0, then the Applicable Excess Cash Flow Percentage shall instead be
50%.
"Applicable Margin" shall mean a percentage per annum equal to
(i) in the case of Tranche A Term Loans and Revolving Loans maintained as (x)
Base Rate Loans, 2.50% and (y) Eurodollar Loans, 3.50%, (ii) in the case of
Tranche B Term Loans maintained as (x) Base Rate Loans, 3.25% and (y) Eurodollar
Loans, 4.25% and (iii) in the case of the Commitment Commission, 0.50%. In the
case of the Applicable Margins for Tranche A Term Loans, Revolving Loans and the
Commitment Commission (the "Adjustable Applicable Margins"), from and after each
day of delivery of any certificate delivered in accordance with the first
sentence of the following paragraph indicating an entitlement to a different
margin than that described in the immediately preceding sentence (each, a "Start
Date") to and including the applicable End Date described below, the Adjustable
Applicable Margins shall be that set forth below opposite the Leverage Ratio
indicated to have been achieved in any certificate delivered in accordance with
the following sentence:
APPLICABLE MARGIN FOR APPLICABLE MARGIN FOR BASE
EURODOLLAR TRANCHE A TERM RATE TRANCHE A TERM LOANS AND APPLICABLE MARGIN FOR
LEVERAGE RATIO LOANS AND REVOLVING LOANS REVOLVING LOANS COMMITMENT COMMISSION
greater than or equal to
4.25:1.00 3.50% 2.50% 0.50%
less than 4.25:1.00 but
greater than or equal to
3.75:1.00 3.25% 2.25% 0.50%
less than 3.75:1.00 but
greater than or equal to
3.25:1.00 3.00% 2.00% 0.425%
less than 3.25:1.00 but
greater than or equal to
2.75:1.00 2.50% 1.50% 0.425%
less than 2.75:1.00 but
greater than or equal to
2.50:1.00 2.25% 1.25% 0.375%
less than 2.50:1.00 2.00% 1.00% 0.375%
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The Leverage Ratio shall be determined based on the delivery of a certificate of
the Borrower by an Authorized Officer of the Borrower to the Administrative
Agent (with a copy to be sent by the Administrative Agent to each Lender),
within 45 days (or, in the case of the last quarter of any fiscal year, 90 days)
days of the last day of any fiscal quarter of Borrower, which certificate shall
set forth the calculation of the Leverage Ratio as at the last day of the Test
Period ended immediately prior to the relevant Start Date and the Adjustable
Applicable Margins which shall be thereafter applicable (until same are changed
or cease to apply in accordance with the following sentences); provided that at
the time of the consummation of any Permitted Acquisition, an Authorized Officer
of the Borrower shall deliver to the Administrative Agent a certificate setting
forth the calculation of the Leverage Ratio on a Pro Forma Basis as of the last
day of the last Calculation Period ended prior to the date on which such
Permitted Acquisition is consummated for which financial statements have been
made available (or were required to be made available) pursuant to Section
8.01(a) or (b), as the case may be, and the date of such consummation shall be
deemed to be a Start Date and the Adjustable Applicable Margins which shall be
thereafter applicable (until same are changed or cease to apply in accordance
with the following sentence) shall be based upon the Leverage Ratio as so
calculated. The Adjustable Applicable Margins so determined shall apply, except
as set forth in the succeeding sentence, from the Start Date to the earliest of
(x) the date on which the next certificate is delivered to the Administrative
Agent, (y) the date on which the next Permitted Acquisition is consummated or
(z) the date which is 45 days (or, in the case of the last quarter of any fiscal
year, 90 days) days following the last day of the Test Period in which the
previous Start Date occurred (such earliest date, the "End Date"), at which
time, if no certificate has been delivered to the Administrative Agent
indicating an entitlement to new Adjustable Applicable Margins (and thus
commencing a new Start Date), the Adjustable Applicable Margins shall be those
described in the first sentence of this definition above until such certificate
shall have been delivered. Notwithstanding anything to the contrary contained
above in this definition, (x) the Applicable Margins shall be those described in
the first sentence of this definition above at all times during which there
shall exist any Default or Event of Default and (y) prior to the first Start
Date to occur after March 31, 2000, the Applicable Margins shall be those
described in the first sentence of this definition.
"Asset Sale" shall mean the sale by the Borrower or any of its
Subsidiaries to any Person other than the Borrower or any of its Subsidiaries of
(i) any of the stock of any of the Borrower's Subsidiaries, (ii) substantially
all of the assets of any division or line of business of the Borrower or any of
its Subsidiaries, or (iii) any other assets (whether tangible or intangible) of
the Borrower or any of its Subsidiaries (other than any such other assets to the
extent that the aggregate fair market value of such assets (at the time of sale
thereof) sold in any single transaction or related series of transactions is
equal to $1,000,000 or less); provided, however, that (x) Asset Sales shall not
include (1) any sale or discount, in each case without recourse, of accounts
receivable arising in the ordinary course of business, but only in connection
with the compromise or collection thereof, (2) the leasing (pursuant to
operating leases in the ordinary course of business) or licensing of real or
personal property, including intellectual property, (3) disposals of obsolete,
uneconomical, negligible, worn out or surplus property in the ordinary course of
business, (4) the sale or other disposition of inventory or other assets in the
ordinary course of business, (5) the sale or other disposition of Cash
Equivalents, and (6) the sale and leaseback of an asset within 180 days after
the acquisition of such asset by the Borrower or any
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of its Subsidiaries and (y) Asset Sales shall in any event include sales of
assets pursuant to a Permitted Sale-Leaseback Transaction and sales and
issuances of Subsidiary stock (other than to the Borrower or a Subsidiary)
including, without limitation, sales and issuances in connection with the
Hospital Investment Program.
"Assignment and Assumption Agreement" shall mean the
Assignment and Assumption Agreement substantially in the form of Exhibit L
(appropriately completed).
"Authorized Officer" shall mean, with respect to (i)
delivering Notices of Borrowing, Notices of Conversion, Letter of Credit
Requests and similar notices, and delivering financial information and officer's
certificates pursuant to this Agreement, the chief operating officer, any
treasurer or other financial officer of the Borrower and (ii) any other matter
in connection with this Agreement or any other Credit Document, any Chief
Executive Officer, Chief Financial Officer, President, Vice President,
Treasurer, General Partner or Manager of a Credit Party in each case to the
extent reasonably acceptable to the Administrative Agent.
"Available J.V. Basket Amount" shall mean, on any date of
determination, an amount equal to the sum (without duplication) of (i)
$20,000,000 minus (ii) the aggregate amount of Investments made (including for
such purpose the fair market value of any assets contributed to any Joint
Venture (as determined in good faith by senior management of the Borrower), net
of Indebtedness assigned to, and assumed by, the respective Joint Venture in
connection therewith) pursuant to Section 9.05(xv) after the Effective Date,
minus (iii) the aggregate amount of Indebtedness or other obligations (whether
absolute, accrued, contingent or otherwise and whether or not due) of any Joint
Venture for which the Borrower or any of its Subsidiaries (other than the
respective Joint Venture) is liable on such date of determination, minus (iv)
all payments made by the Borrower or any of its Subsidiaries (other than the
respective Joint Venture) in respect of Indebtedness or other obligations of the
respective Joint Venture (including, without limitation, payments in respect of
obligations described in preceding clause (iii) after the Effective Date minus
(v) that portion of the Maximum Permitted Consideration in respect of any
Permitted Acquisition that is attributable to the acquisition of a Joint Venture
pursuant to such Permitted Acquisition, plus (vi) the amount of any increase to
the Available J.V. Basket Amount made after the Effective Date in accordance
with the provisions of Section 9.05(xv).
"Bankruptcy Code" shall have the meaning provided in Section
10.05.
"Base Rate" shall mean for any day, a rate of interest per
annum equal to the higher of (i) the Prime Lending Rate for such day and (ii)
the sum of the Federal Funds Rate for such day plus 1/2 of 1% per annum.
"Base Rate Loan" shall mean (i) each Swingline Loan and (ii)
each Loan designated or deemed designated as such by the Borrower at the time of
the incurrence thereof or conversion thereto.
"Beneficial Owner" shall have the meaning provided in Rule
13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the
beneficial ownership of any particular
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"person" (as that term is used in Section 13(d)(3) of the Exchange Act), such
"person" shall be deemed to have beneficial ownership of all securities that
such "person" has the right to acquire by conversion or exercise of other
securities, whether such right is currently exercisable or is exercisable only
upon the occurrence of a subsequent condition. The terms "Beneficially Owns" and
"Beneficially Owned" shall have a corresponding meaning.
"Borrower" shall mean IASIS Healthcare Corporation, and shall
include any successor thereto.
"Borrower Common Stock" shall have the meaning provided in
Section 7.14.
"Borrower Preferred Stock" shall mean the pay-in-kind
Preferred Stock of the Borrower, $.01 par value per share, issued by the
Borrower pursuant to the Borrower Preferred Stock Documents as contemplated by
Section 5.06.
"Borrower Preferred Stock Documents" shall mean the documents
executed and delivered with respect to the Borrower Preferred Stock.
"Borrowing" shall mean the borrowing of one Type of Loan of a
single Tranche from all the Lenders (other than any Lender which has not funded
its share of a Borrowing in accordance with this Agreement) having Commitments
of the respective Tranche (or from the Swingline Lender in the case of Swingline
Loans) on a given date (or resulting from a conversion or conversions on such
date) having in the case of Eurodollar Loans the same Interest Period, provided
that Base Rate Loans incurred pursuant to Section 1.10(b) shall be considered
part of the related Borrowing of Eurodollar Loans. It is understood that there
may be more than one Borrowing outstanding pursuant to a given Tranche.
"Business Day" shall mean (i) for all purposes other than as
covered by clause (ii) below, any day except Saturday, Sunday and any day which
shall be in New York, New York a legal or a day on which banking institutions
are authorized or required by law or other government action to close and (ii)
with respect to all notices and determinations in connection with, and payments
of principal and interest on, Eurodollar Loans, any day which is a Business Day
described in clause (i) above and which is also a day for trading by and between
banks in the New York interbank Eurodollar market.
"Calculation Date" shall mean the date of the respective
Permitted Acquisition, Permitted Sale-Leaseback Transaction, or other event, as
the case may be, which gives rise to the requirement to calculate compliance
with the financial covenants under this Agreement on a Pro Forma Basis.
"Calculation Period" shall mean the Test Period (taken as one
accounting period) most recently ended prior to a given Calculation Date.
"Capital Expenditures" shall mean, with respect to any Person,
all expenditures by such Person which should be capitalized in accordance with
generally accepted accounting principles, including all such expenditures with
respect to fixed or capital assets (including, without limitation, expenditures
for maintenance and repairs which should be capitalized in
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accordance with generally accepted accounting principles) and the amount of
Capitalized Lease Obligations incurred by such Person.
"Capitalized Lease Obligations" of any Person shall mean all
rental obligations which, under generally accepted accounting principles, are or
will be required to be capitalized on the books of such Person, in each case
taken at the amount thereof accounted for as indebtedness in accordance with
such principles.
"Cash Equivalents" shall mean, as to any Person, (i)
securities issued or directly and fully guaranteed or insured by the United
States or any agency or instrumentality thereof (provided that the full faith
and credit of the United States is pledged in support thereof) having maturities
of not more than one year from the date of acquisition, (ii) time deposits and
certificates of deposit of any commercial bank having, or which is the principal
banking subsidiary of a bank holding company organized under the laws of the
United States, any State thereof or the District of Columbia having capital,
surplus and undivided profits aggregating in excess of $200,000,000, with
maturities of not more than one year from the date of acquisition by such
Person, (iii) repurchase obligations with a term of not more than 90 days for
underlying securities of the types described in clause (i) above entered into
with any bank meeting the qualifications specified in clause (ii) above, (iv)
commercial paper issued by any Person incorporated in the United States rated at
least A-2 or the equivalent thereof by Standard & Poor's Corporation or at least
P-2 or the equivalent thereof by Moody's Investors Service, Inc. and in each
case maturing not more than one year after the date of acquisition by such
Person, and (v) investments in money market funds substantially all of whose
assets are comprised of securities of the types described in clauses (i) through
(iv) above.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as the same may be amended from time to
time, 42 U.S.C. Section 9601 et seq.
"Change of Control Event" shall mean, the occurrence of any of
the following (i) the direct or indirect sale, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in one or a series
of related transactions, of all or substantially all of the properties or assets
of the Borrower or its Subsidiaries taken as a whole to any "person" (as such
term is used in Section 13(d)(3) of the Exchange Act) other than to a Principal
or a Related Party; (ii) the adoption of a plan relating to the liquidation or
dissolution of the Borrower; (iii) the consummation of any transaction
(including, without limitation, any merger or consolidation) the result of which
is that any "person" (as defined above), other than the Principals and their
Related Parties, becomes the Beneficial Owner, directly or indirectly, of more
than 50% of the Voting Stock of the Borrower, measured by voting power rather
than by number of shares; (iv) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
Directors of the Borrower (together with any new directors whose election by
such Board of Directors or whose nomination for election by the shareholders of
the Borrower has been approved by the Principals or a majority of the directors
then still in office who either were directors at the beginning of such period
or whose election or recommendation for election was previously so approved)
cease to constitute a majority of the Board of Directors
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of the Borrower and (v) a "change of control" or similar event shall occur as
provided in any Senior Subordinated Note Document or in any other Material
Indebtedness.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to the Code are to the Code, as in effect at the
date of this Agreement and any subsequent provisions of the Code, amendatory
thereof, supplemental thereto or substituted therefor.
"Co-Lead Arranger" shall have the meaning provided in the
first paragraph of this Agreement, and shall include any successor thereto.
"Collateral" shall mean all property (whether real or
personal) with respect to which any security interests have been granted (or
purported to be granted) pursuant to any Security Document, including, without
limitation, all Pledge Agreement Collateral, all Security Agreement Collateral,
all Mortgaged Properties, all cash and Cash Equivalents delivered as collateral
pursuant to Section 4.02 or 10 hereof and all Additional Collateral, if any.
"Collateral Agent" shall mean the Administrative Agent acting
as collateral agent for the Secured Creditors pursuant to the Security
Documents.
"Collective Bargaining Agreements" shall have the meaning
provided in Section 5.05.
"Commitment" shall mean any of the commitments of any Lender,
i.e., whether the Tranche A Term Loan Commitment, Tranche B Term Loan Commitment
or Revolving Loan Commitment.
"Commitment Commission" shall have the meaning provided in
Section 3.01(a).
"Consolidated Capital Expenditures" shall mean, for any
period, the aggregate amount of Capital Expenditures made by the Borrower and
its Subsidiaries during such period.
"Consolidated Cash Interest Expense" shall mean, for any
period, the total consolidated cash interest expense (net of interest income) of
the Borrower and its Consolidated Subsidiaries for such period determined in
accordance with GAAP, including that portion of Capitalized Lease Obligations of
the Borrower and its Consolidated Subsidiaries representing the interest factor
for such period, and plus or minus, without duplication, amounts paid or
received under Interest Rate Protection Agreements (with amounts paid under any
interest rate cap being amortized over the life of such cap for purposes of this
definition). Notwithstanding anything to the contrary contained above, to the
extent Consolidated Cash Interest Expense is to be determined for any Test
Period which ends prior to the first anniversary of the Initial Borrowing Date,
Consolidated Cash Interest Expense for all portions of such period occurring
prior to the Initial Borrowing Date shall be calculated in accordance with the
definition of Test Period contained herein.
"Consolidated Current Assets" shall mean, at any time, the
consolidated current assets of the Borrower and its Consolidated Subsidiaries.
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"Consolidated Current Liabilities" shall mean, at any time,
the consolidated current liabilities of the Borrower and its Consolidated
Subsidiaries at such time, but excluding (i) the current portion of any
Indebtedness under this Agreement and of any other long-term Indebtedness which
would otherwise be included therein, (ii) accrued but unpaid interest with
respect to the Indebtedness and (iii) the current portion of Indebtedness
constituting Capitalized Lease Obligations.
"Consolidated EBIT" shall mean, for any period, the
Consolidated Net Income for such period, before Consolidated Cash Interest
Expense, non-cash interest expense and provision for taxes based on income (in
each case to the extent deducted in determining Consolidated Net Income) and
without giving effect to any extraordinary gains or losses or gains or losses
from sales of assets other than inventory sold in the ordinary course of
business.
"Consolidated EBITDA" shall mean, for any period, Consolidated
EBIT, adjusted by (a) adding thereto the amount of all (i) amortization, (ii)
depletion and depreciation, (ii) non-cash expenses and charges, (iv) charges,
fees, costs and expenses incurred in connection with the closing of the
Transaction, (v) losses associated with the sale or write-down of assets not in
the ordinary course of business, (vi) cash restructuring charges and costs,
(vii) non-recurring charges and costs, and (viii) Consolidated EBIT attributable
to minority interests of a Subsidiary that is not a Wholly-Owned Subsidiary, in
each case that were deducted in arriving at Consolidated EBIT for such period,
and (b) deducting therefrom the amount of all non-cash credits that were added
in arriving at Consolidated EBIT for such period. Notwithstanding anything to
the contrary contained above, to the extent Consolidated EBITDA is to be
determined for any Test Period which ends prior to the first anniversary of the
Initial Borrowing Date, Consolidated EBITDA for all portions of such period
occurring prior to the Initial Borrowing Date shall be calculated in accordance
with the definition of Test Period contained herein.
"Consolidated Fixed Charges" shall mean, for any period, the
sum of, without duplication, (i) Consolidated Cash Interest Expense for such
period, (ii) the amount of all cash Consolidated Capital Expenditures for such
period (other than (x) Consolidated Capital Expenditures constituting
Capitalized Lease Obligations or financed by purchase money Indebtedness and (y)
Excluded Capital Expenditures) and (iii) the scheduled principal amount of all
amortization payments (as such amounts may be reduced from time to time in
accordance with the applicable agreements other than by reason of voluntary
prepayments made on or after the first day of the respective period), on all
Indebtedness (excluding payments pursuant to a revolving credit facility or an
over-draft facility as a result of the occurrence of the scheduled termination
date thereunder) of the Borrower and its Subsidiaries for such period.
Notwithstanding anything to the contrary contained above, (x) to the extent
Consolidated Fixed Charges is to be determined for any Test Period which ends
prior to the first anniversary of the Initial Borrowing Date, Consolidated Fixed
Charges for all portions of such period occurring prior to the Initial Borrowing
Date shall be calculated in accordance with the definition of Test Period
contained herein and (y) in the case of any Test Period which ends on or prior
to June 30, 2002, Consolidated Fixed Charges shall not include any Capital
Expenditures made during such period up to (but not in excess of) $20,000,000
which the Borrower in good faith determines to be non-recurring.
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"Consolidated Indebtedness" shall mean, as at any date of
determination, the aggregate stated balance sheet amount of all Indebtedness
(but including in any event the then outstanding principal amount of all Loans
and all Capitalized Lease Obligations but not including Letter of Credit
Outstandings) of the Borrower and its Subsidiaries on a consolidated basis as
determined in accordance with GAAP.
"Consolidated Interest Coverage Ratio" shall mean, for any
period, the ratio of (i) Consolidated EBITDA for such period to (ii)
Consolidated Cash Interest Expense for such period.
"Consolidated Net Income" shall mean, for any period, the
consolidated net after tax income of the Borrower and its Consolidated
Subsidiaries determined in accordance with GAAP; provided that the following
items shall be excluded in computing Consolidated Net Income (without
duplication): (i) the net income of any Person which is not a Subsidiary of the
Borrower, except to the extent of the amount of any dividends or other
distributions actually paid to the Borrower or any of its Wholly-Owned
Subsidiaries during such period, (ii) except for determinations expressly
required to be made on a Pro Forma Basis, the net income (or loss) of any Person
accrued prior to the date it becomes a Subsidiary or all or substantially all of
the property or assets of such Person are acquired by a Subsidiary and (iii) the
net income of any Subsidiary to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary of such net income is not
at the time permitted by the operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to such Subsidiary.
"Consolidated Subsidiaries" shall mean, as to any Person, all
Subsidiaries of such Person which are consolidated with such Person for
financial reporting purposes in accordance with GAAP.
"Contingent Obligation" shall mean, as to any Person, any
obligation of such Person guaranteeing or intended to guarantee any
Indebtedness, leases, dividends or other obligations ("primary obligations") of
any other Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to advance or
supply funds (x) for the purchase or payment of any such primary obligation or
(y) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation or (iv) otherwise to assure or hold
harmless the holder of such primary obligation against loss in respect thereof;
provided, however, that the term Contingent Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business and any products warranties extended in the ordinary course of
business. The amount of any Contingent Obligation shall be deemed to be an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Contingent Obligation is made (or, if the less, the
maximum amount of such primary obligation for which such Person may be liable
pursuant to the terms of the instrument evidencing such Contingent Obligation)
or, if not stated
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or determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as determined by such
Person in good faith.
"Credit Documents" shall mean this Agreement and, after the
execution and delivery thereof pursuant to the terms of this Agreement, each
Note, each Security Document and each Guaranty and, after the execution and
delivery thereof, each additional guaranty or security document executed
pursuant to Section 8.11.
"Credit Event" shall mean the making of any Loan or the
issuance of any Letter of Credit.
"Credit Party" shall mean the Borrower, each Subsidiary
Guarantor and any other Subsidiary of the Borrower which at any time executes
and delivers any Credit Document as required by this Agreement.
"Debt Agreements" shall have the meaning provided in Section
5.05(b)(iii).
"Default" shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" shall mean any Lender with respect to
which a Lender Default is in effect.
"Direct Investors' shall mean JLL Healthcare and the other
Persons described on Schedule XI attached hereto.
"Disqualified Stock" shall mean any capital stock which, 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 (including a
change of control event unless any rights of the holder in respect thereof are
made subject to any applicable restrictions in the Borrower's debt documents),
(i) matures (excluding any maturity as the result of an optional redemption by
the issuer thereof) 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 first anniversary of the Tranche B Term
Loan Maturity Date, or (ii) is convertible into or exchangeable (unless at the
sole option of the issuer thereof) for (a) debt securities or (b) any capital
stock referred to in (i) above, in each case at any time prior to the first
anniversary of the Tranche B Term Loan Maturity Date.
"Dividend" with respect to any Person shall mean that such
Person has declared or paid a dividend or returned any equity capital to its
stockholders, partners or members or authorized or made any other distribution,
payment or delivery of property (other than common stock of such Person) or cash
to its stockholders, partners or members as such, or redeemed, retired,
purchased or otherwise acquired, directly or indirectly, for a consideration any
shares of any class of its capital stock or membership interests outstanding on
or after the Effective Date (or any options or warrants issued by such Person
with respect to its capital stock, partnership interests or membership
interests), or set aside any funds for any of the foregoing purposes, or shall
have permitted any of its Subsidiaries to purchase or otherwise acquire for a
consideration
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any shares of any class of the capital stock, partnership interests or
membership interests of such Person outstanding on or after the Effective Date
(or any options or warrants or stock appreciation rights issued by such Person
with respect to its capital stock, partnership interests, or membership
interests). Without limiting the foregoing, "Dividends" with respect to any
Person shall also include all payments made or required to be made by such
Person with respect to any stock appreciation rights, plans, equity incentive or
achievement plans or any similar plans or setting aside of any funds for the
foregoing purposes.
"Documentation Agent" shall have the meaning provided in the
first paragraph of this Agreement, and shall include any successor thereto.
"Documents" shall mean the Credit Documents, the Senior
Subordinated Notes Documents, the Transaction Documents, the Borrower Preferred
Stock Documents and the Refinancing Documents.
"Dollars" and the sign "$" shall each mean lawful money of the
United States.
"Domestic Subsidiary" shall mean each Subsidiary of the
Borrower that is incorporated or organized in the United States of America, any
State thereof, the United States Virgin Islands or Puerto Rico.
"Drawing" shall have the meaning provided in Section 2.04(b).
"Effective Date" shall have the meaning provided in Section
13.10.
"Eligible Assets" shall have the meaning provided in Section
4.02(e).
"Eligible Transferee" shall mean and include a commercial
bank, insurance company, financial institution, fund or other Person which
regularly purchases interests in loans or extensions of credit of the types made
pursuant to this Agreement, any other Person which would constitute a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act as
in effect on the Effective Date or other "accredited investor" (as defined in
Regulation D of the Securities Act).
"Employee Benefit Plans" shall have the meaning provided in
Section 5.05.
"Employment Agreement" shall have the meaning provided in
Section 5.05.
"Environmental Claims" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, directives,
claims, liens, notices of noncompliance or violation, investigations or
proceedings relating in any way to any Environmental Law or any permit issued or
any approval given under any such Environmental Law (hereafter, "Claims"),
including, without limitation, (a) any and all Claims by governmental or
regulatory authorities for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to any applicable Environmental Law, and (b)
any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief in connection
with
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alleged injury or threat of injury to health, safety or the environment on
account of Hazardous Materials.
"Environmental Law" shall mean any applicable Federal, state,
foreign or local statute, law, rule, regulation, ordinance, code, legally
binding and enforceable guideline, legally binding and enforceable written
policy and rule of common law now or hereafter in effect and in each case as
amended, and any judicial or administrative interpretation thereof, including
any legally binding and enforceable judicial or administrative order, consent
decree or judgment, to the extent binding on the Borrower or any of its
Subsidiaries, relating to the environment, health, safety or Hazardous
Materials, including, without limitation, CERCLA; RCRA; the Federal Water
Pollution Control Act, 33 U.S.C. Section 1251 et seq.; the Toxic Substances
Control Act, 15 U.S.C. Section 2601 et seq.; the Clean Air Act, 42 U.S.C.
Section 7401 et seq.; the Safe Drinking Water Act, 42 U.S.C. Section 300(f) et
seq.; the Oil Pollution Act of 1990, 33 U.S.C. Section 2701 et seq.; the
Emergency Planning and the Community Right-To-Know Act of 1986, 42 U.S.C.
Section 11001 et seq.; the Hazardous Material Transportation Act, 49 U.S.C.
Section 5101 et seq.; and the Occupational Safety and Health Act, 29 U.S.C.
Section 651 et seq.; and any state and local or foreign counterparts or
equivalents, in each case as amended from time to time.
"Equity Plan" shall mean any employment incentive plans,
restricted stock plans, employee stock plans, employee stock option plans and
similar plans and arrangements either (i) existing on the Initial Borrowing Date
(the "Existing Plans"), (ii) on terms not materially more adverse to the
interests of the Lenders than the Existing Plans or (iii) on terms reasonably
satisfactory to the Administrative Agent.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder. Section references to ERISA are to ERISA, as in
effect at the date of this Agreement and any subsequent provisions of ERISA,
amendatory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in
Section 3(9) of ERISA) which together with the Borrower or a Subsidiary of the
Borrower would be deemed to be a "single employer" (i) within the meaning of
Section 414(b), (c), (m) or (o) of the Code or (ii) as a result of the Borrower
or a Subsidiary of the Borrower being or having been a general partner of such
person.
"Eurodollar Loan" shall mean each Loan (excluding Swingline
Loans) designated as such by the Borrower at the time of the incurrence thereof
or conversion thereto.
"Eurodollar Rate" shall mean (a) the arithmetic average
(rounded upward to the nearest 1/100th of 1%) of the offered quotation to
first-class banks in the New York interbank Eurodollar market determined by each
Reference Lender for Dollar deposits of amounts in immediately available funds
comparable to the outstanding principal amount of the Eurodollar Loan of such
Reference Lender with maturities comparable to the Interest Period applicable to
such Eurodollar Loan commencing two Business Days thereafter as of 11:00 A.M.
(New York time) on the date which is two Business Days prior to the commencement
of such Interest Period, divided (and rounded upward to the nearest 1/16 of 1%)
by (b) a percentage equal to 100% minus
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the then stated maximum rate of all reserve requirements (including, without
limitation, any marginal, emergency, supplemental, special or other reserves
required by applicable law) applicable to any member bank of the Federal Reserve
System in respect of Eurocurrency funding or liabilities as defined in
Regulation D (or any successor category of liabilities under Regulation D);
provided that if one or more of the Reference Lenders fail to provide the
Administrative Agent with its aforesaid rate, then the Eurodollar Rate shall be
determined based on the rate or rates provided to the Administrative Agent by
the other Reference Lender or Reference Lenders.
"Event of Default" shall have the meaning provided in Section
10.
"Excess Cash Flow" shall mean, for any period, the remainder
of (a) the sum of (i) Adjusted Consolidated Net Income for such period, and (ii)
the decrease, if any, in Adjusted Consolidated Working Capital from the first
day to the last day of such period, minus (b) the sum of (i) the amount of
Capital Expenditures made by the Borrower and its Subsidiaries on a consolidated
basis during such period pursuant to and in accordance with Section 9.07 (but
without giving effect to Capital Expenditures made pursuant to Section 9.07(c),
(d), (e) and (f)), except for each such Capital Expenditure to the extent
financed with the proceeds of Indebtedness or pursuant to Capitalized Lease
Obligations, (ii) the aggregate amount of permanent principal payments of
Indebtedness for borrowed money of the Borrower and its Subsidiaries and the
permanent repayment of the principal component of Capitalized Lease Obligations
of the Borrower and its Subsidiaries (excluding (1) payments with proceeds of
asset sales and Net Insurance/Condemnation Proceeds and (2) payments with the
proceeds of other Indebtedness or equity or equity contributions) (but in the
case of a voluntary prepayment of Revolving Loans or Swingline Loans, only to
the extent accompanied by a voluntary reduction to the Total Revolving Loan
Commitment) during such period, (iii) the increase, if any, in Adjusted
Consolidated Working Capital from the first day to the last day of such period.
"Excess Cash Payment Date" shall mean the date occurring 90
days after the last day of each fiscal year of the Borrower (beginning with its
fiscal year ending on September 30, 2000).
"Excess Cash Payment Period" shall mean, with respect to the
repayment required on each Excess Cash Payment Date, the immediately preceding
fiscal year of the Borrower (or, in the case of the first Excess Cash Payment
Date, the period beginning on and including the Initial Borrowing Date and to
and including September 30, 2000).
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Exchange Senior Subordinated Notes" shall mean Senior
Subordinated Notes which are substantially identical securities to the Senior
Subordinated Notes issued on or prior to the Initial Borrowing Date, which
Exchange Senior Subordinated Notes shall be issued pursuant to a registered
exchange offer or private exchange offer for the Senior Subordinated Notes and
pursuant to the Senior Subordinated Notes Indenture. In no event will the
issuance of any Exchange Senior Subordinated Notes increase the aggregate
principal amount of Senior
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Subordinated Notes then outstanding or otherwise result in an increase in an
interest rate applicable to the Senior Subordinated Notes.
"Excluded Capital Expenditures" shall mean Capital
Expenditures made under Section 9.07(c), (d), (e) and (f).
"Excluded Subsidiary" shall mean a Domestic Subsidiary which
is not a Subsidiary Guarantor.
"Existing Credit Documents" shall mean the Credit Agreement
dated as of October 7, 1999, among the Borrower, the various financial
institutions party thereto, The Bank of Nova Scotia, as lead arranger and
administrative agent, together with the other documents and instruments in
connection therewith.
"Existing Credit Facilities" shall mean the senior secured
credit facilities provided under the Existing Credit Documents.
"Existing Indebtedness" shall have the meaning provided in
Section 5.07(b).
"Existing Letters of Credit" shall have the meaning provided
in Section 2.01(e).
"Expenditure Use Amounts" shall mean, as of any date of
determination, the amount equal to the sum of (a) the principal amount of
Indebtedness incurred by the Borrower and its Subsidiaries pursuant to Section
9.04(vi)(z)(B), (xii)(3)(B) and (xvii)(y), (b) the amount of all Dividends paid
by the Borrower and its Subsidiaries pursuant to Section 9.03(vi), (c) all
amounts utilized by the Borrower or any of its Subsidiaries to finance Capital
Expenditures pursuant to Section 9.07(f), (d) all amounts utilized by the
Borrower and its Subsidiaries to finance Permitted Acquisitions pursuant to
Section 8.12(a)(iv)(y) and (e) the Net Sale Proceeds of all Asset Sales made
pursuant to Section 9.02(vii)(y)(B).
"Facing Fee" shall have the meaning provided in Section
3.01(c).
"Federal Funds Rate" shall mean, for any day, an interest rate
per annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 11:00 A.M. (New
York time) on such day on such transactions received by the Administrative Agent
from three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"Fees" shall mean all amounts payable pursuant to or referred
to in Section 3.01.
"Fixed Charge Coverage Ratio" shall mean, for any Test Period,
the ratio of Consolidated EBITDA to Consolidated Fixed Charges for such Test
Period.
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"Foreign Subsidiary" shall mean each Subsidiary of the
Borrower that is incorporated or organized under the laws of any jurisdiction
other than the United States of America, any State thereof, the United States
Virgin Islands or Puerto Rico.
"Foreign Wholly-Owned Subsidiary" as to any Person, shall mean
each Wholly-Owned Subsidiary of such Person which is not a Domestic Subsidiary.
"GAAP" shall have the meaning provided in Section 13.07(a).
"Guaranteed Obligations" shall have the meaning provided in
the Subsidiaries Guaranty.
"Guaranty" shall mean and include the Subsidiaries Guaranty
and any other guaranty delivered pursuant to Section 8.11 or 8.13.
"Hazardous Materials" shall mean (a) any petroleum or
petroleum products, radioactive materials, asbestos in any form that is or could
become friable, ureaformaldehyde foam insulation, transformers or other
equipment that contain dielectric fluid containing levels of polychlorinated
biphenyls, and radon gas; (b) any chemicals, materials or substances defined as
or included in the definition of "hazardous substances," "hazardous waste,"
"hazardous materials," "extremely hazardous substances," "restricted hazardous
waste," "toxic substances," "toxic pollutants," "contaminants," or "pollutants,"
or words of similar import, under any applicable Environmental Law; and (c) any
other chemical, material or substance, exposure to which is prohibited, limited
or regulated by any governmental authority under Environmental Laws.
"Hospital" shall mean a hospital, outpatient clinic, long-term
care facility, medical office building or other facility, business or asset that
is used or useful in or related to the provision of healthcare services.
"Hospital Investment Program" shall mean, with respect to any
Subsidiary of the Borrower substantially all of the assets of which consist of
one or more Hospitals, an offering by such Subsidiary for the sale or issuance
of equity interests in such Subsidiary to any Hospital Investment Program
Participants, provided that (i) after giving effect to such sale or issuance
with respect to any Subsidiary, the Borrower controls such Subsidiary and owns
at least 65% of the economic interests of such Subsidiary, (ii) each such sale
or issuance shall be for an amount at least equal to the fair market value
thereof (as determined in good faith by the senior management of the Borrower),
(iii) each such sale results in consideration at least 75% of which shall be in
the form of cash (for such purpose, taking into account the amount of cash, the
principal amount of any promissory notes and the fair market value, as
determined in good faith by the senior management of the Borrower, of any other
consideration), (iv) the Net Sale Proceeds therefrom are either applied to repay
Term Loans as provided in Section 4.02(e) or reinvested in Eligible Assets to
the extent permitted by Section 4.02(e), (v) each Hospital Investment Program
Participant (A) acknowledges in writing in a manner reasonably satisfactory to
the Administrative Agent that (x) the relevant Subsidiary has guaranteed the
Guaranteed
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Obligations and the obligations of the Borrower under the Senior Subordinated
Notes and have granted a security interest in its assets to secure such guaranty
of the Guaranteed Obligations and (y) the documentation governing such the
Guaranteed Obligations restricts the ability of such Subsidiary to make
distributions to such Hospital Investment Program Participant and (B) pledges
all such equity interests acquired by such Hospital Program Participant to the
Collateral Agent for the benefit of the Secured Creditors as security for the
Guaranteed Obligations in accordance with the requirements of Section 9.13.
"Hospital Investment Program Participants" shall mean with
respect to any Hospital, Persons interested in such Hospital including
physicians, administrators and other Persons in the community in which such
Hospital is located
"Hypothecation Agreement" shall have the meaning provided in
Section 5.09(b).
"IHC" shall mean IASIS Healthcare Corp., a Tennessee
corporation.
"IHC Merger" shall mean the merger of IHC with and into the
IHC Merger Subsidiary, with the IHC Merger Subsidiary as the survivor, on or
prior to the Initial Borrowing Date.
"IHC Merger Subsidiary" shall mean a wholly-owned Subsidiary
of the Borrower created for the purpose of effecting the IHC Merger.
"IHC Stockholders" shall mean, immediately prior to giving
effect to the IHC Merger, collectively, the holders of any equity interests in
IHC, including, without limitation, common equity, preferred equity, options,
restricted equity, warrants and rights to acquire equity interests.
"Indebtedness" shall mean, as to any Person, without
duplication, (i) all indebtedness (including principal, interest, fees and
charges) of such Person for borrowed money or for the deferred purchase price of
property or services, (ii) the maximum amount available to be drawn under all
letters of credit issued for the account of such Person and all unpaid drawings
in respect of such letters of credit, (iii) all Indebtedness of the types
described in clause (i), (ii), (iv), (v), (vi) or (vii) of this definition
secured by any Lien on any property owned by such Person, whether or not such
Indebtedness has been assumed by such Person (to the extent of the value of the
respective property), (iv) the aggregate amount required to be capitalized under
leases in accordance with GAAP under which such Person is the lessee, (v) all
obligations of such person to pay a specified purchase price for goods or
services, whether or not delivered or accepted, i.e., take-or-pay and similar
obligations, (vi) all Contingent Obligations of such Person in respect of the
types of Indebtedness described in clauses (i), (ii), (iii), (iv), (v) and (vii)
of this definition and (vii) the net obligations under any Interest Rate
Protection Agreement or Other Hedging Agreement or under any similar type of
agreement. Notwithstanding the foregoing, Indebtedness shall not include
obligations under trade payables, accrued expenses and other current liabilities
other than in respect of borrowed money incurred by any person in accordance
with its customary practices and in the ordinary course of business of such
Person or obligations under operating leases.
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"Indebtedness to be Refinanced" shall have the meaning
provided in Section 7.22(b).
"Initial Borrowing Date" shall mean the date occurring on or
after the Effective Date on which the initial Borrowing of Term Loans hereunder
occurs.
"Interest Determination Date" shall mean, with respect to any
Eurodollar Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Loan.
"Interest Period" shall have the meaning provided in Section
1.09.
"Interest Rate Protection Agreement" shall mean any interest
rate swap agreement, interest rate cap agreement, interest collar agreement,
interest rate hedging agreement, interest rate floor agreement or other similar
agreement or arrangement.
"Investments" shall have the meaning provided in Section 9.05.
"Investors" shall mean the JLL Healthcare Investors and Direct
Investors.
"Issuing Bank" shall mean The Bank of Nova Scotia and any
Lender which at the request of the Borrower and with the consent of the
Administrative Agent (which shall not be unreasonably withheld) agrees, in such
Lender's sole discretion, to become an Issuing Bank for the purpose of issuing
Letters of Credit pursuant to Section 2.
"JLL" shall mean Joseph Littlejohn and Levy Fund III L.P., a
Delaware limited partnership and its successors.
"JLL Healthcare" shall mean JLL Healthcare LLC, a Delaware
limited liability company and its successors.
"JLL Healthcare Investors" shall mean JLL and the other
Persons described on Schedule XII attached hereto.
"JLL Hospital" shall mean JLL Hospital LLC, a Delaware limited
liability company and its successors.
"JLL Hospital Merger" shall mean the merger of JLL Hospital
with and into the Borrower, with the Borrower as the survivor, on or prior to
the Initial Borrowing Date.
"Joint Venture" shall mean any Person, other than an
individual or a Subsidiary of the Borrower, (i) in which the Borrower or a
Subsidiary of the Borrower holds or acquires an ownership interest (whether by
way of capital stock, partnership or limited liability company interest, or
other evidence of ownership) and (ii) which is engaged in a Permitted Business.
"L/C Supportable Indebtedness" shall mean obligations of the
Borrower or its Subsidiaries incurred in the ordinary course of business and
such other obligations of the
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Borrower or any of its Subsidiaries otherwise permitted to exist pursuant to the
terms of this Agreement.
"Leaseholds" of any Person shall mean all the right, title and
interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"Lender" shall mean each financial institution listed on
Schedule I, as well as any Person which becomes a "Lender" hereunder pursuant to
13.04(b).
"Lender Default" shall mean (i) the refusal (which has not
been retracted) of a Lender to make available its portion of any Borrowing
(including any Mandatory Borrowing) or to fund its portion of any unreimbursed
payment under Section 2.03(c) or (ii) a Lender having notified in writing the
Borrower and/or the Administrative Agent that it does not intend to comply with
its obligations under Section 1.01(c), 1.01(e) or Section 2, in the case of
either clause (i) or (ii) above as a result of the appointment of a receiver or
conservator with respect to such Lender at the direction or request of any
regulatory agency or authority.
"Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Letter of Credit Fee" shall have the meaning provided in
Section 3.01(b).
"Letter of Credit Outstandings" shall mean, at any time, the
sum of (i) the aggregate Stated Amount of all outstanding Letters of Credit and
(ii) the amount of all Unpaid Drawings.
"Letter of Credit Request" shall have the meaning provided in
Section 2.02(a).
"Leverage Ratio" shall mean, at any date of determination, the
ratio of Consolidated Indebtedness on such date to Consolidated EBITDA for the
Test Period then last ended.
"Lien" shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
preference, priority or other security agreement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing or similar statement or notice filed under
the UCC or any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).
"Loan" shall mean each Tranche A Term Loan, each Tranche B
Term Loan, each Revolving Loan and each Swingline Loan.
"Majority Lenders" of any Tranche shall mean those
Non-Defaulting Lenders which would constitute the Required Lenders under, and as
defined in, this Agreement if all outstanding Obligations of the other Tranches
under this Agreement were repaid in full and all Commitments with respect
thereto were terminated.
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"Management Agreements" shall have the meaning provided in
Section 5.05.
"Mandatory Borrowing" shall have the meaning provided in
Section 1.01(e).
"Margin Stock" shall have the meaning provided in Regulation
U.
"Material Adverse Effect" shall mean (i) a material adverse
effect on the rights or remedies of the Lenders or the Administrative Agent
hereunder or under any other Credit Document or on the ability of any Credit
Party to perform its obligation to them hereunder or under any other Credit
Document, or (ii) a material adverse effect on the consolidated business, assets
or financial condition of the Borrower and its Subsidiaries taken as a whole.
"Material Contracts" shall have the meaning provided in
Section 5.05(b)(vii).
"Material Default" shall mean a Default under Section 10.01 or
Section 10.05.
"Material Indebtedness" shall mean (i) the Senior Subordinated
Notes, (ii) Permitted Subordinated Refinancing Indebtedness and (iii) any other
Indebtedness of the Borrower or any Subsidiary the aggregate principal amount of
which exceeds 1,000,000.
"Maturity Date" shall mean, with respect to any Tranche of
Loans, the Tranche A Term Loan Maturity Date, the Tranche B Term Loan Maturity
Date, the Revolving Loan Maturity Date or the Swingline Expiry Date, as the case
may be.
"Maximum Permitted Consideration" shall mean, with respect to
any Permitted Acquisition, the sum (without duplication) of (i) the aggregate
principal amount of Permitted Acquired Debt acquired or assumed by the Borrower
or any of its Subsidiaries in connection with such Permitted Acquisition, (ii)
the aggregate principal amount of all cash paid by the Borrower or any of its
Subsidiaries in connection with such Permitted Acquisition (including payments
of fees and costs and expenses in connection therewith), (iii) the aggregate
principal amount of all other Indebtedness assumed, incurred and/or issued in
connection with such Permitted Acquisition to the extent permitted by Section
9.04 and (iv) the fair market value (determined in good faith by senior
management of the Borrower) of all other consideration payable in connection
with such Permitted Acquisition.
"Maximum Swingline Amount" shall mean $5,000,000.
"Minimum Borrowing Amount" shall mean (i) for Term Loans of
any Tranche, $5,000,000 (and, if greater, in an integral multiple of $500,000)
(ii) for Revolving Loans, $1,000,000 (and, if greater, in an integral multiple
of $100,000) and (iii) for Swingline Loans, $100,000 (and if greater, in an
integral multiple of $100,000).
"Morgan Guaranty" shall mean Morgan Guaranty Trust Company of
New York, in its individual capacity, and any successor thereto.
"Mortgage" shall have the meaning provided in Section 5.11(a)
and, after the execution and delivery thereof, shall include each Additional
Mortgage.
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"Mortgage Policies" shall have the meaning provided in Section
5.11(b).
"Mortgaged Property" shall have the meaning provided in
Section 5.11(a) and, after the execution and delivery of any Additional
Mortgage, shall include the respective Additional Mortgaged Property.
"Multiemployer Plan" shall mean any multiemployer plan as
defined in Section 4001(a)(3) of ERISA, which is maintained or contributed to by
(or to which there is an obligation to contribute of) the Borrower or a
Subsidiary of the Borrower or an ERISA Affiliate, and each such plan for the
five year period immediately following the latest date on which the Borrower, or
a Subsidiary of the Borrower or an ERISA Affiliate maintained, contributed to or
had an obligation to contribute to such plan.
"Net Asset Sale Proceeds" shall mean the Net Sale Proceeds
resulting from any Asset Sale.
"Net Insurance/Condemnation Proceeds" shall mean any cash
payments or proceeds received by the Borrower or any of its Subsidiaries (i)
under any casualty insurance policy in respect of a covered loss thereunder or
(ii) as a result of the taking of any assets of the Borrower or any of its
Subsidiaries by any Person pursuant to the power of eminent domain, condemnation
or otherwise, or pursuant to a sale of any such assets to a purchaser with such
power under threat of such a taking, in each case net of any actual and
documented fees, expenses and costs incurred by the Borrower or any of its
Subsidiaries in connection with the adjustment or settlement of any claims of
the Borrower or such Subsidiary in respect thereof, including (i) income taxes
reasonably estimated to be actually payable within two years of the date of
receipt of such payments or proceeds as a result of any gain recognized in
connection with the receipt of such payment or proceeds and (ii) payment of the
outstanding amount of premium or penalty, if any, and interest of any
Indebtedness (other than the Loans) that is secured by a Lien on the stock or
assets in question and that is repaid as a result of receipt of such payments or
proceeds.
"Net Sale Proceeds" shall mean for any sale of assets, the
gross cash proceeds (including any cash received by way of deferred payment
pursuant to a promissory note, receivable or otherwise, but only as and when
received) received from any sale of assets, net of (i) reasonable transaction
costs (including, without limitation, any underwriting, brokerage or other
customary selling commissions and reasonable legal, advisory and other fees and
expenses, including title and recording expenses, associated therewith) and
payments of unassumed liabilities relating to the assets sold at the time of, or
within 30 days after, the date of such sale, (ii) the amount of such gross cash
proceeds required to be used to repay any Indebtedness (other than Indebtedness
of the Lenders pursuant to this Agreement) which is secured by the respective
assets which were sold, and (iii) the estimated marginal increase in income
taxes which will be payable by the Borrower's consolidated group with respect to
the fiscal year in which the sale occurs as a result of such sale; provided,
however, that such gross proceeds shall not include any portion of such gross
cash proceeds which the Borrower determines in good faith should be reserved for
post-closing adjustments (including indemnification payments) (to the extent the
Borrower delivers to the Lenders a certificate signed by its chief financial
officer or treasurer,
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controller or chief accounting officer as to such determination), it being
understood and agreed that on the day that all such post-closing adjustments
have been determined, the amount (if any) by which the reserved amount in
respect of such sale or disposition exceeds the actual post-closing adjustments
payable by the Borrower or any of its Subsidiaries shall constitute Net Sale
Proceeds on such date received by the Borrower and/or any of its Subsidiaries
from such sale, lease, transfer or other disposition. The parties hereto
acknowledge and agree that Net Sale Proceeds shall not include any
trade-in-credits or purchase price reductions received by the Borrower or any of
its Subsidiaries in connection with an exchange of assets for other assets.
"Non-Defaulting Lender" shall mean and include each Lender
other than a Defaulting Lender.
"Note" shall mean each Tranche A Term Note, each Tranche B
Term Note, each Revolving Note and the Swingline Note.
"Notice of Borrowing" shall have the meaning provided in
Section 1.03(a).
"Notice of Conversion" shall have the meaning provided in
Section 1.06.
"Notice Office" shall mean the office of the Administrative
Agent located at 60 Wall Street, New York, New York 10260 or such other office
as the Administrative Agent may hereafter designate in writing as such to the
other parties hereto.
"Obligations" shall mean all amounts owing to the
Administrative Agent, the Collateral Agent or any Lender pursuant to the terms
of this Agreement or any other Credit Document.
"Other Hedging Agreement" shall mean any foreign exchange
contracts, currency swap agreements, commodity agreements or other similar
agreements or arrangements designed to protect against the fluctuations in
currency or commodity values.
"Paracelsus" shall mean Paracelsus Healthcare Corporation, a
California corporation.
"Paracelsus Acquisition" shall mean, in connection with the
Recapitalization, the acquisition by the Direct Investors of approximately 94%
(as determined at the time of the Recapitalization of the common stock of the
Borrower pursuant to the Paracelsus Recapitalization Documents.
"Paracelsus Business" shall mean certain of the assets of
Paracelsus which are located in the Salt Lake City, Utah area.
"Paracelsus Recapitalization Documents" shall mean (i) the
Recapitalization Agreement dated as of August 16, 1999, among Paracelsus
Healthcare Corporation and PHC/CHC Holdings, Inc., as parents, each of
PHC/Psychiatric Healthcare Corporation, PHC-Salt Lake City, Inc., Paracelsus
Pioneer Valley Hospital, Inc., Pioneer Valley Health Plan, Inc., PHC-Jordan
Valley, Inc., Paracelsus PHC Regional Medical Center, Inc., Paracelsus Davis
Hospital,
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Inc., PHC Utah, Inc. and Clinicare of Utah, Inc., as sellers, and the Direct
Investors (as assignees of JLL Hospital), as buyers, and (ii) all other material
documentation related to the Paracelsus Acquisition.
"Participant" shall have the meaning provided in Section
2.03(a).
"Payment Office" shall mean the office of the Administrative
Agent located at 500 Station Christiana Road, Newark, DEL or such other office
as the Administrative Agent may hereafter designate in writing as such to the
other parties hereto.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
"Percentage" of any Lender at any time shall mean a fraction
(expressed as a percentage) the numerator of which is the Revolving Loan
Commitment of such Lender at such time and the denominator of which is the Total
Revolving Loan Commitment at such time, provided that if the Percentage of any
Lender is to be determined after the Total Revolving Loan Commitment has been
terminated, then the Percentages of the Lenders shall be determined immediately
prior (and without giving effect) to such termination.
"Permitted Acquired Debt" shall have the meaning provided in
Section 9.04(xii).
"Permitted Acquisition" shall mean an Acquisition by the
Borrower or any of its Domestic Subsidiaries, provided that (A) the
consideration paid by the Borrower or such Subsidiary consists solely of cash
(including proceeds of Revolving Loans), the issuance of the Borrower capital
stock other than Disqualified Stock, the issuance of Indebtedness otherwise
permitted in Section 9.04 and the assumption/acquisition of any Permitted
Acquired Debt (calculated in accordance with GAAP) relating to the business,
division, product line or Person the subject of such Acquisition which is
permitted to remain outstanding in accordance with the requirements of Section
9.04, (B) those acquisitions that are structured as stock acquisitions shall be
effected through a purchase of the Specified Percentage of the capital stock or
other equity interests of such Person by the Borrower or such Domestic
Subsidiary or through a merger between such Person and a Domestic Subsidiary of
the Borrower, so that after giving effect to such merger, the Specified
Percentage of the capital stock or other equity interests of the surviving
corporation of such merger is owned by the Borrower or a Domestic Subsidiary,
(C) in the case of the acquisition of the capital stock or other equity
interests of any Person, (the "Acquired Person") if the Acquired Person owns
capital stock or equity interests in any other Person which is not a
Wholly-Owned Subsidiary of the Acquired Person (a "Non-Wholly Owned Entity"),
(1) the Acquired Person shall not have been created or established in
contemplation of, or for purposes of, the respective Permitted Acquisition, and
(2) any Non-Wholly Owned Entity of the Acquired Person shall have been
non-wholly-owned prior to the date of the respective Permitted Acquisition and
not created or established in contemplation thereof, (D) substantially all of
the business, division or product line acquired pursuant to the respective
Permitted Acquisition, or the business of the Acquired Person and its
Subsidiaries taken as a whole, is in the United States, (E) the assets acquired,
or the business of the Acquired Person and its Subsidiaries, shall be in a
business permitted to be conducted pursuant to Section 9.15 and (F) all
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applicable requirements of Sections 8.12 and 9.02 applicable to Permitted
Acquisitions are satisfied. Notwithstanding anything to the contrary contained
in the immediately preceding sentence, an acquisition which does not otherwise
meet the requirements set forth above in the definition of "Permitted
Acquisition" shall constitute a Permitted Acquisition if, and to the extent, the
Required Lenders agree in writing that such acquisition shall constitute a
Permitted Acquisition for purposes of this Agreement.
"Permitted Business" shall mean any business in which the
Borrower and its Subsidiaries are engaged on the Initial Borrowing Date or any
business reasonably related, incidental or ancillary thereto.
"Permitted Encumbrance" shall mean, with respect to any
Mortgaged Property, such exceptions to title as are set forth in the title
insurance policy or title commitment delivered with respect thereto, provided
that all such exceptions shall also be acceptable to the Administrative Agent in
its reasonable discretion.
"Permitted Exchange" shall mean an exchange of assets (other
than hospitals and equity interests) which qualifies as a like-kind exchange
pursuant to and in compliance with Section 1031 of the Code or any other
substantially concurrent exchange of assets (other than hospitals and equity
interests) of the Borrower or any of its Subsidiaries for assets (other than
hospitals and equity interests) of another Person which are useful to the
business of the Borrower or any of its Subsidiaries (with any Net Asset Sale
Proceeds received in connection therewith being subject to Section 4.02(e)).
"Permitted Expenditure Amount" shall mean, as of any date of
determination, the amount equal to (a) Qualified Equity Proceeds actually
received by the Borrower after the Initial Borrowing Date minus (b) the
aggregate amount of Expenditure Use Amounts as of such date.
"Permitted Liens" shall have the meaning provided in Section
9.01.
"Permitted Refinancing Indebtedness" shall mean any
Indebtedness of the Borrower and its Subsidiaries issued or given in exchange
for, or the proceeds of which are used to, extend, refinance, renew, replace,
substitute or refund Existing Indebtedness, Indebtedness incurred pursuant to
Section 9.04(vi) or 9.04(xii) or any Indebtedness issued to so extend,
refinance, renew, replace, substitute or refund any such Indebtedness, so long
as (a) such Indebtedness has a weighted average life to maturity greater than or
equal to the weighted average life to maturity of the Indebtedness being
refinanced, (b) such refinancing or renewal does not add guarantors, obligors or
security from that which applied to such Indebtedness being refinanced or
renewed, (c) the principal amount (or accreted value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the principal amount (or
accreted value, if applicable) of the Indebtedness so extended, refinanced,
renewed, replaced, substituted or refunded (plus all accrued interest thereon
and the amount of all fees, commissions, discounts, costs, expenses and premiums
incurred in connection therewith), and (d) such refinancing or renewal
Indebtedness has substantially the same (or, from the perspective of the
Lenders, more favorable) subordination provisions, if any, as applied to the
Indebtedness being renewed or refinanced.
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"Permitted Sale-Leaseback Transaction" shall mean any sale by
the Borrower or any of its Subsidiaries of any asset first acquired by the
Borrower or such Subsidiary which asset is then leased back to the Borrower or
such Subsidiary, provided that (i) the proceeds of the respective sale shall be
entirely cash and in an amount at least equal to the fair market value of such
asset (as determined in good faith by senior management of the Borrower) and
(ii) the respective transaction is otherwise effected in accordance with the
applicable requirements of Section 9.02(ix).
"Permitted Subordinated Refinancing Indebtedness" shall mean
Indebtedness of the Borrower issued or given in exchange for, or all the
proceeds of which are used to refinance, all of the outstanding Senior
Subordinated Notes, so long as (a) such Indebtedness has a weighted average life
to maturity greater than or equal to the weighted average life to maturity of
the Senior Subordinated Notes, (b) such refinancing does not (i) add guarantors,
obligors or security from that which applied to the Senior Subordinated Notes or
(ii) provide for the payment of interest at a rate greater than the rate
applicable to the Senior Subordinated Notes, (c) the principal amount (or
accreted value, if applicable) of such Permitted Subordinated Refinancing
Indebtedness does not exceed the principal amount (or accreted value, if
applicable) of the Indebtedness so extended, refinanced, renewed, replaced,
substituted or refunded (plus all accrued interest thereon and the amount of all
fees, commissions, discounts, costs, expenses and premiums incurred in
connection therewith), (d) such Indebtedness has substantially the same (or,
from the perspective of the Lenders, more favorable) subordination provisions,
if any, as applied to the Senior Subordinated Notes, and (e) all other terms of
such refinancing (including, without limitation, with respect to the
amortization schedules, redemption provisions, maturities, covenants, defaults
and remedies), are not, taken as a whole, materially less favorable to the
Borrower than those previously existing with respect to the Senior Subordinated
Notes.
"Person" shall mean any individual, partnership, limited
liability company, joint venture, firm, corporation, association, trust or other
enterprise or any government or political subdivision or any agency, department
or instrumentality thereof.
"Pioneer Valley" shall mean Pioneer Valley Hospital, Inc., a
Utah corporation.
"Plan" shall mean any pension plan as defined in Section 3(2)
of ERISA, which is maintained or contributed to by (or to which there is an
obligation to contribute of) the Borrower or a Subsidiary of the Borrower or an
ERISA Affiliate, and each such plan for the five-year period immediately
following the latest date on which the Borrower, or a Subsidiary of the Borrower
or an ERISA Affiliate maintained, contributed to or had an obligation to
contribute to such plan.
"Pledge Agreement" shall have the meaning provided in Section
5.09(a).
"Pledge Agreement Collateral" shall mean all "Collateral" as
defined in the Pledge Agreement.
"Pledged Securities" shall mean "Pledged Securities" as
defined in the Pledge Agreement.
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"Preferred Equity Issuance" shall have the meaning provided in
Section 5.06(a).
"Prime Lending Rate" shall mean the rate which the
Administrative Agent announces from time to time as its prime lending rate, the
Prime Lending Rate to change when and as such prime lending rate changes. The
Prime Lending Rate is a reference rate and does not necessarily represent the
lowest or best rate actually charged to any customer. The Administrative Agent
may make commercial loans or other loans at rates of interest at, above or below
the Prime Lending Rate.
"Principal" shall mean JLL, investment funds managed by JLL,
partners of JLL, an entity controlled by any of the foregoing and/or by a trust
of the type described hereafter, and/or a trust for the benefit of any of the
foregoing.
"Pro Forma Basis" shall mean, in connection with any
calculation of compliance with any financial covenant or financial term, the
calculation thereof after giving effect on a pro forma basis to (i) if the
relevant period to be tested includes any period prior to the Initial Borrowing
Date, the consummation of the Transaction as if the same had occurred on the
first day of such period, (ii) the assumption, incurrence or issuance of any
Indebtedness (other than revolving Indebtedness, except to the extent same is
incurred to finance the Transaction, to refinance other outstanding Indebtedness
or to finance Permitted Acquisitions) after the first day of the relevant
Calculation Period as if such Indebtedness had been assumed, incurred or issued
(and the proceeds thereof applied) on the first day of the relevant Calculation
Period, (ii) the permanent repayment of any Indebtedness (other than the
revolving Indebtedness) after the first day of the relevant Calculation Period
as if such Indebtedness had been retired or repaid on the first day of the
relevant Calculation Period, (iii) the Permitted Acquisition, if any, then being
consummated as if such Permitted Acquisition (and all other Permitted
Acquisitions consummated after the first day of the relevant Calculation Period
and on or prior to the Calculation Date) had been effected on the first day of
the respective Calculation Period and (iv) the Permitted Sale-Leaseback
Transaction, if any, then being consummated as if such Permitted Sale-Leaseback
Transaction (and all other Permitted Sale-Leaseback Transactions consummated
after the first day of the relevant Calculation Period and on or prior to the
Calculation Date) had been effected on the first day of the respective
Calculation Period, with the following rules to apply in connection therewith:
(a) all Indebtedness (x) (other than revolving Indebtedness,
except to the extent same is incurred to finance the Transaction, to
refinance other outstanding Indebtedness or to finance Permitted
Acquisitions) assumed, incurred or issued after the first day of the
relevant Calculation Period and on or prior to the Calculation Date
(whether incurred to finance Permitted Acquisitions, to refinance
Indebtedness or otherwise) shall be deemed to have been assumed,
incurred or issued (and the proceeds thereof applied) on the first day
of the respective Calculation Period and remain outstanding through the
Calculation Date and (y) (other than revolving Indebtedness)
permanently retired or redeemed after the first day of the relevant
Calculation Period shall be deemed to have been retired or redeemed on
the first day of the respective Calculation Period and remain retired
through the Calculation Date;
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(b) all Indebtedness assumed to be outstanding pursuant to
preceding clause (i) shall be deemed to have borne interest (x) at the
rate applicable thereto, in the case of fixed rate Indebtedness or (y)
at the rates which would have been applicable thereto during the
respective period when same was deemed outstanding, in the case of
floating rate Indebtedness (although interest expense with respect to
any Indebtedness for periods while same was actually outstanding during
the respective period shall be calculated using the actual rates
applicable thereto while same was actually outstanding);
(c) in making any determination of Consolidated EBITDA, pro
forma effect shall be given to any Permitted Acquisition for the
respective period being tested, taking into account, cost savings and
expenses which would otherwise be accounted for as an adjustment
pursuant to Article 11 of Regulation S-X under the Securities Act, as
if such cost-savings or expenses were realized on the first day of the
respective period; and
(d) the amount of revolving Indebtedness shall be determined
by using the average daily amount of revolving Indebtedness for the
four fiscal quarters (or portion thereof) ended on the last day of such
Calculation Period.
Notwithstanding anything to the contrary contained above, (x)
for the purposes of Sections 9.09 and for purposes of all determinations of the
Applicable Margins, pro forma effect (as otherwise provided above) shall only be
given for events or occurrences which occurred during the respective Test Period
but not thereafter and for purposes of Sections 8.12 and 9.02(ix), pro forma
effect (as otherwise provided above) shall be given for events or occurrences
which occurred during the respective Calculation Period and thereafter but on or
prior to the respective date of determination.
"Projections" shall mean the financial projections set forth
on Schedule VII hereto.
"Qualified Equity Proceeds" shall mean the net cash proceeds
actually received by the Borrower after the Initial Borrowing Date from any sale
or offering of, or capital contribution in respect of the capital stock of the
Borrower other than Disqualified Stock.
"Quarterly Payment Date" shall mean the last Business Day of
March, June, September and December occurring after the Initial Borrowing Date.
"RCRA" shall mean the Resource Conservation and Recovery Act,
as the same may be amended from time to time, 42 U.S.C. Section 6901 et seq.
"Real Property" of any Person shall mean all the right, title
and interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"Recapitalization" shall mean the recapitalization of the
Borrower as follows: (i) the recapitalization of the common stock of the
Borrower (then known as PHC/Psychiatric Healthcare Corporation) so that
approximately 2,880,250 shares of common stock of the Borrower are outstanding
and held by Paracelsus; (ii) the repurchase by the Borrower of approximately
1,550,250 shares of its common stock for a promissory note in the principal
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amount of $155,025,000, which promissory note was paid in full with a portion of
the proceeds from the Existing Credit Facilities; (iii) the purchase by the
Direct Investors of approximately 1,250,000 shares of common stock of the
Borrower for aggregate cash consideration of approximately $125,000,000; and
(iv) the retention by Paracelsus of approximately 80,000,000 shares of common
stock of the Borrower.
"Reference Lender" shall mean Morgan Guaranty, The Bank of
Nova Scotia and Paribas.
"Refinancing" shall mean the consummation of the refinancing
transactions pursuant to, and in accordance with the requirements of, Section
5.07.
"Refinancing Documents" shall mean the certificates,
agreements and other documents entered into in connection with the Refinancing.
"Register" shall have the meaning provided in Section 13.16.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof establishing reserve requirements.
"Regulation T" shall mean Regulation T of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Regulation U" shall mean Regulation U of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Related Party" shall mean (i) any controlling stockholder,
80% (or more) owned Subsidiary, or immediate family member (in the case of an
individual) of any Principal; or (ii) any trust, corporation, partnership or
other entity, the beneficiaries, stockholders, partners, owners or Persons
beneficially holding an 80% or more controlling interest of which consist of any
one or more Principals and/or such other Persons referred to in the immediately
preceding clause (i).
"Release" shall mean the active or passive disposing,
spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, leaking, dumping, migrating, placing and the like into or
upon any land, water or air or otherwise into the environment.
"Replaced Lender" shall have the meaning provided in Section
1.13.
"Replacement Lender" shall have the meaning provided in
Section 1.13.
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"Reportable Event" shall mean an event described in Section
4043(c) of ERISA with respect to a Plan that is subject to Title IV of ERISA
other than those events as to which the 30-day notice period is waived under
subsection .22, .23, .25, .27 or .28 of PBGC Regulation Section 4043.
"Required Appraisal" shall have the meaning provided in
Section 8.11(g).
"Required Lenders" shall mean Non-Defaulting Lenders, the sum
of whose outstanding Term Loans (or, if prior to the Initial Borrowing Date,
Term Loan Commitments) and Revolving Loan Commitments (or after the termination
thereof, outstanding Revolving Loans and Adjusted Percentage of Swingline Loans
and Letter of Credit Outstandings) represent an amount greater than 50% of the
sum of all outstanding Term Loans (or, if prior to the Initial Borrowing Date,
Term Loan Commitments) of Non-Defaulting Lenders and the Adjusted Total
Revolving Loan Commitment (or after the termination thereof, the sum of the then
total outstanding Revolving Loans of Non-Defaulting Lenders and the aggregate
Adjusted Percentages of all Non-Defaulting Lenders of the total outstanding
Swingline Loans and Letter of Credit Outstandings at such time).
"Revolving Loan" shall have the meaning provided in Section
1.01(c).
"Revolving Loan Commitment" shall mean, for each Lender, the
amount set forth opposite such Lender's name in Schedule I hereto directly below
the column entitled "Revolving Loan Commitment," as same may be (x) reduced from
time to time pursuant to Sections 3.02, 3.03, 4.02 and/or 10 or (y) adjusted
from time to time as a result of assignments to or from such Lender pursuant to
Section 1.13 or 13.04(b).
"Revolving Loan Maturity Date" shall mean September 30, 2004.
"Revolving Note" shall have the meaning provided in Section
1.05(a).
"Rollover Amount" shall have the meaning provided in Section
9.07(b).
"Scheduled Repayments" shall mean Tranche A Scheduled
Repayments and Tranche B Scheduled Repayments.
"SEC" shall have the meaning provided in Section 8.01(g).
"Section 4.04(b)(ii) Certificate" shall have the meaning
provided in Section 4.04(b).
"Secured Creditors" shall have the meaning provided in the
Security Documents.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Security Agreement" shall have the meaning provided in
Section 5.10.
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"Security Agreement Collateral" shall mean all "Collateral" as
defined in the Security Agreement.
"Security Document" shall mean the Pledge Agreement, the
Hypothecation Agreement, the Security Agreement, each Mortgage and, after the
execution and delivery thereof, each Additional Mortgage and each Additional
Security Document.
"Senior Subordinated Notes" shall mean the Borrower's 13%
Senior Subordinated Notes due 2009 issued pursuant to the Senior Subordinated
Notes Indenture, as in effect on the Effective Date and as the same may be
amended, modified or supplemented from time to time in accordance with the terms
hereof and thereof. As used herein, the term "Senior Subordinated Notes" shall
include any Exchange Senior Subordinated Notes issued pursuant to the Senior
Subordinated Notes Indenture in exchange for theretofore outstanding Senior
Subordinated Notes, as contemplated by the Offering Memorandum, dated as of
October 13, 1999, and the definition of Exchange Senior Subordinated Notes.
"Senior Subordinated Notes Documents" shall mean the Senior
Subordinated Notes, the Senior Subordinated Notes Indenture and all other
documents executed and delivered in respect of the Senior Subordinated Notes and
the Senior Subordinated Notes Indenture, in each case as in effect on the
Effective Date and as the same may be amended, modified or supplemented from
time to time in accordance with the terms hereof and thereof.
"Senior Subordinated Notes Indenture" shall mean the
Indenture, dated as of October 15, 1999, among the Borrower, the Subsidiary
Guarantors and The Bank of New York, as trustee thereunder, as in effect on the
Effective Date and as the same may be amended, modified or supplemented from
time to time in accordance with the terms hereof and thereof.
"Shareholders' Agreements" shall have the meaning provided in
Section 5.05.
"Specified Percentage" shall mean 51% unless the relevant
Permitted Acquisition is being made utilizing the Permitted Expenditure Amount
pursuant to Section 8.12(a)(iv)(y), in which case the Specified Percentage shall
mean 100%.
"St. Luke's Lease" shall mean Facility Lease dated as of
February 1, 1995 between Medi Trust of Arizona, Inc. and St. Luke's Sub (as
successor to Oranda Healthcorp of Phoenix, Inc.), as amended by the Agreement
Regarding Consent to Lease Assignments, Leasehold Mortgages and Other Matters,
dated as of October 15, 1999, as the same may be amended or modified from time
to time in accordance with the terms hereof and thereof.
"St. Luke's Sub" shall mean St. Luke's Medical Center, L.P.
"Standby Letter of Credit" shall have the meaning provided in
Section 2.01(a).
"Stated Amount" of each Letter of Credit shall, at any time,
mean the maximum amount available to be drawn thereunder (in each case
determined without regard to whether any conditions to drawing could then be
met).
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"Stockholders' Agreement" shall mean the Stockholders
Agreement, dated as of October 8, 1999 as in effect on the Initial Borrowing
Date.
"Subsidiaries Guaranty" shall have the meaning provided in
Section 5.08.
"Subsidiary" shall mean, as to any Person, (i) any corporation
more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person and/or one or
more Subsidiaries of such Person and (ii) any partnership, association, limited
liability company, joint venture or other entity in which such Person and/or one
or more Subsidiaries of such Person has more than a 50% equity interest at the
time. Notwithstanding the foregoing (and except for the purposes of the
definition of Unrestricted Subsidiary contained herein) an Unrestricted
Subsidiary shall be deemed not to be a Subsidiary of the Borrower or any of its
other Subsidiaries for the purposes of this Agreement.
"Subsidiary Guarantor" shall mean each Subsidiary of the
Borrower designated as a "Subsidiary Guarantor" on Schedule VII hereto or which
executes a guaranty after the Initial Borrowing Date pursuant to Section 8.11.
"Swingline Expiry Date" shall mean the date which is two
Business Days prior to the Revolving Loan Maturity Date.
"Swingline Lender" shall mean Morgan Guaranty.
"Swingline Loan" shall have the meaning provided in Section
1.01(d).
"Swingline Note" shall have the meaning provided in Section
1.05(a).
"Syndication Agent" shall have the meaning provided in the
first paragraph of this Agreement, and shall include any successor thereto.
"Syndication Date" shall mean the earlier of (x) the 90th day
after the Initial Borrowing Date and (y) that date upon which the Co-Lead
Arrangers determine in their sole discretion acting in good faith (and notify
the Borrower) that the primary syndication (and resultant addition of
institutions as Lenders pursuant to Section 13.04) has been completed.
"Tax Benefit" shall have the meaning provided in Section
4.04(c).
"Tax Sharing Agreement" shall have the meaning provided in
Section 5.05(b)(iv).
"Taxes" shall have the meaning provided in Section 4.04(a).
"Tenet Acquisition" shall mean the acquisition by the Borrower
of all or substantially all of the assets comprising the Tenet Business pursuant
to the Tenet Acquisition Documents.
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Tenet Acquisition Documents" shall mean the Asset Sale
Agreement dated August 15, 1999 between Tenet Healthcare Corporation and
Holdings and all other material documentation related to the Tenet Acquisition
as in effect on the Initial Borrowing Date.
"Tenet Business" shall mean certain of the assets of Tenet
Healthcare Corporation which are located in Arizona, Florida and Texas.
"Term Loan" shall mean each Tranche A Term Loan and each
Tranche B Term Loan.
"Term Loan Commitment" shall mean each Tranche A Term Loan
Commitment and each Tranche B Term Loan Commitment, with the Term Loan
Commitment of any Lender at any time to equal the sum of its Tranche A Term Loan
Commitment and Tranche B Term Loan Commitment as then in effect.
"Test Period" shall mean shall mean the period of four
consecutive fiscal quarters then last ended or then ending in each case taken as
one accounting period. Notwithstanding anything to the contrary contained above
or in Section 13.07 or otherwise required by GAAP, in the case of any Test
Period ending prior to the first anniversary of the Initial Borrowing Date, such
period shall be a one-year period ending on the last day of the fiscal quarter
last ended, with any calculations of Consolidated Cash Interest Expense,
Consolidated EBITDA and Consolidated Fixed Charges for (x) the fiscal quarters
ended on each of March 31, 1999, June 30, 1999 and September 30, 1999, to be
determined as set forth below:
Fiscal Quarter Consolidated Cash Consolidated Consolidated Fixed
Ended Interest Expense EBITDA Charges
- ----- ---------------- ------ -------
March 31, 1999 $16,500,000 $30,300,000 $24,000,000
June 30, 1999 $16,500,000 $30,300,000 $24,000,000
September 30, 1999 $16,500,000 $30,300,000 $24,000,000
and (y) the fiscal quarter ended on December 31, 1999 to be determined by (i)
taking the actual Consolidated Cash Interest Expense determined in accordance
with the definition thereof, for any period beginning on, and ending after, the
Initial Borrowing Date, (ii) for each day of such fiscal quarter occurring prior
to the Initial Borrowing Date, using a per-day amount of $181,000, for
Consolidated Cash Interest Expense and (iii) taking the actual Consolidated
EBITDA and Consolidated Fixed Charges for the period commencing October 1, 1999,
including, for the period prior to the Initial Borrowing Date, the Consolidated
EBITDA and Consolidated Fixed Charges for the Paracelsus Business and the Tenet
Business and including in Consolidated Fixed Charges for the period prior to the
Initial Borrowing Date, Consolidated Interest Expense determined in accordance
with clause (ii) above.
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"Total Commitments" shall mean, at any time, the sum of the
Commitments of each of the Lenders.
"Total Revolving Loan Commitment" shall mean, at any time, the
sum of the Revolving Loan Commitments of each of the Lenders.
"Total Term Loan Commitment" shall mean, at any time, the sum
of the Total Tranche A Term Loan Commitment and the Total Tranche B Term Loan
Commitment.
"Total Tranche A Term Loan Commitment" shall mean, at any
time, the sum of the Tranche A Term Loan Commitments of each of the Lenders.
"Total Tranche B Term Loan Commitment" shall mean, at any
time, the sum of the Tranche B Term Loan Commitments of each of the Lenders.
"Total Unutilized Revolving Loan Commitment" shall mean, at
any time, an amount equal to the remainder of (x) the then Total Revolving Loan
Commitment, less (y) the sum of the aggregate principal amount of Revolving
Loans and Swingline Loans then outstanding plus the then aggregate amount of
Letter of Credit Outstandings.
"Trade Letter of Credit" shall have the meaning provided in
Section 2.01(a).
"Tranche" shall mean the respective facility and commitments
utilized in making Loans hereunder, with there being four separate Tranches,
i.e., Tranche A Term Loans, Tranche B Term Loans, Revolving Loans and Swingline
Loans.
"Tranche A Scheduled Repayment" shall have the meaning
provided in Section 4.02(b).
"Tranche A Scheduled Repayment Date" shall have the meaning
provided in Section 4.02(b).
"Tranche A Term Loan" shall have the meaning provided in
Section 1.01(a).
"Tranche A Term Loan Commitment" shall mean, for each Lender,
the amount set forth opposite such Lender's name in Schedule I hereto directly
below the column entitled "Tranche A Term Loan Commitment", as same may be (x)
reduced from time to time pursuant to Sections 3.03, 4.02 and/or 10 or (y)
adjusted from time to time as a result of assignments to or from such Lender
pursuant to Section 1.13 or 13.04.
"Tranche A Term Loan Maturity Date" shall mean September 30,
2004.
"Tranche A Term Note" shall have the meaning provided in
Section 1.05(a).
"Tranche B Scheduled Repayment" shall have the meaning
provided in Section 4.02(c).
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"Tranche B Scheduled Repayment Date" shall have the meaning
provided in Section 4.02(c).
"Tranche B Term Lender" shall have the meaning provided in
Section 4.02(k).
"Tranche B Term Loan" shall have the meaning provided in
Section 1.01(b).
"Tranche B Term Loan Commitment" shall mean, for each Lender,
the amount set forth opposite such Lender's name in Schedule I hereto directly
below the column entitled "Tranche B Term Loan Commitment", as same may be (x)
reduced from time to time pursuant to Sections 3.03, 4.02 and/or 10 or (y)
adjusted from time to time as a result of assignments to or from such Lender
pursuant to Section 1.13 or 13.04(b).
"Tranche B Term Loan Maturity Date" shall mean September 30,
2006.
"Tranche B Term Note" shall have the meaning provided in
Section 1.05(a).
"Transaction" shall mean, collectively, (i) the Preferred
Equity Issuance, (ii) the consummation of the Refinancing (including, without
limitation, with respect to the Existing Credit Facilities), (iii) the issuance
by the Borrower of the Senior Subordinated Notes on the Initial Borrowing Date
in an aggregate principal amount of $230,000,000, (iv) the consummation of the
Tenet Acquisition, (v) the consummation of the Recapitalization, (vi) the IHC
Merger and JLL Hospital Merger, and (vii) the payment of fees and expenses owing
in connection with the foregoing.
"Transaction Documents" shall mean the Paracelsus
Recapitalization Documents and the Tenet Acquisition Documents.
"Type" shall mean the type of Loan determined with regard to
the interest option applicable thereto, i.e., whether a Base Rate Loan or a
Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code as from time to
time in effect in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan shall mean the
amount, if any, by which the value of the accumulated plan benefits under the
Plan determined on a plan termination basis in accordance with actuarial
assumptions at such time consistent with those prescribed by the PBGC for
purposes of Section 4044 of ERISA, exceeds the market value of all plan assets
allocable to such liabilities under Title IV of ERISA (excluding any accrued but
unpaid contributions).
"United States" and "U.S." shall each mean the United States
of America.
"Unpaid Drawing" shall have the meaning provided for in
Section 2.04(a).
"Unrestricted Subsidiary" shall mean any Subsidiary of the
Borrower that is acquired or created after the Initial Borrowing Date pursuant
to Section 9.05(xv) and is
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designated by the Borrower at the time of the acquisition or creation thereof as
an Unrestricted Subsidiary hereunder by written notice to the Administrative
Agent and shall include any Subsidiary of such Unrestricted Subsidiary;
provided, that the Borrower shall only be permitted to designate a Subsidiary as
an Unrestricted Subsidiary so long as (i) no Default or Event of Default then
exists or would result therefrom, (ii) such Unrestricted Subsidiary does not own
any capital stock of, or other equity interests in, or have any Lien on any
property of the Borrower or any Subsidiary of the Borrower other than a
Subsidiary of the Unrestricted Subsidiary, (iii) any Indebtedness and other
obligations of such Unrestricted Subsidiary are non-recourse to the Borrower or
any of its other Subsidiaries, and (iv) the Borrower's and its other
Subsidiaries' aggregate Investments in all Unrestricted Subsidiaries and Joint
Ventures made after the Effective Date does not exceed that amount permitted by
Sections 9.05(xv). Unrestricted Subsidiaries shall be treated as Joint Ventures
for all purposes of this Agreement.
"Unutilized Revolving Loan Commitment" with respect to any
Lender, at any time, shall mean such Lender's Revolving Loan Commitment at such
time less the sum of (i) the aggregate outstanding principal amount of Revolving
Loans made by such Lender and (ii) such Lender's Adjusted Percentage of the
Letter of Credit Outstandings in respect of Letters of Credit issued under this
Agreement.
"Voting Stock" shall mean, as to any Person, any class or
classes of capital stock of such Person pursuant to which the holders thereof
are entitled to vote in the election of the Board of Directors of such Person.
"Waivable Mandatory Repayment" shall have the meaning provided
in Section 4.02(k).
"Waivable Repayment" shall mean a Waivable Mandatory Repayment
and a Waivable Voluntary Repayment.
"Waivable Voluntary Repayment" shall have the meaning provided
in Section 4.02(k).
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i)
any corporation 100% of whose capital stock (other than director's qualifying
shares) is at the time owned by such Person and/or one or more Wholly-Owned
Subsidiaries of such Person and (ii) any partnership, association, joint venture
or other entity in which such Person and/or one or more Wholly-Owned
Subsidiaries of such Person has a 100% equity interest at such time.
"Y2K Problem" shall mean any significant risk that computer
hardware, software or equipment containing embedded microchips essential to the
business or operations of the Borrower or any of its Subsidiaries will not, in
the case of dates or time periods occurring after December 31, 1999, function at
least as efficiently and reliably in all material respects as in the case of
times or time periods occurring before January 1, 2000.
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SECTION 12. Administrative Agent.
12.01 Appointment. Each Lender hereby irrevocably designates
and appoints Morgan Guaranty as Administrative Agent (for purposes of this
Section 12, the term "Administrative Agent" shall mean and include Morgan
Guaranty (and/or any of its affiliates) in its capacity as Administrative Agent
hereunder and Collateral Agent pursuant to the Security Documents). Each Lender
hereby irrevocably authorizes, and each holder of any Note by the acceptance of
such Note shall be deemed irrevocably to authorize, the Administrative Agent to
take such action on its behalf under the provisions of this Agreement, the other
Credit Documents and any other instruments and agreements referred to herein or
therein and to exercise such powers and to perform such duties hereunder and
thereunder as are specifically delegated to or required of the Administrative
Agent by the terms hereof and thereof and such other powers as are reasonably
incidental thereto. The Administrative Agent may perform any of its duties
hereunder by or through its respective officers, directors, agents, employees or
affiliates.
12.02 Nature of Duties. The Administrative Agent agrees to act
in its capacity as such upon the express conditions contained in this Section
12. Notwithstanding any provision to the contrary elsewhere in this Agreement or
in any other Credit Document, the Administrative Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement and the
Security Documents and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Agreement or
otherwise exist against the Administrative Agent. The duties of the
Administrative Agent shall be mechanical and administrative in nature; the
Administrative Agent shall not have by reason of this Agreement or any other
Credit Document a fiduciary relationship in respect of any Lender or the holder
of any Note; and nothing in this Agreement or any other Credit Document, express
or implied, is intended to or shall be so construed as to impose upon the
Administrative Agent any obligations in respect of this Agreement or any other
Credit Document except as expressly set forth herein or therein. The provisions
of this Section 12 are solely for the benefit of the Administrative Agent, the
Co-Lead Arrangers and the Lenders, and neither the Borrower nor any of its
Subsidiaries shall have any rights as a third party beneficiary of any of the
provisions hereof. In performing its functions and duties under this Agreement,
the Administrative Agent shall act solely as agent of the Lenders and does not
assume and shall not be deemed to have assumed any obligation or relationship of
agency or trust with or for the Borrower or any of its Subsidiaries.
12.03 Lack of Reliance on the Administrative Agent. Each
Lender expressly acknowledges that none of the Administrative Agent or any of
its officers, directors, employees, agents, attorneys-in-fact or affiliates has
made any representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs of
the Borrower or any of its Subsidiaries, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Lender.
Independently and without reliance upon the Administrative Agent or any other
Lender, each Lender and the holder of each Note, to the extent it deems
appropriate and based on such documents and information as it deems appropriate,
has made and shall continue to make (i) its own independent investigation of the
business, assets, operations, property, prospects, financial and other
conditions and affairs of the Borrower and its Subsidiaries in connection with
the making and the continuance of the Loans and the taking or
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not taking of any action in connection herewith and (ii) its own credit analysis
and appraisal of the creditworthiness of the Borrower and its Subsidiaries and,
except as expressly provided in this Agreement, the Administrative Agent shall
not have any duty or responsibility, either initially or on a continuing basis,
to provide any Lender or the holder of any Note with any credit or other
information with respect thereto, whether coming into the possession of the
Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates before the making of the Loans or at any time or
times thereafter. The Administrative Agent shall not be responsible to any
Lender or the holder of any Note for any recitals, statements, information,
representations or warranties herein or in any document, certificate or other
writing delivered in connection herewith or for the execution, effectiveness,
genuineness, validity, enforceability, perfection, collectability, priority or
sufficiency of this Agreement or any other Credit Document or the financial
condition of the Borrower and its Subsidiaries or be required to make any
inquiry concerning either the performance or observance of any of the terms,
provisions or conditions of this Agreement or any other Credit Document, or the
financial condition of the Borrower and its Subsidiaries or the existence or
possible existence of any Default or Event of Default.
12.04 Certain Rights of the Administrative Agent. If the
Administrative Agent shall request instructions from the Required Lenders with
respect to any act or action (including failure to act) in connection with this
Agreement or any other Credit Document, the Administrative Agent shall be
entitled to refrain from such act or taking such action unless and until the
Administrative Agent shall have received instructions from the Required Lenders
as it deems appropriate or it shall have been indemnified to its satisfaction by
the Lenders against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action; and the
Administrative Agent shall not incur liability to any Person by reason of so
refraining. Without limiting the foregoing, no Lender or the holder of any Note
shall have any right of action whatsoever against the Administrative Agent as a
result of the Administrative Agent acting or refraining from acting hereunder or
under any other Credit Document in accordance with the instructions of the
Required Lenders and such instructions or any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders.
12.05 Reliance. The Administrative Agent shall be entitled to
rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, statement, certificate, telex, teletype or telecopier
message, cablegram, order or other document, conversation or telephone message
signed, sent or made by any Person that the Administrative Agent believed to be
the proper Person or persons, and upon advice or statement of legal counsel
(including, without limitations counsel to the Borrower or any of its
Subsidiaries), independent accountants and other experts selected by the
Administrative Agent.
12.06 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such ratably according to its
"percentage" as used in determining the Required Lenders at such time or, if the
Commitments have terminated and all Loans have been repaid in full, as
determined immediately prior to such termination and repayment (with such
"percentage" to be determined as if there are no Defaulting Lenders), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including, without limitation, at
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any time following the payment of the Obligations) be imposed on, incurred by or
asserted against the Administrative Agent in its capacity as such in any way
relating to or arising out of this Agreement or any other Credit Document, or
any documents contemplated by or referred to herein or the transactions
contemplated hereby or any action taken or omitted to be taken by the
Administrative Agent under or in connection with any of the foregoing, but only
to the extent that any of the foregoing is not paid by the Borrower or any of
its Subsidiaries; provided, that no Lender shall be liable to the Administrative
Agent for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting primarily from the gross negligence or willful misconduct of the
Administrative Agent. If any indemnity furnished to the Administrative Agent for
any purpose shall, in the opinion of the Administrative Agent be insufficient or
become impaired, the Administrative Agent may call for additional indemnity and
cease, or not commence, to do the acts indemnified against until such additional
indemnity is furnished. The agreements in this Section 12.06 shall survive the
payment of all Obligations.
12.07 Administrative Agent in Its Individual Capacity. With
respect to its obligation to make Loans, the Loans made by it and all
Obligations owed to it under this Agreement, the Administrative Agent shall have
the rights and powers specified herein for a "Lender" and may exercise the same
rights and powers as though it were not performing the duties specified herein;
and the term "Lenders," "Required Lenders," "Majority Lenders," "holders of
Notes" or any similar terms shall, unless the context clearly otherwise
indicates, include the Administrative Agent in its individual capacity. The
Administrative Agent may accept deposits from, lend money to, and generally
engage in any kind of banking, trust or other business with any Credit Party or
any Affiliate of any Credit Party as if it were not performing the duties
specified herein, and may accept fees and other consideration from the Borrower
or any other Credit Party for services in connection with this Agreement and
otherwise without having to account for the same to the Lenders.
12.08 Holders. The Administrative Agent may deem and treat the
payee of any Note as the owner thereof for all purposes hereof unless and until
a written notice of the assignment, transfer or endorsement thereof, as the case
may be, shall have been filed with the Administrative Agent. Any request,
authority or consent of any Person who, at the time of making such request or
giving such authority or consent, is the holder of any Note shall be conclusive
and binding on any subsequent holder, transferee, assignee or endorsee, as the
case may be, of such Note or of any Note or Notes issued in exchange therefor.
12.09 Resignation by the Administrative Agent. (a) The
Administrative Agent may resign from the performance of all its functions and
duties hereunder and/or under the other Credit Documents at any time by giving
15 Business Days' prior written notice to the Borrower and the Lenders. Such
resignation shall take effect upon the appointment of a successor Administrative
Agent pursuant to clauses (b) and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation by the Administrative
Agent, the Lenders shall appoint a successor Administrative Agent hereunder or
thereunder who shall be a commercial bank or trust company reasonably acceptable
to the Borrower.
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(c) If a successor Administrative Agent shall not have been so
appointed within such 15 Business Day period, the Administrative Agent, with the
consent of the Borrower (which shall not be unreasonably withheld or delayed),
shall then appoint a commercial bank or trust company with capital and surplus
of not less than $500,000,000 as successor Administrative Agent who shall serve
as Administrative Agent hereunder or thereunder until such time, if any, as the
Lenders appoint a successor Administrative Agent as provided above.
(d) If no successor Administrative Agent has been appointed
pursuant to clause (b) or (c) above by the 25th Business Day after the date such
notice of resignation was given by the Administrative Agent, the Administrative
Agent's resignation shall become effective and the Required Lenders shall
thereafter perform all the duties of the Administrative Agent hereunder and/or
under any other Credit Document until such time, if any, as the Required Lenders
appoint a successor Administrative Agent as provided above.
12.10 Delegation of Duties. The Administrative Agent may
execute any of its duties under this Agreement or any other Credit Document by
or through Administrative Agent or attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any Administrative Agent or attorneys-in-fact selected by it with reasonable
care.
12.11 Exculpatory Provisions. None of the Administrative Agent
or any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action taken or omitted to be taken by it
or such Person in its capacity as Administrative Agent under or in connection
with this Agreement or the other Credit Documents (except for its or such
Person's own gross negligence or willful misconduct) or (ii) responsible in any
manner to any of the Lenders for any recitals, statements, representations or
warranties made by the Borrower, any of its Subsidiaries or any of its officers
contained in this Agreement or the other Credit Documents, any other Document or
in any certificate, report, statement or other document referred to or provided
for in, or received by the Administrative Agent under or in connection with,
this Agreement or any other Document or for any failure of the Borrower or any
of its Subsidiaries or any of their respective officers to perform its
obligations hereunder or thereunder. The Administrative Agent shall not be under
any obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or the other Documents, or to inspect the properties, books or records
of the Borrower or any of its Subsidiaries. The Administrative Agent shall not
be responsible to any Lender for the effectiveness, genuineness, validity,
enforceability, collectability or sufficiency of this Agreement or any other
Document or for any representations, warranties, recitals or statements made
herein or therein or made in any written or oral statement or in any financial
or other statements, instruments, reports, certificates or any other documents
in connection herewith or therewith furnished or made by the Administrative
Agent to the Lenders or by or on behalf of the Borrower or any of its
Subsidiaries to the Administrative Agent or any Lender or be required to
ascertain or inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained herein or therein or
as to the use of the proceeds of the Loans or of the existence or possible
existence of any Default or Event of Default.
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12.12 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default unless the Administrative Agent has actually received notice from a
Lender or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default." In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give prompt notice thereof to the Lenders. The Administrative Agent
shall take such action with respect to such Default or Event of Default as shall
be reasonably directed by the Required Lenders; provided, that, unless and until
the Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders.
12.13 Special Provisions Regarding the Co-Lead Arrangers. No
Co-Lead Arranger, Documentation Agent or Syndication Agent shall have any
obligations, responsibilities or duties under this Agreement or any other Credit
Document in its capacity as such.
SECTION 13. Miscellaneous.
13.01 Payment of Expenses, etc. The Borrower shall: (i)
whether or not the transactions herein contemplated are consummated, pay all
reasonable out-of-pocket costs and expenses of the Administrative Agent and the
Co-Lead Arrangers (including, without limitation, the reasonable fees and
disbursements of White & Case LLP and local counsel) in connection with the
preparation, execution and delivery of this Agreement and the other Credit
Documents and the documents and instruments referred to herein and therein and
any amendment, waiver or consent relating hereto or thereto, of each Co-Lead
Arranger in connection with its syndication efforts with respect to this
Agreement and of the Administrative Agent, each Issuing Bank and each of the
Lenders in connection with the enforcement of this Agreement and the other
Credit Documents and the documents and instruments referred to herein and
therein (including, without limitation, the reasonable fees and disbursements of
counsel (including in-house counsel) for the Administrative Agent and for each
of the Lenders and the fees payable to the lessor upon the foreclosure under the
St. Luke's Lease); (ii) pay and hold each of the Lenders harmless from and
against any and all present and future stamp, excise and other similar taxes
with respect to the foregoing matters and save each of the Lenders harmless from
and against any and all liabilities with respect to or resulting from any delay
or omission (other than to the extent attributable to such Lender) to pay such
taxes; and (iii) indemnify the Administrative Agent, each Co-Lead Arranger, the
Collateral Agent, each Issuing Bank and each Lender, and each of their
respective officers, directors, trustees, employees, representatives and
Administrative Agent from and hold each of them harmless against any and all
liabilities, obligations (including removal or remedial actions), losses,
damages, penalties, claims, actions, judgments, suits, costs, expenses and
disbursements (including reasonable attorneys' and consultants' fees and
disbursements) incurred by, imposed on or assessed against any of them as a
result of, or arising out of, or in any way related to, or by reason of, (a) any
investigation, litigation or other proceeding (whether or not the Administrative
Agent, any Co-Lead Arranger, any Issuing Bank, the Collateral Agent or any
Lender is a party thereto and whether or not any such investigation, litigation
or other proceeding is between or among the Administrative Agent, any Co-Lead
Arranger, the Collateral Agent, any Issuing Bank, any Lender, any Credit Party
or any third Person or otherwise) related to the
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entering into and/or performance of this Agreement or any other Credit Document
or the use of any Letter of Credit or the proceeds of any Loans hereunder or the
consummation of any transactions contemplated herein (including, without
limitation, the Transaction), or in any other Credit Document or the exercise of
any of their rights or remedies provided herein or in the other Credit
Documents, or (b) the actual or alleged presence of Hazardous Materials in the
air, surface water or groundwater or on the surface or subsurface of any Real
Property at any time owned, operated or occupied by the Borrower or any of its
Subsidiaries, the generation, storage, transportation, handling or disposal of
Hazardous Materials at any location, whether or not owned, operated or occupied
by the Borrower or any of its Subsidiaries, the non-compliance of any Real
Property at any time owned, operated or occupied by the Borrower or any of its
Subsidiaries with foreign, federal, state and local laws, regulations, and
ordinances (including applicable permits thereunder) applicable to any such Real
Property, or any Environmental Claim asserted against the Borrower, any of its
Subsidiaries or such Real Property, including, in each case, without limitation,
the reasonable fees and disbursements of counsel and other consultants incurred
in connection with any such investigation, litigation or other proceeding (but
excluding any losses, liabilities, penalties, claims, damages, costs,
disbursements or expenses to the extent incurred by reason of the gross
negligence or willful misconduct of the Person to be indemnified). To the extent
that the undertaking to indemnify, pay or hold harmless the Administrative Agent
or any Lender set forth in the preceding sentence may be unenforceable because
it is violative of any law or public policy, the Borrower shall make the maximum
contribution to the payment and satisfaction of each of the indemnified
liabilities which is permissible under applicable law.
13.02 Right of Setoff. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence and during the continuance of
an Event of Default, the Administrative Agent, each Issuing Bank and each Lender
is hereby authorized at any time or from time to time, without presentment,
demand, protest or other notice of any kind to any Credit Party or to any other
Person, any such notice being hereby expressly waived, to set off and to
appropriate and apply any and all deposits (general or special) and any other
Indebtedness at any time held or owing by the Administrative Agent, such Issuing
Bank or such Lender (including, without limitation, by branches and agencies of
such Lender wherever located) to or for the credit or the account of any Credit
Party but in any event excluding assets held in trust for any such Person
against and on account of the Obligations and liabilities of such Credit Party
to the Administrative Agent, such Issuing Bank or such Lender under this
Agreement or under any of the other Credit Documents, including, without
limitation, all interests in Obligations purchased by such Lender pursuant to
Section 13.06(b), and all other claims of any nature or description arising out
of or connected with this Agreement or any other Credit Document, irrespective
of whether or not the Administrative Agent, such Issuing Bank or such Lender
shall have made any demand hereunder and although said Obligations, liabilities
or claims, or any of them, shall be contingent or unmatured.
13.03 Notices. Except as otherwise expressly provided herein,
all notices and other communications provided for hereunder shall be in writing
(including telexed, telegraphic, telex, telecopier or cable communication) and
mailed, telexed, telecopied, cabled or delivered: if to the Borrower, at the
address specified opposite its signature below; if to any Lender, at its address
specified opposite its name on Schedule II below or in the applicable Assignment
and
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Assumption Agreement; if to the Administrative Agent, at its Notice Office; and
if to any Co-Lead Arranger, at the address specified opposite its signature
below; or, as to the Borrower, at such other address as shall be designated by
the Borrower in a written notice to the other parties hereto and, as to each
Lender, at such other address as shall be designated by such Lender in a written
notice to the Borrower and the Administrative Agent. All such notices and
communications shall, when mailed, telexed, telecopied or sent by overnight
courier, be effective when deposited in the mails or delivered to the overnight
courier, prepaid and properly addressed for delivery on such or the next
Business Day, or sent by telex or telecopier, except that notices and
communications to the Administrative Agent shall not be effective until received
by the Administrative Agent.
13.04 Benefit of Agreement. (a) This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto; provided, however, that (i) no
Credit Party may assign or transfer any of its rights, obligations or interest
hereunder or under any other Credit Document without the prior written consent
of the Lenders, (ii) although any Lender may transfer, assign or grant
participations in its rights hereunder in accordance with this Section 13.04,
such Lender shall remain a "Lender" for all purposes hereunder (and may not
transfer or assign all or any portion of its Commitments hereunder except as
provided in Section 13.04(b)) and the transferee, assignee or participant, as
the case may be, shall not constitute a "Lender" hereunder and (iii) no Lender
shall transfer or grant any participation under which the participant shall have
rights to approve any amendment to or waiver of this Agreement or any other
Credit Document except to the extent such amendment or waiver would (x) extend
the final scheduled maturity of any Loan, Note or Letter of Credit (unless such
Letter of Credit is not extended beyond the Revolving Loan Maturity Date) in
which such participant is participating, or reduce the rate or extend the time
of payment of interest or Fees thereon (except (I) in connection with a waiver
of applicability of any post-default increase in interest rates and (II) that
any amendment or modification to the financial definitions in this Agreement
shall not constitute a reduction in the rate of interest for purposes of this
clause (x)) or reduce the principal amount thereof, or increase the amount of
the participant's participation over the amount thereof then in effect (it being
understood that a waiver of any Default or Event of Default or of a mandatory
reduction in the Total Commitments shall not constitute a change in the terms of
such participation, and that an increase in any Commitment or Loan shall be
permitted without the consent of any participant if the participant's
participation is not increased as a result thereof), (y) consent to the
assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement or (z) release all or substantially all of the Collateral
under all of the Security Documents (except as expressly provided in the Credit
Documents) securing the Loans hereunder in which such participant is
participating. In the case of any such participation, the participant shall not
have any rights under this Agreement or any of the other Credit Documents (the
participant's rights against such Lender in respect of such participation to be
those set forth in the agreement executed by such Lender in favor of the
participant relating thereto) and all amounts payable by the Borrower hereunder
shall be determined as if such Lender had not sold such participation.
(b) Notwithstanding the foregoing, any Lender (or any Lender
together with one or more other Lenders) may (x) assign all or a portion of its
Revolving Loan Commitment (and related outstanding Obligations hereunder) and/or
its outstanding Term Loans (or, if prior to
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the Initial Borrowing Date, Term Loan Commitment) to its (i) parent company
and/or any affiliate of such Lender (which, if a fund and such assignment
relates to Revolving Loans or Revolving Loan Commitments, such fund shall
represent that it has the financial resources to fulfill its commitments
hereunder) which is at least 50% owned by such Lender or its parent company or
(ii) in the case of any Lender of Term Loans that is a fund that invests in bank
loans, any other fund that invests in bank loans and is managed or advised by
the same investment advisor of such Lender or by an Affiliate of such investment
advisor or (iii) to one or more Lenders (which, if a fund and such assignment
relates to Revolving Loans or Revolving Loan Commitments, such fund shall
represent that it has the financial resources to fulfill its commitments
hereunder) or (y) assign all, or if less than all, a portion equal to at least
$2,500,000 in the aggregate for the assigning Lender or assigning Lenders, of
such Revolving Loan Commitments and outstanding principal amount of Term Loans
(or, if prior to the Initial Borrowing Date, Term Loan Commitment) hereunder to
one or more Eligible Transferees (with respect to Term Loans, treating any fund
that invests in bank loans and any other fund that invests in bank loans and is
managed or advised by the same investment advisor of such fund or by an
Affiliate of such investment advisor as a single Eligible Transferee), each of
which assignees shall become a party to this Agreement as a Lender by execution
of an Assignment and Assumption Agreement, provided that, (i) at such time
Schedule I shall be deemed modified to reflect the Commitments (and/or
outstanding Term Loans, as the case may be) of such new Lender and of the
existing Lenders, (ii) new Notes will be issued, at the Borrower's expense, to
such new Lender and to the assigning Lender upon the request of such new Lender
or assigning Lender, such new Notes to be in conformity with the requirements of
Section 1.05 (with appropriate modifications) to the extent needed to reflect
the revised Commitments (and/or outstanding Term Loans, as the case may be),
(iii) the consent of the Administrative Agent and each Issuing Bank shall be
required in connection with any assignment of all or any portion of Revolving
Loan Commitments (which consents shall not be unreasonably withheld or delayed),
(iv) in the case of assignments pursuant to clause (y) above, the consent of the
Administrative Agent and, unless any Material Default or Event of Default is
then in existence, the consent of the Borrower shall be required (which consents
shall not be unreasonably withheld or delayed) and (v) the Administrative Agent
shall receive at the time of each such assignment, from the assigning or
assignee Lender, the payment of a non-refundable assignment fee of $3,500. To
the extent of any assignment pursuant to this Section 13.04(b), the assigning
Lender shall be relieved of its obligations hereunder with respect to its
assigned Commitments (it being understood that the indemnification provisions
under this Agreement (including, without limitation, Sections 1.10, 1.11, 2.05,
4.04, 13.01 and 13.06) shall survive as to such assigning Lender). At the time
of each assignment pursuant to this Section 13.04(b) to a Person which is not
already a Lender hereunder and which is not a United States person (as such term
is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes,
the respective assignee Lender, as a condition to its becoming a Lender
hereunder, shall provide to the Borrower and the Administrative Agent the
appropriate Internal Revenue Service Forms (and, if applicable, a Section
4.04(b)(ii) Certificate) described in Section 4.04(b). To the extent that an
assignment of all or any portion of a Lender's Commitments and related
outstanding Obligations pursuant to Section 1.13 or this Section 13.04(b) would,
at the time of such assignment, result in increased costs under Section 1.10,
1.11, 2.05 or 4.04 from those being charged by the respective assigning Lender
prior to such assignment, then the Borrower shall not be obligated to pay such
increased
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costs (although the Borrower shall be obligated to pay any other increased costs
of the type described above resulting from changes after the date of the
respective assignment, subject to Section 4.04(b)).
(c) Nothing in this Agreement shall prevent or prohibit any
Lender from pledging its Loans and Notes hereunder to a Federal Reserve Bank in
support of borrowings made by such Lender from such Federal Reserve Bank and,
with the consent of the Administrative Agent (which consent shall not be
unreasonably withheld or delayed), any Lender which is a fund may pledge all or
any portion of its Notes or Loans to any trustee, other representative of
holders of notes issued by such fund, or holder of obligations owed by such
fund, in support of its obligation to such trustee, representative or holder. No
pledge pursuant to this clause (c) shall release the transferor Lender from any
of its obligations hereunder.
13.05 No Waiver; Remedies Cumulative. No failure or delay on
the part of the Administrative Agent or any Lender or any holder of any Note in
exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between any other Credit Party and the
Administrative Agent or any Lender or the holder of any Note shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder or under any other Credit Document preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. The rights, powers and remedies herein or in any other
Credit Document expressly provided are cumulative and not exclusive of any
rights, powers or remedies which the Administrative Agent or any Lender or the
holder of any Note would otherwise have. No notice to or demand on any Credit
Party in any case shall entitle any Credit Party to any other or further notice
or demand in similar or other circumstances or constitute a waiver of the rights
of the Administrative Agent or any Lender or the holder of any Note to any other
or further action in any circumstances without notice or demand.
13.06 Payments Pro Rata. (a) Except as otherwise provided in
this Agreement, the Administrative Agent agrees that promptly after its receipt
of each payment from or on behalf of the Borrower in respect of any Obligations
hereunder, it shall distribute such payment to the Lenders (other than any
Lender that has consented in writing to waive its pro rata share of any such
payment) pro rata based upon their respective shares, if any, of the Obligations
with respect to which such payment was received.
(b) Each of the Lenders agrees that, if it should receive any
amount hereunder (whether by voluntary payment, by realization upon security, by
the exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise), which is applicable to the payment of the principal of, or interest
on, the Loans, Unpaid Drawings, Commitment Commission or Letter of Credit Fees,
of a sum which with respect to the related sum or sums received by other Lenders
is in a greater proportion than the total of such Obligation then owed and due
to such Lender bears to the total of such Obligation then owed and due to all of
the Lenders immediately prior to such receipt, then such Lender receiving such
excess payment shall purchase for cash without recourse or warranty from the
other Lenders an interest in the Obligations of the respective Credit Party to
such Lenders in such amount as shall result in a proportional participation by
all the Lenders in
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such amount; provided that if all or any portion of such excess amount is
thereafter recovered from such Lender, such purchase shall be rescinded and the
purchase price restored to the extent of such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein,
the provisions of the preceding Sections 13.06(a) and (b) shall be subject to
the express provisions of this Agreement which require, or permit, differing
payments to be made to Non-Defaulting Lenders as opposed to Defaulting Lenders.
13.07 Calculations; Computations. (a) The financial statements
to be furnished to the Lenders pursuant hereto shall be made and prepared in
accordance with generally accepted accounting principles in the United States
consistently applied throughout the periods involved (except as set forth in the
notes thereto or as otherwise disclosed in writing by the Borrower to the
Lenders) (with the foregoing generally accepted accounting principles herein
called "GAAP"); provided that, (i) except as otherwise specifically provided
herein, all computations of Excess Cash Flow and all computations determining
compliance with Sections 9.08 through 9.10, inclusive, and the determination of
Applicable Margin and Applicable Commitment Commission Percentage shall utilize
accounting principles and policies in conformity with those used to prepare the
annual financial statements first delivered to the Lenders pursuant to Section
7.05(a), (ii) for purposes of calculating financial terms, all covenants and
related definitions, all such calculations based on the operations of the
Borrower and its Subsidiaries on a consolidated basis shall be made without
giving effect to the operations of any Unrestricted Subsidiaries and (iii) to
the extent expressly required pursuant to the provisions of this Agreement,
certain calculations shall be made on a Pro Forma Basis.
(b) All computations of interest on Eurodollar Loans,
Commitment Commission and Fees hereunder shall be made on the basis of a year of
360 days for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest, Commitment
Commission or Fees are payable. All computations of interest on Base Rate Loans
shall be made on the basis of a year of 365 or 366 days, as the case may be, for
the actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest is payable.
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13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER
OF JURY TRIAL. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL, EXCEPT AS
OTHERWISE PROVIDED IN CERTAIN OF THE MORTGAGES, BE CONSTRUED IN ACCORDANCE WITH
AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
THE BORROWER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID
COURTS. THE BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT
OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE
MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO
BORROWER AT ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO
BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. THE BORROWER HEREBY IRREVOCABLY
WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES
AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER
OR ANY OTHER CREDIT DOCUMENT THAT SERVICE OF PROCESS WAS IN ANY WAY INVALID OR
INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT
UNDER THIS AGREEMENT, ANY LENDER OR THE HOLDER OF ANY NOTE TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST ANY CREDIT PARTY IN ANY OTHER JURISDICTION.
(b) THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID
ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR
ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE
AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY
SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
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13.09 Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument. A set of
counterparts executed by all the parties hereto shall be lodged with the
Borrower and the Administrative Agent.
13.10 Effectiveness. This Agreement shall become effective on
the date (the "Effective Date") on which the Borrower and each of the Lenders
who are initially parties hereto shall have signed a counterpart hereof (whether
the same or different counterparts) and shall have delivered the same to the
Administrative Agent or, in the case of the Lenders, shall have given to the
Administrative Agent telephonic (confirmed in writing), written or telex notice
(actually received) at such office that the same has been signed and mailed to
it. The Administrative Agent will give the Borrower and each Lender prompt
written notice of the occurrence of the Effective Date.
13.11 Headings Descriptive. The headings of the several
sections and subsections of this Agreement are inserted for convenience only and
shall not in any way affect the meaning or construction of any provision of this
Agreement.
13.12 Amendment or Waiver; etc. (a) Neither this Agreement nor
any other Credit Document nor any terms hereof or thereof may be changed,
waived, discharged or terminated unless such change, waiver, discharge or
termination is in writing signed by the respective Credit Parties party thereto
and the Required Lenders, provided that no such change, waiver, discharge or
termination shall, without the consent of each Lender (other than a Defaulting
Lender) (with Obligations being directly affected in the case of following
clause (i)), (i) extend the final scheduled maturity of any Loan or Note or
extend the stated maturity of any Letter of Credit beyond the Revolving Loan
Maturity Date, or reduce the rate or extend the time of payment of interest or
Fees thereon (except (x) in connection with the waiver of applicability of any
post-default increase in interest rates and (y) that any amendment or
modification to the financial definitions in this Agreement shall not constitute
a reduction in the rate of interest for purposes of this clause (i)), or reduce
the principal amount thereof (except to the extent repaid in cash), (ii) release
all or substantially all of the Collateral (except as expressly provided in the
Credit Documents) under all the Security Documents, (iii) amend, modify or waive
any provision of this Section 13.12, (iv) reduce the percentage specified in the
definition of Required Lenders (it being understood that, with the consent of
the Required Lenders, additional extensions of credit pursuant to this Agreement
may be included in the determination of the Required Lenders on substantially
the same basis as the extensions of Term Loans and Revolving Loan Commitments
are included on the Effective Date) or (v) consent to the assignment or transfer
by the Borrower of any of its rights and obligations under this Agreement or any
other Credit Document; provided further, that no such change, waiver, discharge
or termination shall (t) increase the Commitments of any Lender over the amount
thereof then in effect without the consent of such Lender (it being understood
that waivers or modifications of conditions precedent, covenants, Defaults or
Events of Default or of a mandatory reduction in the Total Commitments shall not
constitute an increase of the Commitment of any Lender, and that an increase in
the available portion of any Commitment of any Lender shall not constitute an
increase in the Commitment of such Lender), (u) without the consent of the
Swingline Lender,
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alter its rights or obligations with respect to Swingline Loans, (v) without the
consent of the respective Issuing Bank, amend, modify or waive any provision of
Section 2 or alter its rights or obligations with respect to Letters of Credit,
(w) without the consent of the Administrative Agent, amend, modify or waive any
provision of Section 12 as same applies to the Administrative Agent or any other
provision as same relates to the rights or obligations of the Administrative
Agent, (x) without the consent of the Collateral Agent, amend, modify or waive
any provision relating to the rights or obligations of the Collateral Agent, (y)
without the consent of the Majority Lenders of each Tranche which is being
allocated a lesser prepayment, repayment or commitment reduction as a result of
the actions described below (or without the consent of the Majority Lenders of
each Tranche in the case of an amendment to the definition of Majority Lenders),
amend the definition of Majority Lenders (it being understood that, with the
consent of the Required Lenders, additional extensions of credit pursuant to
this Agreement may be included in the determination of the Majority Lenders on
substantially the same basis as the extensions of Term Loans and Revolving Loan
Commitments are included on the Effective Date) or alter the required
application of any prepayments or repayments (or commitment reductions), as
between the various Tranches, pursuant to Section 4.01 or 4.02 (excluding
Sections 4.02(b) and (c)) (although (x) the Required Lenders may waive, in whole
or in part, any such prepayment, repayment or commitment reduction, so long as
the application, as amongst the various Tranches, of any such prepayment,
repayment or commitment reduction which is still required to be made is not
altered and (y) if additional Tranches of Term Loans are extended after the
Initial Borrowing Date with the consent of the Required Lenders as required
above, such Tranches may be included on a pro rata basis (as is originally done
with the Tranche A Term Loans and Tranche B Term Loans) in the various
prepayments or repayments required pursuant to Sections 4.01 and 4.02 (excluding
Sections 4.02(b) and (c) and any section providing Scheduled Repayments for any
new Tranche of Term Loans) or (z) without the consent of the Majority Lenders of
the respective Tranche, reduce the amount of, or extend the date of, any
Scheduled Repayment applicable to such Tranche or, without the consent of the
Majority Lenders of each Tranche, amend the definition of Majority Lenders (it
being understood that, with the consent of the Required Lenders, additional
extensions of credit pursuant to this Agreement may be included in the
determination of the Majority Lenders on substantially the same basis as the
extensions of Term Loans and Revolving Loan Commitments are included on the
Effective Date).
(b) If, in connection with any proposed change, waiver,
discharge or termination to any of the provisions of this Agreement as
contemplated by clauses (i) through (v), inclusive, of the first proviso to
Section 13.12(a), the consent of the Required Lenders is obtained but the
consent of one or more of such other Lenders whose consent is required is not
obtained, then the Borrower shall have the right, so long as all non-consenting
Lenders whose individual consent is required are treated as described in either
clauses (A) or (B) below, to either (A) replace each such non-consenting Lender
or Lenders (or, at the option of the Borrower if the respective Lender's consent
is required with respect to less than all Tranches of Loans (or related
Commitments), to replace only the respective Tranche or Tranches of Commitments
and/or Loans of the respective non-consenting Lender which gave rise to the need
to obtain such Lender's individual consent) with one or more Replacement Lenders
pursuant to Section 1.13 so long as at the time of such replacement, each such
Replacement Lender consents to the proposed
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change, waiver, discharge or termination or (B) terminate such non-consenting
Lender's Revolving Loan Commitment (if such Lender's consent is required as a
result of its Revolving Loan Commitment) and/or repay each Tranche of
outstanding Term Loans of such Lender which gave rise to the need to obtain such
Lender's consent, in accordance with Sections 3.02(b) and/or 4.01(iv), provided
that, unless the Commitments terminated and Loans repaid pursuant to preceding
clause (B) are immediately replaced in full at such time through the addition of
new Lenders or the increase of the Commitments and/or outstanding Loans of
existing Lenders (who in each case must specifically consent thereto), then in
the case of any action pursuant to preceding clause (B) the Required Lenders
(determined both before and after giving effect to the proposed action) shall
specifically consent thereto, provided further, that in any event the Borrower
shall not have the right to replace a Lender, terminate its Revolving Loan
Commitment or repay its Loans solely as a result of the exercise of such
Lender's rights (and the withholding of any required consent by such Lender)
pursuant to the second proviso to Section 13.12(a).
13.13 Survival. All indemnities set forth herein including,
without limitation, in Sections 1.10, 1.11, 2.05, 4.04, 12.06, 13.01 and 13.06
shall, subject to Section 13.15 (to the extent applicable), survive the
execution, delivery and termination of this Agreement and the Notes and the
making and repayment of the Loans.
13.14 Domicile of Loans. Each Lender may transfer and carry
its Loans at, to or for the account of any office, Subsidiary or Affiliate of
such Lender. Notwithstanding anything to the contrary contained herein, to the
extent that a transfer of Loans pursuant to this Section 13.14 would, at the
time of such transfer, result in increased costs under Section 1.10, 1.11, 2.05
or 4.04 from those being charged by the respective Lender prior to such
transfer, then the Borrower shall not be obligated to pay such increased costs
(although the Borrower shall be obligated to pay any other increased costs of
the type described above resulting from changes after the date of the respective
transfer).
13.15 Confidentiality. (a) Subject to the provisions of clause
(b) of this Section 13.15, each Lender agrees that it will use its best efforts
not to disclose without the prior consent of the Borrower (other than to its
employees, auditors, advisors or counsel or to another Lender if the Lender or
such Lender's holding or parent company or board of trustees in its sole
discretion determines that any such party should have access to such
information), any information with respect to the Borrower or any of its
Subsidiaries which is now or in the future furnished pursuant to this Agreement
or any other Credit Document, provided that any Lender may disclose any such
information (a) as has become generally available to the public other than by
virtue of a breach of this Section 13.15(a) by the respective Lender, (b) as may
be required or appropriate (x) in any report, statement or testimony submitted
to any municipal, state or Federal regulatory body having or claiming to have
jurisdiction over such Lender or to the Federal Reserve Board or the Federal
Deposit Insurance Corporation or similar organizations (whether in the United
States or elsewhere) or their successors or (y) in connection with any request
or requirement of any such regulatory body (including any securities exchange or
self-regulatory body), (c) as may be required or appropriate in respect to any
summons or subpoena or in connection with any litigation, (d) in order to comply
with any law, order, regulation or ruling applicable to such Lender, (e) to the
Administrative Agent or the Collateral Agent, (f) to any prospective or actual
transferee or participant in connection with any contemplated transfer or
participation of any of
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the Notes or Commitments or any interest therein by such Lender, provided that
such prospective transferee agrees to be bound by the confidentiality provisions
contained in this Section 13.15 and (g) to any Person (or such Person's
investment advisor) with whom such Lender has entered into or proposes to enter
into (in each case either directly or indirectly) any credit swap agreement with
respect to such Lender's Loans and/or Commitments, provided such Person (and
such investment advisor, if any) agrees to be bound by the confidentiality
provisions contained in this Section 13.15.
(b) The Borrower hereby acknowledges and agrees that each
Lender may share with any of their affiliates or investment advisors any
information related to the Borrower or any of its Subsidiaries (including,
without limitation, any nonpublic customer information regarding the
creditworthiness of the Borrower or its Subsidiaries, provided such Persons
shall be subject to the provisions of this Section 13.15 to the same extent as
such Lender).
13.16 Register. The Borrower hereby designates the
Administrative Agent to serve as its agent, solely for purposes of this Section
13.16, to maintain a register (the "Register") on which it will record the
Commitments from time to time of each of the Lenders, the Loans made by each of
the Lenders and each repayment in respect of the principal amount of the Loans
of each Lender. Failure to make any such recordation, or any error in such
recordation shall not affect the Borrower's obligations in respect of such
Loans. With respect to any Lender, the transfer of any Commitment of such Lender
and the rights to the principal of, and interest on, any Loan made pursuant to
such Commitment shall not be effective until such transfer is recorded on the
Register maintained by the Administrative Agent with respect to ownership of
such Commitment and Loans and prior to such recordation all amounts owing to the
transferor with respect to such Commitment and Loans shall remain owing to the
transferor. The registration of assignment or transfer of all or part of any
Commitment and Loans shall be recorded by the Administrative Agent on the
Register only upon the acceptance by the Administrative Agent of a properly
executed and delivered Assignment and Assumption Agreement pursuant to Section
13.04(b). Coincident with the delivery of such an Assignment and Assumption
Agreement to the Administrative Agent for acceptance and registration of
assignment or transfer of all or part of a Commitment and/or Loan, or as soon
thereafter as practicable, the assigning or transferor Lender shall surrender
the Note evidencing such Commitment and/or Loan, if any, and thereupon one or
more new Notes in the same aggregate principal amount shall be issued to the
assigning or transferor Lender and/or the new Lender, if requested by such
assigning or transferor Lender and/or such new Lender. The Borrower shall
indemnify the Administrative Agent from and against any and all losses, claims,
damages and liabilities of whatsoever nature which may be imposed on, asserted
against or incurred by the Administrative Agent in performing its duties under
this Section 13.16.
13.17 Post-Closing Actions. Notwithstanding anything to the
contrary contained in this Agreement or the other Credit Documents, the parties
hereto acknowledge and agree that the matters set forth on Schedule VIII have
not been completed on or before the Initial Borrowing Date.
All provisions of this Credit Agreement and the other Credit
Documents (including, without limitation, all conditions precedent,
representations, warranties, covenants,
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events of default and other agreements herein and therein) shall be deemed
modified to the extent necessary to effect the foregoing (and to permit the
taking of the actions and the satisfaction of the conditions described above and
on Schedule VIII within the time periods required hereby and thereby (and,
rather than as otherwise provided in the Credit Documents)); provided, that (x)
to the extent any representation and warranty would not be true because the
foregoing actions were not taken, or conditions were not satisfied, on the
Initial Borrowing Date, the respective representation and warranty shall be
required to be true and correct in all material respects at the time the
respective action is taken or condition is satisfied (or was required to be
taken or satisfied) in accordance with the foregoing provisions of this Section
13.17 and (y) all representations and warranties relating to the Collateral
Documents shall be required to be true immediately after the actions required to
be taken, or the conditions required to be satisfied, by this Section 13.17 have
been taken or satisfied (or were required to be taken or satisfied), it being
understood that any condition set forth in items 4 and 5 on Schedule VIII not
satisfied within the time period specified therefor on said Schedule shall
nevertheless be deemed to have been satisfied within such time period to the
extent "best efforts" or "commercially reasonable efforts" (as may be specified
on Schedule VIII for such item) were used by the Borrower or its relevant
Subsidiary to satisfy such condition. The acceptance of the benefits of the
Loans shall constitute a representation, warranty and covenant by the Borrower
to each of the Lenders that the actions and conditions required pursuant to this
Section 13.17 will be, or have been, taken or satisfied within the relevant time
periods referred to in this Section 13.17 and Schedule VIII and that, at such
time, all representations and warranties contained in this Credit Agreement and
the other Credit Documents shall then be true and correct without any
modification pursuant to this Section 13.17. The parties hereto acknowledge and
agree that the failure to take any of the actions or satisfy any of the
conditions required above or on Schedule VIII within the relevant time periods
required above or by said Schedule VIII shall give rise to an immediate Event of
Default pursuant to this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
Address: IASIS HEALTHCARE CORPORATION
IASIS Healthcare Corporation
104 Woodmont Boulevard
Nashville, TN 37205
By: /s/ Wayne B. Gower
--------------------------------
Attention: Frank Aaron Coyle Name: Wayne B. Gower
Telephone: 615-844-2747 Title: President & Chief
Facsimile: 615-846-3006 Executive Officer
Address: MORGAN GUARANTY TRUST COMPANY OF NEW
c/o J.P. Morgan Services, Inc. YORK, Individually and as
500 Stanton Christiana Road Administrative Agent
Newark, DE 19713
Attention: Renee Richmond By: /s/ Colleen B. Galle
Telephone: (302) 634-3316 --------------------------------
Facsimile: (302) 634-4300 Name: Colleen B. Galle
Title: Vice President
JP MORGAN SECURITIES, INC., as Co-Lead
Arranger
By: /s/ Steven Tulip
--------------------------------
Name: Steven Tulip
Title: Vice President
THE BANK OF NOVA SCOTIA, Individually,
as Syndication Agent and as Co-Lead
Arranger
By: /s/ Robert Gaviglio
--------------------------------
Name: Robert Gaviglio
Title: Senior Relationship Manager
143
PARIBAS, Individually and as
Documentation Agent
By: /s/ Glenn E. Mealey
----------------------------------
Name: Glenn E. Mealey
Title: Managing Director
By: /s/ Rosine K. Matthews
----------------------------------
Name: Rosine K. Matthews
Title: Vice President
144
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Henry J. Reukauf
------------------------------
Name: Henry J. Reukauf
Title: Vice President
145
FRANKLIN FLOATING RATE TRUST
By: /s/ Chauncey Lufkin
-----------------------------
Name: Chauncey Lufkin
Title: Vice President
146
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ John P. Crosby, Jr.
------------------------------
Name: John P. Crosby, Jr.
Title: Vice President