EXHIBIT 4.5
EXECUTION COPY
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PUBLISHED CUSIP NUMBER: 58404YAA3
REVOLVING CREDIT LOAN CUSIP NUMBER: 58404YAB1
TERM LOAN CUSIP NUMBER: 58404YAC9
CREDIT AGREEMENT
Dated as of July 7, 2004
among
MEDCATH CORPORATION,
as a Parent Guarantor,
MEDCATH HOLDINGS CORP.,
as the Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender
and L/C Issuer,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Syndication Agent,
and
The Other Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC,
and
WACHOVIA CAPITAL MARKETS, LLC
as
Co-Lead Arrangers
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TABLE OF CONTENTS
Section Page
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS................................................................................... 1
1.01 Defined Terms........................................................................................ 1
1.02 Other Interpretive Provisions....................................................................... 31
1.03 Accounting Terms.................................................................................... 32
1.04 UCC Terms........................................................................................... 33
1.05 Rounding............................................................................................ 33
1.06 Times of Day........................................................................................ 33
1.07 Letter of Credit Amounts............................................................................ 33
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS............................................................................ 33
2.01 Revolving Credit Loans.............................................................................. 33
2.02 Term Loan........................................................................................... 35
2.03 Conversions and Continuations of Revolving Credit Loans and Term Loan............................... 36
2.04 Letters of Credit................................................................................... 37
2.05 Swing Line Loans.................................................................................... 45
2.06 Prepayments......................................................................................... 48
2.07 Voluntary Termination or Reduction of Revolving Credit Commitments.................................. 51
2.08 Repayment of Loans.................................................................................. 51
2.09 Interest............................................................................................ 52
2.10 Fees................................................................................................ 53
2.11 Computation of Interest and Fees.................................................................... 54
2.12 Evidence of Debt.................................................................................... 54
2.13 Payments Generally; Administrative Agent's Clawback................................................. 55
2.14 Sharing of Payments by Lenders...................................................................... 56
2.15 Security............................................................................................ 57
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY.......................................................................... 57
3.01 Taxes............................................................................................... 57
3.02 Illegality.......................................................................................... 59
3.03 Inability to Determine Rates........................................................................ 59
3.04 Increased Costs..................................................................................... 60
3.05 Compensation for Losses............................................................................. 61
3.06 Mitigation Obligations; Replacement of Lenders...................................................... 62
3.07 Survival............................................................................................ 62
ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS........................................................................ 62
4.01 Conditions of Initial Credit Extension.............................................................. 62
4.02 Conditions to all Credit Extensions................................................................. 67
ARTICLE V. REPRESENTATIONS AND WARRANTIES.................................................................................... 68
5.01 Existence, Qualification and Power; Compliance with Laws............................................ 68
5.02 Authorization; No Contravention..................................................................... 68
5.03 Governmental Authorization; Other Consents.......................................................... 69
5.04 Binding Effect...................................................................................... 69
5.05 Financial Statements; No Material Adverse Effect.................................................... 69
5.06 Litigation.......................................................................................... 70
5.07 No Default.......................................................................................... 70
5.08 Ownership of Property; Liens........................................................................ 70
5.09 Environmental Compliance............................................................................ 70
5.10 Insurance........................................................................................... 71
5.11 Taxes............................................................................................... 71
5.12 ERISA Compliance.................................................................................... 71
5.13 Subsidiaries........................................................................................ 71
5.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act...................... 72
5.15 [Reserved].......................................................................................... 72
5.16 Disclosure.......................................................................................... 72
5.17 Compliance with Laws................................................................................ 73
5.18 Intellectual Property; Licenses, Etc................................................................ 73
5.19 Employee Relations.................................................................................. 73
5.20 Burdensome Provisions............................................................................... 73
5.21 Healthcare Matters.................................................................................. 74
5.23 Survival of Representations and Warranties, Etc..................................................... 75
ARTICLE VI. AFFIRMATIVE COVENANTS............................................................................................ 75
6.01 Financial Statements................................................................................ 75
6.02 Certificates; Other Information..................................................................... 76
6.03 Notices............................................................................................. 78
6.04 Filing of Tax Returns; Payment of Obligations....................................................... 78
6.05 Preservation of Existence, Etc...................................................................... 79
6.06 Maintenance of Properties........................................................................... 79
6.07 Maintenance of Insurance............................................................................ 79
6.08 Compliance with Laws................................................................................ 79
6.09 Environmental Laws.................................................................................. 80
6.10 Environmental Indemnity............................................................................. 80
6.11 Compliance with ERISA............................................................................... 80
6.12 Books and Records................................................................................... 81
6.13 Inspection Rights................................................................................... 81
6.14 Use of Proceeds..................................................................................... 81
6.15 Additional Subsidiaries............................................................................. 81
6.16 Intercompany Notes.................................................................................. 82
6.17 Maintenance of Healthcare Licenses, Etc............................................................. 83
6.18 Further Assurances.................................................................................. 83
ARTICLE VII. NEGATIVE COVENANTS.............................................................................................. 83
7.01 Liens............................................................................................... 83
7.02 Investments......................................................................................... 84
7.03 Indebtedness........................................................................................ 86
7.04 Fundamental Changes................................................................................. 89
7.05 Dispositions........................................................................................ 89
7.06 Restricted Payments................................................................................. 90
7.07 Limitations on Exchange and Issuance of Equity Interests............................................ 91
7.08 Change in Nature of Business........................................................................ 92
7.09 Accounting Changes; Organizational Documents; Permitted Intercompany
Notes and Permitted Intercompany Note Collateral Documents ......................................... 92
7.10 Transactions with Affiliates........................................................................ 92
7.11 Burdensome Agreements............................................................................... 92
7.12 Use of Proceeds..................................................................................... 93
7.13 Impairment of Security Interests.................................................................... 93
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7.14 Financial Covenants................................................................................. 93
7.15 Capital Expenditures................................................................................ 94
7.16 Amendments, Payments and Prepayments of Senior Unsecured Notes...................................... 95
ARTICLE VIII. GUARANTY OF PARENT GUARANTOR................................................................................... 95
8.01 Guaranty of Obligations............................................................................. 95
8.02 Nature of Guaranty.................................................................................. 95
8.03 Waivers............................................................................................. 96
8.04 Modification of Loan Documents, Etc................................................................. 97
8.05 Demand by Administrative Agent...................................................................... 98
8.06 Remedies............................................................................................ 99
8.07 Reinstatement....................................................................................... 99
8.08 Payments............................................................................................ 99
8.09 No Subrogation...................................................................................... 99
ARTICLE IX. EVENTS OF DEFAULT AND REMEDIES.................................................................................. 100
9.01 Events of Default.................................................................................. 100
9.02 Remedies Upon Event of Default..................................................................... 104
9.03 Application of Funds............................................................................... 104
ARTICLE X. ADMINISTRATIVE AGENT............................................................................................. 105
10.01 Appointment and Authority.......................................................................... 105
10.02 Rights as a Lender................................................................................. 106
10.03 Exculpatory Provisions............................................................................. 106
10.04 Reliance by Administrative Agent................................................................... 107
10.05 Delegation of Duties............................................................................... 107
10.06 Resignation of Administrative Agent................................................................ 107
10.07 Non-Reliance on Administrative Agent and Other Lenders............................................. 108
10.08 No Other Duties, Etc............................................................................... 109
10.09 Administrative Agent May File Proofs of Claim...................................................... 109
10.10 Collateral and Guaranty Matters.................................................................... 109
ARTICLE XI. MISCELLANEOUS................................................................................................... 110
11.01 Amendments, Etc.................................................................................... 110
11.02 Notices; Effectiveness; Electronic Communication................................................... 111
11.03 No Waiver; Cumulative Remedies..................................................................... 113
11.04 Expenses; Indemnity; Damage Waiver................................................................. 113
11.05 Payments Set Aside................................................................................. 115
11.06 Successors and Assigns............................................................................. 115
11.07 Treatment of Certain Information; Confidentiality.................................................. 119
11.08 Right of Setoff.................................................................................... 120
11.09 Interest Rate Limitation........................................................................... 121
11.10 Counterparts; Integration; Effectiveness........................................................... 121
11.11 Survival of Representations and Warranties......................................................... 121
11.12 Severability....................................................................................... 121
11.13 Replacement of Lenders............................................................................. 122
11.14 Governing Law; Jurisdiction; Etc................................................................... 122
11.15 Waiver of Jury Trial............................................................................... 123
11.16 USA PATRIOT Act Notice............................................................................. 124
11.17 Time of the Essence................................................................................ 124
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EXHIBITS
Form of
A Loan Notice
B Swing Line Loan Notice
C Note
D Compliance Certificate
E Assignment and Assumption
F Subsidiary Guaranty
G Subsidiary Collateral Agreement
H Opinion Matters
I Joinder Agreement
J Collateral Assignment
SCHEDULES
1.01(a) Existing Facilities
1.01(b) Operating Group Subsidiaries and Operating Group Hospital Entities
1.01(c) Development Group Subsidiaries and Development Group Hospital Entities
1.01(d) Other Joint Venture Subsidiaries
1.01(e) Existing Letters of Credit
5.01 Jurisdictions of Organization and Qualification
5.20 Burdensome Agreements
5.06 Litigation
5.13 Subsidiaries and Other Equity Investments
7.01 Existing Liens
7.02 Existing Investments
7.03 Existing Indebtedness
11.02 Administrative Agent's Office, Certain Addresses for Notices
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CREDIT AGREEMENT
This CREDIT AGREEMENT ("Agreement") is entered into as of July 2, 2004,
among MEDCATH CORPORATION, a Delaware corporation (the "Parent" or the "Parent
Guarantor"), MEDCATH HOLDINGS CORP., a Delaware corporation (the "Borrower"),
each lender from time to time party hereto (collectively, the "Lenders" and
individually, a "Lender"), and BANK OF AMERICA, N.A., as Administrative Agent,
Swing Line Lender and L/C Issuer.
The Borrower has requested that the Lenders provide a revolving credit
facility and a term loan facility, and the Lenders are willing to do so on the
terms and conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained,
the parties hereto covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS. As used in this Agreement, the following terms shall
have the meanings set forth below:
"Administrative Agent" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means the Administrative Agent's address
and, as appropriate, account as set forth on Schedule 11.02, or such other
address or account as the Administrative Agent may from time to time notify to
the Borrower and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Aggregate Commitments" means the Commitments of all the Lenders.
"Aggregate Credit Exposures" means, at any time, the sum of (a) the unused
portion of the Revolving Credit Commitment then in effect and (b) the total
Outstanding Amount of all Loans and L/C Obligations at such time.
"Aggregate Project Cost" means with respect to any Development Group
Hospital Entity, all costs and expenses required to develop, up-fit, open and
construct such new hospital facility (excluding costs and expenses attributable
to any equipment which is subject to any equipment
loan financing applicable thereto), which costs and expenses are detailed on the
budget prepared in connection with any financing for the construction of such
new Hospital Entity.
"Agreement" means this Credit Agreement, as amended, restated,
supplemented or otherwise modified from time to time.
"Applicable Percentage" means with respect to any Lender at any time, the
percentage (carried out to the ninth decimal place) of the Aggregate Commitments
represented by such Lender's Commitment at such time. If the commitment of each
Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit
Extensions have been terminated pursuant to Section 9.02 or if the Aggregate
Commitments have expired, then the Applicable Percentage of each Lender shall be
determined based on the Applicable Percentage of such Lender most recently in
effect, giving effect to any subsequent assignments.
"Applicable Rate" means, from time to time, the following percentages per
annum, based upon the Consolidated Senior Secured Leverage Ratio as set forth in
the most recent Compliance Certificate received by the Administrative Agent
pursuant to Section 6.02(b):
APPLICABLE RATE
- --------------------------------------------------------------------------------------------------------------------------------
EURODOLLAR RATE LOANS BASE RATE LOANS
---------------------------- -----------------
REVOLVING
CREDIT LOANS REVOLVING
PRICING CONSOLIDATED SENIOR COMMITMENT AND LETTER OF TERM CREDIT TERM
LEVEL SECURED LEVERAGE RATIO FEE CREDIT FEE LOAN LOANS LOAN
- ---------- --------------------------------- ----------- ------------- ------ --------- -----
3 Greater than 2.5 to 1.0 0.500% 3.50% 3.00% 2.00% 1.75%
Less than or equal to 2.5 to 1.0,
2 but greater than 1.5 to 1.0 0.500% 3.00% 3.00% 1.50% 1.75%
1 Less than or equal to 1.5 to 1.0 0.500% 2.50% 3.00% 1.00% 1.75%
Any increase or decrease in the Applicable Rate resulting from a change in
the Consolidated Senior Secured Leverage Ratio shall become effective as of the
first Business Day immediately following the date a Compliance Certificate is
delivered pursuant to Section 6.02(b); provided, however, that if a Compliance
Certificate is not delivered when due in accordance with such Section, then
Pricing Level 3 shall apply as of the first Business Day after the date on which
such Compliance Certificate was required to have been delivered. The Applicable
Rate in effect from the Closing Date through the first Business Day following
receipt by the Administrative Agent of a Compliance Certificate with respect to
the fiscal quarter ending September 30, 2004 shall be determined based upon
Pricing Level 2.
2
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) any entity or an Affiliate of an
entity that administers or manages a Lender.
"Assignment and Assumption" means an assignment and assumption entered
into by a Lender and an Eligible Assignee (with the consent of any party whose
consent is required by Section 11.06(b), and accepted by the Administrative
Agent, in substantially the form of Exhibit E or any other form approved by the
Administrative Agent.
"Attributable Indebtedness" means, on any date, in respect of any capital
lease of any Person, the capitalized amount thereof that would appear as debt on
a balance sheet of such Person prepared as of such date in accordance with GAAP.
"Audited Financial Statements" means the audited financial statements
required to be delivered pursuant to Section 4.01(f)(ii).
"Availability Period" means the period from and including the Closing Date
to the earliest of (a) the Revolving Credit Maturity Date, (b) the date of
termination of the Revolving Credit Commitments pursuant to Section 2.07, and
(c) the date of termination of the commitment of each Lender to make Revolving
Credit Loans and of the obligation of the L/C Issuer to make L/C Credit
Extensions pursuant to Section 9.02.
"Available Cash" means, as of any date of determination, the aggregate
amount of all cash and cash equivalents of the Loan Parties which such cash or
cash equivalents are readily marketable and available for the immediate payment
or repayment of Indebtedness as of such date of determination.
"Bank of America" means Bank of America, N.A., and its successors.
"BAS" means Banc of America Securities LLC, in its capacity as a co-lead
arranger.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." The "prime rate" is a rate set by Bank of America
based upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
"Base Rate Loan" means a Loan that bears interest based on the Base Rate.
"Borrower" has the meaning specified in the introductory paragraph hereto.
"Borrowing" means a Revolving Credit Borrowing, a Swing Line Borrowing or
a Term Loan Borrowing, as the context may require.
3
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Administrative Agent's Office is located and, if
such day relates to any Eurodollar Rate Loan, means any such day on which
dealings in Dollar deposits are conducted by and between banks in the London
interbank eurodollar market.
"Capital Asset" means, with respect to the Consolidated Parties, any
asset that should, in accordance with GAAP, be classified and accounted for as a
capital asset on a consolidated balance sheet of any such Consolidated Party.
"Capital Expenditures" means with respect to the Consolidated Parties for
any period, the aggregate cost of all Capital Assets acquired by the
Consolidated Parties during such period, as determined in accordance with GAAP
minus, to the extent included in the foregoing, expenditures made by the
Consolidated Parties during such period (a) with the proceeds of insurance or a
condemnation claim to restore or replace property or assets to the condition of
such property or assets immediately prior to any damage, loss, destruction or
condemnation of the same, (b) in connection with any acquisition of Capital
Assets permitted pursuant to Section 7.02(h), or Section 7.02(i), (c) with the
proceeds of indemnification with respect to a loss of Capital Assets, or (d)
with respect to payments on capital leases.
"Cash Collateralize" has the meaning specified in Section 2.04(g).
"Change of Control" means, with respect to any Person, an event or series
of events by which:
(a) any "person", "entity" or "group" (within the meaning of Section
13(d) or 14(d) of the Securities Exchange Act of 1934, as amended), other
than the Principals and their Related Principal Parties, shall at any time
have acquired direct or indirect beneficial ownership of thirty percent
(30%) or more of the outstanding Voting Stock of the Parent;
(b) the Parent shall at any time cease to own, in the aggregate,
directly or indirectly, beneficially and of record, at least one hundred
percent (100%) of the outstanding ownership interests of the Borrower;
(c) except pursuant to a transaction otherwise permitted under this
Agreement, the Borrower shall at any time cease to own in the aggregate,
directly or indirectly, beneficially and of record, at least the same
percentage ownership of the outstanding Equity Interests of each
Subsidiary Guarantor owned thereby on the date any such Subsidiary becomes
a Subsidiary Guarantor;
(d) at any time Continuing Directors shall not constitute a majority
of the Board of Directors of the Parent; or
4
(e) any "Change of Control" under the Senior Unsecured Notes or any
document executed in connection therewith (including, without limitation,
the Senior Unsecured Note Indenture and the other Senior Unsecured Note
Documents).
"Change in Law" means the occurrence, after the date of this Agreement, of
any of the following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or treaty or
in the administration, interpretation or application thereof by any Governmental
Authority or (c) the making or issuance of any request, guideline or directive
(whether or not having the force of law) by any Governmental Authority.
"Closing Date" means the first date all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 4.01 (or, in the
case of Section 4.01(d) or 4.01(e), waived by the Person entitled to receive the
applicable payment).
"CMS" means the Centers for Medicare and Medicaid Services of the United
States Department of Health and Human Services and any successor agency.
"Code" means the Internal Revenue Code of 1986.
"Collateral" means the collateral security for all or a portion of the
Obligations pledged or granted pursuant to the Security Documents.
"Collateral Agreement" means that certain Collateral Agreement dated as of
the date hereof, by each of the Loan Parties in favor of the Administrative
Agent on behalf of the Lenders, substantially in the form of Exhibit G.
"Collateral Assignment" means each collateral assignment executed and
delivered by each Permitted Intercompany Lender pursuant to the terms of this
Agreement for each Permitted Intercompany Note and all collateral security
therefor, in each case substantially in the form of Exhibit J.
"Commitment" means, as to each Lender, the sum of such Lender's Revolving
Credit Commitment and Term Loan Commitment, in an aggregate principal amount at
any one time outstanding not to exceed the applicable amounts for such Lender
set forth in the Register, as such amount may be adjusted from time to time in
accordance with this Agreement.
"Compliance Certificate" means a certificate substantially in the form of
Exhibit D.
"Consolidated Adjusted EBITDAP" means, for any period, (a) (i)
Consolidated EBITDA for such period plus (ii) Pre-Opening Expenses for such
period in an amount not to exceed $10,000,000, minus (b) with respect to any
specific Joint Venture Entity included in the calculation of Consolidated
EBITDA, an amount equal to the amount by which (i) the minority interest expense
of such Joint Venture Entity exceeds (ii) the sum of (A) the outstanding amount
of the Permitted Intercompany Notes from such Joint Venture Entity and (B) the
outstanding amount of other Indebtedness of such Joint Venture Entity to the
extent Guaranteed by any Loan Party.
5
"Consolidated Adjusted EBITDARP" means, for any period, (a) (i)
Consolidated EBITDAR for such period plus (ii) Pre-Opening Expenses for such
period in an amount not to exceed $10,000,000, minus (b) with respect to any
specific Joint Venture Entity included in the calculation of Consolidated
EBITDA, an amount equal to the amount by which (i) the minority interest expense
of such Joint Venture Entity exceeds (ii) the sum of (A) the outstanding amount
of the Permitted Intercompany Notes from such Joint Venture Entity and (B) the
outstanding amount of other Indebtedness of such Joint Venture Entity to the
extent Guaranteed by any Loan Party.
"Consolidated EBITDA" means, for any period, for the Consolidated Parties
on a consolidated basis, an amount equal to Consolidated Net Income of the
Consolidated Parties (excluding (1) each Development Group Entity in existence
as of the Closing Date that has not subsequently been redesignated as an
"Operating Group Hospital Entity" or "Operating Group Subsidiary" pursuant to
Section 6.15(b) and (2) each Excluded Credit Party) for such period plus (a) the
following to the extent deducted in calculating such Consolidated Net Income:
(i) Consolidated Interest Charges of the Consolidated Parties for such period,
(ii) the provision for federal, state, local and foreign income taxes payable by
the Consolidated Parties for such period, (iii) the amount of depreciation and
amortization expense deducted by the Consolidated Parties in determining such
Consolidated Net Income, (iv) non-cash charges for such period solely with
respect to the impairment of goodwill in accordance with GAAP and any other
non-cash charges required under FASB 142, (v) non-cash impairment charges for
such period solely with respect to management contracts of MedCath Diagnostics
LLC and its Subsidiaries and MedCath Cardiology Consulting & Management, Inc.
and its Subsidiaries, (vi) non-cash impairment charges for such period solely
with respect to loan acquisition costs, (vii) expenses related to the
transactions contemplated under this Agreement (including, without limitation,
any charges resulting from the acceleration of deferred financing expenses
and/or prepayment premiums relating to any Indebtedness being refinanced on the
Closing Date), (viii) other expenses of the Consolidated Parties reducing such
Consolidated Net Income which do not represent a cash item in such period or any
future period, and (ix) minority interest expense of included Joint Venture
Entities and minus (b) all one-time non-cash items of the Consolidated Parties
increasing Consolidated Net Income for such period.
"Consolidated EBITDAR" means, for any period, (a) Consolidated EBITDA for
such period plus (b) all Lease Expense of the Consolidated Parties for such
period on a consolidated basis.
"Consolidated Fixed Charge Coverage Ratio" means, as of any date of
determination, the ratio of (a) the sum of (i) Consolidated Adjusted EBITDARP
for the period of four consecutive fiscal quarters ending on or immediately
prior to such date less (ii) federal, state, local and foreign income taxes paid
by the Consolidated Parties in cash for such period of four consecutive fiscal
quarters less (iii) Consolidated Maintenance Capital Expenditures, in each case
measured for such period of four consecutive fiscal quarters, to (b)
Consolidated Fixed Charges for such period of four consecutive fiscal quarters;
provided that (A) for the fiscal quarter ending September 30, 2004, Consolidated
Fixed Charges for the period described in the foregoing clause (b) shall be
equal to actual Consolidated Fixed Charges for such fiscal quarter times four
6
(4), (B) for the fiscal quarter ending December 31, 2004, Consolidated Fixed
Charges for the period described in the foregoing clause (b) shall be equal to
actual Consolidated Fixed Charges for such two (2) consecutive fiscal quarters
ending on such date times two (2), and (C) for the fiscal quarter ending March
31, 2005, Consolidated Fixed Charges for the period described in the foregoing
clause (b) shall be equal to actual Consolidated Fixed Charges for such three
(3) consecutive fiscal quarters ending on such date times four-thirds (4/3).
"Consolidated Fixed Charges" means, for any period, the sum of the
following determined on a consolidated basis, without duplication, for the
Consolidated Parties in accordance with GAAP: (a) Consolidated Interest Charges
paid or payable in cash for such period plus (b) all Permanent Principal
Payments of the Consolidated Parties for such period on a consolidated basis
(other than intercompany Indebtedness, including, without limitation,
Indebtedness evidenced by Permitted Intercompany Notes) plus (c) all Lease
Expense of the Consolidated Parties for such period on a consolidated basis plus
(d) all dividends or distributions (including stock repurchases) made by the
Consolidated Parties during such period on a consolidated basis to any Person
that is a shareholder of the Parent.
"Consolidated Interest Charges" means, for any period, for the
Consolidated Parties on a consolidated basis, without duplication, the sum of
(a) all interest, premium payments, debt discount, fees, charges and related
expenses of the Consolidated Parties with respect to such period in connection
with borrowed money (including capitalized interest) or in connection with the
deferred purchase price of assets, in each case to the extent treated as
interest in accordance with GAAP, (b) the portion of rent expense of the
Consolidated Parties with respect to such period under capital leases that is
treated as interest in accordance with GAAP and (c) the amount of net settlement
obligations of the Consolidated Parties with respect to such period under any
Swap Contract respecting interest rate management and relating to the spread
between the fixed interest rate under such Swap Contract and the floating
interest rate hedged thereby.
"Consolidated Maintenance Capital Expenditures" means, for any four (4)
consecutive fiscal quarter period, an amount equal to $12,500,000; provided that
such amount shall be increased by $2,500,000 on September 30, 2005 and each
anniversary of such date occurring thereafter.
"Consolidated Net Income" means, for any period, for Consolidated Parties
on a consolidated basis calculated in accordance with GAAP, the net income of
the Consolidated Parties (excluding extraordinary gains but including
extraordinary losses) for that period; provided that the net income (or loss) of
any Person accrued prior to the date it becomes an Consolidated Party or is
merged into or consolidated with such Consolidated Party or that Person's assets
are acquired by an Consolidated Party shall be included on a pro forma,
historical basis (after giving effect to any adjustments to the net income (or
loss) of such newly acquired Person.
"Consolidated Parties" means the collective reference to the Parent and
its Subsidiaries and any other Person required by GAAP to be consolidated for
financial purposes with the Parent.
7
"Consolidated Senior Secured Indebtedness" means, as of any date of
determination, for the Consolidated Parties on a consolidated basis, the sum of
all secured Indebtedness (excluding any undrawn revolving credit commitments) of
such Persons.
"Consolidated Senior Secured Leverage Ratio" means, as of any date of
determination, the ratio of (a) (i) Consolidated Senior Secured Indebtedness as
of such date minus (ii) Available Cash in excess of Ten Million Dollars
($10,000,000) as of such date to (b) Consolidated Adjusted EBITDAP for the
period of the four consecutive fiscal quarters most recently ended for which the
Parent has delivered financial statements pursuant to Section 6.01(a) or (b).
"Consolidated Tangible Net Worth" means, as of any date of determination,
for the Consolidated Parties, Consolidated Total Equity on that date minus all
Intangible Assets of the Consolidated Parties on that date.
"Consolidated Total Equity" means, with respect to all Consolidated
Parties, as of any date of determination, the stockholder's equity calculated in
accordance with GAAP and without duplication.
"Consolidated Total Indebtedness" means, of any date of determination, all
Indebtedness (excluding any undrawn revolving credit commitments) of the
Consolidated Parties on a consolidated basis, as of such date.
"Consolidated Total Leverage Ratio" means, as of any date of
determination, the ratio of (a) (i) Consolidated Total Indebtedness as of such
date (excluding the Sioux Falls Guarantee; so long as no Default, Event of
Default or default under any Indebtedness of Heart Hospital of South Dakota LLC
has occurred and is continuing as of such date of determination) minus (ii)
Available Cash in excess of Ten Million Dollars ($10,000,000) as of such date to
(b) Consolidated Adjusted EBITDAP for the period of the four consecutive fiscal
quarters most recently ended for which the Parent has delivered financial
statements pursuant to Section 6.01(a) or (b).
"Continuing Directors" means, as of any date, any individual (a) who is a
member of the Board of Directors of the Parent on the Closing Date, (b) who, as
at such date, has been a member of such Board of Directors for at least the 12
preceding months (or, for the period comprising the first 12 months after the
Closing Date, has been a member of such Board of Directors at least since the
Closing Date), (c) who has been nominated to be a member of such Board of
Directors, directly or indirectly, by Kohlberg Kravis Roberts & Co., L.P. or
Welsh, Carson, Anderson & Stowe or Persons nominated by Kohlberg Kravis Roberts
& Co., L.P. or Welsh, Carson, Anderson & Stowe or (d) has been nominated to be a
member of such Board of Directors by a majority of the other Continuing
Directors then in office.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
8
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Credit Extension" means each of the following: (a) a Borrowing and (b) an
L/C Credit Extension.
"Credit Parties" means the collective reference to the Borrower, the
Guarantors and the Joint Venture Entities.
"Credit Party Breach" has the meaning specified in Section 9.01(b)(ii).
"Debtor Relief Laws" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Default" means any event or condition that constitutes an Event of
Default or that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
"Default Rate" means (a) when used with respect to Obligations other than
Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the
Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2% per annum;
provided, however, that with respect to a Eurodollar Rate Loan, the Default Rate
shall be an interest rate equal to the interest rate (including any Applicable
Rate) otherwise applicable to such Loan plus 2% per annum, and (b) when used
with respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus
2% per annum.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Revolving Credit Loans, the Term Loan, participations in L/C
Obligations or participations in Swing Line Loans required to be funded by it
hereunder within one Business Day of the date required to be funded by it
hereunder, (b) has otherwise failed to pay over to the Administrative Agent or
any other Lender any other amount required to be paid by it hereunder within one
Business Day of the date when due, unless the subject of a good faith dispute,
or (c) has been deemed insolvent or become the subject of a bankruptcy or
insolvency proceeding.
"Development Group Entities" means the collective reference to the
Development Group Subsidiaries and the Development Group Hospital Entities.
"Development Group Hospital Entities" means any business entity (a) formed
for the purpose of owning, operating or managing (i) a hospital and related
facilities or (ii) diagnostic facilities, and (b) at least fifty percent (50%)
of the Equity Interests of which is owned or beneficially controlled, either
directly or indirectly, by any Development Group Subsidiary. The Development
Group Hospital Entities are set forth on Schedule 1.01(c).
9
"Development Group Subsidiaries" means each existing wholly-owned
Subsidiary of the Parent which is designated by the Borrower on the Closing Date
as a Development Group Subsidiary. The Development Group Subsidiaries as of the
Closing Date are set forth in Schedule 1.01(c).
"Disposition" or "Dispose" means the sale, transfer, license, lease or
other disposition (including any sale and leaseback transaction) of any property
by any Person, including any sale, assignment, transfer or other disposal, with
or without recourse, of any notes or accounts receivable or any rights and
claims associated therewith and the issuance of Equity Interests by any of the
Parent's Subsidiaries or the sale by the Parent or any Subsidiary thereof of
Equity Interests in any of its Subsidiaries (other than directors' qualifying
shares and shares to be issued to foreign nationals under applicable law).
"Disposition Proceeds" has the meaning specified in Section 2.06(e).
"Dollar" and "$" mean lawful money of the United States.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender; (c)
an Approved Fund; and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent, (ii) in the case of any assignment of
the Revolving Credit Commitment, the L/C Issuer and the Swing Line Lender, and
(iii) unless an Event of Default has occurred and is continuing, the Borrower
(each such approval not to be unreasonably withheld or delayed); provided that
notwithstanding the foregoing, "Eligible Assignee" shall not include the
Borrower or any of the Borrower's Affiliates or Subsidiaries.
"Environmental Laws" means any and all Federal, state, local, and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including those related to
hazardous substances or wastes, air emissions and discharges to waste or public
systems.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower, any other Credit Party or any of
their respective Subsidiaries directly or indirectly resulting from or based
upon (a) violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"Equity Interests" means, with respect to any Person, all of the shares of
capital stock of (or other ownership or profit interests in) such Person, all of
the warrants, options or other rights for the purchase or acquisition from such
Person of shares of capital stock of (or other ownership or profit interests in)
such Person, all of the securities convertible into or exchangeable for shares
10
of capital stock of (or other ownership or profit interests in) such Person or
warrants, rights or options for the purchase or acquisition from such Person of
such shares (or such other interests), and all of the other ownership or profit
interests in such Person (including partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares, warrants,
options, rights, or other interests are outstanding on any date of
determination.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with any Credit Party within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by any Credit Party or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by any Credit Party or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon any Credit
Party or any ERISA Affiliate.
"Eurodollar Base Rate" has the meaning set forth in the definition of
Eurodollar Rate.
"Eurodollar Rate" means for any Interest Period with respect to any
Eurodollar Rate Loan, a rate per annum determined by the Administrative Agent
pursuant to the following formula:
Eurodollar Base Rate
Eurodollar Rate = ------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Base Rate" means, for such Interest Period:
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page of
the Telerate screen (or any successor thereto) that displays an average
British Bankers Association Interest Settlement Rate for deposits in
Dollars (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period, determined as of approximately
11
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period, or
(b) if the rate referenced in the preceding clause (a) does not
appear on such page or service or such page or service shall not be
available, the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate on such other page or other
service that displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on the first day of
such Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period, or
(c) if the rates referenced in the preceding clauses (a) and (b) are
not available, the rate per annum determined by the Administrative Agent
as the rate of interest at which deposits in Dollars for delivery on the
first day of such Interest Period in same day funds in the approximate
amount of the Eurodollar Rate Loan being made, continued or converted by
Bank of America and with a term equivalent to such Interest Period would
be offered by Bank of America's London Branch to major banks in the London
interbank eurodollar market at their request at approximately 4:00 p.m.
(London time) two Business Days prior to the first day of such Interest
Period.
"Eurodollar Rate Loan" means a Loan that bears interest at a rate based on
the Eurodollar Rate.
"Eurodollar Reserve Percentage" means, for any day during any Interest
Period, the reserve percentage (expressed as a decimal, carried out to five
decimal places) in effect on such day, whether or not applicable to any Lender,
under regulations issued from time to time by the FRB for determining the
maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities"). The Eurodollar Rate for each
outstanding Eurodollar Rate Loan shall be adjusted automatically as of the
effective date of any change in the Eurodollar Reserve Percentage.
"Event of Default" has the meaning specified in Section 9.01.
"Excess Cash Flow" means, for any period of determination, the sum of,
without duplication, (a) Consolidated EBITDA for such period (including, for
purposes of this definition only, Consolidated EBITDA of all Excluded Credit
Parties), minus (b) income taxes (to the extent such taxes are paid in cash) and
Consolidated Interest Charges, in each case, to the extent deducted in the
determination of Consolidated Net Income for such period, minus (c) all
Permanent Principal Payments (including, for purposes of the definition of
"Excess Cash Flow" only and notwithstanding the definition of Permanent
Principal Payments to the contrary, all optional prepayments as well as
scheduled payments) made in respect of Indebtedness (other than intercompany
Indebtedness, including, without limitation, Indebtedness evidenced by Permitted
Intercompany Notes) during such period (but excluding (subject to the following
clause (d)) mandatory prepayments required to be made pursuant to Section
2.06(e)), minus (d) the amount of any gain resulting from any Disposition
included in Consolidated EBITDA to the extent of any
12
mandatory prepayment required to be made pursuant to Section 2.06(e) as a result
of such Disposition, minus (e) all Capital Expenditures made during such period
(excluding Capital Expenditures made with the proceeds of Indebtedness), minus
(e) any Restricted Payments permitted pursuant to Section 7.06(a), Section
7.06(d)(v), Section 7.06(e), or Section 7.06(f) to any Person that is not a Loan
Party, minus (f) the cash portion of any Investment permitted pursuant to
Section 7.02 in any Person that is not a Loan Party.
"Excluded Credit Party" means any Credit Party designated by the Parent in
writing to the Administrative Agent as an Excluded Credit Party pursuant to
Section 9.01(b)(ii); provided that (i) that no Credit Party may be so designated
if, at the time of such designation, more than three separate Credit Parties
would (A) have outstanding Credit Party Covenant Defaults (as determined in
accordance with Section 9.01(b)(ii)) or (B) be designated as Excluded Credit
Parties, and (ii) prior to such designation, the Parent shall deliver to the
Administrative Agent a duly completed Compliance Certificate signed by a
Responsible Officer of each of the Parent and the Borrower demonstrating, to the
satisfaction of the Administrative Agent, compliance, by the Parent and its
Subsidiaries, on a pro forma basis after giving pro forma effect to such
designation, with each of the covenants set forth in Section 7.14(a), Section
7.14(b), and Section 7.14(c) as in effect for the fiscal quarter most recently
ended prior to such designation and, to the extent the applicable covenant level
will be reduced for the next succeeding fiscal quarter end, as to be in effect
for such next succeeding fiscal quarter.
"Existing Facilities" means the collective reference to the credit
facilities described on Schedule 1.01(a).
"Existing Letters of Credit" means the collective reference to the
existing letters of credit identified on Schedule 1.01(e).
"Existing Swap Contracts" means the collective reference to the Swap
Contracts in existence on the Closing Date and designated as "Existing Swap
Contracts" on Schedule 7.03.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, the L/C Issuer or any other recipient of any payment to be made by or on
account of any obligation of the Credit Parties hereunder, (a) taxes imposed on
or measured by its overall net income (however denominated), and franchise taxes
imposed on it (in lieu of net income taxes), by the jurisdiction (or any
political subdivision thereof) under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable Lending Office is located, (b) any branch
profits taxes imposed by the United States or any similar tax imposed by any
other jurisdiction in which any Loan Party is located and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 11.13), any withholding tax that is imposed on amounts payable to
such Foreign Lender at the time such Foreign Lender becomes a party hereto (or
designates a new Lending Office) or is attributable to such Foreign Lender's
failure or inability (other than as a result of a Change in Law) to comply with
Section 3.01(e), except to the extent that such Foreign Lender (or its assignor,
if any) was entitled, at the time of designation of a new Lending Office (or
assignment), to receive additional amounts from any Loan Party with respect to
such withholding tax pursuant to Section 3.01(a).
13
"Federal Funds Rate" means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of
America on such day on such transactions as determined by the Administrative
Agent.
"Fee Letter" means the fee letter agreement, dated June 28, 2004, among
the Parent, the Administrative Agent and BAS.
"Fiscal Quarter" means each of the four periods of three consecutive
calendar months which make up each Fiscal Year.
"Fiscal Year" means the Parent's Fiscal Year, which is the period of
twelve consecutive calendar months ending on September 30.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is resident for tax purposes.
For purposes of this definition, the United States, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"GAAP" means generally accepted accounting principles in the United States
set forth in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"Governmental Authority" means the government of the United States or any
other nation, or of any political subdivision thereof, whether state or local,
and any agency, authority,
14
instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government (including any supra-national bodies
such as the European Union or the European Central Bank).
"Granting Lender" has the meaning specified in Section 11.06(h).
"Guarantee" means, as to any Person, any (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person (or any right, contingent or otherwise, of
any holder of such Indebtedness to obtain any such Lien). The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable
amount of the related primary obligation, or portion thereof, in respect of
which such Guarantee is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by the
guaranteeing Person in good faith. The term "Guarantee" as a verb has a
corresponding meaning.
"Guaranteed Obligations" has the meaning specified in Section 8.01.
"Guarantors" means the collective reference to the Parent Guarantor and
the Subsidiary Guarantors.
"Guaranty" means any of (a) the Parent Guaranty or (b) the Subsidiary
Guaranty.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"HHS" means the United States Department of Health and Human Services and
any successor thereto.
15
"Hospital" means any hospital owned and operated by any Credit Party which
is certified to participate in Medicare programs and Medicaid programs (as
applicable).
"Hospital Entities" means the collective reference to the Operating Group
Hospital Entities and the Development Group Hospital Entities.
"Immaterial Subsidiaries" means, as of any date of determination pursuant
to Section 9.01(f), Section 9.01(g), or Section 9.01(h), with respect to any
Subsidiary or Subsidiaries to be excluded from any such Section, (a) for any
period of four (4) consecutive fiscal quarters, ending on or immediately prior
to such date, any such Subsidiary or Subsidiaries of the Parent with (i)
Consolidated EBITDA of less than five percent (5%) of the Consolidated EBITDA of
the Parent and its Subsidiaries for such period, or (ii) sales of less than five
percent (5%) of the aggregate sales of the Parent and its Subsidiaries for such
period, or (b) any such Subsidiary or Subsidiaries of the Parent owning assets
with a book value of less than five percent (5%) of the aggregate book value of
all assets owned by the Parent and its Subsidiaries.
"Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;
(b) all direct or contingent obligations of such Person arising
under letters of credit (including standby and commercial), bankers'
acceptances, bank guaranties, surety bonds and similar instruments
(excluding any cash management agreements between any Loan Party and any
other Loan Party, Joint Venture Entity or Joint Venture Investment);
(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred purchase
price of property or services (other than trade accounts payable in the
ordinary course of business and, in each case, not past due after the date
on which such trade account payable was created for more than (i) 120 days
if such date of determination is within twelve (12) months of the Closing
Date and (ii) 90 days thereafter);
(e) indebtedness (excluding prepaid interest thereon) secured by a
Lien on property owned or being purchased by such Person (including
indebtedness arising under conditional sales or other title retention
agreements), whether or not such indebtedness shall have been assumed by
such Person or is limited in recourse;
(f) all capital leases;
(g) all obligations of such Person to purchase, redeem, retire,
defease or otherwise make any payment in respect of any Equity Interest in
such Person or any other
16
Person, valued, in the case of a redeemable preferred interest, at the
greater of its voluntary or involuntary liquidation preference plus
accrued and unpaid dividends; and
(h) all Guarantees of such Person in respect of any of the
foregoing.
For all purposes hereof, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person. The amount of any net obligation under any
Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date. The amount of any capital lease as of any date shall be
deemed to be the amount of Attributable Indebtedness in respect thereof as of
such date.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitees" has the meaning specified in Section 11.04(b).
"Intangible Assets" means assets that are considered to be intangible
assets under GAAP, including customer lists, goodwill, computer software,
copyrights, trade names, trademarks, patents, franchises, licenses, unamortized
deferred charges, unamortized debt discount and capitalized research and
development costs.
"Interest Payment Date" means, (a) as to any Loan other than a Base Rate
Loan, the last day of each Interest Period applicable to such Loan and the
Revolving Credit Maturity Date or Term Loan Maturity Date, as applicable;
provided, however, that if any Interest Period for a Eurodollar Rate Loan
exceeds three months, the respective dates that fall every three months after
the beginning of such Interest Period shall also be Interest Payment Dates; and
(b) as to any Base Rate Loan (including a Swing Line Loan), the last Business
Day of each March, June, September and December and the Revolving Credit
Maturity Date or Term Loan Maturity Date, as applicable.
"Interest Period" means, as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to or
continued as a Eurodollar Rate Loan and ending on the date one, two, three or
six months thereafter, as selected by the Borrower in its Loan Notice; provided
that:
(i) any Interest Period that would otherwise end on a day that is
not a Business Day shall be extended to the next succeeding Business Day
unless such Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period; and
17
(iii) no Interest Period shall extend beyond the Revolving Credit
Maturity Date or the Term Loan Maturity Date, as applicable.
"Investment" means, as to any Person, any direct or indirect acquisition
or investment by such Person, whether by means of (a) the purchase or other
acquisition of capital stock or other securities of another Person, (b) a loan,
advance or capital contribution to, Guarantee or assumption of debt of, or
purchase or other acquisition of any other debt or equity participation or
interest in, another Person, including any partnership or joint venture interest
in such other Person and any arrangement pursuant to which the investor
Guarantees Indebtedness of such other Person, or (c) the purchase or other
acquisition (in one transaction or a series of transactions) of assets of
another Person that constitute a business unit.
If any Loan Party sells or otherwise disposes of any Equity Interest of
any Credit Party such that, immediately after giving effect to any such sale or
disposition, such Person (a) is no longer a Credit Party and (b) if such Person
was a Subsidiary Guarantor immediately prior to such sale or disposition, is no
longer a Subsidiary Guarantor, the Borrower shall be deemed to have made an
Investment on the date of such sale or disposition equal to the fair market
value of: (i) if such Person was formed prior to the Closing Date, any
Investments in the Equity Interests of such Person or (ii) if such Person was
formed on or after the Closing Date, any Investments in such Person, in either
case not sold or disposed of by such Loan Party. The acquisition by the Parent
or any Credit Party of a Person that holds an Investment in a third party shall
be deemed to be an Investment by the Parent or such Credit Party in such third
party in an amount equal to the fair market value of the Investment held by the
acquired Person in such third party.
For purposes of covenant compliance, unless otherwise specified herein,
the amount of any Investment shall be the amount actually invested, without
adjustment for subsequent increases or decreases in the value of such
Investment.
"IP Rights" has the meaning specified in Section 5.18.
"IRS" means the United States Internal Revenue Service.
"ISP" means, with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time of
issuance).
"Issuer Documents" means with respect to any Letter of Credit, the Letter
Credit Application, and any other document, agreement and instrument entered
into by the L/C Issuer and the Borrower (or any Subsidiary) or in favor the L/C
Issuer and relating to any such Letter of Credit.
"Joinder Agreement" means each joinder agreement executed in favor of the
Administrative Agent, for the ratable benefit of itself and the Lenders,
pursuant to requirements of Section 6.15 substantially in the form of Exhibit I.
18
"Joint Venture Entities" means the collective reference to (a) all
Hospital Entities, and (b) all Joint Venture Subsidiaries.
"Joint Venture Investment" means any business entity (that is not a Joint
Venture Entity) (a) formed for the purpose of owning, operating or managing
assets and operations in a line of business permitted by this Agreement and (b)
which (i) is Controlled by a Loan Party, or (ii) is party to (X) a management
agreement with a Loan Party entered into on terms and conditions substantially
consistent with past practices for similar situations or (Y) a management
agreement, limited liability company operating agreement, limited or general
partnership agreement or shareholders agreement that provides a Loan Party with
material involvement in the business and financial affairs of such business
entity.
"Joint Venture Subsidiary" means any business entity (that is not an
Operating Group Hospital Entity or a Development Group Hospital Entity) (a)
formed for the purpose of owning, operating or managing assets and operations in
a line of business permitted by this Agreement, and (b) at least fifty percent
(50%) of the Equity Interests of which is owned or beneficially controlled,
either directly or indirectly, by a Loan Party. The Joint Venture Subsidiaries
as of the Closing Date are set forth on Schedule 1.01(d) (as the same my be
modified from time to time pursuant to Section 6.15).
"Laws" means, collectively, all international, foreign, Federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"L/C Advance" means, with respect to each Lender, such Lender's funding of
its participation in any L/C Borrowing in accordance with its Revolving Credit
Commitment Percentage.
"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when made
or refinanced as a Revolving Credit Borrowing.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the increase of the
amount thereof.
"L/C Issuer" means Bank of America in its capacity as issuer of Letters of
Credit hereunder, or any successor issuer of Letters of Credit hereunder.
"L/C Obligations" means, as at any date of determination, the aggregate
amount available to be drawn under all outstanding Letters of Credit plus the
aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For
purposes of computing the amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in
19
accordance with Section 1.07. For all purposes of this Agreement, if on any date
of determination a Letter of Credit has expired by its terms but any amount may
still be drawn thereunder by reason of this operation of Rule 3.14 of the ISP,
such Letter of Credit shall be deemed to be "outstanding" in the amount so
remaining available to be drawn.
"Lease Expense" means, with respect to any Person for any period, all
obligations of such Person for payments under operating leases of real or
personal property, whether such operating leases presently exist or are
hereafter entered into by such Person.
"Lender" has the meaning specified in the introductory paragraph hereto
and, as the context requires, includes the Swing Line Lender.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Borrower
and the Administrative Agent.
"Letter of Credit" means any standby letter of credit issued hereunder and
shall include the Existing Letters of Credit.
"Letter of Credit Application" means an application and agreement for the
issuance or amendment of a Letter of Credit in the form from time to time in use
by the L/C Issuer.
"Letter of Credit Expiration Date" means the day that is seven (7) days
prior to the Revolving Credit Maturity Date then in effect (or, if such day is
not a Business Day, the next preceding Business Day).
"Letter of Credit Fee" has the meaning specified in Section 2.04(i).
"Letter of Credit Sublimit" means an amount equal to the lesser of (a)
$25,000,000 and (b) the Revolving Credit Commitments. The Letter of Credit
Sublimit is part of, and not in addition to, the Revolving Credit Commitments.
"Lien" means any deed of trust, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other), charge,
or preference, priority or other security interest or preferential arrangement
in the nature of a security interest of any kind or nature whatsoever (including
any conditional sale or other title retention agreement, any easement, right of
way or other encumbrance on title to real property, and any financing lease
having substantially the same economic effect as any of the foregoing).
"Loans" means the collective reference to the Revolving Credit Loans, the
Term Loan and the Swing Line Loans and "Loan" means any of such Loans.
"Loan Documents" means this Agreement, each Note, each Security Document,
and the Fee Letter, each Guaranty and each other document, instrument,
certificate and agreement executed and delivered by any Loan Party or any
Affiliate thereof in connection with this Agreement or otherwise referred to
herein or contemplated hereby (excluding any Swap
20
Contract), all as may be amended, restated, supplemented or otherwise modified
from time to time.
"Loan Notice" means a notice of (a) a Revolving Credit Borrowing, (b) a
Term Loan Borrowing, (c) a conversion of Loans from one Type to the other, or
(d) a continuation of Eurodollar Rate Loans, pursuant to Section 2.03(a), which,
if in writing, shall be substantially in the form of Exhibit A.
"Loan Parties" means the collective reference to the Borrower and the
Guarantors.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, liabilities
(actual or contingent), condition (financial or otherwise) or prospects of the
Credit Parties taken as a whole; (b) a material impairment of the ability of any
Loan Party to perform its obligations under any Loan Document to which it is a
party; or (c) a material adverse effect upon the legality, validity, binding
effect or enforceability against any Loan Party of any Loan Document to which it
is a party.
"Medicaid Certification" means certification by CMS or a Governmental
Authority under contract with CMS that health care operations are in compliance
with all the conditions of participation set forth in the Medicaid Regulations.
"Medicaid Provider Agreement" means an agreement entered into between a
Governmental Authority or other such entity administering the Medicaid program
and a health care operation under which the health care operation agrees to
provide services for Medicaid beneficiaries in accordance with the terms of the
agreement and Medicaid Regulations.
"Medicaid Regulations" means collectively, (a) all federal statutes
(whether set forth in Title XIX of the Social Security Act or elsewhere)
affecting the medical assistance program established by Title XIX of the Social
Security Act and any statutes succeeding thereto; (b) all applicable provisions
of all federal rules, regulations, manuals and orders of all Governmental
Authorities promulgated pursuant to or in connection with the statutes described
in clause (a) above and all federal, administrative, reimbursement and other
guidelines of all Governmental Authorities issued or promulgated pursuant to or
in connection with the statutes described in clause (a) above; (c) all state
statutes and plans for medical assistance enacted in connection with the
statutes and provisions described in clauses (a) and (b) above; and (d) all
applicable provisions of all rules, regulations, manuals and orders of all
Governmental Authorities promulgated pursuant to or in connection with the
statutes described in clause (c) above and all state administrative,
reimbursement and other guidelines of all Governmental Authorities issue or
promulgated pursuant to or in connection with the statutes described in clause
(b) above, in each case as may be amended, supplemented or otherwise modified
from time to time.
"Medicare Certification" means certification by CMS or a Governmental
Authority under contract with CMS that the health care operation is in
compliance with all the conditions of participation set forth in the Medicare
Regulations.
21
"Medicare Provider Agreement" means an agreement entered into between a
Governmental Authority administering the Medicare program and a health care
operation under which the health care operation agrees to provide services for
Medicare beneficiaries in accordance with the terms of the agreement and
Medicare Regulations.
"Medicare Regulations" means collectively, (a) all federal statutes
(whether set forth in Title XVIII of the Social Security Act or elsewhere)
affecting the health insurance program for the aged and disabled established by
Title XVIII of the Social Security Act and any statutes succeeding thereto; and
(b) all applicable provisions of all rules, regulations, manuals, orders and
administrative, reimbursement and other guidelines of all Governmental
Authorities (including, without limitation, HHS, CMS, the Office of the
Inspector General for HHS or any Person succeeding to the functions of any of
the foregoing) issued or promulgated pursuant to or in connection with any of
the foregoing, as each may be amended, supplemented or otherwise modified from
time to time.
"Multiemployer Plan" means any employee benefit plan of the type described
in Section 4001(a)(3) of ERISA, to which any Credit Party or any ERISA Affiliate
makes or is obligated to make contributions, or during the preceding five plan
years, has made or been obligated to make contributions.
"Net Cash Proceeds" means:
(a) with respect to the sale of any asset by any Credit Party, the
excess, if any, of (i) the sum of cash and cash equivalents received by
any Credit Party in connection with such sale (including any cash received
by way of deferred payment pursuant to, or by monetization of, a note
receivable or otherwise, but only as and when so received) over (ii) the
sum of (A) the principal amount of any Indebtedness that is required to be
repaid in connection with the sale thereof (other than (1) intercompany
Indebtedness, including, without limitation, Indebtedness evidenced by
Permitted Intercompany Notes and (2) Indebtedness under the Loan
Documents), (B) with respect to any Joint Venture Entity, that portion of
the gross proceeds described in clause (i) above required to be
distributed to any owner (that is not a Loan Party) of Equity Interests in
such Joint Venture, (C) the out-of-pocket fees and expenses incurred by
such Credit Party in connection with such sale, and (D) income or other
taxes actually paid in connection therewith;
(b) with respect to any payment under an insurance policy or in
connection with a condemnation proceeding, the excess, if any, of (i) the
amount of cash proceeds received by any Credit Party from an insurance
company or Governmental Authority, as applicable, over (ii) the sum of (A)
the principal amount of any Indebtedness that is required to be repaid in
connection with the sale thereof (other than (1) intercompany
Indebtedness, including, without limitation, Indebtedness evidenced by
Permitted Intercompany Notes and (2) Indebtedness under the Loan
Documents), (B) with respect to any Joint Venture Entity, that portion of
the gross proceeds described in clause (i) above required to be
distributed to any owner (that is not a Loan Party) of Equity Interests in
such Joint Venture, (C) the out-of-pocket fees and expenses incurred by
such Credit Party
22
in connection with such sale, and (D) income or other taxes actually paid
in connection therewith; and
(c) with respect to any incurrence of any Indebtedness by any Credit
Party, the aggregate amount of all cash received by such Credit Party in
respect of such Indebtedness, net of all reasonable fees, discounts,
commissions and expenses incurred by such Credit Party in connection
therewith.
"Note" means a promissory note made by the Borrower in favor of a Lender
evidencing Loans made by such Lender, substantially in the form of Exhibit C.
"Obligations" means (a) all advances to, and debts, liabilities,
obligations, covenants and duties of, any Loan Party arising under any Loan
Document or otherwise with respect to any Loan or Letter of Credit, whether
direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising and
including interest and fees that accrue after the commencement by or against any
Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief
Laws naming such Person as the debtor in such proceeding, regardless of whether
such interest and fees are allowed claims in such proceeding and (b) all
existing or future payment and other obligations under any Existing Swap
Contract or owing by any Loan Party under any Swap Contract (which such Swap
Contract is permitted hereunder) entered into with any Person that is a Lender
or an Affiliate of a Lender at the time such Swap Contract is entered into.
"Operating Group Hospital Entity" means any business entity (a) formed for
the purpose of owning, operating or managing assets and operations in a line of
business permitted by this Agreement, and (b) at least fifty percent (50%) of
the Equity Interests of which is owned or beneficially controlled, either
directly or indirectly, by any Operating Group Subsidiary. The Operating Group
Hospital Entities as of the Closing Date are set forth on Schedule 1.01(b) (as
the same my be modified from time to time pursuant to Section 6.15).
"Operating Group Subsidiaries" means each existing or future wholly-owned
Subsidiary of the Parent which is designated by the Borrower to be an Operating
Group Subsidiary. The Operating Group Subsidiaries as of the Closing Date are
set forth in Schedule 1.01(b) (as the same may be modified from time to time
pursuant to Section 6.15).
"Organization Documents" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
23
"Other Taxes" means all present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies arising from any
payment made hereunder or under any other Loan Document or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document.
"Outstanding Amount" means (i) with respect to Revolving Credit Loans, the
Term Loan and Swing Line Loans on any date, the aggregate outstanding principal
amount thereof after giving effect to any borrowings and prepayments or
repayments of Revolving Credit Loans, the Term Loan and Swing Line Loans, as the
case may be, occurring on such date; and (ii) with respect to any L/C
Obligations on any date, the amount of such L/C Obligations on such date after
giving effect to any L/C Credit Extension occurring on such date and any other
changes in the aggregate amount of the L/C Obligations as of such date,
including as a result of any reimbursements by the Borrower of Unreimbursed
Amounts.
"Parent" has the meaning specified in the introductory paragraph hereto.
"Parent Guarantor" has the meaning specified in the introductory paragraph
hereto.
"Parent Guaranty" means the unconditional guaranty of the Obligations by
the Parent Guarantor under Article VIII.
"Participant" has the meaning specified in Section 11.06(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by any Credit Party
or any ERISA Affiliate or to which any Credit Party or any ERISA Affiliate
contributes or has an obligation to contribute, or in the case of a multiple
employer or other plan described in Section 4064(a) of ERISA, has made
contributions at any time during the immediately preceding five plan years.
"Permanent Principal Payments" means all scheduled principal payments of
all Indebtedness of any Person or Persons; provided that such payment cannot be
reborrowed under the terms of any documents governing such Indebtedness.
"Permitted Intercompany Lender" means any Loan Party (other than MedCath
Diagnostics, LLC, MedCath Cardiology Consulting & Management, Inc. and any
entity that is a management company of a Hospital Entity).
"Permitted Intercompany Note Collateral Documents" means, with
respect to any Permitted Intercompany Note, (a) a mortgage or deed of trust (as
applicable), if any, (b) a security agreement, if any, and (c) any other
collateral documents, if any, in each case on terms and conditions reasonably
satisfactory to the Administrative Agent and pursuant to which the applicable
Joint Venture Entity or Joint Venture Investment grants, or purports to grant
(subject to Permitted Liens, if any), to the applicable Permitted Intercompany
Lender a security interest in
24
any present and future assets and properties of such Joint Venture Entity or
Joint Venture Investment (including, without limitation, all accounts
receivable, inventory, real property, machinery, equipment, contracts and
(subject to the rights of licensees) license rights).
"Permitted Intercompany Notes" means the Qualified Real Estate
Intercompany Notes, the Qualified Equipment Intercompany Notes, and the
Qualified Line of Credit Intercompany Notes, and "Permitted Intercompany Note"
means any one of the foregoing; provided that each Permitted Intercompany Note
(a) evidences a loan that is on an arms-length basis between the Permitted
Intercompany Lender and the applicable Joint Venture Entity or Joint Venture
Investment including, without limitation, (i) market terms for interest rates,
maturity and amortization; (ii) no provisions for forgiveness of any amounts
payable thereunder and (iii) no provisions for the release of any collateral
security for such promissory note (unless released for fair market value or
obsolete or worn-out property or inventory released in the ordinary course of
business); (b) is a negotiable instrument which is freely transferable; (c)
shall contain a cross-default to this Agreement in form and substance
satisfactory to the Administrative Agent; (d) shall be unsubordinated unless
such note is used to finance a Credit Party's working capital or other operating
cash requirements substantially consistent with the past practices of the Parent
and its Subsidiaries; and (e) is on terms and conditions reasonably satisfactory
to the Administrative Agent.
"Permitted Liens" means the Liens permitted pursuant to Section 7.01.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by any Credit Party or, with respect to any
such plan that is subject to Section 412 of the Code or Title IV of ERISA, any
ERISA Affiliate.
"Principals" means (a) MedCath 1998 LLC, (b) Welsh Carson, Anderson &
Stowe, VII, L.P., and (c) any investment partnership under common control with
any of the foregoing.
"Pre-Opening Expenses" means, for any period, without duplication,
pre-opening expenses relating to Hospital Entities and related healthcare
facilities of such Person and its Subsidiaries for such period as calculated and
presented in accordance with GAAP on the face of such Person's consolidated
statements of operations.
"Qualified Equipment Intercompany Note" means any intercompany promissory
note in the form and substance reasonably satisfactory to the Administrative
Agent made payable to a Permitted Intercompany Lender by a Joint Venture Entity
or Joint Venture Investment as evidence of the financing or refinancing of the
cost of equipment to be used by such Joint Venture Entity or Joint Venture
Investment, the principal amount of which shall not exceed (a) with respect to
any refinancing of existing equipment related Debt of Operating Hospital Entity
or Joint Venture Subsidiary or Joint Venture Investment, 100% of the loans being
refinanced (plus fees and expenses related to such refinancing) and (b) with
respect to (i) any financing of any equipment of an Operating Hospital Entity or
Joint Venture Subsidiary or Joint Venture
25
Investment or (ii) any Development Hospital Entity (whether a financing or
refinancing), in each case, 100% of the cost (including any shipping costs or
taxes) of the applicable equipment being financed or refinanced, as applicable.
"Qualified Line of Credit Intercompany Note" means any intercompany
promissory note in the form and substance reasonably satisfactory to the
Administrative Agent made payable to a Permitted Intercompany Lender by a Joint
Venture Entity or Joint Venture Investment as evidence of the financing or
refinancing of working capital and other general corporate purposes of such
Joint Venture Entity or Joint Venture Investment.
"Qualified Real Estate Intercompany Note" means any intercompany
promissory note in the form and substance reasonably satisfactory to the
Administrative Agent made payable to a Permitted Intercompany Lender by a Joint
Venture Entity or Joint Venture Investment as evidence of the financing or
refinancing of the cost of construction of any hospital facility owned by such
Joint Venture Entity or Joint Venture Investment, the principal amount of which
shall not exceed (a) with respect to any refinancing of existing real estate
related Debt of an Operating Hospital Entity or Joint Venture Subsidiary or
Joint Venture Investment, 100% of the loans being refinanced (plus fees and
expenses related to such refinancing) and (b) with respect to any Development
Hospital Entity (whether a financing or refinancing), in each case, 80% of the
Aggregate Project Cost with respect to the applicable project; provided that
with respect to Heart Hospital of BK, LLC, the Real Estate Intercompany Note
thereof shall not exceed 100% of the amount of the loan refinanced that was
outstanding as of September 30, 2003 (plus fees and expenses related to such
refinancing).
"Qualifying Investment" means any Investments made with Disposition
Proceeds resulting from a single Disposition or series of related Dispositions
of assets permitted hereunder; provided that (a) such Investments are permitted
pursuant to Section 7.02(h) or Section 7.02(i), and (b) with respect to the
Disposition of (i) any Investment that existed on the Closing Date, or (ii) any
Investment made after the Closing Date with Disposition Proceeds from an
Investment that existed on the Closing Date, the excess (if any) of (A) the
Required Intercompany Note Amount over (B) the amount of such new Investments
(determined on an aggregate basis) that is in the form of Permitted Intercompany
Notes shall not constitute a "Qualifying Investment."
"Register" has the meaning specified in Section 11.06(c).
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors
of such Person and of such Person's Affiliates.
"Related Principal Party" means (a) any controlling stockholder, partner,
member, eighty percent (80%) or more owned Subsidiary, or immediate family
member (in the case of an individual) of any Principal, or (b) any trust,
corporation, partnership or other entity, the beneficiaries, stockholders,
partners, owners or Persons beneficially holding an eighty percent (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 (a).
26
"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the 30 day notice period has been waived.
"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Revolving Credit Loans or the Term Loan, a Loan
Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit
Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan
Notice.
"Required Intercompany Note Amount" means, with respect to the Disposition
of (i) any Investment that existed on the Closing Date, an amount equal
seventy-five percent (75%) of the portion of such existing Investment
(determined on an aggregate basis) that was in the form of Permitted
Intercompany Notes immediately prior to such Disposition, and (ii) any
Investment made after the Closing Date with Disposition Proceeds from an
Investment that existed on the Closing Date, an amount equal one hundred percent
(100%) of the portion of such existing Investment (determined on an aggregate
basis) that was in the form of Permitted Intercompany Notes immediately prior to
such Disposition.
"Required Lenders" means, as of any date of determination, Lenders having
more than 50% of the sum of (a) the Revolving Credit Commitments (or the
Revolving Credit Outstandings if the Revolving Credit Commitments have been
terminated (with the aggregate amount of each Lender's risk participation and
funded participation in L/C Obligations and Swing Line Loans being deemed "held"
by such Lender for purposes of this definition)) and (b) the Term Loans;
provided that the Commitment of, and the portion of the Revolving Credit
Outstandings or the Term Loan, as applicable, held or deemed held by, any
Defaulting Lender shall be excluded for purposes of making a determination of
Required Lenders.
"Responsible Officer" means the chief executive officer, president, chief
financial officer, treasurer or assistant treasurer of a Loan Party. Any
document delivered hereunder that is signed by a Responsible Officer of a Loan
Party shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of such Loan Party and
such Responsible Officer shall be conclusively presumed to have acted on behalf
of such Loan Party.
"Restricted Payment" means (a) any dividend or other distribution (whether
in cash, securities or other property) with respect to any capital stock or
other Equity Interest of any Credit Party, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit, on
account of the purchase, redemption, retirement, acquisition, cancellation or
termination of any such capital stock or other Equity Interest, or on account of
any return of capital to my Credit Party's stockholders, partners or members (or
the equivalent Person thereof) and (b) any payment or distribution on account of
the Sioux Falls Guarantee.
"Revolving Credit Outstandings" means the aggregate Outstanding Amount of
all Revolving Credit Loans, Swing Line Loans, and L/C Obligations.
27
"Revolving Credit Borrowing" means a borrowing consisting of simultaneous
Revolving Credit Loans of the same Type and, in the case of Eurodollar Rate
Loans, having the same Interest Period made by each of the Lenders pursuant to
Section 2.01.
"Revolving Credit Commitment" means, as to each Lender, its obligation to
(a) to make Revolving Credit Loans in accordance with the provisions of Section
2.01(a), (b) to purchase participations in L/C Obligations and (c) to purchase
participations in Swing Line Loans, in an aggregate principal amount at any one
time outstanding not to exceed the applicable amount for such Lender set forth
in the Register, as such amount may be adjusted from time to time in accordance
with this Agreement. "Revolving Credit Commitments" means the aggregate
Revolving Credit Commitment of all Lenders. On the Closing Date the Revolving
Credit Commitments shall be $100,000,000.
"Revolving Credit Commitment Percentage" means with respect to any Lender
at any time, the percentage (carried out to the ninth decimal place) of the
Revolving Credit Commitments represented by such Lender's Revolving Credit
Commitment at such time. If the commitment of each Lender to make Revolving
Credit Loans and the obligation of the L/C Issuer to make L/C Credit Extensions
have been terminated pursuant to Section 9.02 or if the Revolving Credit
Commitments have expired, then the Revolving Credit Commitment Percentage of
each Lender shall be determined based on the Revolving Credit Commitment
Percentage of such Lender most recently in effect, giving effect to any
subsequent assignments.
"Revolving Credit Loan" has the meaning set forth in Section 2.01(a).
"Revolving Credit Maturity Date" means June 30, 2009.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Security Documents" means each Collateral Agreement, each Collateral
Assignment and any other documents which create, or purport to create, a Lien
for the benefit of the Administrative Agent executed by any Loan Party after the
Closing Date.
"Senior Unsecured Note Documents" means the Senior Unsecured Note
Indenture and all exhibits and schedules thereto and each other document,
instrument, certificate and agreement executed or delivered by the Borrower or
any Subsidiary thereof in connection with the Senior Unsecured Note Indenture or
otherwise referred to therein or contemplated thereby (including the
registration rights agreement), all as amended, restated or otherwise modified
pursuant to the terms and conditions set forth in this Agreement.
"Senior Unsecured Note Indenture" means the Indenture in the form provided
to the Administrative Agent and the Lenders as of the Closing Date, including
such indenture as subsequently qualified under the Trust Indenture Act of 1939
pursuant to which notes registered under the Securities Act of 1933 will be
issued in exchange for the notes issued on or about the Closing Date, as each
may be amended, restated, supplemented or otherwise modified pursuant to the
terms and conditions set forth in this Agreement.
28
"Senior Unsecured Note Issuance" has the meaning set forth in Section
4.01(h)(i).
"Senior Unsecured Notes" means the collective reference to the senior
unsecured notes due 2012 of the Borrower issued pursuant to the Senior Unsecured
Note Indenture in the initial principal amount of $150,000,000.
"Sioux Falls Guarantee" means the Guarantee existing on the Closing Date
by a Loan Party of Indebtedness of Heart Hospital of South Dakota LLC, up to an
aggregate principal amount (or accreted value, as applicable) at any time
outstanding not to exceed Sixteen Million Seven Hundred Thousand Dollars
($16,700,000).
"Solvent" means as to any Person on a particular date, that any such
Person (a) has capital sufficient to carry on its business and transactions and
all business and transactions in which it is about to engage and is able to pay
its debts as they mature, (b) owns property having a value, both at fair
valuation and at present fair saleable value, greater than the amount required
to pay its probable liabilities (including contingencies), and (c) does not
believe that it will incur debts or liabilities beyond its ability to pay such
debts or liabilities as they mature.
"SPC" has the meaning specified in Section 11.06(h).
"Subordinated Indebtedness" means the collective reference to any
Indebtedness of the Parent and its Subsidiaries subordinated in right and time
of payment to the Obligations and containing such other terms and conditions
(including, without limitation, subordination terms) as are reasonably
satisfactory to the Required Lenders.
"Subsidiary" of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity of which a majority of the
shares of securities or other interests having ordinary voting power for the
election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise specified, all references herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of
the Parent. Notwithstanding the foregoing, the definition of "Subsidiary" shall
specifically exclude any Joint Venture Investments.
"Subsidiary Guarantors" means the collective reference to each
Substantially Wholly Owned Subsidiary of the Parent.
"Subsidiary Guaranty" means the Subsidiary Guaranty made by the
Subsidiaries in favor of the Administrative Agent on behalf of the Lenders,
substantially in the form of Exhibit F.
"Substantially Wholly Owned Subsidiary" of any specified Person means a
Subsidiary of such Person not less than 95% of each class of outstanding Capital
Stock or other Equity Interests of which (other than directors' qualifying
shares or Investments by foreign nationals
29
mandated by applicable law) shall at the time be owned by such Person or by one
or more Wholly Owned Subsidiaries of such Person.
"Swap Contract" means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"), including
any such obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
mark-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"Swing Line" means the revolving credit facility made available by the
Swing Line Lender pursuant to Section 2.05.
"Swing Line Borrowing" means a borrowing of a Swing Line Loan pursuant to
Section 2.05.
"Swing Line Lender" means Bank of America in its capacity as provider of
Swing Line Loans, or any successor swing line lender hereunder.
"Swing Line Loan" has the meaning specified in Section 2.05(a).
"Swing Line Loan Notice" means a notice of a Swing Line Borrowing pursuant
to Section 2.05(b), which, if in writing, shall be substantially in the form of
Exhibit B.
"Swing Line Sublimit" means an amount equal to the lesser of (a)
$10,000,000 and (b) the Revolving Credit Commitments. The Swing Line Sublimit is
part of, and not in addition to, the Revolving Credit Commitments.
30
"Taxes" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
"Term Loan" shall have the meaning assigned to such term in Section 2.02.
"Term Loan Borrowing" means a borrowing consisting of simultaneous Term
Loans of the same Type and, in the case of Eurodollar Rate Loans, having the
same Interest Period made by each of the Lenders pursuant to Section 2.02.
"Term Loan Commitment" means, as to each Lender, its obligation to make
its portion of the Term Loan in accordance with the provisions of Section
2.02(a) in an aggregate principal amount at any one time outstanding not to
exceed the applicable amount for such Lender set forth in the Register, as such
amount may be adjusted from time to time in accordance with this Agreement.
"Term Loan Commitments" means the aggregate Term Loan Commitment of all Lenders.
On the Closing Date the Term Loan Commitments shall be $100,000,000.
"Term Loan Maturity Date" means June 30, 2011.
"Term Loan Percentage" means with respect to any Lender at any time, the
percentage (carried out to the ninth decimal place) of the Term Loan Commitments
represented by such Lender's Term Loan Commitment at such time.
"Threshold Amount" means Seven Million Five Hundred Thousand Dollars
($7,500,000).
"Type" means, with respect to a Revolving Credit Loan or Term Loan, its
character as a Base Rate Loan or a Eurodollar Rate Loan.
"UCC" means, subject to Section 1.04, the Uniform Commercial Code in
effect in the State of New York, as amended or modified from time to time.
"United States" and "U.S." mean the United States of America.
"Unreimbursed Amount" has the meaning specified in Section 2.04(c)(i).
"Voting Stock" means Equity Interests issued by any Person, the holders of
which are ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such Person,
even if the right so to vote has been suspended by the happening of such a
contingency.
1.02 OTHER INTERPRETIVE PROVISIONS. With reference to this Agreement and
each other Loan Document, unless otherwise specified herein or in such other
Loan Document:
(a) The definitions of terms herein shall apply equally to the singular
and plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the
31
corresponding masculine, feminine and neuter forms. The words "include,"
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation." The word "will" shall be construed to have the same meaning and
effect as the word "shall." Unless the context requires otherwise, (i) any
definition of or reference to any agreement, instrument or other document
(including any Organization Document) shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein or in any other Loan
Document), (ii) any reference herein to any Person shall be construed to include
such Person's successors and assigns, (iii) the words "herein," "hereof" and
"hereunder," and words of similar import when used in any Loan Document, shall
be construed to refer to such Loan Document in its entirety and not to any
particular provision thereof, (iv) all references in a Loan Document to
Articles, Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, the Loan Document in
which such references appear, (v) any reference to any law shall include all
statutory and regulatory provisions consolidating, amending replacing or
interpreting such law and any reference to any law or regulation shall, unless
otherwise specified, refer to such law or regulation as amended, modified or
supplemented from time to time, and (vi) the words "asset" and "property" shall
be construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
(b) In the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including;" the words "to" and
"until" each mean "to but excluding;" and the word "through" means "to and
including."
(c) Section headings herein and in the other Loan Documents are included
for convenience of reference only and shall not affect the interpretation of
this Agreement or any other Loan Document.
1.03 ACCOUNTING TERMS. (a) Generally. All accounting terms not
specifically or completely defined herein shall be construed in conformity with,
and all financial data (including financial ratios and other financial
calculations) required to be submitted pursuant to this Agreement shall be
prepared in conformity with, GAAP applied on a consistent basis, as in effect
from time to time, applied in a manner consistent with that used in preparing
the Audited Financial Statements, except as otherwise specifically prescribed
herein.
(b) Changes in GAAP. If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan
Document, and either the Parent, the Borrower or the Required Lenders shall so
request, the Administrative Agent, the Lenders, the Parent and the Borrower
shall negotiate in good faith to amend such ratio or requirement to preserve the
original intent thereof in light of such change in GAAP (subject to the approval
of the Required Lenders); provided that, until so amended, (i) such ratio or
requirement shall continue to be computed in accordance with GAAP prior to such
change therein and (ii) the Parent and the Borrower shall provide to the
Administrative Agent and the Lenders financial statements and other documents
required under this Agreement or as
32
reasonably requested hereunder setting forth a reconciliation between
calculations of such ratio or requirement made before and after giving effect to
such change in GAAP.
1.04 UCC TERMS. Terms defined in the UCC in effect on the Closing Date and
not otherwise defined herein shall, unless the context otherwise indicates, have
the meanings provided by those definitions. Subject to the foregoing, the term
"UCC" refers, as of any date of determination, to the UCC then in effect.
1.05 ROUNDING. Any financial ratios required to be maintained by the
Parent and the Borrower pursuant to this Agreement shall be calculated by
dividing the appropriate component by the other component, carrying the result
to one place more than the number of places by which such ratio is expressed
herein and rounding the result up or down to the nearest number (with a
rounding-up if there is no nearest number).
1.06 TIMES OF DAY. Unless otherwise specified, all references herein to
times of day shall be references to Eastern time (daylight or standard, as
applicable).
1.07 LETTER OF CREDIT AMOUNTS. Unless otherwise specified herein, the
amount of a Letter of Credit at any time shall be deemed to be the stated amount
of such Letter of Credit in effect at such time; provided, however, that with
respect to any Letter of Credit that, by its terms or the terms of any Issuer
Document related thereto, provides for one or more automatic increases in the
stated amount thereof, the amount of such Letter of Credit shall be deemed to be
the maximum stated amount of such Letter of Credit after giving effect to all
such increases, whether or not such maximum stated amount is in effect at such
time.
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 REVOLVING CREDIT LOANS.
(a) Revolving Credit Commitment. Subject to the terms and conditions set
forth herein, each Lender severally agrees to make revolving loans (each such
revolving loan, a "Revolving Credit Loan") to the Borrower from time to time, on
any Business Day during the Availability Period, in an aggregate amount not to
exceed at any time outstanding the amount of such Lender's Revolving Credit
Commitment; provided, however, that after giving effect to any Revolving Credit
Borrowing, (i) the Revolving Credit Outstandings shall not exceed the Revolving
Credit Commitments, and (ii) the aggregate Outstanding Amount of the Revolving
Credit Loans of any Lender, plus such Lender's Revolving Credit Commitment
Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender's
Revolving Credit Commitment Percentage of the Outstanding Amount of all Swing
Line Loans shall not exceed such Lender's Revolving Credit Commitment. Within
the limits of each Lender's Revolving Credit Commitment, and subject to the
other terms and conditions hereof, the Borrower may borrow under this Section
2.01, prepay under Section 2.06, and reborrow under this Section 2.01. Revolving
Credit Loans may be Base Rate Loans or Eurodollar Rate Loans, as further
provided herein.
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(b) Borrowing Procedures.
(i) Each Revolving Credit Borrowing shall be made upon the
Borrower's irrevocable notice to the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Administrative Agent not
later than 11:00 a.m. (A) three Business Days prior to the requested date of any
Revolving Credit Borrowing of Eurodollar Rate Loans, and (B) on the requested
date of any Revolving Credit Borrowing of Base Rate Loans. Each telephonic
notice by the Borrower pursuant to this Section 2.01(b) must be confirmed
promptly by delivery to the Administrative Agent of a written Loan Notice,
appropriately completed and signed by a Responsible Officer of the Borrower.
Each Revolving Credit Borrowing of Eurodollar Rate Loans shall be in a principal
amount of $1,000,000 or a whole multiple of $100,000 in excess thereof. Except
as provided in Sections 2.04(c) and 2.05(c), each Revolving Credit Borrowing of
Base Rate Loans shall be in a principal amount of $100,000 or a whole multiple
of $100,000 in excess thereof. Each Loan Notice (whether telephonic or written)
shall specify (A) the requested date of the Revolving Credit Borrowing (which
shall be a Business Day), (B) the principal amount of Revolving Credit Loans to
be borrowed, (C) the Type of Revolving Credit Loans to be borrowed, and (D) if
applicable, the duration of the Interest Period with respect thereto. If the
Borrower fails to specify a Type of Revolving Credit Loan in a Loan Notice, then
the applicable Revolving Credit Loans shall be made as Base Rate Loans. If the
Revolving Credit Borrower requests a Borrowing of Eurodollar Rate Loans in any
such Loan Notice, but fails to specify an Interest Period, it will be deemed to
have specified an Interest Period of one month.
(ii) Following receipt of a Loan Notice, the Administrative Agent
shall promptly notify each Lender of the amount of its Revolving Credit
Commitment Percentage of the applicable Revolving Credit Loans. Each Lender
shall make the amount of its Revolving Credit Loan available to the
Administrative Agent in immediately available funds at the Administrative
Agent's Office not later than 1:00 p.m. on the Business Day specified in the
applicable Loan Notice. Upon satisfaction of the applicable conditions set forth
in Section 4.02 (and, if such Revolving Credit Borrowing is the initial Credit
Extension, Section 4.01), the Administrative Agent shall make all funds so
received available to the Borrower in like funds as received by the
Administrative Agent either by (A) crediting the account of the Borrower on the
books of Bank of America with the amount of such funds or (B) wire transfer of
such funds, in each case in accordance with instructions provided to (and
reasonably acceptable to) the Administrative Agent by the Borrower; provided,
however, that if, on the date the Loan Notice with respect to such Revolving
Credit Borrowing is given by the Borrower, there are L/C Borrowings outstanding,
then the proceeds of such Revolving Credit Borrowing, first, shall be applied to
the payment in full of any such L/C Borrowings, and second, shall be made
available to the Borrower as provided above.
(iii) The Administrative Agent shall promptly notify the Borrower
and the Lenders of the interest rate applicable to any Interest Period for
Revolving Credit Loans bearing interest based upon the Eurodollar Rate upon
determination of such interest rate. At any time that Revolving Credit Loans
bearing interest based upon the Base Rate are outstanding, the Administrative
Agent shall notify the Borrower and the Lenders of any change in Bank of
34
America's prime rate used in determining the Base Rate promptly following the
public announcement of such change.
(iv) During the existence of a Default, no Loans may be requested as
Eurodollar Rate Loans without the consent of the Required Lenders.
2.02 TERM LOAN.
(a) Term Commitment. Subject to the terms and conditions set forth herein,
each Lender severally agrees to make available to the Borrower on the Closing
Date such Lender's Term Loan Percentage of a term loan (the "Term Loan"; each
component thereof may be referred to herein as a "Term Loan") in an aggregate
principal amount equal to the Term Loan Commitments. The Term Loan may consist
of Base Rate Loans or Eurodollar Rate Loans, or a combination thereof, as the
Borrower may request. Amounts repaid on the Term Loan may not be reborrowed.
(b) Borrowing Procedures.
(i) The Borrower shall give irrevocable notice to the Administrative
Agent, which may be given by telephone, not later than 11:00 a.m. (or such later
time as the Administrative Agent and the Borrower shall agree) on the Closing
Date requesting that the Lenders make the Term Loan as a Base Rate Loan on such
date. Each telephonic notice by the Borrower pursuant to this Section 2.02(b)
must be confirmed promptly by delivery to the Administrative Agent of a written
Loan Notice, appropriately completed and signed by a Responsible Officer of the
Borrower.
(ii) Following receipt of a Loan Notice, the Administrative Agent
shall promptly notify each Lender of the amount of its Term Loan Percentage of
the Term Loan. Each Lender shall make the amount of the Term Loan to be made by
such Lender available to the Administrative Agent in immediately available funds
at the Administrative Agent's Office not later than 1:00 p.m. on the Closing
Date. Upon satisfaction of the applicable conditions set forth in Section 4.01
and Section 4.02, the Administrative Agent shall make all funds so received
available to the Borrower in like funds as received by the Administrative Agent
either by (A) crediting the account of the Borrower on the books of Bank of
America with the amount of such funds or (B) wire transfer of such funds, in
each case in accordance with instructions provided to (and reasonably acceptable
to) the Administrative Agent by the Borrower.
(iii) The Administrative Agent shall promptly notify the Borrower
and the Lenders of the interest rate applicable to any Interest Period for Term
Loans bearing interest based upon the Eurodollar Rate upon determination of such
interest rate. At any time that Term Loans bearing interest based upon the Base
Rate are outstanding, the Administrative Agent shall notify the Borrower and the
Lenders of any change in Bank of America's prime rate used in determining the
Base Rate promptly following the public announcement of such change.
35
2.03 CONVERSIONS AND CONTINUATIONS OF REVOLVING CREDIT LOANS AND TERM
LOAN.
(a) The Borrower shall have the option to convert Loans (other than Swing
Line Loans) from one Type to the other and to continue Eurodollar Rate Loans.
Each conversion of Loans from one Type to the other, and each continuation of
Eurodollar Rate Loans shall be made upon the Borrower's irrevocable notice to
the Administrative Agent, which may be given by telephone. Each such notice must
be received by the Administrative Agent not later than 11:00 a.m. three Business
Days prior to the requested date of any conversion to or continuation of
Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate
Loans. Each telephonic notice by the Borrower pursuant to this Section 2.03(a)
must be confirmed promptly by delivery to the Administrative Agent of a written
Loan Notice, appropriately completed and signed by a Responsible Officer of the
Borrower. Each conversion to or continuation of Eurodollar Rate Loans shall be
in a principal amount of $1,000,000 or a whole multiple of $100,000 in excess
thereof. Each conversion to Base Rate Loans shall be in a principal amount of
$100,000 or a whole multiple of $100,000 in excess thereof. Each Loan Notice
(whether telephonic or written) shall specify (i) whether the Borrower is
requesting a conversion of Revolving Credit Loans or a Term Loan, as applicable,
from one Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the
requested date of the conversion or continuation (which shall be a Business
Day), (iii) the principal amount of Loans to be converted or continued, (iv) the
Type of Loans to which existing Loans are to be converted, and (v) if
applicable, the duration of the Interest Period with respect thereto. If the
Borrower fails to give a timely notice requesting a conversion or continuation
of Eurodollar Rate Loans, then the applicable Eurodollar Rate Loans shall be
converted to Base Rate Loans. Any such automatic conversion to Base Rate Loans
shall be effective as of the last day of the Interest Period then in effect with
respect to the applicable Eurodollar Rate Loans. If the Borrower requests a
conversion to or continuation of Eurodollar Rate Loans in any such Loan Notice,
but fails to specify an Interest Period, it will be deemed to have specified an
Interest Period of one month.
(b) Following receipt of a Loan Notice, the Administrative Agent shall
promptly notify each Lender. If no timely notice of a conversion or continuation
is provided by the Borrower, the Administrative Agent shall notify each Lender
of the details of any automatic conversion to Base Rate Loans described in the
preceding subsection.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be
continued or converted only on the last day of an Interest Period for such
Eurodollar Rate Loan. During the existence of a Default, no Loans may be
converted to or continued as Eurodollar Rate Loans without the consent of the
Required Lenders.
(d) After giving effect to all Borrowings, all conversions of Loans from
one Type to the other, and all continuations of Loans as the same Type, there
shall not be more than 10 Interest Periods in effect with respect to Loans.
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2.04 LETTERS OF CREDIT.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the
L/C Issuer agrees, in reliance upon the agreements of the Lenders set
forth in this Section 2.04, (1) from time to time on any Business Day
during the period from the Closing Date until the Letter of Credit
Expiration Date, to issue Letters of Credit for the account of the
Borrower or its Subsidiaries, and to amend or extend Letters of Credit
previously issued by it, in accordance with subsection (b) below, and (2)
to honor drawings under the Letters of Credit; and (B) the Lenders
severally agree to participate in Letters of Credit issued for the account
of the Borrower or its Subsidiaries and any drawings thereunder; provided
that after giving effect to any L/C Credit Extension with respect to any
Letter of Credit, (x) the Revolving Credit Outstandings shall not exceed
the Revolving Credit Commitments, (y) the aggregate Outstanding Amount of
the Revolving Credit Loans of any Lender, plus such Lender's Revolving
Credit Commitment Percentage of the Outstanding Amount of all L/C
Obligations, plus such Lender's Revolving Credit Commitment Percentage of
the Outstanding Amount of all Swing Line Loans shall not exceed such
Lender's Revolving Credit Commitment, and (z) the Outstanding Amount of
the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each
request by the Borrower for the issuance or amendment of a Letter of
Credit shall be deemed to be a representation by the Borrower that the L/C
Credit Extension so requested complies with the conditions set forth in
the proviso to the preceding sentence. Within the foregoing limits, and
subject to the terms and conditions hereof, the Borrower's ability to
obtain Letters of Credit shall be fully revolving, and accordingly the
Borrower may, during the foregoing period, obtain Letters of Credit to
replace Letters of Credit that have expired or that have been drawn upon
and reimbursed. All Existing Letters of Credit shall be deemed to have
been issued pursuant hereto, and from and after the Closing Date shall be
subject to and governed by the terms and conditions hereof.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) the expiry date of such requested Letter of Credit would
occur more than twelve months after the date of issuance, unless the
Required Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would
occur after the Letter of Credit Expiration Date, unless all the Lenders
have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any
Letter of Credit if:
(A) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or restrain
the L/C Issuer from issuing such
37
Letter of Credit, or any Law applicable to the L/C Issuer or any request
or directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over the L/C Issuer shall
prohibit, or request that the L/C Issuer refrain from, the issuance of
letters of credit generally or such Letter of Credit in particular or
shall impose upon the L/C Issuer with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which the L/C Issuer is
not otherwise compensated hereunder) not in effect on the Closing Date, or
shall impose upon the L/C Issuer any unreimbursed loss, cost or expense
which was not applicable on the Closing Date and which the L/C Issuer in
good faith deems material to it;
(B) the issuance of such Letter of Credit would violate one or
more policies of the L/C Issuer;
(C) except as otherwise agreed by the Administrative Agent and
the L/C Issuer, such Letter of Credit is in an initial stated amount less
than $10,000;
(D) such Letter of Credit is to be denominated in a currency
other than Dollars; or (E) a default of any Lender's obligations to fund
under Section 2.04(c) exists or any Lender is at such time a Defaulting
Lender hereunder, unless the L/C Issuer has entered into satisfactory
arrangements with the Borrower or such Lender to eliminate the L/C
Issuer's risk with respect to such Lender.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C
Issuer would not be permitted at such time to issue such Letter of Credit
in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter
of Credit if (A) the L/C Issuer would have no obligation at such time to
issue such Letter of Credit in its amended form under the terms hereof, or
(B) the beneficiary of such Letter of Credit does not accept the proposed
amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with respect
to any Letters of Credit issued by it and the documents associated
therewith, and the L/C Issuer shall have all of the benefits and
immunities (A) provided to the Administrative Agent in Article X with
respect to any acts taken or omissions suffered by the L/C Issuer in
connection with Letters of Credit issued by it or proposed to be issued by
it and Issuer Documents pertaining to such Letters of Credit as fully as
if the term "Administrative Agent" as used in Article X included the L/C
Issuer with respect to such acts or omissions, and (B) as additionally
provided herein with respect to the L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Renewal Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case
may be, upon the request of the Borrower delivered to the L/C Issuer (with
a copy to the Administrative
38
Agent) in the form of a Letter of Credit Application, appropriately
completed and signed by a Responsible Officer of the Borrower. Such Letter
of Credit Application must be received by the L/C Issuer and the
Administrative Agent not later than 11:00 a.m. at least two Business Days
(or such later date and time as the Administrative Agent and the L/C
Issuer may agree in a particular instance in their its sole discretion)
prior to the proposed issuance date or date of amendment, as the case may
be. In the case of a request for an initial issuance of a Letter of
Credit, such Letter of Credit Application shall specify in form and detail
satisfactory to the L/C Issuer: (A) the proposed issuance date of the
requested Letter of Credit (which shall be a Business Day); (B) the amount
thereof; (C) the expiry date thereof; (D) the name and address of the
beneficiary thereof; (E) the documents to be presented by such beneficiary
in case of any drawing thereunder; (F) the full text of any certificate to
be presented by such beneficiary in case of any drawing thereunder; and
(G) such other matters as the L/C Issuer may require. In the case of a
request for an amendment of any outstanding Letter of Credit, such Letter
of Credit Application shall specify in form and detail satisfactory to the
L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date
of amendment thereof (which shall be a Business Day); (C) the nature of
the proposed amendment; and (D) such other matters as the L/C Issuer may
require. Additionally, the Borrower shall furnish to the L/C Issuer and
the Administrative Agent such other documents and information pertaining
to such requested Letter of Credit issuance or amendment, including any
Issuer Documents, as the L/C Issuer or the Administrative Agent may
reasonably require.
(ii) Promptly after receipt of any Letter of Credit Application, the
L/C Issuer will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has received a copy of such Letter
of Credit Application from the Borrower and, if not, the L/C Issuer will
provide the Administrative Agent with a copy thereof. Unless the L/C
Issuer has received written notice from any Lender, the Administrative
Agent or any Loan Party, at least one Business Day prior to the requested
date of issuance or amendment of the applicable Letter of Credit, that one
or more applicable conditions contained in Article IV shall not then be
satisfied, then, subject to the terms and conditions hereof, the L/C
Issuer shall, on the requested date, issue a Letter of Credit for the
account of the Borrower (or the applicable Subsidiary) or enter into the
applicable amendment, as the case may be, in each case in accordance with
the L/C Issuer's usual and customary business practices. Immediately upon
the issuance of each Letter of Credit, each Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the L/C
Issuer a risk participation in such Letter of Credit in an amount equal to
the product of such Lender's Revolving Credit Commitment Percentage times
the amount of such Letter of Credit.
(iii) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto
or to the beneficiary thereof, the L/C Issuer will also deliver to the
Borrower and the Administrative Agent a true and complete copy of such
Letter of Credit or amendment.
39
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of any
notice of a drawing under such Letter of Credit, the L/C Issuer shall
notify the Borrower and the Administrative Agent thereof. Not later than
11:00 a.m. on the date of any payment by the L/C Issuer under a Letter of
Credit (each such date, an "Honor Date"), the Borrower shall reimburse the
L/C Issuer through the Administrative Agent in an amount equal to the
amount of such drawing. If the Borrower fails to so reimburse the L/C
Issuer by such time, the Administrative Agent shall promptly notify each
Lender of the Honor Date, the amount of the unreimbursed drawing (the
"Unreimbursed Amount"), and the amount of such Lender's Revolving Credit
Commitment Percentage thereof. In such event, the Borrower shall be deemed
to have requested a Revolving Credit Borrowing of Base Rate Loans to be
disbursed on the Honor Date in an amount equal to the Unreimbursed Amount,
without regard to the minimum and multiples specified in Section 2.01(b)
for the principal amount of Base Rate Loans, but subject to the amount of
the unutilized portion of the Revolving Credit Commitments and the
conditions set forth in Section 4.02 (other than the delivery of a Loan
Notice). Any notice given by the L/C Issuer or the Administrative Agent
pursuant to this Section 2.04(c)(i) may be given by telephone if
immediately confirmed in writing; provided that the lack of such an
immediate confirmation shall not affect the conclusiveness or binding
effect of such notice.
(ii) Each Lender shall upon any notice pursuant to Section
2.04(c)(i) make funds available to the Administrative Agent for the
account of the L/C Issuer at the Administrative Agent's Office in an
amount equal to its Revolving Credit Commitment Percentage of the
Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified
in such notice by the Administrative Agent, whereupon, subject to the
provisions of Section 2.04(c)(iii), each Lender that so makes funds
available shall be deemed to have made a Revolving Credit Loan bearing
interest at the Base Rate to the Borrower in such amount. The
Administrative Agent shall remit the funds so received to the L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully
refinanced by a Revolving Credit Borrowing of Base Rate Loans because the
conditions set forth in Section 4.02 cannot be satisfied or for any other
reason, the Borrower shall be deemed to have incurred from the L/C Issuer
an L/C Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which L/C Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at the Default Rate. In
such event, each Lender's payment to the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.04(c)(ii) shall be deemed
payment in respect of its participation in such L/C Borrowing and shall
constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section 2.04.
(iv) Until each Lender funds its Revolving Credit Loan or L/C
Advance pursuant to this Section 2.04(c) to reimburse the L/C Issuer for
any amount drawn under any Letter of Credit, interest in respect of such
Lender's Revolving Credit Commitment Percentage of such amount shall be
solely for the account of the L/C Issuer.
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(v) Each Lender's obligation to make Revolving Credit Loans or L/C
Advances to reimburse the L/C Issuer for amounts drawn under Letters of
Credit, as contemplated by this Section 2.04(c), shall be absolute and
unconditional and shall not be affected by any circumstance, including (A)
any setoff, counterclaim, recoupment, defense or other right which such
Lender may have against the L/C Issuer, the Borrower or any other Person
for any reason whatsoever; (B) the occurrence or continuance of a Default,
or (C) any other occurrence, event or condition, whether or not similar to
any of the foregoing; provided, however, that each Lender's obligation to
make Revolving Credit Loans pursuant to this Section 2.04(c) is subject to
the conditions set forth in Section 4.02 (other than delivery by the
Borrower of a Loan Notice). No such making of an L/C Advance shall relieve
or otherwise impair the obligation of the Borrower to reimburse the L/C
Issuer for the amount of any payment made by the L/C Issuer under any
Letter of Credit, together with interest as provided herein.
(vi) If any Lender fails to make available to the Administrative
Agent for the account of the L/C Issuer any amount required to be paid by
such Lender pursuant to the foregoing provisions of this Section 2.04(c)
by the time specified in Section 2.04(c)(ii), the L/C Issuer shall be
entitled to recover from such Lender (acting through the Administrative
Agent), on demand, such amount with interest thereon for the period from
the date such payment is required to the date on which such payment is
immediately available to the L/C Issuer at a rate per annum equal to the
greater of the Federal Funds Rate and a rate determined by the L/C Issuer
in accordance with banking industry rules on interbank compensation. A
certificate of the L/C Issuer submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under this clause
(vi) shall be conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under any
Letter of Credit and has received from any Lender such Lender's L/C
Advance in respect of such payment in accordance with Section 2.04(c), if
the Administrative Agent receives for the account of the L/C Issuer any
payment in respect of the related Unreimbursed Amount or interest thereon
(whether directly from the Borrower or otherwise, including proceeds of
Cash Collateral applied thereto by the Administrative Agent), the
Administrative Agent will distribute to such Lender its Revolving Credit
Commitment Percentage thereof (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such
Lender's L/C Advance was outstanding) in the same funds as those received
by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.04(c)(i) is required to be
returned under any of the circumstances described in Section 11.05
(including pursuant to any settlement entered into by the L/C Issuer in
its discretion), each Lender shall pay to the Administrative Agent for the
account of the L/C Issuer its Revolving Credit Commitment Percentage
thereof on demand of the Administrative Agent, plus interest thereon from
the date of
41
such demand to the date such amount is returned by such Lender, at a rate
per annum equal to the Federal Funds Rate from time to time in effect. The
obligations of the Lenders under this clause shall survive the payment in
full of the Obligations and the termination of this Agreement.
(e) Obligations Absolute. The obligation of the Borrower to reimburse the
L/C Issuer for each drawing under each Letter of Credit and to repay each L/C
Borrowing shall be absolute, unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement under all circumstances,
including the following:
(i) any lack of validity or enforceability of such Letter of Credit,
this Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff, defense or
other right that the Borrower or any Subsidiary may have at any time
against any beneficiary or any transferee of such Letter of Credit (or any
Person for whom any such beneficiary or any such transferee may be
acting), the L/C Issuer or any other Person, whether in connection with
this Agreement, the transactions contemplated hereby or by such Letter of
Credit or any agreement or instrument relating thereto, or any unrelated
transaction;
(iii) any draft, demand, certificate or other document presented
under such Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit; or any payment made by the
L/C Issuer under such Letter of Credit to any Person purporting to be a
trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to
any beneficiary or any transferee of such Letter of Credit, including any
arising in connection with any proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of, the
Borrower or any Subsidiary.
The Borrower shall promptly examine a copy of each Letter of Credit and
each amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Borrower's instructions or other irregularity, the
Borrower will immediately notify the L/C Issuer. The Borrower shall be
conclusively deemed to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying
any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any
42
document (other than any sight draft, certificates and documents expressly
required by the Letter of Credit) or to ascertain or inquire as to the validity
or accuracy of any such document or the authority of the Person executing or
delivering any such document. None of the L/C Issuer, the Administrative Agent,
any of their respective Related Parties nor any correspondent, participant or
assignee of the L/C Issuer shall be liable to any Lender for (i) any action
taken or omitted in connection herewith at the request or with the approval of
the Lenders or the Required Lenders, as applicable; (ii) any action taken or
omitted in the absence of gross negligence or willful misconduct; or (iii) the
due execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Issuer Document. The Borrower
hereby assumes all risks of the acts or omissions of any beneficiary or
transferee with respect to its use of any Letter of Credit; provided, however,
that this assumption is not intended to, and shall not, preclude the Borrower's
pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. None of the L/C Issuer, the
Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the L/C Issuer shall be liable or
responsible for any of the matters described in clauses (i) through (v) of
Section 2.04(e); provided, however, that anything in such clauses to the
contrary notwithstanding, the Borrower may have a claim against the L/C Issuer,
and the L/C Issuer may be liable to the Borrower, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary, damages
suffered by the Borrower which the Borrower proves were caused by the L/C
Issuer's willful misconduct or gross negligence or the L/C Issuer's willful
failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the
terms and conditions of a Letter of Credit. In furtherance and not in limitation
of the foregoing, the L/C Issuer may accept documents that appear on their face
to be in order, without responsibility for further investigation, regardless of
any notice or information to the contrary, and the L/C Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the Administrative Agent, (i) if
the L/C Issuer has honored any full or partial drawing request under any Letter
of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of
the Letter of Credit Expiration Date, any L/C Obligation for any reason remains
outstanding, the Borrower shall, in each case, immediately Cash Collateralize
the then Outstanding Amount of all L/C Obligations. Sections 2.06 and 9.02(c)
set forth certain additional requirements to deliver Cash Collateral hereunder.
For purposes of this Section 2.04, Section 2.06 and Section 9.02(c), "Cash
Collateralize" means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of the L/C Issuer and the Lenders, as collateral for the
L/C Obligations, cash or deposit account balances pursuant to documentation in
form and substance satisfactory to the Administrative Agent and the L/C Issuer
(which documents are hereby consented to by the Lenders). Derivatives of such
term have corresponding meanings. The Borrower hereby grants to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, a
security interest in all such cash, deposit accounts and all balances therein
and all proceeds of the foregoing. Cash Collateral shall be maintained in
blocked, non-interest bearing deposit accounts at Bank of America.
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(h) Applicability of ISP. Unless otherwise expressly agreed by the L/C
Issuer and the Borrower when a Letter of Credit is issued (including any such
agreement applicable to an Existing Letter of Credit), the rules of the ISP
shall apply to each standby Letter of Credit as most recently published by the
International Chamber of Commerce at the time of issuance.
(i) Letter of Credit Fees. The Borrower shall pay to the Administrative
Agent for the account of each Lender in accordance with its Revolving Credit
Commitment Percentage a Letter of Credit fee (the "Letter of Credit Fee") for
each Letter of Credit equal to the Applicable Rate times the daily amount
available to be drawn under such Letter of Credit. For purposes of computing the
daily amount available to be drawn under any Letter of Credit, the amount of
such Letter of Credit shall be determined in accordance with Section 1.07.
Letter of Credit Fees shall be (i) computed on a quarterly basis in arrears and
(ii) due and payable on the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the issuance of
such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on
demand. If there is any change in the Applicable Rate during any quarter, the
daily amount available to be drawn under each Letter of Credit shall be computed
and multiplied by the Applicable Rate separately for each period during such
quarter that such Applicable Rate was in effect. Notwithstanding anything to the
contrary contained herein, upon the request of the Required Lenders, while any
Event of Default exists, all Letter of Credit Fees shall accrue at the Default
Rate.
(j) Fronting Fee and Documentary and Processing Charges Payable to L/C
Issuer. The Borrower shall pay directly to the L/C Issuer for its own account a
fronting fee with respect to each Letter of Credit, at the rate per annum
specified in the Fee Letter, computed on the daily amount available to be drawn
under such Letter of Credit and on a quarterly basis in arrears, and due and
payable on the first Business Day after the end of each March, June, September
and December, commencing with the first date to occur after the issuance of such
Letter of Credit, on the Letter of Credit Expiration Date and thereafter on
demand. For purposes of computing the daily amount available to be drawn under
any Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.07. In addition, the Borrower shall pay directly to
the L/C Issuer for its own account the customary issuance, presentation,
amendment and other processing fees, and other standard costs and charges, of
the L/C Issuer relating to letters of credit as from time to time in effect.
Such customary fees and standard costs and charges are due and payable on demand
and are nonrefundable.
(k) Conflict with Issuer Documents. In the event of any conflict between
the terms hereof and the terms of any Issuer Document, the terms hereof shall
control.
(l) Letters of Credit Issued for Subsidiaries. Notwithstanding that a
Letter of Credit issued or outstanding hereunder is in support of any
obligations of, or is for the account of, a Subsidiary, the Borrower shall be
obligated to reimburse the L/C Issuer hereunder for any and all drawings under
such Letter of Credit. The Borrower hereby acknowledges that the issuance of
Letters of Credit for the account of Subsidiaries inures to the benefit of the
Borrower, and that the Borrower's business derives substantial benefits from the
businesses of such Subsidiaries.
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2.05 SWING LINE LOANS.
(a) The Swing Line. Subject to the terms and conditions set forth herein,
the Swing Line Lender agrees, in reliance upon the agreements of the other
Lenders set forth in this Section 2.05, to make loans (each such loan, a "Swing
Line Loan") to the Borrower from time to time on any Business Day during the
Availability Period in an aggregate amount not to exceed at any time outstanding
the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing
Line Loans, when aggregated with the Revolving Credit Commitment Percentage of
the Outstanding Amount of Revolving Credit Loans and L/C Obligations of the
Lender acting as Swing Line Lender, may exceed the amount of such Lender's
Commitment; provided, however, that after giving effect to any Swing Line Loan,
(i) the Revolving Credit Outstandings shall not exceed the Revolving Credit
Commitments, and (ii) the aggregate Outstanding Amount of the Revolving Credit
Loans of any Lender, plus such Lender's Revolving Credit Commitment Percentage
of the Outstanding Amount of all L/C Obligations, plus such Lender's Revolving
Credit Commitment Percentage of the Outstanding Amount of all Swing Line Loans
shall not exceed such Lender's Revolving Credit Commitment, and provided,
further, that the Borrower shall not use the proceeds of any Swing Line Loan to
refinance any outstanding Swing Line Loan. Within the foregoing limits, and
subject to the other terms and conditions hereof, the Borrower may borrow under
this Section 2.05, prepay under Section 2.06, and reborrow under this Section
2.05. Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the
making of a Swing Line Loan, each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a
risk participation in such Swing Line Loan in an amount equal to the product of
such Lender's Revolving Credit Commitment Percentage times the amount of such
Swing Line Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the
Borrower's irrevocable notice to the Swing Line Lender and the Administrative
Agent, which may be given by telephone. Each such notice must be received by the
Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the
requested borrowing date, and shall specify (i) the amount to be borrowed, which
shall be a minimum of $200,000, and (ii) the requested borrowing date, which
shall be a Business Day. Each such telephonic notice must be confirmed promptly
by delivery to the Swing Line Lender and the Administrative Agent of a written
Swing Line Loan Notice, appropriately completed and signed by a Responsible
Officer of the Borrower. Promptly after receipt by the Swing Line Lender of any
telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent
has also received such Swing Line Loan Notice and, if not, the Swing Line Lender
will notify the Administrative Agent (by telephone or in writing) of the
contents thereof. Unless the Swing Line Lender has received notice (by telephone
or in writing) from the Administrative Agent (including at the request of any
Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A)
directing the Swing Line Lender not to make such Swing Line Loan as a result of
the limitations set forth in the proviso to the first sentence of Section
2.05(a), or (B) that one or more of the applicable conditions specified in
Article IV is not then satisfied, then, subject to the terms and conditions
hereof, the Swing Line Lender will, not later than 3:00 p.m. on the borrowing
date specified in such Swing Line Loan Notice, make the amount of its Swing Line
Loan available to the Borrower at its office by crediting the account of the
Borrower on the books of the Swing Line Lender in immediately available funds.
45
Notwithstanding the foregoing, in order to facilitate the borrowing of Swing
Line Loans, the Borrower and the Swing Line Lender may, and are hereby
authorized to, enter into an Autoborrow Agreement providing for the automatic
advance by the Swing Line Lender of Swing Line Loans under the conditions set
forth in such Autoborrow Agreement and without the necessity for any notice by
the Borrower otherwise required by this Section 2.05(b).
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole and absolute
discretion may request, on behalf of the Borrower (which hereby
irrevocably authorizes the Swing Line Lender to so request on its behalf),
that each Lender make a Revolving Credit Loan bearing interest at the Base
Rate in an amount equal to such Lender's Revolving Credit Commitment
Percentage of the amount of Swing Line Loans then outstanding. Such
request shall be made in writing (which written request shall be deemed to
be a Loan Notice for purposes hereof) and in accordance with the
requirements of Section 2.01(b), without regard to the minimum and
multiples specified therein for the principal amount of Base Rate Loans,
but subject to the unutilized portion of the Revolving Credit Commitments
and the conditions set forth in Section 4.02. The Swing Line Lender shall
furnish the Borrower with a copy of the applicable Loan Notice promptly
after delivering such notice to the Administrative Agent. Each Lender
shall make an amount equal to its Revolving Credit Commitment Percentage
of the amount specified in such Loan Notice available to the
Administrative Agent in immediately available funds for the account of the
Swing Line Lender at the Administrative Agent's Office not later than 1:00
p.m. on the day specified in such Loan Notice, whereupon, subject to
Section 2.05(c)(ii), each Lender that so makes funds available shall be
deemed to have made a Revolving Credit Loan bearing interest at the Base
Rate to the Borrower in such amount. The Administrative Agent shall remit
the funds so received to the Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced by
such a Revolving Credit Borrowing in accordance with Section 2.05(c)(i),
the request for Revolving Credit Loans bearing interest at the Base Rate
submitted by the Swing Line Lender as set forth herein shall be deemed to
be a request by the Swing Line Lender that each of the Lenders fund its
risk participation in the relevant Swing Line Loan and each Lender's
payment to the Administrative Agent for the account of the Swing Line
Lender pursuant to Section 2.05(c)(i) shall be deemed payment in respect
of such participation.
(iii) If any Lender fails to make available to the Administrative
Agent for the account of the Swing Line Lender any amount required to be
paid by such Lender pursuant to the foregoing provisions of this Section
2.05(c) by the time specified in Section 2.05(c)(i), the Swing Line Lender
shall be entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for
the period from the date such payment is required to the date on which
such payment is immediately available to the Swing Line Lender at a rate
per annum equal to the greater of the Federal Funds Rate and a rate
determined by the Swing Line Lender in accordance with banking industry
rules on interbank compensation. A certificate of the Swing Line Lender
submitted to any Lender (through the Administrative Agent) with
46
respect to any amounts owing under this clause (iii) shall be conclusive
absent manifest error.
(iv) Each Lender's obligation to make Revolving Credit Loans or to
purchase and fund risk participations in Swing Line Loans pursuant to this
Section 2.05(c) shall be absolute and unconditional and shall not be
affected by any circumstance, including (A) any setoff, counterclaim,
recoupment, defense or other right which such Lender may have against the
Swing Line Lender, the Borrower or any other Person for any reason
whatsoever, (B) the occurrence or continuance of a Default, or (C) any
other occurrence, event or condition, whether or not similar to any of the
foregoing; provided, however, that each Lender's obligation to make
Revolving Credit Loans pursuant to this Section 2.05(c) is subject to the
conditions set forth in Section 4.02. No such funding of risk
participations shall relieve or otherwise impair the obligation of the
Borrower to repay Swing Line Loans, together with interest as provided
herein.
(d) Repayment of Participations.
(i) At any time after any Lender has purchased and funded a risk
participation in a Swing Line Loan, if the Swing Line Lender receives any
payment on account of such Swing Line Loan, the Swing Line Lender will
distribute to such Lender its Revolving Credit Commitment Percentage of
such payment (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender's risk participation
was funded) in the same funds as those received by the Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in respect of
principal or interest on any Swing Line Loan is required to be returned by
the Swing Line Lender under any of the circumstances described in Section
11.05 (including pursuant to any settlement entered into by the Swing Line
Lender in its discretion), each Lender shall pay to the Swing Line Lender
its Revolving Credit Commitment Percentage thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand
to the date such amount is returned, at a rate per annum equal to the
Federal Funds Rate. The Administrative Agent will make such demand upon
the request of the Swing Line Lender. The obligations of the Lenders under
this clause shall survive the payment in full of the Obligations and the
termination of this Agreement.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender shall
be responsible for invoicing the Borrower for interest on the Swing Line Loans.
Until each Lender funds its Revolving Credit Loan bearing interest at the Base
Rate or risk participation pursuant to this Section 2.05 to refinance such
Lender's Revolving Credit Commitment Percentage of any Swing Line Loan, interest
in respect of such Revolving Credit Commitment Percentage shall be solely for
the account of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Borrower shall make all
payments of principal and interest in respect of the Swing Line Loans directly
to the Swing Line Lender.
47
2.06 PREPAYMENTS.
(a) Voluntary Prepayments of Revolving Credit Loans. The Borrower may,
upon notice to the Administrative Agent, at any time or from time to time
voluntarily prepay Revolving Credit Loans in whole or in part without premium or
penalty; provided that (i) such notice must be received by the Administrative
Agent not later than 11:00 a.m. (A) three Business Days prior to any date of
prepayment of Eurodollar Rate Loans and (B) on the date of prepayment of Base
Rate Revolving Credit Loans; (ii) any prepayment of Eurodollar Rate Loans shall
be in a principal amount of $1,000,000 or a whole multiple of $100,000 in excess
thereof; and (iii) any prepayment of Base Rate Revolving Credit Loans shall be
in a principal amount of $100,000 or a whole multiple of $100,000 in excess
thereof or, in each case, if less, the entire principal amount thereof then
outstanding. Each such notice shall specify the date and amount of such
prepayment and the Type(s) of Revolving Credit Loans to be prepaid. The
Administrative Agent will promptly notify each Lender of its receipt of each
such notice, and of the amount of such Lender's Revolving Credit Commitment
Percentage of such prepayment. If such notice is given by the Borrower, the
Borrower shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein. Any prepayment of
a Eurodollar Rate Loan shall be accompanied by all accrued interest thereon,
together with any additional amounts required pursuant to Section 3.05. Each
such prepayment shall be applied to the Revolving Credit Loans of the Lenders in
accordance with their respective Revolving Credit Commitment Percentages.
(b) Voluntary Prepayments of Swing Line Loans. The Borrower may, upon
notice to the Swing Line Lender (with a copy to the Administrative Agent), at
any time or from time to time, voluntarily prepay Swing Line Loans in whole or
in part without premium or penalty; provided that (i) such notice must be
received by the Swing Line Lender and the Administrative Agent not later than
1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be
in a minimum principal amount of $100,000 (or, if less, the aggregate amount of
Swing Line Loans then outstanding). Each such notice shall specify the date and
amount of such prepayment. If such notice is given by the Borrower, the Borrower
shall make such prepayment and the payment amount specified in such notice shall
be due and payable on the date specified therein.
(c) Voluntary Prepayments of Term Loan. The Borrower may, upon notice to
the Administrative Agent, at any time or from time to time voluntarily prepay
the Term Loan in whole or in part without premium or penalty; provided that (i)
such notice must be received by the Administrative Agent not later than 11:00
a.m. (A) three Business Days prior to any date of prepayment of Eurodollar Rate
Loans and (B) on the date of prepayment of Base Rate Loans; (ii) any prepayment
of Eurodollar Rate Loans shall be in a principal amount of $1,000,000 or a whole
multiple of $100,000 in excess thereof; and (iii) any prepayment of Base Rate
Loans shall be in a principal amount of $100,000 or a whole multiple of $100,000
in excess thereof or, in each case, if less, the entire principal amount thereof
then outstanding. Each such notice shall specify the date and amount of such
prepayment and the Type(s) of Loans to be prepaid. The Administrative Agent will
promptly notify each Lender of its receipt of each such notice, and of the
amount of such Lender's Term Loan Percentage of such prepayment. If such notice
is given by the Borrower, the Borrower shall make such prepayment and the
payment amount specified in
48
such notice shall be due and payable on the date specified therein. Any
prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued
interest thereon, together with any additional amounts required pursuant to
Section 3.05. Each such prepayment shall be applied to the outstanding principal
installments of the Term Loan in inverse order of maturity thereof (and shall be
applied to the Term Loan of the Lenders in accordance with their respective Term
Loan Percentages).
(d) Mandatory Prepayments of Revolving Credit Loans.
(i) If for any reason the Revolving Credit Outstandings at any
time exceed the Revolving Credit Commitments then in effect, the Borrower shall
immediately prepay Revolving Credit Loans and/or Swing Line Loans and/or Cash
Collateralize the L/C Obligations in an aggregate amount equal to such excess;
provided, however, that the Borrower shall not be required to Cash Collateralize
the L/C Obligations pursuant to this Section 2.06(d) unless after the prepayment
in full of the Revolving Credit Loans and Swing Line Loans the Revolving Credit
Outstandings exceed the Revolving Credit Commitments then in effect.
(ii) Repayment of Excess Proceeds. In the event proceeds ("Excess
Proceeds") remain after the prepayment of Term Loans pursuant to Section
2.06(e)(i) or 2.06(e)(ii), the amount of such Excess Proceeds shall be used on
the date of the required prepayment under Section 2.06(e)(i) or 2.06(e)(ii), as
applicable, to prepay the outstanding principal amount of the Revolving Credit
Loans with a corresponding reduction of the Revolving Credit Commitment in which
case the Revolving Credit Commitment shall be permanently reduced by such amount
as of the date of the applicable required prepayment, unless such Excess
Proceeds result from a prepayment event described in Section 2.06(e)(ii) as a
result of the incurrence of Indebtedness pursuant to Section 7.03(j) or Section
7.03(l). Any such reduction of the Revolving Credit Commitments shall be applied
to the Revolving Credit Commitment of each Lender according to its Revolving
Credit Percentage.
(e) Mandatory Prepayments of Term Loan.
(i) Asset Sale Proceeds; Insurance and Condemnation Proceeds.
Within three hundred (300) days following the receipt by any Credit Party
of any Net Cash Proceeds (A) from any Disposition or series of related
Dispositions of assets not otherwise permitted pursuant to Section
7.05(a), (b), (c), (d) and (f) and Section 7.04(a) and (b) or (B) under
any of the insurance policies maintained pursuant to Section 6.07 or from
any condemnation proceeding (any such Net Cash Proceeds described in the
foregoing clauses (A) and (B), "Disposition Proceeds"), the Borrower (or
applicable Credit Party) shall apply such Disposition Proceeds at its
option (and the Borrower shall deliver an officer's certificate to the
Administrative Agent describing which option it has selected promptly
following receipt of any such Disposition Proceeds):
(A) to (I) acquire real property, equipment or other
replacement assets to be used in the business of the Credit
Parties, (II) to fund a Qualifying Investment, or (III) or
enter into a binding agreement to consummate any of the
transactions described in the foregoing clause (I) or (II), so
long as
49
such transaction is consummated within three hundred (300)
days after the date of such binding agreement, or
(B) to make a mandatory principal prepayment of the Loans in
the manner set forth in Section 2.06(e)(iv) below, or
(C) to repay third party Consolidated Senior Secured
Indebtedness (and, if the Consolidated Secured Indebtedness
repaid is revolving credit Indebtedness, to correspondingly
and permanently reduce commitments with respect thereto);
provided that if the Consolidated Senior Secured Leverage
Ratio as of the fiscal quarter end immediately preceding the
date of receipt of such Disposition Proceeds is greater than
or equal to 2.00 to 1.00, the amount of third party
Consolidated Senior Secured Indebtedness permitted to be
repaid pursuant to this clause (C) shall not exceed an amount
equal to fifty percent (50%) of such Disposition Proceeds.
Any Disposition Proceeds that are not applied or invested as provided in
the preceding clauses (A), (B) or (C) will constitute "Surplus Proceeds."
Within five (5) days after the aggregate amount of Surplus Proceeds
exceeds $15,000,000, the Borrower will make a mandatory principal
prepayment of the Loans in the manner set forth in Section 2.06(e)(iv) in
an amount equal to such Surplus Proceeds.
(ii) Debt Proceeds. The Borrower shall make mandatory principal
prepayments of the Term Loans in the manner set forth in Section
2.06(e)(iv) below in amounts equal to one hundred (100%) of the aggregate
Net Cash Proceeds from any incurrence by any Credit Party of any
Indebtedness not otherwise permitted pursuant to Section 7.03(a) through
Section 7.03(i) (excluding any refinancing Indebtedness incurred pursuant
to the proviso of Section 7.03(j) or the proviso of Section 7.03(k),
solely to the extent that the Borrower has previously made a mandatory
repayment with the Net Cash Proceeds of the Indebtedness originally
incurred pursuant to such Section 7.03(j) or Section 7.03(k) and being
refinanced). Such prepayment shall be made within three (3) Business Days
after the date of receipt of such Net Cash Proceeds. (This provision shall
not be deemed to permit the incurrence of Indebtedness not otherwise
permitted pursuant to this Agreement.)
(iii) Excess Cash Flow. Within one hundred (100) days after the end
of any Fiscal Year, commencing with the Fiscal Year ending September 30,
2005, for which the Consolidated Total Leverage Ratio as of the end of
such Fiscal Year equals or exceeds 3.00 to 1.00, the Borrower shall make a
mandatory principal prepayment of the Loans in the manner set forth in
Section 2.06(e)(iv) below in an amount equal to fifty percent (50%) of
Excess Cash Flow, if any, for such Fiscal Year.
(iv) Notice; Manner of Payment. Upon the occurrence of any event
triggering the prepayment requirement under Sections 2.06(e)(i) through
and including 2.06(e)(iii), the Borrower shall promptly give written
notice to the Administrative Agent and upon receipt of such notice, the
Administrative Agent shall promptly so notify the Lenders. Each prepayment
under this Section 2.06(e) shall be applied as follows: first, to reduce
50
on a pro rata basis the remaining scheduled principal installments of the
Term Loan, pursuant to Section 2.08(c) and (ii) second, to the extent of
any excess, to repay the Revolving Credit Loans, and if applicable, to
reduce permanently the Revolving Credit Commitments, pursuant to Section
2.06(d)(ii).
(v) Amounts prepaid under the Term Loan pursuant to this Section
2.06(e) may not be reborrowed and will constitute a permanent reduction in
the Term Loan Commitment. Each prepayment shall be accompanied by any
amount required to be paid pursuant to Section 3.05 hereof.
2.07 VOLUNTARY TERMINATION OR REDUCTION OF REVOLVING CREDIT COMMITMENTS.
The Borrower may, upon notice to the Administrative Agent, terminate the
Revolving Credit Commitments, or from time to time permanently reduce the
Revolving Credit Commitments; provided that (i) any such notice shall be
received by the Administrative Agent not later than 11:00 a.m. five Business
Days prior to the date of termination or reduction, (ii) any such partial
reduction shall be in an aggregate amount of $5,000,000 or any whole multiple of
$1,000,000 in excess thereof, (iii) the Borrower shall not terminate or reduce
the Revolving Credit Commitments if, after giving effect thereto and to any
concurrent prepayments hereunder, the Revolving Credit Outstandings would exceed
the Revolving Credit Commitments, and (iv) if, after giving effect to any
reduction of the Revolving Credit Commitments, the Letter of Credit Sublimit or
the Swing Line Sublimit exceeds the amount of the Revolving Credit Commitments,
such Sublimit shall be automatically reduced by the amount of such excess. The
Administrative Agent will promptly notify the Lenders of any such notice of
termination or reduction of the Revolving Credit Commitments. Any reduction of
the Revolving Credit Commitments shall be applied to the Revolving Credit
Commitment of each Lender according to its Revolving Credit Commitment
Percentage. All commitment fees accrued until the effective date of any
termination of the Revolving Credit Commitments shall be paid on the effective
date of such termination.
2.08 REPAYMENT OF LOANS.
(a) Repayment of Revolving Credit Loans. The Borrower shall repay to the
Lenders on the Revolving Credit Maturity Date the aggregate principal amount of
Revolving Credit Loans outstanding on such date.
(b) Repayment of Swing Line Loans. The Borrower shall repay each Swing
Line Loan on the earlier to occur of (i) the date five Business Days after such
Loan is made and (ii) the Revolving Credit Maturity Date.
(c) Repayment of Term Loan. The Borrower shall repay the outstanding
principal amount of the Term Loan in consecutive quarterly installments
commencing September 30, 2004 as follows (as such installments may hereafter be
adjusted as a result of prepayments made pursuant to Section 2.06(e)), in each
case unless accelerated sooner pursuant to Section 9.02:
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PRINCIPAL AMORTIZATION PAYMENT DATES AMORTIZATION PAYMENT
------------------------------------ --------------------
September 30, 2004 $ 250,000
December 31, 2004 $ 250,000
March 31, 2005 $ 250,000
June 30, 2005 $ 250,000
September 30, 2005 $ 250,000
December 31, 2005 $ 250,000
March 31, 2006 $ 250,000
June 30, 2006 $ 250,000
September 30, 2006 $ 250,000
December 31, 2006 $ 250,000
March 31, 2007 $ 250,000
June 30, 2007 $ 250,000
September 30, 2007 $ 250,000
December 31, 2007 $ 250,000
March 31, 2008 $ 250,000
June 30, 2008 $ 250,000
September 30, 2008 $ 250,000
December 31, 2008 $ 250,000
March 31, 2009 $ 250,000
June 30, 2009 $ 250,000
September 30, 2009 $11,875,000
December 31, 2009 $11,875,000
March 31, 2010 $11,875,000
June 30, 2010 $11,875,000
September 30, 2010 $11,875,000
December 31, 2010 $11,875,000
March 31, 2011 $11,875,000
June 30, 2011 $11,875,000
If not sooner paid, the Term Loan shall be paid in full, together with accrued
interest thereon, on the Term Loan Maturity Date.
2.09 INTEREST.
(a) Subject to the provisions of subsection (b) below, (i) each
Eurodollar Rate Loan shall bear interest on the outstanding principal amount
thereof for each Interest Period at a rate per annum equal to the Eurodollar
Rate for such Interest Period plus the Applicable Rate; (ii) each Base Rate Loan
(other than Swing Line Loans) shall bear interest on the outstanding principal
amount thereof from the applicable borrowing date at a rate per annum equal to
the Base Rate plus the Applicable Rate; and (iii) each Swing Line Loan shall
bear interest on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the Base Rate.
(b) (i) If any amount of principal of any Loan is not paid when due
(without regard to any applicable grace periods), whether at stated maturity, by
acceleration or otherwise, such amount shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws.
52
(ii) If any amount (other than principal of any Loan) payable by
the Borrower under any Loan Document is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration or
otherwise, then upon the request of the Required Lenders, such amount shall
thereafter bear interest at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable Laws.
(iii) Upon the request of the Required Lenders, while any Event of
Default exists, the Borrower shall pay interest on the principal amount of all
outstanding Obligations hereunder at a fluctuating interest rate per annum at
all times equal to the Default Rate to the fullest extent permitted by
applicable Laws.
(iv) Accrued and unpaid interest on past due amounts (including
interest on past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
2.10 FEES. In addition to certain fees described in subsections (i) and
(j) of Section 2.04:
(a) Commitment Fee. The Borrower shall pay to the Administrative Agent
for the account of each Lender in accordance with its Revolving Credit
Commitment Percentage, a commitment fee equal to the Applicable Rate times the
actual daily amount by which the Revolving Credit Commitments exceed the sum of
(i) the Outstanding Amount of Revolving Credit Loans and (ii) the Outstanding
Amount of L/C Obligations. The commitment fee shall accrue at all times during
the Availability Period, including at any time during which one or more of the
conditions in Article IV is not met, and shall be due and payable quarterly in
arrears on the last Business Day of each March, June, September and December,
commencing with the first such date to occur after the Closing Date, and on the
Revolving Credit Maturity Date. The commitment fee shall be calculated quarterly
in arrears, and if there is any change in the Applicable Rate during any
quarter, the actual daily amount shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect. Notwithstanding anything contained in this
Section 2.10(a) to the contrary, the Outstanding Amount of any Swing Line Loan
shall not be deemed to constitute any portion of the Outstanding Amount of
Revolving Credit Loans for this Section 2.10(a).
(b) Other Fees.
(i) The Borrower shall pay to BAS and the Administrative Agent for
their own respective accounts fees in the amounts and at the times
specified in the Fee Letter. Such fees shall be fully earned when paid and
shall not be refundable for any reason whatsoever.
53
(ii) The Borrower shall pay to the Lenders such fees as shall have
been separately agreed upon in writing in the amounts and at the times so
specified. Such fees shall be fully earned when paid and shall not be
refundable for any reason whatsoever.
2.11 COMPUTATION OF INTEREST AND FEES. All computations of interest for
Base Rate Loans when the Base Rate is determined by Bank of America's "prime
rate" shall be made on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed. All other computations of fees and interest shall
be made on the basis of a 360-day year and actual days elapsed (which results in
more fees or interest, as applicable, being paid than if computed on the basis
of a 365-day year). Interest shall accrue on each Loan for the day on which the
Loan is made, and shall not accrue on a Loan, or any portion thereof, for the
day on which the Loan or such portion is paid, provided that any Loan that is
repaid on the same day on which it is made shall, subject to Section 2.13(a),
bear interest for one day. Each determination by the Administrative Agent of an
interest rate or fee hereunder shall be conclusive and binding for all purposes,
absent manifest error.
2.12 EVIDENCE OF DEBT.
(a) The Credit Extensions made by each Lender shall be evidenced by one
or more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by
the Administrative Agent and each Lender shall be conclusive absent manifest
error of the amount of the Credit Extensions made by the Lenders to the Borrower
and the interest and payments thereon. Any failure to so record or any error in
doing so shall not, however, limit or otherwise affect the obligation of the
Borrower hereunder to pay any amount owing with respect to the Obligations. In
the event of any conflict between the accounts and records maintained by any
Lender and the accounts and records of the Administrative Agent in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error. Upon the request of any Lender made through
the Administrative Agent, the Borrower shall execute and deliver to such Lender
(through the Administrative Agent) a Note, which shall evidence such Lender's
Loans in addition to such accounts or records. Each Lender may attach schedules
to its Note and endorse thereon the date, Type (if applicable), amount and
maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection
(a), each Lender and the Administrative Agent shall maintain in accordance with
its usual practice accounts or records evidencing the purchases and sales by
such Lender of participations in Letters of Credit and Swing Line Loans. In the
event of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error.
54
2.13 PAYMENTS GENERALLY; ADMINISTRATIVE AGENT'S CLAWBACK.
(a) General. All payments to be made by the Borrower shall be made
without condition or deduction for any counterclaim, defense, recoupment or
setoff. Except as otherwise expressly provided herein, all payments by the
Borrower hereunder shall be made to the Administrative Agent, for the account of
the respective Lenders to which such payment is owed, at the Administrative
Agent's Office in Dollars and in immediately available funds not later than 2:00
p.m. on the date specified herein. The Administrative Agent will promptly
distribute to each Lender its Revolving Credit Commitment Percentage or Term
Loan Percentage, as applicable (or other applicable share as provided herein) of
such payment in like funds as received by wire transfer to such Lender's Lending
Office. All payments received by the Administrative Agent after 2:00 p.m. shall
be deemed received on the next succeeding Business Day and any applicable
interest or fee shall continue to accrue. If any payment to be made by the
Borrower shall come due on a day other than a Business Day, payment shall be
made on the next following Business Day, and such extension of time shall be
reflected in computing interest or fees, as the case may be.
(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless
the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender's share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available on such date in
accordance with Section 2.01 or Section 2.02, as applicable, and may, in
reliance upon such assumption, make available to the Borrower a corresponding
amount. In such event, if a Lender has not in fact made its share of the
applicable Borrowing available to the Administrative Agent, then the applicable
Lender and the Borrower severally agree to pay to the Administrative Agent
forthwith on demand such corresponding amount in immediately available funds
with interest thereon, for each day from and including the date such amount is
made available to the Borrower to but excluding the date of payment to the
Administrative Agent, at (A) in the case of a payment to be made by such Lender,
the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation and (B) in the case of a payment to be made by the Borrower, the
interest rate applicable to Base Rate Loans. If the Borrower and such Lender
shall pay such interest to the Administrative Agent for the same or an
overlapping period, the Administrative Agent shall promptly remit to the
Borrower the amount of such interest paid by the Borrower for such period. If
such Lender pays its share of the applicable Borrowing to the Administrative
Agent, then the amount so paid shall constitute such Lender's applicable Loan
included in such Borrowing. Any payment by the Borrower shall be without
prejudice to any claim the Borrower may have against a Lender that shall have
failed to make such payment to the Administrative Agent.
(ii) Payments by Borrower; Presumptions by Administrative Agent.
Unless the Administrative Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Administrative Agent for
the account of the Lenders or the L/C Issuer hereunder that the Borrower will
not make such payment, the Administrative Agent may assume that the Borrower has
made such payment on such date in accordance herewith and may,
55
in reliance upon such assumption, distribute to the Lenders or the L/C Issuer,
as the case may be, the amount due. In such event, if the Borrower has not in
fact made such payment, then each of the Lenders or the L/C Issuer, as the case
may be, severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender or the L/C Issuer, in
immediately available funds with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the greater of the Federal Funds Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation.
A notice of the Administrative Agent to any Lender or the Borrower
with respect to any amount owing under this subsection (b) shall be conclusive,
absent manifest error.
(c) Failure to Satisfy Conditions Precedent. If any Lender makes
available to the Administrative Agent funds for any Loan to be made by such
Lender as provided in the foregoing provisions of this Article II, and such
funds are not made available to the Borrower by the Administrative Agent because
the conditions to the applicable Credit Extension set forth in Article IV are
not satisfied or waived in accordance with the terms hereof, the Administrative
Agent shall return such funds (in like funds as received from such Lender) to
such Lender, without interest.
(d) Obligations of Lenders Several. The obligations of the Lenders
hereunder to make Loans, and to fund participations in Letters of Credit and
Swing Line Loans and to make payments pursuant to Section 11.04(c) are several
and not joint. The failure of any Lender to make any Loan, to fund any such
participation or to make any payment under Section 11.04(c) on any date required
hereunder shall not relieve any other Lender of its corresponding obligation to
do so on such date, and no Lender shall be responsible for the failure of any
other Lender to so make its Loan, to purchase its participation or to make its
payment under Section 11.04(c).
(e) Funding Source. Nothing herein shall be deemed to obligate any
Lender to obtain the funds for any Loan in any particular place or manner or to
constitute a representation by any Lender that it has obtained or will obtain
the funds for any Loan in any particular place or manner.
2.14 SHARING OF PAYMENTS BY LENDERS. If any Lender shall, by exercising
any right of setoff or counterclaim or otherwise, obtain payment in respect of
any principal of or interest on any of the Loans made by it, or the
participations in L/C Obligations or in Swing Line Loans held by it resulting in
such Lender's receiving payment of a proportion of the aggregate amount of such
Loans or participations and accrued interest thereon greater than its pro rata
share thereof as provided herein, then the Lender receiving such greater
proportion shall (a) notify the Administrative Agent of such fact, and (b)
purchase (for cash at face value) participations in the applicable Loans and
with respect to any Lender having a Revolving Credit Commitment,
subparticipations in L/C Obligations and Swing Line Loans of the other Lenders
having a Revolving Credit Commitment, or make such other adjustments as shall be
equitable, so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Loans and other amounts owing them,
provided that:
56
(i) if any such participations or subparticipations are purchased
and all or any portion of the payment giving rise thereto is recovered,
such participations or subparticipations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest;
and
(ii) the provisions of this Section shall not be construed to apply
to (x) any payment made by the Borrower pursuant to and in accordance with
the express terms of this Agreement or (y) any payment obtained by a
Lender as consideration for the assignment of or sale of a participation
in any of its Loans or subparticipations in L/C Obligations or Swing Line
Loans to any assignee or participant, other than to the Borrower or any
Subsidiary thereof (as to which the provisions of this Section shall
apply).
Each Loan Party consents to the foregoing and agrees, to the extent it
may effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against such
Loan Party rights of setoff and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation.
2.15 SECURITY. The Obligations shall be secured as provided in the
Security Documents.
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Payments Free of Taxes. Any and all payments by or on account of any
obligation of the Borrower hereunder or under any other Loan Document shall be
made free and clear of and without reduction or withholding for any Indemnified
Taxes or Other Taxes, provided that if the Borrower shall be required by
applicable law to deduct any Indemnified Taxes (including any Other Taxes) from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or
L/C Issuer, as the case may be, receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower shall make
such deductions and (iii) the Borrower shall timely pay the full amount deducted
to the relevant Governmental Authority in accordance with applicable law.
(b) Payment of Other Taxes by the Borrower. Without limiting the
provisions of subsection (a) above, the Borrower shall timely pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable law.
(c) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent, each Lender and the L/C Issuer, within ten (10) days after
demand
57
therefor, for the full amount of any Indemnified Taxes or Other Taxes (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) paid by the Administrative Agent, such
Lender or the L/C Issuer, as the case may be, and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto, whether or not
such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to the Borrower by a Lender or the L/C
Issuer (with a copy to the Administrative Agent), or by the Administrative Agent
on its own behalf or on behalf of a Lender or the L/C Issuer, shall be
conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority,
the Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(e) Status of Lenders. Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of the jurisdiction
in which the Borrower is resident for tax purposes, or any treaty to which such
jurisdiction is a party, with respect to payments hereunder or under any other
Loan Document shall deliver to the Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law or reasonably
requested by the Borrower or the Administrative Agent, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate of withholding. In
addition, any Lender, if requested by the Borrower or the Administrative Agent,
shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Borrower or the Administrative Agent as will enable
the Borrower or the Administrative Agent to determine whether or not such Lender
is subject to backup withholding or information reporting requirements.
Without limiting the generality of the foregoing, in the event that the
Borrower is resident for tax purposes in the United States, any Foreign Lender
shall deliver to the Borrower and the Administrative Agent (in such number of
copies as shall be requested by the recipient) on or prior to the date on which
such Foreign Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the request of the Borrower or the Administrative Agent, but
only if such Foreign Lender is legally entitled to do so), whichever of the
following is applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN
claiming eligibility for benefits of an income tax treaty to which the
United States is a party,
(ii) duly completed copies of Internal Revenue Service Form W-8ECI,
(iii) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Code, (x) a
certificate to the effect that such Foreign Lender is not (A) a "bank"
within the meaning of section 881(c)(3)(A) of the Code, (B) a "10 percent
shareholder" of the Borrower within the meaning of section
58
881(c)(3)(B) of the Code, or (C) a "controlled foreign corporation"
described in section 881(c)(3)(C) of the Code and (y) duly completed
copies of Internal Revenue Service Form W-8BEN, or
(iv) any other form prescribed by applicable law as a basis for
claiming exemption from or a reduction in United States Federal
withholding tax duly completed together with such supplementary
documentation as may be prescribed by applicable law to permit the
Borrower to determine the withholding or deduction required to be made.
(f) Treatment of Certain Refunds. If the Administrative Agent, any
Lender or the L/C Issuer determines, in its sole discretion, that it has
received a refund of any Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has paid
additional amounts pursuant to this Section, it shall pay to the Borrower an
amount equal to such refund (but only to the extent of indemnity payments made,
or additional amounts paid, by the Borrower under this Section with respect to
the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Administrative Agent, such Lender or the L/C Issuer, as the case
may be, and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund), provided that the Borrower,
upon the request of the Administrative Agent, such Lender or the L/C Issuer,
agrees to repay the amount paid over to the Borrower (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) to the
Administrative Agent, such Lender or the L/C Issuer in the event the
Administrative Agent, such Lender or the L/C Issuer is required to repay such
refund to such Governmental Authority. This subsection shall not be construed to
require the Administrative Agent, any Lender or the L/C Issuer to make available
its tax returns (or any other information relating to its taxes that it deems
confidential) to the Borrower or any other Person.
3.02 ILLEGALITY. If any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Eurodollar Rate Loans, or to determine or charge interest rates based upon the
Eurodollar Rate, or any Governmental Authority has imposed material restrictions
on the authority of such Lender to purchase or sell, or to take deposits of,
Dollars in the London interbank market, then, on notice thereof by such Lender
to the Borrower through the Administrative Agent, any obligation of such Lender
to make or continue Eurodollar Rate Loans or to convert Base Rate Loans (other
than a Swing Line Loan) to Eurodollar Rate Loans shall be suspended until such
Lender notifies the Administrative Agent and the Borrower that the circumstances
giving rise to such determination no longer exist. Upon receipt of such notice,
the Borrower shall, upon demand from such Lender (with a copy to the
Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate
Loans of such Lender to Base Rate Loans, either on the last day of the Interest
Period therefor, if such Lender may lawfully continue to maintain such
Eurodollar Rate Loans to such day, or immediately, if such Lender may not
lawfully continue to maintain such Eurodollar Rate Loans. Upon any such
prepayment or conversion, the Borrower shall also pay accrued interest on the
amount so prepaid or converted.
3.03 INABILITY TO DETERMINE RATES. If the Required Lenders determine that
for any reason in connection with any request for a Eurodollar Rate Loan or a
conversion to or
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continuation thereof that (a) Dollar deposits are not being offered to banks in
the London interbank eurodollar market for the applicable amount and Interest
Period of such Eurodollar Rate Loan, (b) adequate and reasonable means do not
exist for determining the Eurodollar Base Rate for any requested Interest Period
with respect to a proposed Eurodollar Rate Loan, or (c) the Eurodollar Base Rate
for any requested Interest Period with respect to a proposed Eurodollar Rate
Loan does not adequately and fairly reflect the cost to such Lenders of funding
such Loan, the Administrative Agent will promptly so notify the Borrower and
each Lender. Thereafter, the obligation of the Lenders to make or maintain
Eurodollar Rate Loans shall be suspended until the Administrative Agent (upon
the instruction of the Required Lenders) revokes such notice. Upon receipt of
such notice, the Borrower may revoke any pending request for a Borrowing of,
conversion to or continuation of Eurodollar Rate Loans or, failing that, will be
deemed to have converted such request into a request for a Borrowing of Base
Rate Loans in the amount specified therein.
3.04 INCREASED COSTS.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit, compulsory loan, insurance charge or similar requirement against
assets of, deposits with or for the account of, or credit extended or
participated in by, any Lender (except any reserve requirement reflected
in the Eurodollar Rate) or the L/C Issuer;
(ii) subject any Lender or the L/C Issuer to any tax of any kind
whatsoever with respect to this Agreement, any Letter of Credit, any
participation in a Letter of Credit or any Eurodollar Loan made by it, or
change the basis of taxation of payments to such Lender or the L/C Issuer
in respect thereof (except for Indemnified Taxes or Other Taxes covered by
Section 3.01 and the imposition of, or any change in the rate of, any
Excluded Tax payable by such Lender or the L/C Issuer); or
(iii) impose on any Lender or the L/C Issuer or the London interbank
market any other condition, cost or expense affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan), or to increase the cost to such Lender or the
L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or
of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such
Lender or the L/C Issuer hereunder (whether of principal, interest or any other
amount) then, upon request of such Lender or the L/C Issuer, the Borrower will
pay to such Lender or the L/C Issuer, as the case may be, such additional amount
or amounts as will compensate such Lender or the L/C Issuer, as the case may be,
for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender or the L/C Issuer determines
that any Change in Law affecting such Lender or the L/C Issuer or any Lending
Office of such Lender or
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such Lender's or the L/C Issuer's holding company, if any, regarding capital
requirements has or would have the effect of reducing the rate of return on such
Lender's or the L/C Issuer's capital or on the capital of such Lender's or the
L/C Issuer's holding company, if any, as a consequence of this Agreement, the
Commitments of such Lender or the Loans made by, or participations in Letters of
Credit held by, such Lender, or the Letters of Credit issued by the L/C Issuer,
to a level below that which such Lender or the L/C Issuer or such Lender's or
the L/C Issuer's holding company could have achieved but for such Change in Law
(taking into consideration such Lender's or the L/C Issuer's policies and the
policies of such Lender's or the L/C Issuer's holding company with respect to
capital adequacy), then from time to time the Borrower will pay to such Lender
or the L/C Issuer, as the case may be, such additional amount or amounts as will
compensate such Lender or the L/C Issuer or such Lender's or the L/C Issuer's
holding company for any such reduction suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or the L/C
Issuer setting forth the amount or amounts necessary to compensate such Lender
or the L/C Issuer or its holding company, as the case may be, as specified in
subsection (a) or (b) of this Section and delivered to the Borrower shall be
conclusive absent manifest error. The Borrower shall pay such Lender or the L/C
Issuer, as the case may be, the amount shown as due on any such certificate
within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or the
L/C Issuer to demand compensation pursuant to the foregoing provisions of this
Section shall not constitute a waiver of such Lender's or the L/C Issuer's right
to demand such compensation, provided that the Borrower shall not be required to
compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of
this Section for any increased costs incurred or reductions suffered more than
nine months prior to the date that such Lender or the L/C Issuer, as the case
may be, notifies the Borrower of the Change in Law giving rise to such increased
costs or reductions and of such Lender's or the L/C Issuer's intention to claim
compensation therefor (except that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the nine-month period
referred to above shall be extended to include the period of retroactive effect
thereof).
3.05 COMPENSATION FOR LOSSES. Upon demand of any Lender (with a copy to
the Administrative Agent) from time to time, the Borrower shall promptly
compensate such Lender for and hold such Lender harmless from any loss, cost or
expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan
other than a Base Rate Loan on a day other than the last day of the Interest
Period for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise);
(b) any failure by the Borrower (for a reason other than the failure of
such Lender to make a Loan) to prepay, borrow, continue or convert any Loan
other than a Base Rate Loan on the date or in the amount notified by the
Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other than the
last day of the Interest Period therefor as a result of a request by the
Borrower pursuant to Section 11.13;
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including any loss of anticipated profits and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were obtained.
The Borrower shall also pay any customary administrative fees charged by such
Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders under
this Section 3.05, each Lender shall be deemed to have funded each Eurodollar
Rate Loan made by it at the Eurodollar Base Rate used in determining the
Eurodollar Rate for such Loan by a matching deposit or other borrowing in the
London interbank eurodollar market for a comparable amount and for a comparable
period, whether or not such Eurodollar Rate Loan was in fact so funded.
3.06 MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 3.04, or the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for the account of
any Lender pursuant to Section 3.01, or if any Lender gives a notice pursuant to
Section 3.02, then such Lender shall use reasonable efforts to designate a
different Lending Office for funding or booking its Loans hereunder or to assign
its rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04,
as the case may be, in the future, or eliminate the need for the notice pursuant
to Section 3.02, as applicable, and (ii) in each case, would not subject such
Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation under
Section 3.04, if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 3.01, if any Lender is a Defaulting Lender, or if any Lender refuses to
consent to an amendment or modification of this Agreement that, pursuant to
Section 11.01, requires consent of one hundred percent (100%) of the Lenders or
one hundred percent (100%) of the Lenders directly affected thereby, the
Borrower may replace such Lender in accordance with Section 11.13.
3.07 SURVIVAL. All of the Borrower's obligations under this Article III
shall survive termination of the Aggregate Commitments and repayment of all
other Obligations hereunder.
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 CONDITIONS OF INITIAL CREDIT EXTENSION. The obligation of the L/C
Issuer and each Lender to make its initial Credit Extension hereunder is subject
to satisfaction of the following conditions precedent:
(a) The Administrative Agent's receipt of the following, each of which
shall be originals or telecopies (followed promptly by originals) unless
otherwise specified, each properly
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executed by a Responsible Officer of the signing Loan Party, each dated the
Closing Date (or, in the case of certificates of governmental officials, a
recent date before the Closing Date) and each in form and substance satisfactory
to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, each Security
Document, each Guaranty and any other applicable Loan Documents,
sufficient in number for distribution to the Administrative Agent, each
Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender
requesting a Note;
(iii) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of each
Loan Party as the Administrative Agent may require evidencing the
identity, authority and capacity of each Responsible Officer thereof
authorized to act as a Responsible Officer in connection with this
Agreement and the other Loan Documents to which such Loan Party is a
party;
(iv) such documents and certifications as the Administrative Agent
may reasonably require to evidence that each Loan Party is duly organized
or formed, and that each Loan Party is validly existing, in good standing
and qualified to engage in business in its jurisdiction of incorporation
or formation and, to the extent request by the Administrative Agent, each
other jurisdiction where it is qualified to do business;
(v) a favorable opinion of Moore & Van Allen PLLC, counsel to the
Loan Parties, addressed to the Administrative Agent and each Lender, as to
the matters set forth in Exhibit H and such other matters concerning the
Loan Parties and the Loan Documents as the Required Lenders may reasonably
request;
(vi) a certificate of a Responsible Officer of each Loan Party
either (A) attaching copies of all consents, licenses and approvals
required in connection with the execution, delivery and performance by
such Loan Party and the validity against such Loan Party of the Loan
Documents to which it is a party, and such consents, licenses and
approvals shall be in full force and effect, or (B) stating that no such
consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent
and the Borrower certifying that there has been no event or circumstance
since the date of the Audited Financial Statements that has had or could
be reasonably expected to have, either individually or in the aggregate, a
Material Adverse Effect;
(viii) evidence that all insurance required to be maintained
pursuant to the Loan Documents has been obtained and is in effect; and
(ix) such other assurances, certificates, documents, consents or
opinions as the Administrative Agent, the L/C Issuer, the Swing Line
Lender or the Required Lenders reasonably may require.
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(b) Collateral.
(i) Filings and Recordings. All filings and recordations that are
necessary to perfect the security interests of the Lenders in the collateral
described in the Security Documents (including, without limitation, all filings
and recordations necessary to perfect the security interests of the Lenders
created pursuant to any Collateral Assignment) shall have been received by the
Administrative Agent and the Administrative Agent shall have received evidence
satisfactory to the Administrative Agent that upon such filings and recordations
such security interests constitute valid and perfected first priority Liens
therein.
(ii) Pledged Collateral. The Administrative Agent shall have
received (A) original stock certificates or other certificates (if any)
evidencing the Equity Interests pledged pursuant to the Security Documents,
together with an undated stock or other power for each such certificate duly
executed in blank by the registered owner thereof, (B) each original promissory
note pledged pursuant to the Security Documents, and (C) satisfactory evidence
that all consents of third party owners of Equity Interests in any Joint Venture
Entity and Joint Venture Investment required to permit the pledge by (1) the
applicable Permitted Intercompany Lender of any Permitted Intercompany Note of
such Joint Venture Entity and Joint Venture Investment and all collateral
security securing such Permitted Intercompany Note and (2) the applicable
Operating Group Subsidiary of its Equity Interests in such Joint Venture Entity
and Joint Venture Investment).
(iii) Lien Search. The Administrative Agent shall have received the
results of a Lien search (including a search as to judgments, pending litigation
and tax matters) made against the Credit Parties under the UCC (or applicable
judicial docket) as in effect in any state in which any of its assets are
located, indicating among other things that its assets are free and clear of any
Lien except for Liens permitted hereunder.
(iv) Hazard and Liability Insurance. The Administrative Agent shall
have received certificates of insurance, evidence of payment of all insurance
premiums for the current policy year of each, and, if requested by the
Administrative Agent, copies (certified by a Responsible Officer) of insurance
policies in the form required under the Security Documents and otherwise in form
and substance reasonably satisfactory to the Administrative Agent.
(c) Permitted Intercompany Note Documents, Collateral Documentation and
Certificates.
(i) Permitted Intercompany Note Documents. The Administrative
Agent's receipt of the following, each of which shall be originals unless
otherwise specified by the Administrative Agent, each properly executed by a
Responsible Officer of the signing Loan Party, each dated the Closing Date and
each in form and substance satisfactory to the Administrative Agent and its
legal counsel:
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(A) Each Permitted Intercompany Note executed by the
applicable Joint Venture Entity or Joint Venture Investment (together with
an endorsement executed in blank by the applicable Permitted Intercompany
Lender);
(B) Each applicable Permitted Intercompany Note Collateral
Document executed by the applicable Joint Venture Entity or Joint Venture
Investment in connection with each Permitted Intercompany Note; and
(C) A Collateral Assignment executed by each Permitted
Intercompany Lender with respect to each Permitted Intercompany Note and
the Permitted Intercompany Note Collateral Documents executed in
connection with each Permitted Intercompany Note.
(ii) Collateral Documentation. The Administrative Agent shall have
received and reviewed the following, each in form and substance satisfactory to
the Administrative Agent and its legal counsel:
(A) Title Insurance. With respect to each parcel of real
property subject to the Permitted Intercompany Note Collateral Documents,
(1) a copy of a marked-up commitment for a policy of title insurance,
insuring each applicable Permitted Intercompany Lender's first priority
Liens and showing no Liens prior to each such Permitted Intercompany
Lender's Liens other than for ad valorem taxes not yet due and payable,
with title insurance companies acceptable to the Administrative Agent on
the real property subject to the applicable Permitted Intercompany Note
Collateral Documents with the final title insurance policy, being
delivered within thirty (30) days after the Closing Date and (2) an
endorsement of such marked-up commitment and title insurance evidencing
the collateral assignment of each applicable mortgage or deed of trust to
the Administrative Agent and insuring the Lenders' first priority Liens.
Further, the Parent and the Borrower agree to provide or obtain any
customary affidavits and indemnities as may be required or necessary to
obtain title insurance satisfactory to the Administrative Agent.
(B) Title Exceptions. With respect to each parcel of real
property subject to the Permitted Intercompany Note Collateral Documents,
copies of all recorded documents creating exceptions to each title policy
referred to in Section 4.01(c)(ii)(A).
(d) Payment of Fees. Any fees required to be paid on or before the
Closing Date shall have been paid.
(e) Attorneys Fees. Unless waived by the Administrative Agent, the
Parent and Borrower shall have paid all reasonable and documented fees, charges
and disbursements of counsel to the Administrative Agent to the extent invoiced
prior to or on the Closing Date.
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(f) Financial Matters.
(i) Financial Condition Certificate. The Parent and the Borrower
shall have delivered to the Administrative Agent a certificate, in form and
substance satisfactory to the Administrative Agent, and certified as accurate by
a Responsible Officer of the Parent and the Borrower, that (A) after giving
effect to the transactions contemplated by the Senior Unsecured Note Issuance
and the other transactions contemplated by this Agreement, the Parent and each
of its Subsidiaries is Solvent, (B) the payables of the Parent and each of its
Subsidiaries are current and not past due as determined in accordance with past
practices, (C) attached thereto are calculations evidencing compliance on a pro
forma basis as of March 31, 2004 and after giving effect to the Senior Unsecured
Note Issuance and the other transactions contemplated by this Agreement, with
the covenants contained in Section 7.14, (D) the financial projections
previously delivered to the Administrative Agent represent the good faith
estimates (utilizing reasonable assumptions) of the financial condition and
operations of the Parent and its Subsidiaries and (E) attached thereto is a
calculation of the Applicable Rate.
(ii) Audited Financial Statements. The Administrative Agent shall
have received consolidated financial statements (including balance sheets,
income statements and cash flow statements) of the Parent and its Subsidiaries
for the Fiscal Years ended September 30, 2003, in each case audited by
independent public accountants of recognized national standing and prepared in
accordance with GAAP.
(iii) Unaudited Financial Statements. The Administrative Agent shall
have received consolidated and consolidating financial statements (including
balance sheets, income statements and cash flow statements) of the Parent and
its Subsidiaries, in each case for the last four (4) fiscal quarters ended March
31, 2004 and prepared in accordance with GAAP.
(iv) Other Financial Information. The Parent and the Borrower shall
provide the Administrative Agent with such other financial information as the
Administrative Agent may reasonably request.
(g) Existing Facilities. The Existing Facilities shall be repaid in full
and terminated and all collateral security therefor shall be released, and the
Administrative Agent shall have received a pay-off letter in form and substance
satisfactory to it evidencing such repayment, termination, reconveyance and
release.
(h) Senior Unsecured Notes.
(i) Senior Unsecured Note Issuance. The Borrower shall have
received, on or prior to the Closing Date, gross cash proceeds from the issuance
of the Senior Unsecured Notes in an aggregate amount equal to at least
$150,000,000 (collectively, the "Senior Unsecured Note Issuance"), such Senior
Unsecured Note Issuance to be on terms and conditions reasonably satisfactory to
the Administrative Agent.
(ii) No Injunction, Etc. No action, proceeding, investigation,
regulation or legislation shall have been instituted, threatened or proposed
before any Governmental Authority to
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enjoin, restrain, or prohibit, or to obtain substantial damages in respect of,
or which is related to or arises out of the Senior Unsecured Note Documents or
the consummation of the transactions contemplated thereby, or which, in the
Administrative Agent's reasonable discretion, would make it inadvisable to
consummate the transactions contemplated by this Agreement and the other Loan
Documents.
(iii) Senior Note Documents. The Administrative Agent and BAS shall
have received any Senior Unsecured Note Documents requested thereby, and each
Senior Unsecured Note Document shall be in form and substance reasonably
satisfactory to the Administrative Agent and BAS.
(i) Other Documents. All opinions, certificates and other instruments
and all proceedings in connection with the transactions contemplated by this
Agreement shall be satisfactory in form and substance to the Administrative
Agent. The Administrative Agent shall have received copies of all other
documents, certificates and instruments reasonably requested thereby, with
respect to the transactions contemplated by this Agreement.
(j) No Material Adverse Effect. No Material Adverse Effect shall have
occurred since September 30, 2003.
(k) Absence of Proceedings. No action, suit, investigation or proceeding
is pending or threatened in any court or before any arbitrator or other
Governmental Authority which could reasonably be expected to (i) have a Material
Adverse Effect or (ii) affect any transaction contemplated by this Agreement
(including the Senior Unsecured Note Issuance).
(l) Closing Date. The Closing Date shall have occurred on or before July
31, 2004.
Without limiting the generality of the provisions of Section 10.04, for
purposes of determining compliance with the conditions specified in this Section
4.01, each Lender that has signed this Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or
other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.
4.02 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each Lender
to honor any Request for Credit Extension (other than a Loan Notice requesting
only a conversion of Loans to the other Type, or a continuation of Eurodollar
Rate Loans) is subject to the following conditions precedent:
(a) The representations and warranties contained in Article V shall not
be incorrect or misleading when made or deemed made (excluding any
representation, warranty, certification or statement of fact made or deemed made
by any Loan Party with respect to a Credit Party pursuant to Section 5.21, so
long as any such breach of such representations an warranties do not constitute
an Event of Default pursuant to Section 9.01(b)(ii)) or any other Loan Document,
or which are contained in any document furnished at any time under or in
connection herewith or therewith, shall be true and correct on and as of the
date of such Credit Extension, except to the
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extent that such representations and warranties specifically refer to an earlier
date, in which case they shall be true and correct as of such earlier date, and
except that for purposes of this Section 4.02, the representations and
warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed
to refer to the most recent statements furnished pursuant to clauses (a) and
(b), respectively, of Section 6.01.
(b) No Default shall exist, or would result from such proposed Credit
Extension or from the application of the proceeds thereof.
(c) The Administrative Agent and, if applicable, the L/C Issuer or the
Swing Line Lender shall have received a Request for Credit Extension in
accordance with the requirements hereof.
Each Request for Credit Extension (other than a Loan Notice requesting
only a conversion of Loans to the other Type or a continuation of Eurodollar
Rate Loans) submitted by the Borrower shall be deemed to be a representation and
warranty that the conditions specified in Sections 4.02(a) and (b) have been
satisfied on and as of the date of the applicable Credit Extension.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Each of the Parent Guarantor and the Borrower represents and warrants to
the Administrative Agent and the Lenders that:
5.01 EXISTENCE, QUALIFICATION AND POWER; COMPLIANCE WITH LAWS. Each Loan
Party (a) is duly organized or formed, validly existing and in good standing
under the Laws of the jurisdiction of its incorporation or organization, (b) has
all requisite power and authority and all requisite governmental licenses,
authorizations, consents and approvals to (i) own its assets and carry on its
business and (ii) execute, deliver and perform its obligations under the Loan
Documents to which it is a party, (c) is duly qualified and is licensed and in
good standing under the Laws of each jurisdiction where its ownership, lease or
operation of properties or the conduct of its business requires such
qualification or license, and (d) is in compliance with all applicable Laws;
except in each case referred to in clause (b)(i), (c) or (d), to the extent that
failure to do so could not reasonably be expected to have a Material Adverse
Effect. As of the Closing Date, the jurisdiction of each Loan Party's
organization and each jurisdiction in which such Loan Party is qualified is set
forth on Schedule 5.01.
5.02 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by each Loan Party of each Loan Document to which such Person is
party, have been duly authorized by all necessary corporate or other
organizational action, and do not and will not (a) contravene the terms of any
of such Person's Organization Documents; (b) conflict with or result in any
breach or contravention of, or the creation of any Lien under, or require any
payment to be made under (i) any Contractual Obligation to which such Person is
a party or affecting such Person or the properties of such Person or any of its
Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental
Authority or any arbitral award to which such Person or its
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property is subject; or (c) violate any applicable Law. Each Loan Party is in
compliance with all Contractual Obligations referred to in clause (b)(i), except
to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect.
5.03 GOVERNMENTAL AUTHORIZATION; OTHER CONSENTS. No approval, consent,
exemption, authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is necessary or required in
connection with the execution, delivery or performance by, or enforcement
against, any Loan Party of this Agreement or any other Loan Document. Each Loan
Party (a) has all Governmental Approvals required by any applicable Law
(including, without limitation, Medicare Regulations and Medicaid Regulations
(as applicable)) for it to conduct its business, each of which is in full force
and effect, is final and not subject to review on appeal and is not the subject
of any pending or, to the best of its knowledge, threatened attack by direct or
collateral proceeding, except where the failure to have such Governmental
Approval could not reasonably be expected to have a Material Adverse Effect, (b)
is in compliance with each Governmental Approval applicable to it and in
compliance with all other applicable Laws (including, without limitation,
Medicare Regulations and Medicaid Regulations (as applicable)) relating to it or
any of its respective properties, except where the failure to so comply could
not reasonably be expected to have a Material Adverse Effect and (c) has timely
filed all material reports, documents and other materials required to be filed
by it under all applicable Laws (including, without limitation, Medicare
Regulations and Medicaid Regulations (as applicable)) with any Governmental
Authority and has retained all material records and documents required to be
retained by it under applicable Law (including, without limitation, Medicare
Regulations and Medicaid Regulations (as applicable)).
5.04 BINDING EFFECT. This Agreement has been, and each other Loan
Document, when delivered hereunder, will have been, duly executed and delivered
by each Loan Party that is party thereto. This Agreement constitutes, and each
other Loan Document when so delivered will constitute, a legal, valid and
binding obligation of such Loan Party, enforceable against each Loan Party that
is party thereto in accordance with its terms, except as such enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium or similar
state or federal debtor relief Laws from time to time in effect which affect the
enforcement of creditors' rights in general and the availability of equitable
remedies.
5.05 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT.
(a) The Audited Financial Statements (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present the financial condition
of the Parent and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) show all material indebtedness and other liabilities,
direct or contingent, of the Parent and its Subsidiaries as of the date thereof,
including material liabilities for taxes, material commitments and Indebtedness.
(b) The unaudited consolidated financial statements of the Parent and
its Subsidiaries delivered pursuant to Section 4.01(f)(iii), and the related
consolidated statements of income or
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operations, shareholders' equity and cash flows for the Fiscal Quarter ended on
that date (i) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted
therein, and (ii) fairly present the financial condition of the Parent and its
Subsidiaries as of the date thereof and their results of operations for the
period covered thereby, subject, in the case of clauses (i) and (ii), to the
absence of footnotes and to normal year-end audit adjustments.
(c) Since the date of the Audited Financial Statements, there has been
no event or circumstance, either individually or in the aggregate, that has had
or could reasonably be expected to have a Material Adverse Effect.
(d) As of the Closing Date (after giving effect to the Senior Unsecured
Note Issuance and the other transactions contemplated by this Agreement) and
after giving effect to each Credit Extension made hereunder, each Loan Party
will be Solvent.
5.06 LITIGATION. Except as specifically disclosed in Schedule 5.06, there
are no actions, suits, proceedings, claims or disputes pending or, to the
knowledge of the Parent Guarantor or the Borrower after due and diligent
investigation, threatened or contemplated (including, without limitation, any
validation review, survey, inspection, audit, investigation or program integrity
review in connection with the Medicare program or the Medicaid program (as
applicable)), at law, in equity, in arbitration or before any Governmental
Authority (including, without limitation, with respect to any cost reports
required to be filed by the Medicare Regulations or the Medicaid Regulations (as
applicable), or with respect to any adjustments, denials, recoupments or
disallowances by any intermediary, carrier, other insurer, commission, board or
agency in connection with any cost reports or claims), by or against the Parent
or any Subsidiary or against any of their properties or revenues that (a)
purport to affect or pertain to this Agreement or any other Loan Document, or
any of the transactions contemplated hereby, or (b) either individually or in
the aggregate, if determined adversely, could reasonably be expected to have a
Material Adverse Effect.
5.07 NO DEFAULT. No Loan Party is in default under or with respect to any
Contractual Obligation that could, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. No Default has
occurred and is continuing or would result from the consummation of the
transactions contemplated by this Agreement or any other Loan Document.
5.08 OWNERSHIP OF PROPERTY; LIENS. Each Loan Party has good record and
marketable title in fee simple to, or valid leasehold interests in, all real
property necessary or used in the ordinary conduct of its business except for
such defects in title as could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect. The property of the Parent and
its Subsidiaries is subject to no Liens, other than Liens permitted by Section
7.01.
5.09 ENVIRONMENTAL COMPLIANCE. The Loan Parties conduct in the ordinary
course of business a review of the effect of existing Environmental Laws and
claims alleging potential liability or responsibility for violation of any
Environmental Law on their respective businesses, operations and properties, and
as a result thereof the Parent has reasonably concluded that such
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Environmental Laws and claims could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
5.10 INSURANCE. The properties of the Loan Parties are insured with
financially sound and reputable insurance companies not Affiliates of the Parent
or any Subsidiary, in such amounts, with such deductibles and covering such
risks as are customarily carried by companies engaged in similar businesses and
owning similar properties in localities where the applicable Loan Party
operates.
5.11 TAXES. The Loan Parties have filed all Federal, state and other
material tax returns and reports required to be filed, and have paid all
Federal, state and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those which are being contested in good
faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP. There is no proposed tax
assessment against the Parent or any Subsidiary that would, if made, have a
Material Adverse Effect. Neither any Loan Party nor any Subsidiary thereof is
party to any tax sharing agreement.
5.12 ERISA COMPLIANCE.
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other Federal or state Laws. Each
Plan that is intended to qualify under Section 401(a) of the Code has received a
favorable determination letter from the IRS or an application for such a letter
is currently being processed by the IRS with respect thereto and, to the best
knowledge of any Loan Party, nothing has occurred which would prevent, or cause
the loss of, such qualification.
(b) There are no pending or, to the knowledge of any Loan Party,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that could be reasonably be expected to have a Material
Adverse Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.
(c) Since the date that is five (5) years prior to the Closing Date, no
Credit Party nor any of its ERISA Affiliates (i) has maintained or maintains a
"defined benefit plan" (as defined in ERISA Section 3(35)), (ii) has been
required to contribute to any Multiemployer Plan that is a defined benefit plan,
or (iii) has incurred or been responsible for any liability in connection with
any such plan.
5.13 SUBSIDIARIES. As of the Closing Date, the Parent has no Subsidiaries
other than those specifically disclosed in Part (a) of Schedule 5.13 and has no
equity investments in any other corporation or entity other than those
specifically disclosed in Part(b) of Schedule 5.13. Schedule 1.01(b) lists all
Operating Group Subsidiaries and all Operating Group Hospital Entities as of the
Closing Date. Schedule 1.01(c) lists all Development Group Subsidiaries and all
Development Group Hospital Entities as of the Closing Date. Schedule 1.01(d)
lists all Joint Venture Subsidiaries as of the Closing Date. As of the Closing
Date, the capitalization of the Parent and its Subsidiaries consists of the
number of shares, authorized, issued and outstanding,
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of such classes and series, with or without par value, described on Schedule
5.13. All outstanding shares have been duly authorized and validly issued and
are fully paid and nonassessable, with no personal liability attaching to the
ownership thereof, and not subject to any preemptive or similar rights. The
shareholders of the Subsidiaries of the Parent and the number of shares owned by
each as of the Closing Date are described on Schedule 5.13. As of the Closing
Date, there are no outstanding stock purchase warrants, subscriptions, options,
securities, instruments or other rights of any type or nature whatsoever, which
are convertible into, exchangeable for or otherwise provide for or permit the
issuance of Equity Interests of the Parent or its Subsidiaries, except as
described on Schedule 5.13.
5.14 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING
COMPANY ACT.
(a) No Loan Party is engaged and no Loan Party will engage, principally
or as one of its important activities, in the business of purchasing or carrying
margin stock (within the meaning of Regulation U issued by the FRB), or
extending credit for the purpose of purchasing or carrying margin stock.
Following the application of the proceeds of each Borrowing or drawing under
each Letter of Credit, not more than 25% of the value of the assets (either of
the Borrower only or of the Borrower and its Subsidiaries on a consolidated
basis) subject to the provisions of Section 7.01 or Section 7.05 or subject to
any restriction contained in any agreement or instrument between the Borrower
and any Lender or any Affiliate of any Lender relating to Indebtedness and
within the scope of Section 9.01(e) will be margin stock.
(b) None of the Loan Parties nor any Person Controlling any Loan Party
(i) is a "holding company," or a "subsidiary company" of a "holding company," or
an "affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company," within the meaning of the Public Utility Holding Company Act of 1935,
or (ii) is or is required to be registered as an "investment company" under the
Investment Company Act of 1940.
5.15 [RESERVED].
5.16 DISCLOSURE. Each Loan Party has disclosed to the Administrative
Agent and the Lenders all agreements, instruments and corporate or other
restrictions to which it is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. No report, financial statement, certificate or other
information furnished (whether in writing or orally) by or on behalf of any Loan
Party to the Administrative Agent or any Lender in connection with the
transactions contemplated hereby and the negotiation of this Agreement or
delivered hereunder or under any other Loan Document (in each case, as modified
or supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with respect to projected financial
information, the Parent Guarantor and the Borrower represent only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time.
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5.17 COMPLIANCE WITH LAWS. Each Loan Party is in compliance with the
requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its properties, except in such instances in which (a) (i)
such requirement of Law or order, writ, injunction or decree is being contested
in good faith by appropriate proceedings diligently conducted and (ii) at any
time during such contest the failure to comply, either individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect or
(b) the failure to comply therewith, either individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
5.18 INTELLECTUAL PROPERTY; LICENSES, ETC. The Loan Parties own, or
possess the right to use, all of the trademarks, service marks, trade names,
copyrights, patents, patent rights, franchises, licenses and other intellectual
property rights (collectively, "IP Rights") that are reasonably necessary for
the operation of their respective businesses, without conflict with the rights
of any other Person. To the best knowledge of any Loan Party, no slogan or other
advertising device, product, process, method, substance, part or other material
now employed, or now contemplated to be employed, by any Loan Party infringes
upon any rights held by any other Person. No event has occurred which permits,
or after notice or lapse of time or both would permit, the revocation or
termination of any such rights, and no Loan Party is liable to any Person for
infringement under applicable Law with respect to any such rights as a result of
its business operations.
5.19 EMPLOYEE RELATIONS. As of the Closing Date, the Parent and each of
its Subsidiaries has a stable work force in place and is not, as of the Closing
Date, party to any collective bargaining agreement nor has any labor union been
recognized as the representative of its employees. The Parent Guarantor and the
Borrower know of no pending, threatened or contemplated strikes, work stoppage
or other collective labor disputes that could reasonably be expected to have a
Material Adverse Effect.
5.20 BURDENSOME PROVISIONS. No Loan Party is a party to any indenture,
agreement, lease or other instrument, or subject to any corporate or partnership
restriction, Governmental Approval or applicable Law which is so unusual or
burdensome as in the foreseeable future could be reasonably expected to have a
Material Adverse Effect. The Loan Parties do not presently anticipate that
future expenditures needed to meet the provisions of any statutes, orders, rules
or regulations of a Governmental Authority will be so burdensome as to have a
Material Adverse Effect. No Subsidiary of the Parent is party to any agreement
or instrument or otherwise subject to any restriction or encumbrance that
restricts or limits its ability to make dividend payments or other distributions
in respect of its Equity Interests to any Loan Party or to transfer any of its
assets or properties to any Loan Party in each case other than existing under or
by reason of the Loan Documents or applicable Law, other than (a) as set forth
on Schedule 5.20, (b) set forth in any Permitted Intercompany Note, (c) as set
forth in the terms of any Indebtedness in effect of the Closing Date and any
amendments, modifications, restatements, renewals, extensions, supplements,
refundings, replacements or refinancings thereof; provided that the restrictions
and encumbrances in any such amendments, modifications, restatements, renewals,
extensions, supplements, refundings, replacements or refinancings are no more
restrictive, taken as a whole, than those in effect on the Closing Date, or (d)
any provisions with respect to distributions or the disposition of assets or
property of a Joint Venture Entity or a Joint
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Venture Investment contained in any limited liability company, operating,
partnership, shareholder or other similar agreements related to such Joint
Venture Entity or Joint Venture Investment, to the extent entered into in the
ordinary course of business to develop, own, operate, or manage business
operations permitted hereunder with other equity investors in such Joint Venture
Entities or Joint Venture Investments that are no more restrictive, taken as a
whole, than any such agreements in effect on the Closing Date.
5.21 HEALTHCARE MATTERS. From and after the Closing Date,
(a) Breach of Obligations. No Credit Party:
(i) has been convicted of an offense or committed an act or
omission which could reasonably form a basis under 42 U.S.C. Section
1320a-7 and any statutes succeeding thereto and any regulations
promulgated thereunder for the Secretary of HHS to exclude such Credit
Party from participation in a "Federal health care program" (as that term
is defined by 42 U.S.C. Section 1320a-7b(f), or any successor statute
thereto); and
(ii) is in default in the performance, observance or fulfillment of
any of the obligations, covenants or conditions contained in any Medicaid
Provider Agreement, any Medicare Provider Agreement or any other agreement
or instrument to which such Credit Party is a party, which default has
resulted in, or if not remedied within any applicable grace period is
reasonably expected to result in, the revocation, termination,
cancellation or suspension of the Medicaid Certification of such Credit
Party or the Medicare Certification of such Credit Party.
(b) Reimbursement from Third Party Payors. The accounts receivable of
each Credit Party have been and will continue to be adjusted to reflect
reimbursement policies of third party payors such as Medicare, Medicaid, Blue
Cross/Blue Shield, private insurance companies, health maintenance
organizations, preferred provider organizations, alternative delivery systems,
managed care systems, government contracting agencies and other third party
payors, except where the failure to so adjust could not reasonably be expected
to have a Material Adverse Effect.
(c) Fraud and Abuse. No Credit Party nor, to the knowledge of each
Credit Party's officers, any of its officers or directors, have engaged in any
activities which are prohibited under the Medicare Regulations and Medicaid
Regulations, 42 U.S.C. Section 1320a-7b, 42 U.S.C. Section 1395nn, or the
regulations promulgated pursuant to such statutes or related state or local
statutes or regulations, or which are prohibited by binding rules of
professional conduct, or which are prohibited under any statute which
constitutes a "Federal health care offense" (as that term is defined by 18
U.S.C. Section 24, or any successor statute thereto), or the regulations
promulgated pursuant to such statutes, including, but not limited to, the
following: (A) knowingly and willfully making or causing to be made a false
statement or representation of a material fact in any applications for any
benefit or payment; (B) knowingly and willfully making or causing to be made any
false statement or representation of a material fact for use in determining
rights to any benefit or payment; (C) failing to disclose knowledge by a
claimant of the occurrence of any event affecting the initial or continued right
to any benefit or payment on its own behalf or on behalf of another, with intent
to secure such benefit or payment fraudulently; (D) knowingly and willfully
soliciting or receiving any remuneration
74
(including any kickback, bribe or rebate), directly or indirectly, overtly or
covertly, in cash or in kind or offering to pay such remuneration (1) in return
for referring an individual to a person for the furnishing or arranging for the
furnishing of any item or service for which payment may be made in whole or in
part by a Federal health care program or other applicable third party payors, or
(2) in return for purchasing, leasing or ordering or arranging for or
recommending the purchasing, leasing or ordering of any good, facility, service,
or item for which payment may be made in whole or in part by a Federal health
care program or other applicable third party payors; (E) knowingly or willfully
offering or paying any remuneration (including any kickback, bribe, or rebate)
directly or indirectly, overtly or covertly, in cash or in kind to any Person to
induce such Person (1) to refer an individual to a person for the furnishing or
arranging for the furnishing of any item or service for which payment may be
made in whole or in part under a Federal health care program, or (2) to
purchase, lease, order, or arrange for or recommend purchasing, leasing, or
ordering any good, facility, service, or item for which payment may be made in
whole or in part under a Federal health care program.
5.22 SENIOR DEBT STATUS. The Obligations of each Loan Party under this
Agreement and each other Loan Document ranks and shall continue to rank at least
senior in priority to all subordinate Indebtedness.
5.23 SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC. All representations
and warranties set forth in this Article V and all representations and
warranties contained in any certificate, or any of the Loan Documents
(including, but not limited to, any such representation or warranty made in or
in connection with any amendment thereto) shall constitute representations and
warranties made under this Agreement. All representations and warranties made
under this Agreement shall be made or deemed to be made at and as of the Closing
Date (except those that are expressly made as of a specific date), shall survive
the Closing Date and shall not be waived by the execution and delivery of this
Agreement, any investigation made by or on behalf of the Lenders or any
borrowing hereunder.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Parent Guarantor and the Borrower shall,
and shall cause each of their respective Subsidiaries (provided that the
covenants set forth in Sections 6.01, 6.02, 6.03, 6.05, 6.06, 6.10, 6.11(b),
6.12, 6.14, 6.15, 6.16 and 6.18, shall not be applicable to any Subsidiary that
is a Joint Venture Entity) to:
6.01 FINANCIAL STATEMENTS. Deliver to the Administrative Agent, in form
and detail satisfactory to the Administrative Agent:
(a) as soon as available, but in any event within one hundred (100) days
after the end of each Fiscal Year of the Parent (or, if earlier, the date that
is ten (10) days after the reporting date for such information required by the
SEC), a consolidated balance sheet of the Parent and its Subsidiaries as at the
end of such Fiscal Year, and the related consolidated statements of income
75
or operations, shareholders' equity and cash flows for such Fiscal Year, setting
forth in each case in comparative form the figures for the previous Fiscal Year,
all in reasonable detail and prepared in accordance with GAAP, audited and
accompanied by a report and opinion of an independent certified public
accountant of nationally recognized standing reasonably acceptable to the
Required Lenders, which report and opinion shall be prepared in accordance with
generally accepted auditing standards and shall not be subject to any "going
concern" or like qualification or exception or any qualification or exception as
to the scope of such audit; it being acknowledged by the parties hereto that
delivery of a copy the Parent's Annual Report on Form 10-K on or before the date
specified above shall satisfy the requirements of this Section 6.01(a); and
(b) as soon as available, but in any event within fifty-five (55) days
after the end of each of the first three Fiscal Quarters of each Fiscal Year of
the Parent (or, if earlier, the date that is ten (10) days after to the
reporting date for such information required by the SEC), a consolidated balance
sheet of the Parent and its Subsidiaries as at the end of such Fiscal Quarter,
and the related consolidated statements of income or operations, shareholders'
equity and cash flows for such Fiscal Quarter and for the portion of the
Parent's Fiscal Year then ended, setting forth in each case in comparative form
the figures for the corresponding Fiscal Quarter of the previous Fiscal Year and
the corresponding portion of the previous Fiscal Year, all in reasonable detail
and certified by a Responsible Officer of the Parent as fairly presenting the
financial condition, results of operations, shareholders' equity and cash flows
of the Parent and its Subsidiaries in accordance with GAAP, subject only to
normal year-end audit adjustments and the absence of footnotes; it being
acknowledged by the parties hereto that delivery of a copy the Parent's
Quarterly Report on Form 10-Q on or before the date specified above shall
satisfy the requirements of this Section 6.01(b).
As to any information contained in materials furnished pursuant to Section
6.02(d), the Borrower shall not be separately required to furnish such
information under clause (a) or (b) above, but the foregoing shall not be in
derogation of the obligation of the Parent to furnish the information and
materials described in clauses (a) and (b) above at the times specified therein.
6.02 CERTIFICATES; OTHER INFORMATION. Deliver to the Administrative
Agent, in form and detail satisfactory to the Administrative Agent:
(a) concurrently with the delivery of the financial statements referred
to in Section 6.01(a), a certificate of its independent certified public
accountants certifying such financial statements and stating that in making the
examination necessary therefor no knowledge was obtained of any Default
resulting from the failure to comply with the terms, covenants, provisions or
conditions of Article VII or, if any such Default shall exist, stating the
nature and status of such event;
(b) concurrently with the delivery of the financial statements referred
to in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed
by a Responsible Officer of each of the Parent and the Borrower;
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(c) promptly after any request by the Administrative Agent, copies of
any detailed audit reports, management letters or recommendations submitted to
the board of directors (or the audit committee of the board of directors) of the
Parent by independent accountants in connection with the accounts or books of
the Parent or any of its Subsidiaries, or any audit of any of them;
(d) promptly after the same are available, copies of each annual report,
proxy or financial statement or other report or communication sent to the
stockholders of the Parent, and copies of all annual, regular, periodic and
special reports and registration statements which the Parent may file or be
required to file with the SEC under Section 13 or 15(d) of the Securities
Exchange Act of 1934, and not otherwise required to be delivered to the
Administrative Agent pursuant hereto;
(e) promptly, such additional information regarding the business,
financial or corporate affairs of any Loan Party, or compliance with the terms
of the Loan Documents, as the Administrative Agent may from time to time
reasonably request.
Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(d) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which the
Parent posts such documents, or provides a link thereto on the Parent's website
on the Internet at the website address listed on Schedule 11.02; or (ii) on
which such documents are posted on the Parent's behalf on an Internet or
intranet website, if any, to which each Lender and the Administrative Agent have
access (whether a commercial, third-party website or whether sponsored by the
Administrative Agent); provided that: (i) the Parent shall deliver paper copies
of such documents to the Administrative Agent or any Lender that requests the
Parent to deliver such paper copies until a written request to cease delivering
paper copies is given by the Administrative Agent or such Lender and (ii) the
Parent shall notify the Administrative Agent and each Lender (by telecopier or
electronic mail) of the posting of any such documents and provide to the
Administrative Agent by electronic mail electronic versions (i.e., soft copies)
of such documents. Notwithstanding anything contained herein, in every instance
the Parent and the Borrower shall be required to provide paper copies of the
Compliance Certificates required by Section 6.02(b) to the Administrative Agent.
The Parent hereby acknowledges that (a) the Administrative Agent and/or
the co-lead arranger will make available to the Lenders and the L/C Issuer
materials and/or information (including, without limitation, documents,
financial statements and notices required to be delivered pursuant to Section
6.01(a) or (b), Section 6.02(d) and Section 6.03)) provided by or on behalf of
the Parent hereunder (collectively, "Parent Materials") by posting the Parent
Materials on IntraLinks or another similar electronic system (the "Platform")
and (b) certain of the Lenders may be "public-side" Lenders (i.e., Lenders that
do not wish to receive material non-public information with respect to the
Parent or its securities) (each, a "Public Lender"). The Parent hereby agrees
that (w) all Parent Materials that are to be made available to Public Lenders
shall be clearly and conspicuously marked "PUBLIC" which, at a minimum, shall
mean that the word "PUBLIC" shall appear prominently on the first page thereof;
(x) by marking Parent Materials "PUBLIC," the Parent shall be deemed to have
authorized the Administrative Agent, the co-lead
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arrangers, the L/C Issuer and the Lenders to treat such Parent Materials as
either publicly available information or not material information (although it
may be sensitive and proprietary) with respect to the Parent or its securities
for purposes of United States Federal and state securities laws; (y) all Parent
Materials marked "PUBLIC" are permitted to be made available through a portion
of the Platform designated "Public Investor;" and (z) the Administrative Agent
and the co-lead arrangers shall be entitled to treat any Parent Materials that
are not marked "PUBLIC" as being suitable only for posting on a portion of the
Platform not designated "Public Investor."
6.03 NOTICES. Promptly notify the Administrative Agent:
(a) of the occurrence of any Default or Event of Default;
(b) of the occurrence of any (i) payment default under any
Permitted Intercompany Note or any Permitted Intercompany Note Collateral
Document, or (ii) the material impairment of any material assets subject
to any Permitted Intercompany Note Collateral Document;
(c) of any matter that has resulted or could reasonably be
expected to result in a Material Adverse Effect, including (i) breach or
non-performance of, or any default under, a Contractual Obligation of any
Credit Party; (ii) any dispute, litigation, investigation, proceeding or
suspension between any Credit Party and any Governmental Authority; or
(iii) the commencement of, or any material development in, any litigation
or proceeding affecting any Credit Party, including pursuant to any
applicable Environmental Laws;
(d) of the occurrence of any ERISA Event;
(e) of the expiration, termination or cancellation of any Credit
Party's license to operate, Medicare Certification or Medicaid
Certification or the receipt by any Credit Party of any notice with
respect thereto; and
(f) of any material change in accounting policies or financial
reporting practices by the Parent and its Subsidiaries.
Each notice pursuant to this Section shall be accompanied by a statement
of a Responsible Officer of the Parent and the Borrower setting forth details of
the occurrence referred to therein and stating what action the Borrower has
taken and proposes to take with respect thereto. Each notice pursuant to Section
6.03(a) shall describe with particularity any and all provisions of this
Agreement and any other Loan Document that have been breached and each notice
pursuant to Section 6.03(b) shall describe with particularity any and all
provisions of the Permitted Intercompany Note and the Permitted Intercompany
Note Collateral Documents that have been breached.
6.04 FILING OF TAX RETURNS; PAYMENT OF OBLIGATIONS. File, on or prior to
the required filing date thereof, all Federal, state and other material tax
returns and reports required to be filed
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and pay and discharge, as the same shall become due and payable, all its
obligations and liabilities in excess of $1,000,000, with respect to all tax
liabilities, assessments and governmental charges or levies upon it or its
properties or assets, unless (a) the same are being contested in good faith by
appropriate proceedings diligently conducted and adequate reserves in accordance
with GAAP are being maintained by the Parent or applicable Subsidiary, or (b)
with respect to any Joint Venture Entity that is not a Hospital Entity, the
failure to so file or pay an discharge, could not reasonably be expected to have
a Material Adverse Effect.
6.05 PRESERVATION OF EXISTENCE, ETC. (a) Except in a transaction
permitted by Section 7.04 or 7.05, (i) preserve, renew and maintain in full
force and effect its legal existence and good standing under the Laws of the
jurisdiction of its organization and (ii) qualify and remain qualified as a
foreign company and authorized to do business in each jurisdiction where the
nature and scope of its activities require it to so qualify under applicable
Laws, except to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect; (b) take all reasonable action to
maintain all rights, privileges, permits, licenses and franchises necessary or
desirable in the normal conduct of its business, except to the extent that
failure to do so could not reasonably be expected to have a Material Adverse
Effect; and (c) preserve or renew all of its registered patents, trademarks,
trade names and service marks, the non-preservation of which could reasonably be
expected to have a Material Adverse Effect.
6.06 MAINTENANCE OF PROPERTIES. (a) Maintain, preserve and protect all of
its material properties and equipment necessary in the operation of its business
in good working order and condition, ordinary wear and tear excepted; (b) make
all necessary repairs thereto and renewals and replacements thereof except where
the failure to do so could not reasonably be expected to have a Material Adverse
Effect; and (c) use the standard of care typical in the industry in the
operation and maintenance of its facilities; provided that, with respect to each
Operating Group Hospital Entity, such actions shall be conducted in a manner
consistent with standards of operation and administration generally acceptable
for fully accredited hospitals and health care facilities comparable to the
Hospital operated by such Operating Group Hospital Entity.
6.07 MAINTENANCE OF INSURANCE. In addition to the specific insurance
requirements of the Security Documents, maintain with financially sound and
reputable insurance companies not Affiliates of the Parent or any of its
Subsidiaries, insurance with respect to its properties and business against loss
or damage of the kinds customarily insured against by Persons engaged in the
same or similar business, of such types and in such amounts as are customarily
carried under similar circumstances by such other Persons and deliver to the
Administrative Agent upon its request a detailed list of the insurance then in
effect, stating the names of the insurance companies, the amounts and rates of
the insurance, the dates of the expiration thereof and the properties and risks
covered thereby, unless, with respect to any Joint Venture Entity that is not a
Hospital Entity, the failure to so file maintain, could not reasonably be
expected to have a Material Adverse Effect in the event of a loss or damage of
the kinds customarily insured against by Persons engaged in the same or similar
business.
6.08 COMPLIANCE WITH LAWS. Comply in all material respects with the
requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its business or property, except in such instances in
which (i) such requirement of Law or order, writ, injunction
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or decree is being contested in good faith by appropriate proceedings diligently
conducted; or (ii) the failure to comply therewith could not reasonably be
expected to have a Material Adverse Effect.
6.09 ENVIRONMENTAL LAWS. In addition to and without limiting the
generality of Section 6.08, (a) comply with, and ensure such compliance by all
tenants and subtenants with all applicable Environmental Laws and obtain and
comply with and maintain, and ensure that all tenants and subtenants, if any,
obtain and comply with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by applicable Environmental
Laws, except where the failure to so comply could not reasonably be expected to
have a Material Adverse Effect, and (b) conduct and complete all investigations,
studies, sampling and testing, and all remedial, removal and other actions
required under Environmental Laws, and promptly comply with all lawful orders
and directives of any Governmental Authority regarding Environmental Laws,
except where the failure to do so could not reasonably be expected to have a
Material Adverse Effect.
6.10 ENVIRONMENTAL INDEMNITY. Defend, indemnify and hold harmless the
Administrative Agent and the Lenders, and their respective parents,
Subsidiaries, Affiliates, employees, agents, officers and directors, from and
against any claims, demands, penalties, fines, liabilities, settlements,
damages, costs and expenses of whatever kind or nature known or unknown,
contingent or otherwise, arising out of, or in any way relating to the presence
of Hazardous Materials, or the violation of, noncompliance with or liability
under any Environmental Laws applicable to the operations of the Parent or any
Subsidiary thereof, or any orders, requirements or demands of Governmental
Authorities related thereto, including, without limitation, reasonable
attorney's and consultant's fees, investigation and laboratory fees, response
costs, court costs and litigation expenses, except to the extent that any of the
foregoing directly result from the gross negligence or willful misconduct of the
party seeking indemnification therefor.
6.11 COMPLIANCE WITH ERISA. In addition to and without limiting the
generality of Section 6.08, (a) except where the failure to so comply could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, (i) make, and cause each ERISA Affiliate to make all required
contributions to each Plan subject to Section 412 of the Code (without any
application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code with respect to any Plan), (ii) comply with
all material applicable provisions of ERISA and the regulations and published
interpretations thereunder with respect to all Employee Benefit Plans, (iii) not
take any action or fail to take action the result of which could be a liability
to the PBGC or to a Multiemployer Plan, (iv) not participate in any prohibited
transaction that could result in any civil penalty under ERISA or tax under the
Code and (v) operate each Employee Benefit Plan in such a manner that will not
incur any tax liability under Section 4980B of the Code or any liability to any
qualified beneficiary as defined in Section 4980B of the Code and (b) furnish to
the Administrative Agent upon the Administrative Agent's request such additional
information about any Employee Benefit Plan as may be reasonably requested by
the Administrative Agent.
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6.12 BOOKS AND RECORDS.
(a) Maintain proper books of record and account, in which full, true and
correct entries in conformity with GAAP consistently applied shall be made of
all financial transactions and matters involving the assets and business of the
Parent and its Subsidiaries; and
(b) Maintain such books of record and account in material conformity
with all applicable requirements of any Governmental Authority having regulatory
jurisdiction over the Parent and its Subsidiaries.
6.13 INSPECTION RIGHTS. Permit representatives and independent
contractors of the Administrative Agent and each Lender to visit and inspect any
of its properties, to examine its corporate, financial and operating records,
and make copies thereof or abstracts therefrom, and to discuss its affairs,
finances and accounts with its directors, officers, and independent public
accountants, all at such reasonable times during normal business hours and as
often as may be reasonably desired, upon reasonable advance notice to the
Borrower; provided, however, that when an Event of Default exists the
Administrative Agent or any Lender (or any of their respective representatives
or independent contractors) may do any of the foregoing at the expense of the
Borrower at any time during normal business hours and without advance notice.
6.14 USE OF PROCEEDS. Use the proceeds of the Credit Extensions for
working capital, capital expenditures, general corporate purposes and the other
purposes described herein, and not in contravention of any Law or of any Loan
Document.
6.15 ADDITIONAL SUBSIDIARIES.
(a) Notify the Administrative Agent at the time that any Person becomes
a Subsidiary of the Parent (and such Person creates, acquires or engages in any
business operations or owns assets with a fair market value in excess of
$50,000) and promptly thereafter (i) cause such Subsidiary to comply with the
terms of this Agreement and (ii) deliver to the Administrative Agent an update
of Schedule 1.01(b) or Section 1.01(d), as applicable, (designating whether such
Subsidiary is an Operating Group Subsidiary or an Operating Group Hospital
Entity or a Joint Venture Subsidiary).
(b) The Parent may, at any time and upon written notice to the
Administrative Agent, redesignate any Development Group Subsidiary as an
Operating Group Subsidiary and any Development Group Hospital Entity as an
Operating Group Hospital Entity.
(c) Upon the creation of any Substantially Wholly Owned Subsidiary of
the Parent as set forth in subsection (a) above, and upon the delivery by any
other Subsidiary of the Parent of a Guarantee with respect to the Senior
Unsecured Notes, promptly (and in any event within thirty (30) days) cause such
Subsidiary to (i) become a Guarantor by executing and delivering to the
Administrative Agent a counterpart of the Subsidiary Guaranty or such other
documents as the Administrative Agent shall deem appropriate for such purpose,
(ii) deliver to the Administrative Agent a duly executed Joinder Agreement and
comply with the applicable terms of each Security Document, (iii) deliver to the
Administrative Agent documents of the types referred to in clauses
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(iii) and (iv) of Section 4.01(a) and favorable opinions of counsel to such
Person (which shall cover, among other things, the legality, validity, binding
effect and enforceability of the documentation referred to in clauses (i) and
(ii)) and (iv) deliver to the Administrative Agent such other documents and
closing certificates as may be reasonably requested by the Administrative Agent,
all in form, content and scope reasonably satisfactory to the Administrative
Agent.
6.16 INTERCOMPANY NOTES.
(a) All intercompany loans permitted under Section 7.02(h) or Section
7.02(i) of this Agreement shall be evidenced by a Permitted Intercompany Note
executed and delivered on the Closing Date, and with respect any Permitted
Intercompany Note executed and delivered after the Closing Date, shall be
unsubordinated unless such Permitted Intercompany Note is used to finance a
Person's working capital or other operating cash requirements consistent with
the past practices of the Parent and its Subsidiaries and further shall be
secured in accordance with the following requirements:
(i) Subject to Permitted Liens, all Qualified Equipment
Intercompany Notes shall be secured by a first priority Lien on (A) all
equipment assets financed or refinanced with the proceeds of such
Qualified Equipment Intercompany Note and (B) to the extent permitted, all
other assets securing any other Permitted Intercompany Note made by the
same obligor making such Qualified Equipment Intercompany Note;
(ii) Subject to Permitted Liens, all Qualified Real Estate Notes
shall be secured by a first priority mortgage or deed of trust (as
applicable) on (A) all real property and other assets financed or
refinanced with the proceeds of such Qualified Real Estate Note and (B) to
the extent permitted, all other assets securing any other Permitted
Intercompany Note made by the same obligor making such Qualified Real
Estate Note; and
(iii) Subject to Permitted Liens, all Qualified Line of Credit Notes
shall be secured by a first priority lien on (A) all accounts, payment
intangibles, inventory, and all other personal property assets (other than
equipment, unless subject to the following clause (B)) of the obligor
under such Qualified Line of Credit Note and (B) to the extent permitted,
all other assets securing any other Permitted Intercompany Note all other
assets securing any other Permitted Intercompany Note made by the same
obligor making such Qualified Line of Credit Note; and
The Loan Parties agree to deliver (or cause to be delivered) all
applicable Permitted Intercompany Note Collateral Documents reasonably requested
by the Administrative Agent to effectuate the foregoing.
(b) Immediately upon its receipt of a Permitted Intercompany Note, the
Permitted Intercompany Lender shall pledge and assign such Permitted
Intercompany Note and related security to the Administrative Agent as security
for the Obligations and shall deliver to the Administrative Agent (i) the
original Permitted Intercompany Note executed by the applicable
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obligor thereunder (together with an endorsement executed in blank by the
applicable Permitted Intercompany Lender), (ii) the original of each Permitted
Intercompany Note Collateral Document required to be executed pursuant to this
Agreement by the applicable obligor under such Permitted Intercompany Note,
(iii) a Collateral Assignment executed by the applicable Permitted Intercompany
Lender with respect to such Permitted Intercompany Note and such Permitted
Intercompany Note Collateral Documents and any (iv) such documents, certificates
and opinions consistent with Section 4.01(c) hereof as may reasonably be
requested by the Administrative Agent.
6.17 MAINTENANCE OF HEALTHCARE LICENSES, ETC. In addition to and without
limiting the generality of Section 6.08, (a) observe and remain in compliance in
all material respects with all Medicare Regulations and Medicaid Regulations (as
applicable) (including, without limitation, the timely filing of all material
reports, administrative forms and filings required to be filed in connection
with the Medicare Regulations and the Medicaid Regulations (as applicable),
except to the extent that any such failure to make any such timely filing could
not reasonably be expected to have a Material Adverse Effect), and (b) obtain
and preserve, to the fullest extent permitted by all applicable Laws, all
certifications and authorizations necessary to ensure that each Hospital and
each applicable Credit Party are eligible for reimbursement under the Medicare
Regulations and the Medicaid Regulations (as applicable), unless, with respect
to the foregoing clauses (a) and (b), with respect to any Joint Venture Entity
that is not a Hospital Entity, the failure to do so could not reasonably be
expected to have a Material Adverse Effect.
6.18 FURTHER ASSURANCES.
Make, execute and deliver all such additional and further acts, things,
deeds and instruments as the Administrative Agent or the Required Lenders
(through the Administrative Agent) may reasonably require to document and
consummate the transactions contemplated hereby and to vest completely in and
insure the Administrative Agent and the Lenders their respective rights under
this Agreement, the Notes, the Letters of Credit and the other Loan Documents.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Parent shall not, nor shall it permit any
of its Subsidiaries to, directly or indirectly:
7.01 LIENS. Create, incur, assume or suffer to exist any Lien upon any of
its property, assets or revenues, whether now owned or hereafter acquired, other
than the following:
(a) Liens pursuant to (i) any Loan Document and (ii) any Permitted
Intercompany Note Collateral Documents;
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(b) Liens existing on the date hereof listed on Schedule 7.01; and any
renewals, refinancings, or extensions of the foregoing Liens; provided that (i)
the property covered thereby is not changed, (ii) the amount secured or
benefited thereby is not increased, (iii) the direct or any contingent obligor
with respect thereto is not changed, and (iv) any renewal or extension of the
obligations secured or benefited thereby is permitted by Section 7.03(b);
(c) Liens for taxes not yet due or which are being contested in good
faith and by appropriate proceedings diligently conducted, if adequate reserves
with respect thereto are maintained on the books of the applicable Person in
accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's or
other like Liens arising in the ordinary course of business which are not
overdue for a period of more than 60 days or which are being contested in good
faith and by appropriate proceedings diligently conducted, if adequate reserves
with respect thereto are maintained on the books of the applicable Person;
(e) pledges or deposits in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other social security
legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts and
leases (other than Indebtedness), statutory obligations, surety bonds (other
than bonds related to judgments or litigation), performance bonds and other
obligations of a like nature incurred in the ordinary course of business;
(g) easements, reservations, rights-of-way, covenants, conditions,
restrictions and other similar encumbrances affecting real property which, in
the aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or materially
interfere with the ordinary conduct of the business of the applicable Person;
(h) Liens securing judgments for the payment of money not constituting
an Event of Default under Section 9.01(h) or securing appeal or other surety
bonds related to such judgments;
(i) Liens securing Indebtedness permitted under Section 7.03(e);
provided that (i) such Liens do not at any time encumber any property other than
the property financed by such Indebtedness and (ii) the Indebtedness secured
thereby does not exceed the cost or fair market value, whichever is lower, of
the property being acquired on the date of acquisition; and
(j) Liens securing Indebtedness permitted under Section 7.03(i).
7.02 INVESTMENTS. Make any Investments, except:
(a) Investments held by any Credit Party in the form of cash
equivalents;
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(b) advances to officers, directors and employees of any Credit Party in
an aggregate amount not to exceed $5,000,000 at any time outstanding, for
travel, entertainment, relocation and analogous ordinary business purposes;
(c) Investments and commitments to provide Investments of any Credit
Party in any other Credit Party existing on the date hereof and listed on
Schedule 7.02(c) in the amounts set forth thereon;
(d) Investments consisting of extensions of credit in the nature of
accounts receivable or notes receivable arising from the grant of trade credit
in the ordinary course of business, and Investments received in satisfaction or
partial satisfaction thereof from financially troubled account debtors to the
extent reasonably necessary in order to prevent or limit loss;
(e) Guarantees permitted by Section 7.03;
(f) Investments in the form of dividends, distributions or advances
permitted pursuant to Section 7.06(d)(v);
(g) Investments (i) of any Loan Party in any other Loan Party, (ii) in
any Credit Party in the form of a Permitted Intercompany Note or (iii)
consisting of the Sioux Falls Guarantee;
(h) other Investments in any Person that is not an Affiliate of the
Parent (other than a Credit Party or any Person that is an Affiliate of the
Parent solely because the Parent, directly or indirectly, owns Equity Interests
in or Controls such Person) in an aggregate amount (measured on the date such
Investments were made and without giving effect to subsequent changes in value),
when taken together with all other Investments made pursuant to this Section
7.02(h) since the Closing Date (but, to the extent that any Investment made
pursuant to this Section 7.02(h) since the Closing Date is sold or otherwise
liquidated for cash, minus the lesser of (x) the cash return of capital with
respect to such Investment (less the cost of disposition, if any) and (y) the
initial amount of such Investment), not to exceed $50,000,000; provided that (A)
no Default or Event of Default exists at the time of making such Investment or
would result from such Investment, (B) after giving effect to such Investment,
or pursuant to any agreement or other transaction entered into in connection
with such Investment, the Person in whom such Investment is made (1) is
Controlled by a Loan Party or (2) is party to (X) a management agreement with a
Loan Party entered into on terms and conditions substantially consistent with
past practices for similar Investments or (Y) a management agreement, limited
liability company operating agreement, limited or general partnership agreement
or shareholders agreement that provides a Loan Party with material involvement
in the business and financial affairs of such Person in whom such Investment is
made, and (C) the Parent Guarantor and the Borrower shall, and shall cause the
applicable Credit Party to, comply with the applicable provisions of Section
6.15 and Section 6.16;
(i) only in the event that (i) the amounts available for Investments
permitted under Section 7.02(h) have been fully utilized and (ii) the
Consolidated Senior Secured Leverage Ratio as of the immediately preceding
fiscal quarter end is less than 2.50 to 1.00, other Investments in any Person
that is not an Affiliate of the Parent (other than a Credit Party or any Person
that is an
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Affiliate of the Parent solely because the Parent, directly or indirectly, owns
Equity Interests in or Controls such Person) in an aggregate amount (measured on
the date such Investments were made and without giving effect to subsequent
changes in value), when taken together with all other Investments made pursuant
to Section 7.02(h) and this Section 7.02(i) since the Closing Date (but, to the
extent that any Investment made pursuant to Section 7.02(h) and this Section
7.02(i) since the Closing Date is sold or otherwise liquidated for cash, minus
the lesser of (x) the cash return of capital with respect to such Investment
(less the cost of disposition, if any) and (y) the initial amount of such
Investment), not to exceed $150,000,000; provided that (A) no Default or Event
of Default exists at the time of making such Investment or would result from
such Investment, (B) after giving effect to such Investment, or pursuant to any
agreement or other transaction entered into in connection with such Investment,
the Person in whom such Investment is made (1) is Controlled by a Loan Party or
(2) is party to (X) a management agreement with a Loan Party entered into on
terms and conditions substantially consistent with past practices for similar
Investments or (Y) a management agreement, limited liability company operating
agreement, limited or general partnership agreement or shareholders agreement
that provides a Loan Party with material involvement in the business and
financial affairs of such Person in whom such Investment is made, and (C) the
Parent Guarantor and the Borrower shall, and shall cause the applicable Credit
Party to, comply with the applicable provisions of Section 6.15 and Section
6.16;
7.03 INDEBTEDNESS. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof listed on Schedule 7.03;
and any refinancings, refundings, renewals or extensions of the foregoing
Indebtedness (excluding any such Indebtedness outstanding pursuant to any
Permitted Intercompany Note); provided that (i) the amount of such Indebtedness
is not increased at the time of such refinancing, refunding, renewal or
extension except by an amount equal to a reasonable premium or other reasonable
amount paid, and fees and expenses reasonably incurred, in connection with such
refinancing and by an amount equal to any existing commitments unutilized
thereunder and (ii) the terms relating to principal amount, amortization,
maturity, collateral (if any) and subordination (if any), and other material
terms taken as a whole, of any such refinancing, refunding, renewing or
extending Indebtedness, and of any agreement entered into and of any instrument
issued in connection therewith, are no less favorable in any material respect to
the Loan Parties or the Lenders than the terms of any agreement or instrument
governing the Indebtedness being refinanced, refunded, renewed or extended and
the interest rate applicable to any such refinancing, refunding, renewing or
extending Indebtedness does not exceed the then applicable market interest rate;
(c) Guarantees of any Credit Party in respect of Indebtedness otherwise
permitted hereunder of any Credit Party; provided that if any Credit Party that
is not a Loan Party guarantees any Indebtedness of any other Credit Party, then
the Credit Party providing such guarantee shall also guarantee the Obligations
on an equal and ratable basis;
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(d) obligations (contingent or otherwise) of any Credit Party existing
or arising under any Swap Contract; provided that (i) such obligations are (or
were) entered into by such Person in the ordinary course of business for the
purpose of directly mitigating risks associated with liabilities, commitments,
investments, assets, or property held or reasonably anticipated by such Person,
or changes in the value of securities issued by such Person, and not for
purposes of speculation or taking a "market view;" and (ii) such Swap Contract
does not contain any provision exonerating the non-defaulting party from its
obligation to make payments on outstanding transactions to the defaulting party;
(e) Indebtedness of any Credit Party in respect of capital leases and
purchase money obligations for fixed or capital assets within the limitations
set forth in Section 7.01(i); provided, however, that the aggregate amount of
all such Indebtedness at any one time outstanding shall not exceed $50,000,000;
(f) Indebtedness (i) consisting of Permitted Intercompany Notes or (ii)
the Sioux Falls Guarantee;
(g) Indebtedness in the form of distributions and advances permitted
pursuant to Section 7.06(d)(v);
(h) Indebtedness under the Senior Unsecured Notes in an aggregate
principal amount not to exceed $150,000,000, and any refinancings, refundings,
renewals or extensions thereof; provided that (i) the amount of such
Indebtedness is not increased at the time of such refinancing, refunding,
renewal or extension except by an amount equal to a reasonable premium or other
reasonable amount paid, and fees and expenses reasonably incurred, in connection
with such refinancing and by an amount equal to any existing commitments
unutilized thereunder and (ii) the terms relating to principal amount,
amortization, maturity, and other material terms taken as a whole, of any such
refinancing, refunding, renewing or extending Indebtedness, and of any agreement
entered into and of any instrument issued in connection therewith, are no less
favorable in any material respect to the Loan Parties or the Lenders than the
terms of any agreement or instrument governing the Indebtedness being
refinanced, refunded, renewed or extended and the interest rate applicable to
any such refinancing, refunding, renewing or extending Indebtedness does not
exceed the then applicable market interest rate;
(i) (i) other secured or unsecured Indebtedness in an aggregate
principal amount not to exceed $10,000,000 at any time outstanding, and (ii)
other unsecured Indebtedness in the form of a Guarantee of Indebtedness of any
Person that is not an Affiliate of the Parent (other than a Credit Party or any
Person that is an Affiliate of the Parent solely because the Parent, directly or
indirectly, owns Equity Interests in or Controls such Person) in an aggregate
amount not to exceed $10,000,000 at any time outstanding; provided that, with
respect to any Guarantee incurred pursuant to this Section 7.06(i), after giving
effect to such Guarantee, or pursuant to any agreement or other transaction
entered into in connection with such Guarantee, the Person for whose benefit
such Guarantee is made (1) is Controlled by a Loan Party or (2) is party to (X)
a management agreement with a Loan Party entered into on terms and conditions
substantially consistent with past practices for similar Guarantees or (Y)
management agreement, limited liability company operating agreement, limited or
general partnership agreement or shareholders
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agreement that provides a Loan Party with material involvement in the business
and financial affairs of such Person for whose benefit such Guarantee is made;
(j) Indebtedness of the Parent (i) in an aggregate principal amount not
to exceed the sum of (a) $100,000,000 less (b) the outstanding principal amount
of Indebtedness incurred pursuant to Section 7.03(k) and (ii) issued on terms
substantially similar to the Senior Unsecured Notes except that the principal
amount, final maturity date (which shall be no earlier than six months after the
Term Loan Maturity Date), interest rate, redemption premiums and other pricing
terms may be different; provided that (A) no Default or Event of Default exists
and is continuing at the time of the incurrence of such Indebtedness or would be
caused thereby and (B) the covenants and events of default of such additional
senior unsecured Indebtedness are not substantially more restrictive than those
contained in the Senior Unsecured Note Indenture, and any refinancings,
refundings, renewals or extensions thereof; provided that (I) the amount of such
Indebtedness is not increased at the time of such refinancing, refunding,
renewal or extension except by an amount equal to a reasonable premium or other
reasonable amount paid, and fees and expenses reasonably incurred, in connection
with such refinancing and by an amount equal to any existing commitments
unutilized thereunder and (II) the terms relating to principal amount,
amortization, maturity, and other material terms taken as a whole, of any such
refinancing, refunding, renewing or extending Indebtedness, and of any agreement
entered into and of any instrument issued in connection therewith, are no less
favorable in any material respect to the Loan Parties or the Lenders than the
terms of any agreement or instrument governing the Indebtedness being
refinanced, refunded, renewed or extended and the interest rate applicable to
any such refinancing, refunding, renewing or extending Indebtedness does not
exceed the then applicable market interest rate;
(k) Subordinated Indebtedness of the Borrower in an aggregate principal
amount not to exceed the sum of (i) $100,000,000 less (ii) the outstanding
principal amount of Indebtedness incurred pursuant to Section 7.03(j), so long
as both before and after the issuance of such Subordinated Indebtedness (A) no
Default or Event of Default has occurred and is continuing and (B) the Credit
Parties are in pro forma compliance with each of the covenants set forth in
Section 7.14 (which, in the case of clause (B) above, shall be evidenced by an
officer's compliance certificate, in form and substance reasonably satisfactory
to the Administrative Agent, delivered to the Administrative Agent prior to the
issuance of such Subordinated Indebtedness), and any refinancings, refundings,
renewals or extensions thereof; provided that (I) the amount of such
Indebtedness is not increased at the time of such refinancing, refunding,
renewal or extension except by an amount equal to a reasonable premium or other
reasonable amount paid, and fees and expenses reasonably incurred, in connection
with such refinancing and by an amount equal to any existing commitments
unutilized thereunder and (II) the terms relating to principal amount,
amortization, maturity, and subordination, and other material terms taken as a
whole, of any such refinancing, refunding, renewing or extending Indebtedness,
and of any agreement entered into and of any instrument issued in connection
therewith, are no less favorable in any material respect to the Loan Parties or
the Lenders than the terms of any agreement or instrument governing the
Indebtedness being refinanced, refunded, renewed or extended and the interest
rate applicable to any such refinancing, refunding, renewing or extending
Indebtedness does not exceed the then applicable market interest rate;
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(l) Any refinancings, refundings, renewals or extensions of any
Indebtedness outstanding pursuant to any Permitted Intercompany Note with the
proceeds of Indebtedness provided by any Person other than a Permitted
Intercompany Lender; provided that (i) the Permitted Intercompany Notes issued
by no more than three (3) Hospital Entities may be refinanced pursuant to this
clause (l) during the term hereof, (ii) the amount of such Indebtedness is not
increased at the time of such refinancing, refunding, renewal or extension
except by an amount equal to a reasonable premium or other reasonable amount
paid, and fees and expenses reasonably incurred, in connection with such
refinancing and by an amount equal to any existing commitments unutilized
thereunder and (iii) the terms relating to principal amount, amortization,
maturity, collateral, and other material terms taken as a whole, of any such
refinancing, refunding, renewing or extending Indebtedness, and of any agreement
entered into and of any instrument issued in connection therewith, are no less
favorable in any material respect to the Loan Parties or the Lenders than the
terms of any agreement or instrument governing the Indebtedness being
refinanced, refunded, renewed or extended and the interest rate applicable to
any such refinancing, refunding, renewing or extending Indebtedness does not
exceed the then applicable market interest rate.
7.04 FUNDAMENTAL CHANGES. Merge, dissolve, liquidate, consolidate with or
into another Person, or Dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to or in favor of any Person, except that, so long as no
Default exists or would result therefrom:
(a) any Credit Party may merge with any other Credit Party; provided
that if any such merger (i) involves the Borrower, then the Borrower shall be
the continuing or surviving Person, or (ii) involves any one or more Guarantors,
then such Guarantor or Guarantors shall be the continuing or surviving Person;
(b) any Credit Party may Dispose of all or substantially all of its
assets (upon voluntary liquidation or otherwise) to a Loan Party; and
(c) any Credit Party may Dispose of all or substantially all of its
assets in any transaction to the extent permitted pursuant to Section 7.05(g).
7.05 DISPOSITIONS. Make any Disposition or enter into any agreement to
make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned or
hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory in the ordinary course of business;
(c) Dispositions of equipment or real property to the extent that (i)
such property is exchanged for credit against the purchase price of similar
replacement property or (ii) the proceeds of such Disposition are reasonably
promptly applied to the purchase price of such replacement property;
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(d) Dispositions of property by any Credit Party to a Loan Party;
(e) Dispositions permitted by Section 7.04;
(f) Dispositions in the form of Investments in new Credit Parties formed
after the Closing Date, to the extent such Investment is permitted pursuant to
Section 7.02(d); and
(g) Dispositions by Credit Parties not otherwise permitted under this
Section 7.05; provided that (i) at the time of such Disposition, no Default or
Event of Default shall exist or would result from such Disposition and (ii) the
aggregate book value of all property Disposed of in reliance on this clause (g)
(including any such Disposition permitted under Section 7.04(c) pursuant to this
clause (g)) shall not exceed $150,000,000 in the aggregate during the term
hereof;
provided, however, that any Disposition pursuant to clauses (a) through
(g) shall be for fair market value.
7.06 RESTRICTED PAYMENTS. Declare or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
except that:
(a) each Credit Party may make Restricted Payments to any Loan Party
(and, in the case of a Restricted Payment by a Joint Venture Entity, to any Loan
Party and to each other owner of Equity Interests of such Joint Venture Entity
on a pro rata basis based on their relative ownership interests);
(b) each Credit Party may declare and make dividend payments or other
distributions payable solely in the common Equity Interests of such Person;
(c) so long as no Default has occurred and is continuing or would be
caused thereby, each Credit Party may purchase, redeem or otherwise acquire
shares of its common Equity Interests or warrants or options to acquire any such
shares with the proceeds received from the substantially concurrent issue of new
shares of its common Equity Interests;
(d) so long as no Default has occurred and is continuing or would be
caused thereby, the Borrower may declare and make (and each Subsidiary of the
Borrower may declare and make to enable the Borrower to do the same) dividend
payments to the Parent so that the Parent may (so long as no Default has
occurred and is continuing or would be caused thereby):
(i) pay corporate operating (including, without limitation,
directors fees and expenses) and overhead expenses in the ordinary course
of business;
(ii) pay any taxes which are due and payable in the ordinary course
of business by the Loan Parties as part of the consolidated group;
(iii) pay indemnification claims made by an officer or director or
shareholder of the Parent;
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(iv) make regularly scheduled payments of accrued interest on, and
"Liquidated Damages" (as defined in the Senior Unsecured Note Indenture)
payable in respect of, the Senior Unsecured Notes, to the extent permitted
by Section 7.16(b); and
(v) make dividends and distributions with respect to shares of the
common stock of the Parent or repurchase, redeem, or other acquire or
retire for value any Equity Interests of any Credit Party; provided that
(A) any such repurchase shall be either (I) pursuant to, and in accordance
with, the terms of a common stock buyback program approved by the Board of
Directors of the Parent (a copy of which shall be delivered to the
Administrative Agent), or (II) the repurchase, redemption or other
acquisition or retirement for value of any Equity Interests of any Credit
Party held by any current or former employees of, or current of former
members of, the management of such Credit Party pursuant to any management
equity subscription agreement, employment agreement or stock option
agreement in effect as of the Closing Date; provided that the aggregate
price paid for all such repurchased, redeemed, acquired or retired Equity
Interests pursuant to this clause (II) shall not exceed $1,000,000 in any
twelve-month period; provided further that, to the extent that such
aggregate price paid under this clause (II) in any twelve-month period is
less than $1,000,000, any unused amount may be used to make such
repurchase, redemptions or other acquisition or retirement pursuant to
this clause (II) only in the immediately succeeding twelve-month period
and (B) the aggregate amount of such dividends, distributions,
repurchases, redemptions or other acquisitions or retirements for value
pursuant to this Section 7.06(d)(v) shall not exceed $15,000,000 during
the term hereof;
(e) so long as no Default has occurred and is continuing or would be
caused thereby, the making of payments by any Loan Party in respect of, and
pursuant to the terms of, the Sioux Falls Guarantee; provided that such payments
shall not, since the date of the Indenture, exceed an aggregate amount of
Sixteen Million Seven Hundred Thousand Dollars ($16,700,000) and provided
further that failure to make any such payments would result in a breach of such
Loan Party's obligations under such Guarantee; and
(f) so long as no Default has occurred and is continuing or would be
caused thereby, the purchase, redemption or other acquisition or retirement for
value of common Equity Interests of a Credit Party if such purchase, redemption
or retirement for value is made for consideration not in excess of the fair
market value of such common Equity Interests.
7.07 LIMITATIONS ON EXCHANGE AND ISSUANCE OF EQUITY INTERESTS. Issue, sell
or otherwise dispose of any class or series of Equity Interests that, by its
terms or by the terms of any security into which it is convertible or
exchangeable, is, or upon the happening of an event or passage of time would be,
(a) convertible or exchangeable into Indebtedness or (b) required to be redeemed
or repurchased, including at the option of the holder, in whole or in part, or
has, or upon the happening of an event or passage of time would have, a
redemption or similar payment due.
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7.08 CHANGE IN NATURE OF BUSINESS. Engage in any material line of business
substantially different from those lines of business conducted by any of the
Credit Parties on the date hereof or any business substantially related or
incidental thereto.
7.09 ACCOUNTING CHANGES; ORGANIZATIONAL DOCUMENTS; PERMITTED INTERCOMPANY
NOTES AND PERMITTED INTERCOMPANY NOTE COLLATERAL DOCUMENTS. (a) Change its
Fiscal Year end, or make any change in its accounting treatment and reporting
practices except as required by GAAP or (b) amend, modify or change its articles
of incorporation (or corporate charter or other similar organizational
documents) or amend, modify or change its bylaws (or other similar documents) in
any manner materially adverse in any respect to the rights or interests of the
Lenders or (c) amend, waive, modify or change any Permitted Intercompany Note or
any Permitted Intercompany Note Collateral Document which would (i) have the
effect of forgiving any amounts payable thereunder (other than the waiver of
default rate interest in connection with any waiver or cure of the underlying
default or event of default giving rise to such default rate interest), (ii)
release or otherwise materially impair any collateral security for any such
Permitted Intercompany Note or any Permitted Intercompany Note Collateral
Document (except for fair market value or pursuant to a transaction otherwise
permitted under this Agreement), or (iii) waive any default of event of default
thereunder resulting from a cross-default to a Default or Event of Default under
this Agreement, or waive, restrict or agree to forbear with respect to any
remedies or other rights resulting from any such cross-default, unless such
Default or Event of Default shall have been waived or cured in accordance with
the terms hereof.
7.10 TRANSACTIONS WITH AFFILIATES. Enter into any transaction of any kind
with any Affiliate of the Parent, whether or not in the ordinary course of
business, other than on fair and reasonable terms substantially as favorable to
the applicable Credit Party as would be obtainable by such Credit Party at the
time in a comparable arm's length transaction with a Person other than an
Affiliate; provided that the foregoing shall not apply to the transactions
between or among the Loan Parties.
7.11 BURDENSOME AGREEMENTS. Enter into any Contractual Obligation (other
than this Agreement or any other Loan Document) that:
(a) limits the ability (i) of any Credit Party to make Restricted
Payments to any Loan Party or to otherwise transfer property to any Loan
Party, (ii) of any Credit Party to Guarantee the Indebtedness of any Loan
Party or (iii) of any Credit Party to create, incur, assume or suffer to
exist Liens on property of such Person; provided, however, that:
(A) clauses (i), (ii) or (iii) shall not prohibit (I) any
provisions with respect to distributions or the disposition of
assets or property of a Joint Venture Entity contained in any
limited liability company, operating, partnership, shareholder or
other similar agreements related to such Joint Venture Entity, to
the extent entered into in the ordinary course of business to
develop, own, operate, or manage business operations permitted
hereunder with other equity investors in such Joint Venture Entities
that are no more restrictive, taken as a whole, than any such
agreements in effect on the Closing Date or (II) any restrictions or
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encumbrances as set forth in the terms of any Indebtedness in effect
of the Closing Date (or any Indebtedness after the Closing Date
permitted hereunder) and any amendments, modifications,
restatements, renewals, extensions, supplements, refundings,
replacements or refinancings thereof; provided that the restrictions
and encumbrances in any such Indebtedness after the Closing Date
permitted hereunder or any such amendments, modifications,
restatements, renewals, extensions, supplements, refundings,
replacements or refinancings are no more restrictive, taken as a
whole, than those in effect on the Closing Date; and
(B) clause (iii) shall not prohibit any negative pledge
incurred or provided in favor of (I) any holder of Indebtedness
permitted under Section 7.03(e) solely to the extent any such
negative pledge relates to the property financed by or the subject
of such Indebtedness or (II) any of the Senior Unsecured Notes
pursuant to the Senior Unsecured Note Documents; or
(b) contains covenants binding on any Loan Party which such
covenants are more restrictive than the provisions of Articles VI and VII;
or
(c) requires the grant of a Lien to secure an obligation of such
Person if a Lien is granted to secure another obligation of such Person.
7.12 USE OF PROCEEDS. Use the proceeds of any Credit Extension, whether
directly or indirectly, and whether immediately, incidentally or ultimately, to
purchase or carry margin stock (within the meaning of Regulation U of the FRB)
or to extend credit to others for the purpose of purchasing or carrying margin
stock or to refund indebtedness originally incurred for such purpose.
7.13 IMPAIRMENT OF SECURITY INTERESTS. Take or omit to take any action,
which might or would have the result of materially impairing the security
interests in favor of the Administrative Agent with respect to the Collateral or
grant to any Person (other than the Administrative Agent for the benefit of
itself and the Lenders pursuant to the Security Documents) any interest
whatsoever in the Collateral, except for Liens permitted under Section 7.01 and
Dispositions permitted under Section 7.05.
7.14 FINANCIAL COVENANTS.
(a) Maximum Consolidated Senior Secured Leverage Ratio. Permit the
Consolidated Senior Secured Leverage Ratio as of the end of any fiscal quarter
of the Parent during any period set forth below to be greater than the ratio set
forth below opposite such fiscal quarter:
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MAXIMUM
FOUR FISCAL QUARTERS ENDING CONSOLIDATED
SENIOR SECURED
LEVERAGE RATIO
--------------
Closing Date through September 29, 3.00 to 1.00
2006
September 30, 2006 and thereafter 2.50 to 1.0
(b) Maximum Consolidated Total Leverage Ratio. Permit the
Consolidated Total Leverage Ratio as of the end of any fiscal quarter of the
Parent during any period set forth below to be greater than the ratio set forth
below opposite such fiscal quarter:
FOUR FISCAL QUARTERS ENDING MAXIMUM
CONSOLIDATED
TOTAL
LEVERAGE RATIO
--------------
Closing Date through September 29, 5.50 to 1.00
2006
September 30, 2006 and thereafter 4.50 to 1.0
(c) Minimum Consolidated Fixed Charge Coverage Ratio. Permit the
Consolidated Fixed Charge Coverage Ratio as of the end of any fiscal quarter of
the Parent to be less than 1.25 to 1.00.
(d) Consolidated Tangible Net Worth. Permit Consolidated Tangible Net
Worth at any time to be less than the sum of (i) $138,000,000, (ii) an amount
equal to 50% of the Consolidated Net Income earned in each full fiscal quarter
ending after June 30, 2004 (with no deduction for a net loss in any such fiscal
quarter) and (iii) an amount equal to 50% of the aggregate increases in
Consolidated Total Equity of the Parent and its Subsidiaries after the date
hereof by reason of the issuance and sale of Equity Interests of the Parent or
any Subsidiary (other than issuances to the Parent or a wholly-owned
Subsidiary), including upon any conversion of debt securities of the Parent into
such Equity Interests.
7.15 CAPITAL EXPENDITURES. Make or become legally obligated to make any
Capital Expenditures (excluding normal replacements and maintenance which are
properly charged to current operations), except for Capital Expenditures in the
ordinary course of business not exceeding, in the aggregate for the Parent and
its Subsidiaries (a) during the period from the Closing Date through and
including September 30, 2004, $25,000,000 and (b) during any fiscal year
commencing with the fiscal year ending September 30, 2005, $50,000,000;
provided, however, that so long as no Default has occurred and is continuing or
would result from such expenditure, any portion of any amount set forth in
clause (b) above, if not expended in the fiscal year for which it is permitted
above, may be carried over for expenditure in the next two following fiscal
years; provided further, that all Capital Expenditures shall be deemed to have
been made first with respect to the amount initially permitted to be expended in
such fiscal year (without regard to any carry forward from a prior fiscal year),
and only after such amounts have been fully expended, from any amounts carried
forward from a prior fiscal year.
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7.16 AMENDMENTS, PAYMENTS AND PREPAYMENTS OF SENIOR UNSECURED NOTES.
(a) Amend or modify (or permit the modification or amendment of) any of
the terms or provisions of any Senior Unsecured Notes in any respect which would
materially adversely affect the rights or interests of the Administrative Agent
and Lenders hereunder.
(b) Purchase, defease, make any payment or prepayment on (including,
without limitation, any sinking fund payment), or redeem or acquire for value
(including, without limitation, by way of depositing with any trustee with
respect thereto money or securities before due for the purpose of paying when
due), the Senior Unsecured Notes (including making any offer to do any of the
foregoing), other than regularly scheduled payments of accrued interest on, and
"Liquidated Damages" (as defined in the Senior Unsecured Note Indenture) payable
in respect of, the Senior Unsecured Notes.
ARTICLE VIII.
GUARANTY OF PARENT GUARANTOR
8.01 GUARANTY OF OBLIGATIONS.
The Parent Guarantor hereby absolutely and unconditionally guarantees to
the Administrative Agent for the ratable benefit of the Administrative Agent and
the Lenders, and their respective successors, endorsees, transferees and
assigns, the prompt payment and performance of all Obligations of the Borrower,
whether primary or secondary (whether by way of endorsement or otherwise),
whether now existing or hereafter arising, whether or not from time to time
reduced or extinguished (except by payment thereof) or hereafter increased or
incurred, whether or not recovery may be or hereafter become barred by the
statute of limitations, whether enforceable or unenforceable as against the
Borrower, whether or not discharged, stayed or otherwise affected by any
bankruptcy, insolvency or other similar law or proceeding, whether created
directly with the Administrative Agent or any Lender or acquired by the
Administrative Agent or any Lender through assignment, endorsement or otherwise,
whether matured or unmatured, whether joint or several, as and when the same
become due and payable (whether at maturity or earlier, by reason of
acceleration, mandatory repayment or otherwise), in accordance with the terms of
any such instruments evidencing any such obligations, including all renewals,
extensions or modifications thereof (all Obligations of the Borrower, including
all of the foregoing, being hereinafter collectively referred to as the
"Guaranteed Obligations").
8.02 NATURE OF GUARANTY.
(a) The Parent Guarantor agrees that this Parent Guaranty is an absolute,
continuing, unconditional guaranty of payment and performance and not of
collection, and that its obligations under this Parent Guaranty shall be
primary, absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any
future amendment of, or change in, this Agreement or any other Loan
Document or any other
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agreement, document or instrument to which the Parent Guarantor, the
Borrower, any Subsidiary thereof or any Affiliate thereof is or may become
a party;
(ii) the absence of any action to enforce this Parent Guaranty, this
Agreement or any other Loan Document or the waiver or consent by the
Administrative Agent or any Lender with respect to any of the provisions
of this Parent Guaranty, this Agreement or any other Loan Document;
(iii) the existence, value or condition of, or failure to perfect
its Lien against, any security for or other guaranty of the Guaranteed
Obligations or any action, or the absence of any action, by the
Administrative Agent or any Lender in respect of such security or guaranty
(including, without limitation, the release of any such security or
guaranty);
(iv) any structural change in, restructuring of or similar change of
the Parent Guarantor, the Borrower or any of their Subsidiaries; or
(v) any other action or circumstances which might otherwise
constitute a legal or equitable discharge or defense of a surety or
guarantor;
it being agreed by the Parent Guarantor that its obligations under this Parent
Guaranty shall not be discharged until the final and indefeasible payment and
performance, in full, of the Guaranteed Obligations (other than contingent
indemnity obligations) and the termination of the Commitments.
(b) The Parent Guarantor represents, warrants and agrees that its
obligations under this Parent Guaranty are not and shall not be subject to any
counterclaims, offsets or defenses of any kind against the Administrative Agent,
the Lenders or the Borrower whether now existing or which may arise in the
future.
(c) The Parent Guarantor hereby agrees and acknowledges that the
Guaranteed Obligations, and any of them, shall conclusively be deemed to have
been created, contracted or incurred, or renewed, extended, amended or waived,
in reliance upon this Parent Guaranty, and all dealings between the Parent
Guarantor, the Borrower and any Subsidiary thereof, on the one hand, and the
Administrative Agent and the Lenders, on the other hand, likewise shall be
conclusively presumed to have been had or consummated in reliance upon this
Parent Guaranty.
8.03 WAIVERS.
To the extent permitted by law, the Parent Guarantor expressly waives all
of the following rights and defenses (and agrees not to take advantage of or
assert any such right or defense):
(a) rights it may now or in the future have under any statute, or at law
or in equity, or otherwise, to compel the Administrative Agent or any Lender to
proceed in respect of the Guaranteed Obligations against the Borrower or any
other Person or against any security for or
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other guaranty of the payment and performance of the Guaranteed Obligations
before proceeding against, or as a condition to proceeding against, the Parent
Guarantor;
(b) any defense based upon the failure of the Administrative Agent or any
Lender to commence an action in respect of the Guaranteed Obligations against
the Parent Guarantor, the Borrower, any other Operating Group Guarantor, any
other guarantor or any other Person or any security for the payment and
performance of the Guaranteed Obligations;
(c) any right to insist upon, plead or in any manner whatever claim or
take the benefit or advantage of, any appraisal, valuation, stay, extension,
marshalling of assets or redemption laws, or exemption, whether now or at any
time hereafter in force, which may delay, prevent or otherwise affect the
performance by the Parent Guarantor of its obligations under, or the enforcement
by the Administrative Agent or the Lenders of, this Parent Guaranty;
(d) any right of diligence, presentment, demand, protest and notice
(except as specifically required herein) of whatever kind or nature with respect
to any of the Guaranteed Obligations and waives, to the extent permitted by law,
the benefit of all provisions of law which are or might be in conflict with the
terms of this Parent Guaranty; and
(e) any and all right to notice of the creation, renewal, extension or
accrual of any of the Guaranteed Obligations and notice of or proof of reliance
by the Administrative Agent or any Lender upon, or acceptance of, this Parent
Guaranty.
The Parent Guarantor agrees that any notice or directive given at any time
to the Administrative Agent or any Lender which is inconsistent with any of the
foregoing waivers shall be null and void and may be ignored by the
Administrative Agent or such Lender, and, in addition, may not be pleaded or
introduced as evidence in any litigation relating to this Parent Guaranty for
the reason that such pleading or introduction would be at variance with the
written terms of this Parent Guaranty, unless the Administrative Agent and the
Required Lenders have specifically agreed otherwise in writing. The foregoing
waivers are of the essence of the transaction contemplated by this Agreement and
the other Loan Documents and, but for this Parent Guaranty and such waivers, the
Administrative Agent and Lenders would decline to enter into this Agreement and
the other Loan Documents.
8.04 MODIFICATION OF LOAN DOCUMENTS, ETC.
Neither the Administrative Agent nor any Lender shall incur any liability
to the Parent Guarantor as a result of any of the following, and none of the
following shall impair or release this Parent Guaranty or any of the obligations
of the Parent Guarantor under this Parent Guaranty:
(a) any change or extension of the manner, place or terms of payment of,
or renewal or alteration of all or any portion of, the Guaranteed Obligations;
(b) any action under or in respect of this Agreement or the other Loan
Documents in the exercise of any remedy, power or privilege contained herein or
therein or available to any of
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them at law, in equity or otherwise, or waiver or refrain from exercising any
such remedies, powers or privileges;
(c) any amendment or modification, in any manner whatsoever, of this
Agreement or the other Loan Documents;
(d) any extension or waiver of the time for performance by the Parent
Guarantor, the Borrower, any Subsidiary Guarantor or any other Person of, or
compliance with, any term, covenant or agreement on its part to be performed or
observed under this Agreement or any other Loan Document, or waiver of such
performance or compliance or consent to a failure of, or departure from, such
performance or compliance;
(e) any taking and holding of security or collateral for the payment of
the Guaranteed Obligations or any sale, exchange, release, disposal of, or other
dealing with, any property pledged, mortgaged or conveyed, or in which the
Administrative Agent or any Lender has been granted a Lien, to secure any
Indebtedness of the Parent Guarantor, the Borrower, any Subsidiary Guaranty or
any other Person to the Administrative Agent or any Lender;
(f) any release of any Person who may be liable in any manner for the
payment of any amounts owed by the Parent Guarantor, the Borrower, any
Subsidiary Guarantor or any other Person to the Administrative Agent or any
Lender;
(g) any modification or termination of the terms of any intercreditor or
subordination agreement pursuant to which claims of other creditors of the
Parent Guarantor, the Borrower, any Subsidiary Guarantor or any other Person are
subordinated to the claims of the Administrative Agent or any Lender; or
(h) any application of any sums by whomever paid or however realized to
any amounts owing by the Parent Guarantor, the Borrower, any Subsidiary
Guarantor or any other Person to the Administrative Agent or any Lender on
account of the Guaranteed Obligations in such manner as the Administrative Agent
or any Lender shall determine in its reasonable discretion.
8.05 DEMAND BY ADMINISTRATIVE AGENT.
In addition to the terms set forth in this Article VIII, and in no manner
imposing any limitation on such terms, if all or any portion of the then
outstanding Guaranteed Obligations under this Agreement are declared to be
immediately due and payable, then the Parent Guarantor shall, upon demand in
writing therefor by the Administrative Agent to the Parent Guarantor, pay all or
such portion of the outstanding Guaranteed Obligations then declared due and
payable. Notwithstanding the foregoing, the Parent Guarantor agrees that, in the
event of the dissolution or insolvency of the Parent Guarantor, the Borrower or
any other Operating Group Guarantor, or the inability or failure of the Parent
Guarantor, the Borrower or any Subsidiary Guarantor to pay debts as they become
due, or an assignment by the Parent Guarantor, the Borrower or any Subsidiary
Guarantor for the benefit of creditors, or the commencement of any case or
proceeding in respect of the Parent Guarantor, the Borrower or any Subsidiary
Guarantor under
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bankruptcy, insolvency or similar laws, and if such event shall occur at a time
when any of the Guaranteed Obligations may not then be due and payable, the
Parent Guarantor will pay to the Administrative Agent, for the ratable benefit
of the Lenders and their respective successors, indorsees, transferees and
assigns, forthwith the full amount which would be payable hereunder by the
Parent Guarantor if all such Guaranteed Obligations were then due and payable.
8.06 REMEDIES.
Upon the occurrence and during the continuance of any Event of Default,
with the consent of the Required Lenders, the Administrative Agent may, or upon
the request of the Required Lenders, the Administrative Agent shall, enforce
against the Parent Guarantor its obligations and liabilities hereunder and
exercise such other rights and remedies as may be available to the
Administrative Agent hereunder, under the other Loan Documents or otherwise.
8.07 REINSTATEMENT.
The Parent Guarantor agrees that, if any payment made by the Borrower or
any other Person applied to the Guaranteed Obligations is at any time annulled,
set aside, rescinded, invalidated, declared to be fraudulent or preferential or
otherwise required to be refunded or repaid, or the proceeds of any Collateral
are required to be returned by the Administrative Agent or any Lender to the
Borrower, its estate, trustee, receiver or any other Person, including, without
limitation, the Parent Guarantor or any Subsidiary Guarantor, under any
applicable Law or equitable cause, then, to the extent of such payment or
repayment, the Parent Guarantor's liability hereunder (and any Lien or
Collateral securing such liability) shall be and remain in full force and
effect, as fully as if such payment had never been made, and, if prior thereto,
this Parent Guaranty shall have been canceled or surrendered (and if any Lien or
Collateral securing the Parent Guarantor's liability hereunder shall have been
released or terminated by virtue of such cancellation or surrender), this Parent
Guaranty (and such Lien or Collateral) shall be reinstated in full force and
effect, and such prior cancellation or surrender shall not diminish, release,
discharge, impair or otherwise affect the obligations of the Parent Guarantor in
respect of the amount of such payment (or any Lien or Collateral securing such
obligation).
8.08 PAYMENTS.
Payments by the Parent Guarantor shall be made to the Administrative
Agent, to be credited and applied upon the Guaranteed Obligations, in
immediately available Dollars to an account designated by the Administrative
Agent or at the Administrative Agent's Office or at any other address that may
be specified in writing from time to time by the Administrative Agent.
8.09 NO SUBROGATION.
Until all amounts owing to the Administrative Agent and the Lenders on
account of the Guaranteed Obligations are paid in full and the Commitments are
terminated, the Parent Guarantor hereby waives any claims or other rights which
it may now or hereafter acquire against the Borrower that arise from the
existence or performance of the Parent Guarantor's
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obligations under this Parent Guaranty, including, without limitation, any right
of subrogation, reimbursement, exoneration, indemnification, any right to
participate in any claim or remedy of the Administrative Agent or the Lenders
against the Borrower or any Collateral which the Administrative Agent or the
Lenders now have or may hereafter acquire, whether or not such claim, remedy or
right arises in equity or under contract, statute or common law, by any payment
made hereunder or otherwise, including without limitation, the right to take or
receive from the Borrower, directly or indirectly, in cash or other property or
by set-off or in any other manner, payment or security on account of such claim
or other rights. If any amount shall be paid to the Parent Guarantor on account
of such rights at any time when all of the Obligations shall not have been paid
in full, such amount shall be held by the Parent Guarantor in trust for the
Administrative Agent, segregated from other funds of the Parent Guarantor, and
shall, forthwith upon receipt by the Parent Guarantor, be turned over to the
Administrative Agent in the exact form received by the Parent Guarantor (duly
indorsed by the Parent Guarantor to the Administrative Agent, if required) to be
applied against the Obligations, whether matured or unmatured, in such order as
set forth herein.
ARTICLE IX.
EVENTS OF DEFAULT AND REMEDIES
9.01 EVENTS OF DEFAULT. Any of the following shall constitute an Event of
Default:
(a) Non-Payment. The Borrower or any other Loan Party fails to pay (i)
when and as required to be paid herein, any amount of principal of any Loan or
any L/C Obligation, or (ii) within five (5) days after the same becomes due, any
interest on any Loan or on any L/C Obligation, or any commitment or other fee
due hereunder, or (iii) within five (5) days after the same becomes due, any
other amount payable hereunder or under any other Loan Document; or
(b) Specific Covenants.
(i) (A) any Loan Party fails to perform or observe any term,
covenant or agreement contained in any of Section 6.01, 6.02, 6.03, 6.05,
6.13, 6.14, 6.15, 6.16, or 6.17 or (B) the Parent or any Subsidiary fails
to perform or observe any term, covenant or agreement contained in Article
VII; or
(ii) Any Credit Party (that is not a Loan Party) fails to perform or
observe any term, covenant or agreement contained in Article VI, which
such term, covenant or agreement is specifically applicable thereto; or
any representation, warranty, certification or statement of fact made or
deemed made by any Loan Party with respect to a Credit Party pursuant to
Section 5.21 shall be incorrect or misleading when made or deemed made
(any such failure to perform or observe any such term, covenant or
agreement, or any such incorrect or misleading representation, warranty,
certification or statement of fact, a "Credit Party Breach") and on or
prior to the date that is thirty (30) days after the occurrence of such
Credit Party Breach (the "Cure Period"), the Parent has not:
(A) cured or caused the cure of such Credit Party Breach to
the satisfaction of the Administrative Agent and Required Lenders;
or
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(B) delivered (in writing, if requested by the Administrative
Agent) a proposed plan of action for curing or causing the cure of
such Credit Party Breach (which proposed plan shall include a
specific date (the "Cure Date", which may be later than the last day
of the Cure Period) for the actual cure of such Credit Party Breach)
that is approved by the Administrative Agent and Required Lenders
(including, without limitation, approval of the Cure Date), it being
understood and agreed that (1) until such Credit Party Breach is
actually cured to the satisfaction of the Administrative Agent and
Required Lenders, such Credit Party Breach shall be deemed to be
outstanding for purposes of the proviso to the following clause (C)
and (2) if such Credit Party Covenant breach is not cured to the
satisfaction of the Administrative Agent and Required Lenders by the
applicable Cure Date, such Credit Party Breach shall be an Event of
Default hereunder (unless such Credit Party has been designated as
an Excluded Credit Party in accordance with the terms hereof prior
to such Cure Date); or
(C) elected to designate the applicable Credit Party as an
Excluded Credit Party (it being understood that until such Credit
Party Breach is actually cured to the satisfaction of the
Administrative Agent and Required Lenders, such Credit Party Breach
shall be deemed to be outstanding for purposes of the following
proviso); provided that no Credit Party may be so designated if at
the time of such designation, more than three separate Credit
Parties would (1) have outstanding Credit Party Covenant Defaults or
(2) be designated as Excluded Credit Parties
Notwithstanding any term of this Section 9.01(b)(ii) to the
contrary, the Cure Period applicable to any Credit Party Breach of a
Credit Party arising during the pendency of an existing Cure Period
relating to a prior Credit Party Breach of such Credit Party shall expire
on the last day of such prior Cure Period applicable to such previous
Credit Party Breach (to the extent outstanding). The Parent may retract
the designation of a Credit Party as an Excluded Credit Party by providing
written notice of such retraction to the Administrative Agent; provided
that at the time of such retraction and after giving effect thereto, there
shall be no outstanding Credit Party Breaches of the Credit Party subject
to such retraction; or
(c) Other Defaults. Any Loan Party fails to perform or observe any other
covenant or agreement (not specified in subsection (a) or (b) above) contained
in any Loan Document on its part to be performed or observed and such failure
continues for thirty (30) days after the earlier of a Responsible Officer of the
Borrower, the Parent or any Parent Guarantor becoming aware of such Default or
notice thereof by the Administrative Agent or any Lender; or
(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of any
Loan Party herein (other than made by any Loan Party with respect to a Credit
Party pursuant to Section 5.21), in any other Loan Document, or in any document
delivered in connection herewith or therewith shall be incorrect or misleading
when made or deemed made; or
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(e) Cross-Default.
(i) Any Loan Party (A) fails to make any payment when due (after
application of all applicable grace periods, if any), whether by scheduled
maturity, required prepayment, acceleration, demand, or otherwise, in respect of
any Indebtedness or Guarantee (other than Indebtedness hereunder and
Indebtedness under Swap Contracts) having an aggregate principal amount
(including undrawn committed or available amounts and including amounts owing to
all creditors under any combined or syndicated credit arrangement) of more than
the Threshold Amount, or (B) fails to observe or perform any other agreement or
condition (after application of all applicable grace periods, if any) relating
to any such Indebtedness or Guarantee of more than the Threshold Amount or
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event occurs, the effect of which default or other event
is to cause, or to permit the holder or holders of such Indebtedness or the
beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf
of such holder or holders or beneficiary or beneficiaries) to cause, with the
giving of notice if required, such Indebtedness to be demanded or to become due
or to be repurchased, prepaid, defeased or redeemed (automatically or
otherwise), or an offer to repurchase, prepay, defease or redeem such
Indebtedness to be made, prior to its stated maturity, or such Guarantee to
become payable or cash collateral in respect thereof to be demanded; or
(ii) Except with respect to Indebtedness permitted under Section
7.03(f), any Credit Party that is not a Loan Party fails to make any payment
when due (whether by scheduled maturity, required prepayment, acceleration,
demand, or otherwise) in respect of, or fails to observe or perform any other
agreement or condition relating to, any Indebtedness or Guarantee (other than
Indebtedness hereunder and Indebtedness under Swap Contracts) having an
aggregate principal amount (including undrawn committed or available amounts and
including amounts owing to all creditors under any combined or syndicated credit
arrangement) of more than the Threshold Amount, or any other event occurs with
respect thereto, the effect of which payment default, other default or other
event is to cause, with the giving of notice if required, such Indebtedness to
be demanded or to become due or to be repurchased, prepaid, defeased or redeemed
(automatically or otherwise), or an offer to repurchase, prepay, defease or
redeem such Indebtedness to be made, prior to its stated maturity, or such
Guarantee to become payable or cash collateral in respect thereof to be
demanded; or
(iii) there occurs under any Swap Contract an Early Termination Date
(as defined in such Swap Contract) resulting from (A) any event of default under
such Swap Contract as to which any Credit Party is the Defaulting Party (as
defined in such Swap Contract) or (B) any Termination Event (as so defined)
under such Swap Contract as to which any Credit Party is an Affected Party (as
so defined) and, in either event, the Swap Termination Value owed by such Credit
Party as a result thereof is greater than the Threshold Amount; or
(f) Insolvency Proceedings, Etc. Any Credit Party (other than,
individually or in the aggregate any Credit Parties that are Immaterial
Subsidiaries) institutes or consents to the institution of any proceeding under
any Debtor Relief Law, or makes an assignment for the benefit of creditors; or
applies for or consents to the appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer for it or for all or
any material
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part of its property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the
application or consent of such Person and the appointment continues undischarged
or unstayed for sixty (60) calendar days; or any proceeding under any Debtor
Relief Law relating to any such Person or to all or any material part of its
property is instituted without the consent of such Person and continues
undismissed or unstayed for sixty (60) calendar days, or an order for relief is
entered in any such proceeding; or
(g) Inability to Pay Debts; Attachment. (i) Any Credit Party (other than,
individually or in the aggregate any Credit Parties that are Immaterial
Subsidiaries) becomes unable or admits in writing its inability or fails
generally to pay its debts as they become due, or (ii) any writ or warrant of
attachment or execution or similar process is issued or levied against all or
any material part of the property of any Credit Party (other than, individually
or in the aggregate any Credit Party of Credit Parties that are Immaterial
Subsidiaries) and is not released, vacated or fully bonded within thirty (30)
days after its issue or levy; or
(h) Judgments. There is entered against any Credit Party (other than,
individually or in the aggregate any Credit Parties that are Immaterial
Subsidiaries) (i) a final judgment or order for the payment of money in an
aggregate amount exceeding the Threshold Amount (to the extent the amount not
covered by independent third-party insurance as to which the insurer does not
dispute coverage exceeds the Threshold Amount), or (ii) any one or more
non-monetary final judgments that have, or could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect and, in either case,
(A) enforcement proceedings are commenced by any creditor upon such judgment or
order, or (B) there is a period of thirty (30) consecutive days during which a
stay of enforcement of such judgment, by reason of a pending appeal or
otherwise, is not in effect; or
(i) Environmental. Any Credit Party shall be subject to Environmental
Liability and such liability would be reasonably likely, individually or in the
aggregate, to have a Material Adverse Effect.
(j) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result
in liability of any Credit Party under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold
Amount, or (ii) any Credit Party or any ERISA Affiliate fails to pay when due,
after the expiration of any applicable grace period, any installment payment
with respect to its withdrawal liability under Section 4201 of ERISA under a
Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or
(k) Invalidity of Loan Documents. Any Loan Document, at any time after its
execution and delivery and for any reason other than as expressly permitted
hereunder or thereunder or satisfaction in full of all the Obligations, ceases
to be in full force and effect; or any Loan Party or any other Person contests
in any manner the validity or enforceability of any Loan Document; or any Loan
Party denies that it has any or further liability or obligation under any Loan
Document, or purports to revoke, terminate or rescind any Loan Document; or
(l) Change of Control. There occurs any Change of Control; or
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9.02 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default occurs and is
continuing, the Administrative Agent shall, at the request of, or may, with the
consent of, the Required Lenders, take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and any obligation
of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such
commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrower;
(c) require that the Borrower Cash Collateralize the L/C Obligations (in
an amount equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of itself and the Lenders all rights and remedies
available to it and the Lenders under the Loan Documents or applicable Law;
provided, however, that:
(i) in the event of a declaration of acceleration of the Obligations
solely because an Event of Default described in Section 9.01(e)(ii) has
occurred and is continuing, the declaration of acceleration of the
Obligations shall be automatically rescinded and annulled if the
Administrative Agent shall have received written evidence in form and
substance satisfactory thereto (within the 15 day time period described
below) that the event of default or payment default triggering such Event
of Default pursuant to Section 9.01(e)(ii) shall have been remedied or
cured by the Parent or a Subsidiary of thereof or waived by the holders of
the relevant Indebtedness within 15 days after the declaration of
acceleration with respect thereto and if the rescission and annulment of
the acceleration of the Obligations would not conflict with any judgment
or decree of a court of competent jurisdiction obtained by the
Administrative Agent or any Lender for the payment of all or any portion
of the Obligations;
(ii) upon the occurrence of an actual or deemed entry of an order
for relief with respect to the Borrower under the Bankruptcy Code of the
United States, the obligation of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions shall
automatically terminate, the unpaid principal amount of all outstanding
Loans and all interest and other amounts as aforesaid shall automatically
become due and payable, and the obligation of the Borrower to Cash
Collateralize the L/C Obligations as aforesaid shall automatically become
effective, in each case without further act of the Administrative Agent or
any Lender.
9.03 APPLICATION OF FUNDS. After the exercise of remedies provided for in
Section 9.02 (or after the Loans have automatically become immediately due and
payable and the L/C
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Obligations have automatically been required to be Cash Collateralized as set
forth in the proviso to Section 9.02), any amounts received on account of the
Obligations shall be applied by the Administrative Agent in the following order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including fees, charges and
disbursements of counsel to the Administrative Agent and amounts payable under
Article III) payable to the Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal and interest) payable to the
Lenders and the L/C Issuer (including fees, charges and disbursements of counsel
to the respective Lenders and the L/C Issuer (including fees and time charges
for attorneys who may be employees of any Lender or the L/C Issuer) and amounts
payable under Article III), ratably among them in proportion to the amounts
described in this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting accrued
and unpaid interest on the Loans, L/C Borrowings and other Obligations, ratably
among the Lenders and the L/C Issuer in proportion to the respective amounts
described in this clause Third payable to them;
Fourth, to payment of that portion of the Obligations (a) constituting
unpaid principal of the Loans and L/C Borrowings and (b) constituting
termination payments due in respect of a Swap Contract with any with any Person
that is a Lender or an Affiliate thereof at the time such Swap Contract was
executed or due in respect of an Existing Swap Contract, ratably among the
Lenders and the L/C Issuer in proportion to the respective amounts described in
this clause Fourth held by them;
Fifth, to the Administrative Agent for the account of the L/C Issuer, to
Cash Collateralize that portion of L/C Obligations comprised of the aggregate
undrawn amount of Letters of Credit; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrower or as otherwise required by Law.
Subject to Section 2.04(c), amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause Fifth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any
amount remains on deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied to
the other Obligations, if any, in the order set forth above.
ARTICLE X.
ADMINISTRATIVE AGENT
10.01 APPOINTMENT AND AUTHORITY. Each of the Lenders and the L/C Issuer
hereby irrevocably appoints Bank of America to act on its behalf as the
Administrative Agent hereunder
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and under the other Loan Documents and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms hereof or thereof, together with such
actions and powers as are reasonably incidental thereto. The provisions of this
Article are solely for the benefit of the Administrative Agent, the Lenders and
the L/C Issuer, and neither the Borrower nor any other Credit Party shall have
rights as a third party beneficiary of any of such provisions.
10.02 RIGHTS AS A LENDER. The Person serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a Lender as
any other Lender and may exercise the same as though it were not the
Administrative Agent and the term "Lender" or "Lenders" shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept deposits from, lend money to, act as the
financial advisor or in any other advisory capacity for and generally engage in
any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if such Person were not the Administrative Agent hereunder and
without any duty to account therefor to the Lenders.
10.03 EXCULPATORY PROVISIONS. The Administrative Agent shall not have any
duties or obligations except those expressly set forth herein and in the other
Loan Documents. Without limiting the generality of the foregoing, the
Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Loan Documents that the
Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as
shall be expressly provided for herein or in the other Loan Documents),
provided that the Administrative Agent shall not be required to take any
action that, in its opinion or the opinion of its counsel, may expose the
Administrative Agent to liability or that is contrary to any Loan Document
or applicable law; and
(c) shall not, except as expressly set forth herein and in the other
Loan Documents, have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Borrower or any of
its Affiliates that is communicated to or obtained by the Person serving
as the Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not
taken by it (i) with the consent or at the request of the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 11.01 and 9.02) or (ii) in the absence of
its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice
describing such Default is given to the Administrative Agent by the Borrower, a
Lender or the L/C Issuer.
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The Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the satisfaction
of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the
Administrative Agent.
10.04 RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent shall be
entitled to rely upon, and shall not incur any liability for relying upon, any
notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, Internet or intranet website posting
or other distribution) believed by it to be genuine and to have been signed,
sent or otherwise authenticated by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to have been made by the proper Person, and shall not incur any liability
for relying thereon. In determining compliance with any condition hereunder to
the making of a Loan, or the issuance of a Letter of Credit, that by its terms
must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the
Administrative Agent may presume that such condition is satisfactory to such
Lender or the L/C Issuer unless the Administrative Agent shall have received
notice to the contrary from such Lender or the L/C Issuer prior to the making of
such Loan or the issuance of such Letter of Credit. The Administrative Agent may
consult with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
10.05 DELEGATION OF DUTIES. The Administrative Agent may perform any and
all of its duties and exercise its rights and powers hereunder or under any
other Loan Document by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this
Article shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
10.06 RESIGNATION OF ADMINISTRATIVE AGENT. The Administrative Agent may at
any time give notice of its resignation to the Lenders, the L/C Issuer and the
Borrower. Upon receipt of any such notice of resignation, the Required Lenders
shall have the right, in consultation with the Borrower, to appoint a successor,
which shall be a bank with an office in the United States, or an Affiliate of
any such bank with an office in the United States. If no such successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may on behalf of the
Lenders and the L/C Issuer, appoint a
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successor Administrative Agent meeting the qualifications set forth above;
provided that if the Administrative Agent shall notify the Borrower and the
Lenders that no qualifying Person has accepted such appointment, then such
resignation shall nonetheless become effective in accordance with such notice
and (1) the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder and under the other Loan Documents (except that in the
case of any collateral security held by the Administrative Agent on behalf of
the Lenders or the L/C Issuer under any of the Loan Documents, the retiring
Administrative Agent shall continue to hold such collateral security until such
time as a successor Administrative Agent is appointed) and (2) all payments,
communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender and the L/C
Issuer directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section. Upon the acceptance
of a successor's appointment as Administrative Agent hereunder, such successor
shall succeed to and become vested with all of the rights, powers, privileges
and duties of the retiring (or retired) Administrative Agent, and the retiring
Administrative Agent shall be discharged from all of its duties and obligations
hereunder or under the other Loan Documents (if not already discharged therefrom
as provided above in this Section). The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such successor.
After the retiring Administrative Agent's resignation hereunder and under the
other Loan Documents, the provisions of this Article and Section 11.04 shall
continue in effect for the benefit of such retiring Administrative Agent, its
sub-agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while the retiring Administrative Agent
was acting as Administrative Agent.
Any resignation by Bank of America as Administrative Agent pursuant to
this Section shall also constitute its resignation as L/C Issuer and Swing Line
Lender. Upon the acceptance of a successor's appointment as Administrative Agent
hereunder, (a) such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring L/C Issuer and Swing Line
Lender, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged
from all of their respective duties and obligations hereunder or under the other
Loan Documents, and (c) the successor L/C Issuer shall issue letters of credit
in substitution for the Letters of Credit, if any, outstanding at the time of
such succession or make other arrangement satisfactory to the retiring L/C
Issuer to effectively assume the obligations of the retiring L/C Issuer with
respect to such Letters of Credit.
10.07 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS. Each Lender
and the L/C Issuer acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender or any of their Related
Parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender and the L/C Issuer also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
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10.08 NO OTHER DUTIES, ETC. Anything herein to the contrary
notwithstanding, none of the Bookrunners, Arrangers or Syndication Agents listed
on the cover page hereof shall have any powers, duties or responsibilities under
this Agreement or any of the other Loan Documents, except in its capacity, as
applicable, as the Administrative Agent, a Lender or the L/C Issuer hereunder.
10.09 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Administrative Agent (irrespective of
whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Borrower)
shall be entitled and empowered, by intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal
and interest owing and unpaid in respect of the Loans, L/C Obligations and
all other Obligations that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the claims of
the Lenders, the L/C Issuer and the Administrative Agent (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Lenders, the L/C Issuer and the Administrative Agent and
their respective agents and counsel and all other amounts due the Lenders,
the L/C Issuer and the Administrative Agent under Sections 2.04(i) and
(j), 2.10 and 11.04) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender and the L/C Issuer to make such payments to the Administrative Agent
and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its agents and
counsel, and any other amounts due the Administrative Agent under Sections 2.10
and 11.04.
Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender or
the L/C Issuer any plan of reorganization, arrangement, adjustment or
composition affecting the Obligations or the rights of any Lender or to
authorize the Administrative Agent to vote in respect of the claim of any Lender
in any such proceeding.
10.10 COLLATERAL AND GUARANTY MATTERS. The Lenders and the L/C Issuer
irrevocably authorize the Administrative Agent, at its option and in its
discretion,
(a) to release any Lien on any property granted to or held by the
Administrative Agent under any Loan Document (i) upon termination of the
Aggregate
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Commitments and payment in full of all Obligations (other than contingent
indemnification obligations) and the expiration or termination of all
Letters of Credit, (ii) that is sold or to be sold as part of or in
connection with any sale permitted hereunder or under any other Loan
Document, or (iii) subject to Section 11.01, if approved, authorized or
ratified in writing by the Required Lenders;
(b) to subordinate any Lien on any property granted to or held by
the Administrative Agent under any Loan Document to the holder of any Lien
on such property that is permitted by Section 7.01(i); and
(c) to release any Guarantor from its obligations under the Guaranty
if such Person ceases to be a Subsidiary as a result of a transaction
permitted hereunder.
Upon request by the Administrative Agent at any time, the Required Lenders
will confirm in writing the Administrative Agent's authority to release or
subordinate its interest in particular types or items of property, or to release
any Guarantor from its obligations under the Guaranty pursuant to this Section
10.10.
ARTICLE XI.
MISCELLANEOUS
11.01 AMENDMENTS, ETC. No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent to any departure by the
Borrower or any other Loan Party therefrom, shall be effective unless in writing
signed by the Required Lenders and the Borrower or the applicable Loan Party, as
the case may be, and acknowledged by the Administrative Agent, and each such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no such amendment,
waiver or consent shall:
(a) waive any condition set forth in Section 4.01(a) without the written
consent of each Lender;
(b) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 9.02) without the written consent of
such Lender;
(c) postpone any date fixed by this Agreement or any other Loan Document
for any payment (excluding mandatory prepayments) of principal, interest, fees
or other amounts due to the Lenders (or any of them) hereunder or under any
other Loan Document without the written consent of each Lender directly affected
thereby;
(d) reduce the principal of, or the rate of interest specified herein on,
any Loan or L/C Borrowing, or (subject to clause (iv) of the second proviso to
this Section 11.01) any fees or other amounts payable hereunder or under any
other Loan Document without the written consent of each Lender directly affected
thereby; provided, however, that only the consent of the Required Lenders shall
be necessary (i) to amend the definition of "Default Rate" or to waive any
obligation of the Borrower to pay interest or Letter of Credit Fees at the
Default Rate or (ii)
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to amend any financial covenant hereunder (or any defined term used therein)
even if the effect of such amendment would be to reduce the rate of interest on
any Loan or L/C Borrowing or to reduce any fee payable hereunder;
(e) change Section 2.14 or Section 9.03 in a manner that would alter the
pro rata sharing of payments required thereby without the written consent of
each Lender;
(f) change any provision of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to amend, waive or otherwise modify any rights hereunder or
make any determination or grant any consent hereunder, without the written
consent of each Lender;
(g) release (i) the Parent Guarantor from the Parent Guaranty, or (ii) any
Subsidiary Guarantor from the Subsidiary Guaranty, or (iii) all or a material
portion of the Collateral or release any Security Document (other than asset
sales permitted pursuant to Section 7.05 and as otherwise specifically permitted
or contemplated in this Agreement or the applicable Security Document) without
the written consent of each Lender; or
(h) impose any greater restriction on the ability of any Lender to assign
any of its rights or obligations hereunder without the written consent of
Lenders having more than 50% of the Aggregate Credit Exposures then in effect
within each of the following classes of Commitments, Loans and other Credit
Extensions: (i) the class consisting of the Revolving Credit Commitment on an
aggregate basis, and (ii) the class consisting of the Term Loan Commitment on an
aggregate basis. For purposes of this clause, the aggregate amount of each
Lender's risk participation and funded participation in L/C Obligations and
Swing Line Loans shall be deemed to be held by such Lender.
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above,
affect the rights or duties of the L/C Issuer under this Agreement or any Issuer
Document relating to any Letter of Credit issued or to be issued by it; (ii) no
amendment, waiver or consent shall, unless in writing and signed by the Swing
Line Lender in addition to the Lenders required above, affect the rights or
duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver
or consent shall, unless in writing and signed by the Administrative Agent in
addition to the Lenders required above, affect the rights or duties of the
Administrative Agent under this Agreement or any other Loan Document; (iv)
Section 11.06(h) may not be amended, waived or otherwise modified without the
consent of each Granting Lender all or any part of whose Loans are being funded
by an SPC at the time of such amendment, waiver or other modification; and (v)
the Fee Letter may be amended, or rights or privileges thereunder waived, in a
writing executed only by the parties thereto. Notwithstanding anything to the
contrary herein, no Defaulting Lender shall have any right to approve or
disapprove any amendment, waiver or consent hereunder, except that the
Commitment of such Lender may not be increased or extended without the consent
of such Lender.
11.02 NOTICES; EFFECTIVENESS; ELECTRONIC COMMUNICATION.
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(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in subsection (b) below), all notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopier as
follows, and all notices and other communications expressly permitted hereunder
to be given by telephone shall be made to the applicable telephone number, as
follows:
(i) if to the Borrower, the Administrative Agent, the L/C Issuer or
the Swing Line Lender, to the address, telecopier number, electronic mail
address or telephone number specified for such Person on Schedule 11.02;
and
(ii) if to any other Lender, to the address, telecopier number,
electronic mail address or telephone number specified in its
Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices sent
by telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in such
subsection (b).
(b) Electronic Communications. Notices and other communications to the
Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic
communication (including e-mail and Internet or intranet websites) pursuant to
procedures approved by the Administrative Agent, provided that the foregoing
shall not apply to notices to any Lender or the L/C Issuer pursuant to Article
II if such Lender or the L/C Issuer, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent or the Borrower
may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it,
provided that approval of such procedures may be limited to particular notices
or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and
other communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
(c) Change of Address, Etc. Each of the Borrower, the Administrative
Agent, the L/C Issuer and the Swing Line Lender may change its address,
telecopier or telephone number for notices and other communications hereunder by
notice to the other parties hereto. Each other
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Lender may change its address, telecopier or telephone number for notices and
other communications hereunder by notice to the Borrower, the Administrative
Agent, the L/C Issuer and the Swing Line Lender.
(d) Reliance by Administrative Agent, L/C Issuer and Lenders. The
Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely
and act upon any notices (including telephonic Loan Notices and Swing Line Loan
Notices) purportedly given by or on behalf of the Borrower even if (i) such
notices were not made in a manner specified herein, were incomplete or were not
preceded or followed by any other form of notice specified herein, or (ii) the
terms thereof, as understood by the recipient, varied from any confirmation
thereof. The Borrower shall indemnify the Administrative Agent, the L/C Issuer,
each Lender and the Related Parties of each of them from all losses, costs,
expenses and liabilities resulting from the reliance by such Person on each
notice purportedly given by or on behalf of the Borrower. All telephonic notices
to and other telephonic communications with the Administrative Agent may be
recorded by the Administrative Agent, and each of the parties hereto hereby
consents to such recording.
11.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender, the L/C
Issuer or the Administrative Agent to exercise, and no delay by any such Person
in exercising, any right, remedy, power or privilege hereunder shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
11.04 EXPENSES; INDEMNITY; DAMAGE WAIVER.
(a) Costs and Expenses. The Borrower shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates
(including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent), in connection with the syndication of the credit
facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or
any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the L/C
Issuer in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, any Lender or the
L/C Issuer (including the fees, charges and disbursements of any counsel for the
Administrative Agent, any Lender or the L/C Issuer), in connection with the
enforcement or protection of its rights (A) in connection with this Agreement
and the other Loan Documents, including its rights under this Section, or (B) in
connection with the Loans made or Letters of Credit issued hereunder, including
all such out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.
(b) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and the L/C
Issuer, and each Related Party of any of the foregoing Persons (each such Person
being called an "Indemnitee")
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against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses (including the fees, charges and
disbursements of any counsel for any Indemnitee), and shall indemnify and hold
harmless each Indemnitee from all fees and time charges and disbursements for
attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or
asserted against any Indemnitee by any third party or by the Borrower or any
other Loan Party arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement, any other Loan Document or any
agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto of their respective obligations hereunder or thereunder or the
consummation of the transactions contemplated hereby or thereby, (ii) any Loan
or Letter of Credit or the use or proposed use of the proceeds therefrom
(including any refusal by the L/C Issuer to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii) any actual
or alleged presence or release of Hazardous Materials on or from any property
owned or operated by the Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to the Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation
or proceeding relating to any of the foregoing, whether based on contract, tort
or any other theory, whether brought by a third party or by the Borrower or any
other Loan Party, and regardless of whether any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses
(x) are determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Indemnitee or (y) result from a claim brought by the Borrower
or any other Loan Party against an Indemnitee for breach in bad faith of such
Indemnitee's obligations hereunder or under any other Loan Document, if the
Borrower or such Loan Party has obtained a final and nonappealable judgment in
its favor on such claim as determined by a court of competent jurisdiction.
(c) Reimbursement by Lenders. To the extent that the Borrower for any
reason fails to indefeasibly pay any amount required under subsection (a) or (b)
of this Section to be paid by it to the Administrative Agent (or any sub-agent
thereof), the L/C Issuer or any Related Party of any of the foregoing, each
Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the L/C Issuer or such Related Party, as the case may be, such
Lender's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount,
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or the L/C Issuer in
its capacity as such, or against any Related Party of any of the foregoing
acting for the Administrative Agent (or any such sub-agent) or L/C Issuer in
connection with such capacity. The obligations of the Lenders under this
subsection (c) are subject to the provisions of Section 2.13(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted
by applicable law, the Borrower shall not assert, and hereby waives, any claim
against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement, any other
Loan Document or any agreement or instrument contemplated hereby, the
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transactions contemplated hereby or thereby, any Loan or Letter of Credit or the
use of the proceeds thereof. No Indemnitee referred to in subsection (b) above
shall be liable for any damages arising from the use by unintended recipients of
any information or other materials distributed by it through telecommunications,
electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or
thereby.
(e) Payments. All amounts due under this Section shall be payable not
later than ten Business Days after demand therefor.
(f) Survival. The agreements in this Section shall survive the resignation
of the Administrative Agent and the L/C Issuer, the replacement of any Lender,
the termination of the Aggregate Commitments and the repayment, satisfaction or
discharge of all the other Obligations.
11.05 PAYMENTS SET ASIDE. To the extent that any payment by or on behalf
of the Borrower is made to the Administrative Agent, the L/C Issuer or any
Lender, or the Administrative Agent, the L/C Issuer or any Lender exercises its
right of setoff, and such payment or the proceeds of such setoff or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by the
Administrative Agent, the L/C Issuer or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of
such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not occurred, and (b) each Lender
and the L/C Issuer severally agrees to pay to the Administrative Agent upon
demand its applicable share (without duplication) of any amount so recovered
from or repaid by the Administrative Agent, plus interest thereon from the date
of such demand to the date such payment is made at a rate per annum equal to the
Federal Funds Rate from time to time in effect. The obligations of the Lenders
and the L/C Issuer under clause (b) of the preceding sentence shall survive the
payment in full of the Obligations and the termination of this Agreement.
11.06 SUCCESSORS AND ASSIGNS.
(a) Successors and Assigns Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that neither the
Borrower nor any other Loan Party may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the
Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an Eligible
Assignee in accordance with the provisions of subsection (b) of this Section,
(ii) by way of participation in accordance with the provisions of subsection (d)
of this Section or (iii) by way of pledge or assignment of a security interest
subject to the restrictions of subsection (f) of this Section, or (iv) to an SPC
in accordance with the provisions of subsection (h) of this Section (and any
other attempted assignment or transfer by any party hereto shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto,
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their respective successors and assigns permitted hereby, Participants to the
extent provided in subsection (d) of this Section and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent,
the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or
more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans
(including for purposes of this subsection (b), participations in L/C
Obligations and in Swing Line Loans) at the time owing to it); provided that
(i) except in the case of an assignment of the entire remaining
amount of the assigning Lender's Commitment and the Loans at the time owing to
it or in the case of an assignment to a Lender or an Affiliate of a Lender or an
Approved Fund with respect to a Lender, the aggregate amount of the Commitment
(which for this purpose includes Loans outstanding thereunder) or, if the
applicable Commitment is not then in effect, the principal outstanding balance
of the Loans of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent or, if "Trade Date" is specified in the
Assignment and Assumption, as of the Trade Date) shall not be less than
$5,000,000, in the case of any assignment in respect of a Revolving Credit
Commitment (which for this purpose includes Revolving Credit Loans outstanding),
or $1,000,000, in the case of any assignment in respect of a Term Loan
Commitment (which for this purpose includes Term Loans outstanding), in any
case, treating assignments to two or more Approved Funds under common management
as one assignment for purposes of the minimum amounts, unless each of the
Administrative Agent and, so long as no Event of Default has occurred and is
continuing, the Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed);
(ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations under
this Agreement with respect to the Loan or the Commitment assigned, except that
this clause (ii) shall not (A) apply to rights in respect of Swing Line Loans;
or (B) prohibit any Lender from assigning all or a portion of its rights and
obligations among separate tranches of Loans and/or commitments on a non-pro
rata basis;
(iii) any assignment of a Revolving Credit Commitment must be
approved by the Administrative Agent, the L/C Issuer, the Swing Line Lender and
(so long as no Event of Default has occurred and is continuing) the Borrower,
each such consent not to be unreasonably withheld or delayed, unless the Person
that is the proposed assignee is itself a Lender with a Revolving Credit
Commitment (whether or not the proposed assignee would otherwise qualify as an
Eligible Assignee) or an Affiliate thereof; and
(iv) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a processing
and recordation fee of $3,500 (with only one such fee payable in connection with
simultaneous assignments to, or by, two or
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more Approved Funds) and the Eligible Assignee, if it shall not be a Lender,
shall deliver to the Administrative Agent an Administrative Questionnaire.
Subject to acceptance and recording thereof by the Administrative Agent pursuant
to subsection (c) of this Section, from and after the effective date specified
in each Assignment and Assumption, the Eligible Assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 3.01, 3.04, 3.05, and 11.04 with
respect to facts and circumstances occurring prior to the effective date of such
assignment. Upon request, the Borrower (at its expense) shall execute and
deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
subsection (d) of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose as
an agent of the Borrower, shall maintain at the Administrative Agent's Office a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrower, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by each of the Borrower and the L/C Issuer, at any
reasonable time and from time to time upon reasonable prior notice. In addition,
at any time that a request for a consent for a material or substantive change to
the Loan Documents is pending, any Lender wishing to consult with other Lenders
in connection therewith may request and receive from the Administrative Agent a
copy of the Register.
(d) Participations. Any Lender may at any time, without the consent of, or
notice to, the Borrower or the Administrative Agent, sell participations to any
Person (other than a natural person or the Borrower or any of the Borrower's
Affiliates or Subsidiaries) (each, a "Participant") in all or a portion of such
Lender's rights and/or obligations under this Agreement (including all or a
portion of its Commitment and/or the Loans (including such Lender's
participations in L/C Obligations and/or Swing Line Loans) owing to it);
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent, the Lenders and the L/C Issuer shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement.
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Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, waiver or other modification described in the first proviso to
Section 11.01 that affects such Participant. Subject to subsection (e) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 3.01 and 3.05 to the same extent as if it were a Lender and
had acquired its interest by assignment pursuant to subsection (b) of this
Section. To the extent permitted by law, each Participant also shall be entitled
to the benefits of Section 11.08 as though it were a Lender, provided such
Participant agrees to be subject to Section 2.14 as though it were a Lender.
(e) Limitations upon Participant Rights. A Participant shall not be
entitled to receive any greater payment under Section 3.01 or 3.04 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 3.01 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 3.01(e) as though it were a
Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement
(including under its Note, if any) to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank; provided that no such pledge or assignment shall release such Lender from
any of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.
(g) Electronic Execution of Assignments. The words "execution," "signed,"
"signature," and words of like import in any Assignment and Assumption shall be
deemed to include electronic signatures or the keeping of records in electronic
form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records Act,
or any other similar state laws based on the Uniform Electronic Transactions
Act.
(h) Special Purpose Funding Vehicles. Notwithstanding anything to the
contrary contained herein, any Lender (a "Granting Lender") may grant to a
special purpose funding vehicle identified as such in writing from time to time
by the Granting Lender to the Administrative Agent and the Borrower (an "SPC")
the option to provide all or any part of any Loan that such Granting Lender
would otherwise be obligated to make pursuant to this Agreement; provided that
(i) nothing herein shall constitute a commitment by any SPC to fund any Loan,
and (ii) if an SPC elects not to exercise such option or otherwise fails to make
all or any part of such Loan, the Granting Lender shall be obligated to make
such Loan pursuant to the terms hereof or, if it fails to do so, to make such
payment to the Administrative Agent as is
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required under Section 2.13(b)(ii). Each party hereto hereby agrees that (i)
neither the grant to any SPC nor the exercise by any SPC of such option shall
increase the costs or expenses or otherwise increase or change the obligations
of the Borrower under this Agreement (including its obligations under Section
3.04), (ii) no SPC shall be liable for any indemnity or similar payment
obligation under this Agreement for which a Lender would be liable, and (iii)
the Granting Lender shall for all purposes, including the approval of any
amendment, waiver or other modification of any provision of any Loan Document,
remain the lender of record hereunder. The making of a Loan by an SPC hereunder
shall utilize the Commitment of the Granting Lender to the same extent, and as
if, such Loan were made by such Granting Lender. In furtherance of the
foregoing, each party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is one year and one
day after the payment in full of all outstanding commercial paper or other
senior debt of any SPC, it will not institute against, or join any other Person
in instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency, or liquidation proceeding under the laws of the United States or any
State thereof. Notwithstanding anything to the contrary contained herein, any
SPC may (i) with notice to, but without prior consent of the Borrower and the
Administrative Agent and with the payment of a processing fee of $3,500, assign
all or any portion of its right to receive payment with respect to any Loan to
the Granting Lender and (ii) disclose on a confidential basis any non-public
information relating to its funding of Loans to any rating agency, commercial
paper dealer or provider of any surety or Guarantee or credit or liquidity
enhancement to such SPC.
(i) Resignation as L/C Issuer or Swing Line Lender after Assignment.
Notwithstanding anything to the contrary contained herein, if at any time Bank
of America assigns all of its Commitment and Loans pursuant to subsection (b)
above, Bank of America may, (i) upon 30 days' notice to the Borrower and the
Lenders, resign as L/C Issuer and/or (ii) upon 30 days' notice to the Borrower,
resign as Swing Line Lender. In the event of any such resignation as L/C Issuer
or Swing Line Lender, the Borrower shall be entitled to appoint from among the
Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided,
however, that no failure by the Borrower to appoint any such successor shall
affect the resignation of Bank of America as L/C Issuer or Swing Line Lender, as
the case may be. If Bank of America resigns as L/C Issuer, it shall retain all
the rights and obligations of the L/C Issuer hereunder with respect to all
Letters of Credit outstanding as of the effective date of its resignation as L/C
Issuer and all L/C Obligations with respect thereto (including the right to
require the Lenders to make Base Rate Loans or fund risk participations in
Unreimbursed Amounts pursuant to Section 2.04(c)). If Bank of America resigns as
Swing Line Lender, it shall retain all the rights of the Swing Line Lender
provided for hereunder with respect to Swing Line Loans made by it and
outstanding as of the effective date of such resignation, including the right to
require the Lenders to make Base Rate Loans or fund risk participations in
outstanding Swing Line Loans pursuant to Section 2.05(c).
11.07 TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY. Each of the
Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its and its Affiliates' respective
partners, directors, officers, employees, agents, advisors and representatives
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information
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confidential), (b) to the extent requested by any regulatory authority
purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction
relating to the Borrower and its obligations, (g) with the consent of the
Borrower or (h) to the extent such Information (x) becomes publicly available
other than as a result of a breach of this Section or (y) becomes available to
the Administrative Agent, any Lender, the L/C Issuer or any of their respective
Affiliates on a nonconfidential basis from a source other than the Borrower.
For purposes of this Section, "Information" means all information received
from the Borrower or any Subsidiary relating to the Borrower or any Subsidiary
or any of their respective businesses, other than any such information that is
available to the Administrative Agent, any Lender or the L/C Issuer on a
nonconfidential basis prior to disclosure by the Borrower or any Subsidiary,
provided that, in the case of information received from the Borrower or any
Subsidiary after the date hereof, such information is clearly identified at the
time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
11.08 RIGHT OF SETOFF. If an Event of Default shall have occurred and be
continuing, each Lender, the L/C Issuer and each of their respective Affiliates
is hereby authorized at any time and from time to time, to the fullest extent
permitted by applicable law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final, in whatever currency) at any
time held and other obligations (in whatever currency) at any time owing by such
Lender, the L/C Issuer or any such Affiliate to or for the credit or the account
of the Borrower or any other Loan Party against any and all of the obligations
of the Borrower or such Loan Party now or hereafter existing under this
Agreement or any other Loan Document to such Lender or the L/C Issuer,
irrespective of whether or not such Lender or the L/C Issuer shall have made any
demand under this Agreement or any other Loan Document and although such
obligations of the Borrower or such Loan Party may be contingent or unmatured or
are owed to a branch or office of such Lender or the L/C Issuer different from
the branch or office holding such deposit or obligated on such indebtedness. The
rights of each Lender, the L/C Issuer and their respective Affiliates under this
Section are in addition to other rights and remedies (including other rights of
setoff) that such Lender, the L/C Issuer or their respective Affiliates may
have. Each Lender and the L/C Issuer agrees to notify the Borrower and the
Administrative Agent promptly after any such setoff and application, provided
that the failure to give such notice shall not affect the validity of such
setoff and application.
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11.09 INTEREST RATE LIMITATION. Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under the
Loan Documents shall not exceed the maximum rate of non-usurious interest
permitted by applicable Law (the "Maximum Rate"). If the Administrative Agent or
any Lender shall receive interest in an amount that exceeds the Maximum Rate,
the excess interest shall be applied to the principal of the Loans or, if it
exceeds such unpaid principal, refunded to the Borrower. In determining whether
the interest contracted for, charged, or received by the Administrative Agent or
a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by
applicable Law, (a) characterize any payment that is not principal as an
expense, fee, or premium rather than interest, (b) exclude voluntary prepayments
and the effects thereof, and (c) amortize, prorate, allocate, and spread in
equal or unequal parts the total amount of interest throughout the contemplated
term of the Obligations hereunder.
11.10 COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement may be
executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and the other
Loan Documents constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof that, when taken together, bear the
signatures of each of the other parties hereto. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement.
11.11 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
11.12 SEVERABILITY. If any provision of this Agreement or the other Loan
Documents is held to be illegal, invalid or unenforceable, (a) the legality,
validity and enforceability of the remaining provisions of this Agreement and
the other Loan Documents shall not be affected or impaired thereby and (b) the
parties shall endeavor in good faith negotiations to replace the illegal,
invalid or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
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11.13 REPLACEMENT OF LENDERS. If any Lender requests compensation under
Section 3.04, if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 3.01, if any Lender is a Defaulting Lender, or if any Lender refuses to
consent to an amendment or modification of this Agreement that, pursuant to
Section 11.01, requires consent of one hundred percent (100%) of the Lenders or
one hundred percent (100%) of the Lenders directly affected thereby, so long as
the Borrower has obtained a commitment from another Lender or an Eligible
Assignee to purchase such Lender's Loans and assume such Lender's Commitments
and all other obligations of such Lender hereunder, then the Borrower may, at
its sole expense and effort, upon notice to such Lender and upon prior written
consent of the Administrative Agent, require such Lender to assign and delegate,
without recourse (in accordance with and subject to the restrictions contained
in, and consents required by, Section 11.06), all of its interests, rights and
obligations under this Agreement and the related Loan Documents to an assignee
that shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment), provided that:
(a) the Borrower shall have paid to the Administrative Agent the
assignment fee specified in Section 11.06(b);
(b) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and L/C Advances, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the other
Loan Documents (including any amounts under Section 3.05) from the assignee (to
the extent of such outstanding principal and accrued interest and fees) or the
Borrower (in the case of all other amounts);
(c) in the case of any such assignment resulting from a claim for
compensation under Section 3.04 or payments required to be made pursuant to
Section 3.01, such assignment will result in a reduction in such compensation or
payments thereafter;
(d) such assignment does not conflict with applicable Laws; and
(e) no Default or Event of Default shall have occurred and be continuing.
A Lender shall not be required to make any such assignment or delegation
if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation
cease to apply.
11.14 GOVERNING LAW; JURISDICTION; ETC.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, INCLUDING SECTION 5-1401 AND
SECTION 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, (WITHOUT
REGARD TO THE CONFLICTS OF LAW PROVISIONS OF SUCH STATE) APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT
THE
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ADMINISTRATIVE AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER
FEDERAL LAW.
(b) SUBMISSION TO JURISDICTION. THE BORROWER AND EACH OTHER LOAN PARTY
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN THE
BOROUGH OF MANHATTAN, NEW YORK OR OF THE UNITED STATES DISTRICT COURTS OF SUCH
STATE SITTING IN THE BOROUGH OF MANHATTAN, AND ANY APPELLATE COURT FROM ANY
THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY
JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES
THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A
FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL
AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY
OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS
PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c) WAIVER OF VENUE. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY
AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF
THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH
ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE
OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02. NOTHING IN THIS
AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY APPLICABLE LAW.
11.15 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
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INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
11.16 USA PATRIOT ACT NOTICE. Each Lender that is subject to the Act (as
hereinafter defined) and the Administrative Agent (for itself and not on behalf
of any Lender) hereby notifies the Borrower that pursuant to the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the "Act"), it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow such Lender or the Administrative
Agent, as applicable, to identify the Borrower in accordance with the Act.
11.17 TIME OF THE ESSENCE. Time is of the essence of the Loan Documents.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
MEDCATH HOLDINGS CORP.
By: /s/ JAMES A. PARKER
------------------------------------
Name: James A. Parker
Title: Treasurer
MEDCATH CORPORATION
By: /s/ JAMES A. PARKER
------------------------------------
Name: James A. Parker
Title: Treasurer
BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ KRISTINE THENNES
------------------------------------
Name: KRISTINE THENNES
Title: Vice President
BANK OF AMERICA, N.A., as a Lender, L/C
Issuer and Swing Line Lender
By: /s/ CHARLES R. DICKERSON
------------------------------------
Name: Charles R. Dickerson
Title: Senior Vice President
WACHOVIA BANK, NATIONAL
ASSOCIATION, as a Lender
By: /s/ DAVID M. GILLESPIE
------------------------------------
Name: David M. Gillespie
Title: Managing Director
JPMORGAN CHASE BANK, as a Lender
By: /s/ DAWN LEE LUM
------------------------------------
Name: Dawn Lee Lum
Title: Vice President
CITICORP NORTH AMERICA, INC., as a Lender
By: /s/ JASON HICKS
------------------------------------
Name:Jason Hicks
Title:Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Earl F. Smith III
------------------------------------
Name: Earl F. Smith III
Title: Only Authorized Signatory
OPPENHEIMER SENIOR FLOATING
RATE FUND, as a Lender
By: /s/ Lisa Chaffee
------------------------------------
Name: Lisa Chaffee
Title: Manager