Exhibit 10.1
- --------------------------------------------------------------------------------
CREDIT AGREEMENT
Dated as of August 27, 2007
among
U.S. PHYSICAL THERAPY, INC.,
as the Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender
and
L/C Issuer,
and
The Other Lenders Party Hereto
- --------------------------------------------------------------------------------
TABLE OF CONTENTS
Section Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS.............................................................1
1.01 Defined Terms................................................................................1
1.02 Other Interpretive Provisions...............................................................20
1.03 Accounting Terms............................................................................21
1.04 Rounding....................................................................................21
1.05 Times of Day................................................................................21
1.06 Letter of Credit Amounts....................................................................21
ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS.......................................................22
2.01 Committed Loans.............................................................................22
2.02 Borrowings, Conversions and Continuations of Committed Loans................................22
2.03 Letters of Credit...........................................................................24
2.04 Swing Line Loans............................................................................32
2.05 Prepayments.................................................................................35
2.06 Termination or Reduction of Commitments.....................................................36
2.07 Repayment of Loans..........................................................................36
2.08 Interest....................................................................................36
2.09 Fees........................................................................................37
2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate................38
2.11 Evidence of Debt............................................................................38
2.12 Payments Generally; Administrative Agent's Clawback.........................................39
2.13 Sharing of Payments by Lenders..............................................................41
2.14 Increase in Commitments.....................................................................42
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY......................................................43
3.01 Taxes.......................................................................................43
3.02 Illegality..................................................................................45
3.03 Inability to Determine Rates................................................................45
3.04 Increased Costs; Reserves on Eurodollar Rate Loans..........................................46
3.05 Compensation for Losses.....................................................................47
3.06 Mitigation Obligations; Replacement of Lenders..............................................48
3.07 Survival....................................................................................48
ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS...................................................49
4.01 Conditions of Initial Credit Extension......................................................49
4.02 Conditions to all Credit Extensions.........................................................50
ARTICLE V REPRESENTATIONS AND WARRANTIES..............................................................51
5.01 Existence, Qualification and Power..........................................................51
5.02 Authorization; No Contravention.............................................................51
5.03 Governmental Authorization; Other Consents..................................................51
5.04 Binding Effect..............................................................................52
5.05 Financial Statements; No Material Adverse Effect............................................52
5.06 Litigation..................................................................................52
5.07 No Default..................................................................................53
5.08 Ownership of Property; Liens................................................................53
5.09 Environmental Compliance....................................................................53
5.10 Insurance...................................................................................53
-i-
5.11 Taxes.......................................................................................53
5.12 ERISA Compliance............................................................................53
5.13 Subsidiaries; Equity Interests..............................................................54
5.14 Margin Regulations; Investment Company Act..................................................54
5.15 Disclosure..................................................................................54
5.16 Compliance with Laws........................................................................55
5.17 Taxpayer Identification Number..............................................................55
5.18 Intellectual Property; Licenses, Etc........................................................55
ARTICLE VI AFFIRMATIVE COVENANTS.......................................................................55
6.01 Financial Statements........................................................................56
6.02 Certificates; Other Information.............................................................57
6.03 Notices.....................................................................................58
6.04 Payment of Obligations......................................................................59
6.05 Preservation of Existence, Etc..............................................................59
6.06 Maintenance of Properties...................................................................59
6.07 Maintenance of Insurance....................................................................59
6.08 Compliance with Laws........................................................................59
6.09 Books and Records...........................................................................59
6.10 Inspection Rights...........................................................................60
6.11 Use of Proceeds.............................................................................60
ARTICLE VII NEGATIVE COVENANTS..........................................................................60
7.01 Liens.......................................................................................60
7.02 Investments.................................................................................61
7.03 Indebtedness................................................................................64
7.04 Fundamental Changes.........................................................................65
7.05 Dispositions................................................................................66
7.06 Restricted Payments.........................................................................66
7.07 Change in Nature of Business................................................................67
7.08 Transactions with Affiliates................................................................67
7.09 Burdensome Agreements.......................................................................67
7.10 Use of Proceeds.............................................................................67
7.11 Financial Covenants.........................................................................67
ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES..............................................................68
8.01 Events of Default...........................................................................68
8.02 Remedies Upon Event of Default..............................................................70
8.03 Application of Funds........................................................................71
ARTICLE IX ADMINISTRATIVE AGENT........................................................................71
9.01 Appointment and Authority...................................................................71
9.02 Rights as a Lender..........................................................................72
9.03 Exculpatory Provisions......................................................................72
9.04 Reliance by Administrative Agent............................................................73
9.05 Delegation of Duties........................................................................73
9.06 Resignation of Administrative Agent.........................................................73
9.07 Non-Reliance on Administrative Agent and Other Lenders......................................74
9.08 Administrative Agent May File Proofs of Claim...............................................74
ARTICLE X MISCELLANEOUS...............................................................................75
10.01 Amendments, Etc.............................................................................75
10.02 Notices; Effectiveness; Electronic Communication............................................76
-ii-
10.03 No Waiver; Cumulative Remedies..............................................................79
10.04 Expenses; Indemnity; Damage Waiver..........................................................79
10.05 Payments Set Aside..........................................................................81
10.06 Successors and Assigns......................................................................81
10.07 Treatment of Certain Information; Confidentiality...........................................85
10.08 Right of Setoff.............................................................................86
10.09 Interest Rate Limitation....................................................................87
10.10 Counterparts; Integration; Effectiveness....................................................87
10.11 Survival of Representations and Warranties..................................................87
10.12 Severability................................................................................87
10.13 Replacement of Lenders......................................................................88
10.14 Governing Law; Jurisdiction; Etc............................................................88
10.15 Waiver of Jury Trial........................................................................89
10.16 No Advisory or Fiduciary Responsibility.....................................................90
10.17 USA PATRIOT Act Notice......................................................................90
10.18 ENTIRE AGREEMENT............................................................................90
SIGNATURES.............................................................................................S-1
-iii-
SCHEDULES
2.01 Commitments and Applicable Percentages
5.05 Supplement to Interim Financial Statements
5.06 Litigation
5.09 Environmental Matters
5.13 Subsidiaries; Other Equity Investments; Equity Interests in the Borrower
5.18 Intellectual Property Matters
7.01 Existing Liens
7.03 Existing Indebtedness
10.02 Administrative Agent's Office; Certain Addresses for Notices
EXHIBITS
Form of
A Committed Loan Notice
B Swing Line Loan Notice
C Note
D Compliance Certificate
E Assignment and Assumption
F Opinion Matters
-iv-
CREDIT AGREEMENT
This CREDIT AGREEMENT ("Agreement") is entered into as of August 27,
2007, among U.S. PHYSICAL THERAPY, INC., a Nevada 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 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 10.02, 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.
"Agreement" means this Credit Agreement.
"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 8.02 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. The
initial Applicable Percentage of each Lender is set forth opposite the name of
such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to
which such Lender becomes a party hereto, as applicable.
CREDIT AGREEMENT Page 1
"Applicable Rate" means, from time to time, the following percentages
per annum, based upon the Consolidated Leverage Ratio as set forth in the most
recent Compliance Certificate received by the Administrative Agent pursuant to
Section 6.02(a):
Applicable Rate
Eurodollar
Rate and
Pricing Consolidated Commitment Letters
Level Leverage Ratio Fee of Credit Base Rate
- ---------- --------------------- --------------- ---------------- -------------
1 <1.00 .10% .50% (2.25%)
2 <1.00 but <1.50 .15% .625% (2.125%)
-
3 <1.50 but <2.00 .20% .75% (2.00%)
-
4 <2.00 .25% 1.50% (1.25%)
-
Any increase or decrease in the Applicable Rate resulting from a change
in the Consolidated 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(a); provided, however, that if a Compliance
Certificate is not delivered when due in accordance with such Section, then
Pricing Level 4 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 date the first Compliance
Certificate is delivered pursuant to Section 6.02(a) shall be determined based
upon Pricing Level 1.
Notwithstanding anything to the contrary contained herein, the
Commitment Fee due and payable by the Borrower with respect to any date shall be
increased by an additional .10% for each level in the event that the Total
Outstandings on such date are less than fifty percent (50%) of the Aggregate
Commitments on such date.
Notwithstanding anything to the contrary contained in this definition,
the determination of the Applicable Rate for any period shall be subject to the
provisions of Section 2.10(b).
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Assignee Group" means two or more Eligible Assignees that are
Affiliates of one another or two or more Approved Funds managed by the same
investment advisor.
"Assignment and Assumption" means an assignment and assumption entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 10.06(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, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of
the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.
CREDIT AGREEMENT Page 2
"Audited Financial Statements" means the audited consolidated balance
sheet of the Borrower and its Subsidiaries for the fiscal year ended December
31, 2006, and the related consolidated statements of net income, shareholders'
equity and cash flows for such fiscal year of the Borrower and its Subsidiaries,
including the notes thereto.
"Availability Period" means the period from and including the Closing
Date to the earliest of (a) the Maturity Date, (b) the date of termination of
the Aggregate Commitments pursuant to Section 2.06, and (c) the date of
termination of the commitment of each Lender to make Loans and of the obligation
of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02.
"Bank of America" means Bank of America, N.A. and its successors.
---------------
"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 Committed Loan" means a Committed Loan that is a Base Rate
Loan.
"Base Rate Loan" means a Loan that bears interest based on the Base
Rate.
"Borrower" has the meaning specified in the introductory paragraph
hereto.
"Borrower Materials" has the meaning specified in Section 6.02.
"Borrowing" means a Committed Borrowing or a Swing Line Borrowing, as
the context may require.
"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.
"Cash Collateralize" has the meaning specified in Section 2.03(g).
"Cash Equivalents" means any of the following types of Investments, to
the extent owned by the Borrower or any of its Subsidiaries free and clear of
all Liens (other than Liens permitted hereunder):
CREDIT AGREEMENT Page 3
(a) readily marketable obligations issued or directly and
fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof having maturities of not more than
360 days from the date of acquisition thereof; provided that the full
faith and credit of the United States of America is pledged in support
thereof;
(b) time deposits with, or insured certificates of deposit or
bankers' acceptances of, any commercial bank that (i) (A) is a Lender
or (B) is organized under the Laws of the United States of America, any
state thereof or the District of Columbia or is the principal banking
subsidiary of a bank holding company organized under the Laws of the
United States of America, any state thereof or the District of
Columbia, and is a member of the Federal Reserve System, (ii) issues
(or the parent of which issues) commercial paper rated as described in
clause (c) of this definition and (iii) has combined capital and
surplus of at least $500,000,000, in each case with maturities of not
more than 180 days from the date of acquisition thereof;
(c) commercial paper issued by any Person organized under the
Laws of any state of the United States of America and rated at least
"Prime-1" (or the then equivalent grade) by Moody's or at least "A-1"
(or the then equivalent grade) by S&P, in each case with maturities of
not more than 180 days from the date of acquisition thereof;
(d) fully collateralized repurchase agreements with a term of
not more than 30 days for securities described in clause (a) above and
entered into with a financial institution satisfying the criteria
described in clause (b) above; and
(e) Investments, classified in accordance with GAAP as current
assets of the Borrower or any of its Subsidiaries, in (i) mutual funds
or (ii) money market investment programs registered under the
Investment Company Act of 1940, which are administered by financial
institutions that have the highest rating obtainable from either
Moody's or S&P, and the portfolios of which are limited solely to
Investments of the character, quality and maturity described in clauses
(a), (b) and (c) of this definition.
"Cash Management Agreement" means any agreement to provide cash
management services, including treasury, depository, overdraft, credit or debit
card, electronic funds transfer and other cash management arrangements.
"Cash Management Bank" means any Person that, at the time it enters
into a Cash Management Agreement, is a Lender or an Affiliate of a Lender, in
its capacity as a party to such Cash Management Agreement.
"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.
CREDIT AGREEMENT Page 4
"Change of Control" means an event or series of events by which:
(a) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but
excluding any employee benefit plan of such person or its subsidiaries,
and any person or entity acting in its capacity as trustee, agent or
other fiduciary or administrator of any such plan) becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Securities Exchange Act of 1934, except that a person or group shall be
deemed to have "beneficial ownership" of all securities that such
person or group has the right to acquire, whether such right is
exercisable immediately or only after the passage of time (such right,
an "option right")), directly or indirectly, of a majority or more of
the equity securities of the Borrower entitled to vote for members of
the board of directors or equivalent governing body of the Borrower on
a fully-diluted basis (and taking into account all such securities that
such person or group has the right to acquire pursuant to any option
right);
(b) during any period of 12 consecutive months, a majority of
the members of the board of directors or other equivalent governing
body of the Borrower cease to be composed of individuals (i) who were
members of that board or equivalent governing body on the first day of
such period, (ii) whose election or nomination to that board or
equivalent governing body was approved by individuals referred to in
clause (i) above constituting at the time of such election or
nomination at least a majority of that board or equivalent governing
body or (iii) whose election or nomination to that board or other
equivalent governing body was approved by individuals referred to in
clauses (i) and (ii) above constituting at the time of such election or
nomination at least a majority of that board or equivalent governing
body (excluding, in the case of both clause (ii) and clause (iii), any
individual whose initial nomination for, or assumption of office as, a
member of that board or equivalent governing body occurs as a result of
an actual or threatened solicitation of proxies or consents for the
election or removal of one or more directors by any person or group
other than a solicitation for the election of one or more directors by
or on behalf of the board of directors); or
(c) any Person or two or more Persons acting in concert shall
have acquired by contract or otherwise, directly or indirectly, a
controlling influence over the management or policies of the Borrower,
or control over the equity securities of the Borrower entitled to vote
for members of the board of directors or equivalent governing body of
the Borrower on a fully-diluted basis (and taking into account all such
securities that such Person or group has the right to acquire pursuant
to any option right) representing a majority or more of the combined
voting power of such securities.
"Closing Date" means the first date all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 10.01.
"Code" means the Internal Revenue Code of 1986.
"Commitment" means, as to each Lender, its obligation to (a) make
Committed Loans to the Borrower pursuant to Section 2.01, (b) purchase
participations in L/C Obligations, and (c) purchase participations in Swing Line
Loans, in an aggregate principal amount at any one time outstanding not to
exceed the amount set forth opposite such Lender's name on Schedule 2.01 or in
the Assignment and Assumption pursuant to which such Lender becomes a party
hereto, as applicable, as such amount may be adjusted from time to time in
accordance with this Agreement.
CREDIT AGREEMENT Page 5
"Committed Borrowing" means a borrowing consisting of simultaneous
Committed 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.
"Committed Loan" has the meaning specified in Section 2.01.
"Committed Loan Notice" means a notice of (a) a Committed Borrowing,
(b) a conversion of Committed Loans from one Type to the other, or (c) a
continuation of Eurodollar Rate Loans, pursuant to Section 2.02(a), which, if in
writing, shall be substantially in the form of Exhibit A.
"Compliance Certificate" means a certificate substantially in the form
of Exhibit D.
"Consolidated EBITDA" means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income
(which shall take into account any provision for minority interests) for such
period plus (a) the following to the extent deducted in calculating such
Consolidated Net Income: (i) Consolidated Interest Charges for such period, (ii)
the provision for Federal, state, local and foreign income taxes payable by the
Borrower and its Subsidiaries for such period, (iii) depreciation and
amortization expense, (iv) other non-recurring expenses of the Borrower and its
Subsidiaries reducing such Consolidated Net Income which do not represent a cash
item in such period or any future period, (v) extraordinary or unusual losses
and (vi) non cash stock based compensation expenses related to Borrower's
employees and minus (b) the following to the extent included in calculating such
Consolidated Net Income: (i) Federal, state, local and foreign income tax
credits of the Borrower and its Subsidiaries for such period, (ii) all non-cash
items increasing Consolidated Net Income for such period and (iii) extraordinary
or unusual gains. Consolidated EBITDA for any period shall include "EBITDA" on a
pro forma basis for such period of each Person (or business unit, division or
group of such Person) acquired by a Borrower during such period, provided that,
in respect of any acquisition, the pro forma information shall include the
historical financial results of the acquired Person based on financial
statements provided by the seller of such entity being acquired (adjusted if
necessary to comply with GAAP) on a pro forma trailing 12 month basis, and shall
assume that the consummation of such acquisition (and the incurrence,
refinancing, or assumption of any Indebtedness in connection with such
acquisition) occurred on the first day of the trailing 12 month period.
"Consolidated Fixed Charge Coverage Ratio" means, as of any date of
determination, for the Borrower and its Subsidiaries on a consolidated basis,
the ratio of (a) Consolidated EBITDA plus (i) rent and lease expense during such
period less (ii) an amount equal to Capital Expenditures made during such
period, (iii) federal, state, local and foreign income taxes paid during such
period, and (iv) dividends, distributions and stock purchases (other than
dividends, distributions, and stock purchases paid or made with capital stock of
the Borrower) to (b) the sum of (i) Consolidated Interest Charges, (ii) the
aggregate principal amount of all regularly scheduled principal payments during
such period, (iii) rent and lease expense during such period, (iv) the amount of
payment in respect of Attributable Indebtedness that is not otherwise included
in Consolidated Interest Charges during such period and (v) any earn-out
payments made during such period.
CREDIT AGREEMENT Page 6
"Consolidated Funded Indebtedness" means, as of any date of
determination, for the Borrower and its Subsidiaries on a consolidated basis,
the sum of (a) the outstanding principal amount of all obligations, whether
current or long-term, for borrowed money (including Obligations hereunder) and
all obligations evidenced by bonds, debentures, notes, loan agreements or other
similar instruments, (b) all purchase money Indebtedness, (c) all direct
obligations arising under letters of credit (including standby and commercial),
bankers' acceptances, bank guaranties, surety bonds and similar instruments, (d)
all obligations in respect of the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of business),
(e) Attributable Indebtedness in respect of capital leases and Synthetic Lease
Obligations, (f) without duplication, all Guarantees with respect to outstanding
Indebtedness of the types specified in clauses (a) through (e) above of Persons
other than the Borrower or any Subsidiary, and (g) all Indebtedness of the types
referred to in clauses (a) through (f) above of any partnership or joint venture
(other than a joint venture that is itself a corporation or limited liability
company) in which the Borrower or a Subsidiary is a general partner or joint
venturer, unless such Indebtedness is expressly made non-recourse to the
Borrower or such Subsidiary.
"Consolidated Interest Charges" means, for any period, for the Borrower
and its Subsidiaries on a consolidated basis, the sum of (a) all interest,
premium payments, debt discount, fees, charges and related expenses of the
Borrower and its Subsidiaries 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,
and (b) the portion of rent expense of the Borrower and its Subsidiaries with
respect to such period under capital leases that is treated as interest in
accordance with GAAP.
"Consolidated Leverage Ratio" means, as of any date of determination,
the ratio of (a) Consolidated Funded Indebtedness as of such date to (b)
Consolidated EBITDA for the period of the four fiscal quarters most recently
ended.
"Consolidated Net Income" means, for any period, for the Borrower and
its Subsidiaries on a consolidated basis, the net income of the Borrower and its
Subsidiaries (excluding extraordinary gains and extraordinary losses) for that
period.
"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.
"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 AGREEMENT Page 7
"Credit Extension" means each of the following: (a) a Borrowing and (b)
an L/C Credit Extension.
"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 Committed Loans, 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 unless such
failure has been cured, (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 unless such failure has been cured, or (c) has been
deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.
"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.
"Dollar" and "$" mean lawful money of the United States.
"Eligible Assignee" means any Person that meets the requirements to be
an assignee under Section 10.06(b)(iii), (v) and (vi) (subject to such consents,
if any, as may be required under Section 10.06(b)(iii)).
"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.
CREDIT AGREEMENT Page 8
"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 Loan 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 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 the Borrower 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 the Borrower 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 the Borrower 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 Section 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 the Borrower
or any ERISA Affiliate.
"Eurodollar Rate" means, for any Interest Period with respect to a
Eurodollar Rate Loan, the rate per annum equal to the British Bankers
Association LIBOR Rate ("BBA LIBOR"), as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as designated by
the Administrative Agent from time to time) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, for
Dollar deposits (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period. If such rate is not available at such
time for any reason, then the "Eurodollar Rate" for such Interest Period shall
be the rate per annum determined by the Administrative Agent to be the rate 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 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.
CREDIT AGREEMENT Page 9
"Eurodollar Rate Loan" means a Committed Loan that bears interest at a
rate based on the Eurodollar Rate.
"Event of Default" has the meaning specified in Section 8.01.
"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 Borrower 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 the Borrower is located and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 10.13), 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 the Borrower with respect to
such withholding tax pursuant to Section 3.01(a).
"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 letter agreement, dated August 27, 2007 among
the Borrower and the Administrative Agent.
"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.
CREDIT AGREEMENT Page 10
"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 activities.
"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 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, 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).
"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.
CREDIT AGREEMENT Page 11
"Guarantors" means, at any time, any Person that, at such time, has
executed a Guaranty in favor of the Administrative Agent for the benefit of the
Lenders guaranteeing payment of some or all of the Obligations. As of the date
of this Agreement, the parties acknowledge that there are no Guarantors.
"Guaranty" means any guaranty agreement made by the Guarantor(s) in
favor of the Administrative Agent and the Lender. As of the date of this
Agreement, the parties acknowledge that there are no Guaranties.
"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.
"Honor Date" has the meaning given to such term as in Section 2.03(c).
"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;
(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 for more than 90 days after the due date of such trade account
payable or if past due more than 90 days after such date, being
contested in good faith by appropriate proceedings);
(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) capital leases and Synthetic Lease Obligations;
(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 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
(provided, however, for the avoidance of doubt, the contingent
obligation of the Borrower to repurchase Equity Interests in the future
of another Person in accordance with the terms of any agreement of
limited partnership or similar agreement shall not be deemed to be
Indebtedness unless and until such obligation shall exist and
accordingly be treated as a liability pursuant to GAAP); and
CREDIT AGREEMENT Page 12
(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 or Synthetic Lease
Obligation 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 10.04(b).
"Information" has the meaning specified in Section 10.07.
"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
Maturity Date; 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
Maturity Date.
"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 Committed Loan Notice;
provided that:
(a) 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;
(b) 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
(c) no Interest Period shall extend beyond the
Maturity Date.
"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. For purposes of covenant
compliance, the amount of any Investment shall be the amount actually invested,
without adjustment for subsequent increases or decreases in the value of such
Investment.
CREDIT AGREEMENT Page 13
"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, Inc. (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 of 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
of the L/C Issuer and relating to such Letter of Credit.
"Laws" means, collectively, all applicable 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, 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 Applicable
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 Committed 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 accordance
with Section 1.06. 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 the 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.
CREDIT AGREEMENT Page 14
"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.
"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 days
prior to the 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 2.03(i).
"Letter of Credit Sublimit" means an amount equal to $3,000,000. The
Letter of Credit Sublimit is part of, and not in addition to, the Aggregate
Commitments.
"Lien" means any 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).
"Loan" means an extension of credit by a Lender to the Borrower under
Article II in the form of a Committed Loan or a Swing Line Loan.
"Loan Documents" means this Agreement, each Note, any Guaranty, each
Issuer Document, and the Fee Letter, each SWAP Contract, Cash Management
Agreement, and each other instrument, document, and agreement executed in
connection therewith; provided that for the purposes of the definition of
"Material Adverse Effect" and Articles IV through IX, "Loan Documents" shall not
include SWAP Contracts and Cash Management Agreements.
"Loan Parties" means the Borrower.
"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
Borrower or the Borrower and its Subsidiaries 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.
CREDIT AGREEMENT Page 15
"Maturity Date" means August 31, 2011; provided, however, that, if such
date is not a Business Day, the Maturity Date shall be the next preceding
Business Day.
"Medicaid" means that government-sponsored entitlement program under
Title XIX, P.L. 89-97 of the Social Security Act, which provides federal grants
to states for medical assistance based on specific eligibility criteria, as set
forth on Section 1396, et seq. of Title 42 of the United States Codes.
"Medicare" means that government-sponsored insurance program under
Title XVIII, P.L. 89-97, of the Social Security Act, which provides for a health
insurance system for eligible elderly and disabled individuals, as set forth at
Section 1395, et seq. of Title 42 of the United States Code.
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA, to which the Borrower 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.
"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 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.
"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.
"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 (a) with respect to Committed Loans and
Swing Line Loans on any date, the aggregate outstanding principal amount thereof
after giving effect to any borrowings and prepayments or repayments of Committed
Loans and Swing Line Loans, as the case may be, occurring on such date; and (b)
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.
CREDIT AGREEMENT Page 16
"Participant" has the meaning specified in Section 10.06(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 the Borrower or
any ERISA Affiliate or to which the Borrower 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.
"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 the Borrower or, with respect to any such
plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
"Platform" has the meaning specified in Section 6.02.
"Public Lender" has the meaning specified in Section 6.02.
"Register" has the meaning specified in Section 10.06(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.
"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 Committed Loans, a Committed 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 Lenders" means, as of any date of determination, (a) Lenders
having more than 50% of the Aggregate Commitments or, (b) 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 8.02, Lenders holding
in the aggregate more than 50% of the Total Outstandings (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); provided that the Commitment of, and the portion of the
Total Outstandings held or deemed held by, any Defaulting Lender shall be
excluded for purposes of making a determination of Required Lenders, provided,
however, in the event that there are more than one Lender under this Agreement
at any one time, "Required Lenders" shall mean, as of any date of determination,
at least two of the Lenders.
CREDIT AGREEMENT Page 17
"Responsible Officer" means the chief executive officer, president,
chief financial officer, treasurer, assistant treasurer or controller 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 any dividend or other distribution (whether
in cash, securities or other property) with respect to any capital stock or
other Equity Interest of the Borrower or any Subsidiary, 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 the Borrower's stockholders, partners
or members (or the equivalent Person thereof).
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Social Security Act" means the Social Security Act of 1965.
"Star Acquisition" means the acquisition by the Borrower or one or more
of its Subsidiaries of (i) a 69% interest in Star Physical Therapy, LP, which in
connection with the acquisition transaction will become the successor to Star
Physical Therapy, LLC, which operates 52 outpatient physical therapy clinics in
Tennessee and Indiana and a 100% interest in SPT Management GP, LLC which will
own the entire 1% general partner interest in Star Physical Therapy, LP and (ii)
the rights to operate other clinics in Kentucky, for a purchase price of
approximately $23.1 million (including cash, a seller note and Equity Interests
of the Borrower), subject to adjustment for changes in working capital.
"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 Borrower.
"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.
CREDIT AGREEMENT Page 18
"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 Borrowing" means a borrowing of a Swing Line Loan pursuant
to Section 2.04.
"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 2.04(a).
"Swing Line Loan Notice" means a notice of a Swing Line Borrowing
pursuant to Section 2.04(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)
$3,000,000 and (b) the Aggregate Commitments. The Swing Line Sublimit is part
of, and not in addition to, the Aggregate Commitments.
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
"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.
CREDIT AGREEMENT Page 19
"Threshold Amount" means $1,000,000.
"Total Outstandings" means the aggregate Outstanding Amount of all
Loans and all L/C Obligations.
"Type" means, with respect to a Committed Loan, its character as a Base
Rate Loan or a Eurodollar Rate Loan.
"Unfunded Pension Liability" means the excess of a Pension Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the current value
of that Pension Plan's assets, determined in accordance with the assumptions
used for funding the Pension Plan pursuant to Section 412 of the Code for the
applicable plan year.
"United States" and "U.S." mean the United States of America.
"Unreimbursed Amount" has the meaning specified in Section 2.03(c)(i).
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 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."
CREDIT AGREEMENT Page 20
(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 Borrower or the Required Lenders
shall so request, the Administrative Agent, the Lenders 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 Borrower shall provide to the Administrative Agent
and the Lenders financial statements and other documents required under
this Agreement or as 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.
(c) Consolidation of Variable Interest Entities. All
references herein to consolidated financial statements of the Borrower
and its Subsidiaries or to the determination of any amount for the
Borrower and its Subsidiaries on a consolidated basis or any similar
reference shall, in each case, be deemed to include each variable
interest entity that the Borrower is required to consolidate pursuant
to FASB Interpretation No. 46 - Consolidation of Variable Interest
Entities: an interpretation of ARB No. 51 (January 2003) as if such
variable interest entity were a Subsidiary as defined herein.
1.04 Rounding. Any financial ratios required to be maintained by 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).
1.05 Times of Day. Unless otherwise specified, all references herein to
times of day shall be references to Central time (daylight or standard, as
applicable).
1.06 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 (less any amounts previously
drawn under such Letters of Credit); 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.
CREDIT AGREEMENT Page 21
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
-------------------------------------
2.01 Committed Loans. Subject to the terms and conditions set forth
herein, each Lender severally agrees to make loans (each such loan, a "Committed
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 Commitment; provided, however, that
after giving effect to any Committed Borrowing, (a) the Total Outstandings shall
not exceed the Aggregate Commitments, and (b) the aggregate Outstanding Amount
of the Committed Loans of any Lender, plus such Lender's Applicable Percentage
of the Outstanding Amount of all L/C Obligations, plus such Lender's Applicable
Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed
such Lender's Commitment. Within the limits of each Lender's Commitment, and
subject to the other terms and conditions hereof, the Borrower may borrow under
this Section 2.01, prepay under Section 2.05, and reborrow under this Section
2.01. Committed Loans may be Base Rate Loans or Eurodollar Rate Loans, as
further provided herein.
2.02 Borrowings, Conversions and Continuations of Committed Loans.
(a) Each Committed Borrowing, each conversion of Committed
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 12:00 noon
(i) three Business Days prior to the requested date of any Borrowing
of, conversion to or continuation of Eurodollar Rate Loans or of any
conversion of Eurodollar Rate Loans to Base Rate Committed Loans, and
(ii) on the requested date of any Borrowing of Base Rate Committed
Loans. Each telephonic notice by the Borrower pursuant to this Section
2.02(a) must be confirmed promptly by delivery to the Administrative
Agent of a written Committed Loan Notice, appropriately completed and
signed by a Responsible Officer of the Borrower. Each Borrowing of,
conversion to or continuation of Eurodollar Rate Loans shall be in a
principal amount of $1,000,000 or a whole multiple of $500,000 in
excess thereof. Except as provided in Sections 2.03(c) and 2.04(c),
each Borrowing of or conversion to Base Rate Committed Loans shall be
in a principal amount of $500,000 or a whole multiple of $100,000 in
excess thereof. Each Committed Loan Notice (whether telephonic or
written) shall specify (i) whether the Borrower is requesting a
Committed Borrowing, a conversion of Committed Loans from one Type to
the other, or a continuation of Eurodollar Rate Loans, (ii) the
requested date of the Borrowing, conversion or continuation, as the
case may be (which shall be a Business Day), (iii) the principal amount
of Committed Loans to be borrowed, converted or continued, (iv) the
Type of Committed Loans to be borrowed or to which existing Committed
Loans are to be converted, and (v) if applicable, the duration of the
Interest Period with respect thereto. If the Borrower fails to specify
a Type of Committed Loan in a Committed Loan Notice or if the Borrower
fails to give a timely notice requesting a conversion or continuation,
then the applicable Committed Loans shall be made as, or 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 Borrowing of, conversion to, or continuation of Eurodollar
Rate Loans in any such Committed Loan Notice, but fails to specify an
Interest Period, it will be deemed to have specified an Interest Period
of one month.
CREDIT AGREEMENT Page 22
(b) Following receipt of a Committed Loan Notice, the
Administrative Agent shall promptly notify each Lender of the amount of
its Applicable Percentage of the applicable Committed Loans, and 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. In the case of a Committed Borrowing, each Lender
shall make the amount of its Committed Loan available to the
Administrative Agent in immediately available funds at the
Administrative Agent's Office not later than 2:00 p.m. on the Business
Day specified in the applicable Committed Loan Notice. Upon
satisfaction of the applicable conditions set forth in Section 4.02
(and, if such 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 (i) crediting the account of the Borrower on the books of
Bank of America with the amount of such funds or (ii) 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 Committed Loan
Notice with respect to such Borrowing is given by the Borrower, there
are L/C Borrowings outstanding, then the proceeds of such 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.
(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 requested as, converted to or continued as
Eurodollar Rate Loans without the consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the
Borrower and the Lenders of the interest rate applicable to any
Interest Period for Eurodollar Rate Loans upon determination of such
interest rate. At any time that Base Rate Loans 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.
(e) After giving effect to all Committed Borrowings, all
conversions of Committed Loans from one Type to the other, and all
continuations of Committed Loans as the same Type, there shall not be
more than six Interest Periods in effect with respect to Committed
Loans.
CREDIT AGREEMENT Page 23
2.03 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 2.03, (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,
and to amend 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 and any drawings thereunder;
provided that after giving effect to any L/C Credit Extension
with respect to any Letter of Credit, (x) the Total
Outstandings shall not exceed the Aggregate Commitments, (y)
the aggregate Outstanding Amount of the Committed Loans of any
Lender, plus such Lender's Applicable Percentage of the
Outstanding Amount of all L/C Obligations, plus such Lender's
Applicable Percentage of the Outstanding Amount of all Swing
Line Loans shall not exceed such Lender's 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.
(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 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;
CREDIT AGREEMENT Page 24
(B) the issuance of such Letter of Credit would
violate one or more policies of the L/C Issuer
applicable to letters of credit generally;
(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
$50,000;
(D) such Letter of Credit is to be denominated
in a currency other than Dollars;
(E) such Letter of Credit contains any
provisions for automatic reinstatement of the stated
amount after any drawing thereunder; or
(F) a default of any Lender's obligations to
fund under Section 2.03(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 IX 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 IX 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.
CREDIT AGREEMENT Page 25
(b) Procedures for Issuance and Amendment of 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 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 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; (G) the purpose and nature of
the requested Letter of Credit; and (H) 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 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 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
Applicable Percentage times the amount of such Letter of
Credit.
CREDIT AGREEMENT Page 26
(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.
(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
Applicable Percentage thereof. In such event, the Borrower
shall be deemed to have requested a Committed 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 2.02 for the
principal amount of Base Rate Loans, but subject to the amount
of the unutilized portion of the Aggregate Commitments and the
conditions set forth in Section 4.02 (other than the delivery
of a Committed Loan Notice). Any notice given by the L/C
Issuer or the Administrative Agent pursuant to this Section
2.03(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 2.03(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 Applicable 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
2.03(c)(iii), each Lender that so makes funds available shall
be deemed to have made a Base Rate Committed Loan 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 Committed 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 2.03(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 2.03.
CREDIT AGREEMENT Page 27
(iv) Until each Lender funds its Committed Loan or
L/C Advance pursuant to this Section 2.03(c) to reimburse the
L/C Issuer for any amount drawn under any Letter of Credit,
interest in respect of such Lender's Applicable Percentage of
such amount shall be solely for the account of the L/C Issuer.
(v) Each Lender's obligation to make Committed Loans
or L/C Advances to reimburse the L/C Issuer for amounts drawn
under Letters of Credit, as contemplated by this Section
2.03(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
Committed Loans pursuant to this Section 2.03(c) is subject to
the conditions set forth in Section 4.02 (other than delivery
by the Borrower of a Committed 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 2.03(c) by the time
specified in Section 2.03(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, plus any administrative, processing or similar
fees customarily charged by the L/C Issuer in connection with
the foregoing. If such Lender pays such amount (with interest
and fees as aforesaid), the amount so paid shall constitute
such Lender's Committed Loan included in the relevant
Committed Borrowing or L/C Advance in respect of the relevant
L/C Borrowing, as the case may be. 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.
CREDIT AGREEMENT Page 28
(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 2.03(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 Applicable Percentage thereof 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
2.03(c)(i) is required to be returned under any of the
circumstances described in Section 10.05 (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 Applicable Percentage
thereof on demand of the Administrative Agent, plus interest
thereon from the date of 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
CREDIT AGREEMENT Page 29
(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 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 2.03(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.
CREDIT AGREEMENT Page 30
(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 2.05 and 8.02(c)
set forth certain additional requirements to deliver Cash Collateral
hereunder. For purposes of this Section 2.03, Section 2.05 and Section
8.02(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.
(h) Applicability of ISP and UCP. Unless otherwise expressly
agreed by the L/C Issuer and the Borrower when a Letter of Credit is
issued, (i) the rules of the ISP shall apply to each standby Letter of
Credit, and (ii) the rules of the Uniform Customs and Practice for
Documentary Credits, as most recently published by the International
Chamber of Commerce at the time of issuance shall apply to each
commercial Letter of Credit.
(i) Letter of Credit Fees. The Borrower shall pay to the
Administrative Agent for the account of each Lender in accordance with
its Applicable Percentage a Letter of Credit fee (the "Letter of Credit
Fee") for each standby 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 1.06. Letter of Credit
Fees shall be (i) due and payable on the first Business Day after the
end 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 and
(ii) computed on a quarterly basis in arrears. If there is any change
in the Applicable Rate during any quarter, the daily amount available
to be drawn under each standby 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.
CREDIT AGREEMENT Page 31
(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 standby
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 on a quarterly basis in arrears. Such fronting fee shall be due
and payable on the tenth Business Day after the end of each March,
June, September and December in respect of the most recently-ended
quarterly period (or portion thereof, in the case of the first
payment), 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. 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
1.06. 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.
2.04 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 2.04, 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 Applicable Percentage of the
Outstanding Amount of Committed 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 Total Outstandings shall not exceed the Aggregate
Commitments, and (ii) the aggregate Outstanding Amount of the Committed
Loans of any Lender, plus such Lender's Applicable Percentage of the
Outstanding Amount of all L/C Obligations, plus such Lender's
Applicable Percentage of the Outstanding Amount of all Swing Line Loans
shall not exceed such Lender's 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 2.04, prepay under Section 2.05, and reborrow
under this Section 2.04. 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
Applicable Percentage times the amount of such Swing Line Loan.
CREDIT AGREEMENT Page 32
(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 $100,000, 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 1:00 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 first proviso to the first sentence of
Section 2.04(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
2:00 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.
(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 Base Rate
Committed Loan in an amount equal to such Lender's Applicable
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 Committed Loan Notice for purposes
hereof) and in accordance with the requirements of Section
2.02, 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 Aggregate Commitments
and the conditions set forth in Section 4.02. The Swing Line
Lender shall furnish the Borrower with a copy of the
applicable Committed Loan Notice promptly after delivering
such notice to the Administrative Agent. Each Lender shall
make an amount equal to its Applicable Percentage of the
amount specified in such Committed 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 Committed Loan Notice, whereupon, subject to Section
2.04(c)(ii), each Lender that so makes funds available shall
be deemed to have made a Base Rate Committed Loan to the
Borrower in such amount. The Administrative Agent shall remit
the funds so received to the Swing Line Lender.
CREDIT AGREEMENT Page 33
(ii) If for any reason any Swing Line Loan cannot be
refinanced by such a Committed Borrowing in accordance with
Section 2.04(c)(i), the request for Base Rate Committed Loans
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 2.04(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 2.04(c) by the time
specified in Section 2.04(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, plus any administrative, processing or
similar fees customarily charged by the Swing Line Lender in
connection with the foregoing. If such Lender pays such amount
(with interest and fees as aforesaid), the amount so paid
shall constitute such Lender's Committed Loan included in the
relevant Committed Borrowing or funded participation in the
relevant Swing Line Loan, as the case may be. A certificate of
the Swing Line Lender submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under
this clause (iii) shall be conclusive absent manifest error.
(iv) Each Lender's obligation to make Committed Loans
or to purchase and fund risk participations in Swing Line
Loans pursuant to 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 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 Committed Loans pursuant to this
Section 2.04(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
Applicable Percentage thereof in the same funds as those
received by the Swing Line Lender.
CREDIT AGREEMENT Page 34
(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 10.05 (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 Applicable 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 Base Rate Committed
Loan or risk participation pursuant to this Section 2.04 to refinance
such Lender's Applicable Percentage of any Swing Line Loan, interest in
respect of such Applicable 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.
2.05 Prepayments.
(a) The Borrower may, upon notice to the Administrative Agent,
at any time or from time to time voluntarily prepay Committed 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
10:00 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
Committed Loans; (ii) any prepayment of Eurodollar Rate Loans shall be
in a principal amount of $500,000 or a whole multiple of $100,000 in
excess thereof; and (iii) any prepayment of Base Rate Committed Loans
shall be in a principal amount of $500,000 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
Committed Loans to be prepaid and, if Eurodollar Rate Loans are to be
prepaid, the Interest Period(s) of such Loans. The Administrative Agent
will promptly notify each Lender of its receipt of each such notice,
and of the amount of such Lender's Applicable 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
on the amount prepaid, together with any additional amounts required
pursuant to Section 3.05. Each such prepayment shall be applied to the
Committed Loans of the Lenders in accordance with their respective
Applicable Percentages.
CREDIT AGREEMENT Page 35
(b) 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. 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) If for any reason the Total Outstandings at any time
exceed the Aggregate Commitments then in effect, the Borrower shall
immediately prepay 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 2.05(c) unless after the
prepayment in full of the Loans the Total Outstandings exceed the
Aggregate Commitments then in effect.
2.06 Termination or Reduction of Commitments. The Borrower may, upon
notice to the Administrative Agent, terminate the Aggregate Commitments, or from
time to time permanently reduce the Aggregate Commitments; provided that (a) any
such notice shall be received by the Administrative Agent not later than 10:00
a.m. five Business Days prior to the date of termination or reduction, (b) 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, (c) the Borrower shall not
terminate or reduce the Aggregate Commitments if, after giving effect thereto
and to any concurrent prepayments hereunder, the Total Outstandings would exceed
the Aggregate Commitments, and (d) if, after giving effect to any reduction of
the Aggregate Commitments, the Letter of Credit Sublimit or the Swing Line
Sublimit exceeds the amount of the Aggregate 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 Aggregate Commitments. Any reduction of the Aggregate Commitments shall
be applied to the Commitment of each Lender according to its Applicable
Percentage. All fees accrued until the effective date of any termination of the
Aggregate Commitments shall be paid on the effective date of such termination.
2.07 Repayment of Loans.
(a) The Borrower shall repay to the Lenders on the Maturity
Date the aggregate principal amount of Committed Loans outstanding on
such date.
(b) The Borrower shall repay each Swing Line Loan on the
earlier to occur of (i) the date ten Business Days after such Loan is
made and (ii) the Maturity Date.
2.08 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 Committed 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 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 plus the Applicable
Rate.
CREDIT AGREEMENT Page 36
(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.
(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.
2.09 Fees. In addition to certain fees described in subsections (i) and
(j) of Section 2.03:
(a) Commitment Fee. The Borrower shall pay to the
Administrative Agent for the account of each Lender in accordance with
its Applicable Percentage, a commitment fee equal to the Applicable
Rate times the actual daily amount by which the Aggregate Commitments
exceed the sum of (i) the Outstanding Amount of Committed 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
last day of the Availability Period. 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.
CREDIT AGREEMENT Page 37
(b) Other Fees. (i) The Borrower shall pay the Administrative
Agent for its own account 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.
(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.
2.10 Computation of Interest and Fees; Retroactive Adjustments of
Applicable Rate. (a) 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 2.12(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.
(b) If, as a result of any restatement of or other adjustment
to the financial statements of the Borrower or for any other reason,
the Borrower or the Lenders determine that (i) the Consolidated
Leverage Ratio as calculated by the Borrower as of any applicable date
was inaccurate and (ii) a proper calculation of the Consolidated
Leverage Ratio would have resulted in higher pricing for such period,
the Borrower shall immediately and retroactively be obligated to pay to
the Administrative Agent for the account of the applicable Lenders,
promptly on demand by the Administrative Agent (or, after 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,
automatically and without further action by the Administrative Agent,
any Lender or the L/C Issuer), an amount equal to the excess of the
amount of interest and fees that should have been paid for such period
over the amount of interest and fees actually paid for such period.
This paragraph shall not limit the rights of the Administrative Agent,
any Lender or the L/C Issuer, as the case may be, under Section
2.03(c)(iii), 2.03(i) or 2.08(b) or under Article VIII. The Borrower's
obligations under this paragraph shall survive the termination of the
Aggregate Commitments and the repayment of all other Obligations
hereunder.
2.11 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.
CREDIT AGREEMENT Page 38
(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.
2.12 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
(other than the defense of payment), 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
Applicable Percentage (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 Committed Borrowing of
Eurodollar Rate Loans (or, in the case of any Committed Borrowing of
Base Rate Loans, prior to 12:00 noon on the date of such Committed
Borrowing) that such Lender will not make available to the
Administrative Agent such Lender's share of such Committed Borrowing,
the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with Section 2.02 (or, in
the case of a Committed Borrowing of Base Rate Loans, that such Lender
has made such share available in accordance with and at the time
required by Section 2.02) 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 Committed
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, plus any
administrative, processing or similar fees customarily charged by the
Administrative Agent in connection with the foregoing, 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 Committed
Borrowing to the Administrative Agent, then the amount so paid shall
constitute such Lender's Committed Loan included in such Committed
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.
CREDIT AGREEMENT Page 39
(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, 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.
CREDIT AGREEMENT Page 40
(d) Obligations of Lenders Several. The obligations of the
Lenders hereunder to make Committed Loans, to fund participations in
Letters of Credit and Swing Line Loans and to make payments pursuant to
Section 10.04(c) are several and not joint. The failure of any Lender
to make any Committed Loan, to fund any such participation or to make
any payment under Section 10.04(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 Committed Loan, to purchase its
participation or to make its payment under Section 10.04(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.
2.13 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 Committed 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
Committed 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 Committed Loans and
subparticipations in L/C Obligations and Swing Line Loans of the other Lenders,
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
Committed Loans and other amounts owing them, provided that:
(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 Committed 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).
The Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Borrower rights of setoff and counterclaim with respect to such participation as
fully as if such Lender were a direct creditor of the Borrower in the amount of
such participation.
CREDIT AGREEMENT Page 41
2.14 Increase in Commitments.
(a) Request for Increase. Provided there exists no Default,
upon notice to the Administrative Agent (which shall promptly notify
the Lenders), the Borrower may from time to time, request an increase
in the Aggregate Commitments by an amount (for all such requests) not
exceeding $20,000,000; provided that (i) any such request for an
increase shall be in a minimum amount of $5,000,000, and (ii) the
Borrower may make a maximum of four such requests. At the time of
sending such notice, the Borrower (in consultation with the
Administrative Agent) shall specify the time period within which each
Lender is requested to respond (which shall in no event be less than
ten Business Days from the date of delivery of such notice to the
Lenders).
(b) Lender Elections to Increase. Each Lender shall notify the
Administrative Agent within such time period whether or not it agrees
to increase its Commitment and, if so, whether by an amount equal to,
greater than, or less than its Applicable Percentage of such requested
increase. Any Lender not responding within such time period shall be
deemed to have declined to increase its Commitment.
(c) Notification by Administrative Agent; Additional Lenders.
The Administrative Agent shall notify the Borrower and each Lender of
the Lenders' responses to each request made hereunder.
(d) Effective Date and Allocations. If the Aggregate
Commitments are increased in accordance with this Section, the
Administrative Agent and the Borrower shall determine the effective
date (the "Increase Effective Date") and the final allocation of such
increase. In the event that there is a shortfall between the amount of
the requested increase and the amount the Lenders are willing to
increase their Commitments, Bank of America, N.A. agrees to increase
its Commitment in an amount equal to such shortfall. The Administrative
Agent shall promptly notify the Borrower and the Lenders of the final
allocation of such increase and the Increase Effective Date.
(e) Conditions to Effectiveness of Increase. As a condition
precedent to such increase, the Borrower shall deliver to the
Administrative Agent a certificate of each Loan Party dated as of the
Increase Effective Date (in sufficient copies for each Lender) signed
by a Responsible Officer of such Loan Party (i) certifying and
attaching the resolutions adopted by such Loan Party approving or
consenting to such increase, and (ii) in the case of the Borrower,
certifying that, before and after giving effect to such increase, (A)
the representations and warranties contained in Article V and the other
Loan Documents are true and correct on and as of the Increase Effective
Date, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and
correct as of such earlier date, and except that for purposes of this
Section 2.14, 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, and (B) no Default exists. The Borrower
shall prepay any Committed Loans outstanding on the Increase Effective
Date (and pay any additional amounts required pursuant to Section 3.05)
to the extent necessary to keep the outstanding Committed Loans ratable
with any revised Applicable Percentages arising from any nonratable
increase in the Commitments under this Section.
CREDIT AGREEMENT Page 42
(f) Conflicting Provisions. This Section shall supersede any
provisions in Section 2.13 or 10.01 to the contrary.
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 10 days after demand 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.
CREDIT AGREEMENT Page 43
(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
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.
CREDIT AGREEMENT Page 44
(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 Committed
Loans 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 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 Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan , or
(c) the Eurodollar 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
Committed Borrowing of Base Rate Loans in the amount specified therein.
CREDIT AGREEMENT Page 45
3.04 Increased Costs; Reserves on Eurodollar Rate Loans.
(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 contemplated by Section
3.04(e)) 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 Rate 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 Rate 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 Rate 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 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.
CREDIT AGREEMENT Page 46
(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).
(e) Reserves on Eurodollar Rate Loans. The Borrower shall pay
to each Lender, as long as such Lender shall be required to maintain
reserves with respect to liabilities or assets consisting of or
including Eurocurrency funds or deposits (currently known as
"Eurocurrency liabilities"), additional interest on the unpaid
principal amount of each Eurodollar Rate Loan equal to the actual costs
of such reserves allocated to such Loan by such Lender (as determined
by such Lender in good faith, which determination shall be conclusive),
which shall be due and payable on each date on which interest is
payable on such Loan, provided the Borrower shall have received at
least 10 days' prior notice (with a copy to the Administrative Agent)
of such additional interest from such Lender. If a Lender fails to give
notice 10 days prior to the relevant Interest Payment Date, such
additional interest shall be due and payable 10 days from receipt of
such notice.
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);
CREDIT AGREEMENT Page 47
(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 10.13;
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 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, or if the Borrower is required to pay
any additional amount to any Lender or any Governmental Authority for
the account of any Lender pursuant to Section 3.01, the Borrower may
replace such Lender in accordance with Section 10.13.
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.
CREDIT AGREEMENT Page 48
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 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,
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 the each
Loan Party is validly existing, in good standing and qualified
to engage in business in each jurisdiction where its
ownership, lease or operation of properties or the conduct of
its business requires such qualification, except to the extent
that failure to do so could not reasonably be expected to have
a Material Adverse Effect;
(v) a favorable opinion of Porter & Hedges LLP,
counsel to the Loan Parties, addressed to the Administrative
Agent and each Lender, as to the matters set forth in Exhibit
F 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;
CREDIT AGREEMENT Page 49
(vii) a certificate signed by a Responsible Officer
of the Borrower certifying (A) that the conditions specified
in Sections 4.02(a) and (b) have been satisfied, and (B) 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; and (C) a calculation of
the Consolidated Leverage Ratio as of the last day of the
fiscal quarter of the Borrower most recently ended prior to
the Closing Date;
(viii) a duly completed Compliance Certificate as of
the last day of the fiscal quarter of the Borrower ended on
June 30, 2007, signed by a Responsible Officer of the
Borrower;
(ix) evidence that all insurance required to be
maintained pursuant to the Loan Documents has been obtained
and is in effect;
(x) 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.
(b) Any fees required to be paid on or before the Closing
Date, including those fees included in the Fee Letter, shall have been
paid.
(c) Unless waived by the Administrative Agent, the Borrower
shall have paid all fees, charges and disbursements of counsel to the
Administrative Agent (directly to such counsel if requested by the
Administrative Agent) to the extent invoiced prior to or on the Closing
Date, plus such additional amounts of such fees, charges and
disbursements as shall constitute its reasonable estimate of such fees,
charges and disbursements incurred or to be incurred by it through the
closing proceedings (provided that such estimate shall not thereafter
preclude a final settling of accounts between the Borrower and the
Administrative Agent).
Without limiting the generality of the provisions of the last paragraph of
Section 9.03, 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 Committed Loan Notice
requesting only a conversion of Committed Loans to the other Type, or a
continuation of Eurodollar Rate Loans) is subject to the following conditions
precedent:
(a) The representations and warranties of the Borrower and
each other Loan Party contained in Article V 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 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.
CREDIT AGREEMENT Page 50
(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 Committed Loan Notice
requesting only a conversion of Committed 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
------------------------------
The Borrower represents and warrants to the Administrative Agent and
the Lenders that:
5.01 Existence, Qualification and Power. Each Loan Party and each
Subsidiary thereof (a) is duly organized or formed, validly existing and, as
applicable, 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 or lease 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, and (c)
is duly qualified and is licensed and, as applicable, 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; except in
each case referred to in clause (b)(i) or (c), to the extent that failure to do
so could not reasonably be expected to have a Material Adverse Effect.
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 property is subject;
or (c) violate any Law.
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.
CREDIT AGREEMENT Page 51
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.
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 Borrower 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 Borrower and its Subsidiaries
as of the date thereof, including liabilities for taxes, material
commitments and Indebtedness.
(b) The unaudited consolidated balance sheets of the Borrower
and its Subsidiaries dated June 30, 2007, and the related consolidated
statements of income or 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 Borrower 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. Schedule
5.05 sets forth all Indebtedness of the Borrower and its consolidated
Subsidiaries incurred since the date of the unaudited consolidated
balance sheets referred to in this clause (b).
(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) The consolidated statements of income of the Borrower and
its Subsidiaries delivered pursuant to Section 6.01(c) were prepared in
good faith on the basis of the assumptions stated therein, which
assumptions were fair in light of the conditions existing at the time
of delivery of such forecasts, and represented, at the time of
delivery, the Borrower's best estimate of its future financial
condition and performance.
5.06 Litigation. There are no actions, suits, proceedings, claims or
disputes pending or, to the knowledge of the Borrower after due and diligent
investigation, threatened or contemplated, at law, in equity, in arbitration or
before any Governmental Authority, by or against the Borrower or any of its
Subsidiaries 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) except as specifically disclosed in
Schedule 5.06, either individually or in the aggregate, if determined adversely,
could reasonably be expected to have a Material Adverse Effect.
CREDIT AGREEMENT Page 52
5.07 No Default. Neither any Loan Party nor any Subsidiary thereof 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 of the Borrower and each
Subsidiary 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 Borrower and its Subsidiaries is subject to
no Liens, other than Liens permitted by Section 7.01.
5.09 Environmental Compliance. The Borrower and its Subsidiaries
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 Borrower has reasonably concluded
that, except as specifically disclosed in Schedule 5.09, such 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 Borrower and its Subsidiaries are
insured with financially sound and reputable insurance companies not Affiliates
of the Borrower, 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 Borrower or the applicable Subsidiary
operates.
5.11 Taxes. The Borrower and its Subsidiaries 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 Borrower 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 the Borrower,
nothing has occurred which would prevent, or cause the loss of, such
qualification. The Borrower and each ERISA Affiliate have made all
required contributions to each Plan subject to Section 412 of the Code,
and no application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code has been made
with respect to any Plan.
CREDIT AGREEMENT Page 53
(b) There are no pending or, to the best knowledge of the
Borrower, threatened claims, actions or lawsuits, or action by any
Governmental Authority, with respect to any Plan that could 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) (i) No ERISA Event has occurred or is reasonably expected
to occur; (ii) no Pension Plan has any Unfunded Pension Liability;
(iii) neither the Borrower nor any ERISA Affiliate has incurred, or
reasonably expects to incur, any liability under Title IV of ERISA with
respect to any Pension Plan (other than premiums due and not delinquent
under Section 4007 of ERISA); (iv) neither the Borrower nor any ERISA
Affiliate has incurred, or reasonably expects to incur, any liability
(and no event has occurred which, with the giving of notice under
Section 4219 of ERISA, would result in such liability) under Section
4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v)
neither the Borrower nor any ERISA Affiliate has engaged in a
transaction that could be subject to Section 4069 or 4212(c) of ERISA.
5.13 Subsidiaries; Equity Interests. As of the date of this Agreement,
the Borrower has no Subsidiaries other than those specifically disclosed in Part
(a) of Schedule 5.13, and all of the outstanding Equity Interests in such
Subsidiaries have been validly issued, are fully paid and nonassessable and are,
if owned by a Loan Party, owned by a Loan Party free and clear of all Liens. The
Borrower has no equity investments in any other corporation or entity other than
those specifically disclosed in Part (b) of Schedule 5.13. All of the
outstanding Equity Interests in the Borrower have been validly issued.
5.14 Margin Regulations; Investment Company Act.
(a) The Borrower is not engaged and will not 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.
(b) None of the Borrower, any Person Controlling the Borrower,
or any Subsidiary is or is required to be registered as an "investment
company" under the Investment Company Act of 1940.
5.15 Disclosure. The Borrower has disclosed to the Administrative Agent
and the Lenders all agreements, instruments and corporate or other restrictions
to which it or any of its Subsidiaries 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 Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.
CREDIT AGREEMENT Page 54
5.16 Compliance with Laws. Each Loan Party and each Subsidiary thereof
is in compliance in all material respects 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) such requirement of Law or
order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the failure to comply
therewith, either individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
5.17 Taxpayer Identification Number. The Borrower's true and correct
U.S. taxpayer identification number is set forth on Schedule 10.02.
5.18 Intellectual Property; Licenses, Etc. The Borrower and its
Subsidiaries 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 the
Borrower, no slogan or other advertising device, product, process, method,
substance, part or other material now employed, or now contemplated to be
employed, by the Borrower or any Subsidiary infringes upon any rights held by
any other Person. Except as specifically disclosed in Schedule 5.18, no claim or
litigation regarding any of the foregoing is pending or, to the best knowledge
of the Borrower, threatened, which, either individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect.
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 Borrower shall, and shall (except in the
case of the covenants set forth in Sections 6.01, 6.02, and 6.03) cause each
Subsidiary to:
CREDIT AGREEMENT Page 55
6.01 Financial Statements. Deliver to the Administrative Agent and each
Lender, in form and detail satisfactory to the Administrative Agent and the
Required Lenders:
(a) as soon as available, but in any event within 90 days
after the end of each fiscal year of the Borrower (commencing with the
fiscal year ended December 31, 2007), a consolidated balance sheet of
the Borrower and its Subsidiaries as at the end of such fiscal year,
and the related consolidated statements of income 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,
such consolidated statements to be 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; and
(b) as soon as available, but in any event within 45 days
after the end of each of the first three fiscal quarters of each fiscal
year of the Borrower (commencing with the fiscal quarter ended
September 30, 2007), a consolidated balance sheet of the Borrower 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
Borrower'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, such consolidated statements to
be certified by the chief executive officer, chief financial officer,
treasurer or controller of the Borrower as fairly presenting the
financial condition, results of operations, shareholders' equity and
cash flows of the Borrower and its Subsidiaries in accordance with
GAAP, subject only to normal year-end audit adjustments and the absence
of footnotes and such consolidating statements to be certified by the
chief executive officer, chief financial officer, treasurer or
controller of the Borrower to the effect that such statements are
fairly stated in all material respects when considered in relation to
the consolidated financial statements of the Borrower and its
Subsidiaries; and
(c) as soon as available, but in any event within 30 days
after the end of each fiscal year of the Borrower, forecasts prepared
by management of the Borrower, in form satisfactory to the
Administrative Agent and the Required Lenders, of consolidated balance
sheets and statements of income or operations and cash flows of the
Borrower and its Subsidiaries on a quarterly basis for the immediately
following fiscal year (including the fiscal year in which the Maturity
Date occurs).
As to any information contained in materials furnished pursuant to
Section 6.02(c), 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 Borrower to furnish the information and
materials described in clauses (a) and (b) above at the times specified therein.
CREDIT AGREEMENT Page 56
6.02 Certificates; Other Information. Deliver to the Administrative
Agent and each Lender, in form and detail satisfactory to the Administrative
Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements
referred to in Sections 6.01(a) and (b), a duly completed Compliance
Certificate signed by the chief executive officer, chief financial
officer, treasurer or controller of the Borrower;
(b) promptly after any request by the Administrative Agent or
any Lender, 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 Borrower by independent
accountants in connection with the accounts or books of the Borrower or
any Subsidiary, or any audit of any of them;
(c) 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 Borrower, and copies of
all annual, regular, periodic and special reports and registration
statements which the Borrower 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;
(d) promptly, and in any event within five Business Days after
receipt thereof by any Loan Party or any Subsidiary thereof, copies of
each notice or other correspondence received from the SEC (or
comparable agency in any applicable non-U.S. jurisdiction) concerning
any investigation or possible investigation or other inquiry by such
agency regarding financial or other operational results of any Loan
Party or any Subsidiary thereof; and
(e) promptly, such additional information regarding the
business, financial or corporate affairs of the Borrower or any
Subsidiary, or compliance with the terms of the Loan Documents, as the
Administrative Agent or any Lender may from time to time reasonably
request.
Documents required to be delivered pursuant to Section 6.01(a) or (b)
or Section 6.02(c) (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
Borrower posts such documents, or provides a link thereto on the Borrower's
website on the Internet at the website address listed on Schedule 10.02; or (ii)
on which such documents are posted on the Borrower'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 Borrower shall deliver paper
copies of such documents to the Administrative Agent or any Lender that requests
the Borrower 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 Borrower 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 Borrower shall be required to provide paper copies of the
Compliance Certificates required by Section 6.02(a) to the Administrative Agent.
Except for such Compliance Certificates, the Administrative Agent shall have no
obligation to request the delivery or to maintain copies of the documents
referred to above, and in any event shall have no responsibility to monitor
compliance by the Borrower with any such request for delivery, and each Lender
shall be solely responsible for requesting delivery to it or maintaining its
copies of such documents.
CREDIT AGREEMENT Page 57
The Borrower hereby acknowledges that (a) the Administrative Agent may
at its option make available to the Lenders and the L/C Issuer materials and/or
information provided by or on behalf of the Borrower hereunder (collectively,
"Borrower Materials") by posting the Borrower Materials on IntraLinks or another
similar electronic system (the "Platform") and (b) certain of the Lenders (each,
a "Public Lender") may have personnel who do not wish to receive material
non-public information with respect to the Borrower or its Affiliates, or the
respective securities of any of the foregoing, and who may be engaged in
investment and other market-related activities with respect to such Persons'
securities. The Borrower hereby agrees that (w) all Borrower 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 Borrower Materials
"PUBLIC," the Borrower shall be deemed to have authorized the Administrative
Agent, the L/C Issuer and the Lenders to treat such Borrower Materials as not
containing any material non-public information with respect to the Borrower or
its securities for purposes of United States Federal and state securities laws
(provided, however, that to the extent such Borrower Materials constitute
Information, they shall be treated as set forth in Section 10.07); (y) all
Borrower Materials marked "PUBLIC" are permitted to be made available through a
portion of the Platform designated "Public Investor;" and (z) the Administrative
Agent shall be entitled to treat any Borrower 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 and each Lender:
(a) of the occurrence of any Default;
(b) 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 the Borrower or any Subsidiary; (ii) any dispute, litigation,
investigation, proceeding or suspension between the Borrower or any
Subsidiary and any Governmental Authority; or (iii) the commencement
of, or any material development in, any litigation or proceeding
affecting the Borrower or any Subsidiary, including pursuant to any
applicable Environmental Laws;
(c) of the occurrence of any ERISA Event; and
(d) of any material change in accounting policies or financial
reporting practices by the Borrower or any Subsidiary, including any
determination by the Borrower referred to in Section 2.10(b).
CREDIT AGREEMENT Page 58
Each notice pursuant to this Section 6.03 shall be accompanied by a
statement of a Responsible Officer of 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.
6.04 Payment of Obligations. Pay and discharge as the same shall become
due and payable, all its material obligations and liabilities, unless 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 Borrower or such Subsidiary, including (a) all tax liabilities, assessments
and governmental charges or levies upon it or its properties or assets; (b) all
lawful claims which, if unpaid, would by law become a Lien upon its property;
and (c) all Indebtedness, as and when due and payable, but subject to any
subordination provisions contained in any instrument or agreement evidencing
such Indebtedness. Notwithstanding anything contained herein, nothing in Section
6.04 shall permit the Borrower not to pay the Obligations when due.
6.05 Preservation of Existence, Etc. (a) Preserve, renew and maintain
in full force and effect its legal existence and good standing under the Laws of
the jurisdiction of its organization except in a transaction permitted by
Section 7.04 or 7.05; (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;
and (b) make all necessary repairs thereto and renewals and replacements
thereof, except where the failure to take the actions described under either
clause (a) or (b) could not reasonably be expected to have a Material Adverse
Effect.
6.07 Maintenance of Insurance. Maintain with financially sound and
reputable insurance companies not Affiliates of the Borrower, 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 providing for not less than 30 days'
prior notice to the Administrative Agent of termination, lapse or cancellation
of such insurance.
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 (a) such requirement of Law or order, writ, injunction or decree is being
contested in good faith by appropriate proceedings diligently conducted; or (b)
the failure to comply therewith could not reasonably be expected to have a
Material Adverse Effect.
6.09 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 Borrower or such Subsidiary, as the
case may be; 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 Borrower or such Subsidiary, as the case may
be.
CREDIT AGREEMENT Page 59
6.10 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 the expense of the Borrower and 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.
6.11 Use of Proceeds. Use the proceeds of the Credit Extensions for
working capital, making acquisitions permitted hereunder, and general corporate
purposes not in contravention of any Law or of any Loan Document.
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 Borrower shall not, nor shall it permit any
Subsidiary 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 any Loan Document;
(b) Liens existing on the date hereof and listed on Schedule
7.01 and any renewals or extensions thereof, provided that (i) the
property covered thereby is not changed in any material respect, (ii)
the amount secured or benefited thereby is not increased except as
contemplated by Section 7.03(b), and (iii) 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 30 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;
CREDIT AGREEMENT Page 60
(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 and appeal bonds, performance bonds and other obligations of a
like nature incurred in the ordinary course of business;
(g) easements, rights-of-way, 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 8.01(h); and
(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.
7.02 Investments. Make any Investments, except:
(a) Investments held by the Borrower or such Subsidiary in the
form of Cash Equivalents;
(b) advances to officers, directors and employees of the
Borrower and Subsidiaries in an aggregate amount not to exceed $250,000
at any time outstanding, for travel, entertainment, relocation and
analogous ordinary business purposes;
(c) 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;
(d) Guarantees permitted by Section 7.03;
(e) the purchase or other acquisition, in a friendly,
non-hostile transaction, of Equity Interests in (not including
purchases of Equity Interests permitted in 7.03(g) below), or all or
substantially all of the property of, any Person that, upon the
consummation thereof, will be a majority-owned directly by the Borrower
or one or more of its wholly-owned Subsidiaries (including as a result
of an acquisition or consolidation); provided that, with respect to
each purchase or other acquisition made pursuant to this Section
7.03(e):
CREDIT AGREEMENT Page 61
(i) the lines of business of the Person to be (or the
property of which is to be) so purchased or otherwise acquired
shall not cause the Borrower to breach the provisions of
Section 7.07;
(ii) such purchase or other acquisition shall not, to
the best knowledge of Borrower after its reasonable due
diligence consistent for an acquisition of similar size,
include or result in any contingent liabilities that could
reasonably be expected to cause a Material Adverse Effect;
(iii) the total cash and noncash consideration
(including the fair market value of all Equity Interests,
other than Equity Interests of the Borrower or of the
Subsidiary of the Borrower which makes such purchase or
acquisition, issued or transferred to the sellers thereof, the
aggregate amounts paid or to be paid under noncompete,
consulting, other affiliated agreements (to the extent such
consideration does not exceed the fair market value of the
goods or services provided under such agreements, as agreed to
by the Administrative Agent), all earnouts and other
contingent payment obligations, with the sellers thereof, and
all assumptions of Funded Indebtedness in connection
therewith) paid by or on behalf of the Borrower and its
Subsidiaries for any such purchase or other acquisition shall
not exceed (A) $10,000,000 for any single acquisition and (B)
when aggregated with (x) such total cash and noncash
consideration (but excluding Equity Interests of the Borrower)
paid by or on behalf of the Borrower and its Subsidiaries for
all other purchases and other acquisitions made by the
Borrower and its Subsidiaries pursuant to this Section 7.02(e)
and (y) the total cash and noncash consideration paid with
respect to purchase of Equity Interests permitted in Section
7.02(f), shall not exceed $25,000,000 in the aggregate in any
fiscal year (not including any cash or noncash consideration
paid with respect to the Star Acquisition);
(iv) (A) immediately before and immediately after
giving pro forma effect to any such purchase or other
acquisition, no Default shall have occurred and be continuing
and (B) immediately after giving effect to such purchase or
other acquisition, the Borrower and its Subsidiaries shall be
in pro forma compliance with all of the covenants set forth in
Section 7.11, such compliance to be determined on the basis of
the financial information most recently delivered to the
Administrative Agent and the Lenders pursuant to Section
6.01(a) or (b) as though such purchase or other acquisition
had been consummated as of the first day of the fiscal period
covered thereby;
(v) the Borrower shall have delivered to the
Administrative Agent and each Lender, at least five Business
Days prior to the date on which any such purchase or other
acquisition is to be consummated, a certificate of a
Responsible Officer, in form and substance reasonably
satisfactory to the Administrative Agent, certifying that all
of the requirements set forth in clause (iv) have been
satisfied or will be satisfied on or prior to the consummation
of such purchase or other acquisition; and
CREDIT AGREEMENT Page 62
(vi) for all acquisitions for which the aggregate
cash and noncash consideration is greater than $2,500,000,
promptly after the execution thereof, copies of letters of
intent and purchase and sale agreements relating to such
purchase or other acquisition, and promptly, and in any event
not less than five days prior to the date on which any such
purchase or other acquisition is to be consummated, copies of
the financial statements and any other information as may be
reasonably requested by the Administrative Agent regarding the
Person or property to be so purchased or otherwise acquired.
(f) the purchase of all or a portion of the Equity Interests
in Subsidiaries; provided that, with respect to each purchase or other
acquisition made pursuant to this Section 7.03(f):
(i) the lines of business of the Person to be (or the
property of which is to be) so purchased or otherwise acquired
shall not cause the Borrower to breach the provisions of
Section 7.07;
(ii) such purchase or other acquisition shall not, to
the best knowledge of Borrower after its reasonable due
diligence consistent for an acquisition of similar size,
include or result in any contingent liabilities that could
reasonably be expected to cause a Material Adverse Effect;
(iii) the total cash and noncash consideration
(including the fair market value of all Equity Interests,
other than Equity Interests of the Borrower, issued or
transferred to the sellers thereof, the aggregate amounts paid
or to be paid under noncompete, consulting, other affiliated
agreements (to the extent such consideration does not exceed
the fair market value of the goods or services provided under
such agreements, as agreed to by the Administrative Agent),
all earnouts and other contingent payment obligations with the
sellers thereof, and all assumptions of Funded Indebtedness in
connection therewith) paid by or on behalf of the Borrower and
its Subsidiaries for any such purchase or other acquisition,
(A) $10,000,000 for any single purchase of Equity Interests
and (B) when aggregated (x) with such total cash and noncash
consideration (but excluding Equity Interests of the Borrower)
paid by or on behalf of the Borrower and its Subsidiaries for
all other purchases and other acquisitions made by the
Borrower and its Subsidiaries pursuant to this Section 7.02(f)
and (y) shall not exceed, when included with the total cash
and noncash consideration paid with respect to acquisitions
permitted in Section 7.02(e), $25,000,000 in the aggregate in
any fiscal year excluding any cash or noncash consideration
paid with respect to the Star Acquisition;
(iv) (A) immediately before and immediately after
giving pro forma effect to any such purchase or other
acquisition, no Default shall have occurred and be continuing
and (B) immediately after giving effect to such purchase or
other acquisition, the Borrower and its Subsidiaries shall be
in pro forma compliance with all of the covenants set forth in
Section 7.11, such compliance to be determined on the basis of
the financial information most recently delivered to the
Administrative Agent and the Lenders pursuant to Section
6.01(a) or (b) as though such purchase or other acquisition
had been consummated as of the first day of the fiscal period
covered thereby;
CREDIT AGREEMENT Page 63
(v) the Borrower shall have delivered to the
Administrative Agent and each Lender, at least five Business
Days prior to the date on which any such purchase or other
acquisition is to be consummated, a certificate of a
Responsible Officer, in form and substance reasonably
satisfactory to the Administrative Agent, certifying that all
of the requirements set forth in clause (iv) have been
satisfied or will be satisfied on or prior to the consummation
of such purchase or other acquisition; and
(vi) for all purchases of Equity Interests for which
the aggregate cash and noncash consideration is greater than
$2,500,000, promptly after the execution thereof, copies of
letters of intent and purchase and sale agreements relating to
such purchase or other acquisition, and promptly, and in any
event not less than five days prior to the date on which any
such purchase or other acquisition is to be consummated,
copies of the financial statements and any other information
as may be reasonably requested by the Administrative Agent
regarding the Person or property to be so purchased or
otherwise acquired.
(g) the Star Acquisition;
(h) intercompany loans or advances by Borrower to any of its
Subsidiaries or any entities or facilities managed by Borrower or any
of its Subsidiaries under management contracts or other similar
agreements and intercompany loans and advances from any of such
Subsidiaries to Borrower or any other Subsidiaries of the Borrower or
any managed entities or facilities in the ordinary course of business
and consistent with historical business practices, provided, however,
loans and advances to managed entities or facilities permitted
hereunder shall not be greater than $2,000,000 in the aggregate
outstanding at any one time; and
(i) capital contributions by Borrower to any of its
Subsidiaries or purchases or acquisitions of any new Equity Interests
in any such Subsidiaries.
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 and listed on
Schedule 7.03 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, 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;
CREDIT AGREEMENT Page 64
(c) Guarantees of the Borrower or any Subsidiary in respect of
Indebtedness otherwise permitted hereunder of the Borrower or any
Subsidiary;
(d) obligations (contingent or otherwise) of the Borrower or
any Subsidiary 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 in respect of capital leases, Synthetic Lease
Obligations 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 $500,000;
(f) unsecured Indebtedness in an aggregate principal amount
not to exceed $2,000,000 at any time outstanding;
(g) Consolidated Funded Indebtedness assumed or incurred in
the form of a seller's note or similar agreement in connection with any
Investment permitted under Section 7.02(e);
(h) Consolidated Funded Indebtedness assumed or incurred in
the form of a seller's note or similar agreement in connection with any
Investment permitted under Section 7.02(f);
(i) Loans and advances permitted to be made pursuant to
Section 7.02(h); and
(j) Indebtedness existing from Borrower's obligation to
repurchase Equity Interests in the future of another Person in
accordance with the terms of any agreement of limited partnership or
similar agreement.
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:
CREDIT AGREEMENT Page 65
(a) any Subsidiary may merge with (i) the Borrower, provided
that the Borrower shall be the continuing or surviving Person, or (ii)
any one or more other Subsidiaries; and
(b) any Subsidiary may Dispose of all or substantially all of
its assets (upon voluntary liquidation or otherwise) to the Borrower or
to another Subsidiary.
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;
(d) Dispositions of property by any Subsidiary to the Borrower
or to a wholly-owned Subsidiary; provided that if the transferor of
such property is a Guarantor, the transferee thereof must either be the
Borrower or a Guarantor;
(e) Dispositions permitted by Section 7.04;
(f) Dispositions of operations or clinics to individual
therapists consistent with historical practice;
(g) Dispositions or closures of underperforming operations or
clinics; and
(h) Dispositions or closures of operations or clinics in a
particular market segment or region in accordance with Borrower's
business plan.
provided, however, that any Disposition pursuant to clauses (a) through (h)
shall be for fair market value; provided, however, further, Dispositions and
closures permitted under clauses (f), (g) and (h) shall be limited in each
fiscal year to Dispositions and closures of operations and clinics representing
less than five percent (5.00%) of Borrower's total assets reflected on the last
financial statements provided pursuant to Section 6.01(a).
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, so long as no Default shall have occurred and be continuing at the
time of any action described below or would result therefrom:
(a) each Subsidiary may make Restricted Payments to the
Borrower, the Guarantors and any other Person that owns an Equity
Interest in such Subsidiary, ratably according to their respective
holdings of the type of Equity Interest in respect of which such
Restricted Payment is being made;
CREDIT AGREEMENT Page 66
(b) the Borrower and each Subsidiary may declare and make
dividend payments or other distributions payable solely in the common
stock or other common Equity Interests of such Person; and
(c) the Borrower and each Subsidiary may purchase, redeem or
otherwise acquire Equity Interests issued by it with the proceeds
received from the substantially concurrent issue of new shares of its
common stock or other common Equity Interests.
7.07 Change in Nature of Business. Engage in any material line of
business substantially different from those lines of business conducted by the
Borrower and its Subsidiaries on the date hereof (including physical therapy,
occupational therapy, and osteoarthritis services) or any business substantially
related or incidental thereto.
7.08 Transactions with Affiliates. Enter into any transaction of any
kind with any Affiliate of the Borrower, whether or not in the ordinary course
of business, other than on fair and reasonable terms substantially as favorable
to the Borrower or such Subsidiary as would be obtainable by the Borrower or
such Subsidiary at the time in a comparable arm's length transaction with a
Person other than an Affiliate, provided that the foregoing restriction shall
not apply to transactions between or among the Borrower and any of its
Subsidiaries and any entities or facilities managed by the Borrower or any of
its Subsidiaries, for which the terms of such transactions shall be fair and
reasonable.
7.09 Burdensome Agreements. Enter into any Contractual Obligation
(other than this Agreement or any other Loan Document) that (a) limits the
ability (i) of any Subsidiary to make Restricted Payments to the Borrower or any
Guarantor or to otherwise transfer property to the Borrower or any Guarantor,
(ii) of any Subsidiary to Guarantee the Indebtedness of the Borrower or (iii) of
the Borrower or any Subsidiary to create, incur, assume or suffer to exist Liens
on property of such Person; provided, however, that this clause (iii) shall not
prohibit any negative pledge incurred or provided in favor of 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 (b) 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.
7.10 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.
7.11 Financial Covenants.
(a) Consolidated Fixed Charge Coverage Ratio. Permit the
Consolidated Fixed Charge Coverage Ratio as of the end of any fiscal
quarter of the Borrower to be less than 1.20 to 1.00.
CREDIT AGREEMENT Page 67
(b) Consolidated Leverage Ratio. Permit the Consolidated
Leverage Ratio at any time during any period of four fiscal quarters of
the Borrower set forth below to be greater than the ratio set forth
below opposite such period:
Maximum Consolidated
Four Fiscal Quarters Ending Leverage Ratio
--------------------------------------------------- -----------------------
Closing Date through September 30, 2009 2.50 to 1.00
December 31, 2009 and each fiscal quarter 2.0 to 1.0
thereafter
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
------------------------------
8.01 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 three Business Days
after the same becomes due, any interest on any Loan or on any L/C
Obligation, or any fee due hereunder, or (iii) within five Business
Days after the same becomes due, any other amount payable hereunder or
under any other Loan Document; or
(b) Specific Covenants. The Borrower fails to perform or
observe any term, covenant or agreement contained in (i) Section 6.01
or 6.02 within 15 days after the same becomes due and (ii) any of
Section 6.03, 6.05, 6.10 or 6.11 or Article VII; 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 30 days; or
(d) Representations and Warranties. Any representation,
warranty, certification or statement of fact made or deemed made by or
on behalf of the Borrower or any other Loan Party herein, 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
(e) Cross-Default. (i) The Borrower or any Subsidiary (A)
fails to make any payment when due (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 relating to any such
Indebtedness or Guarantee 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) 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 the Borrower or any Subsidiary 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 the Borrower or any
Subsidiary is an Affected Party (as so defined) and, in either event,
the Swap Termination Value owed by the Borrower or such Subsidiary as a
result thereof is greater than the Threshold Amount; or
CREDIT AGREEMENT Page 68
(f) Insolvency Proceedings, Etc. Any Loan Party or any of its
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 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 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 60 calendar days, or
an order for relief is entered in any such proceeding; or
(g) Inability to Pay Debts; Attachment. (i) The Borrower or
any Subsidiary 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 such
Person and is not released, vacated or fully bonded within 30 days
after its issue or levy; or
(h) Judgments. There is entered against the Borrower or any
Subsidiary (i) one or more final judgments or orders for the payment of
money in an aggregate amount (as to all such judgments or orders)
exceeding the Threshold Amount (to the extent not covered by
independent third-party insurance as to which the insurer does not
dispute coverage), 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 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
CREDIT AGREEMENT Page 69
(i) 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 the Borrower 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) the Borrower 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
(j) Invalidity of Loan Documents. Any provision of 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 provision 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 provision of any Loan Document; or
(k) Change of Control. There occurs any Change of Control.
8.02 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, the Lenders and the L/C
Issuer all rights and remedies available to it, the Lenders and the L/C
Issuer under the Loan Documents;
provided, however, that 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.
CREDIT AGREEMENT Page 70
8.03 Application of Funds. After the exercise of remedies provided for
in Section 8.02 (or after the Loans have automatically become immediately due
and payable and the L/C Obligations have automatically been required to be Cash
Collateralized as set forth in the proviso to Section 8.02), 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, interest and Letter
of Credit Fees) 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 respective amounts described in this clause
Second payable to them;
Third, to payment of that portion of the Obligations constituting
accrued and unpaid Letter of Credit Fees and 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 constituting
unpaid principal of the Loans and L/C Borrowings, 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 2.03(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 IX
ADMINISTRATIVE AGENT
--------------------
9.01 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 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 Loan Party shall have rights as a third party beneficiary of any
of such provisions.
CREDIT AGREEMENT Page 71
9.02 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.
9.03 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 10.01 and 8.02) 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.
CREDIT AGREEMENT Page 72
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.
9.04 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.
9.05 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.
9.06 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 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 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 10.04 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.
CREDIT AGREEMENT Page 73
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 arrangements 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.
9.07 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.
9.08 Administrative Agent May File Proofs of Claim. In case of the
pendency of any proceeding under any Debtor Relief Law or any 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
CREDIT AGREEMENT Page 74
(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 2.03(i) and (j), 2.09 and 10.04) 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 2.09
and 10.04.
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 the L/C
Issuer to authorize the Administrative Agent to vote in respect of the claim of
any Lender or the L/C Issuer in any such proceeding.
ARTICLE X
MISCELLANEOUS
-------------
10.01 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 8.02) without
the written consent of such Lender;
(c) postpone any date fixed by this Agreement or any other
Loan Document for any payment or mandatory prepayment 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;
CREDIT AGREEMENT Page 75
(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 10.01) any fees or other amounts payable
hereunder or under any other Loan Document, or change the manner of
computation of any financial ratio (including any change in any
applicable defined term) used in determining the Applicable Rate that
would result in a reduction of any interest rate on any Loan or any fee
payable hereunder 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) 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 2.13 or Section 8.03 in a manner that would
alter the pro rata sharing of payments required thereby without the
written consent of each Lender; or
(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;
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; and (iv)
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.
10.02 Notices; Effectiveness; Electronic Communication.
(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:
CREDIT AGREEMENT Page 76
(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 10.02; 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) The Platform. THE PLATFORM IS PROVIDED "AS IS" AND "AS
AVAILABLE." THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE
ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF
THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR
OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND,
EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF
THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS
MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR
THE PLATFORM. In no event shall the Administrative Agent or any of its
Related Parties (collectively, the "Agent Parties") have any liability
to the Borrower, any Lender, the L/C Issuer or any other Person for
losses, claims, damages, liabilities or expenses of any kind (whether
in tort, contract or otherwise) arising out of the Borrower's or the
Administrative Agent's transmission of Borrower Materials through the
Internet, except to the extent that such losses, claims, damages,
liabilities or expenses are determined by a court of competent
jurisdiction by a final and nonappealable judgment to have resulted
from the gross negligence or willful misconduct of such Agent Party;
provided, however, that in no event shall any Agent Party have any
liability to the Borrower, any Lender, the L/C Issuer or any other
Person for indirect, special, incidental, consequential or punitive
damages (as opposed to direct or actual damages).
CREDIT AGREEMENT Page 77
(d) 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 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. In addition, each Lender agrees to notify the Administrative
Agent from time to time to ensure that the Administrative Agent has on
record (i) an effective address, contact name, telephone number,
telecopier number and electronic mail address to which notices and
other communications may be sent and (ii) accurate wire instructions
for such Lender. Furthermore, each Public Lender agrees to cause at
least one individual at or on behalf of such Public Lender to at all
times have selected the "Private Side Information" or similar
designation on the content declaration screen of the Platform in order
to enable such Public Lender or its delegate, in accordance with such
Public Lender's compliance procedures and applicable Law, including
United States Federal and state securities Laws, to make reference to
Borrower Materials that are not made available through the "Public Side
Information" portion of the Platform and that may contain material
non-public information with respect to the Borrower or its securities
for purposes of United States Federal or state securities laws.
(e) 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
Committed 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.
CREDIT AGREEMENT Page 78
10.03 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.
10.04 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), and shall pay all fees and time charges for
attorneys who may be employees of 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")
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, the consummation of the transactions contemplated hereby or
thereby, or, in the case of the Administrative Agent (and any sub-agent
thereof) and its Related Parties only, the administration of this
Agreement and the other Loan Documents, (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, IN ALL
CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF
THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE;
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.
CREDIT AGREEMENT Page 79
(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 2.12(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 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
to such unintended recipients by such Indemnitee 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 other than for
direct or actual damages resulting from the gross negligence or willful
misconduct of such Indemnitee as determined by a final and
nonappealable judgment of a court of competent jurisdiction.
CREDIT AGREEMENT Page 80
(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, the L/C Issuer and the Swing
Line Lender, the replacement of any Lender, the termination of the
Aggregate Commitments and the repayment, satisfaction or discharge of
all the other Obligations.
10.05 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.
10.06 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 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
(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, 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.
CREDIT AGREEMENT Page 81
(b) Assignments by Lenders. Any Lender may at any time assign
to one or more assignees all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Commitment and
the Loans (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 any such assignment shall be subject to the
following conditions:
(i) Minimum Amounts.
(A) 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, an Affiliate of a
Lender or an Approved Fund, no minimum amount need be
assigned; and
(B) in any case not described in subsection
(b)(i)(A) of this Section, the aggregate amount of
the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the 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 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); provided, however,
that concurrent assignments to members of an Assignee
Group and concurrent assignments from members of an
Assignee Group to a single Eligible Assignee (or to
an Eligible Assignee and members of its Assignee
Group) will be treated as a single assignment for
purposes of determining whether such minimum amount
has been met.
(ii) Proportionate Amounts. 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 Loans or the Commitment
assigned, except that this clause (ii) shall not apply to the
Swing Line Lender's rights and obligations in respect of Swing
Line Loans.
(iii) Required Consents. No consent shall be required
for any assignment except to the extent required by subsection
(b)(i)(B) of this Section and, in addition:
(A) the consent of the Borrower (such consent
not to be unreasonably withheld or delayed) shall be
required unless (1) an Event of Default has occurred
and is continuing at the time of such assignment or
(2) such assignment is to a Lender, an Affiliate of a
Lender or an Approved Fund;
CREDIT AGREEMENT Page 82
(B) the consent of the Administrative Agent
(such consent not to be unreasonably withheld or
delayed) shall be required if such assignment is to a
Person that is not a Lender, an Affiliate of such
Lender or an Approved Fund with respect to such
Lender; and
(C) the consent of the L/C Issuer (such consent
not to be unreasonably withheld or delayed) shall be
required for any assignment that increases the
obligation of the assignee to participate in exposure
under one or more Letters of Credit (whether or not
then outstanding).
(iv) Assignment and Assumption. The parties to each
assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing
and recordation fee in the amount of $3,500; provided,
however, that the Administrative Agent may, in its sole
discretion, elect to waive such processing and recordation fee
in the case of any assignment. The assignee, if it is not a
Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire.
(v) No Assignment to Borrower. No such assignment
shall be made to the Borrower or any of the Borrower's
Affiliates or Subsidiaries.
(vi) No Assignment to Natural Persons. No such
assignment shall be made to a natural person.
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
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 10.04 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 the Borrower and any
Lender, at any reasonable time and from time to time upon reasonable
prior notice.
CREDIT AGREEMENT Page 83
(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.
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
10.01 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, 3.04 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 10.08 as
though it were a Lender, provided such Participant agrees to be subject
to Section 2.13 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.
CREDIT AGREEMENT Page 84
(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) 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, powers, privileges and
duties 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 Committed Loans or fund
risk participations in Unreimbursed Amounts pursuant to Section
2.03(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 Committed Loans or fund risk participations
in outstanding Swing Line Loans pursuant to Section 2.04(c). Upon the
appointment of a successor L/C Issuer and/or Swing Line Lender, (a)
such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring L/C Issuer or
Swing Line Lender, as the case may be, and (b) 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 arrangements satisfactory to Bank of America to effectively
assume the obligations of Bank of America with respect to such Letters
of Credit.
10.07 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 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 any Eligible
Assignee invited to be a Lender pursuant to Section 2.14(c) 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.
CREDIT AGREEMENT Page 85
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.
Each of the Administrative Agent, the Lenders and the L/C Issuer
acknowledges that (a) the Information may include material non-public
information concerning the Borrower or a Subsidiary, as the case may be, (b) it
has developed compliance procedures regarding the use of material non-public
information and (c) it will handle such material non-public information in
accordance with applicable Law, including United States Federal and state
securities Laws.
10.08 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 against any and all of the obligations of
the Borrower 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 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. Notwithstanding the provisions of
this Section 10.08, if at any time any Lender, the L/C Issuer or any of their
respective Affiliates maintains one or more deposit accounts for the Borrower or
any other Loan Party into which Medicare and/or Medicaid receivables are
deposited, such Person shall waive the right of setoff set forth herein.
CREDIT AGREEMENT Page 86
10.09 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.
10.10 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.
10.11 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.
10.12 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.
CREDIT AGREEMENT Page 87
10.13 Replacement of Lenders. If any Lender requests compensation under
Section 3.04, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 3.01, or if any Lender is a Defaulting Lender, then the Borrower may, at
its sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in, and consents
required by, Section 10.06), 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 10.06(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; and
(d) such assignment does not conflict with applicable Laws.
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.
10.14 Governing Law; Jurisdiction; Etc.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF TEXAS.
(b) SUBMISSION TO JURISDICTION. THE BORROWER IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF TEXAS SITTING
IN DALLAS COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE
NORTHERN DISTRICT OF TEXAS, 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 TEXAS 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 ITS
PROPERTIES IN THE COURTS OF ANY JURISDICTION.
CREDIT AGREEMENT Page 88
(c) WAIVER OF VENUE. THE BORROWER 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
10.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY
HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE
LAW.
10.15 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 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.
CREDIT AGREEMENT Page 89
10.16 No Advisory or Fiduciary Responsibility. In connection with all
aspects of each transaction contemplated hereby (including in connection with
any amendment, waiver or other modification hereof or of any other Loan
Document), the Borrower acknowledges and agrees, and acknowledges its
Affiliates' understanding, that: (i) (A) the arranging and other services
regarding this Agreement provided by the Administrative Agent, are arm's-length
commercial transactions between the Borrower and its Affiliates, on the one
hand, and the Administrative Agent, on the other hand, (B) the Borrower has
consulted its own legal, accounting, regulatory and tax advisors to the extent
it has deemed appropriate, and (C) the Borrower is capable of evaluating, and
understands and accepts, the terms, risks and conditions of the transactions
contemplated hereby and by the other Loan Documents; (ii) (A) the Administrative
Agent is and has been acting solely as a principal and, except as expressly
agreed in writing by the relevant parties, has not been, is not, and will not be
acting as an advisor, agent or fiduciary for the Borrower or any of its
Affiliates, or any other Person and (B) neither the Administrative Agent has any
obligation to the Borrower or any of its Affiliates with respect to the
transactions contemplated hereby except those obligations expressly set forth
herein and in the other Loan Documents; and (iii) the Administrative Agent and
its Affiliates may be engaged in a broad range of transactions that involve
interests that differ from those of the Borrower and its Affiliates, and the
Administrative Agent has no obligation to disclose any of such interests to the
Borrower or its Affiliates. To the fullest extent permitted by law, the Borrower
hereby waives and releases any claims that it may have against the
Administrative Agent with respect to any breach or alleged breach of agency or
fiduciary duty in connection with any aspect of any transaction contemplated
hereby.
10.17 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.
10.18 ENTIRE AGREEMENT. This Agreement and the other Loan Documents
represent the final agreement AMONG the parties and may not be contradicted by
evidence of prior, contemporaneous, or subsequent oral agreements of the
parties. There are no unwritten oral agreements AMONG the parties.
[Remainder of Page Intentionally Left Blank.
Signature Pages to Follow.]
CREDIT AGREEMENT Page 90
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
U.S. PHYSICAL THERAPY, INC.
By: /s/ Lawrance W. McAfee
-------------------------------
Lawrance W. McAfee
Chief Financial Officer
CREDIT AGREEMENT Signature Page 1
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ Daniel Penkar
-------------------------------
Daniel Penkar
Senior Vice President
CREDIT AGREEMENT Signature Page 2
BANK OF AMERICA, N.A.,
as a Lender, L/C Issuer And
Swing Line Lender
By: /s/ Daniel Penkar
-------------------------------
Daniel Penkar
Senior Vice President
CREDIT AGREEMENT Signature Page 3