Exhibit 10.1
EXECUTION COPY
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CREDIT AGREEMENT
dated as of
March 10, 2006
among
HEALTHSOUTH CORPORATION,
The Lenders Party Hereto,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
and Collateral Agent,
CITICORP NORTH AMERICA, INC.
and
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
as Co-Syndication Agents,
and
DEUTSCHE BANK SECURITIES INC.,
GOLDMAN SACHS CREDIT PARTNERS L.P.,
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Co-Documentation Agents
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J.P. MORGAN SECURITIES INC. CITIGROUP
GLOBAL MARKETS INC. MERRILL LYNCH &
CO.,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
as Co-Lead Arrangers and Joint Bookrunners
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
SECTION 1.01. Defined Terms................................................1
SECTION 1.02. Classification of Loans and Borrowings......................40
SECTION 1.03. Terms Generally.............................................40
SECTION 1.04. Accounting Terms; GAAP......................................41
SECTION 1.05. Senior Debt Status..........................................41
ARTICLE II
The Credits
SECTION 2.01. Term Loans; Revolving Commitments...........................41
SECTION 2.02. Loans and Borrowings........................................42
SECTION 2.03. Requests for Revolving Borrowings...........................43
SECTION 2.04. Swingline Loans.............................................43
SECTION 2.05. Letters of Credit...........................................44
SECTION 2.06. Funding of Borrowings.......................................55
SECTION 2.07. Interest Elections..........................................56
SECTION 2.08. Termination and Reduction of Commitments....................57
SECTION 2.09. Repayment of Loans; Evidence of Debt........................58
SECTION 2.10. Amortization and Repayment of Term Loans....................58
SECTION 2.11. Prepayment of Loans; Cash Collateralization of
Letters of Credit...........................................59
SECTION 2.12. Fees........................................................61
SECTION 2.13. Interest....................................................62
SECTION 2.14. Alternate Rate of Interest..................................63
SECTION 2.15. Increased Costs.............................................64
SECTION 2.16. Break Funding Payments......................................65
SECTION 2.17. Taxes.......................................................65
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Setoffs..67
SECTION 2.19. Mitigation Obligations; Replacement of Lenders..............69
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization and Authority..................................70
SECTION 3.02. Execution; No Conflicts.....................................70
SECTION 3.03. Solvency....................................................71
SECTION 3.04. Subsidiaries................................................71
SECTION 3.05. Ownership Interests.........................................72
SECTION 3.06. Financial Condition.........................................72
SECTION 3.07. Title to Properties.........................................73
SECTION 3.08. Taxes.......................................................73
SECTION 3.09. Other Agreements............................................73
SECTION 3.10. Litigation..................................................74
SECTION 3.11. Margin Stock................................................74
SECTION 3.12. Investment and Holding Company Status.......................75
SECTION 3.13. Intellectual Property.......................................75
SECTION 3.14. No Untrue Statement.........................................75
SECTION 3.15. No Consents, Etc............................................75
SECTION 3.16. ERISA.......................................................76
SECTION 3.17. No Default..................................................76
SECTION 3.18. Environmental Matters.......................................76
SECTION 3.19. Employment Matters..........................................76
SECTION 3.20. Reimbursement from Third Party Payors.......................77
SECTION 3.21. Compliance with Laws........................................77
SECTION 3.22. Insurance...................................................77
SECTION 3.23. Collateral Matters..........................................77
ARTICLE IV
Conditions
SECTION 4.01. Effective Date..............................................78
SECTION 4.02. Each Credit Event...........................................81
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements, Reports, Etc..........................82
SECTION 5.02. Maintain Properties.........................................85
SECTION 5.03. Existence, Qualification, Etc...............................85
SECTION 5.04. Regulations and Obligations.................................86
SECTION 5.05. Insurance...................................................86
SECTION 5.06. True Books..................................................86
SECTION 5.07. Right of Inspection.........................................86
SECTION 5.08. Observe All Laws............................................87
SECTION 5.09. Governmental Licenses.......................................87
SECTION 5.10. Notice of Material Events...................................87
SECTION 5.11. Suits or Other Proceedings..................................87
SECTION 5.12. Notice of Discharge of Hazardous Material or Environmental
Complaint...................................................87
SECTION 5.13. Information Regarding Collateral............................88
SECTION 5.14. Further Assurances..........................................88
SECTION 5.15. Ratings.....................................................89
SECTION 5.16. Hedging Arrangements........................................89
ARTICLE VI
Negative Covenants
SECTION 6.01. Financial Covenants.........................................90
SECTION 6.02. Investments.................................................91
SECTION 6.03. Indebtedness; Subsidiary Preferred Stock....................92
SECTION 6.04. Disposition of Assets.......................................93
SECTION 6.05. Fundamental Changes.........................................94
SECTION 6.06. Liens.......................................................95
SECTION 6.07. Restrictive Agreements......................................95
SECTION 6.08. Acquisitions................................................96
SECTION 6.09. Restricted Payments; Certain Prepayments of Indebtedness....97
SECTION 6.10. Compliance with ERISA.......................................99
SECTION 6.11. Fiscal Year................................................100
SECTION 6.12. Dissolution, etc...........................................100
SECTION 6.13. Transactions with Affiliates...............................100
SECTION 6.14. Sale and Leaseback Transactions............................100
SECTION 6.15. Swap Agreements............................................101
SECTION 6.16. Management Contracts.......................................101
SECTION 6.17. Use of Proceeds............................................101
SECTION 6.18. Amendment of Material Agreements...........................101
SECTION 6.19. Capital Expenditures.......................................102
ARTICLE VII
Events of Default
SECTION 7.01. Events of Default..........................................102
ARTICLE VIII
The Agents
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices....................................................108
SECTION 9.02. Waivers; Amendments........................................109
SECTION 9.03. Expenses; Indemnity; Damage Waiver.........................110
SECTION 9.04. Successors and Assigns.....................................112
SECTION 9.05. Survival...................................................116
SECTION 9.06. Counterparts; Integration; Effectiveness...................116
SECTION 9.07. Severability...............................................117
SECTION 9.08. Right of Setoff............................................117
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process.117
SECTION 9.10. WAIVER OF JURY TRIAL.......................................118
SECTION 9.11. Headings...................................................118
SECTION 9.12. Confidentiality............................................118
SECTION 9.13. Additional Agents..........................................120
SECTION 9.14. Release of Subsidiary Loan Parties and Collateral..........120
SECTION 9.15. Patriot Act................................................121
SCHEDULES:
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Schedule 1.01A -- Existing Indebtedness
Schedule 1.01B -- Existing Note Indentures
Schedule 1.01C - Specified Properties
Schedule 2.01 -- Commitments and Term Loan Amounts
Schedule 2.05 -- Existing Letters of Credit
Schedule 3.04 -- Subsidiaries
Schedule 3.05 -- Ownership Interests
Schedule 3.06 -- Financial Condition
Schedule 3.09 -- Other Agreements
Schedule 3.10 -- Litigation
Schedule 3.13 -- Intellectual Property
Schedule 3.18 -- Environmental Matters
Schedule 3.19 -- Employment Matters
Schedule 3.21 -- Compliance with Laws
Schedule 5.14 -- Specified Deposit Accounts
Schedule 6.02 -- Investments
Schedule 6.06 -- Liens
Schedule 6.07 -- Restrictive Agreements
EXHIBITS:
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Exhibit A -- Form of Assignment and Assumption
Exhibit B -- Form of Perfection Certificate
Exhibit C -- Form of Collateral and Guarantee Agreement
Exhibit D -- Form of Monthly Financial Package
Exhibit E -- Form of Opinion of Borrower's Outside Counsel
CREDIT AGREEMENT, dated as of
March 10, 2006 (this "Agreement"),
among HEALTHSOUTH CORPORATION; the
LENDERS party hereto; JPMORGAN CHASE
BANK, N.A., as Administrative Agent
and Collateral Agent; CITICORP NORTH
AMERICA, INC. and MERRILL LYNCH,
PIERCE, FENNER & SMITH INCORPORATED,
as Co-Syndication Agents; and DEUTSCHE
BANK SECURITIES INC., GOLDMAN SACHS
CREDIT PARTNERS L.P. and WACHOVIA
BANK, NATIONAL ASSOCIATION, as
Co-Documentation Agents.
The Borrower (such term and each other capitalized term used and not
otherwise defined herein having the meaning assigned to it in Article I) has
requested the Lenders to extend credit in the form of (a) Term Loans in an
aggregate principal amount not in excess of $2,050,000,000 and (b) Revolving
Loans, Swingline Loans and Letters of Credit in an aggregate principal or
stated amount at any time outstanding not in excess of $500,000,000. The
proceeds of the Term Loans and any Revolving Loans made on the Effective Date
will be used, together with the proceeds of the Interim Loans and the
Preferred Stock Offering, (i) to repurchase Existing Notes to the extent
tendered pursuant to the Note Tender Offer or other transaction or series of
transactions, (ii) to repay all outstanding loans and other amounts due under
the Existing Senior Secured Credit Agreement, the Existing Senior Subordinated
Credit Agreement and the Existing Term Loan Agreement and (iii) to pay fees
and expenses related to the foregoing. The proceeds of the Revolving Loans
made after the Effective Date will be used for general corporate purposes of
the Borrower and the Subsidiaries, including the repayment or repurchase, at
or prior to maturity, of Existing Notes not acquired pursuant to the Note
Tender Offer; provided that proceeds of Revolving Loans will not be used to
repay Term Loans. Letters of Credit will be used in the ordinary course of
business of the Borrower and the Subsidiaries to secure workers' compensation
and other insurance coverages and for general corporate purposes of the
Borrower and the Subsidiaries.
The Lenders are willing to extend such credit to the Borrower and the
Issuing Banks are willing to issue Letters of Credit for the account of the
Borrower and the Subsidiaries on the terms and subject to the conditions set
forth herein. Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
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SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"Acceptable Appraiser" means an investment banking firm or other
valuation consultant mutually acceptable to the Borrower and the
Administrative Agent and not an Affiliate of the Borrower or the
Administrative Agent; provided, however, in the event the Borrower and the
Administrative Agent are unable to agree on an Acceptable Appraiser, then each
of the Borrower and the Administrative Agent shall select their own investment
banking firm or valuation consultant, and such investment banking firms or
other valuation consultants shall select an Acceptable Appraiser; provided,
further, that in the event either the Borrower or the Administrative Agent do
not make such selection at least 15 days prior to the date the applicable
financial statements are due pursuant to Section 5.01(a), 5.01(b)(ii) or
5.01(b)(iii), the selection by the other Person shall be the Acceptable
Appraiser.
"Acquired Indebtedness" means (i) with respect to any Person that
becomes a Subsidiary after the Effective Date, Indebtedness of such Person and
its subsidiaries existing at the time such Person becomes a Subsidiary and
(ii) with respect to the Borrower or any Subsidiary, any Indebtedness assumed
by the Borrower or any Subsidiary in connection with the acquisition of an
asset from another Person, in each case to the extent such Indebtedness was
not created in contemplation of such Person becoming a Subsidiary or such
acquisition.
"Adjusted Consolidated EBITDA" of any Person means Consolidated Net
Income of such Person plus the sum for such Person of (a) Consolidated Income
Tax Expense, (b) Consolidated Depreciation Expense, (c) Consolidated
Amortization Expense, (d) Consolidated Interest Expense, (e) all other unusual
non-cash items or non-recurring non-cash items reducing Consolidated Net
Income of such Person and its subsidiaries, determined on a consolidated basis
in accordance with GAAP; provided that cash expenditures, to the extent made
in respect of items to which the charges referred to in this clause (e)
relate, in an aggregate amount in excess of $10,000,000 for any period of four
consecutive fiscal quarters shall be deducted in determining Adjusted
Consolidated EBITDA for the period during which such expenditures are made,
(f) any restructuring charges in respect of legal fees associated with the
government, class-action and shareholder derivative litigation disclosed on
Schedule 3.10, (g) fees, costs and expenses related to the Transactions and
the Senior Notes Offering, (h) any losses from discontinued operations and
closed locations, (i) costs and expenses related to the settlement of the
Shareholder Litigation and (j) charges in respect of professional fees for
reconstruction and restatement of financial statements (including matters
related to internal controls and documentation) that relate to the Fiscal
Years ended December 31, 2000, 2001, 2002, 2003, 2004 and 2005 and the fiscal
quarters occurring during such Fiscal Years, in each case determined on a
consolidated basis in accordance with GAAP, and less all unusual non-cash
items or non-recurring non-cash items to the extent increasing Consolidated
Net Income of such Person and its subsidiaries, determined on a consolidated
basis in accordance with GAAP, in each case, for such Person's prior four full
fiscal quarters for which financial results have been reported immediately
prior to the determination date.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means JPMorgan Chase Bank, N.A., in its
capacity as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or
is Controlled by or is under common Control with the Person specified.
"Affiliate Transaction" has the meaning assigned to such term in
Section 6.13.
"Agent/Arranger Parties" has the meaning assigned to such term in
Section 9.03.
"Agents" means the Administrative Agent and the Collateral Agent.
"Alternate Base Rate" means, for any day, a rate per annum equal to
the greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of
such change in the Prime Rate or the Federal Funds Effective Rate,
respectively.
"Applicable Rate" means, for any day, (a) with respect to any Term
Loan and, prior to the Leverage Pricing Date, with respect to any Revolving
Loan, (i) if the Borrower shall have received Initial Corporate Credit Ratings
of B+ or better by S&P and B1 or better by Moody's, in each case with at least
a stable outlook ("Class 1 Status"), 2.50% per annum in the case of any
Eurodollar Loan and 1.50% per annum in the case of any ABR Loan, (ii) if the
Borrower shall not have achieved Class 1 Status, but shall have received
Initial Corporate Credit Ratings of B or better by S&P and B2 or better by
Moody's, in each case with at least a stable outlook ("Class 2 Status"), 2.75%
per annum in the case of any Eurodollar Loan and 1.75% per annum in the case
of any ABR Loan, and (iii) (A) if the Borrower shall have received Initial
Corporate Credit Ratings from both S&P and Moody's and shall not have achieved
Class 1 Status or Class 2 Status ("Class 3 Status", each of Class 1 Status,
Class 2 Status and Class 3 Status being called a "Credit Status") or (B) if
and for so long as the Borrower shall not have received an Initial Corporate
Credit Rating from either or both of S&P and Moody's, 3.25% per annum in the
case of any Eurodollar Loan and 2.25% per annum in the case of any ABR Loan,
(b) prior to the Leverage Pricing Date, with respect to commitment fees in
respect of Revolving Commitments, 0.50% per annum and (c) on and after the
Leverage Pricing Date with respect to any Revolving Loan and Revolving
Commitment, the applicable rate per annum set forth below under the caption
"ABR Spread", "Eurodollar Spread" or "Commitment Fee", as the case may be,
based upon the Borrower's Credit Status and on the Leverage Ratio as of the
most recent determination date (it being agreed that if and for so long as the
Borrower shall not have received an Initial Corporate Credit Rating from
either or both of S&P and Moody's it shall, for purposes of the table below,
be deemed to have Class 3 Status and the Commitment Fee shall not be less than
..50% per annum):
Class 1 Status Class 2 Status Class 3 Status
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ABR Eurodollar ABR Eurodollar ABR Eurodollar Commitment Fee
--- ---------- --- ---------- --- ---------- --------------
Leverage Ratio: Spread Spread Spread Spread Spread Spread
--------------- ------ ------ ------ ------ ------ ------
Category 1 150 250 175 275 225 325 50
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>5.0 to 1
Category 2 125 225 150 250 200 300 50
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Less than 5.0 and greater than or equal to 4.0 to 1
Category 3 100 200 125 225 175 275 50
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Less than 4.0 and greater than or equal to 3.0 to 1
Category 4 75 175 100 200 150 250 37.5
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<3.0 to 1
Except as set forth below, the Leverage Ratio used on any date to determine the
Applicable Rate shall be that in effect at the end of the most recent fiscal
quarter ended prior to such date for which financial statements have been
delivered pursuant to Section 5.01; provided that if any annual or quarterly
financial statements required to have been delivered under Section 5.01 shall
not have been delivered, the Applicable Rate shall, until such financial
statements shall have been delivered, be determined by reference to Category 1
in the above Table. For the avoidance of doubt, once the Borrower achieves a
Credit Status, such Credit Status shall apply to the Borrower for the term of
this Agreement, regardless of any corporate credit ratings received by the
Borrower after receipt of the Initial Corporate Credit Ratings.
"Applicable Revolving Percentage" means, with respect to any
Revolving Lender, the percentage of the total Revolving Commitments
represented by such Lender's Revolving Commitment. If the Revolving
Commitments have terminated or expired, the Applicable Revolving Percentages
of the Revolving Lenders shall be determined based upon their Revolving
Exposures or, if there shall be no Revolving Exposures, upon their Revolving
Commitments or Revolving Exposures, as the case may be, most recently in
effect, giving effect to any assignments.
"Applicable Tranche A LC Percentage" means, with respect to any
Tranche A LC Lender, the percentage of the total Tranche A Deposits
represented by such Tranche A LC Lender's Tranche A Deposit. If the Tranche A
Deposits have been returned to the Tranche A LC Lenders or applied to
reimburse Tranche A LC Disbursements, the Applicable Tranche A LC Percentages
of the Tranche A LC Lenders shall be determined based upon the Tranche A
Deposits most recently in effect, giving effect to any assignments.
"Approved Fund" has the meaning assigned to such term in Section
9.04(b).
"Asset Sale" with respect to any Person, means the sale, conveyance
or other disposition (including, by merger or consolidation, and whether by
operation of law or otherwise) of any of that Person's assets (including, the
sale or other disposition of Equity Interests of any subsidiary of such
Person, whether by such Person or by such subsidiary), whether owned on the
Effective Date or subsequently acquired, in one transaction or a series of
related transactions, in which such Person and/or its subsidiaries shall sell,
lease, convey or otherwise dispose of: (i) all or substantially all of the
Equity Interests of any of such Person's subsidiaries; (ii) assets which
constitute all or substantially all of any division or line of business of
such Person or any of its subsidiaries; (iii) accounts receivable of such
Person; or (iv) any other assets of or Equity Interests held by such Person or
any of its subsidiaries other than inventory and supplies in the ordinary
course of business; provided, however, that the following shall not constitute
Asset Sales: (a) transactions between the Borrower and any of its Subsidiaries
or among such Subsidiaries; (b) any Restricted Payment permitted by Section
6.09 or any Permitted Investment; (c) the creation of any Lien permitted by
Section 6.06; (d) sales of damaged, worn-out, or obsolete equipment or assets
that, in the Borrower's reasonable judgment, are no longer either used or
useful in the business of the Borrower or any Subsidiary; (e) any Birmingham
Hospital Transaction; or (f) sales of other assets so long as the aggregate
consideration received in any such sale or series of related sales does not
exceed $1,000,000.
"Assignment and Assumption" means an assignment and assumption
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04), and accepted by the Administrative
Agent, in the form of Exhibit A or any other form approved by the
Administrative Agent.
"Attributable Indebtedness" when used with respect to any Sale and
Leaseback Transaction means, as at the time of determination, the present
value (discounted at a rate equivalent to the interest rate implicit in the
lease, compounded on a semiannual basis) of the total obligations of the
lessee for rental payments, after excluding all amounts required to be paid on
account of maintenance and repairs, insurance, taxes, utilities and other
similar expenses payable by the lessee pursuant to the terms of the lease,
during the remaining term of the lease included in any such Sale and Leaseback
Transaction or until the earliest date on which the lessee may terminate such
lease without penalty or upon payment of a penalty (in which case the rental
payments shall include such penalty); provided, that the Attributable
Indebtedness with respect to a Sale and Leaseback Transaction shall be no less
than the fair market value of the property subject to such Sale and Leaseback
Transaction; and provided; further; that, with respect to the Borrower or any
Subsidiary, the Attributable Indebtedness incurred in connection with the
Digital Hospital Transaction shall be limited to Indebtedness incurred on a
recourse basis by the Borrower or a Subsidiary (other than a joint venture
formed for the purpose of owning, running, operating or managing the Digital
Hospital) or Indebtedness with respect to which the Borrower or any Subsidiary
is otherwise liable on a recourse basis.
"Benchmark LIBO Rate" has the meaning assigned to such term in
Section 2.05(r).
"Birmingham Hospital Transactions" means, collectively, the sale of
the Downtown Birmingham Medical Center and, to the extent required in
connection therewith, the acquisition of, and the buyout of leases with
respect to, such property and Sale and Leaseback Transactions with Healthcare
Realty Trust Incorporated and HR Acquisition of Alabama, Inc., in each case to
the extent consummated within six months after the Effective Date.
"Board" means the Board of Governors of the Federal Reserve System of
the United States of America.
"Board of Directors" means, with respect to any Person, the board of
directors or similar governing body of such Person or any duly authorized
committee thereof.
"Borrower" means HealthSouth Corporation, a Delaware corporation.
"Borrowing" means Loans of the same Class and Type made, converted or
continued on the same date and, in the case of Eurodollar Loans, as to which a
single Interest Period is in effect.
"Borrowing Request" means a request by the Borrower for a Borrowing
in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by
law to remain closed; provided that, when used in connection with a Eurodollar
Loan, the term "Business Day" shall also exclude any day on which banks are
not open for dealings in dollar deposits in the London interbank market.
"Capital Expenditures" means, for any period, without duplication,
(a) the additions to property, plant and equipment and other capital
expenditures of the Borrower and the Subsidiaries that are (or would be) set
forth in a consolidated statement of cash flows of the Borrower for such
period prepared in accordance with GAAP and (b) Capitalized Lease Obligations
incurred by the Borrower and the Subsidiaries during such period.
"Capitalized Lease Obligations" of any Person means the obligations
of such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the Effective Date, (b) any change in any law, rule or regulation or in
the interpretation or application thereof by any Governmental Authority after
the Effective Date or (c) compliance by any Lender or any Issuing Bank (or,
for purposes of Section 2.15(b), by any lending office of such Lender or by
such Lender's or such Issuing Bank's holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of
any Governmental Authority made or issued after the Effective Date.
"Change of Control" means (a) the acquisition of ownership, directly
or indirectly, beneficially or of record, by any person or group (within the
meaning of the Exchange Act), of Equity Interests representing more than 35%
of the aggregate ordinary voting power represented by the issued and
outstanding Equity Interests of the Borrower; (b) if, during any period of up
to 24 consecutive months, commencing on the Effective Date, individuals who at
the beginning of such period (together with any new directors whose election
or whose nomination for election by the stockholders was approved by a vote of
66- ?% of the directors then still in office who were either directors at the
beginning of such period or whose election or nomination was previously so
approved) were directors of the Borrower shall cease for any reason (other
than the death, disability or retirement of an officer of the Borrower that is
serving as a director at such time so long as another officer of the Borrower
replaces such Person as a director) to constitute a majority of the Board of
Directors of the Borrower; (c) the acquisition of direct or indirect Control
of the Borrower by any Person or group; or (d) any other event that
constitutes a "change of control" or similar event, however denominated, under
the Senior Notes Indenture or any other agreement or instrument evidencing or
governing any Material Indebtedness or Preferred Stock of the Borrower issued
in the Preferred Stock Offering.
"Class" refers (a) when used in reference to any Loan or Borrowing,
to whether such Loan, or the Loans comprising such Borrowing, are Term Loans
or Revolving Loans and (b) when used in reference to any Commitment, to
whether such Commitment is a Term Commitment, a Revolving Commitment or a
Tranche A LC Commitment.
"Class 1 Status" has the meaning assigned to such term in the
definition of "Applicable Rate".
"Class 2 Status" has the meaning assigned to such term in the
definition of "Applicable Rate".
"Class 3 Status" has the meaning assigned to such term in the
definition of "Applicable Rate".
"Class A Excluded Equity Interest" has the meaning assigned to such
term in the definition of "Excluded Equity Interest".
"Class A Excluded Subsidiary" has the meaning assigned to such term
in the definition of "Excluded Subsidiary".
"Class B Excluded Equity Interest" has the meaning assigned to such
term in the definition of "Excluded Equity Interest".
"Class B Excluded Subsidiary" has the meaning assigned to such term
in the definition of "Excluded Subsidiary".
"Class C Excluded Subsidiary" has the meaning assigned to such term
in the definition of "Excluded Subsidiary".
"Class D Excluded Subsidiary" has the meaning assigned to such term
in the definition of "Excluded Subsidiary".
"CLO" has the meaning assigned to such term in Section 9.04(b).
"CMS" means the Centers for Medicare and Medicaid Services and any
successor thereto.
"Co-Documentation Agent" means each of Deutsche Bank Securities Inc.,
Goldman Sachs Credit Partners L.P. and Wachovia Bank, National Association, in
each case in its capacity as co-documentation agent hereunder.
"Co-Syndication Agent" means each of Citicorp North America, Inc. and
Merrill Lynch, Pierce, Fenner & Smith Incorporated, in each case in its
capacity as co-syndication agent hereunder.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral" means any and all "Collateral", as defined in any
applicable Security Document.
"Collateral Agent" shall mean JPMorgan Chase Bank, N.A., in its
capacity as collateral agent for the Lenders hereunder and under the Security
Documents.
"Collateral and Guarantee Agreement" means a Collateral and Guarantee
Agreement substantially in the form of Exhibit C hereto.
"Collateral and Guarantee Requirement" means, at any time, the
requirement that:
(a) the Administrative Agent shall have received from the
Borrower and each Subsidiary (other than the Excluded Subsidiaries)
either (i) a counterpart of the Collateral and Guarantee Agreement
duly executed and delivered on behalf of the Borrower or such
Subsidiary or (ii) in the case of any Subsidiary that becomes a Loan
Party after the Effective Date, a supplement to the Collateral and
Guarantee Agreement, in the form specified therein, duly executed and
delivered on behalf of such Subsidiary;
(b) all outstanding Equity Interests (other than Excluded
Equity Interests) of each Subsidiary or other Person owned by or on
behalf of any Loan Party shall have been pledged to the extent
required by the Collateral and Guarantee Agreement as security for
the Obligations, and the Administrative Agent shall have received
certificates or other instruments representing all such Equity
Interests, to the extent such Equity Interests are evidenced by
physical certificates or other instruments, together with stock
powers or other instruments of transfer with respect thereto endorsed
in blank;
(c) all Indebtedness of the Borrower and each Subsidiary
that is owing to any Loan Party (i) shall have been pledged under the
Collateral and Guarantee Agreement as security for the Obligations
and (ii) to the extent required by the Collateral and Guarantee
Agreement, shall be evidenced by a promissory note in form and
substance reasonably satisfactory to the Administrative Agent (except
for any such Indebtedness under the Borrower's cash management
system) and the Collateral Agent shall have received all such
promissory notes, together with undated instruments of transfer with
respect thereto endorsed in blank in accordance with the Collateral
and Guarantee Agreement;
(d) all documents and instruments, including Uniform
Commercial Code financing statements, required by law or reasonably
requested by the Collateral Agent to be filed, registered or recorded
to create the Liens intended to be created by the Collateral and
Guarantee Agreement and to perfect such Liens to the extent and with
the priority required by the Collateral and Guarantee Agreement shall
have been filed, registered or recorded or delivered to the
Collateral Agent for filing, registration or recording;
(e) the Collateral Agent shall have received (i)
counterparts of a Mortgage with respect to each Mortgaged Property,
duly executed and delivered by the record owner of such Mortgaged
Property, (ii) a policy or policies of title insurance issued by a
nationally recognized title insurance company insuring the Lien of
each such Mortgage as a valid first Lien on the Mortgaged Property
described therein, free of any other Liens except as expressly
permitted by Section 6.06, together with such endorsements,
coinsurance and reinsurance as the Collateral Agent may reasonably
request, and (iii) such existing surveys, abstracts, appraisals (to
the extent required by law), legal opinions and other documents as
the Collateral Agent may reasonably request with respect to any such
Mortgage or Mortgaged Property; and
(f) each Loan Party shall have obtained all consents and
approvals required to be obtained by it in connection with the
execution and delivery of all Security Documents to which it is a
party, the performance of its obligations thereunder and the granting
by it of the Liens thereunder.
The foregoing definition shall (i) not require the creation or perfection of
pledges of or security interests in, or the obtaining of title insurance or
surveys with respect to, particular assets if and for so long as, in the
reasonable judgment of the Collateral Agent, the cost of creating or perfecting
such pledges or security interests in such assets or obtaining title insurance
or surveys in respect of such assets shall be excessive in view of the benefits
to be obtained by the Lenders therefrom and (ii) in connection with the creation
of leasehold mortgages with respect to Mortgaged Property leases and ground
leases, only require that the Loan Parties use commercially reasonable efforts
to obtain all required consents and approvals. The Collateral Agent may grant
extensions of time for the perfection of security interests in or the obtaining
of legal opinions or title insurance with respect to particular Subsidiary Loan
Parties or assets (including extensions beyond the Effective Date for the
perfection of security interests in the assets of the Loan Parties on such date)
where it determines that perfection cannot be accomplished or legal opinions or
title insurance delivered without undue effort or expense by the time or times
required by this Agreement or the Security Documents. Without limiting the
foregoing, to the extent that, as a result of deficiencies in the corporate
records of Loan Parties other than the Borrower, the Borrower is unable to make
representations and warranties or to deliver officers' certificates or legal
opinions as to the power or authority of such Loan Parties to execute and
deliver or to perform their obligations under the Security Documents, the
Collateral Agent may suspend the effectiveness as to such Loan Parties of
representations and warranties contained herein and in the Security Documents,
and grant extensions of time for the delivery of such officers' certificates and
legal opinions, for such periods as it may deem appropriate to permit the
correction of such deficiencies.
"Combined Credit Exposure" means, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Term Loans
and its Revolving Exposure at such time.
"Commitments" means, with respect to each Lender, such Lender's Term
Commitment, Revolving Commitment and Tranche A LC Commitment.
"Common Equity" of any Person means all Equity Interests of such
Person that are generally entitled to (i) vote in the election of directors of
such Person or (ii) if such Person is not a corporation, vote or otherwise
participate in the selection of the governing body, partners, managers or
others that will control the management and policies of such Person.
"Consolidated Amortization Expense" of any Person for any period
means the amortization expense of such Person and its subsidiaries for such
period (to the extent included in the computation of Consolidated Net Income
of such Person), determined on a consolidated basis in accordance with GAAP.
"Consolidated Current Liabilities" of any Person on any date means
the consolidated current liabilities (other than the short-term portion of any
long-term Indebtedness of such Person and its subsidiaries and any short-term
Indebtedness of such Person and its subsidiaries) of such Person and its
subsidiaries, as such amount would appear on a consolidated balance sheet of
such Person and its subsidiaries prepared as of such date in accordance with
GAAP.
"Consolidated Depreciation Expense" of any Person means the
depreciation expense of such Person and its subsidiaries for such period (to
the extent included in the computation of Consolidated Net Income of such
Person), determined on a consolidated basis in accordance with GAAP.
"Consolidated EBITDA" of any Person means, with respect to any
determination date, Consolidated Net Income, plus (i) Consolidated Income Tax
Expense, plus (ii) Consolidated Depreciation Expense, plus (iii) Consolidated
Amortization Expense, plus (iv) Consolidated Interest Expense, plus (v) all
other unusual non-cash items or non-recurring non-cash items reducing
Consolidated Net Income of such Person and its subsidiaries, determined on a
consolidated basis in accordance with GAAP; provided that cash expenditures,
to the extent made in respect of items to which the charges referred to in
this clause (v) relate, in an aggregate amount in excess of $10,000,000 for
any period of four consecutive fiscal quarters shall be deducted in
determining Consolidated EBITDA for the period during which such expenditures
are made, and less all unusual non-cash items and non-recurring non-cash items
increasing Consolidated Net Income of such Person and its subsidiaries,
determined on a consolidated basis in accordance with GAAP, in each case, for
such Person's prior four full fiscal quarters for which financial results have
been reported immediately prior to the determination date.
"Consolidated Income Tax Expense" means, for any Person for any
period, the provision for taxes based on income and profits of such Person and
its subsidiaries to the extent such provision for income taxes was deducted in
computing Consolidated Net Income of such Person for such period, determined
on a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" of any Person for any period means,
without duplication, (i) the interest expense of such Person and its
subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP, plus (ii) the dividend requirements of such Person and its
subsidiaries with respect to Disqualified Stock and with respect to all other
Preferred Stock of subsidiaries of such Person (in each case whether in cash
or otherwise (except dividends payable to the Borrower or the Subsidiaries and
except for dividends payable solely in Equity Interests (other than
Disqualified Stock) of such Person or such subsidiary)) paid, accrued or
accumulated during such period.
"Consolidated Net Assets" of any Person on any date means the excess
of Consolidated Total Assets of such Person over Consolidated Current
Liabilities of such Person.
"Consolidated Net Income" of any Person for any period means the net
income (or loss) of such Person and its subsidiaries for such period
determined on a consolidated basis in accordance with GAAP; provided that
there shall be excluded from such net income (to the extent otherwise included
therein), without duplication: (i) the net income of any subsidiary of the
referent Person (other than a Wholly Owned Subsidiary) to the extent that the
declaration or payment of dividends or similar distributions by such
subsidiary of that income is not permitted by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule
or governmental regulation applicable to that subsidiary during such period;
(ii) any gain (or loss), together with any related provisions for taxes on any
such gain, realized during such period by the referent Person or any of its
subsidiaries upon (a) the acquisition of any securities, or the extinguishment
of any Indebtedness, of the referent Person or any of its subsidiaries or (b)
any Asset Sale by the referent Person or any of its subsidiaries; (iii) any
extraordinary gain or extraordinary loss, together with any related provision
for taxes or tax benefit resulting from any such extraordinary gain or
extraordinary loss, realized by the referent Person or any of its subsidiaries
during such period and (iv) in the case of a successor to such Person by
consolidation, merger or transfer of its assets, any earnings of the successor
prior to such merger, consolidation or transfer of assets.
"Consolidated Tangible Assets" of any Person as of any date means the
total assets of such Person and its subsidiaries (excluding any assets that
would be classified as "intangible assets" under GAAP) on a consolidated basis
at such date, as determined in accordance with GAAP, less all write-ups
subsequent to the Effective Date in the book value of any asset owned by such
Person or any of its subsidiaries.
"Consolidated Total Assets" of any Person as of any date means the
consolidated total assets of such Person and its subsidiaries, as such amount
would appear on a consolidated balance sheet of such Person and its
subsidiaries prepared as of such date in accordance with GAAP.
"Consolidated Total Indebtedness" of any Person as of any date means
the sum of all Indebtedness (including Capitalized Lease Obligations but
excluding (a) Indebtedness under clause (iv) of the definition thereof, (b)
contingent reimbursement obligations in respect of the undrawn amounts of
letters of credit and (c) Excluded Indebtedness to the extent that such
Excluded Indebtedness does not constitute debt under GAAP) of such Person and
its subsidiaries on a consolidated basis; provided, however, that for purposes
of calculating "Consolidated Total Indebtedness" of the Borrower, the amount
of Indebtedness evidenced by any Settlement Note shall be determined on a
present value basis by reference to a valuation of such Indebtedness obtained
by an Acceptable Appraiser.
"Consolidated Total Revenue" of any Person as of any period means the
consolidated total revenues of such Person and its subsidiaries for such
period determined on a consolidated basis in accordance with GAAP.
"Contract Provider" means any Person who provides professional health
care services under or pursuant to any contract, agreement or other consensual
arrangement with the Borrower or any Subsidiary.
"Contribution Percentage" means, with respect to any Lender, the
percentage of the aggregate Combined Credit Exposures and unused Commitments
represented by such Lender's Combined Credit Exposure and unused Commitments.
If there shall be no Combined Credit Exposures or unused Commitments, the
Contribution Percentages of the Lenders shall be determined based upon the
Combined Credit Exposures or unused Commitments of any Class or Type most
recently outstanding and in effect.
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the day-to-day management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Credit Status" has the meaning assigned to such term in the
definition of "Applicable Rate"; provided that, for the avoidance of doubt,
once the Borrower achieves a Credit Status, such Credit Status shall apply to
the Borrower for the term of this Agreement, regardless of any corporate
credit ratings received by the Borrower after receipt of the Initial Corporate
Credit Ratings.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default; provided that prior to September 30, 2006,
no Default shall be deemed to have occurred or be continuing as a result of
any failure, or asserted failure, of the Guarantees by the Immaterial
Subsidiaries under the Collateral and Guarantee Agreement to be valid and
enforceable.
"Designated Syndicated Person" means (a) any Subsidiary set forth in
Schedule 1.01D; provided that any such Subsidiary shall cease to be a
Designated Syndicated Person if a Syndication with respect thereto does not
occur within one year after the Effective Date and (b) any Subsidiary
organized after the Effective Date with respect to which the Administrative
Agent shall have received a certificate of a Financial Officer to the effect
that the Borrower intends to sell Equity Interests in such Subsidiary in a
Syndication to occur within 180 days after such Subsidiary becomes
operational; provided that any such Subsidiary shall cease to be a Designated
Syndicated Person if such Syndication does not occur within 180 days after
such Subsidiary becomes operational.
"Digital Hospital" means the 219-bed acute care hospital located on
Highway 280 in Birmingham, Alabama, and certain adjacent land.
"Digital Hospital Transaction" means any sale or other related
disposition of real property (and any improvements thereon) involving the
Digital Hospital.
"Disqualified Stock" means any Equity Interest (other than the
Preferred Stock issued and sold in the Preferred Stock Offering) that, by its
terms (or by the terms of any security into which it is convertible or for
which it is exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the option of the holder thereof, in whole or in part, on or
prior to the Term Maturity Date.
"dollars" or "$" refers to lawful money of the United States of
America.
"Domestic Subsidiary" means any Subsidiary organized under the laws
of the United States or any State thereof or the District of Columbia.
"Effective Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"Eligible Investments" of any Person means Investments of such Person
in:
(a) direct obligations of, or obligations the payment of
which is guaranteed by, the United States of America or an interest
in any trust or fund that invests solely in such obligations or
repurchase agreements, properly secured, with respect to such
obligations;
(b) direct obligations of agencies or instrumentalities of
the United States of America having a rating of A or higher by S&P or
A2 or higher by Moody's;
(c) a certificate of deposit issued by, or other
interest-bearing deposits with, a bank having its principal place of
business in the United States of America and having equity capital of
not less than $250,000,000;
(d) a certificate of deposit issued by, or other
interest-bearing deposits with, any other bank organized under the
laws of the United States of America or any state thereof, provided
that such deposit is either (i) insured by the Federal Deposit
Insurance Corporation or (ii) properly secured by such bank by
pledging direct obligations of the United States of America having a
market value of not less than the face amount of such deposits;
(e) prime commercial paper maturing within 270 days of the
acquisition thereof and, at the time of acquisition, having a rating
of A-1 or higher by S&P or P-1 or higher by Moody's; or
(f) eligible banker's acceptances, repurchase agreements and
tax-exempt municipal bonds having a maturity of less than one year,
in each case having a rating of, or that is the full recourse
obligation of a person whose senior debt is rated, A or higher by S&P
or A2 or higher by Moody's.
"Employee Benefit Plan" means any "employee benefit plan", as defined
in Section 3(3) of ERISA (other than a Multiemployer Plan), in respect of
which the Borrower, any Subsidiary or any ERISA Affiliate is (or, if such plan
were terminated, would under Section 4069 of ERISA be deemed to be) an
"employer" as defined in Section 3(5) of ERISA.
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, Release or threatened Release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means all liabilities, obligations,
damages, losses, claims, actions, suits, judgments, orders, fines, penalties,
fees, expenses and costs, (including administrative oversight costs, natural
resource damages and remediation costs), whether contingent or otherwise,
arising out of or relating to (a) compliance or non-compliance with any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any
Hazardous Materials, (d) the Release of any Hazardous Materials or (e) any
contract, agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the foregoing.
"Equity Interests" of any Person means any and all shares, rights to
purchase, warrants or options (whether or not currently exercisable),
participation or other equivalents of or interest in (however designated) the
equity (including common stock, Preferred Stock and partnership, joint venture
and limited liability company interests) of such Person (excluding any debt
securities that are convertible into, or exchangeable for, such equity).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower or any Subsidiary, is treated
as a single employer under Section 414(b) or (c) of the Code or, solely for
purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a
single employer under Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Pension
Plan (other than an event for which the 30-day notice period is waived); (b)
the existence with respect to any Pension Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA),
whether or not waived; (c) the filing pursuant to Section 412(d) of the Code
or Section 303(d) of ERISA of an application for a waiver of the minimum
funding standard with respect to any Pension Plan; (d) the incurrence by the
Borrower, a Subsidiary or any ERISA Affiliate of any liability under Title IV
of ERISA with respect to the termination of any Plan; (e) the receipt by the
Borrower, a Subsidiary or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Pension
Plan or to appoint a trustee to administer any Pension Plan; (f) the
incurrence by the Borrower, a Subsidiary or any ERISA Affiliate of any
liability with respect to the withdrawal or partial withdrawal from any
Pension Plan or Multiemployer Plan; or (g) the receipt by the Borrower, a
Subsidiary or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Borrower, a Subsidiary or any ERISA Affiliate of
any notice, concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or
in reorganization, within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in Section
7.01.
"Excess Cash Flow" means, for any Fiscal Year, the sum (without
duplication) of:
(a) Consolidated Net Income of the Borrower for such Fiscal
Year, adjusted to exclude any gains or losses attributable to
Prepayment Events; plus
(b) depreciation, amortization and other non-recurring
non-cash charges or losses deducted in determining such Consolidated
Net Income (provided that any cash payment made with respect to any
non-recurring non-cash charge that shall have been added in computing
Excess Cash Flow hereunder or under the Existing Senior Secured
Credit Agreement during a prior Fiscal Year shall be subtracted in
computing Excess Cash Flow for the Fiscal Year in which such cash
payment is made); plus
(c) the amount, if any, by which Net Working Capital of the
Borrower decreased during such Fiscal Year; minus
(d) the sum of (i) all non-recurring non-cash gains (other
than those attributable to Prepayment Events) included in determining
such Consolidated Net Income for such Fiscal Year plus (ii) the
amount, if any, by which such Net Working Capital increased during
such Fiscal Year; minus
(e) the sum of (i) Capital Expenditures for such Fiscal Year
(except to the extent attributable to the incurrence of Capitalized
Lease Obligations or otherwise financed by incurring long-term
Indebtedness) plus (ii) cash consideration paid during such Fiscal
Year to make acquisitions or other capital investments (except to the
extent financed by incurring long-term Indebtedness); minus
(f) the aggregate principal amount of long-term Indebtedness
repaid or prepaid by the Borrower and its consolidated Subsidiaries
during such Fiscal Year in compliance with Section 6.09, excluding
(i) Indebtedness in respect of Revolving Loans and Letters of Credit
or other revolving extensions of credit (except to the extent that
any repayment or prepayment of such Indebtedness is accompanied by a
permanent reduction in related commitments), (ii) Loans prepaid
pursuant to Section 2.11(c) or (d), (iii) repayments or prepayments
of long-term Indebtedness financed by incurring other long-term
Indebtedness and (iv) repayments or prepayments of Existing Notes
pursuant to the Note Tender Offer or otherwise; minus
(g) cash payments made during such Fiscal Year pursuant to
the Borrower's obligations under (i) its settlement agreements with
the SEC, the U.S. Department of Justice and the CMS relating to
Medicare billing practices and (ii) payments in respect of other
judgments and settlements of litigation described in Schedule 3.10,
in each case to the extent not deducted in arriving at Consolidated
Net Income.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"Excluded Equity Interests" means (a) voting Equity Interests in
excess of 65% of the total outstanding voting Equity Interests of any Foreign
Subsidiary (such Equity Interests being collectively called "Class A Excluded
Equity Interests") and (b) Equity Interests in each Subsidiary that is not a
Wholly Owned Subsidiary if the pledging of Equity Interests in such Subsidiary
to secure the Obligations would be prohibited by, or would trigger a
dissolution, disassociation, put, call or other similar adverse consequence,
under the terms of any shareholder agreement, partnership agreement, limited
liability company agreement or other similar agreement binding on such
Subsidiary and in effect on the date hereof (such Equity Interests being
collectively called "Class B Excluded Equity Interests").
"Excluded Indebtedness" means the guarantee by the Borrower in favor
of UBS AG, Stamford Branch with respect to UBS AG, Stamford Branch's
$22,891,449 loan to medcenterdirect.com, Inc.
"Excluded Subsidiaries" means:
(a) each Foreign Subsidiary as to which the Borrower shall
have reasonably determined, in good faith, that the guaranteeing or
securing by such Subsidiary of the Obligations (i) would violate
applicable laws or regulations of the jurisdiction in which such
Subsidiary is organized or (ii) could result in adverse tax
consequences to the Borrower (each such Subsidiary being called a
"Class A Excluded Subsidiary");
(b) each Subsidiary that is not a Wholly Owned Subsidiary as
to which the guaranteeing or securing by such Subsidiary of the
Obligations would be (i) prohibited by, or would trigger a
dissolution, disassociation, put, call or other similar adverse
consequence, under the terms of any shareholder agreement,
partnership agreement, limited liability company agreement or other
similar agreement binding on such Subsidiary or (ii) prohibited by
applicable laws with respect to duties owed by majority owners to
minority or non-controlling owners (each such Subsidiary being called
a "Class B Excluded Subsidiary");
(c) each Subsidiary that (i) is a direct or indirect owner
of Equity Interests in one or more Class B Excluded Subsidiaries,
(ii) is a subsidiary of a Subsidiary that is a direct or indirect
owner of Equity Interests in one or more Class B Excluded
Subsidiaries and (iii) does not have any asset or liability or engage
in any business or activity other than the direct or indirect
ownership of Equity Interests in Class B Excluded Subsidiaries or
other Class C Excluded Subsidiaries (each such Subsidiary being
called a "Class C Excluded Subsidiary");
(d) each Designated Syndicated Person; and
(e) other Subsidiaries designated by the Borrower from time
to time in one or more notices delivered to the Administrative Agent
to the extent and for so long as such Subsidiaries (i) do not account
for more than $1,000,000 individually or more than 5% in the
aggregate for all such Subsidiaries of the Consolidated EBITDA of the
Borrower for the most recently ended period of four consecutive
fiscal quarters for which financial statements shall have been
delivered pursuant to Section 5.01(b)(ii) or 5.01(b)(iii), or, prior
to the delivery of any such financial statements, for the period of
four consecutive fiscal quarters ended December 31, 2004, and (ii) do
not account for more than $1,000,000 individually or more than 5% in
the aggregate for all such Subsidiaries of Consolidated Total Assets
of the Borrower as of the last day of the most recent period for
which financial statements have been delivered pursuant to Section
5.01(b)(ii) or 5.01(b)(iii), or, prior to the delivery of any such
financial statements, as of December 31, 2004 (each such Subsidiary
being called a "Class D Excluded Subsidiary").
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender or Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of the Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income or net worth by the
United States of America, or by the jurisdiction under the laws of which such
recipient is organized or in which its principal office is located or, in the
case of any Lender, in which its applicable lending office is located, (b) any
branch profits taxes imposed by the United States of America or any similar
tax imposed by any other jurisdiction, (c) in the case of a Foreign Lender
(other than an assignee pursuant to a request by the Borrower under Section
2.19(b)), any withholding tax that is (i) imposed by the United States of
America on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement (or designates a new lending office),
except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new lending office (or assignment),
to receive additional amounts from the Borrower with respect to such
withholding tax pursuant to Section 2.17(a), or (ii) is attributable to such
Foreign Lender's failure to comply with Section 2.17(e) and (d) any Taxes
imposed as a result of its gross negligence or wilful misconduct.
"Existing Indebtedness" means all of the Indebtedness of the Borrower
and the Subsidiaries that is outstanding on the Effective Date, as set forth
on Schedule 1.01A.
"Existing Letters of Credit" means the letters of credit outstanding
under the Existing Senior Secured Credit Agreement on the Effective Date and
set forth on Schedule 2.05. Each Existing Letter of Credit shall, as of the
Effective Date, constitute a Revolving Letter of Credit or a Tranche A Letter
of Credit as set forth on Schedule 2.05.
"Existing Note Indentures" means each of the indentures (including
any related supplemental indentures, directors' resolutions or officers'
certificates) in effect on the Effective Date and listed on Schedule 1.01B
hereto.
"Existing Notes" means the Borrower's 7.375% Senior Notes due 2006,
8.500% Senior Notes due 2008, 7.000% Senior Notes due 2008, 10.750% Senior
Subordinated Notes due 2008, 8.375% Senior Notes due 2011 and 7.625% Senior
Notes due 2012, issued and outstanding under the Existing Note Indentures.
"Existing Senior Secured Credit Agreement" means the Amended and
Restated Credit Agreement dated as of March 21, 2005, among the Borrower, the
lenders from time to time party thereto, JPMorgan Chase Bank, N.A., as
administrative agent and collateral agent, Wachovia Bank, National
Association, as syndication agent, and Deutsche Bank Trust Company Americas,
as documentation agent.
"Existing Senior Subordinated Credit Agreement" means the Senior
Subordinated Credit Agreement, dated as of January 16, 2004, among the
Borrower, the lenders from time to time party thereto and Credit Suisse First
Boston, as administrative agent, syndication agent and arranger.
"Existing Term Loan Agreement" means the Term Loan Agreement dated as
of June 15, 2005, among the Borrower, the lenders from time to time party
thereto JPMorgan Chase Bank, N.A., as administrative agent, and Citicorp North
America, Inc., as syndication agent.
"Facility" means an inpatient or outpatient rehabilitation facility,
certified outpatient rehabilitation facility, skilled nursing facility,
specialty medical center or facility, specialty orthopedic hospital or acute
care hospital, subacute inpatient facility, transitional living center,
medical office building, outpatient surgery center or outpatient diagnostic
center, with all buildings and improvements associated therewith, that is
owned or leased, in whole or in part, by the Borrower or a Subsidiary.
"Fair Market Value" of any asset or items means the fair market value
of such asset or items as determined in good faith by the Board of Directors
of the Borrower or a Subsidiary, as applicable, and evidenced by a resolution
of such Board of Directors.
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day that is a Business Day, the average (rounded upwards,
if necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the Borrower.
"Fiscal Year" means the twelve month period ending on December 31.
"Foreign Lender" means any Lender that is organized under the laws of
a jurisdiction other than that in which the Borrower is located. For purposes
of this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" means (a) any Subsidiary that is not a Domestic
Subsidiary, (b) a Domestic Subsidiary in existence on the Effective Date that
(i) does not conduct any business or operations and (ii) has assets
substantially all of which consist of direct or indirect ownership of the
voting Equity Interests of Subsidiaries described in clause (a) of this
definition, or (c) a Domestic Subsidiary that (i) does not conduct any
business or operations and (ii) does not have any assets or liabilities other
than (A) voting Equity Interests of Subsidiaries described in clause (a) of
this definition and (B) bank accounts incidental to the ownership of voting
Equity Interests of Subsidiaries described in clause (a).
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession of the United States, as from time to time in
effect.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state
or local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having
the economic effect of guaranteeing any Indebtedness or other obligation of
any other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account
party in respect of any letter of credit or letter of guaranty issued to
support such Indebtedness or obligation; provided, that the term Guarantee
shall not include endorsements for collection or deposit in the ordinary
course of business.
"Hazardous Materials" shall mean (a) petroleum products and
byproducts, asbestos, urea formaldehyde foam insulation, polychlorinated
biphenyls, radon gas, chlorofluorocarbons and all other ozone-depleting
substances or (b) any chemical, material, substance, waste, pollutant or
contaminant that is prohibited, limited or regulated by or pursuant to any
Environmental Law.
"Immaterial Subsidiary" means a Subsidiary that does not account for
(a) at least $8,000,000 of the Consolidated EBITDA of the Borrower for the
period of four consecutive fiscal quarters ended December 31, 2004 or (b) at
least $8,000,000 of Consolidated Total Assets of the Borrower as of December
31, 2004.
"Indebtedness" of any Person as of any date means, without
duplication: (i) all indebtedness of such Person for borrowed money (whether
or not the recourse of the lender is to the whole of the assets of such Person
or only to a portion thereof); (ii) all obligations of such Person evidenced
by bonds, debentures, notes (including, in the case of the Borrower, the
Settlement Notes) or other similar instruments; (iii) all obligations of such
Person in respect of letters of credit or other similar instruments (or
reimbursement obligations with respect thereto); (iv) all obligations of such
Person with respect to any Swap Agreement; (v) all obligations of such Person
to pay the deferred and unpaid purchase price of property or services, except
trade payables and accrued expenses incurred in the ordinary course of
business; (vi) all Capitalized Lease Obligations of such Person; (vii) all
Indebtedness of others secured by a Lien on any asset of such Person, whether
or not such Indebtedness is assumed by such Person; (viii) all Indebtedness of
others Guaranteed by such Person to the extent of such Guarantee; (ix) all
Attributable Indebtedness of such Person; (x) all obligations, contingent or
otherwise, of such Person in respect of bankers' acceptances, (xi) all
obligations, contingent or otherwise, of such Person in respect of synthetic
lease facilities, (xii) all Securitization Transactions and (xiii) all
Disqualified Stock of such Person and its subsidiaries and all other Preferred
Stock of the subsidiaries of such Person valued at the greater of (a) the
voluntary or involuntary liquidation preference of such Disqualified Stock or
such Preferred Stock, as the case may be, and (b) the aggregate amount payable
upon purchase, redemption, defeasance or payment of such Disqualified Stock or
such Preferred Stock, as the case may be. The amount of Indebtedness of any
Person as of any date shall be the outstanding balance as of such date of all
unconditional obligations described above plus past due interest thereon, the
maximum liability of such Person for any such contingent obligations at such
date and, in the case of clause (vii), the amount of the Indebtedness secured.
The Indebtedness of any Person shall include the Indebtedness of any other
entity (including any partnership in which such Person is a general partner)
to the extent such Person is liable therefor as a result of such Person's
ownership interest in or other relationship with such entity, except to the
extent the terms of such Indebtedness provide that such Person is not liable
therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitee" has the meaning assigned to such term in Section
9.03(b).
"Information" has the meaning assigned to such term in Section 9.12.
"Information Memorandum" means the Confidential Information
Memorandum dated February, 2006 relating to the Borrower and the Transactions.
"Initial Corporate Credit Ratings" means the first corporate credit
ratings of the Borrower issued by S&P and Moody's, respectively, after the
Effective Date.
"Interest Election Request" means a request by the Borrower to
convert or continue a Borrowing in accordance with Section 2.07.
"Interest Coverage Ratio" means the ratio of (a) Adjusted
Consolidated EBITDA of the Borrower to (b) Consolidated Interest Expense of
the Borrower (less amortization of financing fees of the Borrower), in each
case for any period of four consecutive fiscal quarters of the Borrower.
"Interest Payment Date" means (a) with respect to any ABR Loan, the
last day of each March, June, September and December and (b) with respect to
any Eurodollar Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurodollar
Borrowing with an Interest Period of more than three months' duration, each
day prior to the last day of such Interest Period that occurs at intervals of
three months' duration after the first day of such Interest Period.
"Interest Period" means, with respect to any Eurodollar Borrowing,
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the Borrower may elect; provided, that (i) if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless, in the
case of a Eurodollar Borrowing only, such next succeeding Business Day would
fall in the next calendar month, in which case such Interest Period shall end
on the next preceding Business Day and (ii) any Interest Period pertaining to
a Eurodollar Borrowing that commences on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
last calendar month of such Interest Period) shall end on the last Business
Day of the last calendar month of such Interest Period. For purposes hereof,
the date of a Borrowing initially shall be the date on which such Borrowing is
made and thereafter shall be the effective date of the most recent conversion
or continuation of such Borrowing.
"Interim Credit Agreement" means the Interim Loan Agreement, dated as
of March 10, 2006, among the Borrower, the Subsidiaries party thereto, the
lenders party thereto, Merrill Lynch Capital Corporation, as Administrative
Agent, Citicorp North America, Inc. and JPMorgan Chase Bank, N.A., as
Co-Syndication Agents, and Deutsche Bank Securities Inc., Goldman Sachs Credit
Partners L.P. and Wachovia Bank, National Association, as Co-Documentation
Agents.
"Interim Loan Documents" has the meaning assigned to such term in the
Interim Credit Agreement.
"Interim Loans" means term loans made to the Borrower under the
Interim Credit Agreement.
"Investments" of any Person means: (i) all investments by such Person
in any other Person in the form of loans, advances or capital contributions
(excluding commission, travel and similar advances to officers and employees
made in the ordinary course of business); (ii) all Guarantees of Indebtedness
of any other Person by such Person; (iii) all purchases (or other acquisitions
for consideration) by such Person of Indebtedness, Equity Interests or other
securities of any other Person; and (iv) all other items that would be
classified as investments on a balance sheet of such Person prepared in
accordance with GAAP.
"Issuing Bank" means each of JPMorgan Chase Bank, N.A. and each other
Lender designated an Issuing Bank pursuant to Section 2.05(k), in each case in
its capacity as an issuer of Letters of Credit hereunder. Each Issuing Bank
may, in its discretion, arrange for one or more Letters of Credit to be issued
by Affiliates of such Issuing Bank, in which case the term "Issuing Bank"
shall include any such Affiliate with respect to Letters of Credit issued by
such Affiliate.
"LC Commitment" means a Revolving Commitment or a Tranche A LC
Commitment.
"LC Disbursement" means a payment made by an Issuing Bank pursuant to
a Letter of Credit.
"LC Exposure" means the sum of the Revolving LC Exposure and the
Tranche A LC Exposure.
"LC Lender" means a Revolving Lender or a Tranche A LC Lender.
"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Assumption, other than any such Person that ceases to be a party hereto
pursuant to an Assignment and Assumption.
"Letter of Credit" means the Existing Letters of Credit and any
letter of credit issued pursuant to this Agreement.
"Leverage Pricing Date" means the date on which the Borrower shall
have delivered to the Administrative Agent and filed with the SEC (a) audited
financial statements for the Fiscal Year ended December 31, 2005, and (b)
unaudited financial statements for the first fiscal quarter ending on a date
that is at least three months after the Effective Date.
"Leverage Ratio" means, at any date, the ratio of (a) Consolidated
Total Indebtedness of the Borrower on such date to (b) Adjusted Consolidated
EBITDA of the Borrower for the period of four consecutive fiscal quarters of
the Borrower ending on or most recently prior to such date.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Dow Jones Market
Service (or on any successor or substitute page of such Service, or any
successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in the
London interbank market) at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period, as the rate
for dollar deposits with a maturity comparable to such Interest Period. In the
event that such rate is not available at such time for any reason, then the
"LIBO Rate" with respect to such Eurodollar Borrowing for such Interest Period
shall be the rate (rounded upwards, if necessary, to the next 1/100 of 1%) at
which dollar deposits of $5,000,000 and for a maturity comparable to such
Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to
the commencement of such Interest Period.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or other similar encumbrance of any kind in respect
of such asset, whether or not filed, recorded or otherwise perfected under
applicable law (including any conditional sale or other title retention
agreement, and any financing lease in the nature thereof, and any filing of,
or agreement to give, any financing statement (other than notice filings not
perfecting a security interest) under the Uniform Commercial Code (or
equivalent statutes) of any jurisdiction).
"Loan Documents" means this Agreement, each Letter of Credit issued
hereunder, any Letter of Credit application referred to in Section 2.05, the
Security Documents and any Notes.
"Loan Parties" means the Borrower and each Subsidiary Loan Party.
"Loans" means the loans made by the Lenders or the Swingline Lender
to the Borrower pursuant to this Agreement.
"Margin Stock" means "margin stock" as defined in Regulation U of the
Board.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations, properties or condition, financial or otherwise,
of the Borrower and the Subsidiaries, taken as a whole, (b) the ability of the
Borrower to perform any of its obligations under this Agreement or (c) the
rights or powers of or remedies available to the Administrative Agent and the
Lenders under this Agreement.
"Material Group" means any Subsidiary or group of Subsidiaries (i)
the book value of the net assets of which was greater than 5% of Consolidated
Net Assets of the Borrower as of the last day of the most recent fiscal
quarter for which financial statements shall have been delivered pursuant to
Section 5.01 (or, prior to the first delivery of such financial statements,
greater than 5% of Consolidated Net Assets of the Borrower as of December 31,
2004), (ii) the total revenues of which were greater than 5% of Consolidated
Total Revenue of the Borrower for the four-fiscal-quarter period ending on the
last day of the most recent fiscal quarter for which financial statements
shall have been delivered pursuant to Section 5.01 (or, prior to the first
delivery of such financial statements, greater than 5% of Consolidated Total
Revenue of the Borrower for the four-fiscal-quarter period ending on December
31, 2004) or (iii) the Consolidated EBITDA of which was greater than 5% of
Consolidated EBITDA of the Borrower for the four-fiscal-quarter period ending
on the last day of the most recent fiscal quarter for which financial
statements shall have been delivered pursuant to Section 5.01 (or, prior to
the delivery of such financial statements, greater than 5% of Consolidated
EBITDA of the Borrower for the four-fiscal-quarter period ending on December
31, 2004). For purposes of making the determinations required by this
definition, assets, revenues and EBITDA of Foreign Subsidiaries shall be
converted into dollars at the rates used in preparing the applicable quarterly
financial statements of the Borrower which shall have been delivered pursuant
to Section 5.01 (or, prior to the first delivery of such financial statements,
at the rates used in preparing the Borrower's financial statements as of the
end of and for the four-fiscal-quarter period ending on December 31, 2004).
"Material Indebtedness" means (a) the Interim Loans, the Senior Notes
and (b) other Indebtedness (other than the Loans, Letters of Credit and the
Excluded Indebtedness), or obligations in respect of one or more Swap
Agreements, of any one or more of the Borrower and the Subsidiaries in an
aggregate principal amount exceeding $30,000,000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations of the
Borrower or any Subsidiary in respect of any Swap Agreement at any time shall
be the maximum aggregate amount (giving effect to any netting agreements) that
the Borrower or such Subsidiary would be required to pay if such Swap
Agreement were terminated at such time. For the avoidance of doubt, the
exclusion of Excluded Indebtedness from Material Indebtedness shall not be
deemed to constitute a waiver of, or otherwise limit in any respect, the
Lenders' rights under Article VII or any other provision of this Agreement as
a result of any event or condition relating to Material Indebtedness,
including any default with respect thereto or acceleration thereof, resulting
from or relating to the Excluded Indebtedness.
"Material Subsidiary" means a Subsidiary that is not an Immaterial
Subsidiary.
"Medicaid Certification" means certification by CMS or a state agency
or entity under contract with CMS that a health care operation is in
compliance with all the conditions of participation set forth in the Medicaid
Regulations.
"Medicaid Provider Agreement" means an agreement entered into between
a state agency or other entity administering the Medicaid program and a health
care operation under which the health care operation agrees to provide
services for Medicaid patients in accordance with the terms of the agreement
and Medicaid Regulations.
"Medicaid Regulations" means, collectively, (a) all federal statutes
(whether set forth in Title XIX of the Social Security Act or elsewhere)
affecting the medical assistance program established by Title XIX of the
Social Security Act and any statutes succeeding thereto; (b) all applicable
provisions of all federal rules, regulations, manuals and orders of all
Governmental Authorities promulgated pursuant to or in connection with the
statutes described in clause (a) above and all Federal administrative,
reimbursement and other guidelines of all Governmental Authorities having the
force of law promulgated pursuant to or in connection with the statues
described in clause (a) above; (c) all state statutes and plans for medical
assistance enacted in connection with the statutes and provisions described in
clauses (a) and (b) above; and (d) all applicable provisions of all rules,
regulations, manuals and orders of all Governmental Authorities promulgated
pursuant to or in connection with the statutes described in clause (c) above
and all state administrative, reimbursement and other guidelines of all
Governmental Authorities having the force of law promulgated pursuant to or in
connection with the statutes described in clause (b) above, in each case as
may be amended, supplemented or otherwise modified from time to time.
"Medicare Certification" means certification by CMS or a state agency
or entity under contract with CMS that a health care operation is in
compliance with all the conditions of participation set forth in the Medicare
Regulations.
"Medicare Provider Agreement" means an agreement entered into between
a state agency or other entity administering the Medicare program and a health
care operation under which the health care operation agrees to provide
services for Medicare patients in accordance with the terms of the agreement
and Medicare Regulations.
"Medicare Regulations" means, collectively, all Federal statutes
(whether set forth in Title XVIII of the Social Security Act or elsewhere)
affecting the health insurance program for the aged and disabled established
by Title XVIII of the Social Security Act and any statutes succeeding thereto,
together with all applicable provisions of all rules, regulations, manuals and
orders and administrative, reimbursement and other guidelines having the force
of law of all Governmental Authorities (including Health and Human Services
("HHS"), CMS, the Office of the Inspector General for HHS, or any Person
succeeding to the functions of any of the foregoing) promulgated pursuant to
or in connection with any of the foregoing having the force of law, as each
may be amended, supplemented or otherwise modified from time to time.
"Model" has the meaning assigned to such term in Section 3.06(b).
"Monthly Financial Package" means, for any month, the financial
information for such month delivered or to be delivered by the Borrower to the
Administrative Agent, substantially in the form of the information provided in
Exhibit D.
"Moody's" means Moody's Investors Service, Inc.
"Mortgage" means a mortgage, deed of trust, assignment of leases and
rents, or other security document granting a Lien on any Mortgaged Property to
secure the Obligations. Each Mortgage shall be reasonably satisfactory in form
and substance to the Collateral Agent.
"Mortgaged Property" means each parcel of real property and the
improvements thereto owned or leased by the Borrower or a Subsidiary (other
than an Excluded Subsidiary) (i) if constituting an asset of the Borrower's
Inpatient Division, with a book value or insured book value (with respect to
real property, land and improvements) greater than $2,500,000 or (ii)
otherwise, with a book value or insured book value (with respect to real
property, land and improvements) greater than $5,000,000; provided that
Mortgaged Property shall not include any such parcel of real property (x) that
is subject to a mortgage in favor of any Person other than the Collateral
Agent as of the Effective Date or (y) that is leased by the Borrower or a
Subsidiary and constitutes an asset of the Borrower's Surgery Division.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Proceeds" means, with respect to any event, (a) the cash
proceeds received in respect of such event including (i) any cash received in
respect of any non-cash proceeds, but only as and when received, (ii) in the
case of a casualty, insurance proceeds, and (iii) in the case of a taking
under power of eminent domain or by condemnation or similar event, any
payments received in respect of such event, net of (b) the sum of (i) all fees
and out-of-pocket expenses (including underwriting discounts and commissions)
paid by the Borrower and the Subsidiaries to third parties (other than
Affiliates) in connection with such event, (ii) in the case of a sale,
transfer or other disposition of an asset (excluding pursuant to a Specified
Sale and Leaseback Transaction, but including pursuant to any other Sale and
Leaseback Transaction or a casualty or a condemnation or similar proceeding),
the amount of all payments required to be made by the Borrower and the
Subsidiaries as a result of such event to repay Indebtedness (other than
Loans) secured by such asset or otherwise subject to mandatory prepayment as a
result of such event, and (iii) the amount of all taxes paid (or estimated in
good faith to be payable) by the Borrower and the Subsidiaries and the amount
of any reserves established by the Borrower and the Subsidiaries to fund
contingent liabilities estimated in good faith to be payable that are directly
attributable to such event (as determined reasonably and in good faith by a
Financial Officer), provided that on the date on which such reserve is no
longer required to be maintained, the remaining amount of such reserve shall
then be deemed to be Net Proceeds.
"Net Working Capital" of any Person as of any date means (a) the
consolidated current assets of such Person and its consolidated subsidiaries
as of such date (excluding cash and Eligible Investments) minus (b) the
consolidated current liabilities of such Person and its consolidated
subsidiaries as of such date (excluding the outstanding Obligations, to the
extent they shall at any time constitute current liabilities, and other
current liabilities in respect of Indebtedness). Net Working Capital at any
date may be a positive or negative number. Net Working Capital increases when
it becomes more positive or less negative and decreases when it becomes less
positive or more negative.
"Note Tender Offer" means the Borrower's tender offer for the
Existing Notes made under an Offers to Purchase and Consent Solicitations
Statement dated February 2, 2006.
"Notes" means any promissory notes issued by the Borrower pursuant to
Section 2.09(e), as they may be amended, supplemented or otherwise modified
from time to time.
"Obligations" means (a) the due and punctual payment by the Borrower
of (i) the principal of and interest (including interest accruing during the
pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on
the Loans, when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise, (ii) each payment required to be
made by the Borrower in respect of any Letter of Credit, when and as due,
including payments in respect of reimbursement of LC Disbursements, interest
thereon (including interest accruing during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding) and obligations to provide cash
collateral, and (iii) all other monetary obligations of the Borrower under
this Agreement and each of the other Loan Documents, including obligations to
pay fees, expense reimbursement obligations and indemnification obligations,
whether primary, secondary, direct, contingent, fixed or otherwise, arising
under the Loan Documents (including monetary obligations incurred during the
pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding),
(b) the due and punctual payment of all the monetary obligations of each other
Loan Party under or pursuant to this Agreement and each of the other Loan
Documents, (c) the due and punctual payment of all monetary obligations of
each Loan Party under each Swap Agreement that (i) is in effect on the
Effective Date with a counterparty that is a Lender or an Affiliate of a
Lender as of the Effective Date or (ii) is entered into after the Effective
Date with any counterparty that is a Lender or an Affiliate of a Lender at the
time such Swap Agreement is entered into and (d) the due and punctual payment
and performance of all obligations of any Loan Party to a Lender or an
Affiliate of a Lender in respect of cash management services (other than cash
management services provided after (i) the principal of and interest on each
Loan and all fees payable hereunder have been paid in full, (ii) the Lenders
have no further commitment to lend hereunder, (iii) the LC Exposure has been
reduced to zero and (iv) the Issuing Banks have no further obligation to issue
Letters of Credit), including obligations in respect of overdrafts, temporary
advances, interest and fees.
"Officer's Certificate" means a certificate signed by a Financial
Officer in an official (and not individual) capacity; provided, however, that
every Officer's Certificate with respect to the compliance with a condition
precedent to the taking of any action under this Agreement shall include (i) a
statement that the Financial Officer making or giving such Officer's
Certificate has read such condition and any definitions or other provisions
contained in this Agreement relating thereto and (ii) a statement as to
whether, in the opinion of such Financial Officer, such condition has been
complied with.
"Opinion of Counsel" means a written opinion from legal counsel in
form and substance reasonably satisfactory to the Administrative Agent, that
complies with the requirements of this Agreement.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement.
"Participant" has the meaning set forth in Section 9.04.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Pension Plan" means any Employee Benefit Plan subject to the
provisions of Title IV or Section 302 of ERISA or Section 412 of the Code.
successor entity performing similar functions.
"Perfection Certificate" means a certificate in the form of Exhibit B
or any other form approved by the Collateral Agent.
"Permitted Asset Sale" means the sale of the Diagnostic business unit
of the Borrower at a sale price at least equal to the Fair Market Value of
such business unit.
"Permitted Debt Activities" means (a) the conversion of any
Indebtedness owed to the Borrower or any Subsidiary by an Excluded Subsidiary
into Equity Interests in such debtor Excluded Subsidiary or (b) the forgiving
by the Borrower or any Subsidiary of any Indebtedness owed to the Borrower or
such Subsidiary by an Excluded Subsidiary; provided that the aggregate
principal amount of Indebtedness converted or forgiven in Permitted Debt
Activities during (i) the Fiscal Years 2006 and 2007, shall not exceed
$25,000,000 and (ii) any Fiscal Year thereafter, shall not exceed $10,000,000.
"Permitted Investments" means: (i) capital contributions, advances or
loans to the Borrower by any Subsidiary or by the Borrower or any Subsidiary
to a Subsidiary; (ii) the acquisition and holding by the Borrower and each of
the Subsidiaries of receivables owing to the Borrower and such Subsidiary, if
created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms; (iii) the acquisition
and holding by the Borrower and the Subsidiaries of cash and Eligible
Investments; (iv) Investments in any Person as a result of which such other
Person becomes a Subsidiary or is merged into or consolidated with or
transfers all or substantially all of its assets to the Borrower or any
Subsidiary; (v) the making of an Investment by the Borrower, directly or
through a Wholly Owned Subsidiary, in a Wholly Owned Subsidiary formed solely
for the purpose of insuring the healthcare business and facilities owned or
operated by the Borrower or a Subsidiary and any physician employed by or on
the staff of any such business or facility; provided that the amount invested
in such Subsidiary does not exceed $15,000,000; (vi) any Investment arising
from or in connection with the transfer of assets made pursuant to the Digital
Hospital Transaction and (vii) Investments made by HCS Ltd in accordance with
its investment guidelines as in effect on the date hereof.
"Permitted Liens" means: (i) Liens for taxes, assessments or
governmental charges or claims that either (a) are not yet delinquent or (b)
are being contested in good faith by appropriate proceedings; (ii) statutory
Liens of landlords and carriers', warehousemen's, mechanics', suppliers',
materialmen's, repairmen's or other like Liens arising in the ordinary course
of business and with respect to amounts that either (a) are not overdue by
more than 30 days or (b) are being contested in good faith by appropriate
proceedings and as to which appropriate reserves or other provisions have been
made in accordance with GAAP; (iii) Liens (other than any Lien imposed by
ERISA) incurred or deposits due in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other types
of social security; (iv) Liens incurred or deposits made to secure the
performance of tenders, bids, leases, statutory obligations, surety and appeal
bonds, progress payments, government contracts and other obligations of like
nature (exclusive of obligations for the payment of Indebtedness), in each
case, incurred in the ordinary course of business; (v) attachment or judgment
Liens not giving rise to a Default or an Event of Default; (vi) easements,
rights-of-way, restrictions and other similar charges or encumbrances not
interfering with the ordinary conduct of the business of the Borrower or any
Subsidiary; (vii) leases or subleases granted to others not interfering with
the ordinary conduct of the business of the Borrower or any Subsidiary; (viii)
Liens with respect to any Acquired Indebtedness, provided that such Liens only
extend to assets that were subject to such Liens prior to the acquisition of
such assets by the Borrower or a Subsidiary and not incurred in anticipation
or contemplation of such acquisition; (ix) Liens securing Refinancing
Indebtedness that are permitted under clause (iv) of the definition of such
term; (x) purchase money Liens (including Capitalized Lease Obligations); (xi)
Liens on assets of the Borrower or any Subsidiary created pursuant to the
Collateral and Guarantee Agreement; (xii) bankers' liens with respect to the
right of set-off arising in the ordinary course of business against amounts
maintained in bank accounts or certificates of deposit in the name of the
Borrower or any Subsidiary; (xiii) the interest of any issuer of a letter of
credit in any cash or Eligible Investment deposited with or for the benefit of
such issuer as collateral for such letter of credit, provided that the
Indebtedness so collateralized is permitted to be incurred by the terms of
this Agreement; and (xiv) any Lien consisting of a right of first refusal or
option to purchase the Borrower's ownership interest in any Subsidiary or to
purchase assets of the Borrower or any Subsidiary, which right of first
refusal or option is entered into in the ordinary course of business.
"Permitted Syndicated Interest Repurchase" means any purchase of a
Syndicated Interest by the Borrower or a Subsidiary to the extent constituting
a Restricted Payment permitted under Section 6.09(a)(i).
"Permitted Syndicated Interest Sales" means sales of Syndicated
Interests for Fair Market Value that the Borrower determines in good faith are
in the best interests of the Borrower and the Subsidiaries, taken as a whole.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Preferred Stock Offering" means the offering, issuance and sale of
Preferred Stock of the Borrower in a private placement transaction completed
on or as of March 7, 2006 having an aggregate initial liquidation preference
of $400,000,000.
"Preferred Stock" means with respect to any Person all Equity
Interests of such Person which has a preference in liquidation or a preference
with respect to the payment of dividends or distributions of operating profit
or cash.
"Prepayment Event" means:
(a) any Asset Sale, other than (i) Specified Sale and
Leaseback Transactions, (ii) Syndications and resyndication
transactions in the ordinary course of business and (iii) other
dispositions resulting in the aggregate for all such dispositions in
Net Proceeds not greater than $5,000,000 during any fiscal year of
the Borrower;
(b) any casualty or other insured damage to, or any taking
under power of eminent domain or by condemnation or similar
proceeding of, any property or asset of the Borrower or any
Subsidiary;
(c) the incurrence of any Indebtedness by the Borrower or
any Subsidiary, other than (i) the Interim Loans and Senior Notes
issued and sold in the Senior Notes Offering to the extent the Net
Proceeds thereof are used to repay Interim Loans) and (ii)
Indebtedness permitted under Section 6.03(a) or 6.03(b) (giving
effect to any amendment of or waiver under such Section);
(d) the issuance of any Equity Interests in the Borrower or
any Subsidiary, other than (i) Equity Interests to the extent the Net
Proceeds thereof are used to repay Existing Notes or Interim Loans
within one year after the Effective Date, (ii) any such issuances to
the Borrower or any Subsidiary and (iii) Syndications; or
(e) the receipt by the Borrower or any Subsidiary of any
federal tax refund in cash (collectively, the "Specified Tax
Refunds"), with respect to any tax year ended on or prior to December
31, 2005.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by JPMorgan Chase Bank, N.A. as its prime rate in effect at
its principal office in New York City. Each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as
being effective.
"Publicly Disclosed Matter" has the meaning set forth in Section
3.06.
"Receivables" means accounts receivable (including all rights to
payment created by or arising from the sales of goods, leases of goods or the
rendition of services, no matter how evidenced and whether or not earned by
performance).
"Refinancing Indebtedness" means Indebtedness that is applied to
refund, refinance, repurchase and retire or extend any Existing Indebtedness,
any Indebtedness incurred under Section 6.03(a)(B) or (C), and any
Indebtedness previously refinanced in accordance with this definition;
provided that: (i) the Refinancing Indebtedness is the obligation of the same
Person or Persons (and not of any other Person) and, if the Indebtedness being
refunded, refinanced or extended is subordinated to the Obligations, the
Refinancing Indebtedness is also subordinated to the Obligations to the same
extent as the Indebtedness being refunded, refinanced or extended; (ii) the
Refinancing Indebtedness is scheduled to mature no earlier than the
Indebtedness being refunded, refinanced or extended and is not subject to any
requirement not applicable to the Indebtedness being refunded, refinanced or
extended that such Indebtedness be prepaid, redeemed, repurchased or defeased
on one or more scheduled dates or upon the happening of one or more events
(other than events of default or change of control events); (iii) the
Refinancing Indebtedness has a weighted average life to maturity at the time
such Refinancing Indebtedness is incurred that is equal to or greater than the
weighted average life to maturity of the portion of the Indebtedness being
refunded, refinanced or extended; (iv) the Refinancing Indebtedness is secured
only to the extent, if at all, and by the assets that the Indebtedness being
refunded, refinanced or extended is secured; and (v) such Refinancing
Indebtedness is in an aggregate principal amount that is equal to or less than
the aggregate principal amount then outstanding under the Indebtedness being
refunded, refinanced or extended (except for issuance costs and increases in
Attributable Indebtedness due solely to increases in the present value
calculations resulting from renewals or extensions of the terms of the
underlying leases in effect on the Effective Date); provided; further; that
Indebtedness meeting the requirements of the foregoing clauses (i) through (v)
may constitute Refinancing Indebtedness notwithstanding that it is not
immediately applied to the refunding, refinancing, repurchase or extension of
other Indebtedness so long as (y) the Borrower designates such Indebtedness as
Refinancing Indebtedness and (z) prior to their use for refunding,
refinancing, repurchasing or extending other Indebtedness, the net proceeds of
such Indebtedness are promptly (1) deposited in an account controlled by the
Administrative Agent, pursuant to an agreement satisfactory to the Borrower
and the Administrative Agent, and held in such account pending the application
of such net proceeds to refund, refinance, repurchase or extend such other
Indebtedness or (2) applied to prepay Revolving Loans, in which case an amount
of the Revolving Commitments equal to the amount so prepaid will be held
available and not borrowed pending, and will be made available (subject to the
conditions to borrowing set forth herein) only to provide funds for, the
application of such net proceeds to refund, refinance, repurchase or extend
such other Indebtedness.
"Register" has the meaning set forth in Section 9.04.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees,
trustees, agents and advisors of such Person and such Person's Affiliates.
"Release" means any release, spill, emission, leaking, dumping,
injection, pouring, deposit, disposal, discharge, dispersal, leaching or
migration into or through the environment or within or upon any building,
structure, facility or fixture.
"Required Lenders" means, at any time, Lenders having Combined Credit
Exposures and unused Commitments representing more than 50% of the sum of the
total Combined Credit Exposures and unused Commitments at such time.
"Restricted Cash and Cash Equivalents" means, as of any date, the
cash and cash equivalents (i) held by HCS Ltd and committed to third party
administrators for payment of the Borrower's insurance claims, (ii) held by
Syndicated Persons to the extent that such cash and cash equivalents are
required by the owners of such Syndicated Persons to be held in separate
accounts and not otherwise commingled with the assets of the Borrower and
(iii) held by any Subsidiary to the extent that, and for so long as, such cash
and cash equivalents may not be distributed to the owner or owners of the
Equity Interests in such Subsidiary under the terms of such Subsidiary's
charter or any agreement, instrument, judgment, decree, order, statute, rule
or governmental regulation applicable to such subsidiary.
"Restricted Payment" means with respect to any Person: (i) the
declaration of any dividend or the making of any other payment or distribution
of cash, securities or other property or assets in respect of such Person's
Equity Interests (except that a dividend payable solely in Equity Interests
(other than Disqualified Stock) of such Person shall not constitute a
Restricted Payment); (ii) any payment on account of the purchase, redemption,
retirement or other acquisition for value of such Person's Equity Interests or
any other payment or distribution made in respect thereof, either directly or
indirectly (except that any such payment payable solely in Equity Interests
(other than Disqualified Stock) of the Borrower shall not constitute a
Restricted Payment); or (iii) any payment on account of the purchase,
redemption, retirement, defeasance or other acquisition for value, prior to
any scheduled principal payment, sinking fund payment or Stated Maturity, of
Subordinated Indebtedness of such Person or any of its subsidiaries (except
that any such payment payable solely in Equity Interests (other than
Disqualified Stock) of the Borrower shall not constitute a Restricted
Payment); provided, however, that with respect to the Borrower and the
Subsidiaries, Restricted Payments shall not include (A) repurchases of
Syndicated Interests in an aggregate amount in any Fiscal Year up to
$20,000,000 plus the proceeds received during such Fiscal Year of any resale
of such repurchased Syndicated Interests, or (B) payments made (1) to the
Borrower or any of its Subsidiaries by any of the Borrower's Subsidiaries, (2)
by the Borrower to any of its Subsidiaries or (3) any distribution by any
Subsidiary provided that the Borrower or another Subsidiary receives its
proportionate share thereof.
"Revolving Availability Period" means the period from but excluding
the Effective Date to but excluding the earlier of the Revolving Credit/LC
Maturity Date and the date of termination of the Revolving Commitments.
"Revolving Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make Revolving Loans and to acquire
participations in Revolving Letters of Credit and Swingline Loans hereunder,
expressed as an amount representing the maximum aggregate permitted amount of
such Lender's Revolving Exposure hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.08 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender's Revolving
Commitment is set forth on Schedule 2.01, or in the Assignment and Assumption
pursuant to which such Lender shall have assumed its Revolving Commitment, as
applicable. The initial aggregate amount of the Lenders' Revolving Commitments
is $400,000,000.
"Revolving Credit/LC Maturity Date" means March 10, 2012.
"Revolving Exposure" means, with respect to any Revolving Lender at
any time, the sum of the outstanding principal amount of such Lender's
Revolving Loans and its Revolving LC Exposure and Swingline Exposure at such
time.
"Revolving LC Disbursement" means any payment made by an Issuing Bank
pursuant to a Revolving Letter of Credit.
"Revolving LC Exposure" means, at any time, the sum of (a) the
aggregate undrawn amount of all outstanding Revolving Letters of Credit at
such time plus (b) the aggregate amount of all Revolving LC Disbursements that
have not yet been reimbursed by or on behalf of the Borrower at such time. The
Revolving LC Exposure of any Revolving Lender at any time shall be its
Applicable Revolving Percentage of the total Revolving LC Exposure at such
time.
"Revolving Lender" means a Lender with a Revolving Commitment or, if
the Revolving Commitments have terminated or expired, a Lender with Revolving
Exposure.
"Revolving Letter of Credit" means a Letter of Credit that is not a
Tranche A Letter of Credit.
"Revolving Loan" means a Loan made pursuant to paragraph (b) of
Section 2.01.
"S&P" means Standard & Poor's Corporation.
"Sale and Leaseback Transaction" means any arrangement whereby the
Borrower or a Subsidiary shall sell or transfer any property, real or
personal, used or useful in its business, whether now owned or hereinafter
acquired, and thereafter rent or lease from the buyer or transferee the sold
or transferred property or other property that it intends to use for
substantially the same purpose or purposes as the property sold or
transferred.
"Scheduled Payment Date" has the meaning assigned to such term in
Section 2.10(a).
"SEC" means the United States Securities and Exchange Commission.
"Secured Parties" has the meaning assigned to such term in the
Collateral and Guarantee Agreement.
"Securities Act" means the Securities Act of 1933 and the rules and
regulations promulgated by the SEC thereunder.
"Securitization Transaction" means (a) any transfer by the Borrower
or any Subsidiary of Receivables or interests therein (i) to a trust,
partnership, corporation or other entity, which transfer is funded in whole or
in part, directly or indirectly, by the incurrence or issuance by the
transferee or any successor transferee of indebtedness or other securities
that are to receive payments from, or that represent interests in, the cash
flow derived from such Receivables or interests in Receivables, or (ii)
directly to one or more investors or other purchasers, or (b) any transaction
in which the Borrower or a Subsidiary incurs Indebtedness or other obligations
secured by Liens on Receivables. The "amount" or "principal amount" of any
Securitization Transaction shall be deemed at any time to be (A) in the case
of a transaction described in clause (a) of the preceding sentence, the
aggregate principal or stated amount of the Indebtedness or other securities
referred to in such clause or, if there shall be no such principal or stated
amount, the uncollected amount of the Receivables transferred pursuant to such
Securitization Transaction net of any such Receivables that have been written
off as uncollectible, and (B) in the case of a transaction described in clause
(b) of the preceding sentence, the aggregate outstanding principal amount of
the Indebtedness secured by Liens on the subject Receivables.
"Security Documents" means the Collateral and Guarantee Agreement,
the IP Security Agreements (as defined in the Collateral and Guarantee
Agreement), the Mortgages and each other security agreement or other
instrument or document executed and delivered pursuant to the Collateral and
Guarantee Agreement or pursuant to Section 5.14 or 5.14 to secure any of the
Obligations.
"Senior Notes" means the senior unsecured notes of the Borrower
issued and sold pursuant to the Senior Notes Offering under the Senior Notes
Indenture.
"Senior Notes Indenture" means an Indenture in form and substance
reasonably satisfactory to the Administrative Agent under which the Senior
Notes will be issued.
"Senior Notes Offering" means the issuance and sale after the
Effective Date of senior unsecured notes of the Borrower in a Rule 144A or
other private placement transaction for aggregate gross cash proceeds not
greater than $1,000,000,000.
"Settlement Agreement" means any contract or agreement entered into
by the Borrower or any Subsidiary in connection with any settlement of any
litigation or other proceedings disclosed on Schedule 3.10, including the
Settlement Agreement dated as of December 30, 2004, among the Borrower, the
United States of America, acting through the entities named therein, and the
other parties thereto and the settlement approved by the SEC, on June 6, 2005,
relating to the action filed by the SEC on March 19, 2003, against, among
others, the Borrower.
"Settlement Notes" means any Indebtedness evidenced by notes issued
in connection with any settlement of any litigation or other proceedings
disclosed on Schedule 3.10.
"Shareholder Litigation" means the federal securities class actions
and the derivative actions brought against the Borrower and/or certain of its
former directors and officers and certain other parties in the United States
District Court for the Northern District of Alabama and the Circuit Court in
Jefferson County, Alabama relating to financial reporting and related activity
that occurred at the Borrower during periods ended in March 2003.
"Specified Deposit Accounts" means all concentration accounts,
investment accounts, automated clearing house accounts and similar accounts
maintained by the Borrower.
"Specified Property" means (a) the real property and improvements
thereon set forth in Schedule 1.01C and (b) other real property and
improvements thereon identified from time to time after the Effective Date and
prior to the acquisition or construction of such real property or improvements
by written notice from the Borrower to the Administrative Agent (which notice
shall also contain a reasonably detailed summary of the construction and other
improvements that the Borrower intends to make on the applicable real
property) and reasonably acceptable to the Administrative Agent; provided,
that the acquisition of or construction of improvements on any such real
property shall not have been financed in whole or in part with any
Indebtedness other than Revolving Loans.
"Specified Sale and Leaseback Transaction" means (i) a Sale and
Leaseback Transaction consisting of a sale or other transfer of a Specified
Property to a real estate investment trust or other Person within 180 days
after completion of all principal construction and improvements set forth in
Schedule 1.01C or in the original notice of such Specified Property delivered
to the Administrative Agent and the simultaneous lease of such Specified
Property by such real estate investment trust or other Person to the Borrower
or a Subsidiary, (ii) a Sale and Leaseback Transaction, to the extent the net
proceeds received in connection therewith are applied to repay the Term Loans
and (iii) a Sale and Leaseback Transaction that is a Birmingham Hospital
Transaction.
"Specified Tax Refunds" has the meaning assigned to such term in the
definition of "Prepayment Event".
"Stated Maturity" when used with respect to any security or any
installment of interest thereon, means that date specified in such security as
the fixed date on which the principal of such security or such installment of
interest is due and payable.
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including
any marginal, special, emergency or supplemental reserves) expressed as a
decimal established by the Board to which the Administrative Agent is subject
for eurocurrency funding (currently referred to as "Eurocurrency Liabilities"
in Regulation D of the Board). Such reserve percentages shall include those
imposed pursuant to such Regulation D. Eurodollar Loans shall be deemed to
constitute eurocurrency funding and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under such Regulation D or any
comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"Sub-Account" has the meaning assigned to such term in Section
2.05(o).
"Subordinated Indebtedness" of any Person means any Indebtedness of
such Person that is subordinated in right of payment to the Obligations or any
of them.
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as
any other corporation, limited liability company, partnership, association or
other entity (a) of which securities or other ownership interests representing
more than 50% of the equity or more than 50% of the ordinary voting power or,
in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held, or (b) that is, as
of such date, otherwise Controlled by the parent or one or more subsidiaries
of the parent or by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower.
"Subsidiary Loan Party" means any Subsidiary that is, or is required
under the terms of this Agreement to be, a party to any Security Document.
"Successor" has the meaning assigned to such term in Section 6.05.
"Swap Agreement" means any agreement with respect to any swap,
forward, future or derivative transaction or option or similar agreement
involving, or settled by reference to, one or more rates, currencies,
commodities, equity or debt instruments or securities, or economic, financial
or pricing indices or measures of economic, financial or pricing risk or value
or any similar transaction or any combination of these transactions; provided
that no phantom stock or similar plan providing for payments only on account
of services provided by current or former directors, officers, employees or
consultants of the Borrower or the Subsidiaries shall be a Swap Agreement.
"Swingline Exposure" means, at any time, the aggregate principal
amount of all Swingline Loans outstanding at such time. The Swingline Exposure
of any Revolving Lender at any time shall be its Applicable Revolving
Percentage of the total Swingline Exposure at such time.
"Swingline Lender" means JPMorgan Chase Bank, N.A., in its capacity
as lender of Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.04.
"Syndicated Interests" has the meaning set forth in the definition of
Syndications.
"Syndicated Person" means a Person the partnership or other equity
interests of which constitute Syndicated Interests.
"Syndications" means the sale of partnership or other equity
interests ("Syndicated Interests") in Subsidiaries or other Persons Controlled
by the Borrower that own or operate surgery, diagnostic or other healthcare
facilities to (i) participating physicians, radiologists and other
specialists, (ii) professional corporations and other legal entities owned or
controlled by such participating physicians, radiologists and other
specialists, and (iii) participating hospitals and other healthcare providers.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Commitment" means, with respect to each Lender, the commitment,
if any, of such Lender to make a Term Loan hereunder on the Effective Date,
expressed as an amount representing the maximum principal amount of the Term
Loan to be made by such Lender hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.08 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender's Term Commitment
is set forth on Schedule 2.01, or in the Assignment and Assumption pursuant to
which such Lender shall have assumed its Term Commitment, as applicable. The
initial aggregate amount of the Lenders' Term Commitments is $2,050,000,000.
"Term Lender" means a Lender with a Term Commitment or an outstanding
Term Loan.
"Term Loan" means a Loan made pursuant to paragraph (a) of Section
2.01.
"Term Maturity Date" means March 10, 2013.
"Tranche A Deposit" means, with respect to each Tranche A LC Lender,
the amount that such Tranche A LC Lender shall deposit in such Tranche A LC
Lender's Sub-Account on the Effective Date, as such amount may be (a) reduced
from time to time pursuant to Section 2.05 or 2.08 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender's Tranche A
Deposit is set forth on Schedule 2.01 or in the Assignment and Assumption
pursuant to which such Lender shall have made its Tranche A Deposit, as
applicable. The aggregate amount of the Tranche A Deposits on the Effective
Date is $100,000,000.
"Tranche A Deposit Account" has the meaning assigned to such term in
Section 2.05(o).
"Tranche A Deposit Return" has the meaning assigned to such term in
Section 2.05(r).
"Tranche A LC Commitment" means, with respect to each Tranche A LC
Lender, the commitment of such Lender to acquire participations in Tranche A
Letters of Credit hereunder, expressed as an amount representing the maximum
aggregate permitted amount of such Lender's Tranche A LC Exposure hereunder,
as such commitment may be (a) reduced from time to time pursuant to Section
2.08 and (b) reduced or increased from time to time pursuant to assignments by
or to such Lender pursuant to Section 9.04. The initial amount of each
Lender's Tranche A LC Commitment is set forth on Schedule 2.01 or in the
Assignment and Assumption pursuant to which such Lender shall have assumed its
Tranche A LC Commitment, as applicable. The aggregate amount of the Tranche A
LC Commitments on the Effective Date is $100,000,000.
"Tranche A LC Disbursement" means any payment made by an Issuing Bank
pursuant to a Tranche A Letter of Credit.
"Tranche A LC Exposure" means, at any time, the sum of (a) the
aggregate undrawn amount of all outstanding Tranche A Letters of Credit at
such time plus (b) the aggregate amount of all Tranche A LC Disbursements that
have not yet been reimbursed by or on behalf of the Borrower at such time. The
Tranche A LC Exposure of any Tranche A LC Lender at any time shall be its
Applicable Tranche A LC Percentage of the total Tranche A LC Exposure at such
time.
"Tranche A LC Lender" means a Lender having a Tranche A Deposit.
"Tranche A Letter of Credit" means a Letter of Credit as to which the
Administrative Agent may apply Tranche A Deposits for purposes of reimbursing
Tranche A LC Disbursements in accordance with Section 2.05.
"Transactions" means the execution, delivery and performance by the
Borrower of this Agreement, the borrowing of the Loans, the use of the
proceeds thereof, the obtaining of the Letters of Credit, the creation of the
Liens granted under the Security Documents, the Note Tender Offer and the
purchase of Existing Notes pursuant thereto, the Preferred Stock Offering, the
prepayment of the loans under and termination of the Existing Senior Secured
Credit Agreement, the Existing Senior Subordinated Credit Agreement and the
Existing Term Loan Agreement and the other transactions contemplated hereby.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the
Alternate Base Rate.
"USA Patriot Act" means the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA
PATRIOT ACT) Act of 2001, as amended.
"Wholly Owned Subsidiary" of any Person means (i) a subsidiary of
which 100% of the Common Equity (except for director's qualifying shares or
certain minority interests owned by other Persons solely due to local law
requirements that there be more than one stockholder, but which interest is
not in excess of what is required for such purpose) is owned directly by such
Person or through one or more other Wholly Owned Subsidiaries of such Person
and (ii) any entity other than a corporation in which such Person, directly or
indirectly, owns all of the Common Equity of such entity.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g., a
"Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type
(e.g., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
"Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving
Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth
herein), (b) any reference herein to any Person shall be construed to include
such Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.04. Accounting Terms; GAAP. (a) Except as otherwise
expressly provided herein, all terms of an accounting or financial nature
shall be construed in accordance with GAAP, as in effect from time to time;
provided that, if the Borrower notifies the Administrative Agent that the
Borrower requests an amendment to any provision hereof to eliminate the effect
of any change occurring after the Effective Date in GAAP or in the application
thereof on the operation of such provision (or if the Administrative Agent
notifies the Borrower that the Required Lenders request an amendment to any
provision hereof for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof, then
such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance
herewith. All financial covenants and financial definitions herein shall be
calculated without regard to Statement of Financial Accounting Standards
Number 123R, relating to share-based accounting.
(b) All computations required to be made hereunder on a pro forma
basis giving effect to any acquisition, investment, sale, disposition or
similar event shall reflect on a pro forma basis such event and, to the extent
applicable and otherwise permitted under Article 11 of Regulation S-X
promulgated under the Securities Act, the historical earnings and cash flows
associated with the assets acquired or disposed of, any related incurrence or
reduction of Indebtedness and any projected synergies, cost savings and other
adjustments or similar benefits expected to be realized as a result of such
event.
SECTION 1.05. Senior Debt Status. In the event that the Borrower or
any Subsidiary shall at any time issue or have outstanding any Indebtedness
that by its terms is subordinated or junior to any other Indebtedness of the
Borrower or such Subsidiary, the Borrower shall take or cause such Subsidiary
to take, as the case may be, all such actions as shall be necessary to cause
the Obligations to constitute senior indebtedness (however denominated) in
respect of such subordinated Indebtedness and to enable the Lenders to have
and exercise any payment blockage or other remedies available or potentially
available to holders of senior indebtedness under the terms of such
subordinated Indebtedness. Without limiting the foregoing, the Obligations are
hereby designated as "senior indebtedness" and as "designated senior
indebtedness" under and in respect of any indentures or other agreements or
instruments under which any such subordinated Indebtedness is outstanding and,
if relevant, are further given all such other designations as shall be
required under the terms of any such subordinated Indebtedness in order that
the Lenders or the Administrative Agent may have and exercise any payment
blockage or other remedies available or potentially available to holders of
senior indebtedness under the terms of such subordinated Indebtedness.
ARTICLE II
The Credits
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SECTION 2.01. Term Loans; Revolving Commitments. (a) Subject to the
terms and conditions and relying upon the representations and warranties set
forth herein, each Term Lender agrees to make a Term Loan to the Borrower on
the Effective Date in dollars in a principal amount equal to its Term
Commitment. Amounts repaid or prepaid in respect of Term Loans may not be
reborrowed.
(b) Subject to the terms and conditions and relying upon the
representations and warranties set forth herein, each Revolving Lender agrees
to make Revolving Loans to the Borrower from time to time during the Revolving
Availability Period in dollars in an aggregate principal amount that will not
result in (i) such Lender's Revolving Exposure exceeding its Revolving
Commitment or (ii) the sum of the aggregate Revolving Exposures exceeding the
aggregate Revolving Commitments; provided, that the aggregate principal amount
of the Revolving Loans made on the Effective Date shall not exceed
$50,000,000. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, prepay and reborrow
Revolving Loans.
SECTION 2.02. Loans and Borrowings. (a) Each Term Loan shall be part
of a Borrowing consisting of Term Loans made by the Term Lenders ratably in
accordance with their Term Commitments. Each Revolving Loan shall be made as
part of a Borrowing consisting of Revolving Loans made by the Revolving
Lenders ratably in accordance with their respective Revolving Commitments. The
failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the
Commitments of the Lenders are several and no Lender shall be responsible for
any other Lender's failure to make Loans as required.
(b) Subject to Section 2.14, (i) each Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Loans as the Borrower may request in
accordance herewith. Each Lender at its option may make any Eurodollar Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make
such Loan; provided that any exercise of such option shall not affect the
obligation of the Borrower to repay such Loan in accordance with the terms of
this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $5,000,000. At the time that each ABR
Borrowing is made, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $5,000,000; provided that an
ABR Revolving Borrowing may be in an aggregate amount that is equal to the
entire unused balance of the total Revolving Commitments or that is required
to finance the reimbursement of an LC Disbursement as contemplated by Section
2.05(e). Borrowings of more than one Class and Type may be outstanding at the
same time; provided that there shall not at any time be more than a total of
20 Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Term Maturity Date or the Revolving Credit/LC Maturity Date, as
applicable.
SECTION 2.03. Requests for Revolving Borrowings. To request a
Revolving Borrowing, the Borrower shall notify the Administrative Agent of
such request by telephone (a) in the case of a Eurodollar Borrowing, not later
than 1:00 p.m., New York City time, three Business Days before the date of the
proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 1:00
p.m., New York City time, one Business Day before the date of the proposed
Borrowing; provided that any such notice of an ABR Borrowing to finance the
reimbursement of an LC Disbursement as contemplated by Section 2.05(e) may be
given not later than 11:00 a.m., New York City time, on the date of the
proposed Borrowing. Each such telephonic Borrowing Request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to
the Administrative Agent of a written Borrowing Request in a form reasonably
acceptable to the Administrative Agent and signed by the Borrower. Each such
telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the
requirements of Section 2.06.
If no election as to the Type of a Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Borrowing, then the Borrower shall be deemed
to have selected an Interest Period of one month's duration. Promptly following
receipt of a Borrowing Request in accordance with this Section the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Revolving Loan to be made as part of the requested
Borrowing.
SECTION 2.04. Swingline Loans. (a) Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline
Loans to the Borrower from time to time during the Revolving Availability
Period, in an aggregate principal amount at any time outstanding that will not
result in (i) the aggregate principal amount of outstanding Swingline Loans
exceeding $25,000,000 or (ii) the aggregate Revolving Exposures exceeding the
aggregate Revolving Commitments; provided that the Swingline Lender shall not
be required to make a Swingline Loan to refinance an outstanding Swingline
Loan. Within the foregoing limits and subject to the terms and conditions set
forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by hand delivery
or telecopy), not later than 12:00 noon, New York City time, on the day of the
proposed Swingline Loan. Each such notice shall be irrevocable and shall
specify the requested date (which shall be a Business Day) and amount of the
requested Swingline Loan. The Administrative Agent will promptly advise the
Swingline Lender of any such notice received from the Borrower. The Swingline
Lender shall make each Swingline Loan available to the Borrower pursuant to
instructions previously agreed upon between the Swingline Lender and the
Borrower by 2:00 p.m., New York City time, on the requested date of such
Swingline Loan.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 12:00 noon, New York City time, on any
Business Day require the Revolving Lenders to acquire participations on such
Business Day in all or a portion of the Swingline Loans outstanding. Such
notice shall specify the aggregate amount of Swingline Loans in which
Revolving Lenders will participate. Promptly upon receipt of such notice, the
Administrative Agent will give notice thereof to each Revolving Lender,
specifying in such notice such Lender's Applicable Revolving Percentage of
such Swingline Loan or Loans. Each Revolving Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to
the Administrative Agent, for the account of the Swingline Lender, such
Lender's Applicable Revolving Percentage of such Swingline Loan or Loans. Each
Revolving Lender acknowledges and agrees that its obligation to acquire
participations in Swingline Loans pursuant to this paragraph is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or reduction or
termination of the Revolving Commitments, and that each such payment shall be
made without any offset, abatement, withholding or reduction whatsoever. Each
Revolving Lender shall comply with its obligations under this paragraph by
wire transfer of immediately available funds, in the same manner as provided
in Section 2.06 with respect to Loans made by such Lender (and Section 2.06
shall apply, mutatis mutandis, to the payment obligations of the Revolving
Lenders), and the Administrative Agent shall promptly pay to the Swingline
Lender the amounts so received by it from the Revolving Lenders. The
Administrative Agent shall promptly notify the Borrower of any participations
in any Swingline Loans acquired pursuant to this paragraph, and thereafter
payments in respect of such Swingline Loans shall be made to the
Administrative Agent and not to the Swingline Lender. Any amounts received by
the Swingline Lender from the Borrower (or other party on behalf of the
Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender
of the proceeds of a sale of participations therein shall be promptly remitted
to the Administrative Agent; any such amounts received by the Administrative
Agent shall be promptly remitted by the Administrative Agent to the Revolving
Lenders that shall have made their payments pursuant to this paragraph and to
the Swingline Lender, as their interests may appear. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not
relieve the Borrower of any default in the payment thereof.
SECTION 2.05. Letters of Credit. (a) General. Subject to the terms
and conditions set forth herein, the Borrower may request any Issuing Bank to
issue Letters of Credit for its own account or, so long as the Borrower is a
joint and several co-applicant with respect thereto, for the account of any of
the Subsidiaries, in a form reasonably acceptable to the Administrative Agent
and the applicable Issuing Bank, at any time and from time to time during the
Revolving Availability Period. In the event of any inconsistency between the
terms and conditions of this Agreement and the terms and conditions of any
form of letter of credit application or other agreement submitted by the
Borrower to, or entered into by the Borrower with, an Issuing Bank relating to
any Letter of Credit, the terms and conditions of this Agreement shall
control. On and after the Effective Date, each Existing Letter of Credit shall
be deemed to be a Revolving Letter of Credit or Tranche A Letter of Credit (as
provided in Schedule 2.05 and subject to clause (b) below) for all purposes
hereof and shall be deemed to have been issued hereunder on the Effective
Date.
(b) Notice of Issuance, Amendment, Renewal and Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or send by telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the applicable Issuing Bank)
to the applicable Issuing Bank and the Administrative Agent (reasonably in
advance of the requested date of issuance, amendment, renewal or extension) a
notice requesting the issuance of such Letter of Credit, or identifying the
Letter of Credit to be amended, renewed or extended, and specifying the date
of issuance, amendment, renewal or extension, as applicable (which shall be a
Business Day), the date on which such Letter of Credit is to expire (which
shall comply with paragraph (c) of this Section), whether such Letter of
Credit shall be a Revolving Letter of Credit or a Tranche A Letter of Credit,
the amount of such Letter of Credit, the name and address of the beneficiary
thereof, the account party for such Letter of Credit and such other
information as shall be necessary to enable the applicable Issuing Bank to
prepare, amend, renew or extend such Letter of Credit. If requested by the
applicable Issuing Bank, the Borrower also shall submit a letter of credit
application on the applicable Issuing Bank's standard form in connection with
any request for a Letter of Credit. A Letter of Credit shall be issued,
amended, renewed or extended only if (and upon issuance, amendment, renewal or
extension of each Letter of Credit the Borrower shall be deemed to represent
and warrant that), after giving effect to such issuance, amendment, renewal or
extension, (i) the aggregate Revolving Exposures will not exceed the aggregate
Revolving Commitments, (ii) the total Tranche A LC Exposure shall not exceed
the aggregate Tranche A LC Commitments and (iii) the Revolving LC Exposure
shall not exceed $200,000,000. By written notice to the Administrative Agent,
the Borrower may redesignate (i) any Revolving Letter of Credit as a Tranche A
Letter of Credit or (ii) any Tranche A Letter of Credit as a Revolving Letter
of Credit if, after giving effect to such designation, the conditions set
forth in the immediately preceding sentence shall be satisfied. Each Issuing
Bank agrees that it will not issue, renew, extend or increase the amount of
any Letter of Credit without first obtaining written confirmation from the
Administrative Agent that such action is then permitted under this Agreement.
(c) Expiration Date. Each Letter of Credit shall expire at or prior
to the close of business on the earlier of (i) the date one year after the
date of the issuance of such Letter of Credit (or, in the case of any renewal
or extension thereof, one year after such renewal or extension) and (ii) the
date that is five Business Days prior to the Revolving Credit/LC Maturity
Date; provided that any Letter of Credit may contain customary automatic
renewal provisions agreed upon by the Borrower and the applicable Issuing Bank
pursuant to which the expiration date shall be automatically extended for a
period of up to 12 months (but not to a date later than the date set forth in
clause (ii) above), subject to a right on the part of such Issuing Bank to
prevent any such renewal from occurring by giving notice to the beneficiary by
a specified time in advance of any such renewal.
(d) Participations. (i) Upon the issuance of a Revolving Letter of
Credit (or an amendment to a Revolving Letter of Credit increasing the amount
thereof) and without any further action on the part of the applicable Issuing
Bank or the Revolving Lenders, the applicable Issuing Bank hereby grants to
each Revolving Lender, and each Revolving Lender hereby acquires from such
Issuing Bank, a participation in such Revolving Letter of Credit equal to such
Revolving Lender's Applicable Revolving Percentage of the aggregate amount
available to be drawn under such Revolving Letter of Credit. In consideration
and in furtherance of the foregoing, each Revolving Lender hereby absolutely
and unconditionally agrees to pay to the Administrative Agent, for the account
of each Issuing Bank, such Revolving Lender's Applicable Revolving Percentage
of each Revolving LC Disbursement made by such Issuing Bank and not reimbursed
by the Borrower on the date due as provided in paragraph (e) of this Section,
or of any reimbursement payment required to be refunded to the Borrower for
any reason. Each Revolving Lender acknowledges and agrees that its obligation
to acquire participations pursuant to this subparagraph in respect of
Revolving Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including any amendment, renewal or
extension of any Revolving Letter of Credit or the occurrence and continuance
of a Default or reduction or termination of the Revolving Commitments, and
that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever.
(ii) By the issuance of a Tranche A Letter of Credit (or an
amendment to a Tranche A Letter of Credit increasing the amount
thereof) and without any further action on the part of the applicable
Issuing Bank or the Tranche A LC Lenders, such Issuing Bank hereby
grants to each Tranche A LC Lender, and each Tranche A LC Lender
hereby acquires from such Issuing Bank, a participation in such
Tranche A Letter of Credit equal to such Tranche A LC Lender's
Applicable Tranche A LC Percentage of the aggregate amount available
to be drawn under such Tranche A Letter of Credit. In consideration
and in furtherance of the foregoing, each Tranche A LC Lender hereby
absolutely and unconditionally agrees that if an Issuing Bank makes a
Tranche A LC Disbursement which is not reimbursed by the Borrower on
the date due as provided in paragraph (e) of this Section, or is
required to refund any reimbursement payment in respect of a Tranche
A LC Disbursement to the Borrower for any reason, the Administrative
Agent shall reimburse the applicable Issuing Bank for such Tranche A
LC Lender's Applicable Tranche A LC Percentage of the amount of such
Tranche A LC Disbursement from such Tranche A LC Lender's Tranche A
Deposit. In the event the Tranche A Deposit Account is charged by the
Administrative Agent to reimburse the applicable Issuing Bank for an
unreimbursed Tranche A LC Disbursement, the Borrower shall pay over
to the Administrative Agent in reimbursement of the applicable
Tranche A LC Disbursement an amount equal to the amount so charged,
as provided in paragraph (e) below, and such payment shall be
deposited by the Administrative Agent in the Tranche A Deposit
Account. Each Tranche A LC Lender acknowledges and agrees that its
obligation to acquire and fund participations in respect of Tranche A
Letters of Credit pursuant to this subparagraph (ii) is unconditional
and irrevocable and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any
Tranche A Letter of Credit or the occurrence and continuance of a
Default or the return of the Tranche A Deposits, and that each such
payment shall be made without any offset, abatement, withholding or
reduction whatsoever. Without limiting the foregoing, each Tranche A
LC Lender irrevocably authorizes the Administrative Agent to apply
amounts of its Tranche A Deposit as provided in this subparagraph
(ii).
(e) Reimbursement. If an Issuing Bank shall make any LC Disbursement
in respect of a Letter of Credit, the Borrower shall reimburse such LC
Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 2:00 p.m., New York City time, on (i) the Business
Day that such Borrower receives notice of such LC Disbursement, if such notice
is received prior to 10:00 a.m., New York City time, on the day of receipt, or
(ii) the Business Day immediately following the day that such Borrower
receives notice of such LC Disbursement, if such notice is not received prior
to such time on the day of receipt; provided that, if such LC Disbursement is
not less than $10,000,000, the Borrower may, subject to the conditions to
borrowing set forth herein, request in accordance with Section 2.03 that such
payment be refinanced with the proceeds of an ABR Revolving Borrowing in an
equivalent amount.
(f) (i) If the Borrower fails to make any payment described in the
foregoing paragraph (e) with respect to a Revolving Letter of Credit, the
Administrative Agent shall notify each Revolving Lender of the applicable
Revolving LC Disbursement, the payment then due from the Borrower in respect
thereof and such Revolving Lender's Applicable Revolving Percentage thereof.
Promptly following receipt of such notice and in no event later than one
Business Day following receipt of such notice, each Revolving Lender shall pay
to the Administrative Agent its Applicable Revolving Percentage of the payment
then due from the Borrower, in the same manner as provided in Section 2.06
with respect to Revolving Loans made by the Revolving Lenders to the Borrower
(and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of
the Revolving Lenders), and the Administrative Agent shall promptly pay to the
applicable Issuing Bank the amounts so received by it from the Revolving
Lenders. Promptly following receipt by the Administrative Agent of any payment
from the Borrower pursuant to this paragraph and in any event within one
Business Day thereafter, the Administrative Agent shall distribute such
payment to the applicable Issuing Bank or, to the extent that Revolving
Lenders have made payments pursuant to this paragraph to reimburse such
Issuing Bank, then to such Revolving Lenders and such Issuing Bank as their
interests may appear. Any payment made by a Revolving Lender pursuant to this
paragraph to reimburse an Issuing Bank for any Revolving LC Disbursement shall
not constitute a Loan and shall not relieve the Borrower of its obligation to
reimburse such Revolving LC Disbursement.
(ii) If the Borrower fails to make any payment described in
the foregoing clause (e) with respect to a Tranche A Letter of
Credit, the Administrative Agent shall notify each Tranche A LC
Lender of the applicable Tranche A LC Disbursement, the payment then
due from the Borrower in respect thereof and such Tranche A LC
Lender's Applicable Tranche A LC Percentage thereof, and the
Administrative Agent shall promptly pay to the applicable Issuing
Bank each Tranche A LC Lender's Applicable Tranche A LC Percentage of
such Tranche A LC Disbursement from such Tranche A LC Lender's
Tranche A Deposit. Promptly following receipt by the Administrative
Agent of any payment by the Borrower in respect of any Tranche A LC
Disbursement, the Administrative Agent shall distribute such payment
to the applicable Issuing Bank or, to the extent payments have been
made from the Tranche A Deposits, to the Tranche A Deposit Account to
be added to the Tranche A Deposits of the Tranche A LC Lenders in
accordance with their Applicable Tranche A LC Percentages. The
Borrower acknowledges that each payment made pursuant to this
subparagraph (ii) in respect of any Tranche A LC Disbursement is
required to be made for the benefit of the distributees indicated in
the immediately preceding sentence. Any payment made from the Tranche
A Deposit Account, or from funds of the Administrative Agent,
pursuant to this paragraph to reimburse an Issuing Bank for any
Tranche A LC Disbursement shall not constitute a Loan and shall not
relieve the Borrower (or any other account party in respect of the
relevant Tranche A Letter of Credit) of its obligation to reimburse
such Tranche A LC Disbursement.
(g) Obligations Absolute. The Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (e) above shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever
and irrespective of (i) any lack of validity or enforceability of any Letter
of Credit or this Agreement, or any term or provision therein, (ii) any draft
or other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by an Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that
might, but for the provisions of this Section, constitute a legal or equitable
discharge of, or provide a right of setoff against, the Borrower's obligations
hereunder. None of the Administrative Agent, the LC Lenders or the Issuing
Banks, or any of their Related Parties, shall have any liability or
responsibility by reason of or in connection with the issuance or transfer of
any Letter of Credit or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in transmission
or delivery of any draft, notice or other communication under or relating to
any Letter of Credit (including any document required to make a drawing
thereunder), any error in interpretation of technical terms or any consequence
arising from causes beyond the control of an Issuing Bank; provided that the
foregoing shall not be construed to excuse any Issuing Bank from liability to
the Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrower to the
extent permitted by applicable law) suffered by the Borrower that are caused
by such Issuing Bank's failure to exercise care when determining whether
drafts and other documents presented under a Letter of Credit comply with the
terms thereof. The parties hereto expressly agree that, in the absence of
gross negligence or wilful misconduct on the part of an Issuing Bank (as
finally determined by a court of competent jurisdiction), such Issuing Bank
shall be deemed to have exercised care in each such determination. In
furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Letter of Credit, the
applicable Issuing Bank may, in its sole discretion, either accept and make
payment upon such documents without responsibility for further investigation,
regardless of any notice or information to the contrary, or refuse to accept
and make payment upon such documents if such documents are not in strict
compliance with the terms of such Letter of Credit.
(h) Disbursement Procedures. Each Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit issued by it. Such Issuing Bank
shall promptly notify the Administrative Agent and the Borrower by telephone
(confirmed by hand delivery or telecopy) of such demand for payment and
whether such Issuing Bank has made or will make an LC Disbursement thereunder;
provided that any failure to give or delay in giving such notice shall not
relieve the Borrower of its obligation to reimburse such Issuing Bank and the
LC Lenders with respect to any such LC Disbursement.
(i) Interim Interest. If an Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse or refinance such LC
Disbursement in full on the date such LC Disbursement is made, the unpaid
amount thereof shall bear interest, for each day from and including the date
such LC Disbursement is made to but excluding the date that the Borrower
reimburses such LC Disbursement, at a rate per annum (computed in accordance
with Section 2.13(e)) equal to (i) with respect to any unreimbursed Revolving
LC Disbursement, the rate then applicable to ABR Revolving Loans and (ii) with
respect to any unreimbursed Tranche A LC Disbursement, the rate then
applicable to ABR Term Loans; provided that, if the Borrower fails to
reimburse such LC Disbursement when due pursuant to paragraph (e) of this
Section, then Section 2.13(c) shall apply. Interest accrued pursuant to this
paragraph shall be for the account of the applicable Issuing Bank, except that
interest accrued on and after the date of payment by any LC Lender pursuant to
paragraph (e) of this Section to reimburse such Issuing Bank shall be for the
account of such Lender to the extent of such payment.
(j) Termination of an Issuing Bank. Any Issuing Bank may cease to be
an Issuing Bank at any time by written agreement among the Borrower, the
Administrative Agent and such Issuing Bank. The Administrative Agent shall
promptly notify the LC Lenders of any such termination of an Issuing Bank. At
the time any such termination shall become effective, the Borrower shall pay
all unpaid fees accrued for the account of the terminated Issuing Bank
pursuant to Section 2.12. After the termination of an Issuing Bank hereunder,
such Issuing Bank shall remain a party hereto and shall continue to have all
the rights and obligations of an Issuing Bank under this Agreement with
respect to Letters of Credit issued by it prior to such termination, but shall
not be required to issue additional Letters of Credit.
(k) Additional Issuing Banks. The Borrower may, at any time and from
time to time, with the consent of the Administrative Agent (which consent
shall not be unreasonably withheld, delayed or conditioned) and the designated
Lender, designate one or more additional Lenders to act as an Issuing Bank
under the terms of this Agreement, and any Lender so designated shall become
an Issuing Bank hereunder.
(l) Issuing Bank Reports. Unless otherwise agreed by the
Administrative Agent, each Issuing Bank shall report in writing to the
Administrative Agent (i) on or prior to each Business Day on which such
Issuing Bank issues, amends, renews or extends any Letter of Credit, the date
of such issuance, amendment, renewal or extension, and the aggregate face
amount of the Letters of Credit issued, amended, renewed or extended by it and
outstanding after giving effect to such issuance, amendment, renewal or
extension (and whether the amount thereof shall have changed), (ii) on each
Business Day on which such Issuing Bank makes any LC Disbursement, the date
and amount of such LC Disbursement, (iii) on any Business Day on which the
Borrower fails to reimburse an LC Disbursement required to be reimbursed to
such Issuing Bank on such day, the date of such failure and the amount of such
LC Disbursement and (iv) on any other Business Day, such other information as
the Administrative Agent shall reasonably request as to the Letters of Credit
issued by such Issuing Bank and outstanding on such Business Day.
(m) Cash Collateralization. If any Event of Default shall occur and
be continuing, on the Business Day that the Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of any Loans
has been accelerated, LC Lenders with LC Exposures representing greater than
50% of the total LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, the Borrower shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for the
ratable benefit of the Lenders, an amount in cash equal to the LC Exposure as
of such date plus any accrued and unpaid interest thereon; provided that the
obligation to deposit such cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or
other notice of any kind, upon the occurrence of any Event of Default with
respect to the Borrower described in clause (h) or (i) of Section 7.01. Such
deposit shall be held by the Administrative Agent as collateral for the
payment and performance of the Obligations under this Agreement. The
Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Other than any interest
earned on the investment of such deposits, which investments shall be made at
the option and sole discretion of the Administrative Agent and at the
Borrower's risk and expense (provided that such cash collateral shall be
invested solely in investments that provide for preservation of capital), such
deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall be
applied by the Administrative Agent to reimburse the Issuing Banks for LC
Disbursements for which they have not been reimbursed and, to the extent not
so applied, shall be held for the satisfaction of the reimbursement
obligations of the Borrower for the LC Exposure at such time or, if the
maturity of the Loans has been accelerated (but subject to the consent of LC
Lenders with LC Exposures representing greater than 50% of the total LC
Exposure), be applied to satisfy other obligations of the Borrower under this
Agreement. If the Borrower is required to deposit cash collateral hereunder as
a result of the occurrence of an Event of Default, such amount (to the extent
not applied as aforesaid) shall be returned to the Borrower (i) within three
Business Days after all Events of Default have been cured or waived and (ii)
immediately after the payment and performance in full of all Obligations
hereunder and the termination of this Agreement.
(n) Rights of Issuing Bank. Each Issuing Bank shall, to the extent
applicable, have all of the benefits and immunities provided to the
Administrative Agent under this Agreement with respect to any actions taken or
not taken by such Issuing Bank in connection with Letters of Credit.
(o) Establishment of Tranche A Deposit Account and Sub-Accounts. On
or prior to the Effective Date, the Administrative Agent shall establish a
deposit account (the "Tranche A Deposit Account") of the Administrative Agent
at JPMorgan Chase Bank, N.A., New York branch, with the title "HealthSouth
2006 Credit Agreement Tranche A Deposit Account". The Administrative Agent
shall maintain records enabling it to determine at any time the amount of the
interest of each Tranche A LC Lender in the Tranche A Deposit Account (the
interest of each Tranche A LC Lender in the Tranche A Deposit Account, as
evidenced by such records, being referred to as such Tranche A LC Lender's
"Sub-Account"). The Administrative Agent shall establish such additional
Sub-Accounts for assignee Tranche A LC Lenders as shall be required pursuant
to Section 9.04(b). No Person (other than the Administrative Agent) shall have
the right to make any withdrawal from the Tranche A Deposit Account or to
exercise any other right or power with respect thereto except as expressly
provided in paragraph (q) below or in Section 9.04(b). Without limiting the
generality of the foregoing, each party hereto acknowledges and agrees that
the Tranche A Deposits are and will at all times be property of the Tranche A
LC Lenders, and that no amount on deposit at any time in the Tranche A Deposit
Account shall be the property of any of the Loan Parties, constitute
"Collateral" under the Loan Documents or otherwise be available in any manner
to satisfy any Obligations of any of the Loan Parties under the Loan
Documents. Each Tranche A LC Lender agrees that its right, title and interest
in and to the Tranche A Deposit Account shall be limited to the right to
require amounts in its Sub-Account to be applied as provided in paragraph (q)
below and that it will have no right to require the return of its Tranche A
Deposit other than as expressly provided in such paragraph (q) (each Tranche A
LC Lender hereby acknowledging (i) that its Tranche A Deposit constitutes
payment for its participations in Tranche A Letters of Credit issued or to be
issued hereunder, (ii) that its Tranche A Deposit and any investments made
therewith shall secure its obligations to the Issuing Banks hereunder (each
Tranche A LC Lender hereby granting to the Administrative Agent, for the
benefit of the Issuing Banks, a security interest in its Tranche A Deposit and
agreeing that the Administrative Agent, as holder of the Tranche A Deposits
and any investments made therewith, will be acting, inter alia, as collateral
agent for the Issuing Banks) and (iii) that the Issuing Banks will be issuing,
amending, renewing and extending Tranche A Letters of Credit in reliance on
the availability of such Tranche A LC Lender's Tranche A Deposit to discharge
such Tranche A LC Lender's obligations in accordance with Section 2.05(e) in
connection with any Tranche A LC Disbursement thereunder). The funding of the
Tranche A Deposits and the agreements with respect thereto set forth in this
Agreement constitute arrangements among the Administrative Agent, the Issuing
Banks and the Tranche A LC Lenders with respect to the funding obligations of
the Tranche A LC Lenders under this Agreement, and the Tranche A Deposits do
not constitute loans or extensions of credit to any Loan Party. No Loan Party
shall have any responsibility or liability to the Tranche A LC Lenders, the
Agents or any other Person in respect of the establishment, maintenance,
administration or misappropriation of the Tranche A Deposit Account (or any
Sub-Account) or with respect to the investment of amounts held therein,
including pursuant to paragraph (r) below. JPMorgan Chase Bank, N.A. hereby
waives any right of setoff against the Tranche A Deposits that it may have
under applicable law or otherwise with respect to amounts owed to it by
Tranche A LC Lenders (it being agreed that such waiver shall not reduce the
rights of JPMorgan Chase Bank, N.A., in its capacity as an Issuing Bank or
otherwise, to apply or require the application of the Tranche A Deposits in
accordance with the provisions of this Agreement).
(p) Tranche A Deposits in Tranche A Deposit Account. The following
amounts will be deposited in the Tranche A Deposit Account at the following
times:
(i) On the Effective Date, each Tranche A LC Lender shall
deposit in the Tranche A Deposit Account an amount in dollars equal
to such Tranche A LC Lender's Tranche A Deposit. Thereafter, the
Tranche A Deposits shall be available, on the terms and subject to
the conditions set forth herein, for application pursuant to Section
2.05(e) to reimburse such Tranche A LC Lender's Applicable Tranche A
LC Percentage of Tranche A LC Disbursements that are not reimbursed
by the Borrower. The obligations of the Tranche A LC Lenders to make
the deposits required by this subparagraph (i) are several, and no
Tranche A LC Lender shall be responsible for any other Tranche A LC
Lender's failure to make its deposit as so required.
(ii) On any date prior to the Revolving Credit/LC Maturity
Date on which the Administrative Agent or any Issuing Bank receives
any reimbursement payment from the Borrower in respect of a Tranche A
LC Disbursement with respect to which amounts were withdrawn from the
Tranche A Deposit Account to reimburse any Issuing Bank, subject to
subparagraph (iv) below, the Administrative Agent shall deposit in
the Tranche A Deposit Account, and credit to the Sub-Accounts of the
Tranche A LC Lenders, the portion of such reimbursement payment to be
deposited therein, in accordance with Section 2.05(e).
(iii) If at any time when any amount is required to be
deposited in the Tranche A Deposit Account under subparagraph (ii)
above the sum of such amount and the aggregate amount of the Tranche
A Deposits at such time would exceed the total Tranche A Deposits,
then such excess shall not be deposited in the Tranche A Deposit
Account and the Administrative Agent shall instead pay to each
Tranche A LC Lender its Tranche A LC Applicable Percentage of such
excess.
(iv) Concurrently with the effectiveness of any assignment
by any Tranche A LC Lender of all or any portion of its Tranche A
Deposit, the Administrative Agent shall transfer into the Sub-Account
of the assignee the corresponding portion of the amount on deposit in
the assignor's Sub-Account in accordance with Section 9.04(b)(ii)(F).
(q) Withdrawals From and Closing of Tranche A Deposit Account.
Amounts on deposit in the Tranche A Deposit Account shall be withdrawn and
distributed (or transferred, in the case of subparagraph (v) below) as
follows:
(i) On each date on which an Issuing Bank is to be
reimbursed by the Tranche A LC Lenders pursuant to Section 2.05(e)
for any Tranche A LC Disbursement, the Administrative Agent shall
withdraw from the Tranche A Deposit Account the amount of such
unreimbursed Tranche A LC Disbursement (and debit the Sub-Account of
each Tranche A LC Lender in the amount of such Tranche A LC Lender's
Applicable Tranche A LC Percentage of such unreimbursed Tranche A LC
Disbursement) and make such amount available to such Issuing Bank in
accordance with Section 2.05(e).
(ii) Concurrently with each voluntary reduction of the total
Tranche A LC Commitments pursuant to and in accordance with Section
2.08, the Administrative Agent shall withdraw from the Tranche A
Deposit Account and pay to each Tranche A LC Lender such Tranche A LC
Lender's Applicable Tranche A LC Percentage of any amount by which
the Tranche A Deposits, after giving effect to such reduction of the
total Tranche A LC Commitments, would exceed the greater of the total
Tranche A LC Commitments and the total Tranche A LC Exposure.
(iii) Concurrently with any reduction of the total Tranche A
LC Commitments to zero pursuant to and in accordance with Section
2.08 or Article VII, the Administrative Agent shall withdraw from the
Tranche A Deposit Account and pay to each Tranche A LC Lender such
Tranche A LC Lender's Applicable Tranche A LC Percentage of the
excess at such time of the aggregate amount of the Tranche A Deposits
over the Tranche A LC Exposure.
(iv) Concurrently with the effectiveness of any assignment
by any Tranche A LC Lender of all or any portion of its Tranche A
Deposit, the corresponding portion of the assignor's Sub-Account
shall be transferred from the assignor's Sub-Account to the
assignee's Sub-Account in accordance with Section 9.04(b) and, if
required by Section 9.04(b), the Administrative Agent shall close
such assignor's Sub-Account.
(v) Upon the reduction of each of the total Tranche A LC
Commitments and the Tranche A LC Exposure to zero, the Administrative
Agent shall withdraw from the Tranche A Deposit Account and pay to
each Tranche A LC Lender the entire remaining amount of such Tranche
A LC Lender's Tranche A Deposit, and shall close the Tranche A
Deposit Account.
Each Tranche A LC Lender irrevocably and unconditionally agrees that its Tranche
A Deposit may be applied or withdrawn from time to time as set forth in this
paragraph (q).
(r) Investment of Amounts in Tranche A Deposit Account. The
Administrative Agent shall invest, or cause to be invested, the Tranche A
Deposit of each Tranche A LC Lender so as to earn for the account of such
Tranche A LC Lender a return thereon (the "Tranche A Deposit Return") for each
day at a rate per annum equal to (i) the one month LIBOR rate as determined by
the Administrative Agent on such day (or if such day was not a Business Day,
the first Business Day immediately preceding such day) based on rates for
deposits in dollars (as set forth by Bloomberg L.P.-page BTMM or any other
comparable publicly available service as may be selected by the Administrative
Agent) (the "Benchmark LIBO Rate") minus (ii) 0.10% per annum (based on a
365/366 day year). The Benchmark LIBO Rate will be reset on each Business Day.
The Tranche A Deposit Return accrued through and including the last day of
March, June, September and December of each year shall be payable by the
Administrative Agent to each Tranche A LC Lender on the third Business Day
following such last day, commencing on the first such date to occur after the
Effective Date, and on the date on which each of the total Tranche A Deposits
and the Tranche A LC Exposure shall have been reduced to zero, and the
Administrative Agent agrees to pay to each Tranche A LC Lender the amount due
to it under this sentence. In addition, the Borrower agrees to pay to the
Administrative Agent for the account of each Tranche A LC Lender an additional
amount (payable in arrears on each date that participation fees are payable to
each such Tranche A LC Lender in accordance with Section 2.12), accruing at
the rate of 0.10% per annum (based on a 365/366 day year), on the daily amount
of the Tranche A Deposit of such Lender during the period from and including
the date hereof to but excluding the date on which each of the Tranche A
Deposits and the Tranche A LC Exposure have been reduced to zero.
(s) Sub-Agents. As provided in Article VIII, the Administrative Agent
may perform any and all its duties and exercise its rights and powers
contemplated by this Section 2.05 by or through one or more sub-agents
appointed by it (which may include any of its Affiliates). The parties hereto
acknowledge that on or prior to the Effective Date the Administrative Agent
has engaged JPMorgan Chase Institutional Trust Services to act as its
sub-agent in connection with the Tranche A Deposit Account, and that in such
capacity JPMorgan Chase Institutional Trust Services shall be entitled to the
benefit of all the provisions of this Agreement contemplated by Article VIII,
including the provisions of Section 9.03.
(t) Sufficiency of Tranche A Deposits to Provide for
Undrawn/Unreimbursed Tranche A LC Exposure. Notwithstanding any other
provision of this Agreement, including Sections 2.01 and 2.05, no Tranche A
Letter of Credit shall be issued or increased as to its stated amount, if
after giving effect to such issuance or increase, the aggregate amount of the
Tranche A Deposits would be less than the Tranche A LC Exposure. The
Administrative Agent agrees to provide, at the request of any Issuing Bank,
information to such Issuing Bank as to the aggregate amount of the Tranche A
Deposits and the Tranche A LC Exposure.
(u) Satisfaction of Tranche A LC Lender Funding Obligations. The
Borrower and each Issuing Bank acknowledges and agrees that notwithstanding
any other provision contained herein, the deposit by each Tranche A LC Lender
in the Tranche A Deposit Account on the Effective Date of funds equal to its
Tranche A Deposit will fully discharge the obligation of such Tranche A LC
Lender to reimburse such Tranche A LC Lender's Applicable Tranche A Percentage
of Tranche A LC Disbursements that are not reimbursed by the Borrower pursuant
to Section 2.05(e), and that no other or further payments shall be required to
be made by any Tranche A LC Lender in respect of any such reimbursement
obligations.
SECTION 2.06. Funding of Borrowings. (a) Subject to Section 2.03,
each Lender shall make each Loan to be made by it hereunder on the date
thereof by wire transfer of immediately available funds by 12:00 noon, New
York City time, to the account of the Administrative Agent most recently
designated by it for such purpose by notice to the applicable Lenders. The
Administrative Agent will make such Loans available to the Borrower by
promptly crediting the amounts so received, in like funds, to an account of
the Borrower maintained with the Administrative Agent in New York City and
designated by the Borrower in the applicable Borrowing Request or by wire
transfer of immediately available funds to such other account as provided in
writing by the Borrower and reasonably acceptable to the Administrative Agent;
provided that ABR Revolving Loans made to finance the reimbursement of an LC
Disbursement as provided in Section 2.05(e) shall be remitted by the
Administrative Agent to the applicable Issuing Bank.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its
share of the applicable 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 with
interest thereon, for each day from and including the date such amount is made
available to the Borrower to but excluding the date of payment to the
Administrative Agent, at (i) in the case of such Lender, the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation or (ii) in
the case of the Borrower, the interest rate applicable to the applicable
Borrowing. If such Lender pays such amount to the Administrative Agent, then
such amount shall constitute such Lender's Loan included in such Borrowing.
SECTION 2.07. Interest Elections. (a) The Term Borrowings and any
Revolving Borrowings made on the Effective Date shall initially be ABR
Borrowings or, if agreed to by the Administrative Agent, LIBOR Borrowings.
Each subsequent Revolving Borrowing initially shall be of the Type specified
in the applicable Borrowing Request and, in the case of a Eurodollar
Borrowing, shall have an initial Interest Period as specified in such
Borrowing Request. Thereafter, the Borrower may elect to convert any such
Borrowing (or any part thereof) to a different Type or to continue such
Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest
Periods therefor, all as provided in this Section. The Borrower may elect
different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among
the Lenders holding the Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that
a Borrowing Request would be required under Section 2.03 if the Borrower were
requesting a Borrowing of the Type resulting from such election to be made on
the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery
or telecopy to the Administrative Agent of a written Interest Election Request
in a form approved by the Administrative Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be
specified pursuant to clauses (iii) and (iv) below shall be specified
for each resulting Borrowing);
(ii) the effective date of the election made pursuant to
such Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is to be a Eurodollar
Borrowing, the Interest Period to be applicable thereto after giving
effect to such election, which shall be a period contemplated by the
definition of the term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly, and in no event later than one Business Day, following
receipt of an Interest Election Request the Administrative Agent shall advise
each Lender of the details thereof and of such Lender's portion of each
resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof,
if an Event of Default has occurred and is continuing and the Administrative
Agent, at the request of the Required Lenders, so notifies the Borrower, then,
so long as an Event of Default is continuing (i) no outstanding Borrowing may
be converted to or continued as a Eurodollar Borrowing and (ii) unless repaid,
each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of
the Interest Period applicable thereto.
SECTION 2.08. Termination and Reduction of Commitments. (a) Unless
previously terminated, the Term Commitments will terminate immediately
following the making of the Term Loans on the Effective Date. Unless
previously terminated, the Revolving Commitments (together with the
obligations of the Issuing Banks to issue, amend, renew or extend Letters of
Credit) will terminate on the Revolving Credit/LC Maturity Date.
(b) The Borrower may at any time terminate, or from time to time
reduce, the Commitments of any Class; provided that (i) each reduction of the
Commitments of a Class shall be in an amount that is an integral multiple of
$1,000,000 and not less than $5,000,000, (ii) the Borrower shall not terminate
or reduce the Revolving Commitments if, after giving effect to any concurrent
prepayment of the Revolving Loans, the Revolving Exposure would exceed the
aggregate Revolving Commitments and (iii) the Borrower shall not terminate or
reduce the Tranche A LC Commitments if, after giving effect to any concurrent
reimbursement of Tranche A LC Disbursements, the Tranche A LC Exposure would
exceed the aggregate Tranche A LC Commitments.
(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Revolving Commitments under paragraph (b)
of this Section at least three Business Days prior to the effective date of
such termination or reduction, specifying such election and the effective date
thereof. Promptly and in no event later than one Business Day following
receipt of any notice, the Administrative Agent shall advise the Lenders and
each Issuing Bank, of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable; provided that a notice
of termination of the Revolving Commitments delivered by the Borrower may
state that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrower (by
notice to the Administrative Agent on or prior to the specified effective
date) if such condition is not satisfied. Any termination or reduction of the
Revolving Commitments shall be permanent. Each reduction of the Revolving
Commitments shall be made ratably among the applicable Lenders in accordance
with their respective Revolving Commitments.
SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay (i) to the Administrative Agent for the
account of the applicable Revolving Lender the then unpaid principal amount of
each Revolving Loan on the Revolving Credit/LC Maturity Date and (ii) to the
Administrative Agent for the account of the applicable Term Lender the then
unpaid principal amount of each Term Loan as provided in Section 2.10.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans of any Class made by it be
evidenced by a promissory note. In such event, the Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) and in a form reasonably acceptable to the Administrative
Agent. Thereafter, the Loans evidenced by such promissory note and interest
thereon shall at all times (including after assignment pursuant to Section
9.04) be represented by one or more promissory notes in such form payable to
the order of the payee named therein (or, if such promissory note is a
registered note, to such payee and its registered assigns).
SECTION 2.10. Amortization and Repayment of Term Loans. (a) Subject
to adjustment pursuant to paragraph (c) of this Section, the Borrower shall
repay Term Borrowings commencing on September 30, 2006, and continuing on the
last day of each December, March, June and September occurring thereafter and
prior to the Term Maturity Date (each a "Scheduled Payment Date"), in an
aggregate principal amount for each such date equal to 0.25% of the aggregate
principal amount of the Term Loans outstanding as of the Effective Date. Each
payment of Term Loans pursuant to this paragraph shall be accompanied by
accrued interest on the principal amount paid to but excluding the date of
payment.
(b) To the extent not previously paid, all Term Loans shall be due
and payable on the Term Maturity Date.
(c) Any mandatory or optional prepayment of a Term Borrowing shall be
applied to reduce ratably the subsequent scheduled repayments of the Term
Borrowings to be made pursuant to this Section.
SECTION 2.11. Prepayment of Loans; Cash Collateralization of Letters
of Credit. (a) The Borrower shall have the right at any time and from time to
time to prepay any Borrowing in whole or in part, subject to the requirements
of this Section and payment of any amounts required under Section 2.16;
provided, that each such partial repayment shall be in an integral multiple of
$1,000,000 and not less than $5,000,000.
(b) In the event and on each occasion that the aggregate Revolving
Exposures exceed the aggregate Revolving Commitments, the Borrower shall
prepay Revolving Borrowings in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are
received or held by or on behalf of the Borrower or any Subsidiary in respect
of any Prepayment Event, the Borrower shall, within three Business Days after
such Net Proceeds are received (or any amounts theretofore received become Net
Proceeds), prepay Borrowings and/or cash collateralize Letters of Credit in
accordance with and subject to paragraphs (e) and (f) below in an aggregate
amount equal to (i) 100% of such Net Proceeds in the case of a Prepayment
Event referred to in clause (b), (c) or (e) of the definition of such term,
(ii) 50% of such Net Proceeds in the case of a Prepayment Event referred to in
clause (a) of the definition of such term and (iii) 50% (or, if the Leverage
Ratio as of the end of the most recent fiscal quarter of the Borrower ending
after the Effective Date for which financial statements shall have been
delivered pursuant to Section 5.01 shall have been (i) less than 4.50 to 1.00
but greater than 4.00 to 1.00, 25% and (ii) less than 4.00 to 1.00, 0%) of
such Net Proceeds in the case of a Prepayment Event referred to in clause (d)
of the definition of such term. Notwithstanding the foregoing:
(i) in the case of any event described in clause (a) of the
definition of the term Prepayment Event, if the Borrower shall
deliver to the Administrative Agent within five Business Days of such
event a certificate of a Financial Officer to the effect that the
Borrower and the Subsidiaries intend to apply the Net Proceeds from
such event (or a portion thereof specified in such certificate),
within 270 days after receipt of such Net Proceeds, to acquire
Syndicated Interests or real property, equipment or other assets to
be used in the business of the Borrower and the Subsidiaries and, in
each case, certifying that no Default has occurred and is continuing,
then no prepayment shall be required pursuant to this paragraph in
respect of such Net Proceeds (or the portion of such Net Proceeds
specified in such certificate, if applicable) except to the extent of
any such Net Proceeds that have not been so applied by the end of the
applicable time period (or committed to be applied by the end of the
applicable time period and applied within 90 days after the end of
the applicable time period), at which applicable time, a prepayment
shall be required (to the extent not already made) in an amount equal
to the amount of such Net Proceeds that have not been so applied;
provided that the Borrower shall not be permitted to make such
elections with respect to Net Proceeds in any Fiscal Year aggregating
in excess of $100,000,000; and
(ii) in the case of any Prepayment Event referred to in
clause (b) of the definition of such term, no prepayment shall be
required under this paragraph (c) in respect of Net Proceeds that
have been in the possession of or available to the Borrower or the
applicable Subsidiary for fewer than 270 days, or that shall have
been applied or committed to be applied during the period of 270 days
after they shall have been received by or become available to the
Borrower or the applicable Subsidiary to repair, restore or replace
the property or asset that shall have been the subject of such
Prepayment Event or to acquire real property, equipment or other
tangible assets used or useful in the business of the Borrower and
the Subsidiaries.
(d) Following the end of each fiscal year of the Borrower, commencing
with the fiscal year ending on December 31, 2006, the Borrower shall prepay
Borrowings and/or cash collateralize Letters of Credit in accordance with
paragraphs (e) and (f) of this Section in an aggregate amount equal to 50%
(or, if the Leverage Ratio as of the end of such fiscal year shall have been
(i) less than 4.50 to 1.00 but greater than 4.00 to 1.00, 25% and (ii) less
than 4.00 to 1.00, 0%) of Excess Cash Flow for such fiscal year. Each
prepayment pursuant to this paragraph shall be made within three Business Days
after the date on which financial statements are delivered pursuant to Section
5.01 with respect to the fiscal year for which Excess Cash Flow is being
calculated (and in any event within 90 days after the end of such fiscal
year).
(e) All amounts required to be paid pursuant to paragraph (c) or (d)
of this Section shall be applied as follows: (i) first, to prepay Term
Borrowings; and (ii) second, after all Term Loans have been repaid, to prepay
Revolving Borrowings (without a corresponding reduction in the Revolving
Commitments). Subject to the sequence of application with respect to mandatory
prepayments set forth above, prior to any optional or mandatory prepayment of
Borrowings hereunder, the Borrower shall select the Borrowing or Borrowings to
be prepaid, and shall specify such selection in the notice of such prepayment
pursuant to paragraph (f) of this Section.
(f) The Borrower shall, to the extent practicable, notify the
Administrative Agent by telephone (confirmed by hand delivery or telecopy) of
any prepayment or cash collateralization of Letters of Credit hereunder (i) in
the case of a prepayment of a Eurodollar Borrowing, not later than 1:00 p.m.,
New York City time, three Business Days before the date of prepayment or (ii)
in the case of prepayment of an ABR Borrowing or cash collateralization of a
Letter of Credit, not later than 1:00 p.m., New York City time, one Business
Day before the date of prepayment or cash collateralization. Each such notice
shall be irrevocable and shall specify the prepayment or cash
collateralization date, the principal amount of each Borrowing or portion
thereof to be prepaid and, in the case of a mandatory prepayment or cash
collateralization, a reasonably detailed calculation of the amount of such
prepayment or cash collateralization; provided, that if a notice of optional
prepayment is given in connection with a conditional notice of termination of
the Revolving Commitments as contemplated by Section 2.08, then such notice of
prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.08. Promptly following receipt of any such notice,
the Administrative Agent shall advise the Lenders of the contents thereof.
Each partial prepayment of any Borrowing shall be in an amount that would be
permitted in the case of an advance of a Borrowing of the same Type as
provided in Section 2.02, except as necessary to apply fully the required
amount of a mandatory prepayment. Each prepayment of a Borrowing shall be
applied ratably to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest to the extent required by Section
2.13.
(g) All voluntary prepayments of Term Loans effected on or prior to
the first anniversary of the Effective Date with the proceeds of a
substantially concurrent issuance or incurrence of Indebtedness under any bank
credit facility (including any replacement or incremental term loan facility
effected pursuant to an amendment of this Agreement) will be accompanied by a
prepayment fee equal to 1.00% of the aggregate principal amount of such
prepayment if the Applicable Rate or similar interest rate spread applicable
to such Indebtedness is, or upon satisfaction of certain conditions could be,
less than the Applicable Rate that would apply to the Term Loans (based on the
definition of Applicable Rate as in effect on the Effective Date). Such fee
shall be paid by the Borrower to the Administrative Agent, for the accounts of
the Term Lenders, on the date of such prepayment.
SECTION 2.12. Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee, which
shall accrue at the Applicable Rate, on the daily unused amount of the
Revolving Commitment of such Lender during the period from and including the
Effective Date to but excluding the date on which such Commitments terminates.
Accrued commitment fees shall be payable in arrears on the last day of March,
June, September and December of each year and on the date on which the last of
the Revolving Commitments terminates, commencing on the first such date to
occur after the Effective Date. All commitment fees shall be computed on the
basis of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day). For purposes of
computing commitment fees, the Revolving Commitment of a Lender shall be
deemed to be used to the extent of the outstanding Revolving Loans and
Revolving LC Exposure of such Lender (and the Swingline Exposure of such
Lender shall be disregarded for such purpose).
(b) The Borrower agrees to pay (i) to the Administrative Agent for
the account of each Revolving Lender a participation fee with respect to its
participations in Revolving Letters of Credit, which shall accrue at the same
Applicable Rate used to determine the interest rate applicable to Eurodollar
Revolving Loans on the average daily amount of such Lender's Revolving LC
Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date to but
excluding the later of the date on which such Lender's Revolving Commitment
terminates and the date on which such Lender ceases to have any Revolving LC
Exposure, (ii) to the Administrative Agent for the account of each Tranche A
LC Lender a participation fee with respect to its participations and
commitment to participate in Tranche A Letters of Credit, which shall accrue
at the same Applicable Rate used to determine the interest rate applicable to
Eurodollar Term Loans, on the average daily amount of such Lender's Tranche A
Deposit (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date to but
excluding the date on which such Tranche A Lender's Tranche A Deposit is
returned to it, and (iii) to each Issuing Bank a fronting fee, which shall
accrue at the rate of 0.25% per annum on the average daily amount of the
portion of the LC Exposure attributable to Letters of Credit issued by such
Issuing Bank (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date to but
excluding the later of the date of termination of the LC Commitments and the
date on which there ceases to be any LC Exposure, as well as each Issuing
Bank's standard fees with respect to the issuance, amendment, renewal or
extension of any Letter of Credit or processing of drawings thereunder.
Participation fees and fronting fees accrued through and including the last
day of March, June, September and December of each year shall be payable on
the third Business Day following such last day, commencing on the first such
date to occur after the Effective Date; provided that all such fees shall be
payable on the date on which the LC Commitments terminate and any such fees
accruing after the date on which the LC Commitments terminate shall be payable
on demand. Any other fees payable to any Issuing Bank pursuant to this
paragraph shall be payable within 10 days after demand. All participation fees
and fronting fees shall be computed on the basis of a year of 360 days and
shall be payable for the actual number of days elapsed (including the first
day but excluding the last day). In addition to the foregoing fees, the
Borrower agrees to pay to the Administrative Agent for the Account of each
Tranche A LC Lender, the fees set forth in Section 2.05(r).
(c) The Borrower agrees to pay to the Administrative Agent, for its
own account, fees payable in the amounts and at the times separately agreed
upon between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to each Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
commitment fees and participation fees, to the Lenders. Fees paid shall not be
refundable under any circumstances.
SECTION 2.13. Interest. (a) The Loans comprising each ABR Borrowing
shall bear interest at the Alternate Base Rate plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or interest on
any Loan or LC Disbursement or any fee or other amount payable by the Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration
or otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of
any Loan, 2.00% per annum plus the rate otherwise applicable to such Loan as
provided in the preceding paragraphs of this Section, (ii) in the case of
overdue unreimbursed amounts with respect to any LC Disbursement, 2.00% per
annum plus the rate otherwise applicable to such LC Disbursement as provided
in Section 2.05 or (iii) in the case of any other amount, 2.00% per annum plus
the rate applicable to ABR Loans as provided in paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Revolving Commitments; provided that (i) interest accrued
pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in
the event of any repayment or prepayment of any Loan (other than a prepayment
of an ABR Revolving Loan prior to the end of the Availability Period), accrued
interest on the principal amount repaid or prepaid shall be payable on the
date of such repayment or prepayment and (iii) in the event of any conversion
of any Eurodollar Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective date
of such conversion. (e) All interest hereunder shall be computed on the basis
of a year of 360 days, except that interest computed by reference to the
Alternate Base Rate at times when the Alternate Base Rate is based on the
Prime Rate shall be computed on the basis of a year of 365 days (or 366 days
in a leap year), and in each case shall be payable for the actual number of
days elapsed (including the first day but excluding the last day). The
applicable Alternate Base Rate or Adjusted LIBO Rate shall be determined by
the Administrative Agent, and such determination shall be conclusive absent
manifest error.
SECTION 2.14. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and
reasonable means do not exist for ascertaining the Adjusted LIBO Rate
for such Interest Period; or
(b) the Administrative Agent is advised by the Lenders with
a majority in principal amount of the Revolving Commitments, Term
Loans or Tranche A Deposits that the Adjusted LIBO Rate or the
Tranche A Deposit Return, as applicable, for such Interest Period
will not adequately and fairly reflect the cost to such Lenders of
making or maintaining their Loans included in such Borrowing or
maintaining such Tranche A Deposits, as applicable, for such Interest
Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing.
SECTION 2.15. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or
for the account of, or credit extended by, any Lender (except any
such reserve requirement reflected in the Adjusted LIBO Rate) or
Issuing Bank; or
(ii) impose on any Lender or Issuing Bank or the London
interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein or any Tranche A Deposit;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or
Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
any Tranche A Deposit or to reduce the amount of any sum received or receivable
by such Lender or Issuing Bank hereunder (whether of principal, interest or
otherwise), then the Borrower will pay to such Lender or Issuing Bank, as the
case may be, such additional amount or amounts as will compensate such Lender or
Issuing Bank, as the case may be, for such additional costs incurred or
reduction suffered.
(b) If any Lender or Issuing Bank determines that any Change in Law
regarding capital requirements has or would have the effect of reducing the
rate of return on such Lender's or Issuing Bank's capital or on the capital of
such Lender's or Issuing Bank's holding company, if any, as a consequence of
this Agreement or the Loans made by, or participations in Letters of Credit
held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to
a level below that which such Lender or Issuing Bank or such Lender's or
Issuing Bank's holding company could have achieved but for such Change in Law
(taking into consideration such Lender's or Issuing Bank's policies and the
policies of such Lender's or Issuing Bank's holding company with respect to
capital adequacy), then from time to time the Borrower will pay to such Lender
or Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or Issuing Bank or such Lender's or Issuing Bank's
holding company for any such reduction suffered.
(c) A certificate of a Lender or Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or Issuing Bank or its
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender or Issuing Bank, as the
case may be, the amount shown as due on any such certificate within 10 days
after receipt thereof.
(d) Failure or delay on the part of any Lender or Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or Issuing Bank's right to demand such compensation; provided
that the Borrower shall not be required to compensate a Lender or Issuing Bank
pursuant to this Section for any increased costs or reductions incurred more
than 270 days prior to the date that such Lender or Issuing Bank, as the case
may be, notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender's or Issuing Bank's intention
to claim compensation therefor; provided further that, if the Change in Law
giving rise to such increased costs or reductions is retroactive, then the
270-day period referred to above shall be extended to include the period of
retroactive effect thereof.
SECTION 2.16. Break Funding Payments. In the event of (a) the payment
of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Eurodollar Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked
under Section 2.11(f) and is revoked in accordance therewith), or (d) the
assignment of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.19, then, in any such event, the Borrower shall compensate each
Lender for the loss, cost and expense attributable to such event. In the case
of a Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed
to include an amount determined by such Lender to be the excess, if any, of
(i) the amount of interest which would have accrued on the principal amount of
such Loan had such event not occurred, at the Adjusted LIBO Rate that would
have been applicable to such Loan, for the period from the date of such event
to the last day of the then current Interest Period therefor (or, in the case
of a failure to borrow, convert or continue, for the period that would have
been the Interest Period for such Loan), over (ii) the amount of interest
which would accrue on such principal amount for such period at the interest
rate which such Lender would bid were it to bid, at the commencement of such
period, for dollar deposits of a comparable amount and period from other banks
in the eurocurrency market. A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
SECTION 2.17. Taxes. (a) Any and all payments by or on account of any
obligation of the Borrower hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided that if
the Borrower shall be required to deduct any Indemnified Taxes or Other Taxes
from such payments, then (i) the sum payable shall be increased as necessary
so that after making all required deductions (including deductions applicable
to additional sums payable under this Section) the Administrative Agent,
Lender or Issuing Bank (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the Borrower
shall make such deductions and (iii) the Borrower shall pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable
law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each
Lender and each Issuing Bank, within 10 days after written demand therefor,
for the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or such Issuing Bank, as the case may be, on
or with respect to any payment by or on account of any obligation of the
Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto (other than those resulting from such Person's gross negligence or
wilful misconduct), whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability and
setting forth in reasonable detail the calculation and basis for such payment
or liability delivered to the Borrower by a Lender or an Issuing Bank, or by
the Administrative Agent on its own behalf or on behalf of a Lender or an
Issuing Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy
of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by
applicable law, such properly completed and executed documentation prescribed
by applicable law or reasonably requested by the Borrower and 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 reasonable request of the Borrower
or the Administrative Agent), including the following, if applicable and if
such Foreign Lender is legally entitled to do so: (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, (A) a certificate to the effect that such Foreign
Lender is not (1) a "bank" within the meaning of Section 881(c)(3)(A) of the
Code, (2) a "10 percent shareholder" of the Borrower within the meaning of
Section 881(c)(3)(B) of the Code or (3) a "controlled foreign corporation"
described in Section 881(c)(3)(C) of the Code and (B) 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, as will
permit such payments to be made without withholding or at a reduced rate.
(f) If the Administrative Agent or a Lender determines, in its sole
discretion exercised in good faith, that it has received, or is entitled to
receive, 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 (i) pay over such
refund, if received, to the Borrower or (ii) cooperate with the Borrower (at
the Borrower's expense) to obtain a refund, if not received, of such
Indemnified Taxes or Other Taxes and pay over such refund, when received, to
the Borrower, but in each case only to the extent of indemnity payments made,
or additional amounts paid, by the Borrower under this Section with respect to
the Indemnified Taxes or Other Taxes giving rise to such refund, net of all
out-of-pocket expenses of the Administrative Agent or such Lender and without
interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund); provided, that the Borrower, upon the request of
the Administrative Agent or such Lender, agrees to repay the amount paid over
to the Borrower (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Administrative Agent or such Lender in
the event the Administrative Agent or such Lender is required to repay such
refund to such Governmental Authority. This Section shall not be construed to
require the Administrative Agent or any Lender to make available its tax
returns (or any other information relating to its taxes which it deems
confidential) to the Borrower or any other Person.
(g) Any and all payments by or on account of any obligation of the
Administrative Agent pursuant to Section 2.05(r) hereunder shall be made free
and clear of and without deduction for any Indemnified Taxes or Other Taxes;
provided that if the Administrative Agent shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the
Administrative Agent shall so notify the Borrower and advise it of the
additional amount required to be paid so that the sum payable by the
Administrative Agent pursuant to Section 2.05(r) after making all required
deductions (including deductions applicable to additional sums payable under
this Section) to the Tranche A LC Lenders is an amount from the Administrative
Agent equal to the sum they would have received from the Administrative Agent
had no deductions been made, (ii) the Borrower shall pay such additional
amount to the Administrative Agent, (iii) the Administrative Agent shall make
all required deductions, (iv) the Administrative Agent shall pay the full
amount deducted to the relevant Governmental Authority in accordance with
applicable law and (v) the Borrower shall indemnify, within 10 days after
written demand therefor, the Administrative Agent for the full amount of any
deductions paid by the Administrative Agent with respect to any payments made
on account of any obligation of the Administrative Agent pursuant to Section
2.05(r).
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of
Setoffs. (a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or
otherwise) prior to 1:00 p.m., New York City time, on the date when due, in
immediately available funds, without setoff or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 270 Park Avenue,
New York, New York, except payments to be made directly to an Issuing Bank as
expressly provided herein and except that payments pursuant to Sections 2.15,
2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto.
The Administrative Agent shall distribute any such payments received by it for
the account of any other Person to the appropriate recipient promptly
following receipt thereof. If any payment hereunder shall be due on a day that
is not a Business Day, the date for payment shall be extended to the next
succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All
payments hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and available
to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such
funds shall be applied (i) first, towards payment of interest and fees then
due hereunder, ratably among the parties entitled thereto in accordance with
the amounts of interest and fees then due to such parties, and (ii) second,
towards payment of principal and unreimbursed LC Disbursements then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal and unreimbursed LC Disbursements then due to such
parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans or participations in LC Disbursements resulting
in such Lender receiving payment of a greater proportion of the aggregate
amount of its Loans and participations in LC Disbursements and accrued
interest thereon than the proportion received by any other Lender, then the
Lender receiving such greater proportion shall purchase (for cash at face
value) participations in the Loans and participations in LC Disbursements of
other Lenders to the extent necessary so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Loans and
participations in LC Disbursements; provided that (i) if any such
participations are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment
made by the Borrower pursuant to and in accordance with the express terms of
this Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
in LC Disbursements to any assignee or participant, other than to the Borrower
or any Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply). The Borrower consents to the foregoing and agrees, to
the extent it may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise
against the Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the
Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or any Issuing Bank
hereunder that the Borrower will not make such payment, the Administrative
Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to
the Lenders or such Issuing Bank, as the case may be, the amount due. In such
event, if the Borrower has not in fact made such payment, then each of the
Lenders or such Issuing Bank, as the case may be, severally agrees to repay to
the Administrative Agent forthwith on demand the amount so distributed to such
Lender or Issuing Bank with interest thereon, for each day from and including
the date such amount is distributed to it to but excluding the date of payment
to the Administrative Agent, at the greater of the Federal Funds Effective
Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.05(d) or (e), 2.06(b) or 2.18(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations
under such Sections until all such unsatisfied obligations are fully paid.
SECTION 2.19. Mitigation Obligations; Replacement of Lenders. (a) If
any Lender requests compensation under Section 2.15, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such
Lender shall use reasonable efforts to designate a different lending office
for funding or booking its Loans or Tranche A Deposits hereunder or to assign
its rights and obligations hereunder to another of its offices, branches or
Affiliates, if, in the judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to Section 2.15 or
2.17, as the case may be, in the future and (ii) would not subject such Lender
to any unreimbursed cost or expense and would not otherwise be disadvantageous
to such Lender. The Borrower hereby agrees to pay all reasonable and
documented costs and expenses incurred by any Lender in connection with any
such designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans or Tranche A
Deposits hereunder, then the Borrower may, at its sole expense and effort,
upon notice to such Lender and the Administrative Agent, require such Lender
to assign and delegate, without recourse (in accordance with and subject to
the restrictions contained in Section 9.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Borrower shall have received the prior
written consent of the Administrative Agent, which consent shall not
unreasonably be withheld, delayed or conditioned, (ii) such Lender shall have
received payment of an amount equal to the outstanding principal of its Loans
and participations in LC Disbursements, accrued and unpaid interest thereon,
accrued and unpaid fees and all other amounts payable to it hereunder, from
the assignee (to the extent of such outstanding principal and accrued and
unpaid interest and fees) or the Borrower (in the case of all other amounts)
and (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.15 or payments required to be made pursuant to
Section 2.17, such assignment will result in a reduction in such compensation
or payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply.
ARTICLE III
Representations and Warranties
------------------------------
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. Organization and Authority. (a) The Borrower and each
Subsidiary is a corporation, partnership, limited liability company or trust
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its formation except, in the case of any Subsidiary of the
Borrower, where the failure to be in good standing could not reasonably be
expected to have a Material Adverse Effect.
(b) The Borrower and each Subsidiary (i) has the requisite power and
authority to own its properties and assets and to carry on its business as now
being conducted and as contemplated in this Agreement and (ii) is qualified to
do business in, and is in good standing in, every jurisdiction in which
failure to so qualify or be in good standing, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
(c) Each Loan Party has the power and authority to enter into the
Transactions.
(d) Each Loan Document has been duly executed and delivered by each
Loan Party that is party thereto and constitutes the legal, valid and binding
obligation of such Loan Party, enforceable against such Loan Party in
accordance with its terms, subject to the effect of any applicable bankruptcy,
moratorium, insolvency, reorganization or other similar law affecting the
enforceability of creditors' rights generally and to the effect of general
principles of equity (whether considered in a proceeding at law or in equity).
SECTION 3.02. Execution; No Conflicts. The execution, delivery and
performance by the Loan Parties of this Agreement and the other Loan Documents
and the Transactions:
(i) have been duly authorized by all requisite corporate
actions (including any required shareholder approval) of the Loan
Parties required for the lawful execution, delivery and performance
thereof;
(ii) do not and will not violate any provisions of (A) any
applicable law, rule or regulation, (B) any judgment, writ, order,
determination, decree or arbitral award of any Governmental Authority
or arbitral authority binding on the Borrower or any Subsidiary or
its or any Subsidiary's properties, or (C) the certificate of
incorporation, bylaws or other organizational documents of the
Borrower or any Subsidiary, as applicable;
(iii) do not and will not be in conflict with, result in a
breach of, violate, give rise to a right of prepayment under or
constitute a default under, any material contract, indenture,
agreement or other instrument or document to which the Borrower or
any Subsidiary is a party, or by which the properties or assets of
the Borrower or any Subsidiary are bound; and
(iv) do not and will not result in the creation or
imposition of any Lien upon any of the properties or assets of the
Borrower or any Subsidiary (other than the Liens created by the Loan
Documents).
SECTION 3.03. Solvency. Immediately after the consummation of the
Transactions to occur and immediately following the making of each Loan or the
issuance of each Letter of Credit made or issued and after giving effect to
the application of the proceeds of such Loans, (a) the fair value of the
assets of the Borrower and the Subsidiaries, on a consolidated basis, will
exceed their consolidated debts and liabilities, subordinated, contingent or
otherwise; (b) the present fair saleable value of the property of the Borrower
and the Subsidiaries on a consolidated basis will be greater than the amount
that will be required to pay the probable liability on their debts and other
liabilities, subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and matured; (c) the Borrower and the Subsidiaries
on a consolidated basis will not have incurred any debts and liabilities,
subordinated, contingent or otherwise, that they do not believe that they will
be able to pay as such debts and liabilities become absolute and matured; and
(d) the Borrower and the Subsidiaries on a consolidated basis will not have
unreasonably small capital with which to conduct the business in which they
are engaged as such business is now conducted and is proposed to be conducted
following the Effective Date.
SECTION 3.04. Subsidiaries. Schedule 3.04 sets forth as of the date
hereof, and each revised Schedule 3.04 delivered pursuant to Section
5.01(b)(iv) will set forth as of the end of the fiscal year of the Borrower
most recently preceding the date on which it shall have been delivered, a list
of all the Subsidiaries and the percentage ownership of the Borrower and the
Subsidiaries therein, and identifies or will identify each Subsidiary that is
a Subsidiary Loan Party or an Excluded Subsidiary on the date hereof or as of
the end of such fiscal year, as the case may be (and sets forth, (a) as to
each such Excluded Subsidiary, whether it is, on the date hereof or as of the
end of such fiscal quarter, as the case may be, a Class A Excluded Subsidiary,
a Class B Excluded Subsidiary, a Class C Excluded Subsidiary, a Class D
Excluded Subsidiary or a Designated Syndicated Person and (b) as to each
Subsidiary, the amount, if any, of Equity Interests in such Subsidiary that
are Class A Excluded Equity Interests or Class B Excluded Equity Interests),
which schedule is (and each revision thereto shall be) true and correct in all
material respects. The shares of Equity Interests or other ownership interests
listed on Schedule 3.04 are owned by the Borrower, directly or indirectly,
free and clear of all Liens other than Liens permitted hereunder.
SECTION 3.05. Ownership Interests. The Borrower owns no interest in
any Person other than the Persons set forth on Schedule 3.05 (which schedule
is true and correct in all material respects), Equity Interests in Persons not
constituting Subsidiaries permitted under Section 6.02 and Equity Interests in
subsidiaries created or acquired after the Effective Date.
SECTION 3.06. Financial Condition. (a) The Borrower has heretofore
furnished to the Administrative Agent and each Lender an audited consolidated
balance sheet of the Borrower and the Subsidiaries as at December 31, 2004,
and the notes thereto and the related consolidated statements of income,
stockholders' equity and cash flows for the fiscal year then ended, as
examined and certified by PricewaterhouseCoopers LLP, independent public
accountants. Such financial statements (including the notes thereto) present
fairly, in all material respects, the financial condition of the Borrower and
the Subsidiaries as of December 31, 2004, and the results of their operations,
the changes in their stockholders' equity and their cash flows for the Fiscal
Year then ended, all in conformity with GAAP consistently applied. Since
December 31, 2004, there has not occurred any event or circumstance that has
resulted or could reasonably be expected to result in a material adverse
change in the business, assets, operations, properties or condition, financial
or otherwise, or liabilities of the Borrower and the Subsidiaries, taken as a
whole (other than any event or condition (a "Publicly Disclosed Matter")
specifically identified in the Borrower's Form 10-K filed with the SEC with
respect to the fiscal year ended December 31, 2004 and each Form 8-K filed by
the Borrower with the SEC after the filing of such Form 10-K and prior to the
date hereof; provided that all risk factors, general descriptions of the
Borrower's business, industry and competitors (including general descriptions
of risks and liabilities relating thereto), projections and forward looking
statements contained in any such filings shall be disregarded for purposes of
determining the Publicly Disclosed Matters). Since the Effective Date, there
have been no changes in the status of the Publicly Disclosed Matters that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
(b) The Borrower has, on or prior to the Effective Date, furnished to
the Administrative Agent for distribution to the Lenders the Borrower's
forecast model with respect to Fiscal Years through 2012 including a projected
consolidated statement of EBITDA and selected cash flow information (the
"Model") prepared giving effect to the Transactions as if the Transactions had
occurred as of January 1, 2006. The Model was prepared in good faith by the
Borrower based on assumptions and estimates believed by the Borrower on the
date thereof to be reasonable, was based on the best information available to
the Borrower after due inquiry and accurately reflects all material
adjustments required to be made to give effect to the Transactions.
(c) As of the Effective Date, neither the Borrower nor any Subsidiary
has any material Indebtedness or other material obligations or liabilities,
direct or contingent, other than (i) the liabilities reflected on Schedule
3.06, (ii) obligations arising under this Agreement, (iii) obligations arising
under the Settlement Agreements, (iv) liabilities in respect of the
Shareholder Litigation and (v) liabilities incurred in the ordinary course of
business.
SECTION 3.07. Title to Properties. Each of the Borrower and the
Subsidiaries has good and valid title to, or valid leasehold interests in, all
its real and personal property that is material to the business of the
Borrower and the Subsidiaries, taken as a whole, except for minor defects in
title that do not interfere with its ability to conduct its business as
currently conducted or as proposed to be conducted or to utilize such
properties for their intended purposes.
SECTION 3.08. Taxes. The Borrower and each Subsidiary has filed or
caused to be filed all material federal, state and local tax returns which are
required to be filed by it (subject to any timely obtained extensions to file)
and, except for taxes and assessments being contested in good faith by
appropriate proceedings diligently conducted and against which reserves
reflected in the financial statements described in Section 3.06(a) and
satisfactory to the Borrower's independent certified public accountants have
been established, has paid or caused to be paid all material taxes as shown on
said returns or on any assessment received by it, to the extent that such
taxes have become due.
SECTION 3.09. Other Agreements. Except as set forth on Schedule 3.09:
(i) neither the Borrower nor any Subsidiary is a party to or
subject to any judgment, order, decree, agreement, lease or
instrument, or subject to any other restrictions, compliance with the
terms of which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect;
(ii) neither the Borrower nor any Subsidiary is in default
in the performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in (i) any Medicaid
Provider Agreement, Medicare Provider Agreement or other agreement or
instrument to which the Borrower or any Subsidiary is a party, which
default has resulted in, or if not remedied within any applicable
grace period could reasonably be expected to result in, the
revocation, termination, cancellation or suspension of the Medicaid
Certification or the Medicare Certification of the Borrower or any
Subsidiary, which revocation, termination, cancellation or suspension
could reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect or (ii) any agreement or instrument to
which the Borrower or any Subsidiary is a party (which defaults
referred to in this clause (ii) have had, or if not remedied within
any applicable grace period could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect);
(iii) to the knowledge of the Borrower, no Contract Provider
is a party to any judgment, order, decree, agreement or instrument,
or subject to any restrictions, compliance with the terms of which
could, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect;
(iv) to the knowledge of the Borrower, no Contract Provider
is in default in the performance, observance or fulfillment of any of
the obligations, covenants or conditions contained in any Medicaid
Provider Agreement, Medicare Provider Agreement or other agreement or
instrument to which such Person is a party, which default has
resulted in, or if not remedied within any applicable grace period
could result in, the revocation, termination, cancellation or
suspension of the Medicaid Certification or the Medicare
Certification of such Person, which revocation, termination,
cancellation or suspension could, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect; and
(v) except as permitted under Section 6.07(vii), neither the
Borrower nor any Subsidiary of the Borrower is a party to or subject
to any shareholder agreement, agreement evidencing Indebtedness or
other similar agreement that (A) prohibits the Borrower or such
Subsidiary from pledging any Equity Interests in any Subsidiary or
other Person or (B) provides for a dissolution, disassociation, put,
call or other similar adverse consequence as a result of a pledge of
any Equity Interests in any Subsidiary or other Person by the
Borrower or any direct Subsidiary of the Borrower.
SECTION 3.10. Litigation. (a) Except as set forth on Schedule 3.10,
there is no action, suit, investigation or proceeding at law or in equity or
by or before any Governmental Authority pending or, to the knowledge of the
Borrower, threatened by or against the Borrower or any Subsidiary or, to the
knowledge of the Borrower, pending or threatened by or against any Contract
Provider, or affecting the Borrower or any Subsidiary or, to the knowledge of
the Borrower, any Contract Provider or any properties or rights of the
Borrower or any Subsidiary or, to the knowledge of the Borrower, any Contract
Provider, (i) which could, individually or in the aggregate, reasonably be
expected to result in the revocation, termination, cancellation or suspension
of the Medicaid Certification or the Medicare Certification of such Person,
which revocation, termination, cancellation or suspension could, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect,
(ii) which could otherwise, individually, or in the aggregate, reasonably be
expected to have a Material Adverse Effect or (iii) that involves this
Agreement or the Transactions.
(b) Since the Effective Date, there have been no changes in the
status of the matters disclosed on Schedule 3.10 that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
SECTION 3.11. Margin Stock. The proceeds of the Loans and Letters of
Credit made or issued under this Agreement will be used by the Borrower only
for the purposes expressly authorized herein. None of such proceeds will be
used, directly or indirectly, and whether immediately, incidentally or
ultimately, for the purpose of purchasing or carrying any Margin Stock or for
the purpose of reducing or retiring any Indebtedness which was originally
incurred to purchase or carry Margin Stock or for any other purpose which
might constitute any of the Loans or Letters of Credit under this Agreement a
"purpose credit" within the meaning of Regulation U or Regulation X of the
Board. Neither the Borrower nor any agent acting in its behalf has taken or
will take any action which might cause this Agreement or any of the documents
or instruments delivered pursuant hereto to violate any regulation of the
Board or to violate the Exchange Act or the Securities Act or any state
securities laws. Neither the Borrower nor any Subsidiary is engaged
principally, or as one of its important activities, in the business of
extending credit for the purpose of buying or carrying Margin Stock.
SECTION 3.12. Investment and Holding Company Status. Neither the
Borrower nor any Subsidiary is an "investment company," or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an "investment
company", as such terms are defined in the Investment Company Act of 1940, as
amended (15 U.S.C. ss. 80a-1, et seq.). The application of the proceeds of the
Loans and repayment thereof by the Borrower and the issuance of Letters of
Credit and the performance by the Borrower and any Subsidiary of the
Transactions will not violate any provision of said Act, or any rule,
regulation or order issued by the SEC thereunder. Neither the Borrower nor any
Subsidiary is a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935.
SECTION 3.13. Intellectual Property. Except as set forth on Schedule
3.13, the Borrower and each Subsidiary owns or has the right to use, under
valid license agreements or otherwise, all patents, licenses, franchises,
trademarks, trademark rights, trade names, trade name rights, trade secrets,
service marks, service mark rights and copyrights material to the conduct of
the business of the Borrower and the Subsidiaries, taken as a whole, as now
conducted and as contemplated by this Agreement, without, to the knowledge of
the Borrower, conflict by, or with, any patent, license, franchise, trademark,
trade secret, trade name, service mark, copyright or other proprietary right
of, any other Person.
SECTION 3.14. No Untrue Statement. Neither (a) this Agreement nor any
certificate or document executed and delivered by or on behalf of the Borrower
or any Subsidiary in accordance with or pursuant to this Agreement nor (b) any
written or formally presented statement, report, document (including the
Information Memorandum), representation or warranty provided to the
Administrative Agent or any Lender in connection with the negotiation or
preparation of this Agreement (as modified or supplemented by other written or
formally presented statements, reports, documents, representations and
warranties furnished to the Lenders prior the date of this Agreement) contains
any misrepresentation or untrue statement of material fact or omits to state a
material fact necessary, in light of the circumstances under which it was
made, in order to make any such warranty, representation or statement
contained therein not misleading.
SECTION 3.15. No Consents, Etc. Neither the respective businesses or
properties of the Borrower or any Subsidiary, nor any relationship between the
Borrower or any Subsidiary and any other Person, nor any circumstance in
connection with the execution, delivery and performance of this Agreement and
the Transactions, is such as to require a consent, approval or authorization
of, or filing, registration or qualification with, any Governmental Authority
or any other Person on the part of the Borrower or any Subsidiary as a
condition to the execution, delivery and performance of, or consummation of
the transactions contemplated by, or the validity or enforceability of, this
Agreement, other than any such consent, approval, authorization, filing,
registration or qualification that has been duly obtained or effected, as the
case may be.
SECTION 3.16. ERISA. (i) The execution and delivery of this Agreement
will not involve any "prohibited transaction", as defined in Section 406 of
ERISA or Section 4975 of the Code, (ii) each of the Borrower, each Subsidiary
and each ERISA Affiliate has fulfilled its obligations under the minimum
funding standards imposed by ERISA and the Code and each is in compliance in
all material respects with the applicable provisions of ERISA and (iii) none
of the Borrower, the Subsidiaries, and their respective ERISA Affiliates
maintains, contributes to, or is required to contribute to any Pension Plan.
SECTION 3.17. No Default. No Default has occurred and is continuing.
SECTION 3.18. Environmental Matters. (a) Except as set forth in
Schedule 3.18 and except with respect to other matters that, individually or
in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect, neither the Borrower nor any of the Subsidiaries (i) has
failed to comply with any Environmental Law or to obtain, maintain or comply
with any permit, license or other approval required under any Environmental
Law, (ii) has become subject to any Environmental Liability, or (iii) has
received notice of any claim with respect to any Environmental Liability, nor
does the Borrower have any knowledge of any basis for any such Environmental
Liability.
(b) Since the Effective Date, there have been no changes in the
status of the matters disclosed on Schedule 3.18 that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
SECTION 3.19. Employment Matters. (a) Except as set forth on Schedule
3.19, none of the employees of the Borrower or any Subsidiary is subject to
any collective bargaining agreement and there are no strikes, work stoppages,
election or decertification petitions or proceedings, unfair labor charges,
equal opportunity proceedings, or other material labor/employee related
controversies or proceedings pending or, to the knowledge of the Borrower,
threatened against the Borrower or any Subsidiary or between the Borrower or
any Subsidiary and any of its employees, other than employee grievances,
controversies or proceedings arising in the ordinary course of business which
could not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
(b) Except to the extent a failure to maintain compliance could not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect, the Borrower and each Subsidiary is in compliance in all
respects with all applicable laws, rules and regulations pertaining to labor
or employment matters, including those pertaining to wages, hours,
occupational safety and taxation, and there is neither pending nor, to the
knowledge of the Borrower, threatened any litigation, administrative
proceeding or investigation in respect of such matters which, if decided
adversely, could reasonably be likely, individually or in the aggregate, to
have a Material Adverse Effect.
SECTION 3.20. Reimbursement from Third Party Payors. The accounts
receivable of the Borrower and each Subsidiary and each Contract Provider have
been and will continue to be adjusted to reflect reimbursement policies of
third party payors such as Medicare, Medicaid, Blue Cross/Blue Shield, private
insurance companies, health maintenance organizations, preferred provider
organizations, alternative delivery systems, managed care systems, government
contracting agencies and other third party payors. In particular, accounts
receivable relating to such third party payors do not and shall not exceed
amounts any obligee is entitled to receive under any capitation arrangement,
fee schedule, discount formula, cost-based reimbursement or other adjustment
or limitation to its usual charges.
SECTION 3.21. Compliance with Laws. Except as set forth in Schedule
3.21, each of the Borrower and the Subsidiaries is in compliance with all
laws, regulations and orders of any Governmental Authority applicable to it or
its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.22. Insurance. The Borrower and the Subsidiaries maintain,
in force, with financially sound and reputable insurance companies, and pay
all premiums and costs related to, insurance coverages in such amounts (with
no materially greater risk retention) and against such risks as are deemed by
the management of the Borrower to be sufficient in accordance with the usual
and customary practices of companies of established repute engaged in the same
or similar lines of business as the Borrower and the Subsidiaries.
SECTION 3.23. Collateral Matters. (a) When executed and delivered,
the Collateral and Guarantee Agreement will be effective to create in favor of
the Administrative Agent for the ratable benefit of the Secured Parties a
valid and enforceable security interest in the Collateral (as defined therein)
and (i) when Collateral (as defined therein) constituting certificated
securities (as defined in the Uniform Commercial Code) is delivered to the
Administrative Agent thereunder together with instruments of transfer duly
endorsed in blank, the Collateral Agreement will constitute a fully perfected
Lien on, and security interest in, all right, title and interest of the
pledgors thereunder in such Collateral, prior and superior in right to any
other Person, and (ii) when financing statements in appropriate form are filed
in the offices specified in the Perfection Certificate, the Collateral
Agreement will constitute a fully perfected Lien on and security interest in
all right, title and interest of the grantors in the remaining Collateral (as
defined therein), prior and superior to the rights of any other Person, except
Liens expressly permitted by Section 6.06.
(b) Each Mortgage, upon execution and delivery by the parties
thereto, will create in favor of the Administrative Agent, for the ratable
benefit of the Secured Parties, a legal, valid and enforceable Lien on all the
applicable mortgagor's right, title and interest in and to the Mortgaged
Properties subject thereto and the proceeds thereof, and when the Mortgages
have been filed in the jurisdictions specified in the Perfection Certificate,
the Mortgages will constitute a fully perfected Lien on all right, title and
interest of the mortgagors in the Mortgaged Properties and the proceeds
thereof, prior and superior in right to any other Person, except Liens
expressly permitted by Section 6.06.
(c) Upon the recordation of the Collateral and Guarantee Agreement or
a memorandum of such Agreement with the United States Patent and Trademark
Office and the United States Copyright Office, the Lien created under the
Collateral and Guarantee Agreement will constitute a fully perfected Lien on
all right, title and interest of the Loan Parties in the registered
Intellectual Property (as defined in the Collateral and Guarantee Agreement)
in which a security interest may be fully perfected by filing in the United
States Patent and Trademark Office and the United States Copyright Office, in
each case prior and superior in right to any other Person, except Liens
expressly permitted under Section 6.06 (it being understood that subsequent
recordings in the United States Patent and Trademark Office or the United
States Copyright Office may be necessary to perfect a Lien on registered
trademarks and trademark applications or copyrights, respectively, acquired by
the Loan Parties after the Effective Date).
Notwithstanding any other provision of this Agreement, no representation or
warranty contained in Section 3.01, 3.02, 3.04, 3.09 or 3.23 shall be made or
deemed to be made with respect to any Immaterial Subsidiary until September 30,
2006; provided that (i) such representations and warranties shall be deemed to
be made with respect to all Immaterial Subsidiaries on such date and (ii) after
such date, representations and warranties shall be made, and shall be deemed to
be made, with respect to Immaterial Subsidiaries in accordance with the terms of
this Agreement.
ARTICLE IV
Conditions
----------
SECTION 4.01. Effective Date. The obligations of the Lenders to make
Loans, of the Tranche A LC Lenders to fund their Tranche A Deposits and of the
Issuing Banks to issue Letters of Credit hereunder shall not become effective
until the date on which each of the following conditions shall have been
satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have
received from each party hereto either (i) a counterpart of this
Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such
party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received favorable
written opinions (addressed to the Administrative Agent and the
Lenders and dated the Effective Date) of Skadden, Arps, Slate,
Meagher & Flom LLP, Maynard, Cooper & Gale, P.C., Reed Smith LLP, Orr
& Reno, P.A., McGlinchey Stafford PLLC, and Turner, Padget, Graham &
Laney, P.A., counsel for the Borrower, substantially in the form of
Exhibit E and covering such other matters relating to the Borrower,
this Agreement or the Transactions as the Lenders shall reasonably
request. The Borrower hereby requests such counsel to deliver such
opinion.
(c) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel
may reasonably request relating to the organization, existence and
good standing of the Borrower and the Material Subsidiaries, the
authorization of the Transactions and any other legal matters
relating to the Borrower, the Subsidiaries, this Agreement or the
Transactions, all in form and substance reasonably satisfactory to
the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by a Financial
Officer of the Borrower, (i) confirming compliance with the
conditions set forth in paragraph (f) below and paragraphs (a) and
(b) of Section 4.02 and (ii) certifying that the Adjusted
Consolidated EBITDA of the Borrower for the fiscal year ended
December 31, 2005, was not less than $616,000,000.
(e) The Borrower shall have received, or shall receive
substantially simultaneously with the making of the initial Loans
hereunder, aggregate gross cash proceeds of $1,400,000,000 from the
Preferred Stock Offering and the Interim Loans.
(f) The Borrower (i) shall have repurchased or redeemed, or
shall repurchase or redeem substantially simultaneously with the
making of the initial Loans hereunder, Existing Notes constituting
more than 50% of the aggregate principal amount of each series of
Existing Notes and (ii) shall have received, or shall receive
substantially simultaneously with the making of the initial Loans
hereunder, exit consents with respect to each series of Existing
Notes and, pursuant to such exit consents, caused the Existing Notes
and the Existing Note Indentures to be amended to eliminate
substantially all restrictive covenants and certain events of
default, all as set forth in the Offers to Purchase and Consent
Solicitation Statement dated February 2, 2006, in the form delivered
to the Administrative Agent and the Co-Syndication Agents) and, after
giving effect thereto, the Borrower and the Subsidiaries shall have
outstanding no Indebtedness or Preferred Stock other than (A) the
Loans and other Obligations, (B) the Preferred Stock issued and sold
in the Preferred Stock Offering, if any, (C) the Interim Loans, (D)
Existing Notes in an aggregate outstanding principal amount not
greater than $63,154,000, (E) existing Indebtedness of the Borrower
or any Subsidiary to the Borrower or any Subsidiary and (F) the
Existing Indebtedness.
(g) The terms and conditions of all Material Indebtedness
and Preferred Stock (including the Interim Loans and the Preferred
Stock issued and sold in the Preferred Stock Offering) to be
outstanding after the Effective Date shall be reasonably satisfactory
in all respects to the Administrative Agent and the Co-Syndication
Agents.
(h) All principal, interest, fees and other amounts
outstanding or owing under the Existing Senior Secured Credit
Agreement shall have been (or shall substantially simultaneously be)
paid, the commitments of the lenders under the Existing Senior
Secured Credit Agreement shall have been (or shall simultaneously be)
terminated and all Liens securing the "Obligations" (as such term is
defined in the Existing Senior Secured Credit Agreement) shall have
been released, and the Administrative Agent shall have received
evidence of the foregoing reasonably satisfactory to it.
(i) All principal, interest, fees and other amounts
outstanding or owing under the Existing Term Loan Agreement shall
have been (or shall substantially simultaneously be) paid, and the
Administrative Agent shall have received evidence of the foregoing
reasonably satisfactory to it.
(j) All principal, interest, fees and other amounts
outstanding or owing under the Existing Senior Subordinated Credit
Agreement shall have been (or shall substantially simultaneously be)
paid, and the Administrative Agent shall have received evidence of
the foregoing reasonably satisfactory to it.
(k) The Administrative Agent shall have received all fees
and other amounts due and payable to it on or prior to the Effective
Date, including, to the extent invoiced, reimbursement or payment of
all out-of-pocket expenses required to be reimbursed or paid by the
Borrower hereunder.
(l) The Collateral and Guarantee Requirement (subject to the
last paragraph of the definition thereof) shall have been satisfied
and the Administrative Agent shall have received a completed
Perfection Certificate dated the Effective Date and signed on behalf
of the Borrower by a Financial Officer, together with all attachments
contemplated thereby, including the results of a search of the
Uniform Commercial Code (or equivalent) filings made with respect to
the Borrower in the jurisdictions contemplated by the Perfection
Certificate and copies of the financing statements (or similar
documents) disclosed by such search and evidence reasonably
satisfactory to the Administrative Agent that the Liens indicated by
such financing statements (or similar documents) are permitted by
Section 6.06 and the Security Documents or have been released.
(m) The Administrative Agent shall have received evidence
reasonably satisfactory to it that the insurance required by Section
5.05 and the Security Documents is in effect.
(n) The Administrative Agent and the Co-Syndication Agents
shall be reasonably satisfied with the status of all actions, suits,
investigations and proceedings pending, threatened against or
affecting the Borrower or any Subsidiary.
(o) The Administrative Agent and the Co-Syndication Agents
shall be reasonably satisfied with the status of the Borrower's
preparation of (i) its Form 10-K with respect to the fiscal year
ended December 31, 2005, and (ii) its quarterly financial information
with respect to the fiscal year ended December 31, 2005.
(p) The Lenders shall have received a detailed business plan
of HealthSouth and its subsidiaries for the fiscal years 2006 through
2012 (including, without limitation, quarterly projections for the
first four fiscal quarters ending after the Effective Date).
(q) The Administrative Agent and each Lender shall have
received all such information as shall have been reasonably requested
by it in order to enable it to comply with the requirements of the
USA Patriot Act and any other "know your customer" or similar laws or
regulations.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans and of the Issuing
Banks to issue Letters of Credit hereunder shall not become effective unless
each of the foregoing conditions is satisfied (or waived pursuant to Section
9.02) at or prior to 5:00 p.m., New York City time, on March 31, 2006 (and, in
the event such conditions are not so satisfied or waived, the Commitments shall
terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender to
make a Loan on the occasion of any Borrowing, and of each Issuing Bank to
issue, amend, renew or extend any Letter of Credit, is subject to the
satisfaction of the following conditions:
(a) The representations and warranties of the Borrower set
forth in this Agreement shall be true and correct in all material
respects on and as of the date of such Borrowing or the date of
issuance, amendment, renewal or extension of such Letter of Credit,
as applicable (except (i) to the extent that any representation or
warranty expressly relates to an earlier date, in which case such
representation or warranty shall have been true and correct as of
such earlier date and (ii) with respect to any Immaterial Subsidiary,
as specified in Article III).
(b) At the time of and immediately after giving effect to
such Borrowing or the issuance, amendment, renewal or extension of
such Letter of Credit, as applicable, no Default shall have occurred
and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a) and
(b) of this Section.
ARTICLE V
Affirmative Covenants
---------------------
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall
have been paid in full and all Letters of Credit shall have expired or
terminated (or the Borrower's obligation under such Letters of Credit shall
have been cash collateralized or supported by letters of credit of other banks
naming the Issuing Banks as beneficiaries in a manner satisfactory to the
Issuing Banks) and all LC Disbursements shall have been reimbursed, the
Borrower covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements, Reports, Etc. (a) The Borrower
will file with the SEC and deliver to the Administrative Agent for
distribution to each Lender:
(i) not later than March 31, 2006, an Annual Report on Form
10-K containing audited financial statements of the Borrower for the
fiscal year ended December 31, 2005, meeting the requirements of
subparagraph (b)(ii) below; and
(ii) by the date required under the rules and regulations of
the SEC (including extensions granted thereunder), a Quarterly Report
on Form 10-Q containing unaudited financial statements meeting the
requirements of subparagraph (b)(iii) below with respect to each
fiscal quarter ending during the Borrower's fiscal year ending on
December 31, 2006, including for each such fiscal quarter comparative
financial statements with respect to the corresponding fiscal quarter
of the Borrower's fiscal year ending on December 31, 2005.
(b) The Borrower shall deliver or cause to be delivered to the
Administrative Agent for distribution to each Lender:
(i) within 30 days after the end of each fiscal month of the
Borrower until the Borrower shall have filed with the SEC and
delivered to the Administrative Agent the Annual Report on Form 10-K
referred to in subparagraph (a)(i) above, the Monthly Financial
Package;
(ii) not later than the earlier to occur of (x) 90 days
after the end of each Fiscal Year of the Borrower and (y) the date on
which the Borrower is required to file or files financial statements
with respect to the applicable Fiscal Year with the SEC (including
extensions granted under the rules and regulations of the SEC),
financial statements (including a balance sheet, a statement of
income, a statement of stockholders' equity and a statement of cash
flows) of the Borrower and the Subsidiaries on a consolidated basis
as of the end of and for such Fiscal Year, together with statements
in comparative form as of the end of and for the preceding Fiscal
Year as summarized in the Form 10-K of the Borrower filed with the
SEC pursuant to Section 13 of the Exchange Act for the corresponding
period, and accompanied by a report of PricewaterhouseCoopers LLP or
other independent public accountants acceptable to the Administrative
Agent (without a "going concern" or like qualification or exception
and without any qualification or exception as to the scope of such
audit other than as to matters relating to historical costs of fixed
assets), which opinion shall state in effect that such financial
statements (A) were audited using generally accepted auditing
standards, (B) were prepared in accordance with GAAP consistently
applied and (C) present fairly the financial condition and results of
operations of the Borrower and the Subsidiaries for the period
covered;
(iii) not later than the earlier to occur of (x) 45 days
after the end of each of the first three quarters of each Fiscal Year
of the Borrower and (y) the date on which the Borrower is required to
file (including extensions granted under the rules and regulations of
the SEC) or files financial statements with respect to the applicable
fiscal quarter with the SEC , a balance sheet and related statements
of income and cash flows of the Borrower and the Subsidiaries on a
consolidated basis for such quarter and for the period beginning on
the first day of such Fiscal Year of the Borrower and ending on the
last day of such quarter, together with statements in comparative
form for the corresponding date or period in the preceding Fiscal
Year of the Borrower as summarized in the Form 10-Q of the Borrower
filed with the SEC pursuant to Section 13 of the Exchange Act for the
corresponding period, and certified by a Financial Officer as
presenting fairly the financial condition and results of operations
of the Borrower and the Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied, subject to normal year-end
audit adjustments and the absence of footnotes;
(iv) concurrently with each delivery of financial statements
under clause (ii) or (iii) above, a certificate of a Financial
Officer (A) certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action
taken or proposed to be taken with respect thereto; (B) setting forth
reasonably detailed calculations demonstrating compliance with
Section 6.01(a) and (b); (C) stating whether any change in GAAP or in
the application thereof has occurred since December 31, 2005, and, if
any such change has occurred, specifying the effect of such change on
the financial statements accompanying such certificate; and (D)
concurrently with the delivery of financial statements under clause
(ii) above, attaching an updated Schedule 3.04 hereto setting forth
as of the date of the balance sheet included in such financial
statements a list of all the Subsidiaries and the percentage
ownership of the Borrower and the Subsidiaries therein, and
identifying, as of such date, each Class A Excluded Subsidiary, Class
B Excluded Subsidiary, Class C Excluded Subsidiary, Class D Excluded
Subsidiary, Designated Syndicated Person, Class A Excluded Equity
Interest and Class B Excluded Equity Interest.
(v) not later than March 31, 2006, and thereafter not later
than 45 days after the beginning of each Fiscal Year (beginning with
Fiscal Year 2007) in respect of such Fiscal Year (A) the annual
business plan of the Borrower and the Subsidiaries for such Fiscal
Year approved by the Board of Directors of the Borrower, (B)
forecasts prepared by management of the Borrower for each fiscal
month in such Fiscal Year and (C) forecasts prepared by management of
the Borrower for such Fiscal Year and the four Fiscal Years
thereafter, including, in each instance described in clauses (B) and
(C) above, (x) a projected year-end consolidated balance sheet and
income statement and statement of cash flows and (y) a statement of
all of the material assumptions on which such forecasts are based;
(vi) contemporaneously with the distribution thereof to the
Borrower's or any Subsidiary's stockholders or partners or the filing
thereof with the SEC, as the case may be, copies of all statements,
reports, notices and filings distributed by the Borrower or any
Subsidiary to its stockholders or partners or filed with the SEC
(including reports on Forms 10-K, 10-Q and 8-K) or any Governmental
Authority succeeding to any or all of the functions of the SEC or
with any national securities exchange;
(vii) promptly after the occurrence of any ERISA Event that,
alone or together with any other ERISA Events that have occurred,
could reasonably be expected to result in liability of the Borrower,
the Subsidiaries and all ERISA Affiliates in an aggregate amount
exceeding $5,000,000, a certificate of a Financial Officer setting
forth the details as to such ERISA Event and the action that the
Borrower, such Subsidiary or such ERISA Affiliate has taken or will
take with respect thereto;
(viii) promptly after the Borrower or any Subsidiary becomes
aware of the commencement thereof, notice of any investigation,
action, suit or proceeding before any Governmental Authority
involving the condemnation or taking under the power of eminent
domain of any material portion of its property or the revocation or
suspension of any material permit, license, certificate of need or
other governmental requirement applicable to any of its properties or
assets;
(ix) within 10 days of the receipt by the Borrower or any
Subsidiary, copies of all material deficiency notices, compliance
orders or adverse reports issued by any Governmental Authority or
accreditation commission having jurisdiction over the licensing,
accreditation or operation of any properties or assets of the
Borrower or any Subsidiary or by any Governmental Authority or
private insurance company pursuant to a provider agreement, which, if
not timely complied with or cured, could reasonably be expected to
result in the suspension or forfeiture of any license, certification
or accreditation necessary in order for such Person to carry on its
business as then conducted or the termination of any material
insurance or reimbursement program available to such Person; and
(x) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of the Borrower or any Subsidiary, or compliance with the
terms of this Agreement, as the Administrative Agent or any Lender
may reasonably request.
(c) Information required to be delivered pursuant to this Section
shall be deemed to have been delivered if such information, or one or more
annual, quarterly or other reports containing such information, shall have
been posted by the Borrower on the Borrower's website on the Internet at
www.healthsouth.com/medinfo/home/app/frame?cntx+01abouths&1=leftnav.jsp,
abouths_nav&2-article.jsp,section_banner,abouths_investrelationsnew,
at www.sec.gov/edgar/webusers.htm, on an IntraLinks or similar site to which
all of the Lenders have been granted access, or at another website identified
to the Lenders and accessible by the Lenders without charge (and, in each
case, a confirming electronic correspondence shall have been delivered to each
Lender providing notice of such posting); provided that the Borrower shall
deliver paper copies of such information to any Lender that requests such
delivery.
SECTION 5.02. Maintain Properties. The Borrower will, and will cause
each of the Subsidiaries to, keep or maintain all properties and assets
necessary to its operations in good working order and condition (subject to
ordinary wear and tear), make all needed repairs, replacements and renewals to
such properties, and maintain free from Liens all trademarks, trade names,
service marks, patents, copyrights, trade secrets, know-how, and other
intellectual property and proprietary information (or adequate licenses
relating thereto), in each case (a) as are reasonably necessary to conduct its
business as currently conducted or as contemplated hereby and in accordance
with customary and prudent business practices and (b) except for any failure
with respect to the foregoing that does not materially interfere with the
Borrower's and the Subsidiaries' ability to conduct their business, taken as a
whole, as currently conducted or as proposed to be conducted or to utilize
such properties and assets for their intended purposes.
SECTION 5.03. Existence, Qualification, Etc. The Borrower will, and
will cause each of the Subsidiaries to, (i) do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and all rights, permits, privileges, licenses and franchises, in
each case to the extent material to the Borrower and the Subsidiaries, taken
as a whole, and (ii) maintain its license or qualification to do business as a
foreign corporation and good standing in each jurisdiction in which its
ownership or leasing of property or the nature of its business makes such
license or qualification necessary, except, with respect to clause (ii) only,
where the failure to do so could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect; provided that the
foregoing shall not prohibit any merger, consolidation, liquidation,
dissolution, sale or transfer that is not prohibited by the provisions of
Article VI. The Borrower will cause each of the Subsidiaries to take all
reasonable actions to maintain its identity as a separate legal entity from
the Borrower or any other Subsidiary, including (x) maintaining such
Subsidiary's books and records separate from those of any Affiliate of such
Subsidiary, including records of all intercompany debits and credits and
transfer of funds, (y) not commingling such Subsidiary's funds or other assets
with those of any of its Affiliates and not maintaining bank accounts or other
depositary accounts to which any of its Affiliates is an account party, in
each case in a manner such that such Subsidiary's funds, assets and accounts
could not be distinguished from those of its Affiliates and (z) acting solely
in its own name, through its own officials or representatives where relevant.
SECTION 5.04. Regulations and Obligations. The Borrower will, and
will cause each of the Subsidiaries to, comply in all material respects with
or contest in good faith all statutes and governmental regulations and pay its
Indebtedness and all other taxes, assessments, governmental charges, claims
for labor, supplies, rent and any other obligation that, if unpaid, would
become a Lien against any of its properties or assets, except liabilities
being contested in good faith by appropriate proceedings diligently conducted
and against which adequate reserves acceptable to the Borrower's independent
certified public accountants have been established, unless and until any Lien
resulting therefrom attaches to any of its properties or assets and becomes
enforceable by its creditors.
SECTION 5.05. Insurance. The Borrower will, and will cause each of
the Subsidiaries to, at all times maintain, in force, with financially sound
and reputable insurance companies, and pay all premiums and costs related to,
insurance coverages in such amounts (with no materially greater risk
retention) and against such risks as are deemed by the management of the
Borrower to be sufficient in accordance with usual and customary practices of
companies of established repute engaged in the same or similar business as the
Borrower and the Subsidiaries. The Borrower shall deliver to the
Administrative Agent at such time or times as the Administrative Agent may
reasonably request, a certificate of a Financial Officer setting out in such
detail as the Administrative Agent may reasonably request a description of all
insurance coverages maintained by the Borrower and each Subsidiary. The
Administrative Agent shall have no obligation to give the Borrower or any
Subsidiary notice of any notification received by the Administrative Agent
with respect to any insurance policies or take any steps to protect the
Borrower's or any Subsidiary's interests under such policies.
SECTION 5.06. True Books. With respect to all dealings and
transactions occurring after December 31, 2004, the Borrower will, and will
cause each of the Subsidiaries to, keep true books of record and account in
which full, true and correct entries will be made of such dealings and
transactions, and set up on its books such reserves as may be required by GAAP
with respect to doubtful accounts and all taxes, assessments, charges, levies
and claims and with respect to its business in general, and include such
reserves in interim as well as year-end financial statements, so that the
Borrower and each Subsidiary may prepare financial statements in accordance
with GAAP.
SECTION 5.07. Right of Inspection. The Borrower will, and will cause
each of the Subsidiaries to, permit any Person designated by the
Administrative Agent or any Lender (which shall be coordinated through the
Administrative Agent) to visit and inspect any of its properties, corporate
books and financial reports and to discuss its affairs, finances and accounts
with its principal officers and independent certified public accountants, all
at reasonable times, at reasonable intervals and with reasonable prior notice;
provided that, excluding any such visits and inspections during the
continuation of an Event of Default, the Administrative Agent and the Lenders
shall not exercise such rights more than two times during any calendar year.
SECTION 5.08. Observe All Laws. The Borrower will, and will cause
each of the Subsidiaries to, conform to and duly observe, and use reasonable
efforts to cause all Contract Providers to conform to and duly observe, all
laws, rules and regulations and all other valid requirements of any regulatory
authority with respect to the conduct of its business, including Titles XVIII
and XIX of the Social Security Act, Medicare Regulations, Medicaid Regulations
and all other laws, rules and regulations of Governmental Authorities
(including all laws, rules and regulations pertaining to the licensing of
professional and other health care providers and all Environmental Laws),
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.09. Governmental Licenses. The Borrower will, and will
cause each of the Subsidiaries to, obtain and maintain, and use reasonable
efforts to cause all Contract Providers to obtain and maintain, all material
licenses, permits, certifications and approvals of all applicable Governmental
Authorities as are required for the conduct of its business as currently
conducted and herein contemplated, including material professional licenses,
Medicaid Certifications and Medicare Certifications, except where the failure
to do so, individually or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect.
SECTION 5.10. Notice of Material Events. Upon the Borrower's
obtaining knowledge of (i) any Default or Event of Default or (ii) any event,
development or occurrence that has resulted in, or could reasonably be
expected to result in, a Material Adverse Effect, the Borrower shall promptly
notify the Administrative Agent of the nature thereof, the period of existence
thereof, and what action the Borrower or such Subsidiary proposes to take with
respect thereto.
SECTION 5.11. Suits or Other Proceedings. Upon the Borrower's
obtaining knowledge of the filing or commencement of, or any written notice of
intention of any Person to file or commence, any action, suit or proceeding,
whether in law or in equity, (i) against the Borrower or any Subsidiary, or
any attachment, levy, execution or other process being instituted against any
assets of the Borrower or any Subsidiary, which could reasonably be expected
to have a Material Adverse Effect or (ii) against the Borrower, any Subsidiary
or any Contract Provider to suspend, revoke or terminate any Medicaid Provider
Agreement, Medicaid Certification, Medicare Provider Agreement or Medicare
Certification, which could reasonably be expected to have a Material Adverse
Effect, the Borrower shall promptly provide the Administrative Agent with
written notice thereof stating the nature and status of such litigation,
dispute, proceeding, levy, execution or other process.
SECTION 5.12. Notice of Discharge of Hazardous Material or
Environmental Complaint. The Borrower will, and will cause the Subsidiaries
to, promptly provide to the Administrative Agent true, accurate and complete
copies of any and all notices, complaints, orders, directives, claims, or
citations received by the Borrower or any Subsidiary relating to any of the
following which is likely to have a Material Adverse Effect: (a) violation or
alleged violation by the Borrower or any Subsidiary of any applicable
Environmental Law; (b) Release or threatened Release by the Borrower or any
Subsidiary, or at any Facility or property owned or leased or operated by the
Borrower or any Subsidiary, of any Hazardous Material; or (c) any
Environmental Liability.
SECTION 5.13. Information Regarding Collateral. (a) The Borrower will
furnish to the Administrative Agent prompt written notice of any change (i) in
any Loan Party's legal name, as reflected in its organization documents, (ii)
in any Loan Party's jurisdiction of organization or corporate structure and
(iii) in any Loan Party's identity, Federal Taxpayer Identification Number or
organization number, if any, assigned by the jurisdiction of its organization.
The Borrower also agrees promptly to provide to the Administrative Agent
certified organizational documents reflecting any of the changes described in
the preceding sentence. The Borrower agrees not to effect or permit any change
referred to in the preceding sentences unless all filings have been made under
the Uniform Commercial Code or otherwise that are required in order for the
Collateral Agent, for the benefit of the Lenders, to continue at all times
following such change to have a valid, legal and perfected security interest
in all of the Collateral. The Borrower also agrees promptly to notify the
Administrative Agent, for the benefit of the Lenders, if any material portion
of the Collateral is damaged or destroyed.
(b) Each year, at the time of delivery of annual financial statements
with respect to the preceding Fiscal Year pursuant to Section 5.01(b), the
Borrower shall deliver to the Administrative Agent a certificate on behalf of
the Borrower of a Financial Officer setting forth the information required
pursuant to the Perfection Certificate or confirming that there has been no
change in such information since the later of the date of the Perfection
Certificate delivered on the Effective Date or the date of the most recent
certificate delivered pursuant to this Section.
(c) After any Subsidiary Loan Party grants any Guarantee of any
Obligation or grants any Lien securing any Obligation, the Borrower shall
promptly provide to the Administrative Agent with all information reasonably
requested by the Administrative Agent or any Lender with respect to the
assets, liabilities or cash flows of the Subsidiary Loan Party granting any
such Guarantee or Lien.
SECTION 5.14. Further Assurances. (a) The Borrower will, and will
cause each Subsidiary to, execute any and all further documents, financing
statements, agreements and instruments, and take all such further actions
(including (i) the filing and recording of financing statements, fixture
filings, mortgages, deeds of trust and other documents, (ii) conducting lien
searches and (iii) providing legal opinions reasonably satisfactory to the
Administrative Agent), which may be required, or which the Administrative
Agent or the Required Lenders may reasonably request, to cause the Collateral
and Guarantee Requirement to be and to remain satisfied at all times and to
evidence such satisfaction and the priorities of the Liens created under the
Collateral and Guarantee Agreement. Without limiting the generality of the
foregoing, (x) if at any time after September 30, 2006, it is known to a
Financial Officer that, as a result of an acquisition, disposition or
otherwise, a Subsidiary that is designated as an Excluded Subsidiary in
Schedule 3.04 (as most recently revised in accordance with Section
5.01(b)(iv)) ceases to qualify as an Excluded Subsidiary or (y) a Designated
Syndicated Person ceases to qualify as a Designated Syndicated Person, then
the Borrower shall promptly take all actions to cause such Subsidiary to
become a Subsidiary Loan Party and to otherwise cause the Collateral and
Guarantee Requirement to be satisfied with respect to such Subsidiary.
(b) If any material assets (including any Mortgaged Property) are at
any time acquired or held by the Borrower or any Subsidiary Loan Party
(including any Subsidiary that becomes a Subsidiary Loan Party after the
Effective Date (other than assets already subject to the Liens of the
applicable Security Documents), the Borrower will notify the Administrative
Agent, and, if requested by the Administrative Agent or the Required Lenders,
will cause such assets to be subjected to a Lien securing the Obligations and
will take, and cause the Subsidiary Loan Parties to take, such actions as
shall be necessary or reasonably requested by the Administrative Agent to
grant and perfect such Liens, including actions described in paragraph (a) of
this Section.
(c) The Borrower shall take all actions, including instructing the
applicable tax authorities to pay any such Federal tax refunds into an account
of the Borrower with and controlled by the Administrative Agent, as shall be
reasonably requested by the Administrative Agent in order to create and
perfect a Lien on the Borrower's rights with respect to any Federal tax
refunds that may be owed to the Borrower in an aggregate amount greater than
$5,000,000 in any Fiscal Year as security for the Obligations (it being agreed
that, unless an Event of Default described in Section 7.01(a), (b), (d)
(solely with respect to Section 6.01), (h) or (i) shall have occurred and be
continuing and the Administrative Agent or the Required Lenders shall have
notified the Borrower to the contrary, the Borrower shall be permitted to
remove funds from such account and to apply such funds for any purpose
consistent with the provisions of this Agreement).
(d) The Borrower shall not, and shall not permit any Subsidiary to,
deposit or maintain in any deposit account, other than a Specified Deposit
Account, any amounts in excess of the amount required to be deposited or
maintained in such deposit account in the ordinary course of business;
provided that this clause (d) shall not be deemed to require the Borrower or
any Subsidiary to deposit any Restricted Cash and Cash Equivalents to a
Specified Deposit Account. Schedule 5.14 sets forth as of the Effective Date a
list of all the Specified Deposit Accounts. The Borrower shall deliver written
notice to the Administrative Agent promptly after establishing or closing any
Specified Deposit Account.
SECTION 5.15. Ratings. Not later than April 30, 2006, the Borrower
shall obtain ratings from each of S&P and Moody's with respect to the Term
Loans and Revolving Loans of each Class.
SECTION 5.16. Hedging Arrangements. As promptly as practicable, and
in any event within 90 days after the Effective Date, the Borrower will enter
into, and thereafter for a period of not less than three years will maintain
in effect, one or more Swap Agreements with such parties as shall be
reasonably acceptable to the Administrative Agent, the effect of which is that
at least 50% of Consolidated Total Indebtedness (excluding the Interim Loans)
of the Borrower will effectively bear interest at a fixed rate, in each case
on terms and conditions reasonably acceptable to the Administrative Agent.
ARTICLE VI
Negative Covenants
------------------
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in
full and all Letters of Credit have expired or terminated (or the Borrower's
obligation under such Letters of Credit shall have been cash collateralized or
supported by letters of credit of other banks naming the Issuing Banks as
beneficiaries in a manner satisfactory to the Issuing Banks) and all LC
Disbursements have been reimbursed, the Borrower covenants and agrees with the
Lenders that:
SECTION 6.01. Financial Covenants. (a) Interest Coverage Ratio. The
Borrower will not permit the Interest Coverage Ratio for any period of four
consecutive fiscal quarters ending during any period set forth below to be
less than the ratio set forth below opposite such period:
Period Minimum Ratio
------ -------------
Effective Date through June 30, 2007 1.65 to 1.00
July 1, 2007 through December 31, 2007 1.75 to 1.00
January 1, 2008 through December 31, 2009 2.00 to 1.00
January 1, 2010 through December 31, 2010 2.25 to 1.00
After December 31, 2010 2.50 to 1.00
(b) Leverage Ratio. The Borrower will not permit the Leverage Ratio
at any time during any period set forth below to exceed the ratio set forth
below opposite such period:
Period Maximum Ratio
------ -------------
Effective Date through June 30, 2006 7.25 to 1.00
July 1, 2006 through December 31, 2006 7.50 to 1.00
January 1, 2007 through September 30, 2007 7.25 to 1.00
October 1, 2007 through December 31, 2007 7.00 to 1.00
January 1, 2008 through December 31, 2008 6.50 to 1.00
January 1, 2009 through December 31, 2009 6.25 to 1.00
January 1, 2010 through December 31, 2010 5.50 to 1.00
January 1, 2011 through December 31, 2011 5.00 to 1.00
After December 31, 2011 4.75 to 1.00
; provided that, if the Borrower or any Subsidiary receives any Specified Tax
Refunds during any fiscal quarter, (i) the Financial Officer's certificate
delivered immediately after the end of such fiscal quarter pursuant to Section
5.01(b)(iv) shall include a certification by the applicable Financial Officer of
the aggregate amount of Specified Tax Refunds received during such fiscal
quarter and (ii) each ratio set forth under the column "Maximum Ratio" above
shall be deemed to be reduced by the quotient (rounded to the nearest multiple
of 0.05) obtained by dividing (A) the aggregate amount of the Specified Tax
Refunds set forth in such Financial Officer's certificate by (B) Adjusted
Consolidated EBITDA of the Borrower for the period of four consecutive fiscal
quarters of the Borrower ending on or most recently prior to the delivery of
such Financial Officer's certificate.
SECTION 6.02. Investments. The Borrower will not, and will not permit
any Subsidiary to, make any Investment, except (a) Equity Interests in
Subsidiaries existing on the Effective Date or organized by the Borrower after
the Effective Date and Equity Interests in Persons that thereafter become
Subsidiaries in acquisitions permitted under Section 6.08; (b) Permitted
Investments and Permitted Syndicated Interest Repurchases, (c) Investments
existing on the Effective Date and set forth on Schedule 6.02, (d) Investments
made in favor of physicians in connection with their medical practices in an
aggregate amount outstanding at any time not in excess of $20,000,000, (e)
acquisitions permitted under Section 6.08, (f) Investments in trade creditors
or customers that are received pursuant to a plan of reorganization or
liquidation, (g) guarantees permitted under Section 6.03(a)(L), (h)
investments received in connection with the bankruptcy or reorganization of,
or settlement of delinquent accounts and disputes with, customers and
suppliers, in each case in the ordinary course of business; and (i)
investments not permitted by any other clause of this Section; provided, that
no investment shall be made pursuant to this clause (i) that, taken together
with all other outstanding investments made pursuant to this clause (i), would
exceed the greater of $100,000,000 and 5% of Consolidated Tangible Assets of
the Borrower (or at any time when the Leverage Ratio is less than 5.00 to
1.00, the greater of $200,000,000 and 10% of Consolidated Tangible Assets of
the Borrower) as of the end of the most recent fiscal quarter for which
financial statements of the Borrower have been delivered under Section 5.01
(or, prior to the delivery of any such financial statements, as of December
31, 2004), in each of clauses (a) through (i) above, net of any return
representing return of capital, payment of principal or any other reduction in
respect of all investments made pursuant to the applicable clause as of the
date of the applicable investment (including proceeds received by the Borrower
or any Subsidiary Loan Party from Syndications of Designated Syndicated
Persons (in each case, not exceeding the amount of capital contributions made
by the Borrower and the Subsidiary Loan Parties to the applicable Designated
Syndicated Person)). The Borrower shall not purchase or otherwise acquire any
Equity Interests, security, obligation or evidence of Indebtedness of, make
any capital contribution to or make any loan or advance to any Subsidiary that
is not a Subsidiary Loan Party other than (1) pursuant to clause (a) of the
preceding sentence, (2) loans to Subsidiaries that are evidenced by promissory
notes that, to the extent held by the Company or Subsidiary Loan Parties, are
pledged under and in accordance with the Collateral and Guarantee Agreement,
(3) Indebtedness under the Borrower's cash management system, (4) Permitted
Debt Activities and Permitted Syndicated Interest Repurchases, (5) capital
contributions to Syndicated Persons in an aggregate amount not greater than
$10,000,000 per fiscal year and (6) investments in Designated Syndicated
Persons made pursuant to clause (i) of this Section.
SECTION 6.03. Indebtedness; Subsidiary Preferred Stock. (a) The
Borrower (i) shall not, and shall not permit any of the Subsidiaries to,
directly or indirectly, create, incur, issue, assume or otherwise become
liable with respect to (collectively, "incur"), any Indebtedness (including
Acquired Indebtedness) and (ii) shall not permit any of its Subsidiaries to
issue (except to the Borrower or any of its Subsidiaries) or create any
Preferred Stock or permit any Person (other than the Borrower or a Subsidiary)
to own or hold any interest in any Preferred Stock of any such Subsidiary;
provided that, in addition to Existing Indebtedness: (A) the Borrower may
incur Indebtedness under this Agreement; (B) the Borrower and the Subsidiaries
may incur Indebtedness under the Interim Loan Documents, provided that the Net
Proceeds of such Interim Loans are used to repay Existing Notes; (C) the
Borrower and the Subsidiaries may issue the Senior Notes in the Senior Notes
Offering provided that the Net Proceeds thereof are used to repay Interim
Loans; (D) the Borrower and the Subsidiaries may incur Refinancing
Indebtedness; (E) the Borrower may incur any Indebtedness to any Subsidiary or
any Subsidiary may incur any Indebtedness to the Borrower or to any
Subsidiary, provided, that (1) such Indebtedness incurred by a Subsidiary Loan
Party after the Effective Date is subordinated to the Obligations on terms
reasonably satisfactory to the Administrative Agent and (2) any such
Indebtedness of a Subsidiary (except Indebtedness arising through the ordinary
course operation of the Borrower's cash management system), to the extent held
by the Borrower or a Subsidiary Loan Party, (X) will be evidenced by a
promissory note in form and on terms reasonably satisfactory to the
Administrative Agent, (Y) will be pledged under the Collateral and Guarantee
Agreement and (Z) if such Indebtedness is incurred after the Effective Date by
a Subsidiary that is not a Loan Party, such Indebtedness will be secured by a
Lien on substantially all of the assets and Equity Interests owned by such
Subsidiary; (F) the Borrower may incur any Indebtedness evidenced by letters
of credit which are used in the ordinary course of business of the Borrower
and its Subsidiaries; (G) the Borrower and its Subsidiaries may incur
Capitalized Lease Obligations, purchase money debt and Attributable
Indebtedness in an aggregate principal amount (excluding the aggregate amount
of Attributable Indebtedness in respect of Specified Sale and Leaseback
Transactions and Attributable Indebtedness in respect of Sale and Leaseback
Transactions in respect of fixed or capital assets that are consummated within
180 days after the acquisition or completion of the applicable fixed or
capital assets) at any one time outstanding not to exceed the greater of
$100,000,000 and 5% of Consolidated Tangible Assets of the Borrower (or at any
time when the Leverage Ratio is less than 5.00 to 1.00, the greater of
$200,000,000 and 10% of Consolidated Tangible Assets of the Borrower) as of
the end of the most recent fiscal quarter for which financial statements of
the Borrower have been delivered under Section 5.01 (or, prior to the delivery
of any such financial statements, as of December 31, 2004); (H) the Borrower
may incur Indebtedness evidenced by the Settlement Notes; (I) the Borrower may
enter into Swap Agreements in accordance with Section 6.15; (J) the
Subsidiaries (other than the Wholly Owned Subsidiaries of the Borrower) may
incur other Indebtedness in an aggregate principal amount outstanding at any
time that does not exceed the greater of $25,000,000 and 1.25% of Consolidated
Tangible Assets of the Borrower (or at any time when the Leverage Ratio is
less than 5.00 to 1.00, the greater of $50,000,000 and 2.5% of Consolidated
Tangible Assets of the Borrower) as of the end of the most recent fiscal
quarter for which financial statements of the Borrower have been delivered
under Section 5.01 (or, prior to the delivery of any such financial
statements, as of December 31, 2004); (K) the Borrower may incur other
Indebtedness in an aggregate principal amount outstanding at any time that,
taken together with Indebtedness and Attributable Indebtedness incurred under
clauses (G) and (J) of this Section 6.03(a) and Section 6.14, does not exceed
the greater of $100,000,000 and 5% of Consolidated Tangible Assets of the
Borrower (or at any time when the Leverage Ratio is less than 5.00 to 1.00,
the greater of $200,000,000 and 10% of Consolidated Tangible Assets of the
Borrower) as of the end of the most recent fiscal quarter for which financial
statements of the Borrower have been delivered under Section 5.01 (or, prior
to the delivery of any such financial statements, as of December 31, 2004);
and (L) the Borrower and its Subsidiaries may enter into guarantees of
Indebtedness of Subsidiaries that is otherwise permitted hereunder.
(b) Notwithstanding the foregoing clause (a), the Borrower may permit
any Subsidiary (other than a Subsidiary directly owned by the Borrower) which
is an entity formed to operate one or more healthcare facilities to issue or
create Equity Interests, provided that the aggregate amount of all such Equity
Interests that is Preferred Stock outstanding after giving effect to such
issuance or creation shall not exceed $25,000,000.
SECTION 6.04. Disposition of Assets. (a) The Borrower shall not, and
shall not permit any Subsidiary to, consummate any Asset Sale, except for the
Digital Hospital Transaction, the Permitted Asset Sale, Permitted Syndicated
Interest Sales, Specified Sale and Leaseback Transactions and Asset Sales that
constitute investments permitted under Section 6.02(i), if, after giving
effect thereto, the aggregate book value of all assets (including Equity
Interests of Subsidiaries) sold, transferred or otherwise disposed of in Asset
Sales (other than the Digital Hospital Transaction, the Permitted Asset Sale,
Permitted Syndicated Interest Sales, Specified Sale and Leaseback Transactions
and Asset Sales that constitute investments permitted under Section 6.02(i))
after the date hereof would exceed the greater of $100,000,000 and 5% of
Consolidated Tangible Assets of the Borrower as of the end of the most recent
fiscal quarter for which financial statements of the Borrower shall have been
delivered under Section 5.01 (or, prior to the delivery of any such financial
statements, as of December 31, 2004). Except as provided in Section 6.03(b),
the Borrower shall not permit any Subsidiary to issue any additional Equity
Interests of such Subsidiary. The Borrower shall not, and shall not permit any
Subsidiary to, consummate any Asset Sale (other than Syndications) that would
result in a Wholly Owned Subsidiary of the Borrower continuing to be a
Subsidiary but ceasing to be a Wholly Owned Subsidiary of the Borrower.
(b) The Borrower shall not, and shall not permit any of the
Subsidiaries to, consummate any Asset Sale permitted under paragraph (a) above
(except for Asset Sales that constitute investments permitted under Section
6.02(i)) unless (i) the Borrower or such Subsidiary receives consideration at
the time of such Asset Sale at least equal to the Fair Market Value of the
assets included in such Asset Sale, (ii) immediately before and immediately
after giving effect to such Asset Sale, no Default or Event of Default shall
have occurred and be continuing and (iii) at least 75% of the consideration
received by the Borrower or such Subsidiary therefor is in the form of cash or
cash equivalents paid at the closing thereof, provided, however, that this
clause (iii) shall not apply (A) if, after giving effect to such Asset Sale,
the aggregate principal amount of all notes or similar debt obligations and
the Fair Market Value of all equity securities and other non-cash
consideration received by the Borrower from all Asset Sales since the
Effective Date (other than (1) non-cash consideration received in Asset Sales
covered by the following clause (B) and (2) such notes or similar debt
obligations and such equity securities converted into or otherwise disposed of
for cash and applied in accordance with Section 2.11(c)) would not exceed the
greater of $100,000,000 and 5% of Consolidated Tangible Assets of the Borrower
as of the end of the most recent fiscal quarter for which financial statements
of the Borrower shall have been delivered under Section 5.01 (or, prior to the
delivery of any such financial statements, as of December 31, 2004) and (B) to
Asset Sales for which the non-cash consideration exceeds 25%, the Net Proceeds
of which do not exceed $30,000,000 in the aggregate. The amount (without
duplication) of any (x) Indebtedness (other than Subordinated Indebtedness) of
the Borrower or such Subsidiary that is expressly assumed by the transferee in
such Asset Sale and with respect to which the Borrower or such Subsidiary, as
the case may be, is unconditionally released by the holder of such
Indebtedness and (y) any notes, securities or similar obligations or items of
property received from such transferee that are promptly converted, sold or
exchanged by the Borrower or such Subsidiary for cash (to the extent of the
cash actually so received), shall be deemed to be cash for purposes of this
Section. If at any time any non-cash consideration received by the Borrower or
such Subsidiary, as the case may be, in connection with any Asset Sale is
converted into or sold or otherwise disposed of for cash (other than interest
received with respect to any such non-cash consideration), then the date of
such conversion or disposition shall be deemed to constitute the date of an
Asset Sale hereunder and the Net Proceeds thereof shall be applied in
accordance with Section 2.11(c).
SECTION 6.05. Fundamental Changes. (a) The Borrower shall not, nor
shall it permit any Subsidiary to, merge into or consolidate with any other
Person, or permit any other Person to merge into or consolidate with it, or
wind up, liquidate or dissolve, except that, if at the time thereof and
immediately after giving effect thereto no Default shall have occurred and be
continuing (i) any Person may merge into the Borrower in a transaction in
which the Borrower is the surviving corporation, (ii) any Person (other than
the Borrower) may merge into any Subsidiary in a transaction in which the
surviving entity is a Subsidiary and (if any party to such merger is a
Subsidiary Loan Party) is a Subsidiary Loan Party, (iii) any Asset Sale
permitted under Section 6.04 may be structured as a merger or consolidation
and (iv) any Subsidiary may wind up, liquidate or dissolve if (A) the Borrower
determines in good faith that such winding up, liquidation or dissolution is
in the best interests of the Borrower and is not materially disadvantageous to
the Lenders and (B) with respect to any winding up, liquidation or dissolution
of a Subsidiary Loan Party, all proceeds and distributions resulting from such
winding up, liquidation or dissolution shall be made to other Subsidiary Loan
Parties, provided that any such merger involving a Person that is not a Wholly
Owned Subsidiary of the Borrower immediately prior to such merger shall not be
permitted unless also permitted by Sections 6.02, 6.04, 6.08 and 6.14, as
applicable.
(b) The Borrower will not, and will cause the Subsidiaries not to,
engage in any business other than the business now being conducted by the
Borrower and the Subsidiaries and other businesses directly related or
complementary to such business.
SECTION 6.06. Liens. The Borrower will not, and will not permit any
of the Subsidiaries to, incur, create, assume or permit to exist any Lien upon
any of its accounts receivable, contract rights, chattel paper, inventory,
equipment, instruments, general intangibles or other property or assets of any
character, whether now owned or hereafter acquired, or assign or sell any
income or receivables (including accounts receivable) or rights in respect
thereof, other than (a) Permitted Liens, (b) Liens existing on the Effective
Date and set forth on Schedule 6.06, provided that (i) such Liens shall secure
only those obligations which they secure on the Effective Date and extensions,
renewals and replacements thereof that do not increase the outstanding
principal amount thereof and (ii) such Liens shall extend only to the assets
to which they apply on the Effective Date, (c) Liens on property, plant and
equipment acquired, constructed or improved by the Borrower or any Subsidiary;
provided that (i) such Liens and the Indebtedness secured thereby are incurred
prior to or within 90 days after such acquisition or the completion of such
construction or improvement and (ii) such Liens shall not apply to any other
property or assets of the Borrower or any Subsidiary, (d) Liens securing
Indebtedness permitted under Section 6.03(a)(E) and (e) Liens (other than
Liens on any Equity Interests of any Subsidiary or other Person that is
required to be pledged under the Collateral and Guarantee Agreement) that are
not permitted by any other clause of this Section 6.06; provided that at the
time any Lien is created under this clause (e), the aggregate amount of such
Lien and all other Liens permitted under this clause (e) (measured, as to each
such Lien, as the lesser of the amount secured by such Lien and the fair
market value at such time of the assets subject to such Lien), shall not
exceed the greater of $100,000,000 and 5% of Consolidated Tangible Assets of
the Borrower as of the end of the most recent fiscal quarter for which
financial statements of the Borrower have been delivered under Section 5.01
(or, prior to the delivery of any such financial statements, as of December
31, 2004).
SECTION 6.07. Restrictive Agreements. The Borrower will not, and will
not permit any of the Subsidiaries to, directly or indirectly, enter into or
permit to exist any agreement or other arrangement that prohibits, restricts
or imposes any condition upon (a) the ability of the Borrower or any
Subsidiary to create, incur or permit to exist any Lien upon any of its
property or assets (other than on terms substantially similar to, and no less
favorable to the Lenders than, those in the Senior Notes Indenture), or the
ability of the Borrower or any Subsidiary to create, incur or permit to exist
any Lien on any Equity Interests of any Subsidiary owned by it (other than on
terms substantially similar to, and no less favorable to the Lenders than,
those in the Senior Notes Indenture), or (b) the ability of any Subsidiary to
pay dividends or other distributions with respect to any shares of its Equity
Interests or to make or repay loans or advances to the Borrower or any other
Subsidiary or to Guarantee Indebtedness of the Borrower or any other
Subsidiary; provided that (i) the foregoing shall not apply to restrictions
and conditions imposed by law or by this Agreement, or by the Interim Credit
Agreement as in effect on the date hereof or by the Senior Notes Indenture or
any Refinancing Indebtedness in respect of the foregoing so long as the
restrictions and conditions contained in the Senior Notes Indenture or such
Refinancing Indebtedness shall not be more restrictive than those contained in
the form of the Senior Notes Indenture referred to in the definition of such
term, (ii) the foregoing shall not apply to restrictions and conditions
existing on the Effective Date identified on Schedule 6.07 (but shall apply to
any extension or renewal of (other than pursuant to the exercise of existing
contractual renewal options), or any amendment or modification expanding the
scope of, any such restriction or condition), (iii) the foregoing shall not
apply to customary restrictions and conditions contained in agreements
relating to the sale of assets or a Subsidiary pending such sale, provided
that such restrictions and conditions apply only to the assets or Subsidiary
that is to be sold and such sale is permitted hereunder, (iv) clause (a) of
the foregoing shall not apply to customary provisions in leases and other
contracts restricting the assignment thereof, (v) the foregoing shall not
apply to restrictions and conditions under any agreement evidencing any
Acquired Indebtedness that was permitted to be incurred pursuant to this
Agreement and which was not incurred in anticipation or contemplation of the
related acquisition, provided that such restrictions and encumbrances only
apply to assets that were subject to such restrictions and encumbrances prior
to the acquisition of such assets by the Borrower or its Subsidiaries, (vi)
clause (a) of the foregoing shall not apply to customary restrictions and
conditions under any agreement evidencing any Lien permitted under Section
6.06(c), provided that such restrictions and conditions only apply to the
assets that are subject to the applicable Lien permitted under Section
6.06(c); (vii) the foregoing shall not apply to customary restrictions and
conditions contained in operating agreements and other agreements entered into
in connection with the formation and governance of joint ventures and other
non-wholly owned Subsidiaries in the ordinary course of business; provided
that such restrictions and conditions only apply to assets and Equity
Interests of the applicable joint venture or non-wholly owned Subsidiary and
(viii) the foregoing shall not apply to customary restrictions and conditions
under any agreement evidencing any Lien permitted hereunder securing
Indebtedness permitted under Section 6.03(a)(J), provided that such
restrictions and conditions only apply to the assets of the Subsidiary
incurring such Indebtedness that are subject to the applicable Lien.
SECTION 6.08. Acquisitions. The Borrower will not, and will not
permit any of the Subsidiaries to, acquire or enter into any agreement to
acquire (a) any Person or Facility, (b) all or substantially all of the assets
of any Person or (c) except in the ordinary course of business, assets that
are, taken as a whole, substantial in relation to the Borrower, in each case
unless (i) the Person or Facility to be acquired is in, or the assets to be
acquired are used in, substantially the same line of business as or a line of
business reasonably related or complementary to the businesses presently
engaged in by the Borrower and the Subsidiaries, and (ii) on each occasion
when the aggregate amount of cash expended and Indebtedness assumed in
connection with acquisitions permitted pursuant to this Section 6.08 shall
have exceeded $50,000,000 and each multiple of $5,000,000 in excess thereof
during any Fiscal Year, the Borrower shall have furnished to the
Administrative Agent a certificate prepared and certified by a Financial
Officer on a historical pro forma basis giving effect to all such acquisitions
consummated during the applicable Fiscal Year, which certificate shall
demonstrate (x) that no Default or Event of Default would exist immediately
after giving effect thereto and (y) that the Leverage Ratio would be equal to
or less than the Leverage Ratio set forth in the most recent certificate of a
Financial Officer delivered pursuant to Section 5.01(b)(iv), in each case
immediately after giving effect to all such acquisitions; provided, however,
that (1) no acquisition shall be permitted under this Section 6.08 if a
Default or Event of Default would exist immediately after giving effect
thereto, and (2) the aggregate amount of cash expended and Indebtedness
assumed in connection with acquisitions permitted pursuant to this Section
6.08 shall not exceed (X) at any time prior to the earlier to occur of (I) the
repayment in full of all Interim Loans and (II) the first anniversary of the
Effective Date, $50,000,000 during any Fiscal Year and (Y) otherwise,
$150,000,000 during any Fiscal Year. Notwithstanding the foregoing provisions
of this Section, the Borrower and the Subsidiaries shall be permitted to
engage in the Birmingham Hospital Transactions, and the Birmingham Hospital
Transactions shall be disregarded for purposes of any calculations under this
Section 6.08.
SECTION 6.09. Restricted Payments; Certain Prepayments of
Indebtedness. (a) The Borrower shall not, and shall not permit any of its
Subsidiaries, directly or indirectly, to make any Restricted Payment;
provided, however, that (i) the Borrower may, and may permit any of its
Subsidiaries to, make Restricted Payments in the ordinary course of business
if (A) either all Interim Loans have been fully repaid or such Restricted
Payment occurs after the first anniversary of the Effective Date, (B) at the
time of and after giving effect to such Restricted Payment no Default shall
have occurred and be continuing and (C) the amount of such Restricted Payment,
when added to the aggregate amount of all Restricted Payments made during the
same Fiscal Year, does not exceed the greater of $50,000,000 and 2.5% of
Consolidated Tangible Assets of the Borrower as of the end of the most recent
fiscal quarter for which financial statements of the Borrower have been
delivered under Section 5.01 (or, prior to the delivery of any such financial
statements, as of December 31, 2004) and (ii) the Borrower may make (A)
scheduled cash dividend payments at the times and to the extent required by
the terms of the Preferred Stock (as in effect on the Effective Date) issued
and sold in the Preferred Stock Offering and (B) cash payments at any time to
reduce the accreted liquidation preference of such Preferred Stock as a result
of previously unpaid dividends.
(b) The Borrower will not, nor will it permit any of the Subsidiaries
to, make or agree to pay or make, directly or indirectly, any payment or other
distribution (whether in cash, securities or other property) of or in respect
of principal of or interest on any Indebtedness, or any payment or other
distribution (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination of any Indebtedness,
except:
(i) payments of Indebtedness created under this Agreement;
(ii) payments of Interim Loans with proceeds of Preferred
Stock issued and sold in the Preferred Stock Offering or Senior
Notes;
(iii) mandatory payments of principal, premium and interest
as and when due in respect of any Indebtedness;
(iv) any payment or prepayment of Indebtedness with the
proceeds of Refinancing Indebtedness;
(v) payments of secured Indebtedness that becomes due as a
result of the voluntary sale or transfer of the property or assets
securing such Indebtedness or in connection with a casualty or
condemnation event related to such property or assets;
(vi) payments of Acquired Indebtedness;
(vii) prepayments of any Indebtedness incurred under Section
6.03(a)(G), (J) or (K) with any other Indebtedness incurred under
Section 6.03(a)(G), (J) or (K), respectively;
(viii) payments of Indebtedness permitted under clause (c)
of this Section 6.09;
(ix) the Birmingham Hospital Transactions;
(x) any payment or prepayment of Indebtedness of any Loan
Party to another Loan Party;
(xi) Permitted Debt Activities;
(xii) repurchases, redemptions or prepayments of (A)
$10,136,000 principal amount of 8.75% Convertible Senior Subordinated
Notes due 2015 of Greenery Rehabilitation Group, Inc. and (B)
$6,311,000 principal amount of 6.50% Convertible Subordinated
Debentures due 2011 of Greenery Rehabilitation Group, Inc.;
(xiii) repurchases, redemptions or prepayments of
Indebtedness of the Borrower or any Subsidiary in amounts that in the
aggregate do not exceed $10,000,000, if immediately prior to and
immediately after giving effect to each such repurchase or
prepayment, no Default shall have occurred and be continuing; and
(xiv) after (A) the Borrower has delivered financial
statements under Section 5.01(a)(i), 5.01(b)(ii) or 5.01(b)(iii) and
(B) either all Interim Loans have been fully repaid or one year has
passed since the Effective Date, repurchases, redemptions or
prepayments of Indebtedness of the Borrower or any Subsidiary in
amounts that, in the aggregate and taken together with the aggregate
amount of Indebtedness repurchased, redeemed or prepaid under the
immediately preceding clause (xii), do not exceed the greater of
$100,000,000 and 5% of Consolidated Tangible Assets of the Borrower
as of the end of the most recent fiscal quarter for which financial
statements of the Borrower have been delivered under Section 5.01
(or, prior to the delivery of any such financial statements, as of
December 31, 2004) if immediately prior to and immediately after
giving effect to each such repurchase or prepayment no Default shall
have occurred and be continuing.
(c) The Borrower will not demand payment on, or permit any Subsidiary
to prepay, any intercompany note of a Subsidiary that is not a Loan Party that
is pledged under the Collateral and Guarantee Agreement except for (i)
payments made for valid business reasons, (ii) payments in connection with the
liquidation of such Subsidiaries for valid business reasons and (iii)
Permitted Debt Activities.
SECTION 6.10. Compliance with ERISA. The Borrower will not, and will
not permit any of the Subsidiaries to:
(a) permit the present value of all benefit liabilities
under all Pension Plans to exceed the current value of the assets of
such Pension Plans allocable to such benefit liabilities;
(b) permit any accumulated funding deficiency (as defined in
Section 302 of ERISA or Section 412 of the Code) with respect to any
Pension Plan, whether or not waived;
(c) fail to make any contribution or payment to any
Multiemployer Plan that the Borrower, a Subsidiary or any ERISA
Affiliate may be required to make under any agreement relating to
such Multiemployer Plan, or any law pertaining thereto;
(d) with respect to any Pension Plan, Employee Benefit Plan,
engage, or permit any Subsidiary or any ERISA Affiliate to engage, in
any "prohibited transaction", as defined in Section 406 of ERISA or
Section 4975 of the Code, for which a civil penalty pursuant to
Section 502(i) of ERISA or a tax pursuant to Section 4975 of the Code
may be imposed;
(e) permit the establishment of any Employee Benefit Plan
providing post-retirement welfare benefits or establish or amend any
Employee Benefit Plan which establishment or amendment could result
in liability to the Borrower, any Subsidiary or any ERISA Affiliate
or increase the obligation of the Borrower, any Subsidiary or any
ERISA Affiliate to a Multiemployer Plan if such liability or
increase, individually or together with all similar liabilities and
increases, is in excess of $5,000,000; or
(f) fail, or permit any Subsidiary or any ERISA Affiliate to
fail, to establish, maintain and operate each Employee Benefit Plan
in compliance in all material respects with the provisions of ERISA,
the Code and all other applicable laws and the regulations and
interpretations thereof.
SECTION 6.11. Fiscal Year. The Borrower will not change its fiscal
year to a date other than December 31st, nor will it permit any Subsidiary to
change its fiscal year (other than a change to conform the fiscal year of a
Subsidiary to that of the Borrower).
SECTION 6.12. Dissolution, etc. The Borrower will not, and will not
permit any Subsidiary to, wind up, liquidate or dissolve (voluntarily or
involuntarily) or commence or suffer any proceedings seeking any such winding
up, liquidation or dissolution, except, in the case of a Subsidiary, as
permitted under Section 6.05.
SECTION 6.13. Transactions with Affiliates. Neither the Borrower nor
any of its Subsidiaries shall, directly or indirectly, in one transaction or a
series of transactions, make any loan, advance, Guarantee or capital
contribution to or for the benefit of, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to or for the benefit of, or
purchase or lease any property or assets from, or enter into or amend any
contract, agreement or understanding with or for the benefit of, any Affiliate
of the Borrower or any of its Subsidiaries or any Person (or any Affiliate of
such Person) holding 5% or more of the Common Equity of the Borrower or any of
its Subsidiaries, other than transactions in the ordinary course between the
Borrower and its Subsidiaries or among Subsidiaries of the Borrower (an
"Affiliate Transaction"), unless the terms of such Affiliate Transactions are
fair and reasonable to the Borrower or such Subsidiary, as the case may be,
and are at least as favorable as the terms which could be obtained by the
Borrower or such Subsidiary, as the case may be, in a comparable transaction
made on an arm's-length basis between unaffiliated parties.
SECTION 6.14. Sale and Leaseback Transactions. The Borrower will not,
and will not permit any Subsidiary to, enter into any Sale and Leaseback
Transaction other than Specified Sale and Leaseback Transactions unless, as of
any date and after giving effect to such Sale and Leaseback Transaction, the
aggregate outstanding Attributable Indebtedness in respect of Sale and
Leaseback Transactions (other than any Specified Sale and Leaseback
Transactions and any Sale and Leaseback Transaction in respect of a fixed or
capital asset that is consummated within 180 days after the acquisition or
completion of such fixed or capital asset), together with the aggregate amount
of all Liens incurred, created, assumed or permitted to exist pursuant to
clause (d) of Section 6.06, does not exceed the greater of $100,000,000 and 5%
of Consolidated Tangible Assets of the Borrower (or at any time when the
Leverage Ratio is less than 5.00 to 1.00, the greater of $200,000,000 and 10%
of Consolidated Tangible Assets of the Borrower) as of the end of the most
recent fiscal quarter for which financial statements of the Borrower have been
delivered under Section 5.01 (or, prior to the delivery of any such financial
statements, as of December 31, 2004).
SECTION 6.15. Swap Agreements. The Borrower will not enter into any
Swap Agreement and will not permit any Swap Agreement to which the Borrower is
a party to continue in effect after the Effective Date, except for (a) Swap
Agreements entered into to hedge or mitigate risks to which the Borrower or
any Subsidiary has actual exposure (other than those in respect of Equity
Interests of the Borrower or any Subsidiary) and (b) Swap Agreements entered
into in order to effectively cap, collar or exchange interest rates (from
fixed to floating rates, from one floating rate to another floating rate or
otherwise) with respect to any interest-bearing liability or investment of the
Borrower or any Subsidiary. The Borrower will not permit any Subsidiary to
enter into any Swap Agreement and will not permit any Swap Agreement to which
a Subsidiary is a party to continue in effect after the Effective Date.
SECTION 6.16. Management Contracts. Except for Facilities which, in
the reasonable judgment of the Borrower, are no longer useful or profitable in
the business of the Borrower and the Subsidiaries and that can be disposed of
more economically by contracting for the management thereof by a third Person,
the Borrower will not, and will cause the Subsidiaries not to, enter into any
agreement whereby the management, supervision or control of its business or
any Facility shall be delegated to or placed in any persons other than its
governing body and officers, partners and members, the Borrower or a
Subsidiary.
SECTION 6.17. Use of Proceeds. The Borrower will use the proceeds of
the Loans and the Letters of Credit solely for the purposes set forth in the
preamble to this Agreement. No part of the proceeds of any Loan will be used,
whether directly or indirectly, for any purpose that entails a violation of
any of the Regulations of the Board, including Regulations T, U and X.
SECTION 6.18. Amendment of Material Agreements. The Borrower will
not, nor will it permit any Subsidiary to, (a) permit any waiver, supplement,
modification, amendment, termination or release of (i) any Settlement
Agreement or (ii) its certificate of incorporation, by-laws or other
organizational documents, in each of clauses (i) and (ii), in a manner which
could, individually or in the aggregate, reasonably be expected to (A)
materially impair the Loan Parties' ability to perform their obligations
hereunder or under the Loan Documents or (B) be adverse to the Lenders in any
material respect, or (b) other than to permit a Permitted Debt Activity,
waive, supplement, modify, amend, terminate or release any intercompany note
pledged under the Collateral and Guarantee Agreement in a manner adverse to
the Lender's interests therein in any material respect. The Borrower will not,
nor will it permit any Subsidiary to, permit any waiver, supplement,
modification, amendment, termination or release of (i) the Interim Credit
Agreement, (ii) the Interim Loan Documents or (iii) the Senior Notes
Indenture, in each case that would (A) shorten the maturity or decrease the
weighted average life to maturity of any Indebtedness incurred thereunder, (B)
secure any of the Indebtedness incurred thereunder, (C) add additional
covenants thereto that are not contained in this Agreement or make any
covenants therein more restrictive than the corresponding covenants in this
Agreement or (D) add additional prepayment events thereto.
SECTION 6.19. Capital Expenditures. The Borrower and the Subsidiaries
will not make Capital Expenditures (other than those funded with proceeds of
asset sales or insurance) in any Fiscal Year in an aggregate amount exceeding
(a) $175,000,000 (or $200,000,000 for fiscal year 2010 and each fiscal year
thereafter), plus (b) the unused amount (up to $50,000,000) of such
$175,000,000 or $200,000,000, as applicable, in the immediately preceding
Fiscal Year; provided that Capital Expenditures in any Fiscal Year shall be
counted against the base $175,000,000 or $200,000,000, as applicable, amount
of Capital Expenditures permitted under this Section 6.19 for such Fiscal Year
prior to being counted against any additional amounts available from the
immediately preceding Fiscal Year.
ARTICLE VII
Events of Default
-----------------
SECTION 7.01. Events of Default. If any of the following events
("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan
or any reimbursement obligation in respect of any LC Disbursement
when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan
or any fee or any other amount (other than an amount referred to in
clause (a) of this Article) payable under this Agreement, when and as
the same shall become due and payable, and such failure shall
continue unremedied for a period of three Business Days;
(c) any representation or warranty made or deemed made by or
on behalf of the Borrower or any Subsidiary in or in connection with
this Agreement or any amendment or modification hereof or waiver
hereunder, or any purported statement of fact contained in any
report, certificate, financial statement or other document furnished
pursuant to or in connection with this Agreement or any amendment or
modification hereof or waiver hereunder, shall prove to have been
incorrect in any material respect when made or delivered or deemed
made or delivered;
(d) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 1.05, 2.11(c)
or (d), 5.01(b)(ix), 5.03 (with respect to the Borrower's existence),
5.10, 5.11, 5.12, 5.13, 5.15 or 9.15 or in Article VI;
(e) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in this Agreement or any
other Loan Document (other than those specified in clause (a), (b) or
(d) of this Article), and such failure shall continue unremedied for
a period of 30 days after notice thereof from the Administrative
Agent to the Borrower (which notice will be given at the request of
any Lender);
(f) the Borrower or any Subsidiary shall fail to make any
payment (whether of principal or interest and regardless of amount)
in respect of any Material Indebtedness or under any Settlement
Agreement, when and as the same shall become due and payable (after
giving effect to any applicable grace period);
(g) any event or condition occurs that results in any
Material Indebtedness or any obligations under any Settlement
Agreement becoming due or being required to be prepaid, repurchased,
redeemed or defeased prior to its or their scheduled maturity or any
event or condition shall occur that (i) enables or permits (with or
without the giving of notice, the lapse of time or both) the holder
or holders of any Material Indebtedness or any trustee or agent on
its or their behalf or any party to a Settlement Agreement other than
the Borrower or a Subsidiary to cause any Material Indebtedness or
any obligations under any Settlement Agreement to become due, or to
require the prepayment, repurchase, redemption or defeasance thereof,
prior to its or their scheduled maturity; provided that this clause
(g) shall not apply to secured Indebtedness that becomes due as a
result of the voluntary sale or transfer (to the extent not
prohibited under this Agreement), or a casualty or condemnation
event, of the property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Borrower or any
Material Group of its debts, or of a substantial part of its assets,
under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Material
Group or for a substantial part of its assets, and, in any such case,
such proceeding or petition shall continue undismissed for 60 days or
an order or decree approving or ordering any of the foregoing shall
be entered;
(i) the Borrower or any Material Group shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter
in effect, (ii) consent to the institution of, or fail to contest in
a timely and appropriate manner, any proceeding or petition described
in clause (h) of this Article, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Material
Group or for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in
any such proceeding, (v) make a general assignment for the benefit of
creditors or (vi) take any action for the purpose of effecting any of
the foregoing;
(j) the Borrower or any Material Group shall become unable,
admit in writing its inability or fail generally to pay its debts as
they become due;
(k) (i) one or more judgments (other than judgments entered
pursuant to any Settlement Agreement) for the payment of money in an
aggregate amount in excess of $30,000,000 shall be rendered against
the Borrower, any Subsidiary or any combination thereof and the same
shall remain undischarged for a period of 30 consecutive days during
which execution shall not be effectively stayed, or (ii) any action
shall be legally taken by a judgment creditor which could reasonably
be expected to result in the attachment or levy upon any material
assets of the Borrower or any Subsidiary to enforce any such
judgment;
(l) an ERISA Event shall have occurred that, in the opinion
of the Required Lenders, when taken together with all other ERISA
Events that have occurred, could reasonably be expected to result in
liability of the Borrower and its Subsidiaries in an aggregate amount
exceeding (i) $30,000,000 in any year or (ii) $50,000,000 for all
periods;
(m) a Change of Control shall occur;
(n) the Borrower or any Subsidiary shall have received a
notice, order or judgment from or of a Governmental Authority that
temporarily or permanently suspends the operations of the business of
the Borrower or a Subsidiary (due to a violation of applicable law or
otherwise), which suspension could reasonably be expected to result
in a Material Adverse Effect, or the Borrower or any Subsidiary shall
otherwise, other than in the ordinary course of business (as
determined by past practices), suspend all or any part of its
operations material to the conduct of the business of the Borrower
and the Subsidiaries, taken as a whole, for a period of more than 60
days;
(o) there shall occur (i) any cancellation, revocation,
suspension or termination of any Medicare Certification, Medicare
Provider Agreement, Medicaid Certification or Medicaid Provider
Agreement affecting the Borrower, any Subsidiary or any Contract
Provider, or (ii) the loss of any other permits, licenses,
authorizations, certifications or approvals from any federal, state
or local Governmental Authority or termination of any contract with
any such authority, in either case which cancellation, revocation,
suspension, termination or loss (A) in the case of any suspension or
temporary loss only, continues for a period greater than 60 days, and
(B) results in the suspension or termination of operations of the
Borrower or any Subsidiary or in the failure of the Borrower or any
Subsidiary or any Contract Provider to be eligible to participate in
Medicare or Medicaid programs or to accept assignments of rights to
reimbursement under Medicaid Regulations or Medicare Regulations, if
and only if such Person, in the ordinary course of business,
participates in the Medicare or Medicare programs or accepts
assignments of rights to reimbursement thereunder; provided that any
such events described in this clause (o) shall constitute an Event of
Default only if such event shall result, either individually or in
the aggregate, in the termination, cancellation, suspension or
material impairment of operations or rights to reimbursement which
produce 5% or more of the Borrower's gross revenues (on an annualized
basis) or 5% of Consolidated EBITDA for the most recently ended four
fiscal quarter period of the Borrower;
(p) the Guarantees under the Collateral and Guarantee
Agreement of any material portion of the Guarantors shall cease to
be, or shall be asserted by the Borrower or any Subsidiary not to be,
valid and enforceable Guarantees of the Obligations, and, solely with
respect to such Guarantees of Immaterial Subsidiaries, such failure
shall continue unremedied until after September 30, 2006;
(q) any Liens on material assets purported to be created
under the Security Documents shall cease to be, or shall be asserted
by the Borrower or any Subsidiary not to be, valid and perfected
Liens on the Collateral purportedly subject thereto, with the
priority required by the applicable Security Documents, except (i) as
a result of the sale or other disposition of the applicable
Collateral in one or more transactions permitted under the Loan
Documents or (ii) as a result of the Collateral Agent's failure to
maintain possession of any stock certificates, promissory notes or
other instruments delivered to it under the Collateral and Guarantee
Agreement; or
(r) the Borrower or any Subsidiary shall be subject to a
criminal indictment.
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower; and in case of any
event with respect to the Borrower described in clause (h) or (i) of this
Article, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Borrower accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.
ARTICLE VIII
The Agents
----------
Each of the Lenders and the Issuing Banks hereby irrevocably appoints
the Agents as its agents and authorizes the Agents to take such actions on its
behalf and to exercise such powers as are delegated to them by the terms of
the Loan Documents, together with such actions and powers as are reasonably
incidental thereto.
The bank serving as the Administrative Agent and Collateral Agent
shall have the same rights and powers in its capacity as a Lender as any other
Lender and may exercise the same as though it were not the Administrative
Agent or Collateral Agent, and such bank and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
the Borrower or any Subsidiary or other Affiliate thereof as if it were not
the Administrative Agent or Collateral Agent.
The Agents shall not have any duties or obligations except those
expressly set forth in the Loan Documents. Without limiting the generality of
the foregoing, (a) the Agents shall not be subject to any fiduciary or other
implied duties, regardless of whether a Default has occurred and is
continuing, (b) neither Agent shall have any duty to take any discretionary
action or exercise any discretionary powers, except discretionary rights and
powers that, under the terms of the Loan Documents, such Agent is required to
exercise as directed by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances, as
provided in Section 9.02), and (c) except as expressly set forth in the Loan
Documents, the Agents shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Borrower
or any of the Subsidiaries that is communicated to or obtained by the bank
serving as Administrative Agent and Collateral Agent or any of its Affiliates
in any capacity. Neither Agent shall be liable for any action taken or not
taken by it with the consent or at the request of the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02) or in the absence of its own gross
negligence or wilful misconduct. Neither Agent shall be deemed to have
knowledge of any Default unless and until written notice thereof is given to
such Agent by the Borrower or a Lender, and neither Agent shall be responsible
for or have any duty to ascertain or inquire into (i) any statement, warranty
or representation made in or in connection with any Loan Document, (ii) the
contents of any certificate, report or other document delivered thereunder or
in connection therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness of
any Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV or elsewhere in any Loan
Document, other than to confirm receipt of items expressly required to be
delivered to such Agent.
Each Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. Each Agent also may rely
upon any statement made to it orally or by telephone and believed by it to be
made by the proper Person, and shall not incur any liability for relying
thereon. The Agents may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by them, and
shall not be liable for any action taken or not taken by them in accordance
with the advice of any such counsel, accountants or experts.
Each Agent may perform any and all its duties and exercise its rights
and powers by or through any one or more sub-agents appointed by it. Each
Agent and any such sub-agent may perform any and all its duties and exercise
its rights and powers through its respective Related Parties. The exculpatory
provisions of the preceding paragraphs shall apply to any such sub-agent and
to the Related Parties of the Agents and any such sub-agent, and shall apply
to their respective activities in connection with the syndication of the
credit facilities provided for herein as well as activities as Administrative
Agent and Collateral Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent
may resign at any time by notifying the Lenders, the Issuing Banks and the
Borrower. Upon any such resignation, the Required Lenders shall have the
right, in consultation with the Borrower, to appoint a successor; provided
that such consultation with the Borrower shall not be required if an Event of
Default has occurred and is continuing at the time of such appointment. If no
successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation, then the retiring Administrative Agent
may, on behalf of the Lenders and the Issuing Banks, appoint a successor
Administrative Agent which shall be a bank with an office in New York, New
York, or an Affiliate of any such bank. Upon the acceptance of its appointment
as Administrative Agent hereunder by a successor, such successor shall succeed
to and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those
payable to its predecessor unless otherwise agreed in writing between the
Borrower and such successor. After the Administrative Agent's resignation
hereunder, the provisions of this Article and Section 9.03 shall continue in
effect for the benefit of such retiring Administrative Agent, its sub-agents
and their respective Related Parties in respect of any actions taken or
omitted to be taken by any of them while it was acting as Administrative
Agent.
Subject to the appointment and acceptance of a successor Collateral
Agent as provided in this paragraph, the Collateral Agent may resign at any
time by notifying the Administrative Agent, the Lenders, the Issuing Banks and
the Borrower. Upon any such resignation, the Administrative Agent shall have
the right, in consultation with the Borrower, to appoint a successor. Upon the
acceptance of its appointment as Collateral Agent hereunder by a successor,
such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Collateral Agent, and the retiring
Collateral Agent shall be discharged from its duties and obligations
hereunder. After the Collateral Agent's resignation hereunder, the provisions
of this Article and Section 9.03 shall continue in effect for the benefit of
such retiring Collateral Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them
while it was acting as Collateral Agent.
Each Lender acknowledges that it has, independently and without
reliance upon either Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon either Agent or any other Lender
and based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any other Loan Document, any related
agreement or any document furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous
-------------
SECTION 9.01. Notices. (a) Except in the case of notices and other
communications expressly permitted to be given by telephone (and subject to
paragraph (b) below), all notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy, as
follows:
(i) if to the Borrower, to it at One HealthSouth Parkway,
Birmingham, AL 35243, Attention of John Workman (Telecopy No. (205)
969-7582; Telephone No. (205) 970-7900);
(ii) if to the Administrative Agent, to JPMorgan Chase Bank,
N.A., JPMorgan Loan Services, 1111 Fannin, 10th Floor, Houston, TX
77002, Attention of Danette Espinoza (Telecopy No. (713) 750-2782;
Telephone No. (713) 750-2102), with a copy to JPMorgan Chase Bank,
N.A., 270 Park Avenue, New York 10017, Attention of Dawn LeeLum
(Telecopy No. (212) 270-3279; Telephone No. (212) 270-2472);
(iii) if to JPMorgan Chase Bank, N.A. in its capacity as an
Issuing Bank, to JPMorgan Chase Bank, N.A., Standby Letter of Credit
Department, 10420 Highland Manor Drive, 4th Floor, Tampa, FL 33610,
Attention of Gina Thomas (Telecopy No. (813) 432-5161; Telephone No.
(813) 432-6356), with a copy to JPMorgan Chase Bank, N.A., Loan and
Agency Services Group, 1111 Fannin Street, Houston, Texas, Attention
of Marlies Iida (Telecopy No. (713) 750-2892; Telephone No. (713)
750-2353); and
(iv) if to any other Lender or Issuing Bank, to it at its
address (or telecopy number) set forth in its Administrative
Questionnaire.
(b) Notices and other communications to the Lenders and Issuing Banks
hereunder may be delivered or furnished by electronic communications pursuant
to procedures approved by the Administrative Agent; provided that the
foregoing shall not apply to notices pursuant to Article II unless otherwise
agreed by the Administrative Agent and the applicable Lender or Issuing Bank.
The Administrative Agent or the Borrower may, in its discretion, agree to
accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it; provided that approval
of such procedures may be limited to particular notices or communications.
(c) Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the other parties
hereto. All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by either
Agent, any Issuing Bank or any Lender in exercising any right or power
hereunder or under any other Loan Document shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Agents, the Issuing Banks and
the Lenders hereunder and under the other Loan Documents are cumulative and
are not exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of this Agreement or any other Loan Document or
consent to any departure therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) of this Section, and then such waiver
or consent shall be effective only in the specific instance and for the
purpose for which given. Without limiting the generality of the foregoing, the
making of a Loan, funding of a Tranche A Deposit or issuance of a Letter of
Credit shall not be construed as a waiver of any Default, regardless of
whether the Administrative Agent, any Lender or any Issuing Bank may have had
notice or knowledge of such Default at the time.
(b) None of this Agreement, any Loan Document or any provision hereof
or thereof may be waived, amended or modified except pursuant to an agreement
or agreements in writing entered into by the Borrower and the Required Lenders
or by the Borrower and the Administrative Agent with the consent of the
Required Lenders or, in the case of any other Loan Document, pursuant to an
agreement or agreements in writing entered into by the Agent and the Loan
Party or Loan Parties that are parties thereto, in each case with the consent
of the Required Lenders; provided that no such agreement shall (i) increase
the Commitment of any Lender without the written consent of such Lender, (ii)
reduce or forgive the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone
the maturity of any Loan, the date on which any Tranche A Deposit is required
to be returned to any Tranche A LC Lender, or any date of scheduled payment of
the principal amount of any Term Loan under Section 2.10, or the required date
of reimbursement of any LC Disbursement, or any date for the payment of any
interest or fees payable hereunder, or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date of expiration of any
Commitment, or permit an Interest Period in excess of six months, or change
Section 2.11(g), in each case without the written consent of each Lender
affected thereby, (iv) change Section 2.18(b) or (c) in a manner that would
alter the pro rata sharing of payments required thereby without the written
consent of each Lender, (v) change any of the provisions of this Section or
the percentage set forth in the definition of "Required Lenders" or any other
provision of any Loan Document specifying the number or percentage of Lenders
(or Lenders of any Class) required to waive, amend or modify any rights
thereunder or make any determination or grant any consent thereunder without
the written consent of each Lender (or each Lender of such Class, as the case
may be), (vi) release all or substantially all Subsidiary Loan Parties from
their Guarantees under the Collateral and Guarantee Agreement (except as
expressly provided in Section 9.14), limit their liability in respect of such
Guarantees or amend Section 6.02 of the Collateral and Guarantee Agreement,
without the written consent of each Lender, (vii) release all or substantially
all the Collateral from the Liens of the Security Documents without the
written consent of each Lender or (viii) change any provisions of any Loan
Document in a manner that by its terms adversely affects the rights in respect
of collateral or payments due to Lenders holding Loans or Commitments of any
Class differently than those holding Loans or Commitments of any other Class
without the written consent of Lenders holding a majority in interest of the
outstanding Loans and unused Commitments of each adversely affected Class;
provided further that (A) no such agreement shall amend, modify or otherwise
affect the rights or duties of either Agent or any Issuing Bank without the
prior written consent of such Agent or Issuing Bank, as the case may be, and
(B) any waiver, amendment or modification of this Agreement that by its terms
affects the rights or duties under this Agreement of the Revolving Lenders
(but not the Term Lenders or Tranche A LC Lenders) or the Term Lenders (but
not the LC Lenders) or the Tranche A LC Lenders (but not the Revolving Lenders
or Term Lenders) may be effected by an agreement or agreements in writing
entered into by the Borrower and the requisite percentage in interest of the
affected Class of Lenders that would be required to consent thereto under this
Section if such Class of Lenders were the only Class of Lenders hereunder at
the time. Notwithstanding the foregoing or any other provision of this
Agreement, any provision of this Agreement may be amended by an agreement in
writing entered into by the Borrower, the Required Lenders and the
Administrative Agent (and, if its rights or obligations are affected thereby,
each Issuing Bank) if (x) by the terms of such agreement the Commitment of
each Lender not consenting to the amendment provided for therein shall
terminate upon the effectiveness of such amendment and (y) at the time such
amendment becomes effective, each Lender not consenting thereto receives
payment in full of the principal of and interest accrued on each Loan made by
it and all other amounts owing to it or accrued for its account under this
Agreement.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower
shall pay (i) all reasonable and documented out-of-pocket expenses incurred by
the Administrative Agent, the Collateral Agent, the Co-Syndication Agents, the
Co-Documentation Agents, the Co-Lead Arrangers and Joint Bookrunners named on
the cover page of this Agreement (who shall be third party beneficiaries of
the agreements contained in this Section 9.03) (collectively, the
"Agent/Arranger Parties") and their respective Affiliates, including the
reasonable and documented fees, charges and disbursements of counsel for the
Agents, in connection with the syndication of the credit facilities provided
for herein, the preparation and administration of the Loan Documents or any
amendments, modifications or waivers of the provisions thereof (whether or not
the transactions contemplated hereby or thereby shall be consummated), (ii)
all reasonable and documented out-of-pocket expenses of any Issuing Bank,
including the reasonable and documented fees, charges and disbursements of
counsel, incurred by such Issuing Bank in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for
payment thereunder and (iii) all reasonable and documented out-of-pocket
expenses incurred by the Administrative Agent, the Collateral Agent, any
Issuing Bank or any Lender, including the reasonable and documented fees,
charges and disbursements of any counsel for any such Person, in connection
with the enforcement or protection of its or their rights in connection with
this Agreement and the other Loan Documents, including its or their rights
under this Section, or in connection with the Loans made or Letters of Credit
issued hereunder, including all such out-of-pocket expenses incurred during
any workout, restructuring or negotiations.
(b) The Borrower shall indemnify each Agent/Arranger Party, each
Lender and each Issuing Bank and their respective Affiliates and each Related
Party of any of the foregoing Persons (each such Person being called an
"Indemnitee") against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including the
reasonable and documented fees, charges and disbursements of any counsel for
any Indemnitee, incurred by or asserted against any Indemnitee arising out of,
in connection with or as a result of (i) the execution or delivery of any Loan
Document or any agreement or instrument contemplated hereby, the performance
by the parties to the Loan Documents of their respective obligations
thereunder or the consummation of the Transactions or any other transactions
contemplated hereby or by any other Loan Document, (ii) any Loan or Letter of
Credit or the use of the proceeds thereof (including any refusal by an Issuing
Bank to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms
of such Letter of Credit), (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned or operated by the Borrower
or any Subsidiary, or any Environmental Liability related in any way to the
Borrower or any Subsidiary, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing
(including any such claim, litigation, investigation or proceeding brought by
or on behalf of the Borrower or any of its Related Parties), whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is
a party thereto; provided that such indemnity shall not, as to any Indemnitee,
be available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence, bad
faith or wilful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to any Agent/Arranger Party or Issuing Bank, or to any
Affiliate or Related Party of any such Person, under paragraph (a) or (b) of
this Section, each Lender severally agrees to pay to such Person such Lender's
Contribution Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided, that nothing in this paragraph shall require any Lender other than
the Revolving Lenders or Tranche A LC Lenders, as applicable, to purchase
participations in unreimbursed LC Disbursements pursuant to Section 2.05(e) or
otherwise to make payments to any Issuing Bank in respect of unreimbursed LC
Disbursements.
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, (i) on any theory
of liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection with, or as
a result of, any Loan Document or any agreement or instrument contemplated
thereby, the Transactions, any Loan or Letter of Credit or the use of the
proceeds thereof or (ii) for any damages arising from the use by others of
Information or other materials obtained through electronic, telecommunications
or other information transmission systems.
(e) All amounts due under this Section shall be payable promptly
after written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of an Issuing Bank that issues any Letter of Credit), except that
(i) the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and
any attempted assignment or transfer by the Borrower without such consent
shall be null and void) and (ii) no Lender may assign or otherwise transfer
its rights or obligations hereunder except in accordance with this Section.
Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors
and assigns permitted hereby (including any Affiliate of any Issuing Bank that
issues any Letter of Credit), Participants (to the extent provided in
paragraph (c) of this Section) and Indemnitees and other Persons entitled to
expense reimbursement and indemnification under Section 9.03) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph
(b)(ii) below, any Lender may assign to one or more assignees all or
a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitments and the Loans or
Tranche A Deposits at the time owing to it); with the prior written
consent (such consent not to be unreasonably withheld or delayed) of:
(A) the Borrower; provided that no consent of the Borrower
shall be required for an assignment to a Lender, an Affiliate of a
Lender or an Approved Fund (as defined below) or, if an Event of
Default has occurred and is continuing, to any other assignee;
(B) the Administrative Agent; provided that no consent of
the Administrative Agent shall be required for an assignment of a
Term Loan or portion thereof to a Lender, an Affiliate of a Lender or
an Approved Fund;
(C) in the case of any assignment of a LC Commitment, each
Issuing Bank; and
(D) in the case of any assignment of a Revolving Commitment,
the Swingline Lender.
(ii) Assignments shall be subject to the following
additional conditions:
(A) except in the case of an assignment to a Lender or an
Affiliate of a Lender or an assignment of the entire remaining amount
of the assigning Lender's Commitment or Loans of any Class (which
remaining amount shall be deemed to include, for purposes of this
clause, the aggregate amount of Commitments and Loans of such Class
held by any Affiliate of the assigning Lender), the amount of the
Commitment or Loans of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Assumption
with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $5,000,000 or, in the case of a Term
Loan, $1,000,000 unless each of the Borrower, the Administrative
Agent and the Issuing Banks otherwise consents, provided that in the
event of coof one another, or to two or more Approved Funds managed
by the same investment advisor or by affiliated investment advisors,
all such concurrent assignments shall be aggregated in determining
compliance with this subsection and; provided, further that no
consent of the Borrower shall be required if an Event of Default has
occurred and is continuing;
(B) each partial assignment shall be made as an assignment
of a proportionate part of all the assigning Lender's rights and
obligations under this Agreement, provided that this clause shall not
be construed to prohibit the assignment of a proportionate part of
all the assigning Lender's rights and obligations in respect of one
Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Assumption, together
with a processing and recordation fee of $3,500; provided that in the
event of concurrent assignments to two or more assignees that are
Affiliates of one another, or to two or more Approved Funds managed
by the same investment advisor or by affiliated investment advisors,
only one such fee shall be payable;
(D) the assignee, if it shall not be a Lender, shall deliver
to the Administrative Agent an Administrative Questionnaire in which
the assignee designates one or more credit contacts to whom all
syndicate-level information (which may contain material non-public
information about the Borrower, the Loan Parties and their Related
Parties or their respective securities) will be made available and
who may receive such information in accordance with the assignee's
compliance procedures and applicable laws, including Federal and
state securities laws;
(E) in the case of an assignment by a Lender to a CLO (as
defined below) managed by such Lender or by an Affiliate of such
Lender, unless such assignment (or an assignment to a CLO managed by
the same manager or an Affiliate of such manager) shall have been
approved by the Borrower (the Borrower hereby agreeing that such
approval, if requested, will not be unreasonably withheld or
delayed), the assigning Lender shall retain the sole right to approve
any amendment, modification or waiver of any provision of this
Agreement, except that the Assignment and Assumption between such
Lender and such CLO may provide that such Lender will not, without
the consent of such CLO, agree to any amendment, modification or
waiver described in the first proviso to Section 9.02(b) that affects
such CLO; and
(F) in connection with each assignment of a Tranche A
Deposit, the Tranche A Deposit of the assignor Tranche A LC Lender
shall not be released, but shall instead be purchased by the relevant
assignee and continue to be held for application (to the extent not
already applied) in accordance with Article II to satisfy such
assignee's obligations in respect of the LC Exposure. Each Tranche A
LC Lender agrees that immediately prior to each such assignment (i)
the Administrative Agent shall establish a new Sub-Account in the
name of the assignee, (ii) a corresponding portion of the Tranche A
Deposit credited to the Sub-Account of the assignor Tranche A LC
Lender shall be purchased by the assignee and shall be transferred
from the assignor's Sub-Account to the assignee's Sub-Account and
(iii) if after giving effect to such assignment the Tranche A Deposit
of the assignor Tranche A LC Lender shall be zero, the Administrative
Agent shall close the Sub-Account of such assignor Tranche A LC
Lender.
For purposes of this Section 9.04(b), the terms "Approved Fund" and
"CLO" have the following meanings:
"Approved Fund" means (a) with respect to any Lender, a CLO managed
by such Lender or by an Affiliate of such Lender and (b) with respect to any
Lender that is a fund which invests in bank loans and similar extensions of
credit, any other fund that invests in bank loans and similar extensions of
credit and is managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"CLO" means any entity (whether a corporation, partnership, trust or
otherwise) that is engaged in making, purchasing, holding or otherwise
investing in bank loans and similar extensions of credit in the ordinary
course and is administered or managed by a Lender or an Affiliate of such
Lender.
(iii) Subject to acceptance and recording thereof pursuant
to paragraph (b)(iv) of this Section, from and after the effective
date specified in each Assignment and Assumption the assignee
thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of
Sections 2.15, 2.16, 2.17 and 9.03). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not
comply with this Section 9.04 shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights
and obligations in accordance with paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices a copy of
each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the
Commitment of, and principal amount and any stated interest of the
Loans and LC Disbursements owing to, each Lender pursuant to the
terms hereof from time to time (the "Register"). The entries in the
Register shall be conclusive, and the Borrower, the Administrative
Agent, the Issuing Banks and the Lenders shall treat each Person
whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower, the Issuing Banks and any
Lender, at any reasonable time and from time to time upon reasonable
prior notice.
(v) Upon its receipt of a duly completed Assignment and
Assumption executed by an assigning Lender and an assignee, the
assignee's completed Administrative Questionnaire (unless the
assignee shall already be a Lender hereunder), the processing and
recordation fee referred to in paragraph (b) of this Section and any
written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and
Assumption and record the information contained therein in the
Register. No assignment shall be effective for purposes of this
Agreement unless it has been recorded in the Register as provided in
this paragraph.
(c) (i) Any Lender may, without the consent of the Borrower, the
Administrative Agent or any Issuing Bank, sell participations to one or more
banks or other entities (a "Participant") in all or a portion of such Lender's
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided that (A) such Lender's
obligations under this Agreement shall remain unchanged, (B) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (C) the Borrower, the Administrative Agent, the Issuing
Banks and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument
may provide that such Lender will not, without the consent of the Participant,
agree to any amendment, modification or waiver described in the first proviso
to Section 9.02(b) that affects such Participant. Subject to paragraph (c)(ii)
of this Section, the Borrower agrees that each Participant shall be entitled
to the benefits of Sections 2.15, 2.16 and 2.17 to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section. To the extent permitted by applicable law, each
Participant also shall be entitled to the benefits of Section 9.08 as though
it were a Lender, provided such Participant agrees to be subject to Section
2.18(c) as though it were a Lender.
(ii) A Participant shall not be entitled to receive any
greater payment under Section 2.15 or 2.17 than the applicable Lender
would have been entitled to receive with respect to the participation
sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall
not be entitled to the benefits of Section 2.17 unless the Borrower
is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with
Section 2.17(e) as though it were a Lender.
(d) Any Lender may, without the consent of the Borrower or the
Administrative Agent, at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of
such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment
of a security interest shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a
party hereto.
SECTION 9.05. Survival. All covenants, agreements, representations
and warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall
be considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans and issuance of any Letters of Credit, regardless of any investigation
made by any such other party or on its behalf and notwithstanding that any
Agent, Issuing Bank or Lender may have had notice or knowledge of any Default
or incorrect representation or warranty at the time any credit is extended
hereunder, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any fee or any other
amount payable under this Agreement is outstanding and unpaid or any Letter of
Credit is outstanding and so long as the Commitments have not expired or
terminated. The provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article
VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the return of the Tranche A Deposits, the expiration or termination of
the Letters of Credit and the Commitments or the termination of this Agreement
or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all
of which when taken together shall constitute a single contract. This
Agreement and the other Loan Documents constitute the entire contract among
the parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the
subject matter hereof, except that the provisions of any commitment and fee
letters between the Borrower and the other Persons serving as Agents or named
on the cover page of this Agreement shall continue in full force and effect
and shall not be superseded hereby. Except as provided in Section 4.01, this
Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof that, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
Delivery of an executed counterpart of a signature page of this Agreement by
telecopy shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held to
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular
provision in a particular jurisdiction shall not invalidate such provision in
any other jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted
by law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any
time owing by such Lender or Affiliate to or for the credit or the account of
the Borrower against any of and all the obligations of the Borrower now or
hereafter existing under this Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured. The rights of each Lender under
this Section are in addition to other rights and remedies (including other
rights of setoff) which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
Process.
(a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to
any Loan Document, or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent permitted by applicable law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
applicable law. Nothing in this Agreement or any other Loan Document shall
affect any right that the Administrative Agent, any Issuing Bank or any Lender
may otherwise have to bring any action or proceeding relating to this
Agreement or any other Loan Document against the Borrower or its properties in
the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to any Loan Document in any court
referred to in paragraph (b) of this Section. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by applicable law,
the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by applicable law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. (a) The Administrative Agent, each
Issuing Bank and each Lender agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a)
on a need-to-know basis, to its and its Affiliates' directors, officers,
employees and agents, including accountants, legal counsel and other advisors
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential), (b) to the extent requested by any regulatory
authority, (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (d) to any other party to this
Agreement, (e) in connection with the exercise of any remedies hereunder or
any suit, action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder or thereunder, (f) subject to
an agreement containing provisions substantially the same as those of this
Section, to (i) any assignee of or Participant in, or any prospective assignee
of or Participant in, any of its rights or obligations under this Agreement or
(ii) any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrower and its obligations, (g) with
the consent of the Borrower or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii)
becomes available to the Administrative Agent, any Issuing Bank or any Lender
on a nonconfidential basis from a source other than the Borrower. For the
purposes of this Section, "Information" means all information received from
the Borrower relating to the Borrower or its business, other than any such
information that is available to the Administrative Agent, any Issuing Bank or
any Lender on a nonconfidential basis prior to disclosure by the Borrower;
provided that, in the case of information received from the Borrower after the
Effective Date, such information is clearly identified at the time of delivery
as confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.
(b) EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION
9.12(a) FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL
NON-PUBLIC INFORMATION CONCERNING THE BORROWER AND ITS RELATED PARTIES OR
THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE
PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT
WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE
PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.
(c) ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS,
FURNISHED BY THE BORROWER OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE
COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION,
WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWER , THE
LOAN PARTIES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES.
ACCORDINGLY, EACH LENDER REPRESENTS TO THE BORROWER AND THE ADMINISTRATIVE
AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT
CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC
INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW,
INCLUDING FEDERAL AND STATE SECURITIES LAWS.
SECTION 9.13. Additional Agents. None of the Lenders or other
entities identified on the facing page of, signature pages of or elsewhere in
this Agreement as a Co-Syndication Agent, Co-Documentation Agent, Joint
Bookrunner or Co-Lead Arranger shall have any right, power, obligation,
liability, responsibility or duty under this Agreement other than, as to any
such entity that is a Lender, those applicable to all Lenders as such. Without
limiting the foregoing, none of such entities shall have or be deemed to have
any fiduciary relationship with any other Lender. Each Lender acknowledges
that it has not relied, and will not rely, on any of the Lenders or other
entities so identified in deciding to enter into this Agreement or in taking
or not taking action hereunder.
SECTION 9.14. Release of Subsidiary Loan Parties and Collateral. (a)
Notwithstanding any contrary provision herein or in any other Loan Document,
(i) upon (A) any sale or other transfer in the ordinary course of business by
the Borrower or any Subsidiary of any Collateral consisting of inventory or
used, surplus, obsolete or outmoded machinery or equipment, (B) the
distribution of any Collateral to a Person other than the Borrower or a
Subsidiary in connection with the dissolution of any Subsidiary, in each case
in accordance with this Agreement or (C) the effectiveness of any written
consent (pursuant to Section 9.02) to the release of all or any portion of the
security interest granted in any Collateral, the security interest in such
Collateral shall automatically be released and (ii) if the Borrower shall
request the release under the Collateral and Guarantee Agreement or any other
Security Document of any Subsidiary or any Collateral to be sold or otherwise
disposed of (including through the sale or disposition of any Subsidiary
owning any such Subsidiary or Collateral or resulting from the dissolution of
a Subsidiary) to a Person other than the Borrower or a Subsidiary in a
transaction permitted under the terms of this Agreement and not described in
the immediately preceding clause (i), the Borrower shall deliver to the
Administrative Agent a certificate executed by a Financial Officer to the
effect that such sale or other disposition (and any dissolution relating
thereto) and the application of the proceeds thereof will comply with the
terms of this Agreement, and the Administrative Agent, if satisfied that such
certificate is correct, shall, without the consent of any Lender, execute and
deliver all such instruments, releases, financing statements or other
agreements, and take all such further actions, as shall be necessary to
effectuate the release of such Subsidiary or such Collateral substantially
simultaneously with or at any time after the completion of such sale or other
disposition. Any such release shall be without recourse to, or representation
or warranty by, the Administrative Agent and shall not require the consent of
any Lender. The Administrative Agent shall execute and deliver all such
instruments, releases, financing statements or other agreements, and take all
such further actions, as shall be necessary to effectuate the release of a
Subsidiary or Collateral required by this paragraph.
(b) Without limiting the provisions of Section 9.03, the Borrower
shall reimburse the Collateral Agent for all costs and expenses, including
reasonable and documented attorneys' fees and disbursements, incurred by it in
connection with any action contemplated by this Section 9.14.
SECTION 9.15. Patriot Act. Each Lender hereby notifies the Borrower
that pursuant to the requirements of the USA Patriot Act, it is required to
obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other
information that will allow such Lender to identify the Borrower in accordance
with the USA Patriot Act. The Borrower shall promptly, following a request by
the Administrative Agent or any Lender, provide all documentation and other
information that the Administrative Agent or such Lender reasonably requests
in order to comply with its ongoing obligations under applicable "know your
customer" and anti-money laundering rules and regulations, including the USA
Patriot Act.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and
year first above written.
HEALTHSOUTH CORPORATION,
By /s/ JAY GRINNEY
---------------------------------------------
Name: Jay Grinney
Title: President and Chief Executive Officer
JPMORGAN CHASE BANK, N.A., individually and as
Administrative Agent and Collateral Agent,
By /s/ GARY L. SPEVACK
---------------------------------------------
Name: Gary L. Spevack
Title: Vice President
CITICORP NORTH AMERICA, INC.,
individually and as Co-Syndication Agent,
By /s/ RICHARD C. ZOGHEB
---------------------------------------------
Name: Richard C. Zogheb
Title: Vice President
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
as Co-Syndication Agent,
By /s/ STEPHEN B. PARAS
---------------------------------------------
Name: Stephen B. Paras
Title: Managing Director
DEUTSCHE BANK SECURITIES INC.,
as Co-Documentation Agent,
By /s/ MICHAEL BASAM
---------------------------------------------
Name: Michael Basam
Title: Vice President
By /s/ SEAN MURPHY
---------------------------------------------
Name: Sean Murphy
Title: Managing Director
GOLDMAN SACHS CREDIT PARTNERS L.P.,
individually and as Co-Documentation Agent,
By /s/ WILLIAM W. ARCHER
---------------------------------------------
Name: William W. Archer
Title: Managing Director
WACHOVIA BANK, NATIONAL ASSOCIATION,
individually and as Co-Documentation Agent,
By /s/ CHRIS McCOY
---------------------------------------------
Name: Chris McCoy
Title: Vice President
SIGNATURE PAGE TO THE
HEALTHSOUTH CREDIT AGREEMENT
Name of Institution: Merrill Lynch Capital Corporation
---------------------------------
by /s/ MICHAEL E. O'BRIEN
-------------------------
Name: Michael E. O'Brien
Title: Vice President
Name of Institution: Deutsche Bank Trust Company Americas
------------------------------------
By: /s/ DIANE E. ROLFE
-------------------------
Name: Diane E. Rolfe
Title: Director
By: /s/ LANA GIFAS
-------------------------
Name: Lana Gifas
Title: Vice President
Name of Institution: First Commercial Bank
---------------------
by /s/ JASON GOETZ
-------------------------
Name: Jason Goetz
Title: Assistant Vice President
by /s/ FOREST WHATLEY
-------------------------
Name: Forest Whatley
Title: Executive Vice President
Name of Institution: General Electric Capital Corp.
------------------------------
By: /s/ JOHN DALE
-------------------------
Name: John Dale
Title: Duly Authorized Signatory
Name of Institution: Lehman Commercial Paper Inc.
----------------------------
By: /s/ CRAIG MALLOY
-------------------------
Name: Craig Malloy
Title: Authorized Signatory
Name of Institution: CIT HEALTHCARE LLC
------------------
By: /s/ ROBERT O'MARA
-------------------------
Name: Robert O'Mara
Title: Director
EXHIBIT A
[FORM OF]
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the "Assignment and Assumption") is dated
as of the date set forth below (the "Effective Date") and is entered into by
and between the Assignor (as defined below) and the Assignee (as defined
below). Capitalized terms used in this Assignment and Assumption and not
otherwise defined herein have the meanings specified in the Credit Agreement
dated as of March 10, 2006, among HEALTHSOUTH CORPORATION (the "Borrower"),
the lenders from time to time party thereto, JPMorgan Chase Bank, N.A., as
administrative agent and collateral agent, Citicorp North America, Inc. and
Merrill Lynch, Pierce, Fenner & Smith Incorporated, as co-syndication agents,
and Deutsche Bank Securities Inc., Goldman Sachs Credit Partners L.P. and
Wachovia Bank, National Association, as co-documentation agents (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement").
The Standard Terms and Conditions set forth in Annex 1 attached hereto are
hereby agreed to and incorporated herein by reference and made a part of this
Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard
Terms and Conditions and the Credit Agreement, as of the Effective Date
inserted by the Administrative Agent as contemplated below (i) all the
Assignor's rights and obligations in its capacity as a Lender under the Credit
Agreement and any other documents or instruments delivered pursuant thereto to
the extent related to the amount and percentage interest identified below of
all of such outstanding rights and obligations of the Assignor under the
respective facilities identified below (including any letters of credit,
guarantees and swingline loans included in such facilities) and (ii) to the
extent permitted to be assigned under applicable law, all claims, suits,
causes of action and any other right of the Assignor (in its capacity as a
Lender) against any Person, whether known or unknown, arising under or in
connection with the Credit Agreement, any other documents or instruments
delivered pursuant thereto or the loan transactions governed thereby or in any
way based on or related to any of the foregoing, including contract claims,
tort claims, malpractice claims, statutory claims and all other claims at law
or in equity related to the rights and obligations sold and assigned pursuant
to clause (i) above (the rights and obligations sold and assigned pursuant to
clauses (i) and (ii) above being referred to herein collectively as the
"Assigned Interest"). Such sale and assignment is without recourse to the
Assignor and, except as expressly provided in this Assignment and Assumption,
without representation or warranty by the Assignor.
1. Assignor (the "Assignor"):
2. Assignee (the "Assignee"):
a) Assignee is an Affiliate of:
b) Assignee is an Approved Fund administered or managed by:
3. Borrower: HEALTHSOUTH CORPORATION
4. Administrative Agent: JPMORGAN CHASE BANK, N.A.
5. Assigned Interest:
- -----------------------------------------------------------------------------------------------------------
Aggregate Amount of Percentage of Aggregate
Commitment/Loans/LC Amount of Amount of
Facility Exposure/Deposit of all Commitment/Loans/LC Commitment/Loans/LC
Assigned Lenders Exposure/Deposit Assigned Exposure/Deposit Assigned(1)
- -----------------------------------------------------------------------------------------------------------
Term Loans $ $ %
- -----------------------------------------------------------------------------------------------------------
Revolving Loans
- -----------------------------------------------------------------------------------------------------------
Swingline Loans
- -----------------------------------------------------------------------------------------------------------
Revolving LC
Exposure
- -----------------------------------------------------------------------------------------------------------
Tranche A LC
Exposure
- -----------------------------------------------------------------------------------------------------------
Tranche A
Deposit
- -----------------------------------------------------------------------------------------------------------
Effective Date: [ ], 20[ ] [TO BE INSERTED BY THE ADMINISTRATIVE AGENT AND
WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
_____________________
(1) Set forth, to at least 9 decimals, as a percentage of the
Commitment/Loans/LC Exposure/Deposit of all Lenders thereunder.
The Assignee agrees to deliver to the Administrative Agent a completed
Administrative Questionnaire in which the Assignee designates one or more
Credit Contacts to whom all syndicate-level information (which may contain
material non-public information about the Borrower, the Loan Parties and their
Related Parties or their respective securities) will be made available and who
may receive such information in accordance with the Assignee's compliance
procedures and applicable laws, including Federal and state securities laws.
The terms set forth in this Assignment and Assumption are hereby agreed to:
____________________________, as
Assignor,
by
-------------------------------
Name:
Title:
by
--------------------------------
Name:
Title:
____________________________, as
Assignor,
by
-------------------------------
Name:
Title:
by
--------------------------------
Name:
Title:
Consented to:
[HEALTHSOUTH CORPORATION,]*
by
-------------------------
Name:
Title:
[JPMORGAN CHASE BANK, N.A.,
as Administrative Agent,]*
by
-------------------------
Name:
Title:
[JPMORGAN CHASE BANK, N.A.,
as Issuing Bank,]*
by
-------------------------
Name:
Title:
[[Issuing Bank],
as Issuing Bank,]*
by
-------------------------
Name:
Title:
[JPMORGAN CHASE BANK, N.A.,
as Swingline Lender,]*
by
-------------------------
Name:
Title:
* To be completed to the extent such consent is required under the Credit
Agreement.
ANNEX 1
CREDIT AGREEMENT(1)
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
-------------------------------
1.1 Assignor. The Assignor (a) represents and warrants that (i) it is
the legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and
(iii) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with
respect to (i) any statements, warranties or representations made in or in
connection with the Credit Agreement or any other Loan Document, (ii) the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Borrower or any of its Subsidiaries or Affiliates or any
other Person obligated in respect of any Loan Document or (iv) the performance
or observance by the Borrower or any of its Subsidiaries or Affiliates or any
other Person of any of their respective obligations under any Loan Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it
has full power and authority, and has taken all action necessary, to execute
and deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) it
satisfies the requirements, if any, specified in the Credit Agreement that are
required to be satisfied by it in order to acquire the Assigned Interest and
become a Lender, (iii) from and after the Effective Date, it shall be bound by
the provisions of the Credit Agreement as a Lender thereunder and, to the
extent of the Assigned Interest, shall have the obligations of a Lender
thereunder, (iv) it has received and/or had the opportunity to review a copy
of the Credit Agreement to the extent it has in its sole discretion deemed
necessary, together with copies of the most recent financial statements
delivered pursuant to Section 5.01(a) and (b) of the Credit Agreement, and
such other documents and information as it has in its sole discretion deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase the Assigned Interest on the basis
of which it has made such analysis and decision independently and without
reliance on the Administrative Agent or any other Lender, and (v) if it is a
Foreign Lender, attached to this Assignment and Assumption is any
documentation required to be delivered by it pursuant to Section 2.17(e) of
the Credit Agreement, duly completed and executed by the Assignee; and (b)
agrees that (i) it will, independently and without reliance on the
Administrative Agent, the Assignor or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue
to make its own credit decisions in taking or not taking action under the Loan
Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.
________________________
(2) Capitalized terms used in this Assignment and Assumption and not
otherwise defined herein have the meanings specified in the Credit Agreement
dated as of March 10, 2006, among HEALTHSOUTH CORPORATION (the "Borrower"),
the lenders from time to time party thereto, JPMorgan Chase Bank, N.A., as
administrative agent and collateral agent, Citicorp North America, Inc. and
Merrill Lynch, Pierce, Fenner & Smith Incorporated, as co-syndication agents,
and Deutsche Bank Securities Inc., Goldman Sachs Credit Partners L.P. and
Wachovia Bank, National Association, as co-documentation agents.
2. Payments. From and after the Effective Date, the Administrative
Agent shall make all payments in respect of the Assigned Interest (including
payments of principal, interest, fees and other amounts) to the Assignor for
amounts which have accrued to but excluding the Effective Date and to the
Assignee for amounts which have accrued from and after the Effective Date.
3. General Provisions. This Assignment and Assumption shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. This Assignment and Assumption may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract. Delivery of an executed counterpart of a
signature page of this Assignment and Assumption by facsimile or other
electronic transmission shall be as effective as delivery of a manually
executed counterpart of this Assignment and Assumption. This Assignment and
Assumption shall be construed in accordance with and governed by the law of
the State of New York.
Exhibit B
PERFECTION CERTIFICATE
Reference is made to the Credit Agreement dated as of March 10, 2006
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among HealthSouth Corporation (the "Borrower"), the lenders from
time to time party thereto (the "Lenders"), JPMorgan Chase Bank, N.A., as
administrative agent and collateral agent (in such capacities, the
"Administrative Agent"), Citicorp North America, Inc. and Merrill Lynch,
Pierce, Fenner & Smith Incorporated, as co-syndication agents, and Deutsche
Bank Securities Inc., Goldman Sachs Credit Partners L.P. and Wachovia Bank,
National Association, as co-documentation agents. Capitalized terms used but
not defined herein have the meanings assigned in the Credit Agreement or the
Collateral and Guarantee Agreement referred to therein, as applicable.
The undersigned, a Financial Officer and the chief legal officer,
respectively, of the Borrower, on this the 10th day of March, 2006 (the
"Effective Date"), hereby certify to the Administrative Agent and each other
Secured Party as follows:
1. Names and Formation.
--------------------
a) The exact legal name of the Borrower and each subsidiary of the
Borrower that is a Subsidiary Loan Party as of the Effective Date (each
individually, a "Grantor" and collectively, the "Grantors"), as such name
appears in its respective certificate of formation, is as set forth on
Schedule 1 attached hereto in the column entitled "Legal Name of Grantor".
b) The jurisdiction of formation of each Grantor that is a registered
organization is set forth on Schedule 1 attached hereto in the column entitled
"State of Grantor's Formation".
c) Set forth on Schedule 1 attached hereto in the column entitled
"Grantor's Other Legal Names (last 5 years)" is each other legal name each
Grantor has had in the past five years, together with the date of the relevant
change.
d) Except as set forth in Schedule 1 attached hereto in the column
entitled "Changes in Grantor's Identity or Corporate Structure (last 5
years)", no Grantor has changed its identity or corporate structure in any way
within the past five years. Changes in identity or corporate structure would
include mergers, consolidations and acquisitions, as well as any change in the
form, nature or jurisdiction of organization. If any such change has occurred,
include in Schedule 1 the information required by Sections 1 and 2 of this
certificate as to each acquiree or constituent party to a merger or
consolidation.
e) Set forth on Schedule 1 attached hereto in the column entitled "All
Other Names used by Grantor, including Trade Names (last 5 years)" is a list
of all other names (including trade names or similar appellations) used by
each Grantor or any of its divisions or other business units in connection
with the conduct of its business or the ownership of its properties at any
time during the past five years.
f) Set forth on Schedule 1 attached hereto in the column entitled
"Grantor's Organizational ID #" is the Organizational Identification Number,
if any, issued by the jurisdiction of formation of each Grantor that is a
registered organization.
g) Set forth on Schedule 1 attached hereto in the column entitled
"Grantor's FEIN #"is the Federal Taxpayer Identification Number of each
Grantor.
2. Current Locations.
------------------
a) The chief executive office of each Grantor is located at the address
set forth on Schedule 2 attached hereto in the column entitled "Location of
Grantor's Chief Executive Office".
b) Set forth on Schedule 2 attached hereto in the column entitled
"Location Where Grantor's Books and Records are Maintained" are all locations
where such Grantor maintains any books or records relating to any Accounts
Receivable (with each location at which chattel paper, if any, is kept being
indicated by an "*").
c) Set forth on Schedule 2 attached hereto in the column entitled
"Location Where Grantor's Material Collateral is Maintained" are all the
locations where such Grantor maintains any material Equipment or other
material Collateral.
d) Set forth on Schedule 2 attached hereto in the column entitled "Other
Material Places of Business of Grantor" are all the material places of
business of such Grantor not identified in paragraph (a), (b) or (c) above.
e) Set forth on Schedule 2 attached hereto in the column entitled
"Persons Other than Grantor Having Possession of Material Collateral" are the
names and addresses of all Persons other than such Grantor that have
possession of any of the material Collateral of such Grantor.
3. Unusual Transactions. All Accounts have been originated by the Grantors and
all Inventory has been acquired by the Grantors in the ordinary course of
business.
4. File Search Reports. File search reports have been obtained from each
Uniform Commercial Code filing office identified with respect to such Grantor
in Section 2 hereof, and such search reports reflect no liens against any of
the Collateral other than those permitted under the Credit Agreement.
5. UCC Filings. Financing statements in substantially the form set forth on
Schedule 5 hereto will be prepared for filing in the proper Uniform Commercial
Code filing office in the jurisdiction in which each Grantor is located and,
to the extent any of the collateral is comprised of fixtures, timber to be cut
or as extracted collateral from the wellhead or minehead, in the proper local
jurisdiction, in each case as set forth with respect to such Grantor in
Section 2 hereof.
6. Schedule of Filings. Attached hereto as Schedule 6 is a schedule setting
forth, with respect to the filings described in Section 5 above, each filing
and the filing office in which such filing is to be made.
7. Stock Ownership and other Equity Interests. Attached hereto as Schedule 7
is a true and correct list of all the issued and outstanding stock,
partnership interests, limited liability company membership interests or other
equity interests that evidence the Borrower's ownership interest in each
Grantor and the record and beneficial owners of such stock, partnership
interests, membership interests or other equity interests. Also set forth on
Schedule 7 is each equity investment of the Borrower that represents 50% or
less of the equity of the entity in which such investment was made.
8. Debt Instruments. Attached hereto as Schedule 8 is a true and correct list
of all promissory notes and other evidence of indebtedness held by the
Borrower and each Subsidiary that are required to be pledged under the
Collateral and Guarantee Agreement, including all intercompany notes between
the Borrower and each Subsidiary and each Subsidiary and each other
Subsidiary.
9. Advances. Attached hereto as Schedule 9 is (a) a true and correct list of
all outstanding advances (not arising through the ordinary course of operation
of the Borrower's cash management system) made by the Borrower to any
Subsidiary or made by any Subsidiary to the Borrower or to any other
Subsidiary (other than those identified on Schedule 8), which outstanding
advances will be on and after the date hereof evidenced by one or more
intercompany notes pledged to the Administrative Agent under the Collateral
and Guarantee Agreement and (b) a true and correct list of all unpaid
intercompany transfers of goods sold and delivered by or to the Borrower or
any Subsidiary.
10. Mortgage Filings. Attached hereto as Schedule 10 is a schedule setting
forth each property that is included within the definition of Mortgaged
Property as of the Effective Date, and for each such property (a) the exact
name of the Person that, to the best knowledge of Borrower, owns or leases
such property as such name appears in its certificate of incorporation or
other organizational document, (b) the street address, city and state where
each property is located, (c) if a leased property, the name, to the best
knowledge of Borrower, of the owner of the fee simple interest in the
property, and (d) in the "Comments" column of Schedule 10, additional
information which may affect such Person's ability to grant a first priority
security interest in such property.
11. Intellectual Property.
a) Attached hereto as Schedule 11(a) is a schedule setting forth all of
each Grantor's: (i) registered Patents and Patent Applications, including the
name of the registered owner, type, registration or application number and the
expiration date (if already registered) of each registered Patent and Patent
Application owned by any Grantor; (ii) registered Trademarks and Trademark
Applications, including the name of the registered owner, the registration or
application number and the expiration date (if already registered) of each
registered Trademark and Trademark application owned by any Grantor.
b) Attached hereto as Schedule 11(b) is a schedule setting forth all of
each Grantor's registered Copyrights and Copyright Applications, including the
name of the registered owner, title, the registration number or application
number and the expiration date (if already registered) of each registered
Copyright or Copyright Application owned by any Grantor.
12. Commercial Tort Claims. Attached hereto as Schedule 12 is a true and
correct list of all commercial tort claims in excess of $1,000,000 held by any
Grantor, including a brief description thereof.
13. Deposit Accounts. Attached hereto as Schedule 13 is a true and correct
list of all Specified Deposit Accounts maintained by the Grantors, including
the name and address of the depositary institution, the type of account and
the account number.
14. Securities Accounts. Attached hereto as Schedule 14 is a true and correct
list of securities accounts maintained by the Grantors, including the name and
address of the intermediary institution, the type of account and the account
number.
IN WITNESS WHEREOF, the undersigned have duly executed this Perfection
Certificate as of the Effective Date.
HEALTHSOUTH CORPORATION,
by
/s/ John Workman
----------------
Name: John Workman
Title: Executive Vice President & Chief
Financial Officer
by
/s/ Gregory L. Doody
-----------------------
Name: Gregory L. Doody
Title: Executive Vice-President,
General Counsel & Secretary