EXHIBIT 99.1
SECOND AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
DATED AS OF APRIL 22, 2005
AMONG
AMSURG CORP.
AS BORROWER
AND
SUNTRUST BANK
AS ADMINISTRATIVE AGENT AND LENDER
AND
THE OTHER LENDERS FROM
TIME TO TIME MADE A PARTY HERETO
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SUNTRUST ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
A DIVISION OF SUNTRUST CAPITAL MARKETS, INC.
AS LEAD ARRANGER AND BOOK MANAGER
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS; CONSTRUCTION........................................................................1
Section 1.1 Definitions.............................................................................1
Section 1.2 Accounting Terms and Determination.....................................................15
Section 1.3 Terms Generally........................................................................15
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS.............................................................15
Section 2.1 General Description of Facility........................................................15
Section 2.2 Revolving Loans........................................................................16
Section 2.3 Procedure for Borrowings...............................................................16
Section 2.4 Funding of Borrowings..................................................................16
Section 2.5 Interest Elections.....................................................................17
Section 2.6 Optional and Mandatory Reductions and Termination of Commitments.......................18
Section 2.7 Repayment of Loans.....................................................................18
Section 2.8 Evidence of Indebtedness...............................................................18
Section 2.9 Prepayments............................................................................19
Section 2.10 Interest on Loans......................................................................19
Section 2.11 Fees...................................................................................20
Section 2.12 Computation of Interest and Fees.......................................................21
Section 2.13 Inability to Determine Interest Rates..................................................21
Section 2.14 Illegality.............................................................................21
Section 2.15 Increased Costs........................................................................22
Section 2.16 Funding Indemnity......................................................................22
Section 2.17 Taxes..................................................................................23
Section 2.18 Payments Generally; Pro Rata Treatment; Sharing of Set-offs............................24
Section 2.19 Mitigation of Obligations; Replacement of Lenders......................................25
Section 2.20 Letters of Credit......................................................................25
Section 2.21 Increase of Revolving Commitments; Additional Lenders..................................29
ARTICLE III CONDITIONS PRECEDENT TO LOANS...................................................................30
Section 3.1 Conditions To Effectiveness............................................................30
Section 3.2 Each Credit Event......................................................................31
Section 3.3 Delivery of Documents..................................................................32
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TABLE OF CONTENTS
(continued)
PAGE
ARTICLE IV REPRESENTATIONS AND WARRANTIES..................................................................32
Section 4.1 Existence; Power.......................................................................32
Section 4.2 Organizational Power; Authorization....................................................32
Section 4.3 Governmental Approvals; No Conflicts...................................................32
Section 4.4 Financial Statements...................................................................33
Section 4.5 Litigation and Environmental Matters...................................................33
Section 4.6 Compliance with Laws and Agreements....................................................33
Section 4.7 Investment Company Act, Etc............................................................33
Section 4.8 Taxes..................................................................................33
Section 4.9 Margin Regulations.....................................................................33
Section 4.10 ERISA..................................................................................34
Section 4.11 Ownership of Property..................................................................34
Section 4.12 Disclosure.............................................................................34
Section 4.13 Labor Relations........................................................................34
Section 4.14 Subsidiaries...........................................................................34
Section 4.15 Personal Holding Company; Subchapter S.................................................34
Section 4.16 Solvency...............................................................................34
Section 4.17 Capital................................................................................35
ARTICLE V AFFIRMATIVE COVENANTS...........................................................................35
Section 5.1 Financial Statements and Other Information.............................................35
Section 5.2 Notices of Material Events.............................................................36
Section 5.3 Existence; Conduct of Business.........................................................37
Section 5.4 Compliance with Laws, Etc..............................................................37
Section 5.5 Payment of Obligations.................................................................37
Section 5.6 Books and Records......................................................................37
Section 5.7 Visitation, Inspection, Etc............................................................37
Section 5.8 Maintenance of Properties; Insurance...................................................37
Section 5.9 Use of Proceeds........................................................................37
Section 5.10 Additional Subsidiaries................................................................38
Section 5.11 Intercompany Loans and Third Party Notes...............................................38
ARTICLE VI FINANCIAL COVENANTS.............................................................................39
Section 6.1 Leverage Ratio.........................................................................39
Section 6.2 Consolidated Total Funded Debt to Capitalization Ratio.................................39
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TABLE OF CONTENTS
(continued)
PAGE
Section 6.3 Fixed Charge Coverage Ratio............................................................39
Section 6.4 Consolidated Net Worth.................................................................39
ARTICLE VII NEGATIVE COVENANTS..............................................................................39
Section 7.1 Indebtedness...........................................................................39
Section 7.2 Negative Pledge........................................................................40
Section 7.3 Fundamental Changes....................................................................40
Section 7.4 Investments, Loans, Etc................................................................41
Section 7.5 Restricted Payments....................................................................41
Section 7.6 Sale of Assets.........................................................................41
Section 7.7 Transactions with Affiliates...........................................................42
Section 7.8 Restrictive Agreements.................................................................42
Section 7.9 Sale and Leaseback Transactions........................................................42
Section 7.10 Hedging Agreements.....................................................................42
Section 7.11 Amendment to Material Documents........................................................43
Section 7.12 Accounting Changes.....................................................................43
Section 7.13 Acquisitions...........................................................................43
Section 7.14 Subsidiaries...........................................................................44
ARTICLE VIII EVENTS OF DEFAULT...............................................................................44
Section 8.1 Events of Default......................................................................44
ARTICLE IX THE ADMINISTRATIVE AGENT........................................................................46
Section 9.1 Appointment of Administrative Agent....................................................46
Section 9.2 Nature of Duties of Administrative Agent...............................................46
Section 9.3 Lack of Reliance on the Administrative Agent...........................................47
Section 9.4 Certain Rights of the Administrative Agent.............................................47
Section 9.5 Reliance by Administrative Agent.......................................................47
Section 9.6 The Administrative Agent in its Individual Capacity....................................47
Section 9.7 Successor Administrative Agent.........................................................48
ARTICLE X MISCELLANEOUS...................................................................................48
Section 10.1 Notices................................................................................48
Section 10.2 Waiver; Amendments.....................................................................50
Section 10.3 Expenses; Indemnification..............................................................50
Section 10.4 Successors and Assigns.................................................................52
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TABLE OF CONTENTS
(continued)
PAGE
Section 10.5 Governing Law; Jurisdiction; Consent to Service of Process.............................53
Section 10.6 WAIVER OF JURY TRIAL...................................................................54
Section 10.7 Right of Setoff........................................................................54
Section 10.8 Counterparts; Integration..............................................................54
Section 10.9 Survival...............................................................................55
Section 10.10 Severability...........................................................................55
Section 10.11 Confidentiality........................................................................55
Section 10.12 Interest Rate Limitation...............................................................55
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EXHIBITS AND SCHEDULES
EXHIBITS
Exhibit A - Revolving Credit Note
Exhibit B - Assignment and Acceptance
Exhibit C - Subsidiary Guarantee Agreement
Exhibit D - Indemnity, Subrogation and Contribution Agreement
Exhibit E - Acquisition Approval Letter
Exhibit F - Acquisition Informational Package
Exhibit G - Acquisition Pro Forma
Exhibit H - 2005 Master Amendment to Security Documents
SCHEDULES
Schedule 1.1 Revolving Commitments
Schedule 2.3 - Notice of Borrowing
Schedule 2.5 - Form of Continuation/Conversion
Schedule 3.1(b)(v) - Form of Secretary's Certificate
Schedule 3.1(b)(vii) - Opinion Letter
Schedule 4.5 - Litigation and Environmental Matters
Schedule 4.14 - Subsidiaries
Schedule 5.1(c) - Compliance Certificate
Schedule 7.1 - Outstanding Indebtedness
Schedule 7.2 - Existing Liens
Schedule 7.4 - Existing Investments
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SECOND AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT (this
"Agreement") is made and entered into as of April 22, 2005, by and among
AMSURG
CORP., a
Tennessee corporation (the "Borrower"), the several banks and other
financial institutions from time to time party hereto (the "Lenders"), and
SUNTRUST BANK, in its capacity as Administrative Agent for the Lenders (the
"Administrative Agent" or "Agent").
1. Borrower and certain lenders entered into an Amended and Restated
Credit Agreement dated as of May 5, 2000, as amended by that certain First
Amendment to Amended and Restated
Revolving Credit Agreement dated June 22,
2001, as further amended by that certain Second Amendment to Amended and
Restated
Revolving Credit Agreement dated February 5, 2003, as further amended
by that certain Third Amendment to Amended and Restated
Revolving Credit
Agreement dated March 4, 2003, and as further amended by that certain Fourth
Amendment to Amended and Restated
Revolving Credit Agreement dated March 10,
2004 (as amended, herein referred to as the "2000 Credit Agreement").
2. The Borrower desires that the credit available to Borrower under the
2000 Credit Agreement be increased and that other lenders be involved in making
credit available to the Borrower.
3. The Borrower further desires to amend and restate the 2000 Credit
Agreement as provided herein, and desires that the Lenders, defined herein,
establish a $150,000,000 revolving credit facility available to Borrower.
4. Subject to the terms and conditions of this Agreement, the Lenders
severally, to the extent of their respective Commitments, are willing to
establish the requested revolving credit facility.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Loan Agreement is amended and restated as set
forth herein and the Borrower, the Lenders and the Administrative Agent agree as
follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
SECTION 1.1 Definitions. In addition to the other terms defined herein,
the following terms used herein shall have the meanings herein specified (to be
equally applicable to both the singular and plural forms of the terms defined):
"2000 ASSIGNMENT AND SECURITY AGREEMENTS" shall mean those certain
Assignment and Security Agreements dated May 5, 2000 whereby Borrower (a)
assigned to Administrative Agent any and all documents executed in connection
with all Intercompany Loans and Third Party Notes existing as of May 5, 2000
(except as specifically excluded under the terms of the 2000 Credit Agreement),
including without limitation any notes, loan agreements, security agreements,
guaranties, and financing statements, and (b) pledged to Administrative Agent
any and all collateral pledged in connection therewith, as amended by the 2005
Master Amendment to Security Documents, and as such may be further amended
and/or restated from time.
"2000 CREDIT AGREEMENT" shall have such meaning as set forth in the
recitals.
"2000 PLEDGE AGREEMENT" shall mean that certain Pledge and Security
Agreement dated May 5, 2000 whereby the Borrower and each of its Wholly Owned
Subsidiaries existing as of such date pledged and granted to the Administrative
Agent a first perfected security interest in the interest of Borrower or each
such Wholly
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Owned Subsidiary in the Subsidiaries described therein and all partnership
interests, limited liability company interests, distributions, payments, general
intangibles, accounts, and other tangible and intangible property arising out of
or in connection with each such Subsidiary, subject to certain limitations
contained in the 2000 Credit Agreement, as amended by that certain 2005 Master
Amendment to Security Documents, and as such may be further amended and/or
restated in the future.
"2000 STOCK PLEDGE AGREEMENT" shall mean that certain Stock Pledge
Agreement dated May 5, 2000 whereby Borrower pledged to Administrative Agent all
of the stock it held as of such date in the Subsidiaries described therein, as
amended by the 2005 Master Amendment to the Security Documents, and as such may
be further amended and/or restated from time to time.
"2005 MASTER AMENDMENT TO SECURITY DOCUMENTS" shall mean that certain
Master Amendment to Security Documents, in the form of Exhibit H attached
hereto, executed by Borrower and Administrative Agent, on behalf of the Lenders,
of even date herewith, whereby the description of the secured indebtedness set
forth in the Security Documents executed as of the Closing Date is amended to
describe this Agreement and the other Loan Documents.
"ACQUISITION" shall mean the acquisition by Borrower of a controlling
ownership interest in any existing ambulatory surgery center(s) through the
formation of a Subsidiary.
"ACQUISITION APPROVAL LETTER" shall mean a letter executed by Borrower,
Administrative Agent and the Required Lenders pursuant to Section 7.13(c) in the
form of Exhibit E.
"ACQUISITION INFORMATION PACKAGE" shall mean information delivered by
Borrower to Administrative Agent and Lenders pursuant to Section 7.13 in the
form of Exhibit F.
"ACQUISITION PRO FORMA" shall mean a pro forma statement in the form of
and containing the information shown on Exhibit G hereto.
"ADJUSTED EBITDA" shall mean EBITDA calculated on an annualized
trailing six (6) month basis and it shall include the pro forma EBITDA of any
Acquisition annualized from the date of acquisition for a period not to exceed
six (6) months so long as the calculation thereof is done in a manner reasonably
calculated to comply with GAAP and such calculation is detailed in the
supporting calculations to the covenant compliance certificate as detailed and
measured to the Administrative Agent's reasonable satisfaction.
"ADJUSTED LIBOR RATE" shall mean, with respect to each Interest Period
for a Eurodollar Borrowing, the rate per annum obtained by dividing (i) LIBOR
for such Interest Period by (ii) a percentage equal to 1.00 minus the Eurodollar
Reserve Percentage.
"ADMINISTRATIVE AGENT" or "AGENT" shall have the meaning assigned to
such term in the opening paragraph hereof and any successor appointed pursuant
to the provisions of Section 9.7 herein.
"ADMINISTRATIVE QUESTIONNAIRE" shall mean, with respect to each Lender,
an administrative questionnaire in the form prepared by the Administrative Agent
and submitted to the Administrative Agent duly completed by such Lender.
"AFFILIATE" shall mean, as to any Person, any other Person that
directly, or indirectly through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, such Person.
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"AGGREGATE REVOLVING COMMITMENTS" shall mean the sum of the Revolving
Commitments of all Lenders at any time outstanding. On the Closing Date, the
Aggregate Revolving Commitments equal $150,000,000.
"AGREEMENT" shall mean this Second Amended and Restated Credit
Agreement (including all exhibits hereto), as the same may be amended, modified,
or supplemented from time to time.
"APPLICABLE LENDING OFFICE" shall mean, for each Lender and for each
Type of Loan, the "Lending Office" of such Lender (or an Affiliate of such
Lender) designated for such Type of Loan in the Administrative Questionnaire
submitted by such Lender or such other office of such Lender (or an Affiliate of
such Lender) as such Lender may from time to time specify to the Administrative
Agent and the Borrower as the office by which its Loans of such Type are to be
made and maintained.
"APPLICABLE MARGIN" shall mean with respect to the Letter of Credit
Fee, the Commitment Fee and all Revolving Loans outstanding on any date, the
number of basis points per annum determined by reference to the applicable
Leverage Ratio in effect on such date in accordance with the table set forth
below, provided, that a change in the Applicable Margin resulting from a change
in the Leverage Ratio shall be effective on the second Business Day after which
the Borrower is required to deliver the financial statements required by Section
5.1(a) or (b) and the compliance certificate required by Section 5.1 (c);
provided further, that if at any time the Borrower shall have failed to deliver
such financial statements and such certificate, the Applicable Margin shall be
at the highest level until such time as such financial statements and
certificate are delivered, at which time the Applicable Margin shall be
determined as provided above.
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Leverage Ratio Less than Greater than Greater than Greater than Greater than
0.75x or equal to or equal to or equal to or equal to
0.75x and Less 1.25x and Less 1.75x and Less 2.25x
than 1.25x than 1.75x than 2.25x
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Applicable Margin 75 100 125 150 175
for Eurodollar
Loans and Letter basis basis points basis points basis points basis points
of Credit Fee points
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Applicable Margin 0 0 25 50 75
for Base Rate
Loans basis basis points basis points basis points basis points
points
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Commitment Fee 25 25 37.5 37.5 37.5
basis basis points basis points basis points basis points
points
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"ARRANGER" shall mean SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, a division of
SunTrust Capital Markets, Inc.
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"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.4(b)) and accepted by the Administrative
Agent, in the form of Exhibit B attached hereto or any other form approved by
the Administrative Agent.
"AVAILABILITY PERIOD" shall mean the period from the Closing Date to
the Maturity Date.
"BASE RATE" shall mean the higher of (i) the per annum rate which the
Administrative Agent publicly announces from time to time to be its prime
lending rate, as in effect from time to time, and (ii) the Federal Funds Rate,
as in effect from time to time; plus one-half of one percent (0.50%). The
Administrative Agent's prime lending rate is a reference rate and does not
necessarily represent the lowest or best rate charged to customers. The
Administrative Agent may make commercial loans or other loans at rates of
interest at, above or below the Administrative Agent's prime lending rate. Each
change in the Administrative Agent's prime lending rate shall be effective from
and including the date such change is publicly announced as being effective.
"BASE RATE BORROWING" shall mean a Borrowing with interest accruing on
said Borrowing at the Base Rate, as elected by Borrower.
"BASE RATE LOAN" shall mean a Loan with interest accruing on said Loan
at the Base Rate, as elected by Borrower.
"BORROWER" shall have the meaning in the introductory paragraph hereof.
"BORROWING" shall mean a borrowing made pursuant to the Revolving Loan.
"BUSINESS DAY" shall mean (i) any day other than a Saturday, Sunday or
other day on which commercial banks in Atlanta, Georgia are authorized or
required by law to close and (ii) if such day relates to a Borrowing of, a
payment or prepayment of principal or interest on, a conversion of or into, or
an Interest Period for, a Eurodollar Loan or a notice with respect to any of the
foregoing, any day on which dealings in Dollars are carried on in the London
interbank market.
"CAPITAL EXPENDITURES" shall mean for any period, without duplication,
(a) the additions to property, plant and equipment and other capital
expenditures of the Borrower and its Subsidiaries that are (or would be) set
forth as capital expenditures on a consolidated statement of cash flows of the
Borrower for such period prepared in accordance with GAAP and (b) Capital Lease
Obligations incurred by the Borrower and its Subsidiaries during such period.
"CAPITAL LEASE OBLIGATIONS" of any Person shall mean all obligations of
such Person to pay rent or other amounts under any lease (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.
"CAPITALIZATION" means Borrower's total consolidated Indebtedness plus
an amount equal to Borrower's Consolidated Net Worth.
"CHANGE IN CONTROL" means the occurrence of (i) any Person or two or
more Persons acting in concert acquiring beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended), directly or indirectly, of
securities of Borrower (or other securities convertible into such securities)
representing 40% or more of the combined voting power of all
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securities of Borrower entitled to vote in the election of directors; or (ii)
individuals who at the beginning of this Agreement were directors of Borrower
ceasing for any reason to constitute a majority of the Board of Directors of
Borrower unless the Persons replacing such individuals were nominated by the
Board of Directors of Borrower; or (iii) any Person or two or more Persons
acting in concert acquiring by contract or otherwise, or entering into a
contract or arrangement which upon consummation will result in its or their
acquisition of, or control over, securities of Borrower (or other securities
convertible into such securities) representing 40% or more of the combined
voting power of all securities of Borrower entitled to vote in the election of
directors.
"CHANGE IN LAW" shall mean (i) the adoption of any applicable law, rule
or regulation after the date of this Agreement, (ii) any change in any
applicable law, rule or regulation, or any change in the interpretation or
application thereof, by any Governmental Authority after the date of this
Agreement, or (iii) compliance by any Lender (or its Applicable Lending Office)
(or for purposes of Section 2.15(b), by such Lender's holding company, if
applicable) with any request, guideline or directive (whether or not having the
force of law) of any Governmental Authority made or issued after the date of
this Agreement.
"CLOSING DATE" shall mean the date on which the conditions precedent
set forth in Section 3.1 have been satisfied or waived in accordance with
Section 10.2.
"CODE" shall mean the Internal Revenue Code of 1986, as amended and in
effect from time to time.
"COMMITMENT FEE" shall have the same meaning set forth in Section
2.11(b).
"CONSOLIDATED INTEREST EXPENSE" shall mean, for the Borrower and its
Subsidiaries for any period determined on a consolidated basis in accordance
with GAAP, the sum of (i) total cash interest expense, including without
limitation the interest component of any payments in respect of Capital Lease
Obligations capitalized or expensed during such period (whether or not actually
paid during such period) plus (ii) the net amount payable (or minus the net
amount receivable) under Hedging Agreements during such period (whether or not
actually paid or received during such period).
"CONSOLIDATED LEASE EXPENSE" shall mean, for any period, the aggregate
amount of fixed and contingent rentals payable by the Borrower and its
Subsidiaries with respect to leases of real and personal property (excluding
Capital Lease Obligations) determined on a consolidated basis in accordance with
GAAP for such period.
"CONSOLIDATED NET INCOME" shall mean, for any period, the net income
(or loss) of the Borrower and its Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP, but excluding therefrom (to the
extent otherwise included therein) any gains attributable to write-ups of
assets.
"CONSOLIDATED NET WORTH" shall mean, as of any date, (a) the total
assets of the Borrower and its Subsidiaries that would be reflected as such on
the Borrower's consolidated balance sheet as of such date prepared in accordance
with GAAP, minus (b) the sum of (i) the total liabilities of the Borrower and
its Subsidiaries that would be reflected on the Borrower's consolidated balance
sheet as of such date prepared in accordance with GAAP, (ii) Minority Interest,
and (iii) the amount of any write-up in the book value of any assets resulting
from a revaluation thereof or any write-up in excess of the cost of such assets
acquired reflected on the consolidated balance sheet of the Borrower as of such
date prepared in accordance with GAAP.
"CONSOLIDATED TOTAL FUNDED DEBT" shall mean, with respect to the
Borrower and its Subsidiaries, all Indebtedness which by its terms or by the
terms of any instrument or agreement relating thereto matures, or which is
otherwise payable or unpaid, one year or more from, or is directly or indirectly
renewable or extendable at the option of the Borrower and/or its Subsidiaries,
as applicable, to a date one year or more (including an option of the Borrower
and/or its Subsidiaries, as applicable, under a revolving credit or similar
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agreement obligating the lender or lenders to extend credit over a period of one
year or more) from, the date of the creation thereof, provided that Consolidated
Total Funded Debt shall include, as at any date of determination, any portion of
such Indebtedness outstanding on such date which matures on demand or within one
year from such date (whether by sinking fund, other required prepayment, or
final payment at maturity) and shall also include all Indebtedness of the
Borrower for money under a line of credit, guidance line, revolving credit,
bankers acceptance facility or similar arrangement for borrowed money,
including, without limitation, all unpaid drawings under letters of credit and
unreimbursed amounts pursuant to letter of credit reimbursement agreements,
regardless of the maturity date thereof.
"CONTROL" shall mean the power, directly or indirectly, either to (i)
vote 10% or more of securities having ordinary voting power for the election of
directors (or persons performing similar functions) of a Person or (ii) direct
or cause the direction of the management and policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise. The
terms "Controlling", "Controlled by", and "under common Control with" have
meanings correlative thereto.
"DEFAULT" shall mean any condition or event that, with the giving of
notice or the lapse of time or both, would constitute an Event of Default.
"DEFAULT INTEREST" shall have the meaning set forth in Section 2.10(b).
"DEVELOPED CENTER INFORMATION PACKAGE" shall mean such information
delivered pursuant to Section 5.1(f) hereof setting forth information on
Borrower's developed surgery centers all in a format reasonably acceptable to
the Administrative Agent.
"DOLLAR(S)" and the sign "$" shall mean lawful money of the United
States of America.
"EBITDA" shall mean, for the Borrower and its Subsidiaries on a
consolidated basis for any period, an amount equal to the sum of Consolidated
Net Income for such period plus, without duplication, and to the extent deducted
in computing Consolidated Net Income for such period, the sum of (a) income
taxes, (b) Consolidated Interest Expense, and (c) depreciation and amortization
expense, determined in accordance with GAAP; provided, however, with respect to
any Person that became a Subsidiary of, or was merged with or consolidated into,
the Borrower or any Wholly Owned Subsidiary during such period, "EBITDA" shall
also include the EBITDA of such Person during such period and prior to the date
of such acquisition, merger or consolidation.
"ENVIRONMENTAL LAWS" shall mean all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by or with any Governmental
Authority, relating in any way to the environment, preservation or reclamation
of natural resources, or the management, Release or threatened Release of any
Hazardous Material.
"ENVIRONMENTAL LIABILITY" shall mean any liability, contingent or
otherwise (including any liability for damages, costs of environmental
investigation and remediation, costs of administrative oversight, fines, natural
resource damages, penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (a) any actual or alleged
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
any actual or alleged exposure to any Hazardous Materials, (d) the Release or
threatened Release of any Hazardous Materials or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and any successor statute.
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"ERISA AFFILIATE" shall mean any trade or business (whether or not
incorporated), which, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for the 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" shall mean (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any 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 Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator appointed by the PBGC of any notice
relating to an intention to terminate any Plan or Plans or to appoint a trustee
to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial withdrawal
from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any
ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the
Borrower 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, bears interest at a
rate determined by reference to the Adjusted LIBO Rate.
"EURODOLLAR BORROWING" shall mean a Borrowing with interest accruing on
said Borrowing at the Adjusted LIBO Rate, as elected by Borrower.
"EURODOLLAR LOAN" shall mean a Loan with interest accruing on said Loan
at the Adjusted LIBO Rate, as elected by Borrower.
"EURODOLLAR RESERVE PERCENTAGE" shall mean the aggregate of the maximum
reserve percentages (including, without limitation, any emergency, supplemental,
special or other marginal reserves) expressed as a decimal (rounded upwards to
the next 1/100th of 1%) in effect on any day to which the Administrative Agent
is subject with respect to the Adjusted LIBO Rate pursuant to regulations issued
by the Board of Governors of the Federal Reserve System (or any Governmental
Authority succeeding to any of its principal functions) with respect to
eurocurrency funding (currently referred to as "eurocurrency liabilities" under
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 Regulation D. The Eurodollar Reserve Percentage shall
be adjusted automatically on and as of the effective date of any change in any
reserve percentage.
"EVENT OF DEFAULT" shall have the meaning provided in Article VIII.
"EXCLUDED TAXES" shall mean with respect to the Administrative Agent,
any Lender, or any other recipient of any payment to be made by or on account of
any obligation of the Borrower hereunder, (a) income, franchise, or other taxes
imposed on (or measured by) its net income by the United States of America or
any other Governmental Authority, 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, and
(b) any branch profits taxes imposed by the United States of America or any
similar tax imposed by any other jurisdiction in which the Borrower is located.
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"FEDERAL FUNDS RATE" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the next 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with member banks
of the Federal Reserve System arranged by Federal funds brokers, as published by
the Federal Reserve Bank of New York on the next succeeding Business Day or if
such rate is not so published for any Business Day, the Federal Funds Rate for
such day shall be the average rounded upwards, if necessary, to the next 1/100th
of 1% of the quotations for such day on such transactions received by the
Administrative Agent from three (3) Federal funds brokers of recognized standing
selected by the Administrative Agent.
"GAAP" shall mean generally accepted accounting principles in the
United States applied on a consistent basis and subject to the terms of Section
1.2.
"GOVERNMENTAL AUTHORITY" shall mean 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") shall mean 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, direct or indirect, of the guarantor
(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 in support of
such Indebtedness or obligation; provided, that the term "Guarantee" shall not
include endorsements for collection or deposits in the ordinary course of
business. The amount of any Guarantee shall be deemed to be an amount equal to
the stated or determinable amount of the primary obligation in respect of which
Guarantee is made or, if not so stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder) as determined by such Person in good faith. The term
"Guarantee" used as a verb has a corresponding meaning.
"HAZARDOUS MATERIALS" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"HEDGING AGREEMENTS" shall mean interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap agreements,
currency future or option contracts, commodity agreements and other similar
agreements or arrangements designed to protect against fluctuations in interest
rates, currency values or commodity values.
"INDEBTEDNESS" of any Person shall mean, without duplication (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person in respect of the deferred purchase price of
property or services (other than trade payables incurred in the ordinary course
of business; provided, that for purposes of Section 8.1(f), trade payables
overdue by more than 120 days shall be included in this definition (except to
the extent that any of such trade payables are being disputed in good faith and
by appropriate measures), (iv) all obligations of such Person under any
conditional sale or other title retention agreement(s) relating to property
acquired by such Person, (v) all Capital Lease Obligations of such Person, (vi)
all obligations, contingent or
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otherwise, of such Person in respect of letters of credit, acceptances or
similar extensions of credit, (vii) all Guarantees of such Person of the type of
Indebtedness described in clauses (i) through (vi) above, excluding Guarantees
of shareholders' equity or capital stock or surplus or general contingency or
deferred tax reserves, (viii) all Indebtedness of a third party secured by any
Lien on property owned by such Person, whether or not such Indebtedness has been
assumed by such Person, (ix) all obligations of such Person, contingent or
otherwise, to purchase, redeem, retire or otherwise acquire for value any common
stock of such Person, (x) any obligation under a Hedging Agreement or foreign
exchange agreement, (xi) Off-Balance Sheet Liabilities, and (xii) any obligation
under asset securitization vehicles; and (xiii) any other obligation or
liability which is required by GAAP to be shown as a liability on a consolidated
balance sheet of the Borrower and its Subsidiaries (other than reserves required
by GAAP).
"INDEMNIFIED TAXES" shall mean Taxes relating to the indebtedness
evidenced hereby, all Loans made hereunder, and all payments to be made by
Borrower hereunder, other than Excluded Taxes.
"INDEMNITY AND CONTRIBUTION AGREEMENT" shall mean that certain Amended
and Restated Indemnity, Subrogation and Contribution Agreement of even date
herewith, substantially in the form of Exhibit D, among the Borrower, the Wholly
Owned Subsidiaries and the Administrative Agent.
"INFORMATION MEMORANDUM" shall mean the Confidential Information
Memorandum dated April, 2005 relating to the Borrower, its Subsidiaries, and the
transactions contemplated by this Agreement and the other Loan Documents.
"INTERCOMPANY LOAN" shall mean any loan from the Borrower or any Wholly
Owned Subsidiary to any Subsidiary.
"INTEREST PERIOD" shall mean, with respect to any Eurodollar Borrowing,
a period of one, two, three or six months; provided that:
(i) the initial Interest Period for such Borrowing shall
commence on the date of such Borrowing (including the date of any
conversion from a Borrowing of another Type) and each Interest Period
occurring thereafter in respect of such Borrowing shall commence on the
day on which the next preceding Interest Period expires;
(ii) if any Interest Period would otherwise 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,
such Business Day falls in another calendar month, in which case such
Interest Period would end on the next preceding Business Day;
(iii) any Interest Period in respect of a Eurodollar Borrowing
which begins on the last Business Day of a calendar month or on a day
for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period shall end on the last Business
Day of such calendar month; and
(iv) no Interest Period may extend beyond the Maturity Date.
"ISSUING BANK" shall mean SunTrust Bank or any other Lender, each in
its capacity as an issuer of Letters of Credit pursuant to Section 2.20.
"LC COMMITMENT" shall mean that portion of the Aggregate Revolving
Commitments that may be used by the Borrower for the issuance of Letters of
Credit, which portion is in an aggregate face amount equal to $10,000,000.
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"LC DISBURSEMENT" shall mean a payment made by the Issuing Bank
pursuant to a Letter of Credit.
"LC DOCUMENTS" shall mean the Letters of Credit and all applications,
agreements and instruments relating to the Letters of Credit.
"LC EXPOSURE" shall mean, at any time, the sum of (i) the aggregate
undrawn amount of all outstanding Letters of Credit at such time, plus (ii) the
aggregate amount of all LC Disbursements that have not been reimbursed by or on
behalf of the Borrower at such time. The LC Exposure of any Lender shall be its
Pro Rata Share of the total LC Exposure at such time.
"LENDERS" shall have the meaning assigned to such term in the opening
paragraph of this Agreement.
"LETTER OF CREDIT" shall mean any letter of credit issued pursuant to
Section 2.20 by the Issuing Bank for the account of the Borrower pursuant to the
LC Commitment.
"LETTER OF CREDIT FEE" shall mean the same meaning as set forth in
Section 2.11(c).
"LEVERAGE RATIO" shall mean, the ratio of (i) Consolidated Total Funded
Debt to (ii) Adjusted EBITDA, as determined as of the end of each calendar
quarter.
"LIBOR" shall mean for any Interest Period the offered rates for
deposits in Dollars for a period equal to such Interest Period appearing on the
Telerate Page 3750 as of 11:00 a.m. (London Time) on the day that is two (2)
Business Days prior to the Interest Period.
"LIEN" shall mean any mortgage, pledge, security interest, lien
(statutory or otherwise), charge, encumbrance, hypothecation, assignment,
deposit arrangement, or other arrangement having the practical effect of the
foregoing or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement and any capital lease having
the same economic effect as any of the foregoing).
"LOAN DOCUMENTS" shall mean, collectively, this Agreement, the Notes,
the LC Documents, all Notices of Borrowing, the Subsidiary Guarantee Agreement,
the Indemnity and Contribution Agreement, the Security Documents, and any and
all other instruments, agreements, documents and writings executed in connection
with any of the foregoing.
"LOAN PARTIES" shall mean the Borrower and the Wholly Owned
Subsidiaries.
"LOANS" shall mean all Revolving Loans.
"MATERIAL ADVERSE EFFECT" shall mean, with respect to any event, act,
condition or occurrence of whatever nature (including any adverse determination
in any litigation, arbitration, or governmental investigation or proceeding),
whether singularly or in conjunction with any other event or events, act or
acts, condition or conditions, occurrence or occurrences whether or not related,
a material adverse change in, or a material adverse effect on, (i) the business,
results of operations, financial condition, assets, liabilities or prospects of
the Borrower and of the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Loan Parties to perform any of their respective obligations under
the Loan Documents, (iii) the rights and remedies of the Administrative Agent,
the Issuing Bank, and the Lenders under any of the Loan Documents or (iv) the
legality, validity or enforceability of any of the Loan Documents.
"MATERIAL INDEBTEDNESS" shall mean Indebtedness (other than the Loans
and Letters of Credit) or obligations in respect of one or more Hedging
Agreements, of any one or more of the Borrower and the
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Subsidiaries in an aggregate principal amount exceeding $500,000. For purposes
of determining Material Indebtedness, the "principal amount" of the obligations
of the Borrower or any Subsidiary in respect to any Hedging 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 Hedging Agreement were terminated at such time.
"MATURITY DATE" shall mean the earliest of (i) April 22, 2010, (ii) the
date on which the Revolving Commitments are terminated pursuant to Section 2.6,
and (iii) the date on which all amounts outstanding under this Agreement have
been declared or have automatically become due and payable.
"MINORITY INTEREST" means that amount depicted from time to time on
Borrower's most current consolidated balance sheet as "Minority Interest" so
long as such is calculated on a consistent basis and in accordance with GAAP.
"MOODY'S" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
"MULTIEMPLOYER PLAN" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"NOTES" shall mean the Revolving Credit Notes.
"NOTICE OF CONVERSION/CONTINUATION" shall mean the notice given by the
Borrower to the Administrative Agent in respect of the conversion or
continuation of an outstanding Borrowing as provided in Section 2.5(b) hereof.
"NOTICE OF BORROWING" shall have the meaning as set forth in Section
2.3.
"OBLIGATIONS" shall mean all amounts owing by the Borrower to the
Administrative Agent, the Issuing Bank, or any Lender pursuant to or in
connection with this Agreement or any other Loan Document, including without
limitation, all principal, interest (including any interest accruing after the
filing of any petition in bankruptcy or the commencement of any insolvency,
reorganization or like proceeding relating to the Borrower, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding),
all reimbursement obligations, fees, expenses, indemnification and reimbursement
payments, costs and expenses (including all reasonable fees and expenses of
counsel to the Administrative Agent and any Lender incurred pursuant to this
Agreement or any other Loan Document), whether direct or indirect, absolute or
contingent, liquidated or unliquidated, now existing or hereafter arising
hereunder or thereunder, together with all renewals, extensions, modifications
or refinancings thereof.
"OFF-BALANCE SHEET LIABILITIES" of any Person shall mean (i) any
repurchase obligation or liability of such Person with respect to accounts or
notes receivable sold by such Person, (ii) any liability of such Person under
any sale and leaseback transactions which do not create a liability on the
balance sheet of such Person, (iii) any liability of such Person under any
so-called "synthetic" lease transaction or (iv) any obligation arising with
respect to any other transaction which is the functional equivalent of or takes
the place of borrowing but which does not constitute a liability on the balance
sheet of such Person.
"OTHER TAXES" shall mean 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 or any other
Loan Document, but specifically excluding all Excluded Taxes.
"PARTICIPANT" shall have the meaning set forth in Section 10.4(c).
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"PAYMENT OFFICE" shall mean the office of the Administrative Agent
located at ▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other location
as to which the Administrative Agent shall have given written notice to the
Borrower and the other Lenders.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA, and any successor entity performing similar functions.
"PERMITTED ENCUMBRANCES" shall mean
(i) Liens imposed by law for taxes not yet due or which are
being contested in good faith by appropriate proceedings and with
respect to which adequate reserves are being maintained in accordance
with GAAP;
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law
created in the ordinary course of business for amounts not yet due or
which are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves are being maintained in
accordance with GAAP;
(iii) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
(iv) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case
in the ordinary course of business;
(v) judgment and attachment liens not giving rise to an Event
of Default or Liens created by or existing from any litigation or legal
proceeding that are currently being contested in good faith by
appropriate proceedings and with respect to which adequate reserves are
being maintained in accordance with GAAP; and
(vi) easements, zoning restrictions, restrictive covenants,
rights-of-way and similar encumbrances on real property imposed by law
or arising in the ordinary course of business that do not secure any
monetary obligations and do not materially detract from the value of
the affected property or materially interfere with the ordinary conduct
of business of the Borrower and its Subsidiaries taken as a whole;
provided, that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"PERMITTED INVESTMENTS" shall mean:
(i) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
(or by any agency thereof to the extent such obligations are backed by
the full faith and credit of the United States), in each case maturing
within one year from the date of acquisition thereof;
(ii) commercial paper having the highest rating, at the time
of acquisition thereof, of S&P or Moody's and in either case maturing
within six months from the date of acquisition thereof;
(iii) certificates of deposit, bankers' acceptances and time
deposits maturing within 180 days of the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit
accounts issued or offered by, any domestic office of any commercial
bank organized under the
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laws of the United States or any state thereof which has a combined
capital and surplus and undivided profits of not less than
$1,000,000,000;
(iv) fully collateralized repurchase agreements with a term of
not more than 30 days for securities described in clause (i) above and
entered into with a financial institution satisfying the criteria
described in clause (iii) above;
(v) mutual funds investing solely in any one or more of the
Permitted Investments described in clauses (i) through (iv) above; and
(vi) funds held in the grantor trust properly established by
Borrower (which shall be subject to the claims of Lenders and general
creditors of Borrower) for the non-qualified deferred compensation plan
adopted by Borrower entitled the AmSurg Supplemental Executive
Retirement Savings Plan (the "RABBI TRUST"), provided that the funds in
the Rabbi Trust must be invested solely in any one or more of the
Permitted Investments described in clauses (i) through (v) above.
"PERSON" shall mean any individual, partnership, firm, corporation,
association, joint venture, limited liability company, trust or other entity, or
any Governmental Authority.
"PLAN" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower 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.
"PRO RATA SHARE" shall mean, with respect to any Lender at any time, a
percentage, the numerator of which shall be the sum of such Lender's Revolving
Commitment and the denominator of which shall be the sum of all Lenders'
Revolving Commitments; or if the Revolving Commitments have been terminated or
expired or if the Loans have been declared to be due and payable, a percentage,
the numerator of which shall be the sum of such Lender's Revolving Credit
Exposure and the denominator of which shall be the sum of the aggregate
Revolving Credit Exposure.
"REGULATION D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System, as the same may be in effect from time to time, and any
successor regulations.
"RELATED PARTIES" shall mean, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
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 of any Hazardous Materials into the environment (including ambient
air, surface water, groundwater, land surface or subsurface strata) or within
any building, structure, facility or fixture.
"REQUIRED LENDERS" shall mean, at any time, Lenders holding 51% or more
of the aggregate outstanding Revolving Credit Exposures at such time; or if the
Lenders have no Revolving Credit Exposure, then Lenders holding 51% or more of
the Aggregate Revolving Commitments.
"RESPONSIBLE OFFICER" shall mean any of the president, the chief
executive officer, the chief operating officer, the chief financial officer, the
treasurer or a vice president of the Borrower or such other representative of
the Borrower as may be designated in writing by any one of the foregoing with
the consent of the Administrative Agent; and, with respect to the financial
covenants only, the chief financial officer or the treasurer of the Borrower.
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"RESTRICTED PAYMENT" shall have the meaning set forth in Section 7.5.
"REVOLVING COMMITMENT" shall mean, with respect to each Lender, the
obligation of such Lender to make Revolving Loans to the Borrower and to
participate in Letters of Credit in an aggregate principal amount not exceeding
the amount set forth with respect to such Lender on the Schedule 1.1, or in the
case of a Person becoming a Lender after the Closing Date, the amount of the
assigned "Revolving Commitment" as provided in the Assignment and Acceptance
Agreement executed by such Person as an assignee, as the same may be changed
pursuant to terms hereof.
"REVOLVING CREDIT EXPOSURE" shall mean, with respect to any Lender at
any time, the sum of the outstanding principal amount of such Lender's Revolving
Loans, and such Lender's LC Exposure.
"REVOLVING CREDIT NOTE" shall mean a promissory note of the Borrower
payable to the order of a Lender in the principal amount of such Lender's
Revolving Commitment, in substantially the form of Exhibit A.
"REVOLVING LOAN" shall mean a loan made by a Lender to the Borrower
under its Revolving Commitment, which may either be a Base Rate Loan or a
Eurodollar Loan.
"S&P" shall mean Standard & Poor's.
"SECURITY DOCUMENTS" shall mean the 2000 Assignment and Security
Agreements, the 2000 Stock Pledge Agreement, the 2000 Pledge Agreement, the 2005
Master Amendment to Security Documents, and the security documents executed
after May 5, 2000 in accordance with Sections 5.10 and 5.11 of the 2000 Credit
Agreement (all as described in more detail in the 2005 Master Amendment to
Security Documents), along with all UCC financing statements filed in connection
with any of the foregoing and any additional documentation delivered pursuant to
or executed in connection with the foregoing. On a going forward basis, the
defined term "Security Documents" shall include all security documents delivered
in accordance with Sections 5.10 and 5.11 hereof, along with all additional
documentation delivered pursuant to or executed in connection with such security
documents.
"SUBSIDIARY" shall mean any corporation, partnership, limited
partnership, joint venture, limited liability company, association or other
entity 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 owned,
Controlled or held by Borrower, and shall include the Wholly Owned Subsidiaries;
provided that AmSurg-Las Vegas, LLC shall not be included within this definition
of Subsidiary.
"SUBSIDIARY GUARANTEE AGREEMENT" shall mean that certain Amended and
Restated Subsidiary Guarantee Agreement of even date herewith, substantially in
the form of Exhibit C, made by the Wholly Owned Subsidiaries in favor of the
Administrative Agent for the benefit of the Lenders.
"TAXES" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"THIRD PARTY NOTES" shall mean promissory notes and similar instruments
issued by any Person and held by the Borrower or any Wholly Owned Subsidiary,
including, without limitation, promissory notes issued by the purchaser of any
asset sold by the Borrower or any Wholly Owned Subsidiary.
"TYPE" shall mean the distinction between a Base Rate Loan or Borrowing
and a Eurodollar Loan or Borrowing.
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"WHOLLY OWNED SUBSIDIARY" shall mean any corporation, partnership,
joint venture, limited liability company, association or other entity of which
securities or other ownership interests representing 100% of the equity or 100%
of the ordinary voting power, or in the case of a partnership, more 100% of the
general partnership interests are owned, Controlled or held by Borrower;
provided that AmSurg-Las Vegas, LLC shall not be included within this definition
of Wholly Owned Subsidiary.
"WITHDRAWAL LIABILITY" shall mean 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 1.2 Accounting Terms and Determination. Unless otherwise
defined or specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared, in
accordance with GAAP as in effect from time to time, applied on a basis
consistent (except for such changes approved by the Borrower's independent
public accountants) with the most recent audited consolidated financial
statement of the Borrower delivered pursuant to Section 5.1(a); provided, that
if the Borrower notifies the Administrative Agent that the Borrower wishes to
amend any covenant in Article VI to eliminate the effect of any change in GAAP
on the operation of such covenant (or if the Administrative Agent notifies the
Borrower that the Required Lenders wish to amend Article VI for such purpose),
then the Borrower's compliance with such covenant shall be determined on the
basis of GAAP in effect immediately before the relevant change in GAAP became
effective, until either such notice is withdrawn or such covenant is amended in
a manner satisfactory to the Borrower and the Required Lenders.
SECTION 1.3 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". In
the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the word "to" means "to but
excluding". Unless the context requires otherwise (i) 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 it was
originally executed or as it may from time to time be amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements
or modifications set forth herein), (ii) any reference herein to any Person
shall be construed to include such Person's successors and permitted assigns,
(iii) the words "hereof", "herein" and "hereunder" and words of similar import
shall be construed to refer to this Agreement as a whole and not to any
particular provision hereof, (iv) all references to Articles, Sections, Exhibits
and Schedules shall be construed to refer to Articles, Sections, Exhibits and
Schedules to this Agreement and (v) all references to a specific time shall be
construed to refer to the time in the city and state of the Administrative
Agent's principal office, unless otherwise indicated.
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENTS
SECTION 2.1 General Description of Facility.
(a) Facility. Subject to and upon the terms and conditions
herein set forth, (i) the Lenders hereby establish in favor of the
Borrower a revolving credit facility pursuant to which the Lenders
severally agree (to the extent of each Lender's Pro Rata Share up to
such Lender's Revolving Commitment) to make Revolving Loans to the
Borrower in accordance with Section 2.2, (ii) the Issuing Bank agrees
to issue Letters of Credit in accordance with Section 2.20; and (iii)
each Lender agrees to purchase a participation interest in the Letters
of Credit pursuant to the terms and conditions
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contained herein; provided that in no event shall the aggregate
principal amount of all outstanding Revolving Loans and the LC Exposure
exceed at any time the Aggregate Revolving Commitments from time to
time in effect.
(b) Collateral and Guarantees. The Obligations described
herein shall be secured by the following:
(i) a lien and perfected security interest in all of
the property and collateral described in the Security
Documents (including without limitation future Security
Documents delivered pursuant to Sections 5.10 and 5.11
hereof), as amended from time to time;
(ii) all deposit accounts, monies, and items of value
of Borrower or the Wholly Owned Subsidiaries now or hereafter
placed in possession of Administrative Agent or any of the
Lenders;
(iii) all other Property of Borrower presently and/or
subsequently pledged or delivered to Administrative Agent to
secure all or a portion of the Indebtedness; and
(iv) the Subsidiary Guarantee Agreement, as amended
from time to time.
SECTION 2.2 Revolving Loans. Subject to the terms and conditions set
forth herein, each Lender severally agrees to make Revolving Loans to the
Borrower, from time to time during the Availability Period, in an aggregate
principal amount outstanding at any time that will not result in (a) such
Lender's Revolving Credit Exposure exceeding such Lender's Revolving Commitment
or (b) the sum of the aggregate Revolving Credit Exposures of all Lenders
exceeding the Aggregate Revolving Commitments. During the Availability Period,
the Borrower shall be entitled to borrow, repay and reborrow Revolving Loans in
accordance with the terms and conditions of this Agreement; provided that the
Borrower may not borrow or reborrow should there exist a Default or Event of
Default; and provided that at no time shall there be more than six (6)
Eurodollar Loans outstanding.
SECTION 2.3 Procedure for Borrowings. The Borrower shall give the
Administrative Agent written notice (or telephonic notice promptly confirmed in
writing) of each Borrowing substantially in the form of Schedule 2.3 attached
hereto (a "Notice of Borrowing") (x) prior to 11:00 a.m. (Eastern Time) on the
requested date of each Base Rate Borrowing and (y) prior to 11:00 a.m. (Eastern
Time) three (3) Business Days prior to the requested date of each Eurodollar
Borrowing. Each Notice of Borrowing shall be irrevocable and shall specify: (i)
the aggregate principal amount of such Borrowing, (ii) the date of such
Borrowing (which shall be a Business Day), and (iii) in the case of a Eurodollar
Borrowing, the duration of the initial Interest Period applicable thereto
(subject to the provisions of the definition of Interest Period). Each Borrowing
shall consist entirely of Base Rate Loans or Eurodollar Loans, as the Borrower
may request. The aggregate principal amount of each Eurodollar Borrowing shall
be not less than $500,000 and in integral multiples of $100,000, and the
aggregate principal amount of each Base Rate Borrowing shall not be less than
$100,000 and in integral multiples of $100,000. At no time shall the total
number of Eurodollar Borrowings outstanding at any time exceed six (6). Promptly
following the receipt of a Notice of Borrowing in accordance herewith, the
Administrative Agent shall advise each Lender of the details thereof and the
amount of such Lender's Revolving Loan to be made as part of the requested
Borrowing.
SECTION 2.4 Funding of Borrowings.
(a) Each Lender will make available each Loan to be made by it
hereunder on the proposed date thereof by wire transfer in immediately
available funds by 1:00 p.m. (Eastern Time) to the Administrative Agent
at the Payment Office. The Administrative Agent will make such Loans
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available to the Borrower by promptly crediting the amounts that it
receives, in like funds by the close of business on such proposed date,
to an account maintained by the Borrower with the Administrative Agent
or at the Borrower's option, by effecting a wire transfer of such
amounts to an account designated by the Borrower to the Administrative
Agent.
(b) Unless the Administrative Agent shall have been notified
by any Lender prior to 5:00 p.m. (Eastern Time) one (1) Business Day
prior to the date of a Borrowing in which such Lender is participating
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 amount available to the
Administrative Agent on such date, and the Administrative Agent, in
reliance on such assumption, may make available to the Borrower on such
date a corresponding amount. If such corresponding amount is not in
fact made available to the Administrative Agent by such Lender on the
date of such Borrowing, the Administrative Agent shall be entitled to
recover such corresponding amount on demand from such Lender together
with interest at the Federal Funds Rate for up to two (2) days and
thereafter at the rate specified for such Borrowing. If such Lender
does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefore, the Administrative Agent shall
promptly notify the Borrower, and the Borrower shall immediately pay
such corresponding amount to the Administrative Agent together with
interest at the rate specified for such Borrowing. Nothing in this
subsection shall be deemed to relieve any Lender from its obligation to
fund its Pro Rata Share of any Borrowing hereunder or to prejudice any
rights which the Borrower may have against any Lender as a result of
any default by such Lender hereunder.
(c) All Borrowings shall be made by the Lenders on the basis
of their respective Pro Rata Shares. No Lender shall be responsible for
any default by any other Lender in its obligations hereunder, and each
Lender shall be obligated to make its Loans provided to be made by it
hereunder, regardless of the failure of any other Lender to make its
Loans hereunder.
SECTION 2.5 Interest Elections.
(a) Each Borrowing shall be either a Eurodollar Borrowing or a
Base Rate Borrowing, as specified by Borrower in the applicable Notice
of Borrowing, and in the case of a Eurodollar Borrowing, shall have an
initial Interest Period as specified in such Notice of Borrowing.
Thereafter, the Borrower may elect to convert such Borrowing, and in
the case of a Eurodollar Borrowing, may elect Interest Periods
therefore, 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 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 give the Administrative Agent prior written notice in the form of
Schedule 2.5 (or telephonic notice promptly confirmed in writing) of
each Borrowing (a "Notice of Conversion/Continuation") that is to be
converted or continued, as the case may be, (x) prior to 11:00 a.m.
(Eastern Time) on the requested date of a conversion into a Base Rate
Borrowing and (y) prior to 11:00 a.m. (Eastern Time) three (3) Business
Days prior to a continuation of or conversion into a Eurodollar
Borrowing. Each such Notice of Conversion/Continuation shall be
irrevocable and shall specify (i) the Borrowing to which such Notice of
Continuation/Conversion applies and if different options are being
elected with respect to different portions thereof, the portions
thereof that are to be allocated to each resulting Borrowing (in which
case the information to be specified pursuant to clauses (iii) and (iv)
shall be specified for each resulting Borrowing); (ii) the effective
date of the election made pursuant to such Notice of
Continuation/Conversion, which shall be a Business Day, (iii) whether
the resulting Borrowing is to be a Base Rate Borrowing or a Eurodollar
Borrowing; and (iv) if the resulting Borrowing is to be a
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Eurodollar Borrowing, the Interest Period applicable thereto after
giving effect to such election, which shall be a period contemplated by
the definition of "Interest Period". If any such Notice of
Continuation/Conversion requests a Eurodollar Borrowing but does not
specify an Interest Period, the Borrower shall be deemed to have
selected an Interest Period of one (1) month. The principal amount of
any resulting Borrowing shall satisfy the minimum borrowing amount for
Eurodollar Borrowings and Base Rate Borrowings set forth in Section
2.3.
(c) If, on the expiration of any Interest Period in respect of
any Eurodollar Borrowing, the Borrower shall have failed to deliver a
Notice of Conversion/ Continuation, then, unless such Borrowing is
repaid as provided herein, the Borrower shall be deemed to have elected
to convert such Borrowing to a Base Rate Borrowing. No Borrowing may be
converted into, or continued as, a Eurodollar Borrowing if a Default or
an Event of Default exists. No conversion of any Eurodollar Loans shall
be permitted except on the last day of the Interest Period in respect
thereof.
(d) Upon receipt of any Notice of Conversion/Continuation, the
Administrative Agent shall promptly notify each Lender of the details
thereof and of such Lender's portion of each resulting Borrowing.
SECTION 2.6 Optional and Mandatory Reductions and Termination of
Commitments.
(a) Unless previously terminated, all Revolving Commitments
shall terminate on the Maturity Date.
(b) Upon at least three (3) Business Days' prior written
notice (or telephonic notice promptly confirmed in writing) to the
Administrative Agent (which notice shall be irrevocable), the Borrower
may reduce the Aggregate Revolving Commitments in part or terminate the
Aggregate Revolving Commitments in whole; provided that (i) any partial
reduction shall apply to reduce proportionately and permanently the
Revolving Commitment of each Lender, (ii) any partial reduction
pursuant to this Section 2.6 shall be in an amount of at least
$1,000,000 and any larger multiple of $500,000, and (iii) no such
reduction shall be permitted which would reduce the Aggregate Revolving
Commitments to an amount less than the outstanding Revolving Credit
Exposures of all Lenders. Any such reduction in the Aggregate Revolving
Commitments shall result in a proportionate reduction (rounded to the
next lowest integral multiple of $100,000) in the LC Commitment.
(c) The Borrower shall reduce the Aggregate Revolving
Commitments by an amount equal to fifty percent (50%) from the net
proceeds received by the Borrower and any of its Subsidiaries from the
sale or other disposition by the Borrower and any of its Subsidiaries
of any assets in which $15,000,000 or more in consideration is given or
exchanged or the fair market value of such assets exceeds $15,000,000,
provided that such reduction shall be made in a manner calculated to
the greatest extent possible to avoid the Borrower's having liability
under Section 2.16 hereunder. For the purpose hereof, the consideration
given or exchanged shall include the sum of (i) all cash paid and/or
Indebtedness assumed, plus (ii) the principal amount of any promissory
notes given, plus (iii) the value of any stock or other property given
or transferred in connection therewith.
SECTION 2.7 Repayment of Loans. The outstanding principal amount of all
Revolving Loans shall be due and payable (together with accrued and unpaid
interest thereon) on the Maturity Date.
SECTION 2.8 Evidence of Indebtedness.
(a) Each Lender shall maintain in accordance with its usual
practice appropriate records evidencing the indebtedness of the
Borrower to such Lender resulting from each Loan made by such
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Lender from time to time, including the amounts of principal and
interest payable thereon and paid to such Lender from time to time
under this Agreement. The Administrative Agent shall maintain
appropriate records in which shall be recorded (iv) the Revolving
Commitment of each Lender, (v) the amount of each Loan made hereunder
by each Lender, along with the Type and the Interest Period applicable
thereto, (vi) the date of each continuation thereof pursuant to Section
2.5, (vii) the date of each conversion of all or a portion thereof
pursuant to Section 2.5, (viii) the date and amount of any principal or
interest due and payable or to become due and payable from the Borrower
to each Lender hereunder in respect of such Loans and (ix) both the
date and amount of any sum received by the Administrative Agent
hereunder from the Borrower in respect of the Loans and each Lender's
Pro Rata Share thereof. The entries made in such records shall be prima
facie evidence of the existence and amounts of the obligations of the
Borrower therein recorded; provided, that the failure or delay of any
Lender or the Administrative Agent in maintaining or making entries
into any such record or any error therein shall not in any manner
affect the obligation of the Borrower to repay the Loans (both
principal and unpaid accrued interest) of such Lender in accordance
with the terms of this Agreement.
(b) The Borrower agrees that it will execute and deliver to
each Lender a Revolving Credit Note payable to the order of such
Lender.
SECTION 2.9 Prepayments.
(a) Optional Prepayments. The Borrower shall have the right at
any time and from time to time to prepay any Borrowing, in whole or in
part, without premium or penalty, by giving irrevocable written notice
(or telephonic notice promptly confirmed in writing) to the
Administrative Agent no later than three (3) Business Days prior to any
such prepayment. Each such notice shall be irrevocable and shall
specify the proposed date of such prepayment and the principal amount
of each Borrowing or portion thereof to be prepaid. Upon receipt of any
such notice, the Administrative Agent shall promptly notify each
affected Lender of the contents thereof and of such Lender's Pro Rata
Share of any such prepayment. If such notice is given, the aggregate
amount specified in such notice shall be due and payable on the date
designated in such notice, together with accrued interest to such date
on the amount so prepaid in accordance with Section 2.10; provided,
that if a Eurodollar Borrowing is prepaid on a date other than the last
day of an Interest Period applicable thereto, the Borrower shall also
pay all amounts required pursuant to Section 2.16. Each partial
prepayment of any Loan shall not be less than $500,000 or a larger
multiple of $100,000. Each prepayment of a Borrowing shall be applied
ratably to the Loans comprising such Borrowing.
(b) Mandatory Prepayments. The Borrower shall be required to
make mandatory principal prepayments of the Revolving Loans in an
amount equal to (i) 100% of the net cash proceeds in excess of
$2,000,000 received by the Borrower and any of its Subsidiaries from
any sale or other disposition by the Borrower and any of its
Subsidiaries of any assets, and (ii) 100% of net cash proceeds received
from the issuance, sale, or disposition of the Borrower's capital stock
(common, preferred, or special), any equity offering or debt issuance.
SECTION 2.10 Interest on Loans.
(a) The Borrower shall pay interest on each Base Rate Loan at
the Base Rate in effect from time to time and on each Eurodollar Loan
at the Adjusted LIBO Rate for the applicable Interest Period in effect
for such Loan, plus, in each case, the Applicable Margin in effect from
time to time.
(b) While an Event of Default exists or after acceleration, at
the option of the Required Lenders, the Borrower shall pay interest
("Default Interest"): (i) with respect to all Eurodollar Loans at the
rate otherwise applicable for the then-current Interest Period plus an
additional 2% per annum until
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the last day of such Interest Period, and thereafter, at the Base Rate,
plus the Applicable Margin plus two percent (2%) per annum, and (ii)
with respect to Base Rate Loans, at the Base Rate plus the Applicable
Margin, plus two percent (2%) per annum.
(c) Interest on the principal amount of all Loans shall accrue
from and including the date such Loans are made to but excluding the
date of any repayment thereof. Interest on all outstanding Base Rate
Loans shall be payable monthly in arrears on the last day of each
calendar month and on the Maturity Date. Interest on all outstanding
Eurodollar Loans shall be payable on the last day of each Interest
Period applicable thereto, and, in the case of any Eurodollar Loans
having an Interest Period in excess of three months or 90 days,
respectively, on each day which occurs every three months or 90 days,
as the case may be, after the initial date of such Interest Period, and
on the Maturity Date. Interest on any Loan which is converted or which
is repaid or prepaid shall be payable on the date of such conversion or
on the date of any such repayment or prepayment (on the amount repaid
or prepaid) thereof. All Default Interest shall be payable on demand.
Borrower must make all interest payments prior to 1:00 p.m. (Eastern
Time) on the applicable due date in immediately available funds, free
and clear of all defenses, set-offs, counterclaims, or withholdings or
deductions for taxes.
(d) The Administrative Agent shall determine each interest
rate applicable to the Loans hereunder and shall promptly notify the
Borrower and the Lenders of such rate in writing (or by telephone,
promptly confirmed in writing). Any such determination shall be
conclusive and binding for all purposes, absent manifest error.
SECTION 2.11 Fees.
(a) Fee Letter. On or before the Closing Date, Borrower shall
pay to the Administrative Agent and Arranger those fees set forth in
that certain Fee Letter dated March 21, 2005 and executed by Borrower,
Administrative Agent and Arranger.
(b) Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee
(the "COMMITMENT FEE"), which shall accrue at the Applicable Margin for
Commitment Fee on the average daily, unused portion of the Revolving
Commitment of such Lender during the Availability Period. Accrued
Commitment Fees shall be payable to the Administrative Agent (for
distribution to the Lenders) in arrears on the last day of each March,
June, September and December of each year and on the Maturity Date,
commencing on the first such date after the Closing Date. The
Commitment Fee shall be calculated on the basis of a year of 360-days
for the actual number of days in each year. For the purpose of this
paragraph, the "unused portion of the Revolving Commitment" shall mean
the aggregate Revolving Commitment less an amount equal to all
outstanding Revolving Loans, less an amount equal to the LC Exposure.
(c) Letter of Credit Fees. The Borrower agrees to pay (i) to
the Administrative Agent, for the account of each Lender, a letter of
credit fee (the "LETTER OF CREDIT FEE") with respect to its
participation in each Letter of Credit, which shall accrue at the
Applicable Margin for Eurodollar Loans then in effect on the average
daily amount of such Lender's LC Exposure (excluding any portion
thereof attributable to unreimbursed LC Disbursements) attributable to
such Letter of Credit during the period from and including the date of
issuance of such Letter of Credit to but excluding the date on which
such Letter expires or is drawn in full (including without limitation
any LC Exposure that remains outstanding after the Maturity Date) and
(ii) to the Issuing Bank for its own account a facing fee, which shall
accrue at the rate of 12.5 basis points per annum on the average daily
amount of the LC Exposure (excluding any portion thereof attributable
to unreimbursed LC Disbursements) during the Availability Period (or
until the date that such Letter of Credit is irrevocably canceled,
whichever is
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later), as well as the Issuing Bank's standard fees with respect to
issuance, amendment, renewal or extension of any Letter of Credit or
processing of drawings thereunder.
SECTION 2.12 Computation of Interest and Fees.
(a) Fees and Eurodollar Loans. All computations of interest on
Eurodollar Loans and fees hereunder shall be made on the basis of a
year of 360 days for the actual number of days (including the first day
but excluding the last day) occurring in the period for which such
interest or fees are payable (to the extent computed on the basis of
days elapsed). Each determination by the Administrative Agent of an
interest amount or fee hereunder shall be made in good faith and,
except for manifest error, shall be final, conclusive and binding for
all purposes.
(b) Base Rate Loans. All computations of interest on Base Rate
Loans hereunder shall be made on the basis of a year of 365 days for
the actual number of days (including the first day but excluding the
last day) occurring in the period for which such interest is payable
(to the extent computed on the basis of days elapsed). Each
determination by the Administrative Agent of an interest amount
hereunder shall be made in good faith and, except for manifest error,
shall be final, conclusive and binding for all purposes.
SECTION 2.13 Inability to Determine Interest Rates. If prior to the
commencement of any Interest Period for any Eurodollar Borrowing,
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that,
by reason of circumstances affecting the relevant interbank market,
adequate means do not exist for ascertaining LIBOR for such Interest
Period, or
(b) the Administrative Agent shall have received notice from
the Required Lenders that the Adjusted LIBO Rate does not adequately
and fairly reflect the cost to such Lenders (or Lender, as the case may
be) of making, funding or maintaining their (or its, as the case may
be) Eurodollar Loans for such Interest Period,
the Administrative Agent shall give written notice (or telephonic notice,
promptly confirmed in writing) to the Borrower and to the Lenders as soon as
practicable thereafter. In the case of Eurodollar Loans, until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) the obligations of
the Lenders to make Eurodollar Loans or to continue or convert outstanding Loans
as or into Eurodollar Loans shall be suspended and (ii) all such affected Loans
shall be converted into Base Rate Loans on the last day of the then current
Interest Period applicable thereto unless the Borrower prepays such Loans in
accordance with this Agreement. Unless the Borrower notifies the Administrative
Agent at least one (1) Business Day before the date of any Eurodollar Borrowing
for which a Notice of Borrowing has previously been given that it elects not to
borrow on such date, then such Borrowing shall be made as a Base Rate Borrowing.
SECTION 2.14 Illegality. If any Change in Law shall make it unlawful or
impossible for any Lender to make, maintain or fund any Eurodollar Loan and such
Lender shall so notify the Administrative Agent, the Administrative Agent shall
promptly give notice thereof to the Borrower and the other Lenders, whereupon
until such Lender notifies the Administrative Agent and the Borrower that the
circumstances giving rise to such suspension no longer exist, the obligation of
such Lender to make Eurodollar Loans, or to continue or convert outstanding
Loans as or into Eurodollar Loans, shall be suspended. In the case of the making
of a Eurodollar Borrowing, such Lender's Revolving Loan shall be made as a Base
Rate Loan as part of the same Borrowing for the same Interest Period and if the
affected Eurodollar Loan is then outstanding, such Loan shall be converted to a
Base Rate Loan either (i) on the last day of the then current Interest Period
applicable to such
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Eurodollar Loan if such Lender may lawfully continue to maintain such Loan to
such date or (ii) immediately if such Lender shall determine that it may not
lawfully continue to maintain such Eurodollar Loan to such date. Notwithstanding
the foregoing, the affected Lender shall, prior to giving such notice to the
Administrative Agent, designate a different Applicable Lending Office if such
designation would avoid the need for giving such notice and if such designation
would not otherwise be disadvantageous to such Lender in the good faith exercise
of its discretion.
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 that is not otherwise
included in the determination of the Adjusted LIBO Rate
hereunder 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
(ii) impose on any Lender or the eurodollar interbank
market any other condition affecting this Agreement, or any
Letter of Credit, or any Eurodollar Loans made by such Lender;
and the result of the foregoing is to increase the cost to such Lender of
making, converting into, continuing or maintaining a Eurodollar Loan or to
increase the cost to such Lender to reduce the amount received or receivable by
such Lender hereunder (whether of principal, interest or any other amount), then
the Borrower shall promptly pay, upon written notice from and demand by such
Lender on the Borrower (with a copy of such notice and demand to the
Administrative Agent), to the Administrative Agent for the account of such
Lender, within five (5) Business Days after the date of such notice and demand,
additional amount or amounts sufficient to compensate such Lender for such
additional costs incurred or reduction suffered.
(b) If any Lender shall have determined that on or after the
date of this Agreement any Change in Law regarding capital requirements
has or would have the effect of reducing the rate of return on such
Lender's capital (or on the capital of such Lender's parent
corporation) as a consequence of its obligations hereunder to a level
below that which such Lender or such Lender's parent corporation could
have achieved but for such Change in Law (taking into consideration
such Lender's policies or the policies of such Lender's parent
corporation with respect to capital adequacy) then, from time to time,
within ten (10) Business Days after receipt by the Borrower of written
demand by such Lender (with a copy thereof to the Administrative
Agent), the Borrower shall pay to such Lender such additional amounts
as will compensate such Lender or such Lender's parent corporation for
any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or
amounts necessary to compensate such Lender or such Lender's parent
corporation, as the case may be, specified in paragraph (a) or (b) of
this Section shall be delivered to the Borrower (with a copy to the
Administrative Agent) and shall be conclusive, absent manifest error.
The Borrower shall pay any such Lender such amount or amounts within 10
days after receipt thereof.
(d) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of
such Lender's right to demand such compensation.
SECTION 2.16 Funding Indemnity. In the event of (a) the payment of any
principal of a Eurodollar Loan other than on the last day of the Interest Period
applicable thereto (including as a result of an Event of Default), (b) the
conversion or continuation of a Eurodollar Loan other than on the last day of
the Interest
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Period applicable thereto, or (c) the failure by the Borrower to borrow, repay,
convert or continue any Eurodollar Loan on the date specified in any applicable
notice (regardless of whether such notice is withdrawn or revoked), then, in any
such event, the Borrower shall compensate each Lender, within five (5) Business
Days after written demand from such Lender, for any loss, cost or expense
attributable to such event. In the case of a Eurodollar Loan, such loss, cost or
expense shall be deemed to include an amount determined by such Lender to be the
excess, if any, of (A) the amount of interest that would have accrued on the
principal amount of such Eurodollar Loan if such event had not occurred at the
Adjusted LIBO Rate applicable to such Eurodollar Loan for the period from the
date of such event to the last day of the then current Interest Period therefore
(or in the case of a failure to borrow, convert or continue, for the period that
would have been the Interest Period for such Eurodollar Loan) over (B) the
amount of interest that would accrue on the principal amount of such Eurodollar
Loan for the same period if the Adjusted LIBO Rate were set on the date such
Eurodollar Loan was prepaid or converted or the date on which the Borrower
failed to borrow, convert or continue such Eurodollar Loan. A certificate as to
any additional amount payable under this Section 2.16 submitted to the Borrower
by any Lender shall be conclusive, absent manifest error.
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, the Issuing Bank, or any Lender shall receive
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, the
Issuing Bank, and each Lender within five (5) Business Days after
written demand therefore, for the full amount of any Indemnified Taxes
or Other Taxes paid by the Administrative Agent, the Issuing Bank, or
such Lender 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, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to the Borrower by a
Lender, the Issuing Bank, or by the Administrative Agent on its own
behalf or on behalf of a Lender or the Issuing Bank, shall be
conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the
Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or
other evidence of such payment reasonably satisfactory to the
Administrative Agent.
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SECTION 2.18 Payments Generally; Pro Rata Treatment; Sharing of
Set-offs.
(a) The Borrower shall make each payment required to be made
by it hereunder (whether of principal, interest, or 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. (Eastern Time), on
the date when due, in immediately available funds, without set-off 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 or to the Issuing Bank at the Payment Office,
except that payments pursuant to Sections 2.15, 2.16 and 2.17 and 10.3
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 made 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 Revolving Loans or participations in LC
Disbursements that would result in such Lender receiving payment of a
greater proportion of the aggregate amount of its Revolving 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 Revolving 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 Revolving Loans; 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 of
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 the 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 the Issuing Bank the amount or
amounts
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due. In such event, if the Borrower has not in fact made such payment,
then each of the Lenders or the Issuing Bank severally agrees to repay
to the Administrative Agent forthwith on demand the amount so
distributed to such Lender or the 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 2.18(d) or 10.3(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 of Obligations; Replacement of Lenders. 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 hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the sole judgment of such
Lender, such designation or assignment (iv) would eliminate or reduce amounts
payable under Section 2.15 or Section 2.17, as the case may be, in the future
and (v) 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 costs and expenses incurred by any Lender in connection with
such designation or assignment.
SECTION 2.20 Letters of Credit.
(a) During the Availability Period, the Issuing Bank, in
reliance upon the agreements of the other Lenders pursuant to Section
2.20(d), agrees to issue, at the request of the Borrower, Letters of
Credit for the account of the Borrower on the terms and conditions
hereinafter set forth; provided that (i) each Letter of Credit shall
expire on the earlier of (A) the date one year after the date of
issuance of such Letter of Credit (or in the case of any renewal or
extension thereof, one year after such renewal or extension) and (B)
the date that is five (5) Business Days prior to the Maturity Date;
(ii) each Letter of Credit shall be in a stated amount of at least
$100,000; and (iii) the Borrower may not request any Letter of Credit,
if, after giving effect to such issuance (A) the aggregate LC Exposure
would exceed the LC Commitment or (B) the aggregate LC Exposure, plus
the aggregate outstanding Revolving Loans of all Lenders would exceed
the Aggregate Revolving Commitments. Upon the issuance of each Letter
of Credit each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Issuing Bank without
recourse a participation in such Letter of Credit equal to such
Lender's Pro Rata Share of the aggregate amount available to be drawn
under such Letter of Credit. Each issuance of a Letter of Credit shall
be deemed to utilize the Revolving Commitment of each Lender by an
amount equal to the amount of such participation.
(b) To request the issuance of a Letter of Credit (or any
amendment, renewal or extension of an outstanding Letter of Credit),
the Borrower shall give the Issuing Bank and the Administrative Agent
irrevocable written notice at least three (3) Business Days prior to
the requested date of such issuance specifying the date (which shall be
a Business Day) such Letter of Credit is to be issued (or amended,
extended or renewed, as the case may be), the expiration date of such
Letter of Credit, the amount of such Letter of Credit, the name and
address of the beneficiary thereof and such other information as shall
be necessary to prepare, amend, renew or extend such Letter of Credit.
In addition to the satisfaction of the conditions in Article III, the
issuance of such Letter of Credit (or any amendment which increases the
amount of such Letter of Credit) will be subject to the further
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conditions that such Letter of Credit shall be in such form and contain
such terms as the Issuing Bank shall approve and that the Borrower
shall have executed and delivered any additional applications,
agreements and instruments relating to such Letter of Credit as the
Issuing Bank shall reasonably require; provided, that in the event of
any conflict between such applications, agreements or instruments and
this Agreement, the terms of this Agreement shall control.
(c) At least two (2) Business Days prior to the issuance of
any Letter of Credit, the Issuing Bank will confirm with the
Administrative Agent (by telephone or in writing) that the
Administrative Agent has received such notice and if not, the Issuing
Bank will provide the Administrative Agent with a copy thereof. Unless
the Issuing Bank has received notice from the Administrative Agent on
or before the Business Day immediately preceding the date the Issuing
Bank is to issue the requested Letter of Credit directing the Issuing
Bank not to issue the Letter of Credit because such issuance is not
then permitted hereunder because of the limitations set forth in
Section 2.20(a) or that one or more conditions specified in Article III
are not then satisfied, then, subject to the terms and conditions
hereof, the Issuing Bank shall, on the requested date, issue such
Letter of Credit in accordance with the Issuing Bank's usual and
customary business practices.
(d) The Issuing Bank shall examine all documents purporting to
represent a demand for payment under a Letter of Credit promptly
following its receipt thereof. The Issuing Bank shall notify the
Borrower and the Administrative Agent of such demand for payment and
whether the Issuing Bank has made or will make a 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
the Issuing Bank and the Lenders with respect to such LC Disbursement.
The Borrower shall be irrevocably and unconditionally obligated to
reimburse the Issuing Bank for any LC Disbursements paid by the Issuing
Bank in respect of such drawing, without presentment, demand or other
formalities of any kind. Unless the Borrower shall have notified the
Issuing Bank and the Administrative Agent prior to 11:00 a.m. (Eastern
Time) on the Business Day immediately prior to the date on which such
drawing is honored that the Borrower intends to reimburse the Issuing
Bank for the amount of such drawing in funds other than from the
proceeds of Revolving Loans, the Borrower shall be deemed to have
timely given a Notice of Borrowing to the Administrative Agent
requesting the Lenders to make a Base Rate Borrowing on the date on
which such drawing is honored in an exact amount due to the Issuing
Bank; provided that for purposes solely of such Borrowing, the
conditions precedents set forth in Section 3.2 hereof shall not be
applicable. The Administrative Agent shall notify the Lenders of such
Borrowing in accordance with Section 2.3, and each Lender shall make
the proceeds of its Base Rate Loan included in such Borrowing available
to the Administrative Agent for the account of the Issuing Bank in
accordance with Section 2.4. The proceeds of such Borrowing shall be
applied directly by the Administrative Agent to reimburse the Issuing
Bank for such LC Disbursement.
(e) If for any reason a Base Rate Borrowing may not be (as
determined in the sole discretion of the Administrative Agent), or is
not, made in accordance with the foregoing provisions, then each Lender
(other than the Issuing Bank) shall be obligated to fund the
participation that such Lender purchased pursuant to subsection (a) in
an amount equal to its Pro Rata Share of such LC Disbursement on and as
of the date which such Base Rate Borrowing should have occurred. Each
Lender's obligation to fund its participation shall be absolute and
unconditional and shall not be affected by any circumstance, including
without limitation (i) any setoff, counterclaim, recoupment, defense or
other right that such Lender or any other Person may have against the
Issuing Bank or any other Person for any reason whatsoever, (ii) the
existence of a Default or an Event of Default or the termination of the
Aggregate Revolving Commitments, (iii) any adverse change in the
condition (financial or otherwise) of the Borrower or any of its
Subsidiaries, (iv) any breach of this Agreement by the Borrower or any
other Lender, (v) any amendment, renewal or extension of any Letter of
Credit or (vi) any other circumstance, happening or event whatsoever,
whether or not similar to any of the
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foregoing. On the date that such participation is required to be
funded, each Lender shall promptly transfer, in immediately available
funds, the amount of its participation to the Administrative Agent for
the account of the Issuing Bank. Whenever, at any time after the
Issuing Bank has received from any such Lender the funds for its
participation in a LC Disbursement, the Issuing Bank (or the
Administrative Agent on its behalf) receives any payment on account
thereof, the Administrative Agent or the Issuing Bank, as the case may
be, will distribute to such Lender its Pro Rata Share of such payment;
provided, that if such payment is required to be returned for any
reason to the Borrower or to a trustee, receiver, liquidator, custodian
or similar official in any bankruptcy proceeding, such Lender will
return to the Administrative Agent or the Issuing Bank any portion
thereof previously distributed by the Administrative Agent or the
Issuing Bank to it.
(f) To the extent that any Lender shall fail to pay any amount
required to be paid pursuant to paragraph (d) of this Section 2.20 on
the due date therefore, such Lender shall pay interest to the Issuing
Bank (through the Administrative Agent) on such amount from such due
date to the date such payment is made at a rate per annum equal to the
Federal Funds Rate; provided that if such Lender shall fail to make
such payment to the Issuing Bank within three (3) Business Days of such
due date, then, retroactively to the due date, such Lender shall be
obligated to pay interest on such amount at the Default Rate.
(g) 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 demanding the deposit of
cash collateral pursuant to this paragraph, the Borrower shall deposit
in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Lenders, an amount in
cash equal to the LC Exposure as of such date plus any accrued and
unpaid interest thereon; provided, that the obligation to deposit such
cash collateral shall become effective immediately, and such deposit
shall become immediately due and payable, without demand or notice of
any kind, upon the occurrence of any Event of Default with respect to
the Borrower described in clause (g) or (h) of Section 8.1. Such
deposit shall be held by the Administrative Agent as collateral for the
payment and performance of the obligations of the Borrower under this
Agreement. The Administrative Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal, over such
account. Other than any interest earned on the investment of such
deposits, which investments shall be made at the option and sole
discretion of the Administrative Agent and at the Borrower's risk and
expense, such deposits shall not bear interest. Interest and profits,
if any, on such investments shall accumulate in such account. Moneys in
such account shall applied by the Administrative Agent to reimburse the
Issuing Bank for LC Disbursements for which it had not been reimbursed
and to the extent 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, with the
consent of the Required Lenders, be applied to satisfy other
obligations of the Borrower under this Agreement. If the Borrower is
required to provide an amount of cash collateral hereunder as a result
of the occurrence of an Event of Default, such amount (to the extent
not so applied as aforesaid) shall be returned to the Borrower within
three (3) Business Days after all Events of Default have been cured or
waived.
(h) Promptly following the end of each fiscal quarter, the
Issuing Bank shall deliver (through the Administrative Agent) to each
Lender and the Borrower a report describing the aggregate Letters of
Credit outstanding at the end of such fiscal quarter. Upon the request
of any Lender from time to time, the Issuing Bank shall deliver to such
Lender any other information reasonably requested by such Lender with
respect to each Letter of Credit then outstanding.
(i) The Borrower's obligation to reimburse LC Disbursements
hereunder shall be absolute, unconditional and irrevocable and shall be
performed strictly in accordance with the terms of
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this Agreement under all circumstances whatsoever and irrespective of
any of the following circumstances:
(i) Any lack of validity or enforceability of any
Letter of Credit or this Agreement;
(ii) The existence of any claim, set-off, defense or
other right which the Borrower or any Subsidiary or Affiliate
of the Borrower may have at any time against a beneficiary or
any transferee of any Letter of Credit (or any Persons or
entities for whom any such beneficiary or transferee may be
acting), any Lender (including the Issuing Bank) or any other
Person, whether in connection with this Agreement or the
Letter of Credit or any document related hereto or thereto or
any unrelated transaction;
(iii) 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;
(iv) Payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document to
the Issuing Bank that does not comply with the terms of such
Letter of Credit;
(v) 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; or
(vi) The existence of a Default or an Event of
Default.
Neither the Administrative Agent, the Issuing Bank, the Lenders nor any Related
Party of any of the foregoing 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 above), 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 the Issuing Bank;
provided, that the foregoing shall not be construed to excuse the 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 the Issuing Bank's failure to exercise care when determining
whether drafts or 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 willful misconduct on the part of the Issuing Bank (as
finally determined by a court of competent jurisdiction), the 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 that appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the 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.
(j) Each Letter of Credit shall be subject to the Uniform
Customs and Practices for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No. 500, as
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the same may be amended from time to time, and, to the extent not
inconsistent therewith, the governing law of this Agreement set forth
in Section 10.5.
SECTION 2.21 Increase of Revolving Commitments; Additional Lenders.
(a) So long as no Default or Event of Default has occurred and
is continuing, Borrower may, from time to time during the term of this
Agreement, upon prior notice to the Administrative Agent (which shall
promptly notify each Lender following its receipt thereof), propose to
increase the Aggregate Revolving Commitments from $150,000,000 up to an
aggregate amount that would not exceed $200,000,000 (the amount of any
such increase referred to herein as the "ADDITIONAL COMMITMENT
AMOUNt"). Each Lender shall have the right for a period of ten (10)
Business Days following receipt of such notice to elect by written
notice to the Borrower and the Administrative Agent to increase its
Revolving Commitment by a principal amount equal to its Pro Rata Share
of the Additional Commitment Amount. No Lender shall have any
obligation to increase its Revolving Commitment and any decision by a
Lender to increase its Revolving Commitment shall be made in its sole
discretion independently from any other Lender. Any Lender which does
not respond within such ten (10) Business Day period shall be deemed to
have advised the Administrative Agent and the Borrower that it elected
not to increase its Revolving Commitment.
(b) If any one or more Lenders shall elect not to increase its
Revolving Commitment pursuant to subsection (a) of this Section (each a
"NON-CONSENTING LENDER"), the Administrative Agent shall, promptly
after the end of such ten (10) Business Day period or promptly after
the date the Administrative Agent shall have received all written
responses from the Lenders, whichever shall occur first, notify all
other Lenders (the "CONSENTING LENDERS") of the amount of the
Additional Commitment Amount that remains unsubscribed (the
"UNSUBSCRIBED AMOUNT"). Each such Consenting Lender shall have the
right for a period of five (5) Business Days following receipt of such
notice to elect by written notice to the Borrower and the
Administrative Agent to increase its Revolving Commitment by a
principal amount up to the remaining Unsubscribed Amount. The sum of
the increases in the Revolving Commitments of the Consenting Lenders
pursuant to subsections (a) and (b) of this Section shall not in the
aggregate exceed the Additional Commitment Amount; provided that if
accepted by the Borrower, and subject to the right of any Consenting
Lender to promptly revoke its prior election to increase its Revolving
Commitment in such event, such increases in the Revolving Commitments
of the Consenting Lenders may exceed the Unsubscribed Amount (but shall
in no event cause the Aggregate Revolving Commitments in effect to
exceed $200,000,000). If the sum of the additional increases in the
Revolving Commitments of the Consenting Lenders pursuant to this
subsection (b) exceeds the Unsubscribed Amount, or any greater amount
accepted by the Borrower as provided in the immediately preceding
sentence, then the additional increases in Revolving Commitments
pursuant to this subsection (b) shall be reduced pro-rata such that
amount of the Consenting Lenders' Revolving Commitments increased
pursuant to this subsection (b) shall not exceed the Unsubscribed
Amount or such greater amount, as applicable.
(c) If the Consenting Lenders shall not increase their
Revolving Commitments pursuant to subsection (a) and (b) of this
Section in an amount equal to the Additional Commitment Amount, then
not later than five (5) Business Days prior to the effective date of
the increase in the Revolving Commitments, the Borrower may designate
in writing to the Administrative Agent other banks or financial
institutions which at the time agree to become parties to this
Agreement (each an "ADDITIONAL LENDER"); provided that any new bank or
financial institution must be reasonably acceptable to the
Administrative Agent. The sum of the increases in the Revolving
Commitments of the Consenting Lenders pursuant to subsections (a) and
(b), plus the Commitments of the Additional Lenders pursuant to this
subsection (c), shall not in the aggregate exceed the Additional
Commitment Amount.
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(d) An increase in the aggregate amount of the Revolving
Commitments pursuant to this Section 2.21 shall become effective upon
the receipt by the Administrative Agent of an agreement in form and
substance satisfactory to the Administrative Agent signed by the
Borrower, by each Additional Lender and by each Consenting Lender,
setting forth the new Revolving Commitments of such Lenders and setting
forth the agreement of each Additional Lender to become a party to this
Agreement and to be bound by all the terms and provisions hereof,
together with such evidence of appropriate authorization on the part of
the Borrower with respect to the increase in the Revolving Commitments,
such opinions of counsel for the Borrower with respect to the increase
in the Revolving Commitments as the Administrative Agent may reasonably
request, and such other certificates and documents as the
Administrative Agent may reasonably request.
(e) Upon the acceptance of any such agreements and
documentation by the Administrative Agent, the Aggregate Revolving
Commitments shall automatically be increased by the amount of the
Revolving Commitments added through such agreements and this Agreement
shall automatically be deemed amended to reflect the Revolving
Commitments of all Lenders after giving effect to such additional
Revolving Commitments and Additional Lenders, as applicable.
(f) Upon any increase in the aggregate amount of the Revolving
Commitments pursuant to this Section 2.21 that is not pro rata among
all Lenders, and effective upon such increase, the amount of the
participations held by the Lenders (including any Additional Lenders)
in the Revolving Credit Exposure shall be adjusted such that, after
giving effect to such adjustments, each Lender (including each
Additional Lender) shall hold participations in each such Revolving
Credit Exposure in the proportion of its respective Revolving
Commitment bears to the aggregate Revolving Commitments after giving
effect to such increase.
ARTICLE III
CONDITIONS PRECEDENT TO LOANS
SECTION 3.1 Conditions To Effectiveness. The obligations of the Lenders
to make Loans hereunder and the obligation of the Issuing Bank to issue any
Letter of Credit hereunder shall not become effective until the date on which
each of the following conditions is satisfied (or waived in accordance with
Section 10.2).
(a) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Closing Date,
including reimbursement or payment of all out-of-pocket expenses
(including reasonable fees, charges and disbursements of counsel to the
Administrative Agent) required to be reimbursed or paid by the Borrower
hereunder, under any other Loan Document and under any agreement with
the Administrative Agent or Arranger.
(b) The Administrative Agent (or its counsel) shall have
received the following:
(i) a counterpart of this Agreement signed by or on
behalf of each party thereto or 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;
(ii) duly executed Notes payable to each Lender;
(iii) duly executed Subsidiary Guarantee Agreements
and Indemnity and Contribution Agreements;
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(iv) the 2005 Master Amendment to Security Documents,
along with such additional Security Documents as may be
required pursuant to the terms of this Agreement as of the
Closing Date;
(v) a certificate of the Secretary or Assistant
Secretary of each Loan Party, attaching and certifying copies
of its bylaws and of the resolutions of its boards of
directors, authorizing the execution, delivery and performance
of the Loan Documents to which it is a party and certifying
the name, title and true signature of each officer of such
Loan Party executing the Loan Documents to which it is a
party;
(vi) certified copies of the articles of
incorporation or other charter documents of each Loan Party,
together with certificates of good standing or existence, as
may be available from the Secretary of State of the
jurisdiction of incorporation of such Loan Party and each
other jurisdiction where such Loan Party is required to be
qualified to do business as a foreign corporation;
(vii) a favorable written opinion of Bass, ▇▇▇▇▇ &
▇▇▇▇, PLC, counsel to the Loan Parties, addressed to the
Administrative Agent and each of the Lenders, and covering
such matters relating to the Loan Parties, the Loan Documents
and the transactions contemplated therein as the
Administrative Agent or the Required Lenders shall reasonably
request;
(viii) certified copies of all required consents,
approvals, authorizations, registrations, and filings required
to be made or obtained by the Borrower and all Loan Parties in
connection with this Agreement;
(ix) satisfactory review by the Administrative Agent
of the financial statements referenced in Section 4.4 herein;
and
(x) certificates of insurance issued on behalf of
insurers of the Loan Parties describing in reasonable detail
the types and amounts of insurance (property and liability)
maintained by the Loan Parties;
(xi) duly executed Notices of Borrowing; and
(xii) receipt of all other documents and information
as the Administrative Agent reasonably requests.
SECTION 3.2 Each Credit Event. The obligation of each Lender to make a
Loan on the occasion of any Borrowing and of the Issuing Bank to issue, amend,
renew, or extend any Letter of Credit is subject to the satisfaction of the
following conditions:
(a) 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 or Event of Default shall
exist; and
(b) all representations and warranties of each Loan Party set
forth in the Loan Documents shall be true and correct in all material
respects on and as of the date of such Borrowing or the date of
issuance, amendment, extension or renewal of such Letter of Credit, in
each case before and after giving effect thereto;
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(c) since the date of the most recent financial statements of
the Borrower described in Section 5.1(a), there shall have been no
change which has had or could reasonably be expected to have a Material
Adverse Effect; and
(d) the Administrative Agent shall have received such other
documents, certificates, information or legal opinions as the
Administrative Agent or the Required Lenders may reasonably request,
all in form and substance reasonably satisfactory to the Administrative
Agent or the Required Lenders.
Each Borrowing and each issuance, amendment, extension, or renewal of
any Letter of Credit shall be deemed to constitute a representation and warranty
by the Borrower on the date thereof as to the matters specified in paragraphs
(a), (b) and (c) of this Section 3.2.
SECTION 3.3 Delivery of Documents. All of the Loan Documents,
certificates, legal opinions and other documents and papers referred to in this
Article III, unless otherwise specified, shall be delivered to the
Administrative Agent for the account of each of the Lenders and, except for the
Notes, in sufficient counterparts or copies for each of the Lenders and shall be
in form and substance satisfactory in all respects to the Administrative Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and
each Lender as follows:
SECTION 4.1 Existence; Power. The Borrower and each of its Subsidiaries
(i) is duly organized, validly existing and in good standing as a corporation,
limited liability company, or limited partnership, as the case may be, under the
laws of the jurisdiction of its organization, (ii) has all requisite power and
authority to carry on its business as now conducted, and (iii) is duly qualified
to do business, and is in good standing, in each jurisdiction where such
qualification is required, except where a failure to be so qualified could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 4.2 Organizational Power; Authorization. The execution,
delivery and performance by each Loan Party of the Loan Documents to which it is
a party are within such Loan Party's organizational powers and have been duly
authorized by all necessary organizational, and if required, stockholder,
member, or partner, action. This Agreement has been duly executed and delivered
by the Borrower, and constitutes, and each other Loan Document to which any Loan
Party is a party, when executed and delivered by such Loan Party, will
constitute, valid and binding obligations of the Borrower or such Loan Party (as
the case may be), enforceable against it in accordance with their respective
terms.
SECTION 4.3 Governmental Approvals; No Conflicts. The execution,
delivery and performance by the Borrower of this Agreement, and by each Loan
Party of the other Loan Documents to which it is a party (a) do not require any
consent or approval of, registration or filing with, or any action by, any
Governmental Authority, except those as have been obtained or made and are in
full force and effect or where the failure to do so, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect,
(b) to the Borrower's knowledge, will not violate any applicable law or
regulation or any order of any Governmental Authority, and will not violate the
charter, by-laws or other organizational documents of the Borrower or any of its
Subsidiaries, (c) will not violate or result in a default under any indenture,
material agreement or other material instrument binding on the Borrower or any
of its Subsidiaries or any of its assets or give rise to a right thereunder to
require any payment to be made by the Borrower or any of its Subsidiaries, and
(d) will not result in the creation or imposition of any Lien on any asset of
the Borrower or any of its Subsidiaries, except Liens (if any) created under the
Loan Documents.
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SECTION 4.4 Financial Statements. The Borrower has furnished to each
Lender the audited consolidated balance sheet of the Borrower and its
Subsidiaries for the fiscal year ending December 31, 2004, and the related
consolidated statements of income, shareholders' equity and cash flows, audited
by independent public accountants of recognized national standing and prepared
in accordance with GAAP. Since December 31, 2004, there have been no changes
with respect to the Borrower and its Subsidiaries which have had or could
reasonably be expected to have, singularly or in the aggregate, a Material
Adverse Effect.
SECTION 4.5 Litigation and Environmental Matters.
(a) Except for matters set forth on Schedule 4.5, no
litigation, investigation or proceeding of or before any arbitrators or
Governmental Authorities is pending against or, to the knowledge of the
Borrower, threatened against or affecting the Borrower or any of its
Subsidiaries (i) that is not covered fully by insurance and as to which
there is a reasonable possibility of an adverse determination that
could reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect or (ii) which in any manner draws
into question the validity or enforceability of this Agreement or any
other Loan Document.
(b) Except for the matters set forth on Schedule 4.5, neither
the Borrower nor any of its Subsidiaries (i) has failed to comply in
any material respect 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, (iii) has received notice of any claim with respect to any
Environmental Liability or (iv) knows of any basis for any
Environmental Liability.
SECTION 4.6 Compliance with Laws and Agreements. Neither the Borrower
nor any Subsidiary has knowingly violated (a) any applicable laws, rules,
regulations and orders of any Governmental Authority which have a reasonable
likelihood of resulting in a Material Adverse Effect, and (b) any indentures,
agreements or other instruments binding upon it or its properties, except where
such violation, either singularly or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 4.7 Investment Company Act, Etc. Neither the Borrower nor any
of its Subsidiaries is (a) an "investment company", as defined in, or subject to
regulation under, the Investment Company Act of 1940, as amended, (b) a "holding
company" as defined in, or subject to regulation under, the Public Utility
Holding Company Act of 1935, as amended or (c) otherwise subject to any other
regulatory scheme limiting its ability to incur debt.
SECTION 4.8 Taxes. The Borrower and its Subsidiaries have timely filed
or caused to be filed all Federal income tax returns and all other material tax
returns that are required to be filed by them, and have paid all taxes shown to
be due and payable on such returns or on any assessments made against it or its
property and all other taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority, except (i) to the extent the failure to
do so would not have a Material Adverse Effect or (ii) where the same are
currently being contested in good faith by appropriate proceedings and for which
the Borrower or such Subsidiary, as the case may be, has set aside on its books
adequate reserves.
SECTION 4.9 Margin Regulations. None of the proceeds of any of the
Loans or Letters of Credit will be used for "purchasing" or "carrying" any
"margin stock" with the respective meanings of each of such terms under
Regulation U as now and from time to time hereafter in effect or for any purpose
that violates the provisions of the applicable margin regulations. The Borrower
and its Subsidiaries are in full compliance with, and have not violated or
allowed to be violated, any provision of, any of the regulations T, U, or X, and
any laws and regulations to employee benefit plans.
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SECTION 4.10 ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect.
SECTION 4.11 Ownership of Property.
(a) Each of the Borrower and its Subsidiaries has good and
marketable title to, or valid leasehold interests in, all of its real
and personal property material to the operation of its respective
business.
(b) Each of the Borrower and its Subsidiaries owns, or is
licensed, or otherwise has the right, to use, all patents, trademarks,
service marks, tradenames, copyrights and other intellectual property
material to its business, and the use thereof by the Borrower and its
Subsidiaries does not infringe on the rights of any other Person,
except for any such infringements that, individually or in the
aggregate, would not have a Material Adverse Effect.
SECTION 4.12 Disclosure. The Borrower has disclosed to the Lenders all
agreements, instruments, and corporate or other restrictions to which the
Borrower or any of its Subsidiaries is subject, and all other matters known to
any of them, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. Neither the Information
Memorandum nor any of the reports, financial statements, certificates or other
information furnished by or on behalf of the Borrower to the Administrative
Agent or any Lender in connection with the negotiation or syndication of this
Agreement or any other Loan Document or delivered hereunder or thereunder (as
modified or supplemented by any other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, taken as a whole, in light of the circumstances
under which they were made, not misleading; provided that with respect to
projected financial information, the Borrower represents only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time.
SECTION 4.13 Labor Relations. There are no strikes, lockouts or other
material labor disputes or grievances against the Borrower or any of its
Subsidiaries, or, to the Borrower's knowledge, threatened against or affecting
the Borrower or any of its Subsidiaries, except those that could not reasonably
be expected to have a Material Adverse Effect and no significant unfair labor
practice, charges or grievances are pending against the Borrower or any of its
Subsidiaries, or to the Borrower's knowledge, threatened against any of them
before any Governmental Authority, except those that could not reasonably be
expected to have a Material Adverse Effect. All payments due from the Borrower
or any of its Subsidiaries pursuant to the provisions of any collective
bargaining agreement have been paid or accrued as a liability on the books of
the Borrower or any such Subsidiary, except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect.
SECTION 4.14 Subsidiaries. Schedule 4.14 sets forth the names of, the
address of, the states of incorporation or organization, and the ownership
interest of the Borrower in each Subsidiary as of the Closing Date. The Borrower
uses no trade names.
SECTION 4.15 Personal Holding Company; Subchapter S. Neither Borrower
nor any Subsidiary is a "personal holding company" as defined in Section 542 of
the Code, and neither Borrower nor any Subsidiary is a "Subchapter S"
corporation within the meaning of the Code.
SECTION 4.16 Solvency. Borrower and each Subsidiary are solvent as of
the date hereof and shall remain solvent at all times hereafter. Borrower and
each Subsidiary are generally paying their respective debts as they mature and
the fair value of Borrower's and such Subsidiary's assets substantially exceeds
the sum total of their respective liabilities.
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SECTION 4.17 Capital. Borrower now has capital sufficient to carry on
its business and transactions and all businesses and transactions in which it is
engaged.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or the principal of and interest on any Loan or any fee or
LC Disbursements remains unpaid or any Letter of Credit remains outstanding:
SECTION 5.1 Financial Statements and Other Information. The Borrower
will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after
the end of each fiscal year of Borrower, a copy of the annual audited
report for such fiscal year for the Borrower and its Subsidiaries,
containing a consolidated and unaudited consolidating balance sheet and
income statement of the Borrower and its Subsidiaries as of and for the
end of such fiscal year and the related consolidated statements of
shareholders' equity and cash flows (together with all footnotes
thereto) of the Borrower and its Subsidiaries for such fiscal year,
setting forth for the consolidated statements only in comparative form
the figures for the previous fiscal year, all in reasonable detail and
reported on by Deloitte & Touche, LLP or other independent public
accountants of nationally recognized standing (without a "going
concern" or like qualification, exception or explanation and without
any qualification or exception as to scope of such audit) to the effect
that such financial statements present fairly in all material respects
the financial condition and the results of operations of the Borrower
and its Subsidiaries for such fiscal year on a consolidated basis in
accordance with GAAP and that the examination by such accountants in
connection with such consolidated financial statements has been made in
accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after
the end of each of the first three fiscal quarters of each fiscal year
of the Borrower, an unaudited consolidated and consolidating balance
sheet and income statement of the Borrower and its Subsidiaries as of
the end of such fiscal quarter and the then elapsed portion of such
fiscal year and the related unaudited consolidated statement of cash
flows of the Borrower and its Subsidiaries for such fiscal quarter and
the then elapsed portion of such fiscal year, setting forth for the
consolidated statements only in comparative form the figures for the
corresponding quarter and the corresponding portion of Borrower's
previous fiscal year, all certified by the chief financial officer or
treasurer of the Borrower as presenting fairly in all material respects
the financial condition and results of operations of the Borrower and
its Subsidiaries on a consolidated basis in accordance with GAAP,
subject to normal year-end audit adjustments and the absence of
footnotes;
(c) concurrently with the delivery of the financial statements
referred to in clauses (a) and (b) above, a certificate of a
Responsible Officer in the form of Schedule 5.1(c), (i) certifying as
to whether there exists a Default or Event of Default on the date of
such certificate, and if a Default or an Event of Default then exists,
specifying the details thereof and the action which the Borrower has
taken or proposes to take with respect thereto, (ii) setting forth in
reasonable detail calculations demonstrating compliance with Article VI
and (iii) stating whether any change in GAAP or the application thereof
has occurred since the date of the Borrower's audited financial
statements referred to in Section 4.4 and, if any change has occurred,
specifying the effect of such change on the financial statements
accompanying such certificate;
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(d) within ninety (90) days after the end of each fiscal year,
the Borrower shall provide to the Administrative Agent its consolidated
annual budget;
(e) within forty-five (45) days after the end of each fiscal
quarter, the Borrower shall provide to the Administrative Agent its
Consolidated Statements of Operations Data, with quarterly operating
history;
(f) concurrently with the delivery of the financial statements
referred to in clauses (a) and (b) above, a Developed Center
Information Package, including the Surgery Center Location Report for
existing surgery centers, together with the information submitted to
the Board of Directors for each new surgery center acquired during the
prior fiscal quarter;
(g) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed with the Securities and Exchange Commission, or any Governmental
Authority succeeding to any or all functions of said Commission, or
with any national securities exchange, or distributed by the Borrower
to its shareholders generally, as the case may be; and
(h) promptly upon receipt of copies of any management letters
delivered to Borrower by its auditors and promptly following any
request therefore, such other information regarding the results of
operations, business affairs and financial condition of the Borrower or
any Subsidiary as the Administrative Agent or any Lender may reasonably
request.
SECTION 5.2 Notices of Material Events. The Borrower will furnish to
the Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default or Event of Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority
against or, to the knowledge of the Borrower, affecting the Borrower or
any Subsidiary which, if adversely determined, could reasonably be
expected to result in a Material Adverse Effect;
(c) the occurrence of any event or any other development by
which the Borrower or any of its Subsidiaries (i) fails 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)
becomes subject to any Environmental Liability, (iii) receives notice
of any claim with respect to any Environmental Liability, or (iv)
becomes aware of any basis for any Environmental Liability, and in each
of the preceding clauses, which individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect;
(d) 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 and its Subsidiaries in
an aggregate amount exceeding $100,000; and
(e) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a
written statement of a Responsible Officer setting forth the details of the
event or development requiring such notice and any action taken or proposed to
be taken with respect thereto.
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SECTION 5.3 Existence; Conduct of Business. The Borrower will, and will
cause each of its Subsidiaries to, do or cause to be done all things necessary
to preserve, renew and maintain in full force and effect: (i) its legal
existence, and (ii) its respective rights, licenses, permits, privileges,
franchises, patents, copyrights, trademarks and trade names material to the
conduct of its business except where such failure would not cause a Material
Adverse Effect. The Borrower will, and will cause each of its Subsidiaries to
engage in the same business as presently conducted or such other businesses that
are reasonably related thereto; provided that nothing in this Section shall
prohibit any merger, consolidation, liquidation or dissolution permitted under
Section 7.3.
SECTION 5.4 Compliance with Laws, Etc. The Borrower will, and will
cause each of its Subsidiaries to, comply with all laws, rules, regulations and
requirements (including, without limitation, environmental laws, employee
benefits laws, and ERISA) of any Governmental Authority applicable to its
properties, except where the failure to do so, either individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 5.5 Payment of Obligations. The Borrower will, and will cause
each of its Subsidiaries to, pay and discharge at or before maturity, all of its
obligations and liabilities (including without limitation all tax liabilities
and claims that could result in a statutory Lien) before the same shall become
delinquent or in default, except where (b) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (c) the Borrower or
such Subsidiary has set aside on its books adequate reserves with respect
thereto in accordance with GAAP and (d) the failure to make payment pending such
contest could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.6 Books and Records. The Borrower will, and will cause each
of its Subsidiaries to, keep proper books of record and account in which full,
true and correct entries shall be made of all dealings and transactions in
relation to its business and activities to the extent necessary to prepare the
consolidated financial statements of Borrower in conformity with GAAP.
SECTION 5.7 Visitation, Inspection, Etc. To the extent permitted by
applicable law, the Borrower will, and will cause each of its Subsidiaries to,
permit any representative of the Administrative Agent, to visit and inspect its
properties, to make field audits, to examine its books and records (excluding
any confidential patient records required by law to be excluded from such
examination) and to make copies and take extracts therefrom, and to discuss its
affairs, finances and accounts with any of its officers and with its independent
certified public accountants, all at such reasonable times and as often as the
Administrative Agent may reasonably request after reasonable prior notice to the
Borrower, provided that the Administrative Agent may not make field audits at
any one location more than once in every twelve (12) months without the consent
of the Borrower.
SECTION 5.8 Maintenance of Properties; Insurance. The Borrower will,
and will cause each of its Subsidiaries to, (a) keep and maintain all property
material to the conduct of its business in good working order and condition,
subject to ordinary wear and tear except where the failure to do so, either
individually or it the aggregate, could not reasonably be expected to result in
a Material Adverse Effect and (b) maintain with financially sound and reputable
insurance companies, insurance with respect to its properties and business, and
the properties and business of its Subsidiaries, against loss or damage of the
kinds customarily insured against by companies in the same or similar businesses
operating in the same or similar locations.
SECTION 5.9 Use of Proceeds. Borrower will use the proceeds of the
Revolving Credit Notes to refinance the Indebtedness evidenced by the 2000
Credit Agreement and thereafter to finance general corporate needs, including
working capital, Capital Expenditures, newly developed surgery centers, share
repurchases, and Acquisitions, all in accordance with the terms hereof. No part
of the proceeds of any Loan will be used, whether directly or indirectly, for
any purpose that would violate any rule or regulation of the Board of
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Governors of the Federal Reserve System, including Regulations T, U or X. All
Letters of Credit will be used for general corporate purposes.
SECTION 5.10 Additional Subsidiaries.
(a) If any additional Wholly Owned Subsidiary is acquired or
formed by Borrower, the Borrower shall within fifteen (15) Business
Days after such Wholly Owned Subsidiary is acquired or formed: (i) if
such Wholly Owned Subsidiary is a corporation, execute a Stock Pledge
Agreement (in the form of the 2000 Stock Pledge Agreement) or an
amendment to the 2000 Stock Pledge Agreement pledging to the
Administrative Agent on behalf of Lenders all of the stock or other
evidence of ownership interest it presently holds and acquires in such
Wholly Owned Subsidiary, and the Borrower shall deliver along with such
Stock Pledge Agreement or amendment the securities described therein, a
Reg U form, and a stock power, all in form and substance satisfactory
to Administrative Agent, (ii) if such Wholly Owned Subsidiary is not a
corporation, execute such agreements as are reasonably satisfactory to
the Administrative Agent pledging to the Administrative Agent on behalf
of Lenders all of the ownership interest the Borrower holds and
acquires in such Wholly Owned Subsidiary, and (iii) cause such Wholly
Owned Subsidiary to execute a Subsidiary Guarantee Agreement and an
Indemnity and Contribution Agreement (or appropriate amendments or
joinders to the existing Subsidiary Guarantee Agreement and Indemnity
and Contribution Agreement). Administrative Agent is hereby authorized
to file such UCC financing statements necessary to perfect the security
interest described herein, all without the necessity of Borrower's
execution thereof.
(b) If any Subsidiary (other than a Wholly Owned Subsidiary)
is acquired or formed by a Wholly Owned Subsidiary or the Borrower, the
applicable Wholly Owned Subsidiary or Borrower, as applicable, within
ten (10) Business Days after such Subsidiary is acquired or formed,
shall execute a Pledge Agreement (in the form of the 2000 Pledge
Agreement), or an amendment to the 2000 Pledge Agreement, pledging a
51% interest in such Subsidiary. Administrative Agent is hereby
authorized to file such UCC financing statements necessary to perfect
the security interest described herein, all without the necessity of
Borrower's or such Wholly Owned Subsidiary's execution thereof.
Administrative Agent is hereby authorized, without the consent of any
other Lenders, to execute such releases as necessary to release any
existing pledges, as requested by the applicable pledgor, to the extent
such pledges exceed 51%.
(c) In connection with the acquisition or formation of any
Wholly Owned Subsidiary or other Subsidiary referenced in subparts (a)
and (b) above, the Borrower shall also cause the Administrative Agent
to receive simultaneously with the documentation referenced above the
resolution of the respective Person executing such documentation and an
opinion letter issued by Borrower's legal counsel regarding such
matters as may be reasonably required by the Administrative Agent, all
without the necessity of Borrower's execution thereof.
SECTION 5.11 Intercompany Loans and Third Party Notes. Within fifteen
(15) days after receipt of the same, the Borrower shall deliver to the
Administrative Agent on behalf of all Lenders (or cause any Wholly Owned
Subsidiary to deliver, as applicable) appropriate Assignment and Security
Agreements (in the form of the 2000 Assignment and Security Agreements),
together with all notes, loan agreements, security agreements, guaranties, and
financing statements evidenced thereby, to the extent obtained by the Borrower
(or any Wholly Owned Subsidiary, as applicable), in connection with any
Intercompany Loans and Third Party Notes made and/or received by Borrower (or
any Wholly Owned Subsidiary, as applicable) at any time after the Closing Date;
provided that promissory notes (whether executed before or after the Closing
Date) (a) evidencing individual Intercompany Loans in an amount less than
$500,000 shall be excluded from such delivery and assignment subject to a
maximum exclusion of $10,000,000 in the aggregate of Intercompany Loans, and (b)
evidencing individual Third Party Notes in an amount of less than $100,000.00
shall be excluded from such
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delivery and assignment subject to a maximum exclusion of $1,000,000 in the
aggregate of Third Party Notes. Borrower hereby covenants (a) that it is
currently in compliance with the aggregate exceptions set forth above and (b)
that it will include an affirmative statement as to its ongoing compliance in
each Compliance Certificate. Administrative Agent is hereby authorized to file
such UCC financing statements necessary to perfect the security interest
described herein.
ARTICLE VI
FINANCIAL COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or the principal of or interest on or any Loan remains
unpaid or any fee or any LC Disbursement remains unpaid or any Letter of Credit
remains outstanding:
SECTION 6.1 Leverage Ratio. The Borrower shall maintain, on a
consolidated basis and as calculated at the end of each calendar quarter, a
Leverage Ratio of not greater than 2.50 to 1.00.
SECTION 6.2 Consolidated Total Funded Debt to Capitalization Ratio. The
Borrower shall maintain, on a consolidated basis and as calculated as of the end
of each calendar quarter, a ratio of Consolidated Total Funded Debt to
Capitalization not to exceed 0.45 to 1.00.
SECTION 6.3 Fixed Charge Coverage Ratio. The Borrower shall maintain,
on a consolidated basis and as calculated at the end of each calendar quarter on
a rolling four quarter basis, a ratio of (a) the sum of (i) Adjusted EBITDA,
plus (ii) Consolidated Lease Expense, less (iii) the maintenance portion of
Capital Expenditures, less cash taxes paid, to (b) the sum of (i) Consolidated
Interest Expense, plus (ii) Consolidated Lease Expense, plus (iii) current
maturities of long term Indebtedness, plus (iv) ten percent (10%) of the
outstanding principal amount of the Revolving Loans, of not less than 1.50 to
1.00.
For the purpose of calculating the Fixed Charge Coverage Ratio as set
forth above, the Borrower shall calculate the ratio in a manner consistent with
the calculation of Adjusted EBITDA, provided that such calculations are done in
a manner reasonably calculated to comply with GAAP and the calculations are
detailed and measured to the Administrative Agent's reasonable satisfaction.
SECTION 6.4 Consolidated Net Worth. The Borrower, on a consolidated
basis, shall maintain at all times a Consolidated Net Worth, as measured on the
last day of each fiscal quarter, of not less than (a) $216,026,650.00, plus (b)
fifty percent (50%) of its cumulative positive Consolidated Net Income since
December 31, 2004 plus (c) one hundred percent (100%) of the net proceeds
received from the issuance, sale, or disposition of the Borrower's capital stock
(common, preferred, or special), converted into or exchanged for capital stock,
and any rights, options, warrants, and similar instruments from December 31,
2004 to any date of determination less (d) up to $25,000,000.00 for permitted
treasury stock purchases, if applicable, from December 31, 2004 to any date of
determination.
ARTICLE VII
NEGATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or the principal of or interest on any Loan remains unpaid
or any fee or LC Disbursement remains unpaid or any Letter of Credit remains
outstanding:
SECTION 7.1 Indebtedness. The Borrower will not, and will not permit
any of its Subsidiaries to, create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness arising under the Loan Documents;
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(b) Indebtedness existing on the date hereof and extensions,
renewals and replacements of any such Indebtedness that do not increase
the outstanding principal amount thereof (immediately prior to giving
effect to such extension, renewal or replacement) or shorten the
maturity or the weighted average life thereof (all Indebtedness
existing on the date hereof with a principal or committed amount
outstanding equal to or greater than $250,000 is set forth on Schedule
7.1 attached hereto);
(c) Intercompany Loans or permitted Third Party Notes for
which an Assignment and Security Agreement, and such other documents as
may reasonably be required by Administrative Agent and Lenders, are
executed as described herein (or for which such documentation is not
necessary due to exceptions set forth herein);
(d) Indebtedness in respect of obligations under Hedging
Agreements permitted by Section 7.10; and
(e) Indebtedness that does not exceed $15,000,000 in the
aggregate, inclusive of all amounts referenced in Section 7.1(b) above,
but specifically excluding all amounts referred in Sections 7.1(a),
7.1(c) and 7.1(d) above.
SECTION 7.2 Negative Pledge. The Borrower will not, and will not permit
any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien on
any of its assets or property now owned or hereafter acquired, except:
(a) Liens created in favor of the Administrative Agent for the
benefit of the Lenders pursuant to the Loan Documents;
(b) Permitted Encumbrances;
(c) any Liens on any property or asset of the Borrower or any
Subsidiary existing on the Closing Date set forth on Schedule 7.2;
provided that such Lien shall not apply to any other property or asset
of the Borrower or any Subsidiary;
(d) Liens securing the Indebtedness permitted under Section
7.1(c) and/or 7.1(e) above; and
(e) extensions, renewals, or replacements of any Lien referred
to in paragraphs (a) through (d) of this Section; provided that the
principal amount of the Indebtedness secured thereby is not increased
and that any such extension, renewal or replacement is limited to the
assets originally encumbered thereby.
SECTION 7.3 Fundamental Changes.
(a) The Borrower will not, and will not permit any Subsidiary
to, merge into or consolidate into any other Person, or permit any
other Person to merge into or consolidate with it, or sell, lease,
transfer or otherwise dispose of all or substantially all of the stock
of any of its Subsidiaries (in each case, whether now owned or
hereafter acquired) or liquidate or dissolve; provided, that if at the
time thereof and immediately after giving effect thereto, no Default or
Event of Default shall have occurred and be continuing (i) the Borrower
or any Subsidiary may merge with a Person if the Borrower (or such
Subsidiary if the Borrower is not a party to such merger) is the
surviving Person, (ii) any Subsidiary may merge into another
Subsidiary; provided, that if any party to such merger is a Wholly
Owned Subsidiary, the Wholly Owned Subsidiary shall be the surviving
Person, (iii) any Subsidiary may merge into the Borrower if Borrower is
the surviving Person, and (iv) any Subsidiary
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(other than a Wholly Owned Subsidiary) may liquidate or dissolve if the
Borrower determines in good faith that such liquidation or dissolution
is in the best interests of the Borrower and is not materially
disadvantageous to the Lenders; provided, that any such merger
involving a Person that is not a Wholly Owned Subsidiary immediately
prior to such merger shall not be permitted unless also permitted by
Section 7.4.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, engage to any material extent in any business other
than businesses of the type conducted by the Borrower and its
Subsidiaries on the date hereof and businesses reasonably related
thereto.
SECTION 7.4 Investments, Loans, Etc. The Borrower will not, and will
not permit any of its Subsidiaries to, purchase, hold or acquire (including
pursuant to any merger with any Person that was not a Wholly Owned Subsidiary
prior to such merger), any common stock, evidence of indebtedness or other
securities (including any option, warrant, or other right to acquire any of the
foregoing) of, make or permit to exist any loans or advances to, or make or
permit to exist any investment or any other interest in, any other Person (all
of the foregoing being collectively called "Investments"), or purchase or
otherwise acquire (in one transaction or a series of transactions) any assets of
any other Person that constitute a business unit, except:
(a) Investments (other than Permitted Investments) existing on
the date hereof and set forth on Schedule 7.4 (including Investments in
Subsidiaries);
(b) Permitted Investments;
(c) Intercompany Loans for which an Assignment and Security
Agreement, and such other documents as may be reasonably required by
Agent and Lenders, are executed as described herein (or for which such
documentation is not necessary due to exceptions set forth herein);
(d) loans or advances to employees, officers or directors of
the Borrower or any Subsidiary in the ordinary course of business for
travel, relocation and related expenses not to exceed $250,000 in the
aggregate outstanding amount;
(e) Hedging Agreements permitted by Section 7.10; and
(f) Other Investments which in the aggregate do not exceed
$500,000.
SECTION 7.5 Restricted Payments. Except for dividends payable from a
Wholly Owned Subsidiary to the Borrower, the Borrower will not, and will not
permit any of its corporate Subsidiaries to, declare or make, or agree to pay or
make, directly or indirectly, any dividend on any class of its stock, or make
any payment on account of, or set apart assets for a sinking or other analogous
fund for, the purchase, redemption, retirement, defeasance or other acquisition
of, any shares of treasury stock (each, a "RESTRICTED PAYMENT"); provided
however the Borrower shall be permitted to purchase in the aggregate after the
Closing Date and continuing during the term of this Agreement treasury stock
totaling no greater than $25,000,000 plus fifty percent (50%) of its cumulative
positive Consolidated Net Income since December 31, 2004.
SECTION 7.6 Sale of Assets. The Borrower will not, and will not permit
any of its Subsidiaries to, convey, sell, lease, assign, transfer or otherwise
dispose of to any Person other than Borrower or a Wholly Owned Subsidiary, any
of its assets, business or property, whether now owned or hereafter acquired,
or, in the case of any Subsidiary, issue or sell any shares of such Subsidiary's
common stock to any Person other than the Borrower or a Wholly Owned Subsidiary
(or to qualify directors if required by applicable law), except:
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(a) the sale or other disposition for fair market value of
obsolete or worn out property or other property not necessary for
operations disposed of in the ordinary course of business;
(b) the sale of inventory and Permitted Investments in the
ordinary course of business; and
(c) subject to Section 2.9(b), the sale or other disposition
of such assets in an amount not to exceed in the aggregate five percent
(5%) of the Borrower's consolidated total assets as determined as of
the date of any sale or disposition and as calculated on a cumulative
basis measured from the Closing Date.
SECTION 7.7 Transactions with Affiliates. The Borrower will not, and
will not permit any of its Subsidiaries to, sell, lease or otherwise transfer
any property or assets to, or purchase, lease or otherwise acquire any property
or assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (a) in the ordinary course of business at prices and on terms
and conditions not less favorable to the Borrower or such Subsidiary than could
be obtained on an arm's-length basis from unrelated third parties, (b)
transactions between or among the Borrower and its Subsidiaries not involving
any other Affiliates and (c) any Restricted Payment permitted by Section 7.5.
SECTION 7.8 Restrictive Agreements. The Borrower will not, and will not
permit any Subsidiary to, directly or indirectly, enter into, incur or permit to
exist any agreement that prohibits, restricts or imposes any condition upon (a)
the ability of the Borrower or any Subsidiary to create, incur or permit any
Lien upon any of its assets or properties, whether now owned or hereafter
acquired, or (b) the ability of any Subsidiary to pay dividends or other
distributions with respect to its common stock, to make or repay loans or
advances to the Borrower or any other Subsidiary, to Guarantee Indebtedness of
the Borrower or any other Subsidiary or to transfer any of its property or
assets to the Borrower or any Subsidiary of the Borrower; provided, that (i) the
foregoing shall not apply to restrictions or conditions imposed by law or by
this Agreement or any other Loan Document, (ii) the foregoing shall not apply to
customary restrictions and conditions contained in agreements relating to the
sale of a Subsidiary pending such sale, provided such restrictions and
conditions apply only to the Subsidiary that is sold and such sale is permitted
hereunder, (iii) clause (a) shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions and conditions apply only to the property or
assets securing such Indebtedness and (iv) clause (a) shall not apply to
customary provisions in leases restricting the assignment thereof.
SECTION 7.9 Sale and Leaseback Transactions. The Borrower will not, and
will not permit any of the Subsidiaries to, enter into any arrangement, directly
or indirectly, whereby it 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 such property or other property that it intends to use
for substantially the same purpose or purposes as the property sold or
transferred.
SECTION 7.10 Hedging Agreements. The Borrower will not, and will not
permit any of the Subsidiaries to, enter into any Hedging Agreement, other than
Hedging Agreements entered into in the ordinary course of business to hedge or
mitigate risks to which the Borrower or any Subsidiary is exposed in the conduct
of its business or the management of its liabilities. Solely for the avoidance
of doubt, the Borrower acknowledges that a Hedging Agreement entered into for
speculative purposes or of a speculative nature (which shall be deemed to
include any Hedging Agreement under which the Borrower or any of the
Subsidiaries is or may become obliged to make any payment (i) in connection with
the purchase by any third party of any common stock or any Indebtedness or (ii)
as a result of changes in the market value of any common stock or any
Indebtedness) is not a Hedging Agreement entered into in the ordinary course of
business to hedge or mitigate risks.
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SECTION 7.11 Amendment to Material Documents. The Borrower will not
permit any Subsidiary to, amend, modify or waive any of its rights in a manner
materially adverse to the Lenders under its certificate of incorporation, bylaws
or other organizational documents.
SECTION 7.12 Accounting Changes. The Borrower will not, and will not
permit any Subsidiary to, make any significant change in accounting treatment or
reporting practices, except as required by GAAP, or change the fiscal year of
the Borrower or of any Subsidiary, except to change the fiscal year of a
Subsidiary to conform its fiscal year to that of the Borrower.
SECTION 7.13 Acquisitions.
(a) Without the prior written consent of the Required Lenders,
the Borrower may not make any Acquisition unless such Acquisition
satisfies all of the following conditions:
(i) the total consideration (including cash, stock,
personal property, debt assumed, and other Property) exchanged
for any single Acquisition does not exceed $10,000,000;
(ii) the ratio of total consideration (including
cash, stock, personal property, and other Property) exchanged
for any single Acquisition to annual pre-tax income after GAAP
adjustments, less minority interest as reflected on the
Acquisition Information Package for such Acquisition, does not
exceed 7.50 to 1.00;
(iii) the aggregate number of Acquisitions, in a
rolling twelve (12) month period does not exceed twelve (12);
provided that if the sum of the aggregate Revolving
Commitments of all Lenders less an amount equal to all
outstanding Revolving Loans, less an amount equal to the LC
Exposure, less the pro forma cost of any proposed Acquisition
is greater than or equal to $50,000,000.00, the limitations
set forth in this Section 7.13(a)(iii) shall not apply;
(iv) at least one (1) Business Day before any
Acquisition not requiring Required Lender approval, and at
least fifteen (15) days before any Acquisition requiring
Required Lender approval, the Borrower delivers to
Administrative Agent and Lenders the Acquisition Information
Package; and
(v) simultaneously with the Acquisition, the Borrower
shall deliver to Administrative Agent the documentation and
agreements required by Section 5.10 herein.
(b) The Borrower may not make an Acquisition that does not
comply with subsection (a) hereof unless the Borrower obtains the prior
approval in writing of the Required Lenders as evidenced by an
Acquisition Approval Letter and satisfaction of the following
conditions:
(i) at least fifteen (15) Business Days prior to the
proposed Acquisition the Borrower delivers to Administrative
Agent and Lenders the Acquisition Information Package (it
being understood that the Lenders shall use reasonable efforts
to notify the Borrower within ten (10) Business Days after
receipt of the Acquisition Information Package of their
decision to approve or disapprove the proposed Acquisition);
and
(ii) if the Required Lenders approve the Acquisition,
then simultaneously with the Acquisition, the Borrower shall
deliver to Administrative Agent the documentation and
agreements required by Section 5.10 herein.
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SECTION 7.14 Subsidiaries.
(a) The Borrower may not hold an ownership interest in any
Subsidiary except a Wholly Owned Subsidiary.
(b) A Wholly Owned Subsidiary may not hold an ownership
interest in any Person except for a Subsidiary.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1 Events of Default. If any of the following events (each an
"Event of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan
or of any reimbursement obligation in respect of any LC Disbursements
when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment or otherwise; or
(b) the Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount payable under clause
(a) of this Article) payable under this Agreement or any other Loan
Document, when and as the same shall become due and payable, and such
failure shall continue unremedied for a period of five (5) Business
Days; or
(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 other Loan Document (including the Schedules
attached thereto) and any amendments or modifications hereof or waivers
hereunder, or in any certificate, report, financial statement or other
document submitted to the Administrative Agent or the Lenders by any
Loan Party or any representative of any Loan Party pursuant to or in
connection with this Agreement or any other Loan Document shall prove
to be incorrect in any material respect when made or deemed made or
submitted; or
(d) the Borrower shall fail to observe or perform any covenant
or agreement contained in Sections 5.1, 5.2, 5.3 (with respect to the
Borrower's existence), 5.7 or Articles VI or VII; or
(e) any Loan Party shall fail to observe or perform any
covenant or agreement contained in this Agreement (other than those
referred to in clauses (a), (b) and (d) above), and such failure shall
remain unremedied for 30 days after the earlier of (i) any officer of
the Borrower becomes aware of such failure, or (ii) notice thereof
shall have been given to the Borrower by the Administrative Agent or
any Lender; or
(f) the Borrower or any Subsidiary (whether as primary obligor
or as guarantor or other surety) shall fail to pay any principal of or
premium or interest on any Material Indebtedness that is outstanding,
when and as the same shall become due and payable (whether at scheduled
maturity, required prepayment, acceleration, demand or otherwise), and
such failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument evidencing such Indebtedness;
or any other event shall occur or condition shall exist under any
agreement or instrument relating to such Material Indebtedness and
shall continue after the applicable grace period, if any, specified in
such agreement or instrument, if the effect of such event or condition
is to accelerate, or permit the acceleration of, the maturity of such
Material Indebtedness; or any such Material Indebtedness shall be
declared to be due and payable prior to the stated maturity date
thereof; or any such Material Indebtedness shall be required to be
prepaid or redeemed (other than by a regularly scheduled required
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prepayment or redemption), purchased or defeased, or any offer to
prepay, redeem, purchase or defease such Indebtedness shall be required
to be made, in each case prior to the stated maturity thereof; or
(g) the Borrower or any Subsidiary shall (i) commence a
voluntary case or other proceeding or file any petition seeking
liquidation, reorganization or other relief under any federal, state or
foreign bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a custodian, trustee, receiver,
liquidator or other similar official of it or any substantial part of
its property, (ii) consent to the institution of, or fail to contest in
a timely and appropriate manner, any proceeding or petition described
in clause (i) of this Section, (iii) apply for or consent to the
appointment of a custodian, trustee, receiver, liquidator or other
similar official for the Borrower or any such Subsidiary 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; or
(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
Subsidiary or its debts, or any substantial part of its assets, under
any federal, state or foreign bankruptcy, insolvency or other similar
law now or hereafter in effect or (ii) the appointment of a custodian,
trustee, receiver, liquidator or other similar official for the
Borrower or any Subsidiary or for a substantial part of its assets, and
in any such case, such proceeding or petition shall remain undismissed
for a period of 60 days or an order or decree approving or ordering any
of the foregoing shall be entered; or
(i) the Borrower or any Subsidiary shall become unable to pay,
shall admit in writing its inability to pay, or shall fail to pay, its
debts as they become due; or
(j) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with other ERISA Events that
have occurred, could reasonably be expected to result in a Material
Adverse Effect for the Borrower and the Subsidiaries; or
(k) any uninsured judgment or order for the payment of money
in excess of $500,000, in the aggregate, or in such amount that would
result in a Material Adverse Effect, shall be rendered against the
Borrower or any Subsidiary, and either (i) enforcement proceedings
shall have been commenced by any creditor upon such judgment or order
and shall not have been stayed within fifteen (15) days after the
commencement thereof, or (ii) there shall be a period of 30 consecutive
days during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect; or
(l) any non-monetary judgment or order shall be rendered
against the Borrower or any Subsidiary that could reasonably be
expected to have a Material Adverse Effect, and there shall be a period
of 30 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect; or
(m) a Change in Control shall occur or exist; or
(n) any material provision of any Subsidiary Guarantee
Agreement, the Security Documents, or any other document securing the
Obligations of Borrower and the Subsidiaries hereunder shall for any
reason cease to be valid and binding on, or enforceable against the
Borrower or the Subsidiaries; or
(o) Borrower or any Subsidiary violates or otherwise fails to
comply with any law, rule, regulation, decree, order, or judgment under
the laws of the United States of America or of any state or
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jurisdiction thereof which violation has a Material Adverse Effect on
Borrower or any Subsidiary, or Borrower or any Subsidiary fails or
refuses at any time to remain current in its financial reporting
requirements pursuant to such laws, rules, and regulations or pursuant
to the rules and regulations of any exchange upon which any shares of
Borrower are traded; or
(p) a default shall occur under any other Loan Document and
shall continue beyond any applicable notice and cure period;
then, and in every such event (other than an event with respect to the Borrower
described in clause (g) or (h) of this Section) and at any time thereafter
during the continuance of such event, the Administrative Agent may, and upon the
written request of the Required Lenders shall, by notice to the Borrower, take
any or all of the following actions, at the same or different times: (i)
terminate the Commitments, whereupon the Commitment of each Lender shall
terminate immediately; (ii) declare the principal of and any accrued interest on
the Loans, and all other Obligations owing hereunder, to be, whereupon the same
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
(iii) exercise all remedies contained in any other Loan Document; and that, if
an Event of Default specified in either clause (g) or (h) shall occur, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon, and all fees, and all other
Obligations 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 IX
THE ADMINISTRATIVE AGENT
SECTION 9.1 Appointment of Administrative Agent.
(a) Each Lender irrevocably appoints SunTrust Bank as the
Administrative Agent and authorizes it to take such actions on its
behalf and to exercise such powers as are delegated to the
Administrative Agent under this Agreement and the other Loan Documents,
together with all such actions and powers that are reasonably
incidental thereto. The Administrative Agent may perform any of its
duties hereunder by or through any one or more sub-agents appointed by
the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all of its duties and exercise its rights
and powers through their respective Related Parties. The exculpatory
provisions set forth in this Article shall apply to any such sub-agent
and the Related Parties of the Administrative Agent and any such
sub-agent and shall apply to their respective activities in connection
with the syndication of the credit facilities provided for herein as
well as activities as Administrative Agent.
(b) The Issuing Bank shall act on behalf of the Lenders with
respect to any Letters of Credit issued by it and the documents
associated therewith until such time and except for so long as the
Administrative Agent may agree at the request of the Required Lenders
to act for the Issuing Bank with respect thereto; provided, that the
Issuing Bank shall have all the benefits and immunities (i) provided to
the Administrative Agent in this Article IX with respect to any acts
taken or omissions suffered by the Issuing Bank in connection with
Letters of Credit issued by it or proposed to be issued by it, and (ii)
as additionally provided in this Agreement with respect to the Issuing
Bank.
SECTION 9.2 Nature of Duties of Administrative Agent. The
Administrative Agent shall not have any duties or obligations except those
expressly set forth in this Agreement and the other Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not
be subject to any fiduciary or other implied duties, regardless of whether a
Default or an Event of Default has occurred and is continuing, (b) the
Administrative Agent shall not have any duty to take any discretionary action or
exercise any discretionary powers, except those discretionary rights and powers
expressly contemplated by the Loan
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Documents that the Administrative Agent is required to exercise in writing by
the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in Section 10.2), and (c)
except as expressly set forth in the Loan Documents, the Administrative Agent
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 its Subsidiaries
that is communicated to or obtained by the Administrative Agent or any of its
Affiliates in any capacity. The Administrative Agent shall not be liable for any
action taken or not taken by it 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 10.2) or in the absence
of its own gross negligence or willful misconduct. The Administrative Agent
shall not be deemed to have knowledge of any Default or Event of Default unless
and until written notice thereof is given to the Administrative Agent by the
Borrower or any Lender, and the Administrative Agent shall not be responsible
for or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with any Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements, or other terms and 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 III or
elsewhere in any Loan Document, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent.
SECTION 9.3 Lack of Reliance on the Administrative Agent. Each of the
Lenders acknowledges that it has, independently and without reliance upon the
Administrative 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 of the Lenders also acknowledges
that it will, independently and without reliance upon the Administrative Agent
or any other Lender and based on such documents and information as it has deemed
appropriate, continue to make its own decisions in the taking or not taking of
any action under or based on this Agreement, any related agreement or any
document furnished hereunder or thereunder.
SECTION 9.4 Certain Rights of the Administrative Agent. If the
Administrative Agent shall request instructions from the Required Lenders with
respect to any action or actions (including the failure to act) in connection
with this Agreement, the Administrative Agent shall be entitled to refrain from
such act or taking such act, unless and until it shall have received
instructions from the Required Lenders; and the Administrative Agent shall not
incur liability to any Person by reason of so refraining. Without limiting the
foregoing, no Lender shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or
refraining from acting hereunder in accordance with the instructions of the
Required Lenders where required by the terms of this Agreement.
SECTION 9.5 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely upon, and shall not incur any liability for relying
upon, any notice, request, certificate, consent, statement, instrument, document
or other writing believed by it to be genuine and to have been signed, sent or
made by the proper Person. The Administrative Agent may also 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
Administrative Agent may consult with legal counsel, independent public
accountants and other experts selected by it and shall not be liable for any
action taken or not taken by it in accordance with the advice of such counsel,
accountants or experts.
SECTION 9.6 The Administrative Agent in its Individual Capacity. The
bank serving as the Administrative Agent shall have the same rights and powers
under this Agreement and any other Loan Document in its capacity as a Lender as
any other Lender and may exercise or refrain from exercising the same as though
it were not the Administrative Agent; and the terms "Lenders", "Required
Lenders", "holders of Notes", or any similar terms shall, unless the context
clearly otherwise indicates, include the Administrative Agent in its individual
capacity. The bank acting as the Administrative Agent and its Affiliates may
accept
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deposits from, lend money to, and generally engage in any kind of business with
the Borrower or any Subsidiary or Affiliate of the Borrower as if it were not
the Administrative Agent hereunder.
SECTION 9.7 Successor Administrative Agent.
(a) The Administrative Agent may resign at any time by giving
notice thereof to the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right to appoint a
successor Administrative Agent, subject to the approval by the Borrower
provided that no Default or Event of Default shall exist at such time.
If no successor Administrative Agent shall have been so appointed, and
shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders and the Issuing
Bank, appoint a successor Administrative Agent, which shall be a
commercial bank organized under the laws of the United States of
America or any state thereof or a bank which maintains an office in the
United States, having a combined capital and surplus of at least
$5,000,000,000.
(b) Upon the acceptance of its appointment as the
Administrative Agent hereunder by a successor, such successor
Administrative Agent shall thereupon 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 under this Agreement and the
other Loan Documents. If within 45 days after written notice is given
of the retiring Administrative Agent's resignation under this Section
9.7 no successor Administrative Agent shall have been appointed and
shall have accepted such appointment, then on such 45th day (i) the
retiring Administrative Agent's resignation shall become effective,
(ii) the retiring Administrative Agent shall thereupon be discharged
from its duties and obligations under the Loan Documents and (iii) the
Required Lenders shall thereafter perform all duties of the retiring
Administrative Agent under the Loan Documents until such time as the
Required Lenders appoint a successor Administrative Agent as provided
above. After any retiring Administrative Agent's resignation hereunder,
the provisions of this Article IX shall continue in effect for the
benefit of such retiring Administrative Agent and its representatives
and agents in respect of any actions taken or not taken by any of them
while it was serving as the Administrative Agent.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Notices.
(a) Except in the case of notices and other communications
expressly permitted to be given by telephone, all notices and other
communications to any party herein to be effective 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:
To the Borrower:
AmSurg Corp.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To the Administrative Agent: SunTrust Bank
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, 24th Floor
MC 3956
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Syndicated Finance
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To the Issuing Bank: SunTrust Bank
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To any other Lender: the address set forth in the
Administrative Questionnaire
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All such notices
and other communications shall, when transmitted by overnight delivery, or
faxed, be effective when delivered for overnight (next-day) delivery, or
transmitted in legible form by facsimile machine, respectively, or if mailed,
upon receipt or rejection thereof by the intended recipient or if delivered,
upon delivery; provided, that notices delivered to the Administrative Agent or
the Issuing Bank shall not be effective until actually received or rejected by
such Person at its address specified in this Section 10.1.
(b) Any agreement of the Administrative Agent, the Issuing
Bank, and the Lenders herein to receive certain notices by telephone or
facsimile is solely for the convenience and at the request of the
Borrower. The Administrative Agent, the Issuing Bank, and the Lenders
shall be entitled to rely on the authority of any Person purporting to
be a Person authorized by the Borrower to give such notice and the
Administrative Agent, the Issuing Bank, and Lenders shall not have any
liability to the Borrower or other Person on account of any action
taken or not taken by the Administrative Agent, the Issuing Bank, or
the Lenders in reliance upon such telephonic or facsimile notice. The
obligation of the Borrower to repay the Loans, the LC Exposure, and all
other Obligations hereunder shall not be affected in any way or to any
extent by any failure of the Administrative Agent, the Issuing Bank,
and the Lenders to receive written confirmation of any telephonic or
facsimile notice or the receipt by the Administrative Agent, the
Issuing Bank, and the Lenders of a confirmation which is at variance
with
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the terms understood by the Administrative Agent, the Issuing Bank, and
the Lenders to be contained in any such telephonic or facsimile notice.
SECTION 10.2 Waiver; Amendments.
(a) No failure or delay by the Administrative Agent, the
Issuing Bank, or any Lender in exercising any right or power hereunder
or any other Loan Document, and no course of dealing between the
Borrower and the Administrative Agent, the Issuing Bank, or any Lender,
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 right or power, preclude any
other or further exercise thereof or the exercise of any other right or
power hereunder or thereunder. The rights and remedies of the
Administrative Agent, the Issuing Bank, and the Lenders hereunder and
under the other Loan Documents are cumulative and are not exclusive of
any rights or remedies provided by law. No waiver of any provision of
this Agreement or any other Loan Document or consent to any departure
by the Borrower 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 or the issuance of a Letter of Credit
shall not be construed as a waiver of any Default or Event of Default,
regardless of whether the Administrative Agent, the Issuing Bank, or
any Lender or the Issuing Bank may have had notice or knowledge of such
Default or Event of Default at the time.
(b) No amendment or waiver of any provision of this Agreement
or the other Loan Documents, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Borrower and the Required Lenders
or the Borrower and the Administrative Agent with the consent of the
Required Lenders and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which
given; provided, that no amendment or waiver shall: (i) increase the
Commitment of any Lender without the written consent of such Lender,
(ii) reduce 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 date fixed for any payment of any principal of, or
interest on, any Loan or LC Disbursement or interest thereon or any
fees hereunder or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date for the termination or
reduction of any Commitment, without the written consent of each Lender
affected thereby, (iv) change any Section 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 definition of "Required Lenders" or any other provision
hereof specifying the number or percentage of Lenders which are
required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the consent of
each Lender; (vi) release any guarantor or limit the liability of any
such guarantor under any guaranty agreement; (vii) release all or
substantially all collateral securing any of the Obligations; provided
further, that no such agreement shall amend, modify or otherwise affect
the rights, duties or obligations of the Administrative Agent or the
Issuing Bank without the prior written consent of the Administrative
Agent.
SECTION 10.3 Expenses; Indemnification.
(a) The Borrower shall pay (i) all reasonable, out-of-pocket
costs and expenses of the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of counsel for
the Administrative Agent and its Affiliates, in connection with the
syndication of the credit facilities provided for herein, the
preparation and administration of the Loan Documents and any
amendments, modifications or waivers thereof (whether or not the
transactions contemplated in this Agreement or any other Loan Document
shall be consummated) (ii) all reasonable out-of-pocket
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expenses incurred by the Issuing Bank in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder and (iii) all out-of-pocket costs and expenses
(including, without limitation, the reasonable fees, charges and
disbursements of outside counsel and the allocated cost of inside
counsel) incurred by the Administrative Agent, the Issuing Bank, or any
Lender in connection with the enforcement or protection of its rights
in connection with this Agreement, including its rights under this
Section, or in connection with the Loans made or any Letters of Credit
issued hereunder, including all such out-of-pocket expenses incurred
during any workout, restructuring or negotiations in respect of such
Loans or Letters of Credit.
(b) The Borrower shall indemnify the Administrative Agent, the
Arranger, the Issuing Bank, and each Lender, and each Related Party of
any of the foregoing (each, an "Indemnitee") against, and hold each of
them harmless from, any and all costs, losses, liabilities, claims,
damages and related expenses, including the reasonable fees, charges
and disbursements of any counsel for any Indemnitee, which may be
incurred by or asserted against any Indemnitee arising out of, in
connection with or as a result of (i) the execution or delivery of this
Agreement or any other agreement or instrument contemplated hereby, the
performance by the parties hereto of their respective obligations
hereunder or the consummation of any of the transactions contemplated
hereby, (ii) any Loan or Letter of Credit or any actual or proposed use
of the proceeds therefrom (including any refusal by the Issuing Bank to
honor a demand for payment under a Letter of Credit if the documents
prepared 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 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, whether based on contract, tort or any other
theory and regardless of whether any Indemnitee is a party thereto;
provided that the Borrower shall not be obligated to indemnify any
Indemnitee for any of the foregoing arising out of such Indemnitee's
gross negligence or willful misconduct as determined by a court of
competent jurisdiction in a final and nonappealable judgment; and
provided that the Borrower shall not be obligated to indemnify any
Indemnitee for Excluded Taxes, the costs and expenses incurred in
connection with the assignment of or participation in any Lender's
interest in the Loans or the LC Exposure, and attorney fees incurred by
any Lender other than SunTrust Bank.
(c) The Borrower shall pay, and hold the Administrative Agent,
the Issuing Bank, and each of the Lenders harmless from and against,
any and all present and future stamp, documentary, and other similar
taxes with respect to this Agreement and any other Loan Documents, any
collateral described therein, or any payments due thereunder, and save
the Administrative Agent, the Issuing Bank, and each Lender harmless
from and against any and all liabilities with respect to or resulting
from any delay or omission to pay such taxes.
(d) To the extent that the Borrower fails to pay any amount
required to be paid to the Administrative Agent or the Issuing Bank
under clauses (a), (b) or (c) hereof, each Lender severally agrees to
pay to the Administrative Agent or the Issuing Bank such Lender's Pro
Rata Share (determined as of the time that the unreimbursed expense or
indemnity payment is sought) of such unpaid amount; provided, that the
unreimbursed expense or indemnified payment, claim, damage, liability
or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent or the Issuing Bank in its capacity as
such.
(e) No Indemnitee shall be liable to Borrower or any of its
Subsidiaries for any damages arising from the use by other Persons of
information or other materials obtained through the internet,
Intralinks, or other similar information transmission systems in
connection with this Agreement.
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(f) No Indemnitee shall have any liability (whether direct or
indirect, in contract or tort or otherwise) to the Borrower or any
other Loan Party arising out of, related to, or in connection with the
transactions contemplated by this Agreement or any Loan Documents,
except to the extent that such liability shall be finally judicially
determined by a court of competent jurisdiction to have resulted from
the gross negligence or willful misconduct of the Indemnitee.
(g) To the extent permitted by applicable law, the Borrower
shall not assert, and hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to actual or direct damages) arising out
of, in connection with or as a result of, this Agreement or any
agreement or instrument contemplated hereby, the transactions
contemplated therein, any Loan or any Letter of Credit or the use of
proceeds thereof.
(h) All amounts due under this Section shall be payable
promptly after written demand therefore.
SECTION 10.4 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, except that the Borrower may not assign or
transfer any of its rights 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).
(b) So long as no Default or Event of Default exists and is
continuing, any Lender may at any time assign to one or more assignees
all or a portion of its rights and obligations under this Agreement and
the other Loan Documents (including all or a portion of its Commitment
and the Loans and LC Exposure at the time owing to it); provided that
(i) except in the case of an assignment to a Lender or an Affiliate of
a Lender, each of the Borrower and the Administrative Agent (and, in
the case of an assignment of all or a portion of a Commitment or any
Lender's obligations in respect of its LC Exposure, the Issuing Bank)
must give their prior written consent (which consent shall not be
unreasonably withheld or delayed), (ii) except in the case of an
assignment to a Lender or an Affiliate of a Lender or an assignment of
the entire amount of the assigning Lender's Commitment hereunder, the
amount of the Commitment of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $1,000,000 unless the Borrower and the
Administrative Agent shall otherwise consent, (iii) 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
and the other Loan Documents, (iv) the assigning Lender and the
assignee shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, together with a processing and recordation
fee payable by the assigning Lender or the assignee (as determined
between such Persons) in an amount equal to $1,000 and (v) such
assignee, if it is not a Lender, shall deliver a duly completed
Administrative Questionnaire to the Administrative Agent; provided that
any consent of the Borrower otherwise required hereunder shall not be
required if an Event of Default has occurred and is continuing. Upon
the execution and delivery of the Assignment and Acceptance and payment
by such assignee to the assigning Lender of an amount equal to the
purchase price agreed between such Persons, such assignee shall become
a party to this Agreement and any other Loan Documents to which such
assigning Lender is a party and, to the extent of such interest
assigned by such Assignment and Acceptance, shall have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
shall be released from its obligations hereunder to a corresponding
extent (and, in the case of an Assignment and Acceptance covering all
of the assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 2.14, 2.15 and 2.16 and 10.3).
Upon the consummation of any such assignment
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hereunder, the assigning Lender, the Administrative Agent and the
Borrower shall make appropriate arrangements to have new Notes issued
if so requested by either or both the assigning Lender or the assignee.
Any assignment or other transfer by a Lender that does not fully comply
with the terms of this clause (b) shall be treated for purposes of this
Agreement as a sale of a participation pursuant to clause (c) below.
(c) Any Lender may at any time, without the consent of the
Borrower, the Issuing Bank, or the Administrative Agent, 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 and its LC Exposure); provided, that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for
the performance of its obligations hereunder, and (iii) the Borrower,
the Issuing Bank, the Administrative Agent, 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 and the
other Loan Documents. Any agreement between such Lender and the
Participant with respect to such participation shall provide that such
Lender shall retain the sole right and responsibility to enforce this
Agreement and the other Loan Documents and the right to approve any
amendment, modification or waiver of this Agreement and the other Loan
Documents; provided, that such participation agreement may provide that
such Lender will not, without the consent of the Participant, agree to
any amendment, modification or waiver of this Agreement described in
the first proviso of Section 10.2(b) that affects the Participant. The
Borrower agrees that each Participant shall be entitled to the benefits
of Sections 2.14, 2.15 and 2.16 to the same extent as if it were a
Lender hereunder and had acquired its interest by assignment pursuant
to paragraph (b); provided, that no Participant shall be entitled to
receive any greater payment under Section 2.14 or 2.16 than the
applicable Lender would have been entitled to receive with respect to
the participation sold to such Participant unless the sale of such
participation is made with the Borrower's prior written consent. To the
extent permitted by law, the Borrower agrees that each Participant
shall be entitled to the benefits of Section 2.17 as though it were a
Lender, provided, that such Participant agrees to share with the
Lenders the proceeds thereof in accordance with Section 2.17 as fully
as if it were a Lender hereunder.
(d) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement and
its Notes (if any) to secure its obligations to a Federal Reserve Bank
without complying with this Section; provided, that no such pledge or
assignment 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 10.5 Governing Law; Jurisdiction; Consent to Service of
Process.
(a) This Agreement and the other Loan Documents shall be
construed in accordance with and be governed by the law (without giving
effect to the conflict of law principles thereof) of the State of
Tennessee.
(b) The Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the non-exclusive jurisdiction
of the United States District Court of the Middle District of
Tennessee, and of any state court of the State of
Tennessee, and any
appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or any other Loan Document or the
transactions contemplated hereby or thereby, 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
Tennessee state court or, to the extent permitted by applicable law,
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
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jurisdictions by suit on the judgment or in any other manner provided
by law. Nothing in this Agreement or any other Loan Document shall
affect any right that the Administrative Agent, the Issuing Bank, or
any Lender may otherwise have to bring any action or proceeding
relating to this Agreement or any other Loan Document against the
Borrower or its properties in the courts of any jurisdiction.
(c) The Borrower irrevocably and unconditionally waives any
objection which it may now or hereafter have to the laying of venue of
any such suit, action or proceeding described in paragraph (b) of this
Section and brought in any court referred to in paragraph (b) of this
Section. Each of the parties hereto 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 the
service of process in the manner provided for notices in Section 10.1.
Nothing in this Agreement or in any other Loan Document will affect the
right of any party hereto to serve process in any other manner
permitted by law.
SECTION 10.6 WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER 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 AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.7 Right of Setoff. In addition to any rights now or
hereafter granted under applicable law and not by way of limitation of any such
rights, each Lender and the Issuing Bank shall have the right, at any time or
from time to time upon the occurrence and during the continuance of an Event of
Default, without prior notice to the Borrower, any such notice being expressly
waived by the Borrower to the extent permitted by applicable law, to set off and
apply against all deposits (general or special, time or demand, provisional or
final) of the Borrower at any time held or other obligations at any time owing
by such Lender and the Issuing Bank to or for the credit or the account of the
Borrower against any and all Obligations held by such Lender or the Issuing
Bank, as the case may be, irrespective of whether such Lender or the Issuing
Bank shall have made demand hereunder and although such Obligations may be
unmatured. Each Lender and the Issuing Bank agree promptly to notify the
Administrative Agent and the Borrower after any such set-off and any application
made by such Lender and the Issuing Bank; provided, that the failure to give
such notice shall not affect the validity of such set-off and application.
SECTION 10.8 Counterparts; Integration. This Agreement may be executed
by one or more of the parties to this Agreement on any number of separate
counterparts (including by telecopy), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. This
Agreement, the other Loan Documents, and any separate letter agreement(s)
relating to any fees payable to the Administrative Agent constitute the entire
agreement among the parties hereto and thereto regarding the subject matters
hereof and thereof and supersede all prior agreements and understandings, oral
or written, regarding such subject matters.
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SECTION 10.9 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 the
Administrative Agent or the Issuing Bank or any 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 10.3 and Article
IX shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof. All
representations and warranties made herein, in the certificates, reports,
notices, and other documents delivered pursuant to this Agreement shall survive
the execution and delivery of this Agreement and the other Loan Documents, and
the making of the Loans and the issuance of the Letters of Credit.
SECTION 10.10 Severability. Any provision of this Agreement or any
other Loan Document held to be illegal, invalid or unenforceable in any
jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of
such illegality, invalidity or unenforceability without affecting the legality,
validity or enforceability of the remaining provisions hereof or thereof; and
the illegality, invalidity or unenforceability of a particular provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
SECTION 10.11 Confidentiality. Each of the Administrative Agent, the
Issuing Bank, and each Lender agrees to take normal and reasonable precautions
to maintain the confidentiality of any information designated in writing as
confidential and provided to it by the Borrower or any Subsidiary, except that
such information may be disclosed (i) to any Related Party of the Administrative
Agent, the Issuing Bank, or any such Lender, including without limitation
accountants, legal counsel and other advisors, (ii) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process,
(iii) to the extent requested by any regulatory agency or authority, (iv) to the
extent that such information becomes publicly available other than as a result
of a breach of this Section, or which becomes available to the Administrative
Agent, the Issuing Bank, any Lender or any Related Party of any of the foregoing
on a nonconfidential basis from a source other than the Borrower, (v) in
connection with the exercise of any remedy hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder,
(vi) subject to provisions substantially similar to this Section 10.11, to any
actual or prospective assignee or Participant, or (vii) with the consent of the
Borrower. Any Person required to maintain the confidentiality of any information
as provided for 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 its
own confidential information.
SECTION 10.12 Interest Rate Limitation. Notwithstanding anything herein
to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which may be treated as
interest on such Loan under applicable law (collectively, the "Charges"), shall
exceed the maximum lawful rate of interest (the "Maximum Rate") which may be
contracted for, charged, taken, received or reserved by a Lender holding such
Loan in accordance with applicable law, the rate of interest payable in respect
of such Loan hereunder, together with all Charges payable in respect thereof,
shall be limited to the Maximum Rate and, to the extent lawful, the interest and
Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated and the
interest and Charges payable to such Lender in respect of other Loans or periods
shall be increased (but not above the
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Maximum Rate therefore) until such cumulated amount, together with interest
thereon at the Federal Funds Rate to the date of repayment, shall have been
received by such Lender.
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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.
BORROWER:
AMSURG CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President,
Chief Financial Officer and Secretary
SUNTRUST BANK
as Administrative Agent, as Issuing Bank, and
as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------
Title: Managing Director
----------------------------------------
Revised Revolving Commitment: $35,000,000.00
-▇▇-
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, N.A.
as Syndication Agent and as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Title: Vice President
----------------------------------------
Revised Revolving Commitment: $30,000,000.00
-▇▇-
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇
-------------------------------------------
Title: Executive Vice President
----------------------------------------
Revised Revolving Commitment: $5,000,000.00
-▇▇-
▇▇▇ ▇▇▇▇ NATIONAL ASSOCIATION
as Co-Documentation Agent and as a Lender
By: /s/ ▇. ▇. ▇▇▇▇▇▇
-------------------------------------------
Title: Senior Vice President
----------------------------------------
Revised Revolving Commitment: $25,000,000.00
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U.S. BANK, NATIONAL ASSOCIATION.
as Co-Documentation Agent and as a Lender
By: /s/ ▇. ▇▇▇▇▇▇ CHOPPIN
-------------------------------------------
Title: Senior Vice President
----------------------------------------
Revised Revolving Commitment: $25,000,000.00
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STANDARD FEDERAL BANK N.A.
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Title: Senior Vice President
----------------------------------------
Revised Revolving Commitment: $15,000,000.00
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▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ BANK, N.A.
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
Title: Senior Vice President
----------------------------------------
Revised Revolving Commitment: $15,000,000.00
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EXHIBIT A
REVOLVING CREDIT NOTE
$_____________ April 22, ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
FOR VALUE RECEIVED, the undersigned,
AMSURG CORP., a
Tennessee
corporation (the "BORROWER"), hereby promises to pay to _________________. (the
"LENDER") or its registered assigns, at the office of SunTrust Bank ("SUNTRUST")
at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Maturity Date,
as defined in the Second Amended and Restated
Revolving Credit Agreement dated
as of April 22, 2005 (as the same may be amended, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT") among the Borrower, the
lenders from time to time party thereto and SunTrust, as administrative agent
for the lenders, the lesser of the principal sum of up to ______________________
__________________ ($_____________), or the aggregate unpaid principal amount of
all Revolving Loans made by the Lender to the Borrower pursuant to the Credit
Agreement, in lawful money of the United States of America in immediately
available funds, and to pay interest from the date hereof on the principal
amount thereof from time to time outstanding, in like funds, at said office, at
the rate or rates per annum and payable on such dates as provided in the Credit
Agreement. In addition, should legal action or an attorney-at-law be utilized to
collect any amount due hereunder, the Borrower further promises to pay all costs
of collection, including the reasonable attorneys' fees of the Lender.
The Borrower promises to pay interest, on demand, on any overdue
principal and, to the extent permitted by law, overdue interest from their due
dates at a rate or rates provided in the Credit Agreement.
Capitalized terms used, but not otherwise defined, herein shall have
the meanings ascribed to them in the Credit Agreement.
All borrowings evidenced by this Revolving Credit Note and all payments
and prepayments of the principal hereof and the date thereof shall be endorsed
by the holder hereof on the schedule attached hereto and made a part hereof or
on a continuation thereof which shall be attached hereto and made a part hereof,
or otherwise recorded by such holder in its internal records; provided, that the
failure of the holder hereof to make such a notation or any error in such
notation shall not affect the obligations of the Borrower to make the payments
of principal and interest in accordance with the terms of this Revolving Credit
Note and the Credit Agreement.
This Revolving Credit Note is issued in connection with, and is
entitled to the benefits of, the Credit Agreement which, among other things,
contains provisions for the acceleration of the maturity hereof upon the
happening of certain events, for prepayment of the principal hereof prior to the
maturity hereof and for the amendment or waiver of certain provisions of the
Credit Agreement, all upon the terms and conditions therein specified. THIS
REVOLVING CREDIT NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF
TENNESSEE AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA.
AMSURG CORP.
By:
------------------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President,
Chief Financial Officer and Secretary
LOANS AND PAYMENTS
Unpaid Principal Name of Person
Amount and Payments of Balance of Making
Date Type of Loan Principal Note Notation
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EXHIBIT B
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Second Amended and Restated
Revolving Credit
Agreement dated as of April ____, 2005 (as amended and in effect on the date
hereof, the "Credit Agreement"), among
AMSURG CORP., a
Tennessee corporation,
the Lenders from time to time party thereto and SunTrust Bank, as Administrative
Agent for the Lenders. Terms defined in the Credit Agreement are used herein
with the same meanings.
The Assignor hereby sells and assigns, without recourse, to the
Assignee designated below, and the Assignee hereby purchases and assumes,
without recourse, from the Assignor, effective as of the Assignment Date set
forth below, the interests set forth below (the "Assigned Interest") in the
Assignor's rights and obligations under the Credit Agreement, including, without
limitation, the interests set forth below in the Revolving Commitment of the
Assignor on the Assignment Date and Revolving Loans owing to the Assignor which
are outstanding on the Assignment Date, but excluding accrued interest and fees
to and excluding the Assignment Date. The Assignee hereby acknowledges receipt
of a copy of the Credit Agreement. From and after the Assignment Date (i) the
Assignee shall be a party to and be bound by the provisions of the Credit
Agreement and, to the extent of the Assigned Interest, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent of
the Assigned Interest, relinquish its rights and be released from its
obligations under the Credit Agreement.
This Assignment and Acceptance is being delivered to the Administrative
Agent together with, if the Assignee is not already a Lender under the Credit
Agreement, an Administrative Questionnaire in the form supplied by the
Administrative Agent, duly completed by the Assignee. The Assignee shall pay the
fee payable to the Administrative Agent pursuant to Section 10.4(b) of the
Credit Agreement.
This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of
Tennessee.
Date of Assignment:
---------------------------------------------------
Legal Name of Assignor:
-----------------------------------------------
Legal Name of Assignee:
-----------------------------------------------
Assignee's Address for Notices:
---------------------------------------
---------------------------------------
---------------------------------------
Effective Date of Assignment:
-----------------------------------------
("Assignment Date"):
--------------------------------------------------
Principal Amount Percentage Assigned of
Facility Assigned Revolving Commitment
-------- --------
(set forth, to at least 8
decimals, as a percentage
of the aggregate Revolving
Commitments of all
Lenders thereunder)
-------------------
Revolving Loans: $ %
---------------------------------- -----------------
The terms set forth above are hereby agreed to as of this
____________________, 20____:
_________________________, as Assignor
By:
-----------------------------------------
Title:
-------------------------------------
_________________________, as Assignee
By:
-----------------------------------------
Title:
-------------------------------------
The undersigned hereby consents to the within assignment as of this
____________________, 20____:
AMSURG CORP. SUNTRUST BANK, as
Administrative Agent:
By: By:
------------------------------- -------------------------------------
Title: Title:
--------------------------- ---------------------------------
EXHIBIT C
AMENDED AND RESTATED SUBSIDIARY GUARANTEE AGREEMENT
ENTERED INTO by and between the undersigned entities (collectively
referred to herein as "Guarantor") in favor of SunTrust Bank, Administrative
Agent, for the ratable benefit of the Lenders as defined in the Credit Agreement
referred to below, as of April 22, 2005.
WITNESSETH:
WHEREAS, pursuant to the 2000 Credit Agreement (as such term is defined
in the Credit Agreement described below), the Wholly Owned Subsidiaries of
Borrower guaranteed the obligations thereby pursuant to a Subsidiary Guarantee
Agreement executed contemporaneously therewith and pursuant to supplements
executed subsequent thereto; and as described in more detail below, the Wholly
Owned Subsidiaries desire to amend and restate said Subsidiary Guarantee
Agreement in connection with the execution of the Credit Agreement described
below pursuant to the terms hereof;
WHEREAS,
AmSurg Corp., a
Tennessee corporation (the "Borrower"),
SunTrust Bank as Administrative Agent (the "Administrative Agent"), and the
Lenders (as such term is defined in the Credit Agreement) have entered into that
certain Second Amended and Restated
Revolving Credit Agreement dated as of April
22, 2005 (as the same may have been or may hereafter be amended or supplemented
from time to time, the "Credit Agreement") providing, subject to the terms and
conditions thereof, for extensions of credit to be made by the Lenders to the
Borrower;
WHEREAS, the Borrower may from time to time enter into agreements,
devices or arrangements with any Lender, or any Affiliate thereof, providing for
payments which are related to fluctuations of interest rates, exchange rates or
forward rates, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options, puts and warrants (each, a "Hedging
Agreement");
WHEREAS, it is a requirement of Section 3.1 and Section 5.10(a) of the
Credit Agreement that each Wholly Owned Subsidiary (as such term is defined in
the Credit Agreement and as referred to herein individually as a "Guarantor" and
collectively as the "Guarantors") shall execute and deliver a guarantee of this
form, whereby each Guarantor shall guarantee the payment when due of (i)
principal, interest and other amounts that shall be at any time payable by the
Borrower to the Lenders and Administrative Agent under the Credit Agreement, the
Revolving Credit Notes, and the other Loan Documents, and (ii) any and all
obligations of the Borrower under (A) any and all Hedging Agreements, and (B)
any and all cancellations, buy backs, reversals, terminations or assignment of
any Hedging Agreement (the "Hedging Obligations"); and
WHEREAS, in consideration of the financial and other support that the
Borrower has provided, and such financial and other support as the Borrower may
in the future provide to each Guarantor, the Guarantors are willing to guarantee
the Borrower's obligations under the Credit Agreement, the Revolving Credit
Notes, and the other Loan Documents;
NOW, THEREFORE, in consideration of the mutual premises and covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. Definitions. Terms not otherwise defined herein shall have
the same meanings as ascribed to them in the Credit Agreement.
SECTION 2. Representations and Warranties. Each Guarantor represents
and warrants (which representations and warranties shall be deemed to have been
renewed upon each Advance pursuant to or under the Credit Agreement) that:
(a) It (i) is a corporation duly organized or formed,
validly existing and in good standing under the laws of its
jurisdiction of organization or formation; (ii) has all
requisite power, and has all material governmental licenses,
authorizations, consents and approvals necessary to own its
assets and carry on its business as now being or as proposed
to be conducted, and (iii) is qualified to do business in all
jurisdictions in which the nature of the business conducted by
it makes such qualification necessary and where failure so to
qualify would have a materially adverse effect.
(b) It has all necessary power and authority to
execute, deliver and perform its obligations under this
Guarantee; the execution, delivery and performance of this
Guarantee have been duly authorized by all necessary
organizational action; and this Guarantee has been duly and
validly executed and delivered by it and constitutes its
legal, valid and binding obligation, enforceable in accordance
with its terms.
(c) Neither the execution and delivery by it of this
Guarantee nor compliance with the terms and provisions hereof
will conflict with or result in a breach of, or require any
consent under, organizational documents or any material
applicable law or regulation or any order, writ, injunction or
decree of any court or governmental authority or agency, or
any material contractual obligation to which it is a party or
by which it is bound or to which it is subject, or constitute
a default under any such material contractual obligation, or
result in the creation or imposition of any Lien upon any of
its revenues or assets pursuant to the terms of any such
material contractual obligation.
SECTION 3. Covenants. Each Guarantor covenants that so long as any
Lender has any commitment to Borrower outstanding under the Credit Agreement, or
any obligation remains to be performed or any amount remains payable by Borrower
to Lender under the Credit Agreement, any Revolving Credit Notes, or other Loan
Documents, each Guarantor shall comply with all covenants contained in this
Guarantee and all those covenants in the Credit Agreement applicable to any
Guarantor that, if necessary, will enable the Borrower to fully comply with
those covenants and agreements set forth in the Credit Agreement.
SECTION 4. Guarantee. Guarantor unconditionally guarantees, jointly and
severally, as a primary obligor and not merely as a surety, (a) the due and
punctual payment of (i) the principal of and premium, if any, 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 and (ii) all other monetary obligations, including fees, costs,
expenses and indemnities, whether primary, secondary, direct, contingent, fixed
or otherwise (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), of the Loan Parties to the
Administrative Agent and the Lenders under the Credit Agreement and the other
Loan Documents, (b) the due and punctual performance of all covenants,
agreements, obligations and liabilities of the Loan Parties under or pursuant to
the Credit Agreement and the other Loan Documents; and (c) the due and punctual
payment and performance of all obligations of the Borrower, monetary or
otherwise, under each Hedging
Agreement entered into with a counterparty that was a Lender or an Affiliate of
a Lender at the time such Hedging Agreement was entered into (all the monetary
and other obligations referred to in the preceding clauses (a) through (c) being
collectively called the "Obligations"). Each Guarantor further agrees that the
Obligations may be extended or renewed, in whole or in part, without notice to
or further assent from it, and that it will remain bound upon its guarantee
notwithstanding any extension or renewal of any Obligation.
SECTION 5. Obligations Not Waived. To the fullest extent permitted by
applicable law, each Guarantor waives presentment to, demand of payment from and
protest to the Borrower of any of the Obligations, and also waives notice of
acceptance of its guarantee and notice of protest for nonpayment. To the fullest
extent permitted by applicable law, the obligations of each Guarantor hereunder
shall not be affected by (a) the failure of the Administrative Agent or any
Lender to assert any claim or demand or to enforce or exercise any right or
remedy against the Borrower or any other Guarantor under the provisions of the
Credit Agreement, any other Loan Document or otherwise, (b) any rescission,
waiver, amendment or modification of, or any release from any of the terms or
provisions of, this Agreement, any other Loan Document, any Guarantee or any
other agreement, including with respect to any Guarantor under this Agreement,
or (c) the failure to perfect any security interest in, or the release of, any
of the security held by or on behalf of the Administrative Agent or any Lender.
SECTION 6. Security. Each Guarantor authorizes the Administrative Agent
and each of the Lenders to (a) take and hold security for payment of this
Guarantee and the Obligations and exchange, enforce, waive and release any such
security, (b) apply such security and direct the order or manner of sale thereof
as they in their sole discretion may determine and (c) release or substitute any
one or more endorsees, other guarantors of other obligors.
SECTION 7. Guarantee of Payment. Each Guarantor further agrees that its
guarantee constitutes a guarantee of payment when due and not of collection, and
waives any right to require that any resort be had by the Administrative Agent
or any Lender to any of the security held for payment of the Obligations or to
any balance of any deposit account or credit on the books of the Administrative
Agent or any Lender in favor of the Borrower or any other person.
SECTION 8. No Discharge or Diminishment of Guarantee. The obligations
of each Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason (other than the indefeasible payment in
full in cash of the Obligations), including any claim of waiver, release,
surrender, alteration or compromise of any of the Obligations, and shall not be
subject to any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or unenforceability of the
Obligations or otherwise. Without limiting the generality of the foregoing, the
obligations of each Guarantor hereunder shall not be discharged or impaired or
otherwise affected by the failure of the Administrative Agent or any Lender to
assert any claim or demand or to enforce any remedy under the Credit Agreement,
any other Loan Document or any other agreement, by any waiver or modification of
any provision of any thereof, by any default, failure or delay, willful or
otherwise, in the performance of the Obligations, or by any other act or
omission that may or might in any manner or to the extent vary the risk of any
Guarantor or that would otherwise operate as a discharge of each Guarantor as a
matter of law or equity (other than the indefeasible payment in full in cash of
all the Obligations).
SECTION 9. Defenses of Borrower Waived. To the fullest extent permitted
by applicable law, each Guarantor waives any defense based on or arising out of
any defense of the Borrower or the unenforceability of the Obligations or any
part thereof from any cause, or the cessation from any cause of the liability of
the Borrower, other than the final and indefeasible payment in full in cash of
the Obligations. The Administrative Agent and the Lenders may, at their
election, foreclose on any security
held by one or more of them by one or more judicial or nonjudicial sales, accept
an assignment of any such security in lieu of foreclosure, compromise or adjust
any part of the Obligations, make any other accommodation with the Borrower or
any other guarantor, without affecting or impairing in any way the liability of
any Guarantor hereunder except to the extent the Obligations have been fully,
finally and indefeasibly paid in cash. Pursuant to applicable law, each
Guarantor waives any defense arising out of any such election even though such
election operates, pursuant to applicable law, to impair or to extinguish any
right of reimbursement or subrogation or other right or remedy of such Guarantor
against the Borrower or any other Guarantor, as the case may be, or any
security.
SECTION 10. Agreement to Pay; Subordination. In furtherance of the
foregoing and not in limitation of any other right that the Administrative Agent
or any Lender has at law or in equity against any Guarantor by virtue hereof,
upon the failure of the Borrower or any other Loan Party to pay any Obligation
when and as the same shall become due, whether at maturity, by acceleration,
after notice of prepayment or otherwise, each Guarantor hereby promises to and
will forthwith pay, or cause to be paid, to the Administrative Agent for the
benefit of the Lenders in cash the amount of such unpaid Obligations. Upon
payment by any Guarantor of any sums to the Administrative Agent, all rights of
such Guarantor against the Borrower arising as a result thereof by way of right
of subrogation, contribution, reimbursement, indemnity or otherwise shall in all
respects be subordinate and junior in right of payment to the prior indefeasible
payment in full in cash of all the Obligations. In addition, any indebtedness of
the Borrower now or hereafter held by any Guarantor is hereby subordinated in
right of payment to the prior payment in full in cash of the Obligations. If any
amount shall erroneously be paid to any Guarantor on account of (i) such
subrogation, contribution, reimbursement, indemnity or similar right or (ii) any
such indebtedness of the Borrower, such amount shall be held in trust for the
benefit of the Administrative Agent and the Lenders and shall forthwith be paid
to the Administrative Agent to be credited against the payment of the
Obligations, whether matured or unmatured, in accordance with the terms of the
Loan Documents.
SECTION 11. Information. Each Guarantor assumes all responsibility for
being and keeping itself informed of the Borrower's financial condition and
assets, and of all other circumstances bearing upon the risk of nonpayment of
the Obligations and the nature, scope and extent of the risks that such
Guarantor assumes and incurs hereunder, and agrees that none of the
Administrative Agent or the Lenders will have any duty to advise the Guarantors
of information known to it or any of them regarding such circumstances or risks.
SECTION 12. Termination. The guarantees made hereunder (a) shall
terminate when all the Obligations have been paid in full in cash and the
Lenders have no further commitment to lend under the Credit Agreement and the
Revolving Credit Exposure has been reduced to zero and (b) shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any
part thereof, of any Obligation is rescinded or must otherwise be restored by
any Lender or any Guarantor upon the bankruptcy or reorganization of the
Borrower, any Guarantor or otherwise. In connection with the foregoing, the
Administrative Agent shall execute and deliver to each Guarantor or each
Guarantor's designee, at such Guarantor's expense, any documents or instruments
which such Guarantor shall reasonably request from time to time to evidence such
termination and release.
SECTION 13. Binding Effect; Several Agreement; Assignments. Whenever in
this Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of each Guarantor that are contained in
this Agreement shall bind and inure to the benefit of each party hereto and
their respective successors and assigns. This Agreement shall become effective
as to any Guarantor when a counterpart hereof executed on behalf of such
Guarantor shall have been delivered to the Administrative Agent, and a
counterpart hereof shall have been executed on behalf of the Administrative
Agent, and
thereafter shall be binding upon such Guarantor and the Administrative Agent and
their respective successors and assigns, and shall inure to the benefit of such
Guarantor, the Administrative Agent and the Lenders, and their respective
successors and assigns, except that no Guarantor shall have the right to assign
its rights or obligations hereunder or any interest herein (and any such
attempted assignment shall be void). If all of the capital stock of a Guarantor
is sold, transferred or otherwise disposed of pursuant to a transaction
permitted by the Credit Agreement, such Guarantor shall be released from its
obligations under this Agreement without further action. This Agreement shall be
construed as a separate agreement with respect to each Guarantor and may be
amended, modified, supplemented, waived or released with respect to any
Guarantor without the approval of any other Guarantor and without affecting the
obligations of any other Guarantor hereunder.
SECTION 14. Waivers; Amendment.
(a) No failure or delay of the Administrative Agent of any in
exercising any power or right hereunder 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 of the
Administrative Agent hereunder and of the Lenders 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 consent to any departure by any Guarantor therefrom
shall in any event be effective unless the same shall be permitted by
paragraph (b) below, and then such waiver and consent shall be
effective only in the specific instance and for the purpose for which
given. No notice or demand on any Guarantor in any case shall entitle
such Guarantor to any other or further notice in similar or other
circumstances.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to a written agreement
entered into between each Guarantor with respect to which such waiver,
amendment or modification relates and the Administrative Agent, with
the prior written consent of the Required Lenders (except as otherwise
provided in the Credit Agreement).
SECTION 15. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TENNESSEE.
SECTION 16. Notices. All communications and notices hereunder shall be
in writing and given as provided in Section 10.1 of the Credit Agreement. All
communications and notices hereunder to each Guarantor shall be given to it at
Borrower's address as provided in Section 10.1 of the Credit Agreement.
SECTION 17. Survival of Agreement; Severability.
(a) All covenants, agreements representations and warranties
made by the Guarantors herein and in the certificates or other
instruments prepared or delivered in connection with or pursuant to
this Agreement or the other Loan Documents shall be considered to have
been relied upon by the Administrative Agent and the Lenders and shall
survive the making by the Lenders of the Loans regardless of any
investigation made by any of them or on their behalf, and shall
continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any other fee or amount payable under
this Agreement or any other Loan Document is outstanding and unpaid or
the Revolving Credit Exposure does not equal zero and as long as the
Revolving Commitments have not been terminated.
(b) In the event one or more of the provisions contained in
this Agreement or in any other Loan Document should be held invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby (it being
understood that the invalidity of a particular provision in a
particular jurisdiction shall not in and of itself affect the validity
of such provision in any other jurisdiction). The parties shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 18. Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute a single contract (subject to Section 13), and
shall become effective as provided in Section 13. Delivery of an executed
signature page to this Agreement by facsimile transmission shall be as effective
as delivery of a manually executed counterpart of this Agreement.
SECTION 19. Rules of Interpretation. The rules of interpretation
specified in Section 1.3 of the Credit Agreement shall be applicable to this
Agreement.
SECTION 20. Jurisdiction; Consent to Service of Process.
(a) Each Guarantor hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction
of any Tennessee State court or Federal court of the United States of
America sitting in Nashville, Tennessee, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to
this Agreement or the other Loan Documents, 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
Tennessee State court or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment
in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement shall affect any
right that the Administrative Agent or any Lender may otherwise have to
bring any action or proceeding relating to this Agreement or the other
Loan Documents against any Guarantor or its properties in the courts of
any jurisdiction.
(b) Each Guarantor hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this
Agreement or the other Loan Documents in any Tennessee State or Federal
court. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum
to the maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 16
hereof. Nothing in this Agreement will affect the right of any party to
this Agreement to serve process in any other manner permitted by law.
SECTION 21. 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 RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS. 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 AND THE OTHER LOAN DOCUMENTS, AS
APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 21.
SECTION 22. Additional Guarantors. Pursuant to Section 5.10(a) of the
Credit Agreement, each additional Wholly Owned Subsidiary that was not in
existence on the date of the Credit Agreement is required to enter into this
Agreement as a Guarantor upon becoming a Wholly Owned Subsidiary. Upon execution
and delivery after the date hereof by the Administrative Agent and such Wholly
Owned Subsidiary of an instrument in the form of Annex 1, such Wholly Owned
Subsidiary shall become a Guarantor hereunder with the same force and effect as
if originally named as a Guarantor herein. The execution and delivery of any
instrument adding an additional Guarantor as a party to this Agreement shall not
require the consent of any other Guarantor hereunder. The rights and obligations
of each Guarantor hereunder shall remain in full force and effect
notwithstanding the addition of any new Guarantor as a party to this Agreement.
SECTION 23. Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Lender 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 Indebtedness at any time owing by such Lender to or for the
credit or the account of any Guarantor against any or all the obligations of
such Guarantor now or hereafter existing under this Agreement and the other Loan
Documents held by such Lender or the Issuing Bank, irrespective of whether or
not such Person shall have made any demand under this Agreement or any other
Loan Document and although such obligations may be unmatured. The rights of each
Lender under this Section 23 are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 24. Savings Clause.
(a) It is the intent that each Guarantor's maximum obligations
hereunder shall be, but not in excess of:
(i) in a case or proceeding commenced by or against a
Guarantor under the Bankruptcy Code on or within one year from
the date on which any of the Obligations are incurred, the
maximum amount which would not otherwise cause the Obligations
(or any other obligations of Guarantors to Lenders) to be
avoidable or unenforceable against such Guarantor under (A)
Section 548 of the Bankruptcy Code or (B) any state fraudulent
transfer or fraudulent conveyance act or statute applied in
such case or proceeding by virtue of Section 544 of the
Bankruptcy Code; or
(ii) in a case or proceeding commenced by or against
a Guarantor under the Bankruptcy Code subsequent to one year
from the date on which any of the Obligations are incurred,
the maximum amount which would not otherwise cause the
Obligations to be avoidable or unenforceable against such
Guarantor under any state fraudulent transfer or fraudulent
conveyance act or statute applied in any such case or
proceeding by virtue of Section 544 of the Bankruptcy Code; or
(iii) in a case or proceeding commenced by or against
a Guarantor under any law, statute or regulation other than
the Bankruptcy Code (including, without limitation, any other
bankruptcy, reorganization, arrangement, moratorium,
readjustment of debt,
dissolution, liquidation or similar debtor relief laws), the
maximum amount which would not otherwise cause the Obligations
to be avoidable or unenforceable against such Guarantor under
such law, statute or regulation including, without limitation,
any state fraudulent transfer or fraudulent conveyance act or
statute applied in any such case or proceeding.
(The substantive laws under which the possible avoidance or
unenforceability of the Obligations (or any other obligations
of Guarantors to Lenders) shall be determined in any such case
or proceeding shall hereinafter be referred to as the
"Avoidance Provisions").
(b) To the end set forth in Section 24(a), but only to the
extent that the Obligations would otherwise be subject to avoidance
under the Avoidance Provisions, if a Guarantor is not deemed to have
received valuable consideration, fair value or reasonably equivalent
value for the Obligations, or if the Obligations would render a
Guarantor insolvent, or leave a Guarantor with an unreasonably small
capital to conduct its business, or cause a Guarantor to have incurred
debts (or to have intended to have incurred debts) beyond its ability
to pay such debts as they mature, in each case as of the time any of
the Obligations are deemed to have been incurred under the Avoidance
Provisions and after giving effect to the contribution by such
Guarantor, the maximum Obligations for which such Guarantor shall be
liable hereunder shall be reduced to that amount which, after giving
effect thereto, would not cause the Obligations (or any other
obligations of Guarantors to Lenders), as so reduced, to be subject to
avoidance under the Avoidance Provisions. This Section 24(b) is
intended solely to preserve the rights of Lenders hereunder to the
maximum extent that would not cause the Obligations of Guarantors to be
subject to avoidance under the Avoidance Provisions, and neither the
Guarantors nor any other Person shall have any right or claim under
this Section 24 as against Lenders that would not otherwise be
available to such person under the Avoidance Provisions.
IN WITNESS WHEREOF, the Guarantors have caused this Guarantee to be
duly executed by an authorized officer as of the day and year first above
written. Each of the Guarantors listed on Exhibit A attached hereto are bound by
the signature of the duly authorized officer listed below.
GUARANTOR:
AMSURG KEC, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG EC TOPEKA, INC.
By:
-----------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG EC ST. ▇▇▇▇▇▇, INC.
By:
-----------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG EC CENTENNIAL, INC.
By:
-----------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG ▇▇ ▇▇▇▇▇▇▇▇, INC.
By:
-----------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG EC SANTA FE, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG ▇▇ ▇▇▇▇▇▇▇▇▇▇, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG TORRANCE, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG ENCINO, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG SEBASTOPOL, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG ABILENE, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG LORAIN, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG MARYVILLE, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG MIAMI, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG MELBOURNE, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG HILLMONT, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG NORTHWEST FLORIDA, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG PALMETTO, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG OCALA, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG SOUTH FLORIDA NETWORK, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG CRYSTAL RIVER, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG ABILENE EYE, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG EL PASO, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG WESTLAKE, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG FL EYECARE NETWORK, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG NAPLES, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG LA JOLLA, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG BURBANK, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG INGLEWOOD, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG GLENDALE, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG HARLINGEN, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG SUNCOAST, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG WESLACO, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG SAN ANTONIO TX, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG TEMECULA CA, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG ESCONDIDO CA, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG SAN ▇▇▇▇ OBISPO, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG DADE COUNTY, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG ENT BREVARD, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG MIAMI UROLOGY, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG SWFLA, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG LARGO, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG BREVARD, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
AMSURG HOLDINGS, INC.
By:
------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
ACCEPTED AND AGREED TO BY:
ADMINISTRATIVE AGENT:
SUNTRUST BANK, Administrative Agent on behalf of Lenders:
By:
-------------------------------------------------
Title:
----------------------------------------------
ANNEX 1 TO THE
AMENDED AND RESTATED SUBSIDIARY GUARANTEE AGREEMENT
SUPPLEMENT NO. ____ dated as of ____________________, 20___, to the
Amended and Restated Subsidiary Guarantee Agreement (the "Guarantee Agreement")
dated as of April ____, 2005 among each of the WHOLLY OWNED SUBSIDIARIES (as
defined in the Credit Agreement referred to below) (individually referred to
herein as "Guarantor" and collectively referred to as the "Guarantors") of
AMSURG CORP., a Tennessee corporation (the "Borrower"), and SUNTRUST BANK, a
Georgia banking corporation, as Administrative Agent (the "Administrative
Agent") for the Lenders (as defined in the Credit Agreement referred to below).
A. Reference is made to the Second Amended and Restated Revolving
Credit Agreement dated as of April ____, 2005 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among the
Borrower, the lenders from time to time party thereto (the "Lenders") and
SunTrust Bank, as Administrative Agent.
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Guarantee Agreement and the
Credit Agreement.
C. Guarantors have entered into the Guarantee Agreement in order to
induce the Lenders to make Revolving Loans. Pursuant to Section 5.10(a) of the
Credit Agreement, each Wholly Owned Subsidiary that was not in existence or not
a Wholly Owned Subsidiary on the date of the Credit Agreement is required to
enter into the Guarantee Agreement as a Guarantor upon becoming a Wholly Owned
Subsidiary. Section 22 of the Guarantee Agreement provides that additional
Wholly Owned Subsidiaries of the Borrower may become Guarantors under the
Guarantee Agreement by execution and delivery of an instrument in the form of
this Supplement. The undersigned Wholly Owned Subsidiary of the Borrower (the
"New Guarantor") is executing this Supplement in accordance with the
requirements of the Credit Agreement to become a Guarantor under the Guarantee
Agreement in order to induce the Lenders to make additional Loans and as
consideration for Loans previously made.
Accordingly, the Administrative Agent and the New Guarantor agree as
follows:
SECTION 1. In accordance with Section 22 of the Guarantee Agreement,
the New Guarantor by its signature below becomes a Guarantor under the Guarantee
Agreement with the same force and effect as if originally named therein as a
Guarantor; and the New Guarantor hereby (a) agrees to all the terms and
provisions of the Guarantee Agreement applicable to it as Guarantor thereunder
and (b) represents and warrants that the representations and warranties made by
it as a Guarantor thereunder are true and correct on and as of the date hereof.
Each reference to a Guarantor in the Guarantee Agreement shall be deemed to
include the New Guarantor. The Guarantee Agreement is hereby incorporated herein
by reference.
SECTION 2. The New Guarantor represents and warrants to the
Administrative Agent and the Lenders that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts each of
which shall constitute an original, but all of which when taken together shall
constitute a single contract. This Supplement shall become effective when the
Administrative Agent shall have received counterparts of this Supplement that,
when taken together, bear the signatures of the New Guarantor and the
Administrative Agent. Delivery of an executed signature page to this Supplement
by facsimile transmission shall be as effective as delivery of a manually signed
counterpart of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Guarantee
Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF TENNESSEE.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Guarantee Agreement shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision hereof in a particular jurisdiction shall not in and of itself affect
the validity of such provision in any other jurisdiction). The parties hereto
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 7. All communications and notices hereunder shall be in writing
and given as provided in Section 16 of the Guarantee Agreement. All
communications and notices hereunder to the New Guarantor shall be given to it
at the address set forth under its signature below, with a copy to the Borrower.
SECTION 8. The New Guarantor agrees to reimburse the Administrative
Agent for its out-of-pocket expenses in connection with this Supplement,
including the fees, disbursements and other charges of counsel for the
Administrative Agent.
[SIGNATURE LINES CONTINUED ON NEXT PAGE]
IN WITNESS WHEREOF, the New Guarantor and the Administrative Agent have
duly executed this Supplement to the Guarantee Agreement as of the day and year
first above written.
NEW GUARANTOR:
By:
------------------------------------------
Title:
---------------------------------------
ADMINISTRATIVE AGENT:
SUNTRUST BANK, as Administrative Agent on
behalf of Lenders
By:
------------------------------------------
Title:
---------------------------------------
EXHIBIT D
AMENDED AND RESTATED INDEMNITY, SUBROGATION AND CONTRIBUTION AGREEMENT
This AMENDED AND RESTATED INDEMNITY, SUBROGATION and CONTRIBUTION
AGREEMENT is entered into as of April 22, 2005, among AMSURG CORP., a Tennessee
corporation (the "Borrower"), the WHOLLY OWNED SUBSIDIARIES, as defined in the
Credit Agreement referred to below (the "Guarantors"), and SUNTRUST BANK, a
Georgia banking corporation, as administrative agent (in such capacity, the
"Administrative Agent") for the Lenders (as defined in the Credit Agreement
referred to below).
Pursuant to the 2000 Credit Agreement (as such term is defined in the
Credit Agreement described below), the Guarantors entered into an Indemnity,
Subrogation and Contribution Agreement (or entered into a supplement thereto)
related to their guaranty of the obligations evidenced by the 2000 Credit
Agreement; and as described in more detail below, the Guarantors desire to amend
and restate said Indemnity, Subrogation and Contribution Agreement in connection
with the execution of the Credit Agreement described below pursuant to the terms
hereof.
Reference is made to (a) the Second Amended and Restated Revolving
Credit Agreement dated as of April 22, 2005 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among the
Borrower, the lenders from time to time party thereto (the "Lenders") and
SunTrust Bank, as Administrative Agent, and (b) the Amended and Restated
Subsidiary Guarantee Agreement dated as of April 22, 2005, among the Guarantors
and the Administrative Agent (as amended, supplemented or otherwise modified
from time to time, the "Guarantee Agreement"). Capitalized terms used herein and
not defined herein shall have the meanings assigned to such terms in the Credit
Agreement.
The Lenders have agreed to make Loans to the Borrower, pursuant to, and
upon the terms and subject to the conditions specified in, the Credit Agreement.
The Guarantors have guaranteed such Loans and the other Obligations (as defined
in the Guarantee Agreement) of the Borrower under the Credit Agreement pursuant
to the Guarantee Agreement. The obligations of the Lenders to make Loans are
conditioned on, among other things, the execution and delivery by the Borrower
and the Guarantors of an agreement in the form hereof.
Accordingly, the Borrower, each Guarantor and the Administrative Agent
agree as follows:
SECTION 1. Indemnity and Subrogation. In addition to all such rights of
indemnity and subrogation as the Guarantors may have under applicable law (but
subject to Section 3), the Borrower agrees that (a) in the event a payment shall
be made by any Guarantor under the Guarantee Agreement, the Borrower shall
indemnify such Guarantor for the full amount of such payment and such Guarantor
shall be subrogated to the rights of the person to whom such payment shall have
been made to the extent of such payment.
SECTION 2. Contribution and Subrogation. Each Guarantor (a
"Contributing Guarantor") agrees (subject to Section 3) that, in the event a
payment shall be made by any other Guarantor under the Guarantee Agreement and
such other Guarantor (the "Claiming Guarantor") shall not have been fully
indemnified by the Borrower as provided in Section 1, the Contributing Guarantor
shall indemnify the Claiming Guarantor in an amount equal to the amount of such
payment in each case multiplied by a fraction of which the numerator shall be
the net worth of the Contributing Guarantor on the date hereof and the
denominator shall be the aggregate net worth of all the Guarantors on the date
hereof (or, in the case of any Guarantor becoming a party hereto pursuant to
Section 12, the date of the Supplement hereto
executed and delivered by such Guarantor). Any Contributing Guarantor making any
payment to a Claiming Guarantor pursuant to this Section 2 shall be subrogated
to the rights of such Claiming Guarantor under Section 1 to the extent of such
payment.
SECTION 3. Subordination. Notwithstanding any provision of this
Agreement to the contrary, all rights of the Guarantors under Sections 1 and 2
and all other rights of indemnity, contribution or subrogation under applicable
law or otherwise shall be fully subordinated to the indefeasible payment in full
in cash of the Obligations. No failure on the part of the Borrower or any
Guarantor to make the payments required under applicable law or otherwise shall
in any respect limit the obligations and liabilities of any Guarantor with
respect to its obligations hereunder, and each Guarantor shall remain liable for
the full amount of the obligations of such Guarantor hereunder.
SECTION 4. Termination. This Agreement shall survive and be in full
force and effect so long as any Obligation is outstanding and has not been
indefeasibly paid in full in cash, and so long as any of the Commitments under
the Credit Agreement have not been terminated, and shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any
part thereof, of any Obligation is rescinded or must otherwise be restored by
any Lender or any Guarantor upon the bankruptcy or reorganization of the
Borrower, any Guarantor or otherwise.
SECTION 5. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TENNESSEE.
SECTION 6. No Waiver; Amendment.
(a) No failure on the part of the Administrative Agent or any
Guarantor to exercise, and no delay in exercising, any right, power or
remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power or remedy by the
Administrative Agent or any Guarantor preclude any other or further
exercise thereof or the exercise of any other right, power or remedy.
All remedies hereunder are cumulative and are not exclusive of any
other remedies provided by law. None of the Administrative Agent and
the Guarantors shall be deemed to have waived any rights hereunder
unless such waiver shall be in writing and signed by such parties.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to a written agreement
entered into between the Borrower, the Guarantors and the
Administrative Agent, with the prior written consent of the Required
Lenders (except as otherwise provided in the Credit Agreement).
SECTION 7. Notices. All communications and notices hereunder shall be
in writing and given as provided in the Guarantee Agreement and addressed as
specified therein.
SECTION 8. Binding Agreement; Assignments. Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party; and all covenants, promises
and agreements by or on behalf of the parties that are contained in this
Agreement shall bind and inure to the benefit of their respective successors and
assigns. Neither the Borrower nor any Guarantor may assign or transfer any of
its rights or obligations hereunder (and any such attempted assignment or
transfer shall be void) without the prior written consent of the Required
Lenders. Notwithstanding the foregoing, at the time any Guarantor is released
from its obligations under the Guarantee Agreement in accordance with such
Guarantee Agreement and the Credit Agreement, such Guarantor will cease to have
any rights or obligations under this Agreement.
SECTION 9. Survival of Agreement; Severability.
(a) All covenants and agreements made by the Borrower and each
Guarantor herein and in the certificates or other instruments prepared
or delivered in connection with this Agreement or the other Loan
Documents shall be considered to have been relied upon by the
Administrative Agent, the Lenders and each Guarantor and shall survive
the making by the Lenders of the Loans, and shall continue in full
force and effect as long as the principal of or any accrued interest on
any Loans or any other fee or amount payable under the Credit Agreement
or this Agreement or under any of the other Loan Documents is
outstanding and unpaid and as long as the Commitments have not been
terminated.
(b) In case one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any
respect, no party hereto shall be required to comply with such
provision for so long as such provision is held to be invalid, illegal
or unenforceable, but the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected
or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as
close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 10. Counterparts. 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 shall be effective with respect to
any Guarantor when a counterpart bearing the signature of such Guarantor shall
have been delivered to the Administrative Agent. Delivery of an executed
signature page to this Agreement by facsimile transmission shall be as effective
as delivery of a manually signed counterpart of this Agreement.
SECTION 11. Rules of Interpretation. The rules of interpretation
specified in Section 1.03 of the Credit Agreement shall be applicable to this
Agreement.
SECTION 12. Additional Guarantors. Pursuant to Section 5.10(a) of the
Credit Agreement, each Wholly Owned Subsidiary of the Borrower that was not in
existence or not such a Wholly Owned Subsidiary on the date of the Credit
Agreement is required to enter into the Guarantee Agreement as Guarantor upon
becoming such a Wholly Owned Subsidiary. Upon the execution and delivery, after
the date hereof, by the Administrative Agent and such Wholly Owned Subsidiary of
an instrument in the form of Annex 1, such Subsidiary shall become a Guarantor
hereunder with the same force and effect as if originally named as a Guarantor
hereunder. The execution and delivery of any instrument adding an additional
Guarantor as a party to this Agreement shall not require the consent of any
Guarantor hereunder. The rights and obligations of each Guarantor hereunder
shall remain in full force and effect notwithstanding the addition of any new
Guarantor as a party to this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first appearing above.
BORROWER:
AMSURG CORP.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President,
Chief Financial Officer and Secretary
WHOLLY OWNED SUBSIDIARIES:
AMSURG KEC, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG EC TOPEKA, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG EC ST. ▇▇▇▇▇▇, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG EC CENTENNIAL, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG ▇▇ ▇▇▇▇▇▇▇▇, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG EC SANTA FE, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG ▇▇ ▇▇▇▇▇▇▇▇▇▇, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG TORRANCE, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG ENCINO, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG SEBASTOPOL, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG ABILENE, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG LORAIN, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG MARYVILLE, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG MIAMI, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG MELBOURNE, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG HILLMONT, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG NORTHWEST FLORIDA, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG PALMETTO, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG OCALA, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG SOUTH FLORIDA NETWORK, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG CRYSTAL RIVER, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG ABILENE EYE, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG EL PASO, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG WESTLAKE, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG FL EYECARE NETWORK, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG NAPLES, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG LA JOLLA, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG BURBANK, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG INGLEWOOD, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG GLENDALE, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG HARLINGEN, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG SUNCOAST, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG WESLACO, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG SAN ANTONIO TX, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG TEMECULA CA, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG ESCONDIDO CA, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG SAN ▇▇▇▇ OBISPO, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG DADE COUNTY, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG ENT BREVARD, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG MIAMI UROLOGY, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG SWFLA, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG LARGO, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG BREVARD, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AMSURG HOLDINGS, INC.
By:
----------------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Secretary
and Treasurer
AGENT:
SUNTRUST BANK, Administrative Agent on behalf of
Lenders
By:
----------------------------------------------
Title:
-------------------------------------------
ANNEX I TO
AMENDED AND RESTATED INDEMNITY, SUBROGATION AND
CONTRIBUTION AGREEMENT
SUPPLEMENT NO. ____ dated as of ____________________, 20____, to the
Amended and Restated Indemnity, Subrogation and Contribution Agreement dated as
of April ____, 2005 (as the same may be amended, supplemented or otherwise
modified from time to time, the "Indemnity and Contribution Agreement") among
AMSURG CORP., a Tennessee corporation (the "Borrower"), the WHOLLY OWNED
SUBSIDIARIES, as defined in the Credit Agreement referred to below (the
"Guarantors"), and SUNTRUST BANK, a Georgia banking corporation, as
administrative agent (the "Administrative Agent") for the Lenders (as defined in
the Credit Agreement referred to below).
A. Reference is made to (a) the Second Amended and Restated Revolving
Credit Agreement dated as of April ____, 2005 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among the
Borrower, the lenders from time to time party thereto (the "Lenders") and
SunTrust Bank, as the Administrative Agent, and (b) the Amended and Restated
Subsidiary Guarantee Agreement dated as of April ____, 2005, among the
Guarantors and the Administrative Agent (as amended, supplemented or otherwise
modified from time to time, the "Guarantee Agreement").
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Indemnity and Contribution
Agreement and the Credit Agreement.
C. The Borrower and the Guarantors have entered into the Indemnity and
Contribution Agreement in order to induce the Lenders to make Revolving Loans.
Pursuant to Section 5.10(a) of the Credit Agreement, each Wholly Owned
Subsidiary that was not in existence or not such a Wholly Owned Subsidiary on
the date of the Credit Agreement is required to enter into the Guarantee
Agreement as a Guarantor upon becoming a Wholly Owned Subsidiary. Section 12 of
the Indemnity and Contribution Agreement provides that additional Wholly Owned
Subsidiaries may become Guarantors under the Indemnity and Contribution
Agreement by execution and delivery of an instrument in the form of this
Supplement. The undersigned Wholly Owned Subsidiary (the "New Guarantor") is
executing this Supplement in accordance with the requirements of the Credit
Agreement to become a Guarantor under the Indemnity and Contribution Agreement
in order to induce the Lenders to make additional Loans and as consideration for
Loans previously made.
Accordingly, the Administrative Agent and the New Guarantor agree as
follows:
SECTION 1. In accordance with Section 12 of the Indemnity and
Contribution Agreement, the New Guarantor by its signature below becomes a
Guarantor under the Indemnity and Contribution Agreement with the same force and
effect as if originally named therein as a Guarantor and the New Guarantor
hereby agrees to all the terms and provisions of the Indemnity and Contribution
Agreement applicable to it as Guarantor thereunder. Each reference to a
Guarantor in the Indemnity and Contribution Agreement shall be deemed to include
the New Guarantor. The Indemnity and Contribution Agreement is hereby
incorporated herein by reference.
SECTION 2. The New Guarantor represents and warrants to the
Administrative Agent and the Lenders that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement 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 Supplement shall become effective when the Administrative
Agent shall have received counterparts of this Supplement that, when taken
together, bear the signature of the New Guarantor and the Administrative Agent.
Delivery of an executed signature page to this Supplement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Indemnity and
Contribution Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF TENNESSEE.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect,
neither party hereto shall be required to comply with such provision for so long
as such provision is held to be invalid, illegal or unenforceable, but the
validity, legality and enforceability of the remaining provisions contained
herein and in the Indemnity and Contribution Agreement shall not in any way be
affected or impaired. The parties hereto shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the invalid, illegal or unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in writing
and given as provided in Section 7 of the Indemnity and Contribution Agreement.
All communications and notices hereunder to the New Guarantor shall be given to
it at the address set forth under its signature.
SECTION 8. The New Guarantor agrees to reimburse the Administrative
Agent for its reasonable out-of-pocket expenses in connection with this
Supplement, including the reasonable fees, other charges and disbursements of
counsel for the Administrative Agent.
IN WITNESS WHEREOF, the New Guarantor and the Administrative Agent have
duly executed this Supplement to the Indemnity and Contribution Agreement as of
the day and year first above written.
NEW GUARANTOR:
--------------------------------------------------
By:
----------------------------------------------
Title:
-------------------------------------------
ADMINISTRATIVE AGENT:
SUNTRUST BANK, as Administrative Agent on behalf
of Lenders
By:
----------------------------------------------
Title:
-------------------------------------------
EXHIBIT E
FORM OF ACQUISITION APPROVAL LETTER
____________________, 20_____
To the Administrative Agent and Lenders
under the Credit Agreement referred to below
Ladies and Gentlemen:
Reference is made to the Second Amended and Restated Revolving Credit
Agreement, dated as of April ____, 2005 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among AmSurg Corp. (the
"Borrower"), the lender parties thereto (the "Lenders"), and SunTrust Bank, as
the Administrative Agent for the Lenders (the "Administrative Agent"). Unless
otherwise defined herein, the terms defined in the Credit Agreement shall be
used herein as therein defined.
In connection with the proposed Acquisition, the Borrower hereby
requests that the Administrative Agent and the Lenders approve the Acquisition
pursuant to Section 7.14 of the Credit Agreement. The Borrower hereby
acknowledges that the Lenders' approval of the Acquisition is subject to
satisfaction of all of the conditions precedent set forth in Section 7.14 of the
Credit Agreement.
The Borrower herewith submits the Acquisition Informational Package.
The execution and delivery of this Acquisition Approval Letter by the
Required Lenders shall constitute approval of the Acquisition.
This Acquisition Approval Letter may be executed in any number of
counterparts and by any combination of the parties hereto in separate
counterparts, each of which counterparts shall be an original and all of which
taken together shall constitute one and the same consent.
This Acquisition Approval Letter shall become effective upon the
receipt by the Administrative Agent of executed counterparts of this consent
duly executed by the Borrower and by the Required Lenders.
The Borrower certifies to the Lender that immediately after completion
of the Acquisition no Default or Event or Default shall exist, and all of the
representations of the Borrower contained in Article IV are true and correct in
all material respects.
Very truly yours,
AMSURG CORP.
By:
-------------------------------------
Title:
----------------------------------
Approved as of
_____________________,________________:
ADMINISTRATIVE AGENT:
SUNTRUST BANK
By:
-------------------------------------
Title:
----------------------------------
LENDERS:
SUNTRUST BANK
By:
-------------------------------------
Title:
----------------------------------
[ADDITIONAL LENDERS TO BE ADDED]
EXHIBIT F
ACQUISITION INFORMATIONAL PACKAGE
The Borrower shall deliver to the Administrative Agent (with enough
copies for each of the Lenders) the following information in connection with any
Acquisition:
(1) the total consideration given in connection with any
Acquisition in the following format:
(a) Cash: $
----------------
(b) Stock: $
---------
(c) Personal Property: $
---------------
(d) Other Property: [identify type and value]
-----------------------------------------------------
-----------------------------------------------------
-----------------------------------------------------
-----------------------------------------------------
(2) summary financial information relating to the interest or
entity to be acquired, including percentage interest being
acquired and operating forecasts,
(3) (a) the Acquisition Pro Forma duly certified by the chief
financial officer of the Borrower and (b) calculations of the
chief financial officer of the Borrower demonstrating
compliance on a pro-forma basis with the financial covenants
contained in Article VI and Section 7.14 after such
Acquisition is completed.
EXHIBIT G
ACQUISITION PRO-FORMA
Name of Entity to be Acquired:
-------------------------------------------------
Annual Projections
------------------
Gross Revenue $
--------
Contractual Adj. & Refunds $
--------
Net Revenue $
--------
Operating Expenses:
Non-Owner Doctors Payments $
--------
Salaries and benefits $
--------
Drugs and Medical Supplies $
--------
Other Variable Expenses:
General and Administrative $
--------
Facilities Expenses $
--------
Marketing Expenses $
--------
Professional Fees $
--------
Malpractice Insurance $
--------
Other Expenses $
--------
Total Other Variable Expenses $
--------
Total Operating Expenses $
--------
Non-Operating Expenses:
Depreciation Expense $
--------
Interest Income $
--------
Interest Expense $
--------
Other (Income) Expense $
--------
Total Non-Operating Expenses $
--------
Total Expenses $
--------
Pretax Earnings $
--------
EBITDA $
--------
Total Consideration
Cash $___________
Borrowings $___________
Stock $___________
Purchase Price $___________
A.R. net $___________
Inventory $___________
PP & E $___________
$___________
_______%
$___________
Goodwill $___________
Purchase Price $_________
EXHIBIT H
MASTER AMENDMENT TO SECURITY DOCUMENTS
ENTERED INTO by and between AMSURG CORP., a Tennessee corporation (the
"Amsurg"), AMSURG HOLDINGS, INC. ("Amsurg Holdings"; Amsurg and Amsurg Holdings
are collectively referred to herein as the "Debtors"), and SUNTRUST BANK, a
Georgia state banking corporation (the "Administrative Agent"), on behalf of the
Lenders as defined in the Credit Agreement referred to below, as of April 22,
2005.
WITNESSETH:
A. Reference is made to that certain Amended and Restated Credit
Agreement dated as of May 5, 2000 by and among Amsurg, Administrative Agent, and
the other lenders from time to time party thereto, as amended by that certain
First Amendment to Amended and Restated Revolving Credit Agreement dated June
22, 2001, as further amended by that certain Second Amendment to Amended and
Restated Revolving Credit Agreement dated February 5, 2003, as further amended
by that certain Third Amendment to Amended and Restated Revolving Credit
Agreement dated March 4, 2003, and as further amended by that certain Fourth
Amendment to Amended and Restated Revolving Credit Agreement dated March 10,
2004 (as amended, the "2000 Credit Agreement").
B. Reference is additionally made to that certain Subsidiary Guarantee
Agreement dated May 5, 2000, as supplemented from time to time, executed by the
Wholly Owned Subsidiaries of Amsurg, which includes Amsurg Holdings, in favor of
Administrative Agent (the "2000 Subsidiary Guarantee").
C. Pursuant to the terms of the 2000 Credit Agreement and the 2000
Subsidiary Guarantee, the Debtors have executed certain Security Documents (as
such term was defined therein) described in more detail on Exhibit A attached
hereto.
D. Contemporaneously with the execution hereof, Amsurg, Administrative
Agent and certain Lenders party thereto are entering into that certain Second
Amended and Restated Revolving Credit Agreement (the "Credit Agreement"), and
the Wholly Owned Subsidiaries are executing that certain Amended and Restated
Subsidiary Guarantee in favor of Administrative Agent (the "Subsidiary
Guarantee").
E. A condition precedent to Administrative Agent's and the other
Lenders' extension of credit evidenced by the Credit Agreement is the Debtors'
execution of this Master Amendment to Security Documents, whereby Debtors
consent to amend the definition of the secured indebtedness set forth in the
Security Documents described on Exhibit A attached hereto to refer to the Credit
Agreement and the Subsidiary Guarantee.
F. Capitalized terms not otherwise defined herein shall have such
meaning as set forth in the Credit Agreement.
NOW, THEREFORE, in consideration of the mutual premises and covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. The secured indebtedness described in the Security Documents is
defined in different documents as the "Secured Debt," the "Indebtedness," or the
"Obligations." The parties hereto agree that reference under each of these
definitions to the 2000 Credit Agreement is hereby replaced with reference to
the Credit Agreement, as such may be amended and/or restated from time to time,
and such definition
shall include the obligations evidenced by all Loan Documents executed in
connection with the Credit Agreement. Security Documents executed by Amsurg
Holdings also include reference to the 2000 Subsidiary Guarantee within its
description of secured indebtedness. Such reference is hereby replaced with a
reference to the Subsidiary Guarantee.
2. The Security Documents are not amended in any other respect except
as specifically set forth herein.
3. Debtors affirm their obligations under the Security Documents and
agree that such obligations are valid and binding, enforceable in accordance
with their terms, subject to no defense, objection, or counterclaim.
4. This Amendment may be executed in separate counterparts.
5. This Amendment shall be governed by the laws of the State of
Tennessee.
ENTERED INTO as of the date first above written.
DEBTORS:
AMSURG CORP.
By:
-----------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President,
Chief Financial Officer and Secretary
AMSURG HOLDINGS, INC.
By:
-----------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President,
Secretary and Treasurer
ADMINISTRATIVE AGENT:
SUNTRUST BANK
By:
-----------------------------------------
Title:
--------------------------------------
EXHIBIT A
See attached